Refugee Watch-30-Refugee Protection and Mixed Migration

While refugees and asylum seekers account for a relatively small portion of the global movement of people, they increasingly move from one country or continent to another alongside other people whose reasons for moving are different and not protection-related.

More often than not such movements are irregular, in the sense that they take place without the requisite documentation and frequently involve human smugglers and traffickers. The people who move in this manner often place their lives at risk, are obliged to travel in inhumane conditions and may be exposed to exploitation and abuse. States regard such movements as a threat to their sovereignty and security.

It has become imperative for the international community to address this phenomenon in a more coherent and comprehensive manner. States have assumed protection responsibilities for refugees under international instruments which it is in their collective interest to honour.

More specifically, steps must be taken to establish entry systems that are able to identify new arrivals with international protection needs and which provide appropriate and differentiated solutions for them, side by side with such other solutions as need to be pursued for other groups involved in mixed movements. UNHCR is especially mindful of the need to ensure that the provision of protection and asylum to refugees and other people of concern to the Office does not compound the difficulties that states experience in controlling more generally the arrival and residence of foreign nationals and in combating international crime.

This paper sets out ten key areas in which UNHCR has an interest and a potential role to play, and where the Office believe initiatives are called for and could make a positive impact. The Plan of Action provided in the paper is especially relevant to situations where refugees are at risk of refoulement, human rights violations and hazardous onward movements.

The paper does not purport to be comprehensive in relation to matters that are beyond the competence and responsibility of UNHCR. Nor does it contain a detailed blueprint for the implementation of each component of the Plan of Action.

The matrix in Annex I sets out the goals that the Plan of Action is intended to achieve and contains suggestions for activities that might be undertaken under each of the ten component parts. The Plan of Action is global in nature and its implementation would evidently have to be adapted to specific regional and national contexts.

Effective approaches to the dilemmas of mixed movements will inevitably depend upon full cooperation amongst the key actors concerned: affected states, governmental bodies, regional and international organizations with relevant mandates (e.g. UNHCR, OHCHR, UNICEF and IOM) as well as local and international NGOs.

Hence, a first step is to identify and convene such actors in an appropriate forum so that they can exchange information and establish terms and conditions for cooperation and coordination. The convenor of such a forum would preferably be one or more of the affected states but an international organisation can also play a ‘good offices’ role in this respect.

A key to any coherent and comprehensive strategy is the collection, analysis and exchange of data about the characteristics of the movement and those groups which make it up. Such data should typically include information relating to conditions in countries of origin, motivations for movement, modes of transport, transit routes and entry points. An international or regional organization may be well placed to offer support for this function.

The establishment of a functioning entry system is an important element in any strategy relating to mixed movements. Border control is essential for the purposes of combating international crime, including smuggling and trafficking, and averting security threats.

Practical protection safeguards are required to ensure that such measures are not applied in an indiscriminate or disproportionate manner and that they do not lead to refoulement. In this respect, border guards and immigration officials would benefit from training and clear instructions on how to respond to asylum applications and how to handle the needs of separated children, victims of trafficking and other groups with specific needs.

With regard to irregular maritime migration, a particular range of considerations arise, including safeguarding lives at sea, respecting the obligations of maritime law, maintaining the integrity of the search and rescue regime and ensuring the smooth flow of maritime traffic.

Appropriate reception arrangements are needed to ensure that the basic human needs of people involved in mixed movements can be met. Such reception arrangements should also enable new arrivals to be registered and provided with temporary documentation. Especially in situations where a high percentage of the new arrivals are refugees or asylum-seekers, UNHCR could facilitate the putting in place of appropriate arrangements, or be otherwise involved on a temporary basis, together with the principally responsible party.

Once new arrivals have been registered and provided with temporary documentation, an initial determination will have to be made with regard to who they are, why they have left their own country and where their intended destination is. Counselling provides an opportunity to establish whether they wish to seek asylum and to identify other options available to them, including return, regularization or regular onward migration. This channelling arrangement would not constitute a refugee status determination. Rather its role is to give a good indication of a person’s motives for departure and to ensure the person’s situation is met with the most appropriate response. Annex II to this note provides a schematic representation of how such a profiling and referral mechanism might work.

With respect to asylum claims, those which appear to be relatively simple (because they are well founded or manifestly unfounded) could be assessed in an expedited procedure. Other and more complex claims normally will require a more detailed assessment. Different processes outside the asylum arrangements should address the situation of people with specific needs which are not refugee related, including victims of trafficking not in need of international protection, as well as persons who are seeking to migrate (see Chapter 9 below).

While UNHCR is likely to be a principal partner for states in relation to refugee status determination procedures, NGOs, lawyers and civil society institutions should also have a role to play in this component of the Plan of Action. In relation to other processes, UNHCR will only be minimally involved, if at all. The likely partners will depend on the situation in the specific country and on which organisations are present and willing to act as partner.

People who are recognized as refugees or as otherwise being in need of international protection require a protection-based response that includes a durable solution, the nature of which will depend on the opportunities and constraints inherent in each situation.
A comprehensive approach involving a mix of solutions will often offer the best chances for success. Beyond the classic durable solutions, legal migration opportunities may open up a complementary avenue for some refugees.
Refugee-receiving countries may benefit from international assistance to strengthen national protection capacities.

Addressing the situation of refugees and asylum seekers who have moved on from countries where they had already found adequate protection requires a more defined strategy. This strategy should take into account both the legitimate concerns of states about irregular onward movement and the rights and well-being of the people concerned. To date efforts to articulate such a strategy have failed to muster international consensus. UNHCR is committed to continuing the effort in this regard.

For people who are found not to be refugees, and for those who do not wish to seek asylum, expeditious return in safety and dignity is usually the preferred response of states. UNHCR may, on a good offices basis, assist states in the return of people who are not in need of international protection where this is the most appropriate and agreed solution. The manner in which UNHCR could be of assistance deserves closer examination by all interested parties.

There will be circumstances where people who do not meet the criteria for refugee status may nevertheless be in a position to access alternative temporary migration options. These could variously allow them to stay legally in the country of arrival, or to move to a third country for humanitarian reasons, or for the purposes of work, education or family reunion. Efforts to address mixed population movements should also explore a place for regular migration options, temporary or even longer term.

All of the measures described above should be complemented by information campaigns in countries of origin, transit and destination. People need to be alerted to the dangers of irregular movement and the difficulties they might face upon arrival, as well as to any alternatives to irregular migration which might also meet their circumstances.

Such information campaigns will likely not curb irregular movements entirely but, if combined with the other action points and supported by longer term measures to tackle the root causes of such movements, they may have a positive impact.

While information campaigns are primarily a task for agencies with a migration or information related mandate such as IOM, UNHCR may also play a role in such initiatives. UNHCR also has capacity and interest to initiate public awareness activities about the plight of refugees, in order to promote tolerance and to combat racism and xenophobia.