by Eve Lester [i]  

“Irregular Movement” of asylum seekers and refugees is a large and complex issue which take ^[1] s many forms.  Attempts have been made in a number of countries and regions to give it a ‘respectability’ by development of the concept of “safe third country” and in others it has developed as an ad hoc creature of a UNHCR branch office’s interpretation of a so-called policy.  The focus of this paper draws on my experience over 18 months with the Jesuit Refugee Service in Cambodia where I saw something of the application of UNHCR’s irregular movement “policy” as it has sprung up in the Asia Pacific region.  My view makes criticisms of UNHCR.  Although I have great respect for a number of people on its staff I see us in the circular situation of UNHCR responding to governments and governments responding to UNHCR.  Who drives the refugee debate and who is driven is a cyclical question.  It certainly seems to be the refugee who gets the run around.  

Cambodia is one of just two countries in the region [ii] which is signatory to the Convention Relating to the Status of Refugees.  I see it as something of a reluctant party to the Convention its accession to which is more a product of the “treaty frenzy” which followed the Paris Peace Accords than indicative of its commitment to the protection of refugees irrespective of their race, religion, nationality, political opinion or other civil status. [iii]  

In Cambodia, as in many countries with little in the way of resources, at the request of the Royal Government of Cambodia, UNHCR carries the responsibility of refugee status determination.  With JRS, I had a role as a representative of asylum seekers presenting their claims to UNHCR for decision.  

One of the issues which arose was the question of irregular movement of asylum seekers and refugees.  

It is my opinion that while there may be some legitimate reasons for discouraging irregular movement, the concept has been too loosely and inconsistently formulated and therefore has the potential to operate to the detriment of persons moving “irregularly” for legitimate reasons.  

Definitions of Irregular Movement  

Irregular movement has been variously defined.  It does not enter the UNHCR vernacular in a formal way until 1989.  ExComm Conclusion 58 (1989) describes irregular movements as involving:  

“entry into the territory of another country, without the prior consent of the national authorities or without an entry visa, or with no or insufficient documentation normally required for travel purposes, or with false or fraudulent documentation” by people who “have already found protection.”  

Ex Comm Conclusion 58 clearly recognises the responsibility of contracting States to identify durable solutions for refugees recognising that they move irregularly because they:  

“feel impelled to leave, due to the absence of educational and employment possibilities and the non-availability of long-term durable solutions by way of voluntary repatriation, local integration and resettlement” [iv]  

In Southern Africa [v] irregular movement has been defined by UNHCR as:  

“those refugees and/or asylum seekers who have already found protection (i.e. have been granted refugee status), or could reasonably be expected to seek protection, in the country or one of the countries which they transited through [sic] prior to seek [sic] asylum in their current host country.” [vi]  

This definition has expanded the ‘phenomenon’ to people who could reasonably be expected to seek protection” and includes no reference to the manner in which they have entered their current host country.  

In the Asia Pacific region it has been “defined” by UNHCR as follows:  

“An irregular mover is a refugee or asylum seeker who leaves a country where basic protection was available, for reasons other than:

                   -family reunion with immediate family members who are not themselves irregular movers in the current country, or

                   -a threat to his/her physical security.” [vii]  

Now we see introduced the term “basic protection” and “was available”.  And cited are only two justifications for irregular movement.  Some countries which have been identified as places where protection was available have included Egypt for Sudanese, Pakistan for Afghanis, and Iraqis for Cambodians.  It is possible to argue that temporary protection is available to some people in these situations but as to whether durable solutions are offered in the terms that the Convention expects is quite another question.  

On the subject of family reunion.  The definition as suggested means that if X moves irregularly from country A and her spouse moves irregularly from country C and they are reunited in country B, they have done wrong and attract the sanctions that attach to movement which is irregular.  Note also that there is no longer reference to the lawfulness or otherwise of a persons entry into the new host country.  

The relevance of durable solutions to irregular movers  

In neither of these later definitions do we see any reference to the lack of durable solutions (other than through two limited exception) as being a reason for irregular movement notwithstanding the fact that Ex Comm Conclusion 58 expressly refers to this as being “to a large extent” why people move in this way.  This, to me, exposes a shift from irregular movement as being a product of the lack of availability of durable solutions to one where it becomes improper conduct unrelated to the need for durable solutions.  

Voluntary Repatriation is seen (not necessarily by refugees themselves) as the most desirable solution but, of course, it is often not available.  

Local Integration “in the country of first asylum, where host countries permit refugees to stay and become part of the country, allows refugees in certain cases to live close to their home country and maintain some continuity” [viii] .  This has not, however, been considered a “realistic option” [ix] for those in the Asia Pacific region and particularly those coming from other parts of the world such as Africa and the Middle East. [x]   For local integration to commence as a process leading to a durable solution, legal status is essential.  This is rarely available in countries of first asylum and is not available in any country in the Asia Pacific region, except perhaps in Japan.  A legal framework for the protection of refugees in countries of first asylum is an essential first step in giving effect to the durable solution of local integration.

Resettlement is the third durable solution whose availability is diminishing rapidly and is conditioned by, among others, economic and political self-interest plus a continued lessening of humanitarian commitment. UNHCR, rather than providing leadership to governments of traditional resettlement countries and encouraging them to keep their doors open to refugees, is responding to pressure from those governments and is following this trend to close resettlement doors.  On the other hand, governments are seeking refuge in UNHCR’s position on resettlement.  In Cambodia, I see a clear example of this.  Other than in exceptional cases UNHCR says the durable solution for most refugees in Cambodia is local integration (no legal rights; no permission to work) and that resettlement is not an option because there simply aren’t any places.  On the other hand, governments are saying that they will not resettle refugees from Cambodia because UNHCR says that local integration is the durable solution.  They are setting their priorities according to UNHCR’s.   

The world refugee population now exceeds 26 million men, women and children and with just 0.5% of that population finding the durable solution of resettlement available to them [xi] , this means that some 25,870,000 refugees are expected to repatriate voluntarily or integrate locally.  These solutions are unlikely to be reasonably achievable for this number of people.  Is it any wonder, then, that people move “irregularly” where the system is failing them and they are left as a population in limbo, unable to access a durable solution?  

Each of these durable solutions may be linked to the cessation clauses in the Convention:  voluntary repatriation (Art 1C(1), (2), (4), and to some extent (5) and (6)); local integration (Art 1C(3) and Art 1E); and resettlement (Art 1C(3) and Art 1E).  That is to say, once a durable solution has been found the obligations that UNHCR, its implementing partners and Contracting States held have been discharged and the person ceases to be a refugee.   A person who ceases to be a refugee will have, consistent with State responsibility under other articles in the Convention, acquired the rights and obligations of a national of their country of residence, another nationality or they will have repatriated to their country of origin voluntarily.   Only then might it be said that a durable solution has been found.  Otherwise, the most that may be said is that effective temporary protection is available to a refugee in a country of first asylum (countries of first asylum being the focus of the concern raised in respect of irregular movers).  

Given that the focus of rights protected under the Convention is to guard against refoulement as well as to discontinue a refugee’s need for protection under the Convention, it must surely be considered reasonable for a refugee to seek a durable solution where she has not found one.  

In the sphere of international protection of refugees, the responsibility for protection of a refugee is not discharged until a durable solution has been found.  In this sense it is incorrect to speak of long term and short term durable solutions. [xii] Rather, solutions should be seen as either temporary or durable.  That solution must be in fact durable and not simply labeled as such in order to absolve responsibility for ongoing protection under the Convention.  

This position does not prevent UNHCR from working towards finding durable solutions where they are not currently available, but it does mean that protection in the meantime should be characterised as temporary thereby acknowledging that a durable solution is yet to be found.  

Sanctions against irregular movers  

So what happens to an irregular mover if she is found to be so?  In Bangkok, UNHCR writes to persons deemed to be irregular movers denying them all but momentary material assistance except assistance to return to the country from which they are alleged to have irregularly moved.  Irregular movers are also denied, in most cases, access to resettlement options even if there is no other durable solution available to them.  This has started to happen in Cambodia and, I believe, in other countries in the region.  In one case of which I am aware, a refugee who left his so-called country of asylum irregularly did so before the introduction of the policy but is still subject to it, thus creating an ex post facto offence of irregular movement depriving him of essential basic material assistance and any possibility of resettlement were he to seek it.  

Why?  As a deterrent?  To tell them who’s in control?  To make their lives more difficult than they already are?  It would be mischievous to attribute the last as a motive, but there is no doubt that it is an effect.  

And having been denied material assistance or resettlement in a country where local integration is not a durable solution available how does a refugee return to a country of first asylum from whence she moved “irregularly” unless she has a legally enforceable right to reside there and enjoy the rights and obligations of a national.  Easy?  She can return “irregularly” just as she moved “irregularly”.  I am not suggesting that UNHCR would endorse return to a country of first asylum in other than an orderly manner.  However, I am aware of a case where a person’s country of first asylum was outside the Asia Pacific region and he was deemed to be an irregular mover (Asia Pacific definition) without consideration being given to the practical mechanics of return.  For example, no valid travel document, no legal status in the country of first asylum (where protection had not “already been found” and, at least at the time of departure, was not available).  

The politics of control  

ExComm Conclusion 58 speaks of the “destabilising effect which irregular movements of this kind have on structured international efforts to provide appropriate solutions for refugees.”   Maybe that is so, but the reality of refugee movements is that they will often and necessarily be irregular and therefore inconvenient to ‘structured international efforts’ and the greatest inconvenience is to the refugee who has been forced to leave her country in fear of persecution.  The inconvenience to UNHCR and to governments arising out of irregular movement pales in comparison.  

The causes of “Irregular Movement”.  Whose irregularities?  

The term “irregular mover” clearly imputes improper motives.  This is perhaps less so in ExComm Conclusion 58 which at least acknowledges why most people move irregularly.  However, as the concept has gained currency its negative connotations have strengthened and its meaning has loosened.

Michael Kingsley-Nyinah acknowledges that the Southern African definition noted above, “portrays the situation in terms of the improper conduct of refugees and asylum seekers.....  Implicit in ‘irregular’ is an assumption of perverse or at least undesirable behaviour on the part of [such] persons” [xiii]  

However, the real causes and even the suggested solutions are linked to the inadequacies of protection and yet sanctions are imposed on those who lack the protection that they need.  

Kingsley-Nyinah refers to recommendations for “harmonisation of relevant national legislation”, “uniformity in applying resettlement criteria”, and “standardisation of UNHCR [financial and material] assistance” as ways in which it may be possible to ameliorate the symptoms of the problem. [xiv]  

Another reason is said to be inconsistent decision-making.  Again, this is a flaw in the international framework of ‘protection’ - it is not attributable to asylum seekers and refugees.  In my view it is highly desirable and high time UNHCR offices ensured that they have thorough refugee status determination procedures which are consistent with one another and of high quality.  

If resettlement is a motivating factor for irregular movement, it can hardly be said to be unacceptable to resettle an irregular mover if there are no other durable solutions reasonably available.  The acknowledgment that local integration is not a realistic option and that voluntary repatriation is often not open must lead to the conclusion that it is reasonable to seek resettlement.  The desire of governments to serve their own interests and the inadequacies of policies of governments and international agencies to meet the needs of refugees do not make conduct on the part of refugees in trying to find a durable solution unjustified.  That a refugee resorts to irregular movement in search of a durable solution is a far greater indictment of the international community’s failure to find a durable solution than it is of the refugee.  

So, where to with what’s left....?  

In his paper, Kingsley-Nyinah acknowledges that there are many justifications for movement from a refugee’s country of first asylum rendering the target group of so-called “irregular movers” very small indeed:  

“Plausible reasons abound as to why any asylum seeker may subjectively feel compelled to proceed beyond the country immediately proximate to that in which persecution was supposedly encountered” [xv]  

Nonetheless he seems to see refugee movements, whether technically “irregular” or not, to be a problem  and he describes as “striking ... the absence of novelty in the general outlook for solutions” and remains skeptical of the view that return to basic principles and practice will resolve the “problem” as he sees those principles and practices as the source from which the problem has blossomed. [xvi]  

Novelty and creativity are attractive but there are, in my view, adequate safeguards in the Convention against protection being afforded to those who have already found it.  Much of what is needed is neither novel nor creative: consistency; fairness; and acknowledgment of the need rigorously to pursue the need for durable solutions.   

It is interesting to note that while advocating change, Kingsley-Nyinah acknowledges that “[the 1951 Convention and the 1969 OAU Convention] constitute a superlative statement of the finest humanitarian principles for the protection of refugees.  Despite abuse and excessive use, they retain a lustre and resilience which should endure for the benefit of genuine refugees for a long time to come.” [xvii]  

What is needed in my view is a UNHCR with a more assertive voice.  UNHCR has a presence in countries around the world at the invitation of their governments.  Quiet diplomacy has its place, but it is not always the way.  It would be brave government that would throw out the UNHCR and still try to maintain the pretense that it respected the rights of refugees.  

To me, an irregular movement policy which punishes those who are not the cause of it without addressing the cause is one to which UNHCR, as the guardian of the rights of among the world’s most vulnerable, ought not to be subscribing. While persons moving irregularly where there is just cause ought not to be rewarded for their efforts, nor should they be penalised by UNHCR through the denial of rights under the Convention to which they would otherwise be entitled and to denial of access to the most appropriate durable solution for them, even where that durable solution is resettlement.