By Guest Writer Mohammad Zayaan

On September 15, 2021, after a hostile takeover, the Taliban took control of Afghanistan, leading to one of the worst humanitarian crises the world has witnessed. Thousands of Afghans were displaced from the country and forced to move to different parts of the world to avoid persecution. As a result, some countries developed specific policies, after this unprecedented increase in the refugee influx, some guaranteeing safe haven while others are refusing to accept them. 

This article discusses a specific policy change that the UNHCR could bring to help people from Afghanistan who had migrated before September and whose application for refugee status had been rejected by the UNHCR. Apart from a country’s own refugee policy, the UNHCR has a separate mechanism called Refugee Status Determination (RSD) to identify and recognize refugees. This mechanism is based on the Refugee Convention, 1951, the Protocol Related To The Status Of Refugees(1967), and the principle of non-refoulement. It is also used in countries that are not parties to the Refugee Convention or do not have specific policies for refugees, e.g., India. There are certain grounds for recognition as refugees under this mechanism. These grounds are persecution and/or discrimination on the basis of race, religion, nationality, membership of a particular social group, or political opinion. Once asylum seekers are registered as refugees under this process, they get legal documents, which are a prerequisite for applying to jobs, formal education, and enter into housing contracts, which would be otherwise either highly difficult or impossible

The RSD process consists of three stages- a preliminary registration, the first instance interview, and an appeal (only if rejected at first instance). Every asylum seeker is entitled to this process, which includes a right to be heard at the first instance and appeal the decision if required unless barred by exceptions under the RDS procedure. First instance refers to the first stage of the process, and provides a decision on determination of refugee status given by the UNHCR after an initial review of the relevant documents provided by the claimant. The evidentiary burden to prove that they qualify as refugees lies on the claimants. 

The RSD process, therefore, involves multiple stages. It includes preliminary registration, a first instance interview, and an appeal if the decision on first instance is negative. Further, if the  appeal also fails, one can apply for reopening of their application. This can only be done on limited grounds– if there is new material evidence, substantial change in circumstances in the home country, or a strong reason to believe that their claim was improperly decided. This is a lengthy process that could take a few years.  Meanwhile, the asylum seekers are given the Under Consideration Card (UCC), a legal document issued by the UNHCR that helps them get basic amenities like food and education without much difficulty. Once the UNHCR rejects the appeal of an asylum seeker, their case is essentially closed, and the UCC of the asylum seeker expires, thus making them a migrant without any legal documents. 

The process of RSD is also a tiring one, for it could take years before accepting or rejecting refugee status of asylum seekers. Moreover, there is no vested right in an individual to seek another hearing at the appeal stage. Therefore, the appeal process is mostly conducted by revisiting the claim and checking grounds for an appeal, depriving people of their right to be heard properly during the appeal stage. 

Once the case has been closed, an individual has essentially exhausted all remedies to which they are entitled. However, there is a procedure for reopening a case which, though not a right, could give an individual another chance to present their claim. Unlike the first instance interview and the appeal, this is not a vested right and is a discretionary power that lies within the UNHCR. There are certain procedural standards for reopening a case, and one amongst them is ‘a substantial change in the conditions of one’s home country,’ which would expose the asylum seekers to more vulnerability and an increased threat of persecution. 

Some specific examples include the increase in violence against the Hazara community, women, and human rights defenders, which have persisted since September 2021. General circumstances like acute food shortage, collapsing healthcare system, and generalized violence also constitute a substantial change. It would be comparatively easier for new asylum seekers to establish their claim around such circumstances. However, those whose applications have been rejected–and who could be amongst the most vulnerable groups–would have to rely on a discretionary process which could take a lot of time and assessment. Therefore, the UNHCR must make a policy decision to reopen all cases which have been previously rejected. It has already issued a non-return advisory for Afghan nationals and called on States to not deport them even if they are not recognized as refugees. 

Such a policy change to reopen all cases would hasten the process of getting a refugee status and establishing a new claim at the earliest, instead of filing an application and waiting for a confirmation which could take a very long time. The asylum seekers could be deported during this period without getting any response from UNHCR, as their UCC would have already expired. Therefore, to assist such asylum seekers and deter their deportation, the UNHCR must immediately reopen all cases that have been previously closed, as there is a substantial change in circumstances in their home country. Apart from preventing their deportation, it would also ensure that they are not deprived of basic amenities such as food and shelter. 

Acknowledgment: The writer was a volunteer at Migration and Asylum Project, New Delhi and would like to thank the entire team for their guidance and support.

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