Definitions and legal issues

Status discrimination

While categorizing migrants as refugees or forced migrants is always a challenge, doing so effectively is key to effective protection, advocacy, and analysis (see Research methods). Definitional boundaries are not always clear, and forced migrants' own actions may only further complicate the process. Many people, for example, make false claims for refugee status while others who could apply for asylum do not. Still others, faced with interminable status determination procedures, may effectively purchase their residency rights. While these are hurdles everywhere, there are at least three reasons why making such categorizations is particularly problematic in urban areas:

Many of these points were drawn from a presentation made at the University of the Witwatersrand, Johannesburg, by Fedde Jan Groot, Deputy Representative to the United Nations High Commissioner for Refugees in South Africa, entitled 'UNHCR's Policy on Refugees in Urban Areas: The Case of South Africa' (30 April 2003).

1. Whereas many camps, formal refugee settlements, or reception centres are located close to international borders, few urban centres share such proximity. This means that almost all people reaching the city under their own power (i.e., having not been resettled) will have travelled considerable distances, often following circuitous routes passing through multiple countries. These journeys - spanning considerable expanses of both space and time - make it difficult to determine a given individual's provenance and the political or security conditions at the time of departure. While it is never easy to definitively determine if someone comes from a part of a country experiencing conflict or persecution, in urban settings it may not even be possible to determine from what country a person has come. A further consequence of journeys through multiple countries is that many urban refugees - especially those who self-settle - get classified as 'irregular movers'. As discussed below, issues of legal definition often become more complicated when an individual has passed through another country (or countries) that could have plausibly provided sanctuary.

2. Cities are likely to attract relatively larger numbers of people who have been smuggled across borders or who were victims of traffickers. Many of these will have been promised jobs before leaving their countries of origin only to find themselves effectively forced into criminal networks upon reaching their intended destination (if, indeed, that is where they end up). As many do not come from countries experiencing violence or patterns of persecution - or have not individually experienced a well-founded fear of such - few will be able to effectively claim asylum. If and when these people are detained, they are often classified as criminal or illegal immigrants and risk deportation.

3. Forced migrants - however one chooses to define 'forced' - often live in immigrant neighbourhoods among other co-nationals who may or may not be 'forced'. Distinguishing between the two is both a conceptual and empirical challenge. That many of the 'legitimate' refugees living in a given area will have demonstrated considerable agency in choosing their destination - and will usually be influenced by economic as well as security concerns - further complicates efforts to make firm divisions.

A number of other factors intensify the processes of legal status determination. Refugee camps or settlements are often part of a constellation of aid workers, government/immigration officials, and humanitarian organizations that can guide prospective asylum claimants and help ensure that their cases are handled properly. While the overall density of non-governmental organizations (NGOs) and government officials may be higher in urban areas, there are often very few dedicated to refugee protection or processing asylum claims. The implications of this vis-à-vis status determination and protection are threefold. First, people who objectively qualify for refugee status under domestic or international law may have no direct exposure to anyone who can inform them of their rights and guide them through the asylum process. As a result, many would-be (or should-be) refugees simply do not apply for asylum. Second, even those who know their rights may have difficulty in finding the appropriate individual or office to file a claim. The absence of immigration offices in areas where someone lives may make it too expensive (in time and transport) to apply. For those without proper documentation, travelling also exposes them to the risk of discovery by immigration officials or other problems with the local police. Lastly, once an application to the host government has been made, the low density of refugee advocates means that there are few people to monitor cases or advocate on the behalf of refugees. As a result, many who should be entitled to refugee status and who have applied for it may be arbitrarily turned away or refused asylum based on easily remedied technicalities.

Protection and assistance

In addition to the concerns discussed above, there are a number of other factors that may limit legal protection and hinder efforts to provide assistance. Much like self-settled refugees everywhere, forced migrants in urban environments are often highly mobile, moving in and out of communities. As a result, even those with legal status are effectively untraceable. In places where they are not entitled to, or chose not to live in, specialized housing, there may be no practical way to keep track of where these populations are centred, or the services they need and use.

Urban refugees' de facto integration (or invisibility) raises political as well as technical protection challenges. At the very least, the absence of a large aid 'community' means there is likely to be little political pressure to distribute aid or ensure that refugee rights are respected. Moreover, urban refugees are less photogenic and visible than those in camps. Without compelling images, urban refugees are not likely to garner international media attention or benefit from international aid and advocacy. Effective protection is only further limited by the fact that both host governments and donors are not generally keen on encouraging urbanization through forced migration because maintaining urban refugees is expensive and many assume that those who make it to cities can support themselves.

As noted, many host governments' wariness of 'irregular movers' raises a further protection issue. Whereas all signatories of the 1951 Convention are legally obligated to protect asylum seekers crossing their borders directly from a country or area in crisis, many states will not, a priori, recognize the claims of those passing through other countries where they might have received protection. A general suspicion that such people are motivated by economics, not persecution, further heightens host governments' reluctance to offer asylum. Without special protection, urban refugees must rely much more on domestic rights legislation than those in internationally managed camps and settlements. In countries with poor human rights practices, or where rights organizations do not make it their business to protect asylum seekers and undocumented migrants, this can be an especially acute concern.

In response to some of these challenges and a growing recognition of the long-term existence of urban refugees, the UNHCR introduced its Policy on Refugees in Urban Areas (Urban Refugee Policy) in December 1997. While this represented a step towards ensuring that the rights of urban refugees are protected, the policy has been difficult to implement for technical, logistical, and political reasons. According to Human Rights Watch (2002), the most fundamental problem with the Urban Refugee Policy is its lack of detailed protection recommendations. Instead, the policy focuses almost exclusively on assistance and ignores the very real protection needs of refugees in urban areas. While the UNHCR has recognized the inadequacy of the policy (Kemlin, Obi, and Crisp 2002), the organization continues to struggle with the very real challenges in developing a strategy that is legally sound, politically palatable, and financially feasible. As a result of ongoing debates within UNHCR, it is likely that a new policy will soon emerge (Buscher 2003). Whether such a policy will have direct effects for its intended beneficiaries will, of course, depend much on donor support and host governments' resources, attitudes, inclinations, and capacities.

Websites:

American University in Cairo (AUC), Forced Migration and Refugees in Urban Centres of the 'South', 2002 http://www.aucegypt.edu/academic/fmrs/Research/research.html#FMRSinUrbanCenters

Buscher, Dale, Case Identification: Challenges Posed by Urban Refugees. NGO Note for the Agenda Item: Annual Tripartite Consultations on Resettlement. Geneva (18-19 June 2003) http://www.unhcr.org/cgi-bin/texis/vtx/protect/opendoc.pdf?tbl=PROTECTION&id=3ee6dcc34

Human Rights Watch, Hidden in Plain View. Comments on the 1997 Urban Refugee Policy http://www.hrw.org/reports/2002/kenyugan/kenyugan1002%20ap%20alter-23.htm