This past Wednesday, June 20, marked World Refugee Day – a day in which we recognized the millions of refugees who have fled their countries due to wars or internal conflict, leaving behind their homes, families, work, and friends in hopes of a life free from persecution. This day also presented an opportunity to take a closer look at the protection of refugees around the world – particularly as the majority reside in countries in the Global South, which provide few to none of the rights guaranteed to refugees under international law.
In Ecuador, refugees face dire challenges in accessing protection despite the fact that many government officials and practitioners in the field have looked to this country as a model of refugee protection. Ecuador is one of the smallest and poorest countries in South America, but hosts the largest refugee population on the continent. As of January 2012 there were approximately 60,000 recognized refugees and 50,000 registered asylum seekers in the country, though numbers are likely to be far greater due to under-registration. The large majority – more than 98.5 percent – are of Colombian origin. The internal armed conflict in Colombia, which involves gang warfare, paramilitary forces, narcotraffickers, and the dispossession of land, has displaced millions.
At the 13th session of the United Nations Human Rights Council’s Universal Periodic Review held in May, several members of the international community commended Ecuador for its recent refugee efforts, including the Enhanced Registration Process (ERP). Ecuador’s international recognition is even more notable within the context of Latin America, a region that has been an innovator in refugee law.
Challenges to Refugee Protection in Ecuador
In practice, however, Ecuador’s refugee policies have a darker side. Liberal, humanistic laws related to refugees written in the constitution often fail to be implemented in reality. Widespread discrimination and xenophobia against refugees shape decision makers’ perspectives and frequently influence them to seek loopholes to legal protective mechanisms. The ERP has been suspended and the status of the tens of thousands of refugees who gained recognition under it may soon be revoked. Additionally, recently passed restrictive policies have exacerbated the already significant gaps to refugee protection in Ecuador.
Accelerated Procedures
Most saliently, accelerated procedures, a practice multiple Latin American states have adopted with the intention to deal with unfounded claims, have been used in Ecuador to unjustly exclude many asylum seekers from the refugee status determination (RSD) process. The procedure adds a new stage of admissibility in the RSD process, making it even more difficult for asylum seekers to maneuver. The additional criteria in the accelerated procedure stage has been inappropriately and widely interpreted by officials, resulting in a significant reduction in the acceptance rate of asylum seekers in Ecuador: According to the country’s Refugee Directorate, around 30 percent of cases are declared inadmissible and the recognition rate has decreased from 74 percent in 2009 to a mere 24 percent in September 2011. Additionally, implementation of accelerated procedures has occurred without application of the minimum international legal requirements of fair and due process established by the United Nations High Commissioner for Refugees (UNHCR).
Decreto 1182
Another form of Ecuador’s restrictive policies toward refugees involves Decreto 1182, a new decree that has replaced the previous policies regarding the RSD process. Asylum seekers now have 15 business days to apply for status in Ecuador after entering the country. This time frame is often problematic as many who cross the border do not initially identify themselves as refugees or demand their rights due to fear, lack of information about refugee law and the RSD process, urgent health issues, and life-threatening circumstances.
Under this new national law, the time in which asylum seekers may appeal RSD rejections will also be greatly reduced. In Ecuador, asylum seekers are frequently rejected because of arbitrary reasons, discrimination against Colombians, and weak (or complete lack of) country of origin research used to substantiate decisions. Previously, asylum seekers were allotted 30 business days to appeal (though an average of 15 in practice). Now, an asylum seeker who is denied has only five business days to submit an appeal and an asylum seeker who was excluded from applying in the first place is allowed just three business days. Given that it takes an average of three business days to obtain an applicant’s file from the Refugee Directorate (required for the appeal process), the new time frame is difficult if not impossible to meet.
Decreto 1182 also no longer includes the 1984 Cartagena Declaration on Refugees, which for decades has provided a more expansive refugee definition in Ecuador than that of the 1951 Convention and Protocol Relating to the Status of Refugees, the principle covenant of refugee law. Through Cartagena, many Colombians and others displaced by mass violence were previously able to gain asylum in the country, making its recent removal from Ecuadorian legislation a great loss for the region’s treatment of refugees.
In addition, the new decree has a provision which allows for the rejection of applications that are considered ilegitimas, or illegitimate, which will likely be interpreted to reject asylum seekers who have committed minor offenses in Ecuadorian territory. The ilegitimas provision violates the 1951 Refugee Convention, which explicitly states that only very serious crimes or crimes under specific and aggravating circumstances justify proscribing an asylum seeker from international protection.
Documentation, Deportation, and Detention
Without the basic safeguards to asylum such as a complete interview, the real possibility to appeal rejections, and the provision of a different individual to decide an asylum seeker’s RSD outcome than the one who initially conducted his or her interview, asylum seekers in Ecuador are often unable to access the refugee rights system in a fair and efficient way. As a result, many of Ecuador’s policies have contributed to the lack of documentation for, detention, and deportation of numerous asylum seekers deserving of refugee status.
Police often do not honor the certificates that asylum seekers receive during the process of soliciting status or appealing rejections; they regularly ignore or destroy their paperwork, and detain such individuals. Such practices oftentimes mean the lack of meaningful documentation for asylum seekers in Ecuador, which is in violation of Article 27 of the 1951 Convention. Detention of asylum seekers soliciting refugee status occurs despite the fact that Article 41 of the Ecuadorian Constitution states “persons requesting asylum or sanctuary shall not be penalized or prosecuted for having entered the country or for remaining in a situation of irregularity.”
Notably, deportation of asylum seekers frequently violates the key principle of non-refoulement, the cornerstone of international asylum and refugee law that prohibits States from forcibly returning a person to a territory where he or she may be exposed to persecution. In addition, asylum seekers who are given orders to be deported are sometimes indefinitely detained, for three months or longer.
Employment Discrimination
As a consequence of the difficulty of obtaining refugee status, refugees face grave risks to employment discrimination. Thousands of undocumented individuals are unable to obtain employment permits and thus cannot rebuild their lives, develop livelihoods, care for their families, and survive in Ecuador. For those who do obtain status and acquire working permits, many still cannot gain employment due to discrimination.
Lack of Access at the Border
At the border and in Ecuador’s remote provinces, where a large number of refugees are concentrated and Refugee Directorate offices do not exist, there is complete lack of access to the RSD process. In the town of San Lorenzo, near the Colombian border, asylum seekers face high costs of transportation, need several appointments in faraway towns to complete asylum applications, and risk being detained in the absence of documentation. Refugees in these areas are subject to violence as a result of the presence of Colombian armed groups as well as at risk of being forced into involuntary labor situations with extremely poor conditions at nearby palm plantations.
Gender-Based Violence and Human Trafficking
Women represent a particularly threatened group of refugees in Ecuador. The Ecuadorian government has recently drastically reduced the recognition of gender-based violence as grounds for seeking refugee status, which is in contradiction with international jurisprudence as well as Ecuador’s own legal obligations. Widespread gender-based violence in Colombia leads many women to flee to Ecuador, and once in Ecuador many women are re-victimized in the RSD process. Article 78 of the Ecuadorian Constitution guarantees freedom from this type of re-victimization, but once again, the reality on the ground trumps statutory law.
Ecuador is also a source, transit, and destination country for human trafficking and the Ecuadorian men and women who are victims of human trafficking represent an especially vulnerable and invisible group. Many have real refugee claims, but the government rarely considers trafficking as a form of persecution.
As this evidence suggests, there is much room for the growth of refugee protection in Ecuador. Without a willingness on the part of the government to end its recent adoption of restrictive policies towards refugees; to address discrimination by frontline decision makers in the RSD process; and to comply with obligations under international refugee and human rights law, as well as its own domestic legal requirements, Ecuador’s international recognition as a leader in refugee protection may soon fade.
Established in 1995, the Georgetown Public Policy Review is the McCourt School of Public Policy’s nonpartisan, graduate student-run publication. Our mission is to provide an outlet for innovative new thinkers and established policymakers to offer perspectives on the politics and policies that shape our nation and our world.
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