Refugee Law 101

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You may be asking yourself, what exactly is Martina doing in Malawi?! This is my attempt to explain my job. It may be a little technical, but I hope it’s at least understandable for those of you who are interested.

I am in Malawi working for the United Nations High Commissioner for Refugees (UNHCR). That is the UN’s refugee agency, whose responsibility is to ensure protection to the world’s estimated twelve million refugees and to assist in finding them durable solutions (meaning either safe return to their home country, integration into their country of asylum, or resettlement to a third country).

Refugee status determination
The real bulk of my work here is refugee status determination (RSD). That is the process whereby a government assesses whether a person meets the criteria of the refugee definition.

Why would a person want to be recognized as a refugee? The most obvious reason is international protection: if you aren’t protected in your home country, i.e. you are subject to human rights abuses amounting to persecution, you need to go someplace where you can be protected from that. Having refugee status also entitles a person to various rights in her country of asylum, such as the right to receive a travel document, the right to basic education, etc.

Why does a government care if someone is a refugee or not? If someone enters another country, they are usually subject to immigration laws, but if they are a refugee, they are subject to a different set of rules and regulations that is usually more generous than standard immigration law. But hosting refugees costs money, because under international law you are bound to ensure that they are adequately housed, nourished, provided with basic education and medical care, etc. So rather than allow anyone who walks across the border to self-proclaim she is a refugee, governments prefer to conduct individual assessments to determine who actually meets the definition.

The basic RSD process in Malawi is: a person enters the country’s border, declares herself as an asylum seeker, then is transported to Dzaleka refugee camp where she is interviewed by a government Eligibility Officer (EO), which is her chance to tell the story of why she fled her country of origin. The EO then compares her story against known conditions in the country of origin at the time of her story, and assesses whether there is a reasonable possibility she could be persecuted if sent back by researching current conditions in her home country. The officer finally issues a recommendation as to whether the applicant should be granted refugee status or not, and that recommendation is finally approved (or in a very few cases reversed) by the Refugee Committee, a government body consisting of representatives from various government agencies.

Who is a refugee? The definition of a refugee under the international Refugee Convention , to which Malawi is a signatory, is:

A person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion, is outside the country of his nationality, and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

Seem simple enough? There are entire tomes written on the meaning of the various elements of that definition, and a lot of it remains open to debate. I spent an entire semester of law school on that one sentence. For example: What does “well-founded fear” mean? Does a person have to be tortured to have been “persecuted,” or is it enough if their spouse was tortured front of them? What if a person was never involved in politics, but was persecuted because someone thought they were? What if the persecutor was a person’s neighbor, and not the government?

It can get pretty complicated, so when these issues come up in RSD, the Eligibility Officer (EO) has to do some research—especially considering that someone’s life is at stake. In most countries EOs are lawyers, because the refugee definition is a legal definition, and the inquiry into whether a person is a refugee requires a lot of legal analysis in international refugee law and international human rights law. In Malawi, none of the Eligibility Officers are lawyers, and, understandably for a very poor country, they do not have a background in refugee law. UNHCR thus “supervises” the RSD process here, by training the EOs, and by reviewing all of their decisions before they go up to the Refugee Committee. So my role is to conduct refugee status determination, as an EO, to review the decisions of my fellow EOs for consistency with international and domestic law, and to provide them with guidance and training on what international refugee law says and how to apply it to individuals cases, and on proper procedures for interviewing an applicant and researching the conditions in a person’s country of origin.

I worked primarily on RSD appeals last year, assisting individual clients to appeal to the government when they had been rejected for refugee status. So I am also tasked with working with the government’s Appeals Officer to establish a well-functioning appeals procedure here.

Resettlement
I also work on resettlement, which is where a refugee is sent to a third country. This is the ultimate goal of the vast majority of refugees, because it is a chance to make it to a country like Australia or Norway where they believe they will find a better life. In the camp, if you work for UNHCR, every day people come to you asking about resettlement—it is the thing on every refugee’s mind. However, very few refugees will ever be resettled, because most resettlement countries have very low limits on the number of resettlees they will accept. And on policy grounds, resettlement is not really appropriate for most refugees; the best solution is for them to return to their home countries, when the conditions permit that, so they can work on creating a better life for themselves there. But every year UNHCR Malawi identifies a few cases (about 250 a year out of 10,000 refugees in Malawi) needing resettlement, and then countries like Australia and Norway send representatives here to interview those cases and (usually) accept them as resettlees. So it is part of my job to identify individuals who may be candidates for resettlement. These are usually individuals who have suffered severe forms of persecution, such as torture, or women who were raped and are now single (which exposes them to being ostracized by the community), or high-profile individuals like dissident politicians or human rights activists who are being pursued even in the country of asylum by their persecutors back home.

Refugee Policy Review
Finally, the government is supposed to overhaul its refugee laws this year—“Refugee Policy Review”—a desperately needed chance to reform some of Malawi’s more harmful policies such as the rule that refugees cannot work. UNHCR will play a major role in lobbying the government to improve its policies, and I will be assigned to that project, if and when it ever happens (and with the pace of government around here, it very well could not happen for years!). I hope it does, as it’s one of the aspects of my job I am most excited about.

So in terms of my daily life, I split my time between working in the UNHCR office—which is housed in Kang’ombe, the tallest building in Lilongwe (eight stories!)—and the rest of the time I work in the government’s Refugee Status Determination office (RSD Unit) which is conveniently located a 2-min. walk from my flat 😊. With the RSD Unit we go to the camp for a week and a half of interviews—meaning every day we drive out and have three interviews per day—then we spend about two or three weeks working on the decisions coming out of those interviews. Whenever I finish my decisions, I start reviewing my colleagues’ decisions, and then go over any problems with them and have general discussions.

I hope this was informative, if a little boring! I felt like I had to get that out of the way since most of you probably don’t really know what my job is like. I have an insanely active social life here so the next blog I’ll focus on the more fun stuff 😊.

Love

martina

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Photos

The RSD Unit
This is the office located right around the corner from my house where I spend a lot of my days. We share the building with the Jesuit Refugee Service (the org. I worked for last year).

My office
Straight ahead in the dark little doorway is my office, where I write up and review RSD decisions.

Inside my office
To the right is my desk (at the moment no one sits in my office but me so the other desk is vacant); on the wall are maps of countries that produce refugees who flee to Malawi: Rwanda, Democratic Republic of Congo (DRC), Burundi. and increasingly, Somalia and Ethiopia.

Kang'ombe House
Lilongwe's skyscraper! UNHCR is on the seventh floor, my window is circled in pink :)

Comments

[Jim Elles]

interesting
Great article, and very informative. Wishing you the best.

[kpoms]

awesome
i'm so glad you wrote this post - i desperately needed help explaining what you do! this is perfect. :) thank you!

[simone]

Now I Know
...where my money goes! I've been giving to UNHCR for years now on a monthly basis. Technically - you work for me. Martina you are so awesome!

[The Travel Camel]

You are making a difference!
My taxi-driver last night was from Burundi, and he was resettled to Australia through the UNHCR over 30 years ago. For him, it was an opportunity to start a life free from the uncertainty and devastation of armed conflict. He is so thankful for what the UNHCR did for him and his family, and in 30 years time, relocated refugees will still remember you with a large degree of fondness. Keep up your superb work!