Refugee Status Determination: Justice Delayed is…Typical?
Volume 1, Issue 3 / February 2009
Asylum seekers awaiting refugee status decisions from UNHCR have lingered in legal limbo for years, with serious consequences for stability and well-being. (Part one of a two-part series on RSD)
Thousands of asylum seekers stay in Kakuma Refugee Camp for years awaiting refugee status determination (RSD) from UNHCR. In the interim, they hover in the uncertainty of indeterminate legal status without guarantees of permanent UNHCR protection. Many asylum seekers start families and struggle to begin life again in Kakuma Refugee Camp, only to receive RSD rejections three to four years after their arrival. At that point, what do they do?
“Deeply unhappy and discouraged” at RSD delays
Isha* is an Ethiopian Oromo asylum seeker who attempted to commit suicide after her RSD process was delayed more than three years. “I am a widow with three children,” Isha told KANERE reporters through a phone interview. “My husband was killed by the Ethiopian Government for serving as a focal point of the opposition party. I personally went through persecution, torture, and rape several times along with my first-born daughter who was 14 years old in early 2004,” she says.
Isha and her family arrived in Kakuma Camp in 2005 with a movement pass from UNHCR offices in Nairobi. Upon arrival in Kakuma, Isha was informed by UNHCR officials that her RSD eligibility process would take three to six months or one year.
“But surprisingly after I was registered I was put in a tent with my three children where my family conditions were unnatural and the life conditions of my children were unhealthy,” Isha reports.
After waiting nearly two years, Isha was called for the pre-eligibility interview in 2007. She was never scheduled for the subsequent eligibility interview.
In 2008, she approached UNHCR officials at field post to seek action on her case. But at every visit to field post, she was told to come again after two weeks or to check on the notice board after two weeks. Up to now, she has never been called for an eligibility interview.
Under enormous stress and profoundly frustrated, Isha attempted to commit suicide in December, 2008. Fortunately, she was rescued by her eldest daughter, who was following her mother’s movements after noting her depression.
Asked about her suicide attempt, Isha explains, “I was deeply unhappy and discouraged with the way UNHCR-Kakuma delays the RSD process for voiceless refugees such as me. I am in desperate conditions following my vulnerability, as a widow aged 53 with genuine reasons to flee my country, seeking safety and protection.”
Following Isha’s suicide attempt, the family left Kakuma Refugee Camp for Nairobi. Early this year, Isha’s eldest daughter managed to arrange for the relocation of her mother and family to Nairobi where they continue to live in uncertainty. She has never been called for an eligibility interview from UNHCR-apparently, her case is indefinitely pending.
Overview of refugee status determination
According to the 1951 Convention Relating to the Status of Refugees, a refugee is a person with a well founded fear of persecution for reasons related to race, religion, nationality, or membership of a particular social group or political opinion, and who is outside her country of origin (Article 1: A2).
The purpose of the refugee status determination (RSD) process is to determine whether an asylum seeker falls within the criteria for international refugee protection.
“The determination of refugee status has potentially profound implications for the life and security of the individuals concerned,” says the handbook Procedural Standards for RSD under UNHCR Mandate (henceforth UNHCR RSD Procedural Standards) (p. 1-1). The results of RSD determine the obligations and responsibilities of UNHCR, asylum governments, and other actors towards the protection of the individual.
Upon arrival in Kakuma Refugee Camp, asylum seekers approach UNHCR offices to be registered. They are issued a temporary ration card to ensure access to basic needs (food, shelter, education, health care, etc.). The eligibility process starts when a registered asylum seeker is scheduled for a pre-eligibility interview. This initial interview is followed up by a full eligibility interview. If rejected at the first interview, asylum seekers may submit an appeal in a second interview.
Some refugees are not required to undergo individual screening for RSD; rather, they are considered to be refugees on a group basis. Prima facie refugee groups are identified particularly in situations of large-scale refugee movements, or where prevailing conditions have substantially the same effect upon a large population. In Kakuma Camp, Southern Sudanese and Somali refugees were both considered prima facie refugees at one point and did not undergo individual screening.
Asylum seekers face long delays in eligibility decisions
UNHCR Guidelines state that RSD applications should be processed in the most timely and efficient manner possible. The waiting period from the date of registration to the date of a scheduled RSD interview should not exceed six months. While the average processing time for first instance RSD decisions will vary depending on the caseload and staffing of a UNHCR office, it should not exceed one year in any event (UNHCR RSD Procedural Standards).
But it is not uncommon for asylum-seekers who arrived in Kakuma in 2003 to continue awaiting an eligibility decision today. While UNHCR does not publish statistics on RSD waiting times, refugees report that the typical waiting period is about three years.
According to a UNHCR official at field post who wished to remain anonymous, ongoing eligibility interviews are currently processing those who arrived in Kakuma Camp between 2003 and 2006.
During this period, asylum-seekers remain in the camp without refugee status recognition by UNHCR. Some arrived without families, and since their arrival became married and bore children while still asylum-seekers. Children grow up in the refugee camp while their parents’ claims are remain pending.
Tambwe,* a Congolese asylum-seeker, entered Kenya on 3 November 2006 and has been waiting nearly two and a half years for his eligibility decision. He completed his eligibility interview on 23 April 2008 and still has not received a first instance decision. Of his experience, Tambwe says, “My heart is full of sorrow. I feel so sad to see how long it takes to be accepted as a refugee while suffering in the camp.”
According to a UNHCR official in Kakuma who wished to remain anonymous, the length of time for recognition as a refugee is variable: “It depends, but most times it goes from six months to a year or above according to the nature of the case, degree of vulnerability, insecurity matters, some more information needed, and also the size of the refugee population.”
However, some refugees have been in Kakuma Refugee Camp for more than four years and are still awaiting an RSD decision. Some are rejected and make an appeal which also takes time.
When asked about this delay, the UNHCR official says that, “The interview is made on a first-come-first-serve basis unless otherwise, but UNHCR has its own procedures on how to determine who is eligible and who is not.”
Facing rejection after years in the camp: What next?
The urgency of prompt RSD decisions is underscored by the fact that asylum seekers must put their lives on hold in a refugee camp while they await a decision from UNHCR. Asylum seekers transport their lives, and often families, to the camp while awaiting the outcome of their refugee status application. After staying several years in the camp, an RSD rejection can have potentially devastating effects.
After receiving a final rejection by UNHCR, some asylum-seekers leave the camp and attempt to live illegally in Nairobi without legal protection. Others move to another asylum country such as Uganda or Tanzania where they may again seek recognition as a refugee. Still others choose to remain in Kakuma Camp without ration cards and access to services, living here informally with the assistance of friends and community members.
Mulamba,* a Congolese asylum seeker with a wife and three young children, arrived in Kakuma Camp in August 2005. He was interviewed for eligibility in October 2007 and received a first instance rejection. He filed an appeal and was interviewed again in July 2008.
Mulamba continues to live in Kakuma Refugee Camp while awaiting the final decision from UNHCR offices. While waiting for their RSD decision, he and his wife have given birth to a baby girl who is now one year old.
If Mulamba is rejected again, he says he does not know what he and his family will do. “I feel very bad and desperate-a lot of pressures and thinking too much. I saw another friend who got his rejection on the same day but he was given 30 days to leave the camp. I was asking myself questions-if it happens to me, what will I do?”
“Even now mawazo mingi (many thoughts) na pressure mingi (heavy pressure),” he continues. “I am here for four years without recognition as a refugee. This is giving me headache and the need to run mad.”
When asked why refugees are rejected after staying years in the refugee camp, a UNHCR Protection Unit official explains, “Many refugees earn the respect of officials. They tell more than a tale of oppression, their stories are often a triumph of the human spirit, of the will to survive, to endure, to maintain a sense of personal dignity.”
But the UNHCR official, who requested anonymity, goes on to say, “Another reality in this day-by-day drama is less pleasant, when a member does not believe the claimant or finds his or her fear of persecution is not well-founded. Sometimes their story does not fit the refugee definition, there has been a change of circumstances, or the specific harm feared does not fit the definition of persecution. Sometimes the story is exaggerated, [they are] simply fleeing poverty. Or a story is fabricated but contains a ring of truth because the claimant is the persecutor rather than the persecuted. Sometimes the story is simply false.”
The UNHCR official concludes, “The challenge is that it is often very difficult to distinguish between a genuine and false refugee.”
According to UNHCR Procedural Standards, “The effectiveness of mandate RSD as a protection function depends upon the fairness and integrity of UNHCR RSD procedures and the quality of UNHCR RSD decisions” (p. 1-1).
But asylum seekers who wait years for their RSD decisions do not feel that these basic standards of fairness and integrity are being upheld. Individuals who face rejection after staying for years in the camp face an especially difficult challenge. “I was so shocked on how UNHCR-Kakuma is treating refugees seeking protection,” says Isha, the asylum seeker who attempted suicide over RSD delays.
*Not their real names.
Procedural Standards for RSD under UNHCR Mandate, UNHCR.