Introduction: Humanitarian protection of aliens in disaster contexts

1. Introduction:Humanitarian protection of aliens in disaster contexts Dr David James Cantor, University of London Nansen Initiative/RCM Workshop San José, Costa Rica, 10-11 February 2015

2. Researcher David James Cantor (British) MA Cantab, MSc Dist, PhD Director of the Refugee Law Initiative, University of London Researcher for the Nansen Initiative on RCM Study david.cantor@sas.ac.uk

3. Outline of workshop presentation • Overview of study • Research process: study scope and methodology • Empirical features of the displacement in Americas • Refugee law in Americas • Immigration law in Americas • Role of regional organisations • Conclusions • Time for questions/discussion

4. Study scope and methodology

5. Initial parameters • Initial parameters for study: • At global level, 3 legal protection challenges in cross-border displacement: admission, stay and durable solutions • Absence of international legal framework, emphasis on national law in one region (Americas) • Americas consultation: • Extended focus to situation of aliens in disasters; and • Pointed to examples of ‘humanitarian visas’ (Mexico) and ‘temporary protection’ (USA) as responses • Excellent starting point for study; also highlights commitment of the region to looking seriously at the issue

6. Methodology • Research question: How do States in the region respond to the protection needs of aliens affected by a disaster? • First study to address these questions; research process: (1) Collate and review fragmentary literature describing isolated examples in particular countries to build picture of flows (2) Review national laws, policies and case-law of each State in the region (3) Interviews with national experts on practical examples and real-life implementation (4) Feedback of draft study from Nansen Initiative advisory board • Thank you to interviewees and reviewers!

7. Conceptual development • Conceptual development process over the three months of research • Disasters caused by natural hazards, rule-of-thumb definition • Artificial to limit study to RCM as flows at level of Americas; other States in region might also provide useful comparative examples of law etc. • Quickly see not limited to HV and TP, much wider legal/policy response in not just immigration but also refugee law • Attempt to provide as full and comprehensive a view of how States in the region respond to these challenges

8. Limitations of the study • Limitations of three-month study: • Empirical: no possibility of new data collection on flows etc; all secondary data, little quantitative • Legal: impossible to be expert in national law of all Americas; much policy unwritten or in form of practice; emphasis more on aliens law than disaster law • Response: attempt to triangulate sources, draw on expert advice • Discussion or input on any point that is unclear is welcome!

9. Disaster displacement in Americas

10. Data on cross-border mobility • Studies on cross-border mobility in disaster contexts in Americas few and fragmentary • Observations thus preliminary in nature and based on secondary data – more primary data required, especially quantitative • Concentrate on disasters caused by rapid-onset hazards, as tend to be focus of State responses • However, empirical aspects of disasters caused by slow-onset hazards also addressed in study

11. Displacement trends? • Study suggests that, in Americas, x-border flows after occurrence of a rapid-onset disaster tend to: • Follow established migration routes for that nationality • Follow two broad patterns of movement: • Immediate flows across contiguous land border • Longer-term flows, often towards more distant countries • Note: overlap between two in practice • Appears broadly consistent with movement patterns globally

12. Other impact on aliens • Study confirms rapid-onset disasters also impact on aliens in Americas in other ways • Aliens evacuated to another country, i.e. alongside forced displacement • Aliens affected by a disaster in country where living or transiting • Aliens affected by disaster in country of origin • All shown to attract concern of States; thus, study examines legal responses in all situations

13. Refugee law

14. Law of international protection • Disaster displacement as involuntary, so is refugee law relevant to aliens? • Looks broadly at law of international protection, i.e. • Refugee law strictosensu • Temporary protection law • Human rights law on complementary protection • Some positive practice in region uses refugee law to give humanitarian protection to aliens affected by a disaster on temporary basis

15. International refugee law • 1951 Refugee Convention makes a ‘refugee’ a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country • 1984 Cartagena Declaration defines also as ‘refugees’: persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order

16. Temporary protection • Some States in Americas make provision for TP in national refugee law, but for mass influx • Generally not framed as way to accord lesser status to refugees • Rather, provide humanitarian protection on a temporary basis to broader class of persons • Peru refugee law as example: ‘mass influx in an illegal or irregular manner by persons seeking protection’ • Provisions rarely applied but raise question of whether include mass influx due to disaster

17. Complementary protection (CP) • National laws • In region, many CP provisions focus on torture / harm at hands of humans, poor fit for aliens affected by disasters? • However, other States in region frame non-return on HRL basis not as CP but under State discretion to admit or allow stay on humanitarian grounds (see below) • Further clarity useful here Internat’l human rights law • Most States in Americas bound by HRL treaties that prohibit the removal of an alien to a country where there is a risk of fundamental human rights breach

18. Example – Nicaragua Article 22(8) ACHR: In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.’ Inter-American Court – AO21: 226. … Article 5 of the American Convention… reveals the obligation of the State not to deport, return, expel, extradite, or remove in any other way to another State a person … when there are grounds for believing that they would be in danger of being subjected to torture, or cruel, inhuman or degrading treatment ‘Humanitarian visa’ provision in national migration law of Nicaragua applies: ‘... in conformity with international human rights instruments’ to those persons who ‘suffer violations of their human rights and victims of people-trafficking, in particular women and children’

19. Immigration law

20. Three approaches • Immigration law/policy is tool most used in Americas to provide humanitarian protection to aliens on temporary basis • Three distinct but complementary approaches: 1. Apply regular migration categories, sometimes with a degree of flexibility 2. Apply exceptional migration categories, based on general conditions in country of origin 3. Apply exceptional migration categories, based on individual circumstances (i.e. extent adversely affected by disaster) • Examine each briefly

21. Regular migration categories • Use by States in region of regular migration categories to allow travel, entry, stay - flexible application • Response to disaster but turns on individual’s circumstances, e.g. • CA-4 agreement (admission) • Costa Rica immigration law (stay) • USA and Canada special measures (travel, admission, stay) • Humanitarian response to aliens who likely already had grounds to enter, stay etc. on regular basis • Flexibility based on inherent or specified discretion in imm affairs

22. Example – USCIS special situations Employment Authorization As an academic student, you may need to work off-campus if a disaster has affected your ability to support yourself… you may be eligible to receive employment authorization when filing the Application for Employment Authorization. Abandonment or Failure to Respond to a Request for Evidence If you have not appeared for an interview or submitted evidence, you may show how the disrupting event affected your connection to USCIS and your ability to appear or submit documents as required. Expedited Processing If you need USCIS to consider your request for a service or benefit more quickly, you may make that request when filing or after you file. When requested, the following options may be available to people affected by natural catastrophes and other extreme situations: Extensions & Changes of Status We recognize that when affected by a disaster you may, through no fault of your own, fall out of status. When applying for an extension or change in status due to a disaster, we may consider your request if you show how it is directly connected to the disaster. Fee Waiver If you are unable to pay the fee for a USCIS service or benefit, you may request that your fee be waived for certain forms by filing a Request for Fee Waiver, Form Document Replacement If you have lost your USCIS-issued documents through no fault of your own, you may show your need for replacing the documents.

23. Exceptional - general • Use in region of exceptional migration categories based on general conditions in disaster-affected country • Directed principally to aliens already in host country at time of disaster; tend to take two forms (one or both used): • Regularisation programmes, e.g. after Hurricane Mitch - stay with regular but temporary immigration status • Temporary suspension of removals, e.g. after Haitian earthquake - not stay with regular immigration status • Based on very severe humanitarian situation in country and also solidarity with disaster-affected State

24. Example – Canada TSR Stay of removal order Considerations 230. (1) The Minister may impose a stay on removal orders with respect to a country or a place if the circumstances in that country or place pose a generalized risk to the entire civilian population as a result of (a) an armed conflict within the country or place; (b) an environmental disaster resulting in a substantial temporary disruption of living conditions; or (c) any situation that is temporary and generalized. Cancellation (2) The Minister may cancel the stay if the circumstances referred to in subsection (1) no longer pose a generalized risk to the entire civilian population. Exceptions (3) The stay does not apply to a person who (a) is inadmissible under subsection 34(1) of the Act on security grounds; (b) is inadmissible under subsection 35(1) of the Act on grounds of violating human or international rights; (c) is inadmissible under subsection 36(1) of the Act on grounds of serious criminality or under subsection 36(2) of the Act on grounds of criminality; (d) is inadmissible under subsection 37(1) of the Act on grounds of organized criminality; (e) is a person referred to in section F of Article 1 of the Refugee Convention; or (f) informs the Minister in writing that they consent to their removal to a country or place to which a stay of removal applies.

25. Exceptional - individual • Range of exceptional migration categories in region that allow travel, entry and/or stay on individual basis to aliens particularly affected by disaster • Form: discretion or specifically ‘humanitarian’ provision • Scope: more or less broadly defined • Context: travel, admission and/or stay • Status: regular or exceptional immigration status • Very varied but all based on inherent ‘humanitarian’ discretion towards aliens; exercised on individual circumstances but call for more consistent approach in applying to disaster context

26. Examples – Mexico / Argentina Argentina Stay for ‘humanitarian reasons’ (temporary), including: ‘Persons needing international protection that, although not refugees or asylees… are protected by the Principle of Non-Return [sic.] and cannot regularize their migratory situation through the other [migration law] criteria …’ Stay for ‘humanitarian reasons’ (transitory), including: ‘persons who, despite not requiring international protection, temporarily cannot return to their countries of origin by reason of the prevailing humanitarian conditions or due to the consequences generated by natural or man-made environmental disasters’ Mexico Travel for ‘humanitarian reasons’, including when the alien: ‘finds herself in a situation of danger to her life or integrity owing to violence or a duly accredited natural disaster’ or ‘is victim of a natural catastrophe’ Stay for ‘humanitarian cause’, including when: ‘a risk to the person’s own health or life exists and requires them to remain in the national territory’

27. Beyond travel, admission and stay: Aliens in disaster contexts • Study shows aliens in disaster contexts have special protection needs in the Americas, esp where present irregularly • Equally shows measures adopted by States in response: • No distinction between nationals/ aliens (ir/regular?) in access to humanitarian assistance • Acknowledging challenges in complying with immigration law • Assisting information provision and transmission to/from aliens • Area of potential collaboration between host/origin States

28. Regional organisations

29. Role of regional organisations • In Americas, ROs play a vital role in facilitating adoption of special measures by member States • RCM as self-proclaimed ‘ideal forum’ for attending migratory aspects of disasters, but ad hoc

30. Conclusions

31. Key findings • Study establishes as key points: • Americas are a region where rapid-onset disasters caused by natural hazards produce patterns of x-border displacement and generate other negative impact on aliens • However, a hitherto unrecognised range of national law, policy and practice – beyond just TP and HVs - exists to provide a humanitarian response to these challenges: • Developed at the national rather than international level • Includes the use of both immigration law and refugee law • Based largely on humanitarian discretion of States to aliens • Exists among RCM States and more widely in the Americas • Useful role of regional organisations in promoting measures

32. Key challenges • Study also identifies challenges in addressing issue: • Need for more empirical data and analysis, esp. quantitative, and recognition as specific category in official stats etc. • Utility of consistent guidance to promote a less ad hoc humanitarian response in law/policy to these temporary protection challenges: • Realise potential for resolving certain cases by application of refugee law • Framework for exercise of humanitarian discretion in immigration law to resolve cases of aliens affected by a disaster • Standards of treatment for aliens affected by a disaster for: • Aliens benefitting from application of ‘exceptional’ mig. categories • Aliens living in, or transiting, a country affected by a disaster • Durable solutions for aliens benefitting from measures • Utility of RCM in facilitating coordination/cooperation • Study offers a framework for review/discussion at workshop

33. Thank you for your attention! On to questions and discussion...