Following the macabre course of events taken place on Easter Sunday (21) in Sri Lanka, the refugees in Sri Lanka who are fleeing persecution are being harassed and asked to leave the places where they have been staying. Several of them have gone to the Police station in Negombo to seek help.
It is stated that the Catholic church and some Buddhist priests have been asking the President for the refugees to be sent back to their countries of origin. This would be a violation of international customary law. Besides, the refugees pose no threat to national security. They are in fact fleeing extremist Islamic persecution to save their lives.
The office of the United Nations High Commissioner for Refugees (UNHCR) has been operating in Sri Lanka since 1987. As per the mandate of UNHCR, it is bound to provide international protection and humanitarian assistance to refugees, asylum seekers and IDPs. An Asylum-seeker is someone who says he or she is a refugee, but whose claim has not yet been definitively evaluated. A refugee is someone “who owing to a 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 to, or owing to such fear, is unwilling to avail himself of the protection of that country”.
Under its mandate, UNHCR decides which asylum-seekers in Sri Lanka qualify for international protection and should be granted refugee status.
Sri Lanka is not a State Party to the 1951 Convention relating to the Status of Refugees. State Parties to the Convention are required to provide “most favoured” or “national treatment” to refugees under various sectors in providing humanitarian facilities (i.e. housing, education, social security etc.). However, Sri Lanka has signed an Agreement with the UNHCR on 7th December 2005 facilitating UNHCR (within its mandate) to carry out its international protection and humanitarian functions in Sri Lanka.
The Status of the asylum seekers and refugees in Sri Lanka
The UNHCR shares a Monthly Report on ‘Refugees and Asylum Seekers in Sri Lanka” with the Ministry of Foreign Affairs, and other relevant line Ministries. The Report contains inter alia, a list of detailed information and statistics on all refugees and asylum seekers in the country as at the end of each respective month. Whenever the UNHCR Country office registers Asylum Seekers, their information is conveyed to the Controller General of the Department of Immigration and Emigration with copies to the Ministry of Foreign Affairs.
The Ministry of Foreign Affairs, upon receiving the copies of such notifications, shares the same with the Ministry of Defence and Department of Law and Order (previously it used to share with the Ministry of Defence and with the Ministry of Law & Order). UNHCR, as per requirements, requests GOSL to inform UNHCR of any objections to the Asylum claims submitted by applicants, within 15 days of receiving notification from UNHCR.
In addition, the UN Division of the Ministry, from time to time, convene stakeholder meetings between the relevant authorities/officials from the Department of Immigration and Emigration and UNHCR and other departments as required, to discuss issues that require attention. For example, in July 2017, a meeting was facilitated between the Department of Immigration and Emigration and UNHCR in order to develop a digital database of asylum seekers and refugees, where UNHCR agreed to provide necessary technical assistance, and to share the digital database they already use with the GoSL. This was done. At any given time, the UNHCR is aware of where asylum seekers and refugees reside, and the database is shared with the Government.
Remaining in Sri Lanka as a recognized refugee is not permitted. Therefore, upon recognition as a refugee, UNHCR makes all efforts to submit an individual’s case to another country, where, if accepted, he or she can reside permanently. In addition to the UNHCR resettlement process, refugees and asylum-seekers depart to Canada under the Canadian Private Sponsorship of Refugees Programme.
According to Article 38 of the Statute of the International Court of Justice (ICJ), the Court is required to apply, inter alia, international custom as evidence of a general practice accepted as Law. It is considered that the principle of “non-refoulement” satisfies this requirement and constitutes a rule of international customary law. This principle which constitutes an essential component of asylum and international refugee protection requires that a State may not oblige a person to return to a territory where he may be exposed to persecution – i.e., as per Article 33 paragraph 1 of the 1951 UN Refugee Convention, “where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
Sri Lanka is bound to honour this principle, and since the purpose of the principle is to ensure that refugees are protected against such forcible return, it applies both to persons within a State’s territory and to rejection at its borders.
When the refugee application of an asylum seeker is rejected, UNHCR informs the Government, and a person whose application is rejected is given a period of two weeks to leave the country. This process takes place smoothly.
What they need now!
As at April 29, 2019, following the Easter crisis, the requirements of the refugees in Sri Lanka were as follows:
(a) Water/sanitation for the 160 individuals at the Police Station in Negombo as there are only two toilets for all asylum seekers and refugees + the police at the moment
(b) Immediately move the 160 individuals in the Negombo Police Station to a secure location
(c) Facilitate medical doctors to visit the three (03) locations where asylum seekers/refugees are presently housed - that is - Ahamdi Community Centre in Pasyala (500 individuals), Ahamdi mosque Negombo (370 individuals), Negombo Police Station (160 individuals)
(f) Colouring books and crayons to keep the children occupied