Blog post written by Ishita Kumar and Nayantara Raja. Both work as Senior Legal Consultants for the Migration & Asylum Project (M.A.P.), India’s only centre for refugee law and forced migration studies. Both Ishita and Nayantara worked closely with the Chin refugee community in India to provide legal representation to Chins during the cessation process. *
“When I see pictures of the Burmese army on Facebook posts or news reports, I get palpitations. I was forced to do porter service for the army; once, I saw them shoot one of my friends because he could not carry the heavy bags. That same night, when we stopped at a village to rest, I was raped by a soldier with a knife held to my throat. I cannot go back and risk facing them again.”
Nun Lem’s[*]fear of returning to Myanmar is echoed by the entire community of 3,000 Chin refugees residing[†]in India, most of whom fled their home country due to the severe oppression and persecution inflicted upon them by the Tatmadaw, the Burmese military that ruled the country until 2010. Between 1988 and 2014, ethnic Chins fled Myanmar to seek refuge in other countries, including India and Malaysia. While the vast majority have been resettled since then to third countries including Australia, the United States and Canada, there remain around 35,000 Chin refugees on the official record of UNHCR, the UN Refugee Agency mandated to offer protection to this population in India and Malaysia.
In the absence of any domestic or applicable international legal framework to protect them, refugees recognized by UNHCR in the two countries mentioned above are offered some protection against deportation. However, in the last ten months, the fear of returning to Myanmar had gripped them again. In June 2018, the UNHCR sent a message to the Chin communities in Malaysia and India, stating that, based on an analysis of the security and political conditions in Chin State and Sagaing Division, the Agency had deemed that the situation was stable for the ethnic Chins to return and that their refugee status was to end on December 31, 2019. To this effect, UNHCR had commenced legal procedures to reassess refugee status for individual refugees.
With sustained advocacy by the Chin community and civil society organizations on the fact that the so-called changes in Chin State were too recent and had not been proved durable or sustainable, as well as the recent deterioration of security conditions in Chin State, the policy was finally rolled back on March 14, 2019.
Looking at the manner in which this policy was executed and retracted, it is important to reflect on the legal grounds that allowed for it to be challenged and more broadly, to understand the need to hold UN agencies to account in case of premature repatriation policies, given the seriousness of the ramifications involved in such scenarios – not to mention the costs and human resource it takes for implementing such a decision.
The Chins who are widely repressed and persecuted by the Buddhist ruling majority in Myanmar, reside with severely limited rights in India. The UNHCR-issued refugee card does not grant the Chin refugees the right to work, access higher education or open bank accounts, which has relegated them to the margins and forced them to take daily-wage jobs in the informal sector as factory-workers or cleaners. Despite living against all odds, returning to Myanmar is inconceivable to the Chins given the trauma associated with their past experience and the lack of safe conditions guaranteed; against this background, the policy decision to end refugee status for ethnic Chins put the community in fear of being displaced and deprived of an identity yet again. The policy caused panic and outrage amongst the community, given that there is no positive news on the security situation.
As Francis (56) says,
“There is an election scheduled for 2020, what if the military come to power? Right now, they control 25% of the Parliament..Where is the letter or invitation from the Military or the Government welcoming us to return and guaranteeing our safety? I asked UNHCR this during my Option interview, and they did not have an answer.”
Moreover, recent reports consistently indicate continuing discrimination against Chins on various fronts, including discriminatory land laws and lack of access to basic public services.
As part of the policy, each Chin family was called upon by UNHCR for a notification interview and asked to choose between two options – either challenge the UNHCR’s decision, which would mean they would then undergo an interview to prove exceptional circumstances to be able to retain their status; or accept the decision and retain their status until the end of 2019, but return to Myanmar thereafter. Refugees were informed that the threshold to establish a need for continued protection is extremely high and that their claim would likely not be successful, thereby leading to the end of their refugee status even prior to the end of 2019 deadline. Despite such risk of losing their status sooner, the vast majority – more than 99% of the families in India – chose to challenge the policy.
Even technically, on legal grounds, the policy did not hold much water. Though its language was that of a repatriation policy, it envisaged circumstances under Article 1 C (5) of the 1951 Refugee Convention, thereby amounting to cessation of refugee status. According to the UNHCR’s own Cessation Guidelines, it is necessary to determine whether the change in circumstances in the country of origin is ‘of a fundamental nature’. Thus, transition of states from conflict or refugee-inducing situations to a stable government should be given time to crystallize before a policy of cessation is implemented. The Guidelines also state that a situation of partial cessation should not arise, where it is safe for refugees to return only to a certain part of the country. While Myanmar has transitioned towards a State with a democratically elected government, the country continues to be riddled with ethnic conflicts – it is impossible to disregard the genocide that has been perpetrated against the Rohingyas in Rakhine State, which shares a border with Chin State. Closer home, recent clashes between the Tatmadawand Arakan Army have resulted in casualties and displacement in the southern Chin State town of Paletwa. The Guidelines state that where the particular circumstances leading to flight have changed, only to be replaced by different circumstances which may also give rise to refugee-related fear, this cessation clause can clearly not be invoked.
Further, the announcement for end of refugee status also came as a surprise. The Guidelines state that refugees and civil society need to be actively consulted in arriving at such a decision, and that UNHCR should facilitate “Go-and-See” visits so that refugees themselves can evaluate if the situation in the home country is safe for return. While UNHCR announced a Go-and-See visit subsequent to the announcement of the policy, this visit never materialised. Additionally, there are several other considerations when it comes to repatriation, such as, whether refugees have the necessary skills and know-how to assimilate upon return, the situation of elderly refugees with no support system in the home country, persons with disabilities and their ability to access facilities, those who have faced extreme and severe trauma, and many more. Thus, the potential consequences of withdrawing international protection prematurely can be harmful and in violation of the right to a safe and dignified life.
While the policy has now been rolled back and Chins in Malaysia and India have retained their refugee status in these countries, this short-lived change in policy has already had repercussions on the community.
Community leader Sung Kim Daw (33) states,
“I have seen the effect this policy has had on the people. A lot of them started falling into depression and having suicidal thoughts. In fact, in Malaysia there were instances of people dying by suicide. You have seen us over the last 10 months, you know what it has been like for us to go through this process. Now that it’s over, you can see the difference on our faces!”
Going forward, this aborted attempt at hastening to divest a vulnerable community of its already-tenuous legal protections holds many lessons for those of us who work with refugee communities. For one, it is imperative that the UNHCR and the international community as a whole insists on the development of genuine respect for human rights and democracy in a country of origin before repatriationis offered for the Chins or any other refugee group; otherwise, repatriationwill merely be an euphemism for refoulement. Even in past situations where cessation has been invoked, the UNHCR engaged with host country governments and facilitated “go-and-see visits” to ensure safe and dignified return. Despite this, refugees have often refused to return as they continue to fear what may happen to them; thus, room has to be allowed for these refugees to remain in their adopted countries without being penalised for having made that choice. Voluntary repatriation as a durable solution must work in tandem with mechanisms of transitional justice. The nuances and complexities of refugee repatriation should therefore be carefully considered in order to ensure that UNHCR-led end of refugee status proceedings are harmonized with its Guidelines for Voluntary Repatriation, and situations of statelessness or refoulementare avoided.
[*]All names have been changed to protect the refugees’ identity.
[†]This number reflects the Chin population registered with UNHCR India.
* Ishita provides specialized assistance to clients who have faced gender-based violence. She also conducts outreach activities with refugee women and assists in strategic litigation. Nayantara provides legal assistance to clients who are survivors of torture and other forms of persecution and works on strategic litigation efforts.
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