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V. UNHCR and Temporary Protection

The Hashemite Kingdom of Jordan signed a Memorandum of Understanding with UNHCR in 1998 that allows the UN refugee agency to exercise its mandate to recognize refugees with the proviso that it must find places outside Jordan to resettle them within six months of recognizing them.⁸⁸ In practice, Jordan has tolerated the stay of many UNHCR-recognized refugees well beyond the six-month resettlement deadline.⁸⁹

In response to an anticipated refugee exodus from Iraq following the U.S.-led war, UNHCR in April 2003 declared a temporary protection regime on behalf of Iraqi refugees in Jordan, Syria, and Lebanon.⁹⁰ UNHCR concluded a Letter of Understanding with the Jordanian government that it cites as the legal basis for the TPR, but which the Jordanian government interprets differently.⁹¹ UNHCR’s 2006 Country Operations Plan for Jordan states, “UNHCR continues to promote the TPR for all Iraqis, which were [sic] formally agreed upon with the Government of Jordan (GoJ) in a Letter of Understanding signed on April 15, 2003.”⁹² Jordan, however, only recognizes the TPR as applying to al-Ruwaishid camp, a closed facility near the Iraqi border that currently holds fewer than 500 refugees, mostly Palestinians and Iranian Kurds.⁹³ Mukhaimar F. Abu Jamous, the secretary-general of the Ministry of Interior, told Human Rights Watch that UNHCR’s April 2003 statement announcing the TPR was “a unilateral declaration that we did not recognize.”⁹⁴ He said that the Letter of Understanding with UNHCR concerned temporary protection for refugees in the border area camp, not a broader temporary protection regime.⁹⁵ Human Rights Watch has obtained a copy of the letter, which supports the Jordanian reading.

In addition to insisting that it never agreed to the TPR, Jordan has also communicated to UNHCR that whatever need may have existed for temporary protection has long since ended. As early as April 2005 the Jordanian government told UNHCR that it should not apply the TPR “long after the war in Iraq was over.”⁹⁶

UNHCR nevertheless continues to issue the asylum-seeker cards⁹⁷ and renew them every six months as though the TPR exists, although Jordanian officials do not recognize these documents for residency status purposes and the cards provide no benefits, such as work authorization or eligibility for public assistance. Their sole utility is in the event of arrest to enable the detained card bearer to ask for a visit from a UNHCR official to conduct a refugee status determination. Although the term asylum seeker indicates a pending refugee claim, UNHCR in practice suspended RSDs once it declared the TPR (except for card holders in detention).

UNHCR took no further action on Iraqi asylum claims after 2003, leaving the people who had been issued asylum-seeker cards in limbo over their future. It reasoned that refugee screenings would invariably result in some denials, and it did not want to act in a way that could result in Jordan deporting denied asylum seekers to an ever more violent Iraq. Suspending refugee screening meant, however, that Iraqis would not be recognized as refugees and thus UNHCR would be unable to refer them for third-country resettlement.

UNHCR also had a practical reason for suspending RSDs: its resources did not remotely match the requirements of an influx of hundreds of thousands of Iraqis into Jordan,⁹⁸ and there was no possibility of a durable solution for large numbers of recognized refugees. Two such solutions would have been resettlement outside the region, which is at the discretion of third-country governments, or local integration, which Jordan had categorically ruled out.⁹⁹ The United States, the largest refugee resettlement country at the time, had declared a moratorium on the resettlement of any Iraqi refugees following the September 11, 2001, attacks (which remained in effect until being officially lifted in April 2005).¹⁰⁰ In 2005, the United States admitted 12 Iraqi refugees referred by UNHCR-Amman and admitted another six persons on family reunification grounds without UNHCR involvement.¹⁰¹

In 2005 UNHCR facilitated the resettlement of 436 people out of Jordan, of which 158 were Iraqis and Palestinians from Iraq and 191 were Iranian Kurds. Only 212 of the refugees resettled in 2005 were from the urban caseload; the rest were from the Ruwaishid camp. Although a slightly larger number of refugees was resettled from Jordan in 2004 (591 individuals), the number of Iraqis was much smaller (68). The overwhelming bulk of refugees resettled from Jordan that year, 410, were Iranian Kurds.¹⁰² Australia, Canada, and New Zealand were the principal countries of resettlement in 2004 and 2005.¹⁰³ UNHCR has referred no Iraqi refugees for resettlement to the United Kingdom since the war began.¹⁰⁴ Virtually all the urban Iraqis referred for resettlement have been “old caseload” refugees from the Saddam Hussein era.

While the temporary protection regime has been in effect, UNHCR-Amman has conducted refugee status determinations only in the most exceptional cases, usually for detained registered asylum seekers who face deportation. Its recognition of Iraqi refugees fell from 2,429 persons in 2000 to 1,904 in 2001. From 632 refugee recognitions in 2002, the number dropped to 246 in 2003, the year UNHCR instituted the TPR. UNHCR-Amman recognized 41 Iraqi refugees in 2004 and 22 in 2005.¹⁰⁵ The overwhelming majority of Iraqi refugees in Jordan remain unrecognized.

Registration for temporary protection—Asylum cards

Only a small fraction of Iraqis in Jordan—17,000—have registered with UNHCR as asylum seekers, and a miniscule number (712) are recognized refugees, most of which are cases from the Saddam Hussein era.¹⁰⁶ Although UNHCR-Amman is conducting some refugee status determinations on a selective basis, it only has four officers authorized to do so.¹⁰⁷ The office appears, therefore, to be operating as though this is a normal flow refugee situation and not a mass influx. However, even a doubling or tripling of officers authorized to conduct RSDs would not keep pace with the number of registered asylum seekers, let alone the hundreds of thousands in need of temporary protection. Also, the presupposition of the 1998 Memorandum of Understanding—that UNHCR would promptly find resettlement places for all recognized refugees outside Jordan—is not realistic because the number of refugees seeking resettlement (if resettlement were to be a viable option) would far outstrip the available places offered by countries outside the region.

UNHCR-Amman officials said that they have not detected a dramatic increase in recent registrations at their office. They also caution that some of the Iraqis newly registering with UNHCR are not new arrivals, but in some cases have been long-term residents of Jordan.¹⁰⁸ Applications to UNHCR for asylum are not necessarily an indicator of the size of the refugee flow. For example, more Iraqis now seem to be rejected at the border before entering Jordan. The UNHCR office in Amman is also not easily accessible or well known among Iraqis, and is located in a relatively remote residential area of Amman rather than in one of the busy centers of the city—even with detailed directions, Human Rights Watch had difficulty locating the office.¹⁰⁹ A number of Iraqis expressed distrust of UNHCR to Human Rights Watch, and particularly expressed fear that UNHCR would not protect the confidentiality of matters discussed in RSD interviews. Social services case workers confirmed that many of their Iraqi clients feel this way.¹¹⁰ UNHCR-Amman told Human Rights Watch that its staff counsels refugees and asylum seekers on confidentiality matters and pays particular attention to ensuring confidentiality throughout the registration and RSD process.¹¹¹

Iraqis in Jordan also have little understanding (with good reason) of what rights or benefits a UNHCR asylum-seeker card confers. Human Rights Watch interviewed Iraqis who did not renew their asylum-seeker cards because they found they did not regard the cards as holding any sway with Jordanian authorities. A Shi`a barber from Sadr City, Baghdad, who said he fled Iraq in January 2004 when extremists threatened to kill him for shaving his customers’ beards (which the extremists opposed on religious grounds), said:

After I overstayed my visa, I went to UNHCR and got the [asylum-seeker] paper from them. But when the police came to raid this area [Raghadan, Amman], they said to me that the UNHCR paper doesn’t mean anything to them, that it is useless… [UNHCR] told me to come back in six months to renew [the asylum-seeker card]. But I didn’t go back, as the document is useless.¹¹²  

Despite the fact that asylum-seeker registration carries no social benefits and appears, at best, to provide barely minimal protection, the number of Iraqi asylum seekers UNHCR registered nevertheless rose from a total of 13,000 in September 2005 to 17,000 by April 2006.¹¹³ The office projects that it will register 20,000 by the end of 2006.¹¹⁴

Complementary Protection: Another Approach in the Absence of a TPR

In the relatively few cases UNHCR-Amman assesses Iraqi refugee claims, it exclusively applies the 1951 Refugee Convention’s “well-founded fear of being persecuted” standard, which does not recognize refugees fleeing conditions of generalized violence. If Jordan detains more asylum-seeker card holders and UNHCR conducts more refugee status determinations, then UNHCR’s exclusive use of the Refugee Convention standard raises the likelihood that it will reject more asylum seekers, and Jordan will deport them to Iraq. Restricting itself to a narrow Refugee Convention refugee definition limits the tools at UNHCR’s disposal if the Jordanian government continues to decline to treat rejected asylum seekers with “flexibility.”¹¹⁵

However, the UNHCR Executive Committee foresees that the Refugee Convention refugee definition should not be the sole basis for UNHCR operations where there are de facto refugees in need of protection. In particular, in October 2005 UNHCR’s Ex Com issued a Conclusion (ExCom Conclusion 103) that encouraged “the use of complementary forms of protection for individuals in need of international protection who do not meet the refugee definition under the 1951 Convention or the 1967 Protocol,” and that states granting complementary protection should ensure “the human rights and fundamental freedoms of such persons without discrimination.”¹¹⁶

The UNHCR office in Amman told Human Rights Watch that it complies with ExCom Conclusion 103 when conducting RSDs because it recognizes as refugees persons who “fulfill the criteria for refugee status under the 1951 Convention…rather than being accorded a complementary form of protection.”¹¹⁷ While ExCom Conclusion 103 does encourage an inclusive interpretation of the refugee definition in the Refugee Convention, the Conclusion also explicitly encourages the extension of protection to those needing it who do not fit the Convention definition.¹¹⁸ In this regard, UNHCR-Amman says that it is “encouraging the Government of Jordan to use and apply…‘complementary forms of protection for individuals in need of international protection who do not meet the refugee definition under the 1951 Convention or the 1967 Protocol.’”¹¹⁹ This begs the question whether in those instances where UNHCR-Amman still conducts RSDs—and where the consequence of its rejection is that Jordan deports rejected asylum seekers to Iraq—it is willing to extend a complementary protection to Iraqis who do not meet the strict Refugee Convention definition but who have legitimate fears of generalized violence if returned.

ExCom Conclusion 103 also cautions that “temporary protection, without formally according refugee status, as a specific provisional response to situations of mass influx providing emergency protection from refoulement, should be clearly distinguished from other forms of international protection.”¹²⁰ This provision has relevance to Jordan’s situation. “Temporary protection” is internationally recognized as an expedient in response to mass influxes that overwhelm individual asylum systems. A temporary protection regime does not provide refugee or other status per se, but rather provides a mechanism for guaranteeing access to territory, protection, and assistance until such status can be determined. Complementary protection, on the other hand, like Refugee Convention refugee status itself, offers a formal, legal recognition of protection need to those fleeing violence and persecution but who would not be strict Refugee Convention refugees.

In this case the Jordanian government does not have an asylum procedure, so a bureaucracy does not exist to be overwhelmed by a mass influx. However, the terms of the 1998 Memorandum of Understanding authorized UNHCR to provide international protection to persons falling within its mandate in Jordan. The UNHCR office in Amman unquestionably has been overwhelmed by the mass influx and lacks the capacity to provide individualized status determinations. UNHCR clearly has a reasonable basis, therefore, to justify its operation of a temporary protection regime, and all efforts must be directed to enlist the support of the Jordanian government to recognize the TPR and to provide its own protection and assistance to Iraqis escaping the war.

But if the Jordanian government continues to reject a temporary protection regime, UNHCR-Amman, under the terms of ExCom Conclusion 103,¹²¹ should not only be applying an inclusive definition of refugee, but should be ensuring that de facto refugees are provided with status so that they can be afforded complementary protection. UNHCR-Amman’s reservations about conducting refugee status determinations out of concern that it might reject large numbers of asylum seekers who will then be subject to deportation could be addressed if it applied an inclusive Convention definition and extended refugee status to others in need of international protection so they could benefit from protection against deportation and potential resettlement.

Ideally, Jordan should accede to the Refugee Convention, establish its own asylum system, and provide protection to refugees based on both the Refugee Convention definition and to those fleeing war and generalized violence. That being unlikely for the foreseeable future, the Jordanian government could still take responsibility for Iraqi refugees based on its own, ad hoc temporary protection regime. The legal basis for doing so would be the Law on Residence and Foreigners’ Affairs, which includes a provision that gives the minister of interior the discretion to waive normal immigration requirements “on account of special considerations connected with international or humanitarian courtesy or of the right to political asylum.”¹²²

The law’s recognition of the right to seek asylum and its allowance for international and humanitarian considerations provides wide latitude for the minister of interior to exercise discretion to protect Iraqis and other foreigners fleeing war and persecution. This statutory provision provides clear authority in domestic law to embark on a temporary protection regime, even in the absence of a refugee law.