Wednesday, July 10, 2013

Refugee Law in Ecuador

Now that I have been working with the NGO for a few weeks here in Quito and developing a client base, now might be a good time to do a post about the refugee system here and a few of my observations so far.  The first thing to note is that it is pretty crazy.  Ecuador has really lax visa laws to get into the country, but once you are here (and especially if you are a refugee), it is really hard to stay legally.  Because Ecuador borders Colombia, the vast majority of those applying for refugee status are Colombian, but due to the lax entry requirements, I have clients from literally all over the world, fleeing a whole host of really serious, scary situations.

Refugees only have 15 days from the time they enter Ecuador to apply for refugee status (this is generous considering that Ecuador only allows 3 days for appeals).  According to Ecuadorian refugee and administrative law, it is supposed to be 15 business days from the day they arrive and you start counting on the next day, but in practice, the Direccion de Refugio counts 15 calendar days.  Which means that the time frame to apply, assuming the person fleeing for their life a) knows about their right to apply for asylum and b) knows they only have a certain timeframe in which to do so, is even shorter than it is legally supposed to be.  The timeframe is also a huge challenge, both for original petitions and for appeals, because many people do not live in Quito or in an area where they are physically or financially able to travel to a DR branch to apply for status or submit their appeal.

This leads to a lot of cases where applicants for refugee status are denied right away because they passed the 15 day timeframe.  The next step is to appeal (they can appeal twice - once through an apelacion and once through a recurso de reposicion; there is also a third recurso extrodinaro, but the only cases that have a chance of succeeding with this are the really, really extreme cases).  I am not really sure how successful the appeals are at actually getting people refugee status - sometimes they just get denied again so then the person has to find another means of staying in Ecuador legally (usually a work visa or a visa through a blood relative that has Ecuadorian citizenship), and sometimes the applicant actually gets the solicitante status, meaning that his or her case will be considered for refugee status.

The decisions regarding refugee status are supposed to be made within 4 months (5 at the most).  This usually does not happen.  Usually, people will go back to the DR to check on their case and they just get the solicitante status for longer.  A lot of people end up waiting years to hear about a decision in their case. This is problematic because they start building a life here in Ecuador while waiting, but if their case gets denied, then they only have 15 days to get their affairs in order and leave the country.

If they are really a refugee, then they can't go back to their old country, so many end up staying illegally, which makes it even harder to find work and they live in constant fear of imprisonment and deportation.  According to international legal norms and the 1951 Convention Relating to the Status of Refugees, a country cannot send a person to a country where he or she will be persecuted, but if the Ecuadorian government does not recognize the person as a refugee, there is a change that the individual could be deported back to his or her country of origin from which they fled and could be in real danger.

Being a solicitante is also hard because there is also a lot of discrimination based on national origin.  Solicitantes and Recognized Refugees are supposed to have the same rights as Ecuadorian citizens but are often the victims of discrimination, especially when it comes to their children in school and obtaining legal employment.  Clients have been told that employers don't want to hire them because they are refugees or refugees from a certain country.  Children also face problems, including violence and bullying, in school at the hands of other students and faculty and staff.  In Ecuador, you need a lot of different documents notarized to apply for a whole range of things, which gets really expensive for people.  Notaries know this and take advantage of people in migratory situations, especially refugees, applicants, and those with irregular (illegal) immigration status.

According to article 177 of ERJAFE (Ecuador's major administrative law), if an applicant does not hear back from the administrative agency in two months, it is considered a default judgment in the applicant's favor.  In this case, if the person applying for refugee status does not receive an answer in their case from the DR within two months after the 5 month timeframe (so seven months of waiting total), then the administrative silence should be interpreted as granting refugee status to the applicant.  However, this legal right is non-existent in practice.  If it were actually followed, there would be a ton of people getting refugee status, but instead people are kept waiting in limbo for years.

Even if a person is successful in getting refugee status, it is granted as a visa valid for only 2 years.  Every two years, the visa is reviewed again and the Ministry and DR reconsider whether they think the person should be a refugee.  Recently, many Colombian males between 18 and 26 years of age have found out that their refugee status was revoked when they went to renew their visas.  Even people who are recognized refugees often opt to change their type of visa to something that will be more secure if they are fortunate enough to be able to do so.  For example, those with Ecuadorian children, silblings, or partners are able to apply for a visa de amparo based on their relative's Ecuadorian nationality.  This visa lasts for the duration of the applicant's passport - so if you were to apply when your passport is brand new, your visa de amparo would last for about 10 years instead of having to renew their visa and ID card every two years.

In addition to these problems, article 76(7)(L) of Ecuador's most recent constitution (number 19, from 2008, with over 400 articles) requires that decisions granting or denying status be explained.  Often, clients will get rejections of status for minor things from interviews, like "applicant failed to name group persecuting him so not credible story" or "applicant is denied because failed to file within 15 day timeframe," and the decisions do not adequately explain why the person was rejected for a legitimate reason.  Decision-makers also do some pretty crazy things in interviews, like fail to provide translators in the applicant's native language or conduct 3 or 4 hour interviews on the day the person arrives and then deny the individual status because he or she missed one date or name or place during the entire interview.

Another really important point about the Ecuadorian refugee system is that up until May 30th, 2012, Ecuador used a much broader definition of what constitutes a refugee.  Instead of using the 1951 definition, Ecuador and other Latin American states used the Cartagena definition.  See how the two compare:

First, the 1951 definition from the Convention on the Status of Refugees:
...Owing to wellfounded 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
...In view of the experience gained from the massive flows of refugees in the Central American area, it is necessary to consider enlarging the concept of a refugee, bearing in mind, as far as appropriate and in the light of the situation prevailing in the region, the precedent of the OAU Convention (article 1, paragraph 2) and the doctrine employed in the reports of the Inter-American Commission on Human Rights. Hence the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among 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.
On May 30th, 2012, that changed with the publication of Decreto 1182.  D.1182 re-established solely the 1951 definition and eliminated the Cartagena Definition from Ecuador's refugee process.  Because of this, it has become much more difficult for people fleeing some pretty serious situations that would be recognized under the Cartagena Definition to get the same rights and recognition as a refugee under the narrower 1951 definition.  This means that a lot of people try to fall into "particular social group," but this is  often not recognized.  This affects a lot of Colombian applicants in particular.

These are just some initial observations after the first few weeks working with clients.  It is difficult because so many have such difficult, dangerous situations, but there are so many points in the process for them to get denied status that could give them much-needed protection.  Sometimes, hearing their stories about how they were persecuted relentlessly in their home country and how they came here but now cannot get help from either the Ecuadorian government or UNHCR, can be very emotionally draining. And with the complicated process designed and implemented to be tough for people applying for protected refugee status, it is really difficult to have a client sitting in front of you asking you for help and having to tell them that this is all you can do and that they have to find other ways to avoid being sent back to a place where their lives and those of their family could be in very real danger.  And it's not like Quito is a safe place to live or raise a family, so the fact that they fled here should be telling.  I guess I hope that whatever I write for people or however I can make the process a little easier to understand and navigate will result in people being able to improve their situations - the gratitude that the clients have for the little that we are able to do is truly humbling.



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