Rohingya and Refugee Law in Sri Lanka Rumours spread on social media

BY FAIZER SHAHEID[-2017-09-27

The Rohingya crisis has reached unprecedented proportions and the Rohingya are beginning to flee the country they call home. While Bangladesh and Pakistan have been their most sought destinations for refuge, India, Sri Lanka and other countries too have had a few encounters with the Rohingya. Sri Lanka in particular has received only a very small number of refugees belonging to the Rohingya community, yet the agitations have been aplenty from a re-emerging extremist lot.

Very recently, a group of extremists rallied around Dan Priyasad, who was arrested recently for his open threats to run roughshod on the Muslim population of Sri Lanka. They had gathered to raise a voice to protest any Rohingya refugee entering Sri Lanka.

The Aftermath

Enduring a risk of yet another extremist crisis, the Sri Lankan Government announced that Myanmar Nationals would be refused Visas for the fear of seeking refuge in the country. The Department of Immigration and Emigration later clarified that Visas will be issued to Myanmar Nationals, but not to Rohingya asylum seekers seeking refugee status.

Soon after this, the Ministry of Internal Affairs clarified their stance in respect of refugees. A written statement dated 18 September 2017 issued by the Secretary of Internal Affairs, D. Swarnapala, read that in 2008, the Sri Lankan Navy had rescued 55 Rohingya asylum seekers and handed them to the UNHRC, and that those refugees left Sri Lanka in 2012.

Again in 2012, the Sri Lankan Navy had rescued two boats carrying 138 asylum seekers and 170 asylum seekers respectively, and they too had been handed over to the UNHRC. They had left the country in 2012.

Again on 30 April this year, a further 30 Rohingya asylum seekers had been rescued by the Navy, which included seven women and 17 children. While the statement reads UNHRC in two places and UNHCR in one place, it is believed that Swarnapala had made a mistake in referring to the UNHRC which is the United Nations Human Rights Commission. On all three occasions, the asylum seekers were handed to the UNHCR which is the United Nations High Commission for Refugees.

While the extremists continued to make noise regarding the Rohingya entering Sri Lanka and creating ethnic divisions in the country, Minister of Industry and Commerce, Rishad Bathiudeen complained to the CID that a rumour was being circulated on social media suggesting that he was planning to resettle Rohingya asylum seekers in Sri Lanka. He refuted the allegations and expressed hope that the CID would find the culprits who were spreading such rumours.
Rohingya are they refugees?

The tedious process of receiving asylum seekers was comprehensively covered in my research paper titled, "International Protection of Refugees: A case study of the 2014 Deportation of Pakistani Asylum Seekers in Sri Lanka".

First and foremost, it is important to distinguish between an 'Asylum Seeker' and a 'Refugee'. Refugees represent a portion of migrants throughout the World who are recognized as persons who are escaping persecution. An asylum seeker is the status granted to a person who is pending refugee status determination. They represent two different stages of the same process, and therefore an asylum seeker may not be afforded the same rights as that of a refugee.

The Rohingya that arrived in Sri Lanka can be classified only as asylum seekers until such time the process has been followed to determine their status as refugees.

Domestic mechanisms

While Sri Lanka has received people escaping persecution in the past, Sri Lanka does not have a proper domestic structure to deal with the issue of asylum seekers. Sri Lanka has neither ratified the Convention Relating to the Status of Refugees of 1951 nor its 1967 Protocol. As such, there is no regulation of how asylum seekers ought to be treated when they arrive in the country.

The only piece of legislation in Sri Lankan law that deals with the issue of refugees and asylum seekers is the Immigrants and Emigrants Act of 1949. Part III of the Act discusses how immigration is controlled at the point of entry. This part attempts to impose strict border control policies and prevent persons from illegally entering the country or overstaying their Visas.

Section 28 (2) of the Act empowers the Minister-in-charge to arrest and detain any person who is not a citizen of Sri Lanka if he has overstayed the period allotted in the Visa. Section 31 (1) (iv) (d) also empowers the Minister-in-charge, to deport any person, whom he deems to be relevant, in the public interest.

Therefore, in most instances, the Sri Lankan Government views asylum seekers and refugees as people who had overstayed their visas in Sri Lanka.Being so, Sri Lanka had entered into a Working Agreement with the UNHCR in 1987. The UNHCR was mandated to assist with asylum seekers and refugees, and also extend services to assist with Internally Displaced Persons (IDP).

The problem faced when determining refugee status is that there are many persons who can be classified as economic migrants, who travel from underdeveloped countries to a better developed country. Economic migrants are persons who have left their homes in search of greener pastures, or have fled their countries to escape punishment in law or to escape repayment of massive debts.

Therefore it is important to distinguish between a legitimate asylum seeker and an economic migrant.

There are also issues of migrant smuggling, which has grown to become a massive problem around the World. Persons fleeing their homes pay smugglers enormous sums of money to help them flee to better developed countries. The United Nations Convention against Transnational Organized Crime (UNCTOC) prohibits migrant smuggling, yet it happens.

Escaping persecution

The most likely mode of transport of those escaping persecution in underdeveloped countries is by boat. The asylum seekers leave all their belongings at home, only carrying with them essential food items and water, with the hope that another Government elsewhere would accommodate them. They risk life and limb, and travel only with a glimpse of hope of survival knowing very well that remaining behind will spell imminent doom for them. If their entry is not consented to, they resort to illegal channels of crossing the border and then seek protection from the UNHCR.

However, it is not uncommon for asylum seekers to travel through more opulent channels. Most asylum seekers arrange for Passports and Visas before submitting themselves before the UNHCR. They remain legally within the country until such time the UN can process their applications.

Especially because Sri Lanka is an island nation that shares no border with a different country, most asylum seekers find it much easier to enter the country legally before seeking asylum.

However, the problem for the Rohingya is that they have been rendered stateless within their own country, and are therefore unable to utilize legitimate documents to flee over longer distances using legal mechanisms. They are most often compelled to cross borders illegally, and when they choose to cross the seas, they are most often limited to boats.

Refugee Status Determination

When asylum seekers such as the Rohingya arrive in Sri Lanka, they must register with the UNHCR. It is their only chance of seeking asylum. The Working Agreement signed between Sri Lanka and the UNHCR compels the Government to cooperate with the UNHCR when receiving asylum seekers. The UNHCR thereafter evaluates, investigates and determines if the asylum seeker or group of asylum seekers prove a legitimate case to deserve refugee status. This is done through a process known as Refugee Status Determination (RSD).

RSD is a tedious process where each application is thoroughly scrutinized and verified. The UNHCR adopts all of the core standards and practices, particularly the Procedural Standards for RSD as mandated by the UNHCR. There can be delays due to the recent rise in the number of applications for refugee status in Sri Lanka following the conclusion of the war. Therefore, until the process is complete, the Government accommodates them in the Boossa Immigration Detention Centre or the Mirihana Immigration Detention Centre.

If the application for asylum is found to be flawed, refugee status would not be granted. In such circumstances, the asylum seeker would possess the right of appeal and have the case reconsidered. However, if the process fails again, the individual would no longer be an asylum seeker under the purview of the UNHCR and cease to be of concern to them. They can be repatriated thereafter at the discretion of the Government.

Under the Working Agreement, the UNHCR is required to inform the Government of every step that has been taken regarding each of the refugees. For the purpose of identification, the UNHCR would grant such asylum seekers necessary identification cards and certifications.
After refugee status

Once an asylum seeker has been recognized as a refugee, the Sri Lankan Government entitles them to certain rights. Refugees in Sri Lanka are entitled to healthcare rights and schooling for children. The adults are also provided vocational training and other English language courses in order to enable them to communicate in a language familiar to Sri Lankans.

However, refugees are prohibited from working in Sri Lanka and therefore have no means of an income. They must depend on foreign donors and welfare organizations in order to survive.

Under the Working Agreement, the Sri Lankan Government enables the UNHCR to accommodate up to 2000 refugees each year.

This is very nominal in comparison to the number of refugees being accommodated in other countries.Particularly the Middle Eastern countries which host almost half the World's refugee population. For example, Jordan hosts over 2.7 million refugees, while Turkey hosts over 2.5 million refugees. Pakistan and Lebanon also host over a million refugees.

Once the asylum seekers have attained refugee status, they are entitled to three options:

They can choose to be repatriated.

They can integrate into the Sri Lankan society temporarily.

They can request to be resettled in a different country.

The Sri Lankan Government does not permit refugees to reside in Sri Lanka, permanently, and there is insufficient legislation to permit proper integration. Therefore, the refugees will have to move out eventually, or the Government will eventually take measures to remove them from the country.

The refugees are therefore only left with two options, of which, the first option is usually refused outright by the refugees.

Repatriation must only happen with the discretion of the refugee. Forced repatriation to their home countries will result in a violation of Customary International Law under the concept of 'non-refoulement'.

Therefore, the only available option is to relocate the refugees in a third country. Negotiating a process of resettlement is performed by the UNHCR, and until such time, the Sri Lankan Government will provide accommodation, protection and grant adequate access for refugees to acquire their essential needs.

Will the Rohingya be a threat?

These procedural limitations ensure that the refugee population in the country is always going to be a bare minimal. They will not have the right to become citizens in the country, and they would not be capable of surviving in the country for long without the right to work. Therefore, it is almost impossible for the Rohingya to pose a threat in Sri Lanka.

The only way the Rohingya can become citizens of Sri Lanka is by marrying the locals. However, this is a longshot considering that they will have plenty of problems communicating, and even bigger problems providing for their Sri Lankan families. Even if they do, it may take centuries before the Rohingya could build a big enough community to pose a threat.

Conclusion

It is therefore quite evident that extremist forces are merely attempting to stir racism and instigate communal violence once again among the peaceful people of Sri Lanka. They keep drawing the names of politicians in the hope of inciting any small act that can be used as an excuse to create communal disharmony, and even riots similar to the Aluthgama riots in 2014.

The Rohingya do not, and will not pose a threat even if they are accepted as refugees into the country. They are merely seeking temporary shelter and food with the hope they can survive another day with their families without being torched and raped by the violent forces in Myanmar. It is therefore my belief, that Sri Lanka being among the most generous and hospitable people in the World should accommodate the Rohingya and feed them, whenever the opportunity is presented, until such time they can be relocated.

(The writer is a Political Analyst and an independent researcher of laws. He holds a postgraduate degree in the field of Human Rights and Democratization from the University of Colombo and an undergraduate degree in Law from the University of Northumbria, United Kingdom)
(faizer@live.com)