ALERTS
CRACKDOWN ON MIGRANTS & REFUGEES IN MALAYSIA
The mass arrests & detention of migrants, refugees and stateless persons in Malaysia has begun.4 million Malaysians have been mobilized to seek out, arrest, detain and deport any migrant found to be undocumented in Malaysia. Out of this, 2.8 million are ordinary citizens with no proper training (RELA Volunteer Corp), while the remaining 1 million are Immigration officers, police, the military and other enforcement agencies.
Key concerns:
- Detention and deportation of refugees, stateless persons, trafficked victims & other vulnerable populations including children
- Use of violence by enforcement officers during raids, arrests & detention
- Violation of rights during arrests & detention : i.e. no access to lawyers, phone call to family, deprivation of basic needs, etc
In order to monitor and respond to this crackdown, several hotline numbers have been set up.
Background
The arrest, detention & deportation of undocumented migrants is the final phase of the Malaysian government’s Illegal Immigrant Comprehensive Settlement Programme (6P Programme, “6P”) In spite of the Secretary-General of the Home Ministry, Tan Sri Mahmood Adam’s declaration that the deadline for the 6P has been extended to April 10 2012, we have already started receiving reports of arrests and detention.
On 11th of February, we were informed by refugees and members of the public that a raid was conducted in Kuala Lumpur, during which between 100 to 200 migrants and refugees were detained. We are aware that some refugees were taken to detention centres, while the whereabouts of others are currently unknown.
In previous Immigration crackdowns (2005 ; 2008) there was high use of violence against the migrants, migrants were not granted access to a phone call, or to lawyers ; we fear that similar (if not worse) rights violations will also take place during this crackdown.
We are also especially concerned for the lives of refugees & stateless persons (who remain ‘illegal’ under Malaysian law) and for victims of trafficking who will be arrested, detained and run the risk of deportation during this crackdown. We are not aware of any processes in place to protect these populations, and the refugees who are still in detention after being arrested on the 11th is a reminder of these real threats.
In order to protect the rights and lives of migrants and refugees, we call on all parties to be vigilant and assist us in monitoring and responding to this crackdown.
UNHCR's Most Recent Statement on the Rwandan Cessation Clause
A new document by the title "Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation, including UNHCR's recommendation on the applicability of the "ceased circumstances" (which you can find here) has been released and shared with governments of countries of asylum and the country of origin. The document sets out UNHCR's assessment regarding the key components of the Comprehensive Strategy, namely the enhancement of voluntary repatriation, the pursuit of local integration or alternative legal status in countries of asylum, and the cessation of refugee status for certain categories of refugees.
In relation to cessation, UNHCR is recommending to States that cessation apply to those Rwandan refugees who fled the country between 1959 and 31 December 1998 as a result of the different episodes of inter-ethnic violence between 1959 and 1994, the genocide of 1994 and its aftermath, and the renewed armed conflict that erupted in north-western Rwanda from 1997 to 1998. Cessation would not apply to refugees who fled Rwanda after 31 December 1998. It also would not apply to Rwandans who have pending asylum claims, regardless of when lodged.
The document also includes UNHCR's recommendation as to the timeline to be applied in declaring and implementing cessation. Taking into consideration the current status of implementation of the comprehensive strategy, as well as the requests of countries of asylum for greater flexibility in the implementation of cessation at the national level, UNHCR is recommending that States now commence to progressively implement throughout 2012 all aspects of cessation of refugee status (including exemption procedures) for Rwandan refugees who had fled Rwanda as at and including 1998, so as to enable their status definitively to cease, latest 30 June 2013.
There are also two further documents that have been produced by UNHCR's Division of International Protection in relation to cessation:
UN High Commissioner for Refugees, Guidelines on Exemption Procedures in respect of Cessation Declarations, December 2011, available at: http://www.unhcr.org/refworld/docid/4eef5c3a2.html
UN High Commissioner for Refugees, Note on Suspension of "General Cessation" Declarations in respect of particular persons or groups based on acquired rights to family unity, December 2011, available at: http://www.unhcr.org/refworld/docid/4eef5a1b2.html
Rwanda and the Cessation Clause Again
Question from Manzi, entitled, ‘I am confused’:
The ExCom Conclusion No. 69, 2nd paragraph, says that the application of the cessation clause in the 1951 Convention rests exclusively with the Contracting States ...
And the 5th paragraph (a) says: "in taking any decision on application of the 4C, States must carefully assess the fundamental character of the changes in the country of nationality or origin including the general human rights situation, as well as the particular cause of fear of persecution, in order to make sure in an objective and verifiable way that the situation which justified the granting of refugee status has ceased to exist".
In the UNHCR Guidelines Paragraph 25 (ii), it says:" Countries of asylum are the ones to bear the burden to demonstrate there has been a fundamental, stable and durable change in country of origin and that the invocation of Article 1C (5) is appropriate.
Yet, in the joint communiqué of UNHCR and RPF regime dated 7 October 2011 last paragraph, it says: " UNHCR will recommend States that they invoke the 4C by 31 December 2011 effective on 30 June 2012.
And in the e-mail of 1 August 2011, Mr. Douglas Asiimwe (Senior Protection Officer, Office of The Prime Minister, Directorate Of Refugees and Disaster Management)
He wrote: "cessation clause and eventual loss of status is not a Uganda thing, it’s global and we wait to be advised."
So,
- why is UNHCR actively calling and applying the 4c where as it is an exclusive job of states, where as the States are the ones to bear the burden?
- if the application of the Cessation clause rests exclusively with Contracting States, why UNHCR is recommending states to invoke the 4C?
- Why Uganda as a Contracting state is waiting to be advised where as it is a burden of Uganda to demonstrate those fundamental, durable and stable changes?
- Has any Contracting state carefully assessed the situation in Rwanda or it is UNHCR which elaborated pro-RPF condoning reports?
- If states are to demonstrate the fundamental changes in Rwanda, it is to be demonstrated to whom?
- why no one from GoU has talked to us about their assessment of the situation in Rwanda where as it is their burden?
Further more, in the letter of Antonio Guterres of 23 December 2009 to the Rwandan Minister of Local Government, Mr. James Musoni, Guterres said that he has designated a coordinator within UNHCR to facilitate the process of invocation of 4C and to provide the focused leadership and support which is required. Who is this coordinator? Has anyone heard about her/him? About her/his address?
Still, The joint communique of RPF and UNHCR of 7 December 2011 said that scopes and modalities of the implementation of the cessation declaration were to be communicated in fallowing weeks; Have you heard about them as it now makes almost one month after?
Sincerely yours,
Manzi.
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You are right to be confused. Neither the States nor UNHCR appear to be following the Convention.
According to Conclusion 69, although
"the application of the cessation clause(s) in the 1951 Convention rests exclusively with the Contracting States, ... the High Commissioner should be appropriately involved, in keeping with the role of the High Commissioner in supervising the application of the provisions of the 1951 Convention as provided for in Article 35 of that Convention. ... [A]ny declaration by the High Commissioner that the competence accorded to her by the Statute of her Office with regard to certain refugees shall cease to apply, may be useful to States in connection with the application of the cessation clauses as well as the 1951 Convention. ... [States should also make] use of appropriate information available in this respect, inter alia, from relevant specialized bodies, including particularly UNHCR;"
Although this appears to give UNHCR a role, it does not relieve States of the burden fulfilling the legal conditions of the Convention. Article 35 of the Convention only give UNHCR a supervisory role that arguably limits it to a passive role of declaring whether States have or have not fulfilled their obligations (which UNHCR hardly exercises adequately anyway), not an active role of recommending that States take such actions as invoking cessation. Article 35 appears to give States the active role, e.g., in facilitating its exercise of supervision and providing it with information:
"Article 35. - Co-operation of the national authorities with the United Nations
1. The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.
2. In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information and statistical data requested concerning:
( a ) The condition of refugees,
( b ) The implementation of this Convention, and
( c ) Laws, regulations and decrees which are, or may hereafter be, in force relating to refugees."
Also, Article 6 of UNHCR's Statute appears to limit its declarations of incompetence due to ceased circumstances to pre-1951 refugees (emphasis added):
"6 . The competence of the High Commissioner shall extend to:
A. (i) Any person who has been considered a refugee under the Arrangements of 12 May 1926 and of 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization.
(ii) Any person who, as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it. ...
The competence of the High Commissioner shall cease to apply to any person defined in section A above if: ...
(e) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, claim grounds other than those of personal convenience for continuing to refuse to avail himself of the protection of the country of his nationality. Reasons of a purely economic character may not be invoked;"
Rwandan Refugees in Africa Need Legal Representation to Defend Against Deportation
Fahamu Protection Campaign Continues
On 7 October, the UN News Centre released "Rwanda and UN refugee agency agree to step up repatriation efforts" announcing that, as a result of meetings between the Government of Rwanda and UNHCR in the margins of the recent session of the latter's Executive Committee (of which Rwanda holds only observer status) in Geneva, "UNHCR will recommend to States that they invoke the cessation of refugee status by 31 December 2011, to become effective on 30 June 2012."
This is a partial victory for Fahamu and others who have raised the alarm over stripping tens of thousands of Rwandan refugees of protection in light of the repression, continuing human rights violations, and instability of the situation in that country. At the NGO Consultations last June, UNHCR had promised to release a "roadmap" to implementation of cessation in a few weeks but, four months later, they still have not done so.
We suspect that that the delay in this and in the effect date of implementation may be rooted in the procedural nightmare that awaits UNHCR. (If cessation is done properly, refugees stripped of their status would have the right to be considered for another 'durable' solution; a right that many, perhaps most, will likely invoke. Since the host countries of most of them lack adequate processes, the burden will likely fall on UNHCR.)
The struggle is far from over and the anxiety and uncertainty for refugees over their status will only continue and mount. The Government of Rwanda and UNHCR plan to "call a meeting of all relevant States and other actors in December to achieve increased voluntary repatriation and find greater opportunities for local integration or alternative legal status for refugees in countries of asylum." If the past is any guide, however, pressure to repatriate, even involuntarily, will be the principle result. If you or your organization have not yet endorsed the international civil society petition to halt this measure, please do so now and circulate it to your networks.
