Refuge, Refusal and Consent: how should resettlement agencies treat people seeking refuge?

In Spring 2013 Eskinder Negash, director of the United States Office of Refugee Resettlement, visited Virginia Tech to meet with graduate students and faculty.  During his stay he shared current estimates of the worldwide population of people living displaced, stateless, in temporary asylum and/or seeking permanent citizenship.[1]  The more conservative appraisal Negash offered suggested that group numbers approximately 50 million people worldwide, while less strict assumptions concerning “who counts” in these categories yields a total of upwards of 65 million individuals.  Irrespective of which startling figure one accepts, it is clear that at any given time, tens of millions of people worldwide live in perpetual precarity. It is also evident that the physical safety of many of these people is mediated by the graces of a neighboring state that can turn them away at any time. Another truism of the world’s refugee situation is that many children have grown from birth to adulthood in refugee camps. That is, these young people have lived their entire lives in austere conditions with few resources.

These realities have prompted most wealthy industrialized countries to develop policies and institutions to respond to petitions for asylum and permanent residency.  These agencies possess neither the remit nor the capacity, however, to plan comprehensively to address the global increase in refugee populations. That is, despite these nations’ humanitarian efforts and the coordination of the United Nations High Commissioner for Refugees (UNHCR), the population of people seeking refuge continues to grow rapidly.[2]  Consider, for example, the flight of 2 million people leaving Syria during the time span of 2011 to 2014 alone.

Since the establishment of the United Nations in the 1940s, its wealthiest member nations have made commitments, on moral grounds, to grant refugees asylum. Such status is usually provided on documented evidence of persecution, genocide and/or war. To some extent, too, these countries began this practice as a form of political posturing during the Cold War as they sought to present themselves as more generous than their perceived competitors. Nevertheless, the moral arguments for granting asylum on humanitarian grounds keep the commitment to provide succor public and, therefore, subject to scrutiny.  After all, nations could – and sometimes do – refuse to admit those seeking protection.  This may occur in various forms, such as outright closure of borders, severely limiting the number of approved petitions within a set timeframe, and sometimes requiring would-be refugees to relocate and resettle in other countries.  However, for the most part, the moral argument for offering refuge is given important weight in national deliberations concerning specific cases.

This fact notwithstanding, moral justifications for allowing protection provide only limited guarantees. For example, I count my home nation, the United States, as one that considers and grants petitions for asylum a matter of moral import, but once petitioners begin to interact with the institutions that will adjudicate their claim, what standards guide the treatment of asylum seekers?  This process implicates public agencies in two related ways: elaboration and application of the terms of treatment of people deemed non-citizens as well as in how the circumstances surrounding a non-citizen’s status influences decisions to provide or deny sanctuary.

As it turns out, the moral argument on which my country relies to justify continuing to grant asylum does not necessarily regulate directly how agents of the state actually do so, nor does that overarching claim specify standards for assisting asylum-seekers.  Instead, the way people are treated while petitioning for protection, even by the wealthiest and most generous of nations, is shaped strongly by political expediency and a concern that claims in petitions for aid be verified.[3] A case in point is the recently published manual, “Credibility Assessment in Asylum Procedures,” by the Hungarian Helsinki Committee.[4] In the words of Michael Kagan, one of the effort’s co-authors,

[…] this is now probably the state of the art in capturing best practices in one of the hardest and high stakes challenges in refugee status determination [RSD]. Doubts about credibility probably lead to more rejections of refugee claims than any other issue, but such denials are often only thinly justified. Moreover, if an adjudicator doubts someone and refuses he or she asylum and they later prove to be telling the truth, a person in danger of persecution will be put in harm’s way.[5]
“Credibility assessment” and “refugee status determination” refer to the criteria and processes by which decisions concerning whether to grant an individual refuge are reached – primarily whether the person actually endured the claimed conditions of genocide, war, persecution, etc. for which asylum was designed as a response.

Here is how the authors of the Helsinki manual framed the status determination context:

Before discovering the scope, limits and methodology of credibility assessment, it is crucial to understand the general evidentiary framework of asylum procedures and its specific characteristics. In particular, this chapter will help to understand:

  • Why, and to what extent asylum procedures differ from other procedures with regard to evidence assessment and the establishment of facts and circumstances?
  • Who has the duty to substantiate facts and circumstances in asylum procedures and what does this mean in practical terms?
  • What is the level of conviction an asylum decision-maker needs to have regarding the existence of relevant facts and circumstances in order to make a favourable decision, and what does this mean in practical terms?[6]

These sorts of assessment criteria seek principally to protect national security interests and to prevent fraudulent refugee claims. In short, those actually charged with making refuge decisions do so on the basis of guidelines aimed foremost at assessing the risk that a potential refugee is not telling the truth, and secondly at avoiding immediate harm to the lives of people seeking protection. Even if one agrees this statutorily mandated orientation is important, do the policies and procedures used to investigate refugee claims employ published criteria such that people seeking asylum and other interested individuals can evaluate them?

Overall, I could not find any criteria justified on specifically moral, rather than risk-associated, grounds that a person seeking refuge could use to evaluate and, if necessary, call into question the practices of people administering/enforcing asylum procedures. Nations may have criteria for assessing refugee probity, but, so far as I have discerned, major countries have no similarly weighted operative norms for gauging the morality/ethics of their asylum decisions or for monitoring agency treatment of people petitioning for sanctuary.[7]  Somewhat ironically, perhaps, manuals like the recent guide prepared by the Helsinki Committee, cite morality and moral decisions as cultural factors about which those interviewing refugees should remain aware. Notably, however, that report did not provide criteria for evaluating either the justness of its proposed processes or of the outcomes of those.

Perhaps undue emphasis on evaluating the supposed credibility of people seeking refuge misrepresents the relative significance of causes; that is, how people ended up in need of asylum in the first instance. This situation has arisen for several reasons including the fact that no single institutional entity has the resources or authority to manage the massive and ever-increasing population of asylum-seekers.  Likewise, no nation or coalition of countries enjoys such authority, either.  At best, individual countries, coalitions, and the United Nations currently triage the cases they can while the vast majority of people live at the mercy of random chance that events will create a scenario that might result in their becoming refugees.  The efforts and credibility of a petitioner, however hard she may strive for asylum, may nonetheless count for little in this overarching context.

Displacement leading to refugee claims arises more often from random factors than as a result of any specific steps states may control.  Whether a person seeking sanctuary works incredibly hard or with casual interest matters very little when compared to the broad array of influences that condition the lives of most such people. That is, by the time an asylum-granting nation evaluates a refuge seeker and schedules a hearing on their petition, it may be fairly said that the circumstances that created that person’s flight have more to do with the situation they confront than their credibility. Believability serves as an administrative proxy for sussing out past causal factors employed in lieu of an evaluation of the overall circumstances facing individuals seeking refuge. Presenting credibility out of the context of the random chance that created the circumstances for flight in the first instance — again, something no state currently seems to have any plan or procedure for addressing — employs that factor as a purportedly reasonable means of bringing moderation and predictability to decision processes and to a social phenomenon that asylum-granting nations do not want to admit: the chaos, precarity, and vulnerability now afflicting growing numbers of people worldwide.[8]

Our nation’s officials would do better, instead, to start from the assumption that events well beyond the control of those seeking sanctuary now dominate their life circumstances. Granted, various factors may have led to their situation of precarity.  Nonetheless, by the time people petition for asylum they likely live in conditions of vulnerability better understood as random—the fact of the matter as they confront the conditions of their daily life—than as something resulting from specific prior events. As refugees, these individuals live in abject precarity at the whim of events and factors that may or may not line up in their favor (or against them). That reality seems far more pressing and verifiable than seeking to ascertain and validate how each ended up in such circumstances and determining whether their recounting of those factors appears to be “true.”

In short, asylum-granting nations, including the United States, might take a cue from scholars of liberation, including Enrique Dussel, who have suggested that protection decisions be guided by a specific conception of respect rooted in what displaced individuals can feasibly refuse.[9]  That is, whatever someone cannot feasibly refuse in order to attain asylum should count as the criterion/a by which to evaluate the efficacy of the entire administrative scheme of status determination. I offer this rubric as a conceptual guideline for evaluating the institutionally administered conditions that people must address while seeking refuge, specifically, the requirements over which sanctuary nations possess reasonable control.  Theories of this sort might offer a means by which to evaluate the ethos of the asylum-related decision processes typically employed by wealthy industrialized nations.

Put differently, I propose that analysts assume that the wars and injustice that produce refugees are unlikely to end any time soon and that sanctuary nations should therefore take steps to ensure the best possible treatment of individuals petitioning for refuge or asylum. I want to raise questions concerning how to assess the processes by which nations grant asylum. What criteria should guide those seeking to determine whether these arguably vital choice processes are fair, ethical, or at least decent?  Considering this question forces one to ponder whether the judgments now employed to decide whether to offer sanctuary are appropriate and just as well.

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[1]Negash (2013); and: Resettlement (2013).
[2]UNHCR (2013).
[3]Matheis (2013).
[4]Gábor Gyulai (2013).
[5]Kagan (2013).
[6]Gábor Gyulai (2013): 9.
[7] A 2007 U.S. Congressional committee report (2006) stated that the central focus of the refugee program is, “to achieve a balance between humanitarian commitments and national security concerns” and to “protect honest asylum seekers” (55). The authors of the report acknowledged that “all refugees endure extreme hardship and suffering” but did not include any specific criteria for treatment of refugees on moral grounds.
[8] For additional information about credibility in refugee petition processes, and the dominance of this factor compared with other concerns, consult: Verdirame et al. (2005).
[9]Dussel (1985) §2.6.2.3, §5.3.2, §5.4.5; Dussel (2008) §2.3.

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 References

2006. Oversight hearing: U.S. refugee admissions and policy: hearing before the Subcommittee on Immigration, Border Security, and Citizenship of the Committee on the Judiciary, United States Senate, One Hundred Ninth Congress, second session, September 27, 2006. edited by Committee on the Judiciary: U.S. Government Printing Office.

Dussel, Enrique D. 1985. Philosophy of liberation. Maryknoll, N.Y.: Orbis Books.

Dussel, Enrique D. 2008. Twenty theses on politics, Latin America in translation/en traducción/em tradução. Durham: Duke University Press.

Gábor Gyulai, Michael Kagan, Jane Herlihy, Stuart Turner, Lilla Hárdi, Éva Tessza 2013. “Credibility Assessment in Asylum Procedures: a Multidisciplinary Training Manual.” In. Budapest, Hungary: Hungarian Helsinki Committee. http://helsinki.hu/wp-content/uploads/Credibility-Assessment-in-Asylum-Procedures-CREDO-manual.pdf

Kagan, Michael. 2013. New training guide to credibility assessment in RSD. In RSDWatch, edited by Michael Kagan.

Matheis, Christian. 2013. ‘To live on the soil we cultivate’ : legitimacy and expediency in Thoreau’s political ethics. Re: Reflections and Explorations, https://blogs.lt.vt.edu/reflectionsandexplorations/2013/09/26/to-live-on-the-soil-we-cultivate-legitimacy-and-expediency-in-thoreaus-political-ethics/.

Negash, Eskinder. 2013. The Office of Refugee Resettlement.

Resettlement, U.S. Office of Refugee. 2013. Refugee Arrival Data. U.S. Office of Refugee Resttlement 2013 [cited 22 Apr. 2013 2013]. Available from http://www.acf.hhs.gov/programs/orr/resource/refugee-arrival-data.

UNHCR. 2013. Statute of the Office of the United Nations High Commissioner for Refugees., http://www.unhcr.org/3b66c39e1.html.

Verdirame, Guglielmo, Barbara E. Harrell-Bond, Zachary Lomo, and Hannah Garry. 2005. Rights in exile : Janus-faced humanitarianism, Studies in forced migration. New York: Berghahn Books.


christian-matheis Christian Matheis is a doctoral candidate at Virginia Tech conducting research in ethics and political philosophy in the Alliance for Social, Political, Ethical and Cultural Thought (ASPECT), teaching in the Department of Philosophy. He holds a B.S. in Psychology and an M.A. in Applied Ethics with graduate minors in Ethnic Studies and Sociology, both from Oregon State University.

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