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Presentation by Erika Feller, Director, Department of International Protection, UNHCR, to the The 10th Annual Humanitarian Conference of Webster University, Geneva, 17-18 February 2005: Migrants and Refugees: The Challenge of Identity and Integration

Speeches and statements

Presentation by Erika Feller, Director, Department of International Protection, UNHCR, to the The 10th Annual Humanitarian Conference of Webster University, Geneva, 17-18 February 2005: Migrants and Refugees: The Challenge of Identity and Integration

17 February 2005

Refugees are not Migrants

I want in this presentation to develop three deceptively simple propositions. Firstly, refugees are not migrants. Secondly it is dangerous, and detrimental to refugee protection, to confuse the two groups, terminologically or otherwise. In fact it is also not to the benefit of the broader migration debate, as some abuse of the asylum system by illegal migrants colours the public view of migration, giving it a taint of criminality, even robbing it its positive aspects while tilting the focus towards control. This being said, and thirdly, a refugee situation may well be part of a broader migratory movement, or may even itself develop into one. To define when and where refugee protection approaches and when and where, alternatively, migration based approaches should prevail is a challenge. Flowing on from this, and fourthly, I would like to conclude with an observation on a recent presentation by UK Secretary of State for International Development, Hilary Benn, on reforming the international humanitarian system. He inter alia throws some doubt on the current approach whereby designations or categories, and mandates flowing from them, determine the response of the UN system to humanitarian needs.

Turning to my first proposition, certain directions in the broader migration debate do give cause for concern. In particular I am referring to the tendency to subsume refugees and other victims of forced displacement as but sub-groups of the broader class of "migrant", with asylum policies, in turn, being integrated within the broader migration control framework. As the line between "migrant" and "refugee" blurs, so does the distinction between migration control and refugee protection.

UNHCR is only too aware that modern migratory patterns make it sometimes difficult to distinguish between the various groups "on the move". Population flows are rarely homogeneous. They are more often of a mixed character, with refugees increasingly a part of them. While the immediate causes of forced displacement may be readily identifiable as serious human rights violations, or armed conflict, these causes can overlap with, or even themselves be aggravated by, factors such as economic marginalization and poverty, environmental degradation, population pressures and poor governance. The September 2000 UN Millennium Declaration identified these issues as a serious challenge to global governance, of which population displacement becomes one symptom. The Declaration set the fight against them as a priority for all UN members.

Some refugees do resort to migrant smugglers, as one way to leave their countries. At the same time, persons who do not require international protection may resort to asylum channels, in the absence of legal migration options, in the hope of gaining either temporary or permanent stay abroad. These are realities, but not an argument for confusing the categories. If persons are defined as migrants solely because they move from their own country to another, and regardless of the reasons and their needs, then refugees may loosely be called migrants. However, if the causes of flight are the defining feature, together with the internationally agreed framework of rights and responsibilities which applies, then there is a clear distinction between the two categories of persons. Needless, perhaps, to say, UNHCR believes in the necessity of this more nuanced approach - and for good reasons!

Because of their precarious security situation and because of the absence of national protection in their own countries, refugees are the recognized beneficiaries of internationally endorsed rights. States have even supplemented this legal regime with a host of "soft law" guidelines to ensure the proper treatment of refugees, consistent with their dignity and their personal security. Refugees can also benefit from the services of a United Nations agency, UNHCR, specifically created for this purpose. In this sense, refugees enjoy an independent legal personality, internationally recognized by, at least, the 145 States which are currently party to the 1951 Convention relating to the Status of Refugees and/or its 1967 Protocol.

Migrants are different and, from this viewpoint at least, not so lucky. There are a wide range of agreements of various sorts relating to the management of migration. The focus of governments has, though, centered rather heavily on this one aspect, i.e the better management and control of the movement of migrants, rather than on defining and protecting their rights. Migrants are not, yet, a recognized group as such, with a cohesion and status which equates with that of refugees. In important areas there are no rules or guidelines to regulate inter-state cooperation on migration. There is also no global body charged with this concern. For as long as the designation "refugee" remains key to recognition and protection of rights and the exercise of responsibilities which attach thereto, refugees and migrants should not be confused.

If confusing the two categories is conceptually and legally wrong, it is also dangerous. This is my second proposition. Where refugees are seen as little more than a sub-group of irregular migrants, the control of their movement is likely to take precedence over meeting their protection needs. Refoulement, the return of a refugee to a territory where his or her life or freedom is threatened, is but one, potentially grave, consequence.

Another consequence, apparent for some time now, is the growing unpopularity of refugees - with right wing governments in some countries, with the tabloid press in many, and amongst people in different parts of the world who increasingly fear strangers who might take their jobs, who might be terrorists or criminals, who might upset the ethnic balance, or who might just stay too long. There are now many such misconceptions about why refugees come, who they actually are and the dangers they pose.

These are fuelled by confusing refugees and migrants. This confusion can be particularly problematic in the current environment, where national security is high on the agendas of governments and where concerns about international crime and terrorism have made states particularly wary about unauthorized arrivals. When borders close to asylum-seekers fleeing persecution or conflict, the reasons given are various. A key one today is that the persons concerned are law-breakers, having arrived irregularly, on occasion through the services of traffickers or smugglers, and that the security of the state, however this is defined, must take precedence. The tendency in some countries towards criminalization of asylum-seekers and refugees is very worrying. It is inflamed by irresponsible politicians who play politics with human misery. While there may be asylum seekers and refugees associated with serious crime, this is no justification for the majority being damned by association with the few. Equating asylum with a safe haven for terrorists is unsupported by the facts, and only serves to vilify refugees in the public mind and to promote the singling out of persons of particular races or religions for discrimination and hate-based harassment.

Bona fide efforts, multilateral or national, to root out international crime and effectively combat terrorism are supported by UNHCR. In this process our concern is, though, to have recognized, as an important point of departure, that genuine refugees are themselves escaping persecution or violence, including terrorist acts. They are not the perpetrators of such acts. A second starting point for us is that the international refugee instruments should not be characterized as providing a safe haven for terrorists. On the contrary, they provide for their exclusion from refugee protection. They do not shield from either criminal prosecution or expulsion.

Finally, we are also acutely aware of the negatives of such mischaracterization for migrants themselves. The impact of globalization on migration tends, unfortunately, to be too often presented in negative terms: the export of terror, the proliferation of transnational crime including drugs and people smuggling, a drain on national resources and abuse of borders. It has been said that "migration remains one of the last frontiers of globalization". According to UN Under-Secretary General for Economic and Social Affairs, Ocampo, "For the past 50 years governments all over the world have undertaken various liberalization measures in the areas of goods, services and capital, multilaterally and unilaterally. The basic premise of such policies is to maximize economic efficiency at the national and global levels. Yet the current international movement of people is largely shaped by restrictive migration laws and policies". This seriously overlooks the positive effects of migration, such as inflow of remittances, a relaxation in over supply of labour in home countries and the knowledge and skills that return migrants bring with them. Overseas migrants are also big investors in their own home countries. {see 2004 UN Economic and Social Survey, released 29 November}.

UNHCR of course appreciates the concerns of states about sorting out the mix of persons who present themselves at frontiers as asylum-seekers. We agree that there are areas where asylum and migration management policies have to be implemented jointly. The return of asylum-seekers found not to be in need of international protection is one among several. UNHCR cooperates with legitimate efforts directed at managing abuse of asylum systems, not least with the aim of ensuring that the protection needs of refugees and bona fide asylum seekers do not fall victim to visa requirements, carrier liabilities, and interception beyond borders - all migration control methods which do not, or cannot, differentiate between refugees and migrants.

The migration/asylum nexus issues were amongst the reasons for the decision of UNHCR, in 2000, to launch a process of Global Consultations on International Protection, which ran up to the endorsement of its outcomes by the General Assembly of the United Nations in 2002. The process was an effort to engage partners, notably states but also non government groups and other international organizations, in revitalizing refugee protection strategies to address new challenges. The main outcome was the Agenda for Protection - UNHCR's Millennium Declaration, if you like - setting out an ambitious certainly, but also practical programme of action around six main goals. These are, to summarize: strengthening implementation of the 1951 Convention; better protection of refugees who move within broader migration movements; sharing the burden of hosting refugees more equitably and building the capacity of host states to offer asylum to refugees; dealing with the security problems which are ever more prevalent for refugees and indeed the humanitarian personnel who help them; finding more timely solutions; and meeting the particular needs of women and children.

As regards the asylum/migration issues, the Agenda encourages UNHCR and partners to cooperate on important fronts: addressing the contextual issues, notably the uneven burden-sharing; combatting criminality and trafficking; ensuring effective protection closer to the source of the need; making domestic asylum systems work more expeditiously and fairly; better managing secondary or irregular movement of refugees and asylum seekers; dealing with abuse of asylum systems; freeing up more resources; finding earlier, more viable and more sustainable solutions for more people; and finally, realizing more effectively the linkages between humanitarian work, longer-term development strategies and maximizing the potential of migration. The Agenda also encourages states to consider the possibility of establishing regular migration opportunities for foreign nationals who have no need of international protection but who might otherwise seek entry through the asylum channel.

UNHCR has, as a result of the Agenda's platform, markedly reinforced its activities in the area of capacity-building. The primary building block for the protection of refugees - and for distinguishing them from the broader category of migrants - is an effective, national, legislative framework translating rights and commitments into domestic law, in areas as diverse as border entry, detention, social welfare, health or education. In tandem, UNHCR is working to create a more positive climate of public support for refugees and to build "protection networks" in civil society. UNHCR's advocacy efforts regularly incorporate education and public awareness campaigns, to improve understanding of and foster respectful public attitudes towards the forcibly displaced.

In parenthesis, let me note that UNHCR is not alone in having to situate its mandate responsibilities within a qualitatively changed migration environment. The United Nations as an institution is currently looking at whether it has a role to play here, in the context of its Charter commitments to the promotion of human rights and peace and security. UN agencies have started to work more cooperatively on migration issues, each from the perspective of its own mandate. The High Commissioner has been instrumental in the creation of a consultative group in Geneva, the Geneva Migration Group, which brings together the Heads of five UN agencies (UNHCR, ILO, OHCHR, UNCTAD, UNODC [United Nations Office on Drugs and Crime in Vienna]) together with IOM, to exchange information and promote greater policy coherence in their migration related activities. UNHCR is also an active contributor to the work of the Global Commission on International Migration, which has as one of its mandate objectives, analyzing gaps in current approaches to migration and examining interlinkages with other issue areas.

These interlinkages actually bring me to my third proposition. I want now to examine if and when refugee situations might so change their character that migration management methods actually become the most directly relevant. Experience shows that this does occur and that there is a need for all concerned - UNHCR and States included - to monitor the evolution of situations and be sensitive to the need to adjust the management strategies. The challenge is to recognize that point at which migration and development tailored responses become more appropriate than refugee protection ones alone.

To take only several examples, we saw this point come about in the early 1990s, when opportunities opened up to repatriate the many thousands of Mozambican refugees who had fled to neighbouring South Africa. The prospect of large scale repatriation became, however, a dilemma for South Africa, confronting it with the choice of returning or retaining refugees who, over the years, had become a significant source of labour for the goldmines. The South African Government exercised this choice in favour of retention, offering an alternative migrant worker status. UNHCR supported this, given that conditions for an economically sustainable return were not so promising. The result was that Mozambican refugees became Mozambican migrant workers. The story was similar in Zimbabwe, where the refugees had been supplementing the plantation labour force in significant ways.

We also saw the point arrive in the 1980s, with the Indo-Chinese boat people. Orderly departure programmes from Viet Nam were provided for in the Comprehensive Plan of Action, agreed internationally in an effort to bring to a dignified end what had evolved into a migratory outflow. The action plan comprised a balanced set of responses to deal respectively with the migration and with the residual, refugee elements of the outflow.

A more current example is UNHCR's Afghanistan initiative. It is now widely accepted that many of the reasons why Afghans originally left their homes - which were always, anyway, a complex mix - no longer apply. As such, it has become increasingly difficult to explain the presence of such large numbers of Afghans remaining outside Afghanistan in refugee terms alone. General livelihood factors (labour migration, economic development) have been playing an influential role in cross border movements over recent years, as well as in sustaining the Afghan presence abroad. UNHCR is now working closely with IOM, ILO and the Governments of Pakistan and Iran to find sustainable solutions, shaped by three primary considerations. These are that: (a) the problem which is increasingly driven by economic factors should be approached as essentially a migration issue and managed as such within normalized regional and bilateral relations, (b) continued international engagement and support will nevertheless be required to develop and underpin such a transition, in view not least of its refugee history, and (c) there will be a residual refugee and protection dimension in the post 2005 situation.

Finally and more generally on this point, and also by way of illustration, UNHCR has been exploring with states a more strategic approach to the resettlement solution. In tandem with preserving its importance as a protection mechanism for individuals in difficulties in countries of asylum, we have been looking at ways to expand its reach as a solution for larger numbers in protracted asylum situations. Many resettlement countries have been grappling with unfavourable demographic trends - low birth rates, difficulties of filling jobs in certain vocational/employment sectors and dealing with federal pension plan issues that require a large increase in the base to be maintained, just to name a few! This has encouraged us to start, judiciously, to examine pros and cons of introducing a migration-based component into resettlement - to co-exist with, not supplant, the protection-based element. Put another way, we are looking at how we might create a win-win situation, by using the resettlement of refugees also in a migration context to assist states to address such demographic challenges. I repeat the word "judiciously" however, as we have for some time struggled to move resettlement countries away from making integration potential the priority criterion for the filling of their regular quotas. There would be no change in this regard. The regular quotas would remain. We would be seeking a new addition.

Resettlement is one of several key durable solutions, in relation to which the strategies of international humanitarian organizations, including UNHCR, have been shifting markedly over recent times. Local integration is another. The Agenda for Protection encourages a move away from the earlier rather centralized, even paternalistic approaches, towards programmes that encourage self-reliance and more direct involvement by refugees in charting their own solutions. This is having consequences for the scope of programmes and the range of actors involved. Increasingly there is a call to situate refugees in broader development strategies, including poverty reduction strategies, in both countries of asylum and countries of origin after return. The aim is to bridge the gap between short term humanitarian programmes and longer term development initiatives. There is also a renewed focus on the local integration solution, even as efforts are strengthened to achieve voluntary repatriation of refugees and expand the availability of resettlement.

As regards integration, and because integration more broadly is a main theme of this conference, let me digress a little to observe that, even for refugees in countries where asylum systems are in principle structured to provide for permanent stay and citizenship, integration is by no means always encouraged. Some States increasingly offer limited and temporary forms of asylum, in the expectation that the beneficiaries will return to their country of origin - either voluntarily or at the request of the authorities - as soon as it is safe to do so. Where refugees are confined to camps or designated zones, self-reliance is often actively discouraged, sometimes as a means to promote early, even premature, repatriation.

The Agenda for Protection encouraged all concerned, in various ways, to re-visit the integration solution and to see it holistically in its legal, economic and socio-cultural dimensions. First, it is a legal process, whereby refugees are granted a progressively wider range of rights and entitlements by the host State that are broadly commensurate with those enjoyed by its citizens. These include freedom of movement, access to education and the labour market, access to public relief and assistance, including health facilities, the possibility of acquiring and disposing of property, and the capacity to travel with valid travel and identity documents. Realization of family unity is another important aspect of local integration. Over time the process should lead to permanent residence rights and in some cases the acquisition, in due course, of citizenship in the country of asylum. Second, local integration is an economic process. Refugees should become progressively less reliant on State aid or humanitarian assistance, attaining a growing degree of self-reliance and becoming able to pursue sustainable livelihoods, thus contributing to the economic life of the host country. Third, local integration is a social and cultural process of acclimatization by the refugees and accommodation by the local communities, that enables refugees to live amongst or alongside the host population, without discrimination or exploitation, and contribute actively to the social life of their country of asylum. It is, in this sense, an interactive process involving both refugees and nationals of the host State, as well as its institutions. The result should be a society that is both diverse and open, where people can form a community, regardless of differences.

Where local integration of refugees is a viable option in a country of asylum, the High Commissioner has proposed a strategy called "Development through Local Integration" (DLI). The strategy builds on the symbiotic relationship between refugee self-sufficiency and local community development. It takes as a starting point that to integrate - which literally means "to make whole" - is a two way street. New arrivals and their host societies have to adjust to each other and this will be to the mutual benefit of both. The strategy rests, therefore, on the understanding that solutions for refugees locally will attract development funding which will be applied to projects which will also lead to substantial improvement in the quality of life for host communities.

The realization of lasting solutions, particularly in protracted refugee situations, is of the essence of the High Commissioner's "Convention Plus" initiative, about which you will hear more later in the conference. In short, the initiative is about shoring up commitments of states to support efforts to better manage the asylum/migration nexus, realize effective protection closer to the source of the original demand, expand resettlement options and use development assistance more creatively in the refugee context. It is about earlier solutions, their more reliable resourcing and better burden-sharing.

Mr. Chairman, I took the position early in this address that, for as long as categorization is important to the recognition of rights and responsibilities, there should be no confusion between categories. This brings me to the Benn proposals, outlined in December 2004. Of course his proposals go way beyond this presentation, raising many issues on which I would not venture a comment at this stage. I do want to note though, one among his many questions, which are the basis for his support for a radical overhaul of how humanitarian agencies deliver assistance and protection.

Mr. Benn asks: "Is it really sensible that we have different systems for dealing with people fleeing their homes depending on whether they happen to have crossed an international border". Inherent in this question is, of course, his answer no. What he seems to be saying is that there are some artificial distinctions at play which prevent agencies properly addressing serious humanitarian needs, and that commonality of purpose [e.g protection], rather than separateness of mandates, is a better guide for humanitarian action. Let me conclude with some observations here.

For 50 years or so, designations or categories have been central to how UNHCR exercises its mandate. Indeed our mandate has rested on the notion of "persons of concern to the office", these persons being those falling into designated classes or groups, according to articulated criteria. These criteria determine the responsibilities of the Office. Our Statute, as well as the 1951 Convention, contains a definition of refugee. Those who meet that definition can make a legitimate claim to our protection. So too can those who meet an extended definition, those who are stateless, those who are returning refugees. These are all categories of persons of concern. Yet we have no formal mandate for other groups of persons, generally speaking, whose needs may well be similar and may warrant the intervention of an agency such as ours. The logic of Benn's thinking is that we should be moving towards a new "refugee" reality, where these needs become as much a determinant of the international responses as strict legal categories.

I have to admit, following a recent mission to a Tsunami devastated region in one of the hardest hit countries, that that logic strikes a sympathetic cord with me. What was patently clear, apart from the horrifying reach of this disaster, was that the protection needs of the affected people were in many respects very comparable to the needs of persons displaced for other reasons, including refugee related. Displacement, regardless of its causes, produces vulnerabilities which are quite similar. Exploitation of women and children, sexually-based violence, human smuggling and trafficking, precipitate return to unreceptive environments, and land and identity issues, go hand in hand with the demands of survival. Definitions can become quite artificial, even dangerous, if they lead to some being helped and others ignored, regardless of need.

Perhaps it is in this context that the concerns of, among others, Hilary Benn should be seen. It is beyond doubt that the need for assistance and protection is not restricted to refugees and asylum seekers. The situation may be equally acute for a tsunami victim in Sri Lanka, for an IDP in the Sudan, or for a victim of trafficking in Eastern Europe. This being said, however, to change the rules of engagement from the "mandate to intervene" to the "responsibility to protect" would be a qualitative leap at this point. In their report, The Responsibility to Protect [2001], the International Commission on Intervention and State Sovereignty examined related issues and concluded that, however desirable the change, there were complex questions of eligibility, legitimacy, sovereignty, political will, mandates, and operational effectiveness to resolve first.

That, of course, is not an argument not to explore any better ways to meet this "responsibility to protect". Being destitute, confronting intolerance and fear, being a foreigner in someone else's town or land, searching for a safe haven and having to wait for elusive solutions, these are recurring features of the displacement experience. The displaced are people with needs; they are not statistics and global trends. Where protection is an issue, it is a humanitarian necessity. One problem with defining categories in today's world of increased global mobility, international terrorism, and natural disasters on the rise, is that it can serve to obscure the real needs, and lead to responsibilities being left to the realm of discretionary, policy choices. The hard-fought protection regime of rights and responsibilities for refugees is and must remain their crucial safety net. In addition, though, I agree that innovative thinking is needed, to translate the currently "in vogue" notions of human security and a rights-based approach into concrete action to benefit all those in need of protection, regardless of how they are categorized. This applies whether they are war refugees, climate displaced, internally displaced people, or migrants.