An Understanding of Best Practices for Cessation in the Case of Chin Refugees from Myanmar
By Megan McDonough
This article examines the ethical obligations of UNHCR and state actors in implementing cessation by comparing UNHCR’s cessation procedures for refugees from Rwanda, Liberia, and now Myanmar. In evaluating how UNHCR’s approach to Chin refugees from Myanmar diverges from past policies, the article raises concerns regarding UNHCR and state obligations when administering cessation procedures. It highlights the issues that arise in cessation determination procedures for states, individuals, UNHCR, and advocates both in the country of asylum and in the country of origin. This analysis seeks to demonstrate that transparent decision-making and adherence to ethical obligations are paramount in carrying out cessation measures in the future.
In mid-2018, the United Nations High Commissioner for Refugees (UNHCR) announced a plan to end the international protection of Chin refugees from Myanmar, who predominantly reside in Malaysia, India, and Thailand (APRRN 2018). The rationale for this decision was that fundamental and durable changes had occurred in Myanmar, and consequently Chin refugees no longer required international protection under UNHCR’s mandate. After an extended advocacy effort by the Chin community and civil society, including media pressure, UNHCR announced in March 2019 a withdrawal of the initial assessment, noting fundamental and durable changes had not, in fact, occurred, and that Chin refugees continued to require international protection. Though no Chin refugees ultimately lost status, trauma reverberated in the community. Moreover, Chin asylum seekers in Malaysia continue to have their refugee claims rejected en masse. Though this is not the first time UNHCR has implemented cessation procedures, it is the first time UNHCR has announced plans to withdraw international protection without lengthy planning, transparency, and responsibility sharing agreements from states and stakeholders.
The Cessation Clause
The 1951 Refugee Convention (the Convention) created an international framework to confer refugee status upon individuals who have fled their country due to a fear of persecution on the basis of their race, religion, political opinion, nationality, or membership of a particular social group. In states that are not party to the Convention or where the government does not conduct Refugee Status Determination (RSD) for whatever reason, UNHCR may conduct RSD in lieu of the government and recognise individuals as refugees under its own mandate.
The underlying rationale of this regime is to provide individuals with a form of surrogate
protection in the absence of meaningful national protection in their country of origin.
Accordingly, the Convention and subsequent 1967 Protocol enshrine legal rights and protections for those with refugee status, which are to last only for as long as such international protection is required. This is written into the Convention in the form of the ‘Cessation Clause’ at Article 1(C)(5) and (6). This clause states that a refugee will no longer qualify for international protection where the circumstances that led to their becoming refugees have ceased to exist and/or effective protection has been re-established in the country of origin or asylum.
UNHCR has developed a Handbook (2011) and several Guidelines (1997; 2003) for decision-makers to use when assessing whether cessation is appropriate. Firstly, cessation requires that a fundamental and durable change has taken place in the entire country of origin. The focus of the assessment should: (i) address the causes of displacement which led to the granting of refugee status; (ii) evaluate the consequences of cessation on refugees; and (iii) consider the experiences of returnees to the country of origin. Developments which show significant and profound change should be given time to stabilise before any decision on general cessation is made; UNHCR has recommended a minimum timeframe of 12 to 18 months, with the average standard being five years (1997). Moreover, the Cessation Guidelines require that ‘in determining whether circumstances have changed so as to justify cessation under Article 1C(5) or (6), another crucial question is whether the refugee can effectively re-avail him or herself of the protection of his or her own country’ (UNHCR 2003: 5). The Cessation Guidelines further explain that such protection must be more than ‘mere physical security or safety’ and should include, inter alia, a functioning government and legal system, and ‘adequate infrastructure to enable residents to exercise their rights, including their right to a basic livelihood’ (Ibid). The UNHCR Handbook clarifies that the cessation clauses should be interpreted strictly and restrictively. Moreover, UNHCR Cessation Guidelines (2003: 3) emphasise that ‘cessation practices should be developed in a manner consistent with the goal of durable solutions’ and ‘the principle that conditions within the country of origin must have changed in a profound and enduring manner before cessation can be applied’.
Using Rwanda and Liberia as case studies, we can see how, historically, decision-makers – both UNHCR and governments in affected States – have worked together to deal with protracted and large refugee populations when the need for international protection appears to come to an end. In both cases, a comprehensive strategy was devised by UNHCR over many years, with adequate flexibility for change based on the situation. In late 2009, at the 60th Session of the Executive Committee (EXCOM), UNHCR announced a ‘Comprehensive Solutions Strategy’ to begin returning Rwandan and Liberian refugees and invoking cessation of their refugee status. These strategies were comprised of four components: (i) enhancing promotion of voluntary repatriation and reintegration; (ii) pursuing opportunities for local integration or alternative legal status in countries of asylum; (iii) continuing to meet the needs of those individuals unable to return to their country of origin for protection-related reasons; and (iv) elaborating a common schedule leading to the cessation of refugee status.
The following section compares cessation procedures implemented in the wake of previous displacement from Rwanda and Liberia, respectively, with UNHCR’s recent cessation plans in response to the displacement of Chin refugees from Myanmar.
In 1994, the Rwandan genocide caused over two million people to flee the country, settling in neighbouring countries where they lived as refugees. In 2002, UNHCR began promoting voluntary repatriation for those displaced by the conflict and interested in returning home safely (Mutuli 2003). Over the following decade, UNHCR worked with the Rwandan government and countries of asylum to draft and sign multiple agreements to ensure safe, dignified, and voluntary returns to Rwanda.
In late 2009, UNHCR (2011) announced a more in-depth strategy to begin returning Rwandan refugees and invoking cessation of their refugee status. The goal was to implement this strategy fully by 2011. In the ‘Comprehensive Solutions Strategy’ UNHCR published recommendations including an assessment of the situation in Rwanda, with a comprehensive overview of the ‘fundamental and crucially positive changes’ since the 1994 genocide (ibid). After a review of progress in 2011, UNHCR extended this date to 2012, and then later to 2013, citing the need for improved facilitation of the agreed-upon procedures. This entire process included conversations with government officials from 21 African countries hosting Rwandan refugees, allowing refugee communities to conduct Rwandan site visits to determine the changes in country, as well as visits to exiled communities by UNHCR and the Rwandan government to update them on the current situation in Rwanda.
Over 3.1 million Rwandan refugees returned home, and UNHCR monitored returns for a decade, acknowledging there were some challenges for returnees, mainly from an economic perspective. In 2015, UNHCR and relevant states again met to assess the situation, as many Rwandans continued to live in exile, afraid or unwilling to return to Rwanda. UNHCR (2016) announced they would not be able to offer support for the Rwandan population after 2017 and encouraged interested states to continue to implement durable solutions, such as local integration and voluntary repatriation, for remaining persons of concern. The procedures around cessation of refugee status were ongoing until 2017.
It is important to note that there has been strong opposition to repatriation, not only from Rwandan refugees themselves but also the international community (IRIN 2012). Advocates argued that the issues that culminated in genocide have not been solved and that the cessation procedures have allowed countries of asylum to restrict protections for Rwandan refugees and new arrivals. Though there were safeguards in place for those who wished to request an exemption from cessation, in practice, many refugees faced issues accessing cessation interviews, and therefore could not put forth their claim to be exempted. While UNHCR and participating states have underlined the need to offer opportunities for local integration and voluntary repatriation in lieu of pressure from cessation proceedings, there are still protection gaps for refugees who are unable to integrate and feel repatriation is not appropriate or safe (ibid).
Despite these concerns, the fact that transparent discussions occurred between UNHCR and participating states over a long period of time, and that strategic plans were devised to establish cessation standards, suggests that the Rwandan case still holds valuable lessons for other states when implementing cessation procedures.
For over two decades, Liberia was embroiled in protracted civil conflicts between a myriad of rebel groups and the military government, which led many Liberians to flee the country and live in exile abroad. Over half a million civilians were killed in the conflicts, and over a million displaced. Human rights abuses were rampant on both sides, including the use of child soldiers and sexual and gender-based violence. After 2003 there was a change in leadership in the country and a signing of a Comprehensive Peace Agreement by the Liberian government and rebel factions.
From 2004 to 2011, over 169,000 Liberians returned home, most with the assistance of UNHCR. UNHCR monitored the situation for returnees and assessed return procedures periodically. UNHCR also worked with countries of asylum to support local integration when relevant and available. As of 2011, there were approximately 63,000 Liberians in exile.
In 2009, after five years of progress in Liberia, a comprehensive strategy to implement integration and cessation procedures for Liberian refugees was announced (UNHCR 2011). This strategy mirrored the Rwandan plan, including the engagement of communities, relevant states, and UNHCR, with a focus on durable solutions and monitored returns. In this case, UNHCR set a timeline for international protection to end on 31 December 2011. Consultations with states and other partners in late-2011 resulted in a review of the strategy, and an extension of the timeline, allowing, once again, for a flexible implementation of cessation procedures. Liberians who wished to stay in countries of asylum were also able to access local integration opportunities within the framework of the Economic Community of West African States (ECOWAS). Participating states, UNHCR, and the Liberian government worked together to make sure refugees could access adequate documentation, return home if they wished, and avoid refoulement of those requiring ongoing international protection.
As with Rwanda, there were concerns amongst Liberian refugees of economic obstacles and persecution upon return to Liberia (IRIN 2012). Many Liberian refugees, most of whom had been in protracted displacement for decades, faced xenophobia and a lack of resources on returning to Liberia (ibid). Moreover, as the Liberian government extended amnesty to many perpetrators, many Liberians were concerned for their safety. As with Rwanda, however, there are rarely all-encompassing solutions to address all these concerns, unless countries of asylum are willing to extend local integration and legalisation options for those unable to return.
Chin refugees have fled increasing violence in Chin State, Myanmar, for more than a decade (Alexander 2009). After the elections in 2015, in which Aung San Suu Kyi was voted State Counsellor - a role equivalent to Prime Minister - many thought the situation would improve throughout the country. However, the situation in Chin State, as well as elsewhere in Myanmar, has not improved. Indeed, many reports suggest that Chin State is still the site of active armed conflict, forced labour, and human trafficking (Choudhury 2018). The Myanmar military (officially named ‘Tatmadaw’) is liable for a multitude of human rights violations, including alleged genocide, and still has de facto control of the country (Cohrane 2017).
In June 2018, UNHCR organised meetings with Chin community members and community leaders, to explain that, because of the change in circumstances in Myanmar, the Chin population would cease to have refugee status at the end of December 2019 (Bedi et. al. 2018). They provided the Chin refugee community with a choice of two options. First, Chin refugees could extend their UNHCR identity card until the end of 2019, waiving a right to an individual interview, and keep their refugee status until the end of 2019. Second, Chin refugees could choose to have an individual interview to determine if they were still in need of UNHCR’s protection. A decision on their case would be made within two months and protection would cease immediately if UNHCR determined that the person was no longer a refugee.
Though a UNHCR spokesperson said they met with representatives of the Chin community regularly over the past four years to discuss the eventual ending of their status, UNHCR’s decision came as a shock to many (Bedi 2018). In addition, a public statement made by the Independent Chin Communities (a consortium of five Chin refugee community groups) suggests that this decision was not discussed as openly as UNHCR suggests (Independent Chin Communities 2018).
Other than this community statement and the discussions sparked in response to it, as well as the meetings that the UNHCR spokesperson noted were held with the Chin community, there has been no mention of further discussions. The government of Myanmar has made no public statement in support of this plan or outlining any plan to aid repatriation efforts. In addition, the Malaysian Minter of Foreign Affairs, Saifuddin Abdullah, noted that the Malaysian government does not have the ability or intention to keep all refugees in the country but is not ‘pursuing the business of chasing people out’ (Chow 2018). While the governments of Thailand and India have been quiet about this decision, UNHCR representatives in India decided to defer interviews of Chin refugees until they undertook a mission to Chin State to evaluate the situation (APRRN 2018). These statements, or lack thereof, suggest that the governments of these countries had not been closely involved in UNHCR’s decision to revoke protection for Chin refugees and any subsequent plans to repatriate these individuals.
Due to the absence of inter-state discussions, there was no public plan for the facilitation of the return of the Chin population from host countries to Myanmar. In the case of Liberian and Rwandan refugees, the extensive government meetings involved discussions of repatriation measures that would need to be undertaken. This included travel back to the country of origin, the issuance of travel documents, the waiving of any immigration violations, and support for these individuals upon repatriation. Discussion of these repatriation issues ensured that individuals had a smooth return, were properly treated, and were reintegrated into their home country. In the case of Chin refugees, it appears that none of these issues had been discussed or addressed by the relevant governments and UNHCR.
Deviation from past procedures in Chin cessation proceedings
Compared to cessation practices in the cases of Rwanda and Liberia, UNHCR’s plan and practice in response to Chin displacement deviates from past cessation procedures in a few significant ways. Each of these deviations has resulted in confusion and instability for refugees and the practitioners who serve this population.
First, there were no public state agreements or discussions with the countries of asylum or the country of origin in the case of the Chin refugees. In the case of Rwandan refugees, participants from several states, including the countries of asylum and Rwanda itself, took part in talks before a decision of cessation was made. Similarly, in the case of Liberia, talks spanned over several years and included all relevant stakeholders. The repatriation and cessation plan slowly took form over eight years before finally coming into force. In the case of Chin refugees, there has been no public discussion of talks between or involving India, Malaysia, Thailand, and Myanmar. This is a major deviation from UNHCR’s earlier plans and practices to end refugee status for populations.
Second, there has been a lack of transparency regarding UNHCR’s decision-making process. In the case of Rwandan and Liberian refugees, details from the discussions between UNHCR and governments, as well as UNHCR’s decision-making processes were made publicly available. In addition, UNHCR published position papers months, even years, before they took any action to re-evaluate refugee status or end international protection. Liberian refugees were first notified of UNHCR’s plans in 2009, with cessation occurring in 2012, while Rwandan refugees were alerted in 2009, with cessation occurring finally in 2017. In the case of the Chin refugees, no discussions or decision-making of UNHCR was made public until UNHCR announced its decision to end refugee protection. Within a year and a half of the announcement, it was intended that all Chin refugees in India, Malaysia, and Thailand would no longer have refugee protection.
It must be noted that the situation in the countries of asylum for Chin refugees is different from the situation facing Liberian and Rwandan refugees. In the case of Liberian and Rwandan refugees, the countries of asylum formally recognised their refugee status and afforded certain protections to refugees. However, the governments of Malaysia, India, and Thailand do not formally recognise the refugee status of Chin individuals or the decisions of UNHCR, nor do they afford any legal protections to individuals whom UNHCR deems to be refugees under its mandate. Although those with UNHCR documents are provided with an informal ability to remain in these countries, they are not afforded a legal status or visa from the relevant governments. This means that certain aspects of a comprehensive cessation assessment, for example, the evaluation of local integration opportunities, or ties to the country of asylum, are absent, complicating the ability to implement durable solutions for refugees.
In the case of Chin refugees, UNHCR had noted that international protection would cease at the end of 2019 but UNHCR had not discussed the consequences of such a decision. UNHCR’s decision to end refugee status would not have formally affected Chin refugees’ legal right to remain in Thailand, Malaysia or India or resulted in their immediate return; however, as they do not have a legal right to remain as granted by the governments, it would have de facto affected their ability to stay and may have resulted in increased arrests, deportations, and violations of the principle of non-refoulement as the governments deport those without valid UNHCR documents. This would have been in direct opposition to UNHCR’s international protection mandate. Without any discussion with the relevant countries, these individuals could have been returned forcibly without any assistance or monitoring of the situation after their return. This put them in a dangerous and precarious position, and an influx of returnees could have resulted in further deterioration of the situation in Chin State and Myanmar as a whole.
There are several reasons why these deviations from UNHCR’s practices should be of concern. UNHCR’s announcement in March 2019 to reverse the decision to cease international protection of Chin refugees shows that implementation without a comprehensive understanding of the situation in a country of origin can lead to mistakes affecting thousands of vulnerable individuals. UNHCR’s (2019) press release acknowledges that ‘UNHCR received a number of new reports and assessments, which did not support its original conclusion of fundamental and durable changes in Chin State and Sagaing Region’. However, given that UNHCR’s cessation plan remained in place for nine months before the reversal, this resulted in trauma and stress among the Chin community. This confusion created a drain on the community as they tried to understand what would happen, with panic and uncertainty among refugee communities sparking many individuals to try to advocate for themselves. Moreover, the resources required for the accelerated processing of cases tied to the prioritisation of Chin cessation put a strain on already overburdened UNHCR resources, shifting them away from much needed assistance. The lack of discussions with the relevant governments and a clear plan of action posed problems for the individuals concerned and those in the field representing and advocating on behalf of these populations. Though UNHCR’s reversal was welcomed, it was not without consequences. Many began the procedure to re-evaluate their refugee claims, while others worried about their options, attempting to devise alternative plans.
In addition, there is a risk that other states will mirror UNHCR’s lack of transparency and clear reasoning when conducting cessation procedures in their own territories. If UNHCR’s decision had led to the massive deportation of the Chin populations, it could have resulted in greater instability in the region and exacerbated issues such as human trafficking or internal displacement. UNHCR did not transparently assess or address any of these concerns.
In future decisions of cessation, UNHCR should act in line with past practices and engage the relevant states in a robust discussion to outline a clear, reasoned plan for the cessation of status of these individuals. A plan should be drafted that will give states and individuals enough time to prepare for repatriation. UNHCR should elicit a firm commitment from each of these states to ensure that all individuals would be returned safely, with assistance from the states concerned or UNHCR, and be monitored upon their return to ensure the situation in the entire country remains stable and safe enough for people to remain. This plan and the discussions among the states should be made public and provide individuals and their advocates with a clear understanding of what will take place upon the cessation of their refugee status and how they will be returned safely. Without a public plan of this sort, UNHCR cannot reasonably assume that people will be supported in repatriation and remain safe upon return. Moreover, poor practices such as these will continue to undermine the credibility of UNHCR decision-making within the international community, civil society, and most importantly, refugee communities.
Megan McDonough is a human rights attorney and refugee legal aid advocate. She has represented humanitarian immigrants in legal proceedings in the United States, Asia, and the MENA region. She currently provides legal services to refugees in Southeast Asia.
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