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Protecting Afghanistan’s refugees

Jennifer VenisTuesday 28 September 2021

A woman reacts as Afghan nationals protest outside the United Nations High Commissioner for Refugees (UNHCR) office to urge the international community to help Afghan refugees, in New Delhi, India, 25 August 2021. Reuters/Anushree Fadnavis

The fall of Afghanistan to Taliban forces in mid-August led to a mass exodus from the country as many citizens sought to escape the new regime. Global Insight examines how threats to, and gaps within, the international refugee protection regime may undermine the assistance owed to those who have fled the Taliban.

‘My inbox is full of despair’, Barbara Wegelin tells Global Insight. Wegelin, a Dutch lawyer and Communications and Website Officer of the IBA Immigration and Nationality Law Committee, specialises in refugee law and has been supporting people seeking safety from the Taliban since the West’s hurried evacuation of military forces and allies from Afghanistan in the second half of August.

In her emails, Wegelin finds ‘absolutely heart-breaking stories of children having seen their parents die at Kabul airport, families sheltered in basements for fear of being executed as traitors by the Taliban, of people betrayed by the countries they saw as their allies and whose values they sought to embody’.

Western governments promised to protect and evacuate Afghan allies, who may face reprisals from the Taliban, and have offered refugee resettlement places for other vulnerable Afghans. But such international efforts seem contradictory to the dominant approach taken towards asylum seekers, even those from Afghanistan, before the withdrawal.

‘The kinds of noises that are made about spontaneous arrivals of asylum seekers seem to be muted when you have a situation like Afghanistan, which is in the headlines, and which is very closely connected to the politics of countries like the United Kingdom and the United States’, says Professor David Cantor, Founding Director of the Refugee Law Initiative at the School of Advanced Study, University of London. ‘All of a sudden, this different trope comes in about rescue, as if that is entirely different from asylum when people take it into their own hands to flee from equally dangerous situations.’

UK Home Office statistics show that from the beginning of the year to June 2021, roughly half of Afghan asylum claims were rejected. In July, the Afghan Ministry of Refugees and Repatriation urged the EU to halt the return of Afghan refugees and rejected asylum seekers to Afghanistan for three months during the Taliban resurgence. Six EU countries asked the European Commission to ignore the plea. In a letter, ministers from the six Member States wrote that ‘stopping returns sends the wrong signal and is likely to motivate even more Afghan citizens to leave their home’.

Taking responsibility?

The United Nations Refugee Agency (UNHCR) expects that up to half a million Afghans could flee by the end of 2021, in addition to the 2.6 million currently registered as refugees globally. Many might be Afghan allies to the West, and eligible for the resettlement schemes, with hundreds if not thousands left behind in the chaos.

The Afghan allies and refugees evacuated by the end of August were flown to emergency processing centres in neighbouring and European countries ahead of their resettlement. But many Western countries, including France, Germany and the US, have not committed to resettling a certain number of refugees. Those that have, such as Australia, Canada and the UK, will take relatively few – 3,000, 20,000 and 20,000 over several years (including 5,000 in 2021) respectively. Some – Austria, Poland and Switzerland among them – will not take in any Afghan refugees.

European states in particular are keen to avoid a repeat of the 2015–2016 migrant crisis. In a statement released in late August, the EU Ministers of Home Affairs promised that the bloc will strengthen support for neighbouring countries hosting large numbers of migrants and refugees. They added however that ‘the EU and its Member States stand determined to act jointly to prevent the recurrence of uncontrolled large-scale illegal migration movements faced in the past, by preparing a coordinated and orderly response. Incentives to illegal migration should be avoided’.

Matthew Saltmarsh, Senior External Relations Officer at UNHCR UK, says while it’s important that Western countries assist those developing countries hosting large numbers of refugees, developed countries must also ‘keep their borders open for the more modest numbers of asylum seekers who are coming into their territory’.

It is a moral low to paint [Afghanistan] as a migration situation and to not take responsibility for the horrific circumstances that our allies now find themselves in

Barbara Wegelin
Communications and Website Officer, IBA Immigration and Nationality Law Committee

Iran and Pakistan, both neighbouring Afghanistan and among those hosting the highest numbers of Afghan refugees and asylum seekers in 2020, have both said they cannot take in more, and that any Afghan refugees arriving there will have to stay in border camps until they can be returned.

For Wegelin, the EU Home Affairs Ministers’ statement is ‘astounding’. ‘It is a moral low to paint this as a migration situation and to not take responsibility for the horrific circumstances that our allies now find themselves in, and to provide all the assistance we owe them.’

70 years of protection

Afghanistan fell to the Taliban just weeks after the 70th anniversary of the 1951 Refugee Convention, the only global legally binding agreement for the international protection of refugees. But at the point of the 70th anniversary, the Convention and the wider regime are faltering in the face of challenges that were not predicted in the 1950s, such as protracted conflicts and environmental migration due to climate breakdown, as well as a shift in global politics.

In 2020, the number of forcibly displaced people reached a record high of 82.4 million, 26.4 million of whom are refugees entitled to the Convention’s protection, according to the UNHCR. Yet, the rights of refugees and asylum seekers are being chiselled away by states seeking to dodge obligations amid a rising tide of populist sentiment.

As a result, many Afghans who seek protection may be met with hostility, and any protection offered might not be in line with the spirit of international law.

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Taliban acting Foreign Minister Amir Khan Muttaqi speaks during a news conference in Kabul, Afghanistan. 14 September 2021. Reuters/Stringer

As the UNHCR outlines, states party to the Convention are obliged to guarantee refugees to human, economic and social rights at least to the same level as other foreign nationals. Under the Convention, they cannot return refugees to countries where they may face persecution.

Yet, in 2021, many countries offer only limited support for refugees to access those rights and integrate into the host society, providing instead only temporary protection. Refugees and asylum seekers alike may be housed in unsafe accommodation, left languishing in camps for years or detention centres for months, if not indefinitely.

Wajiha Ahmed, Secretary of the IBA Human Rights Law Committee and a partner at Buttar, Caldwell & Co Solicitors in Sydney, argues ‘the protection being offered is no longer in line with the purpose of the Convention, which was for the protection of harm’.

She says that in Australia, ‘people can be kept in immigration detention anywhere upwards of seven or eight years, and then eventually they are released. And the claims have been found to be truthful, but in the meantime Australia has perpetrated some very significant trauma on people’.

At this anniversary, she sees a ‘massive disconnect’, with the sentiment and the purpose of the Convention lost. ‘It almost feels like we seem to have forgotten why it was introduced, and what happened in the Second World War.’ She adds that ‘the watering down of the right to seek asylum is a real black mark in history’.

The watering down of the right to seek asylum is a real black mark in history

Wajiha Ahmed
Secretary, IBA Human Rights Law Committee

The Refugee Convention was created by the UN in the aftermath of the Second World War, to respond to the humanitarian and legal challenge of forced displacement across borders. Initially providing protection to only those displaced in Europe before 1951, the 1967 Protocol expanded the Convention’s definition of a refugee to provide protection globally and indefinitely.

‘If you were to negotiate today, you wouldn’t get anything that was half as generous or effective’, Professor Cantor says. He believes that countries that would drive or veto legal developments now are sufficiently far from the experience of conflict that they are driven not by that dynamic but one of anti-migration sentiment.

‘Speaking from a Western European location, I’ve felt that in the last year or two, there have been increased evidence of xenophobia and stigmatisation of refugees and asylum seekers in the region’, says Saltmarsh. ‘And we’ve seen some follow through in terms of policy.’

Denmark, for example, passed a law in June 2021 enabling the processing of asylum seekers claiming protection there to take place in a country outside the EU. Identified refugees would then stay in that third country, which reportedly may be in Africa.

In July, the Danish Immigration Service shared a letter to the UNHCR with Global Insight, in which ministers state that Denmark is in talks with potential processing countries and has ‘been very clear about the fact that a possible arrangement regarding the transfer of asylum seekers must be in line with our international obligations’.

Saltmarsh says that as well as running contrary to the Refugee Convention, policies like Denmark’s send a problematic signal. ‘If you are saying to a much less wealthy country, in, for example, Africa or the Middle East, that you would like them to process and host those asylum seekers who come to your country, if that logic is taken to its conclusion, essentially, you are pushing away the problem, and you’re adding much more burden to an already constrained or strained country.’

‘It’s important to remember that those countries, for the most part, have large refugee populations themselves’, he adds.

Alex Stojicevic, Refugee Officer of the IBA Immigration and Nationality Law Committee, says that ‘at the moment, rich states pay for camps in Jordan, or pay the Turkish Government three billion a year so they don’t let asylum seekers travel, or support this particular warlord in Libya so that this warlord keeps the coastline free of smuggling of people through the Mediterranean’.

‘This kind of thinking has to end’, he says. ‘At the end of the day, you can do that to discourage illegal migration and that’s every country’s right, and certainly looking at migration as a security concern is legitimate. But the only way to make that a legitimate concern is if you’re doing your fair share of actually accepting migrants, refugees that you’ve screened, and governments aren’t doing that, the numbers are down worldwide.’

According to the UNHCR report, Global Trends: Forced Displacement in 2020, ‘86 per cent of the world’s refugees and Venezuelans’ displaced abroad are being hosted in developing countries, with 27 per cent of the total provided asylum by the group termed Least Developed Countries.

The preamble to the Refugee Convention recognises that ‘the grant of asylum may place unduly heavy burdens on certain countries’, and so the goals of the protection regime ‘cannot therefore be achieved without international co-operation’.

Disproportionate burden-sharing can often lead to untenable situations and burgeoning resentment towards those seeking protection, ultimately increasing the likelihood of human rights violations. Pushbacks – preventing asylum seekers from claiming asylum by forcibly pushing them back into another country – are illegal, but many states are accused of using such measures, alongside interception measures, to prevent asylum claimants reaching their land. Reports of violence in major reception countries have become common.

Judicial defenders

In Europe, courts have begun to give judicial weight to long-standing concerns about the safety of asylum seekers within EU Member States. In July, a German court ruled that two asylum seekers could claim asylum in Germany instead of being returned to Italy, because the treatment they may be subjected to in Italy meant it could not be considered a safe country.

‘Despite having the same legal framework there are vast differences between Member States as to how they treat asylum seekers and refugees’, Wegelin explains. ‘It should not be possible that an asylum seeker is on the streets when there is a binding reception conditions directive, but we know that this actually happens. It should not be possible that an asylum seeker from a specific country of origin is five times as likely to be rejected in one member state than in another, but we know this happens.’

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An Afghan looks over part of Kabul from a hill side. Reuters/Ahmad Masood

Wegelin says we need uniformity or a level playing field for the common European asylum policies to work, and ‘as long as that is not the case in fact, we need to not accept that it is an unchallengeable legal presumption’.

Similarly, because Greece does not provide support such as proper shelter, food, assistance in learning Greek or finding work or access to healthcare, the Dutch Council of State found in July that refugees could not be returned to the country for fear that they’ll return to inhumane conditions.

But broader accountability for policies that violate rights is lacking. Although the Convention is legally binding, it created no court or appeal process. Through other covenants, individuals could complain to specific UN committees, but no one has. States party to the Convention are able to take complaints to the International Court of Justice, but none have, nor have international sanctions been imposed.

The UNHCR can supervise responsibilities but not enforce the Convention. Saltmarsh says there are only two levers for the UNHCR and other partners to hold governments accountable. First, through national courts and legislation, through which the UNHCR can challenge a national law or policy that is contrary to international law through partners or third parties. Second, through advocacy, calling out transgressions where it sees them.

‘Sometimes that’s done through private channels, but often that’s done publicly as well’, says Saltmarsh. ‘Some people may dispute this, but I think UNHCR has been very strong and vocal in recent years, in calling out abuses of refugee protection.’

But its nature also imposes a barrier, because the UNHCR is a Member State-driven and funded organisation. ‘We cannot do our work without the support of Member States. We cannot be in countries like Lebanon or Libya or Kenya, without the blessing of and cooperation of and support of Member States’, Saltmarsh says. ‘It makes for a difficult operating environment. And it poses difficult, often ethical questions.’

Expanding protection

In some cases, the language of the Refugee Convention itself, when interpreted strictly, enables states to create barriers to protection.

‘There’s lots of war situations where people don’t qualify under the Convention, and in countries like Canada, Australia, where the Convention is pretty much taken literally, it was only recent changes that allowed a phrase like “protected person”, and other sections, to treat people as being in need of protection who don’t necessarily meet all the Convention elements’, Stojicevic says.

‘If you want to look at it legally, certainly one challenge is none of these [evacuated Afghans] qualify as refugees, because if you take the Convention literally none of them have left their country so they’re just displaced persons at this point’, he adds. ‘It might be time to review that definition a bit, because here we’re actually literally airlifting people out who are displaced persons.’

‘The reality is there’s a huge block of people who have a legitimate need for protection, but because of the way the Convention’s worded, some countries are going to take a very legalistic approach’, he adds.

There’s a huge block of people who have a legitimate need for protection, but because of the way the [Refugee] Convention’s worded, some countries are going to take a very legalistic approach

Alex Stojicevic
Refugee Officer, IBA Immigration and Nationality Law Committee

Periodically, there are calls for the international community to reopen and reform the Convention, Saltmarsh tells Global Insight, but the UNHCR fears that could result in weaker protection for refugees. ‘Our view is very much that it’s a hugely important document, let’s cherish it, and let’s try to build refugee protection around it in other ways’, he says.

For Cantor, the Convention successfully protects the people that it was established to protect – in essence, those who have fled their country after facing extraordinary kinds of discrimination that amounts to persecution. But, he adds, ‘in terms of the development of “persecution”, globally, the Refugee Convention has been interpreted often in a relatively flexible way’.

For Ahmed, this flexibility must continue for the spirit of the Convention to survive in the face of the vastly different global challenges since its drafting. ‘The more we cover our eyes, and just think that we need to just stick to what its original stance was […] we’re really almost diluting the effect on what was meant to be achieved.’

The Convention is also not the only instrument of the international protection regime that can aid the forcibly displaced. As Cantor highlights, it’s ‘part of a wider constellation of standards that exist for refugee protection internationally’. That includes the Organization of African Unity Refugee Convention, the Cartagena Declaration on Refugees in Latin America, EU regional frameworks, domestic laws that have expanded the scope of refugee protection and institutions like the UNHCR.

The broadest definition is the operational definition of refugees used by the UNHCR. In 1951, the organisation’s mandate covered just 2.1 million people, but it now protects not only overt refugees and asylum seekers, but the internally displaced people, stateless persons and other vulnerable migrants that make up the majority of the 82.4 million forcibly displaced people globally.

To Ahmed, ‘the policy work that the UN has done is so significant. The adoption of that policy work into domestic law is the massive gap here’. She explains that even when there is adoption into domestic law, the law itself is not keeping up with global changes.

For example, in 2019, UN High Commissioner for Refugees Filippo Grandi said ‘we are witnessing a changed reality in that forced displacement nowadays is not only vastly more widespread but is simply no longer a short-term and temporary phenomenon’.

But most countries still only offer temporary protection, with places such as the UK requiring refugees to reapply every five years.

Stojicevic argues it’s ‘critically important’ to modernise national laws worldwide to incorporate the definition of refugees and the protection regime under UNHCR operations, as well as the 2018 Global Compact on Refugees, a non-binding agreement to reinforce and expand refugee protection.

But without the political will in place to expand legal commitments to refugees, advocates are looking elsewhere.

Circumventing government

Saltmarsh tells Global Insight that crises like the Taliban’s resurgence show there’s a groundswell of goodwill towards refugees.

‘I’m speaking here from a primarily UK perspective, but we’ve seen a huge outflow of support for refugees across the country – local councils, civil society, individuals have stood up and said, I’ve got a room, I can put up a refugee, I’m going to raise some money for refugees, I’m going to go around my community and get people together and try to do what we can’, he says.

‘And the challenge for us and for other organisations that support refugees is, how do you tap into that? And how do you translate that into more of a structured political support programme for refugees?’

Wegelin believes ‘one way for national governments to move away from this political stasis is to yield much more freedom to local governments, be it the Länder in Germany or the municipalities in the Netherlands, to decide who to accept as part of their community’.

As Stojicevic concludes, ‘these people all legitimately need protection, they need to be placed in as many safe places as possible, and we need to look at them as a resource for our future economic needs, as opposed to looking at them only as a burden’.

Jennifer Venis is a freelance journalist and can be contacted at jennifer@jennifervenis.co.uk