- Sri Lanka not a signatory to the relevant international convention
The Rohingya asylum seekers who arrived in Sri Lanka on 19 December will not have the privilege of naturalising as Sri Lankans, according to Minister of Public Security Ananda Wijepala.
“Sri Lanka is not a party to the international Convention Relating to the Status of Refugees nor its Protocol, and therefore Sri Lanka shall have no responsibility to accommodate the refugees who have arrived,” he said.
On 19 December, a vessel transporting 114 Myanmar nationals comprising 102 civilians, of which 30 were women and 15 were children, and 12 crew members, arrived in Sri Lanka. They were apprehended by the Sri Lanka Navy and handed over to the District Secretary of Trincomalee and the Police for further application of the law.
The Minister revealed that 12 among them had been produced before the court for further adjudication.
When asked if they were remanded or arrested, Wijepala asserted that they were being housed in Welisara. “We have provided them with a safe abode in Welisara and we continue to serve them food and lodging on humanitarian grounds. However, we are in contact with the Myanmar Government and have taken precautionary measures,” he said.
He noted that while matters of public security were under his purview, owing to the international nature of the case, the Foreign Ministry was also involved in handling the case. “We have to be strict about adherence to the law and immigration law is applicable in this case,” he said.
Legal aspects of hosting refugees
Ministry of Foreign Affairs South Asia and SAARC Director General Niluka Kadurugamuwa said that Sri Lanka had no responsibility to host these refugees under international law. He noted that it was possible that some of them could be deported, but that repatriation without investigation would be a violation of customary international law.
However, Attorney-at-Law and Sri Lanka Reconciliation Movement Head of Strategy Nahdiya Nasoordeen explained that although Sri Lanka was not a signatory to the Convention Relating to the Status of Refugees, it still had responsibilities under customary international law.
“To seek refugee status in another country under the convention, the asylum seeker must have been persecuted. If it can be established that they have been persecuted, then they cannot be repatriated to their home country where their lives would be at risk as it would be a violation of the customary international law of non-refoulement,” she said.
Attorney-at-Law M.A.M Hakeem further explained that Sri Lanka, although not a party to the United Nations (UN) Convention Relating to the Status of Refugees, still held responsibilities to host refugees through a working agreement with the UN High Commission for Refugees (UNHCR).
“The doctrine of non-refoulement is not only a principle of customary international law, but also a principle entrenched in the working agreement with the UNHCR. The UNHCR functions in Sri Lanka through this agreement,” he said.
The principle of non-refoulement is not only recognised by customary international law, but also through Article 3 of the Convention Against Torture (CAT), which Sri Lanka has ratified. Furthermore, matters pertaining to children who have sought asylum in a third country out of fear of persecution are also covered by the working agreement of the UNHCR.
International conventions and guidelines
The UNHCR issued the ‘Guidelines on International Protection No.8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees’ in 2009.
The guidelines were prepared to guide governments, law practitioners, and the judiciary in assessing the cases of child asylum seekers. It covered the rights of all types of children including those who were accompanied, unaccompanied, or separated.
The guidelines too, as in Article 1 of the Convention on the Rights of the Child (CRC), defined the age of a child as one below the age of 18 years. It articulates that a modern day understanding of how a child faces persecution embodies many types of human rights violations.
Article 22 of the CRC states that children have the right to special protection and assistance if they are either asylum seekers or refugees.
It reads: “States parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present convention and in other international human rights or humanitarian instruments to which the said states are parties.”
Sri Lanka, being party to both the CAT and the CRC, is therefore not only bound by customary international law and the working agreement of the UNHCR, but also by the obligations the country has signed.
UNHCR process
Kadurugamuwa explained that the Foreign Ministry monitored such events seriously and complied with its responsibilities under international law.
When questioned regarding the statement made by Public Security Minister Wijepala that the Government was communicating with the Myanmar Government regarding the recent events, Kadurugamuwa said that it was likely in order to obtain more information on the persons who had arrived.
He said that a team from the UNHCR had paid a visit and that immigration authorities would be working closely with them to ensure the safety of the refugees until they could be relocated.
Once the asylum seekers have been handed over to the UNHCR, the organisation undertakes a process known as the Refugee Status Determination (RSD). Nasoordeen explained that this process determined an applicant’s eligibility to be recognised as a refugee.
According to recent reports by the United Nations Development Programme (UNDP), Sri Lanka hosts approximately 844 refugees and 826 asylum seekers awaiting the determination of their claims. Attempts to verify this number with the Ministry of Foreign Affairs, Ministry of Public Security, and the Controller General of the Department of Immigration and Emigration proved futile.
The UNHCR website outlines that asylum seekers in Sri Lanka must register with the UNHCR to initiate the process of seeking international protection. Registration involves recording personal bio-data, travel routes, and reasons for seeking asylum, along with capturing photographs for identification purposes.
To obtain a registration appointment, individuals are advised to visit the UNHCR office and upon arrival, they should complete a ‘New Arrival Information Sheet’ available at the gate and submit it along with their passport, if available.
Following registration, the UNHCR conducts the RSD to assess eligibility for refugee status. This process evaluates whether the applicant meets the criteria for refugee status under international law, considering factors such as persecution risks in the home country. The RSD process can take between one-and-a-half to two years, according to the website.
Given Sri Lanka’s non-signatory status to the Convention Relating to the Status of Refugees, asylum seekers and refugees lack official legal status in the country. Consequently, they are unable to engage in formal employment during their stay. To support their basic needs, the UNHCR provides a living allowance to recognised refugees. Asylum seekers, however, often rely on Non-Governmental Organisations (NGOs) and support from family members to meet their daily necessities.
Educational opportunities for children of asylum seekers and refugees are limited. While primary education is accessible to refugee children, those under five and over 12 years old often lack formal schooling options. Asylum seekers depend on charitable organisations and individual benefactors to facilitate learning opportunities for their children, highlighting a significant gap in educational access, the UNDP report specifies.
In situations where asylum seekers face detention due to immigration violations, the UNHCR may intervene to provide legal assistance and advocate for their release. Asylum seekers are encouraged to contact the UNHCR promptly if detained, ensuring they receive appropriate support and protection during legal proceedings.