Abstract
Taiwan is not a member of the United Nations (UN) and is neither a signatory to the 1951 Convention Relating to the Status of Refugees nor the 1967 Protocol. While Taiwan’s enactment of a refugee act remains stalled, individuals fearing return to their countries of origin continue arriving on the island and need protection. Drafts of the refugee act contemplate the Taiwanese government’s cooperation with the United Nations High Commissioner for Refugees (UNHCR), whose mandate is to lead and coordinate the global protection of refugees. While the UNHCR does not have a presence in Taiwan, it has operated in other areas that are neither UN members nor signatories to the Refugee Convention or Protocol. Filling a gap in current literature, this chapter examines the UNHCR’s role in other non-UN member and non-signatory states with asylum seeking and refugee populations, to explore potential collaboration between Taiwan and the UNHCR. To identify challenges in refugee protection in Taiwan and potential involvement from the UNHCR, I interviewed advocates representing asylum seekers in Taiwan. I also compared various versions of the draft refugee act and reviewed existing secondary sources. Through a literature review and interviews, I examined the successes and challenges of local frameworks for asylum and refugee protection and the UNHCR’s role in select non-UN member and non-signatory states. This chapter concludes with policy recommendations to the Taiwanese government and the UNHCR for establishing mechanisms that can better provide protection and safety for vulnerable individuals arriving on the island.
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Keywords
- Non-member of the United Nations
- Non-signatory to the Refugee Convention
- Taiwan
- Asia
- Asylum seeker
- Refugees
- Refugee protection
- UNHCR
- Non-refoulement
- Responsibility-sharing
- Policy recommendations
- Lessons learned
Introduction
Taiwan, also known as the Republic of China (ROC), is not a member of the United Nations (UN) and cannot officially accede to the 1951 Convention on the Status of Refugees (“Convention”) and the 1967 Protocol Relating to the Status of Refugees (“Protocol”) due to its current status internationally. However, it is widely recognised that the concept of non-refoulement is a principle of customary international law that binds all states (Lauterpacht & Bethlehem, 2003, p. 149). Even though Taiwan is a non-signatory and does not have domestic refugee legislation, the government has an obligation under customary international law to ensure that non-citizens arriving on the island are not refouled to places where they could face persecution. Additionally, Taiwan has ratified the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC). While neither instrument directly refers to non-refoulement, Article 7 of the ICCPR and Article 37 of the CRC have been interpreted to prohibit the return of individuals to a country where they may be subject to torture or cruel, inhuman, or degrading treatment.Footnote 1
Since Taiwan is not a UN member, it is unable to formally participate in the UN treaty body review process. Instead, Taiwan has created its own review process, which involves international experts, the Taiwanese government, and non-governmental organisations (NGOs) (Covenants Watch, n.d.; National Human Rights Commission, n.d.). During both the 2013 and 2017 review processes, the review committee recommended that Taiwan adopt a refugee act that includes the principle of non-refoulement (International Review Committee, 2017, p. 11). Drafts of the refugee act in Taiwan mention cooperation with the United Nations High Commissioner for Refugees (UNHCR) in refugee status determination (RSD) and refugee resettlement (Executive Yuan, 2016, pp. 358, 360; Legislative Yuan, 2016, June 1). While the enactment of a refugee legislation remains stalled, there are individuals seeking protection from persecution on the island who remain in limbo and could benefit from greater cooperation between the Taiwanese government and the UNHCR.
Critics have voiced concern that the UNHCR, which was created in 1950 to respond to the European refugee crisis in the aftermath of the Second World War, and the Convention are Eurocentric and not protective of the needs of individuals displaced from other continents (Hathaway, 1990, p. 132; Janmyr, 2021, pp. 192–193; Madokoro, 2022). For decades, the UNHCR has pushed for comprehensive regional approaches to handle displacement, including in Asia (UNHCR, 1994; Watkins, 2022, pp. 663–666). However, regional approaches have had mixed results with regard to responsibility-sharing and protection. In some instances, they have facilitated containment undermining the right of individuals to move freely and seek safety beyond regional borders (Watkins, 2022, p. 667). While regional mechanisms and frameworks have utility and are important, refugee protection remains a global responsibility (UNGA, 2016; United Nations, 2018). As such, the UNHCR, which has over 70 years’ experience working in 137 countries, including in non-UN member states and non-signatories to the Refugee Convention and Protocol, is well-placed to work with the government of Taiwan to ensure that asylum seekers and refugees on the island receive protection (UNHCR, n.d.-b; n.d.-e).
This chapter examines the UNHCR’s role in non-UN member states, as well as non-signatories in the Asia Pacific region, to draw lessons learned for the Taiwan context. It concludes with recommendations to both the Taiwanese government and the UNHCR to enhance cooperation and establish processes to increase protection for asylum seekers and refugees on the island.
Methodology
To better understand the gaps in protection for asylum seekers, the challenges in adopting a refugee act, and whether the UNHCR could play a role in Taiwan, I spoke with advocates in Taiwan working with asylum seekers and refugees or who have familiarity with the draft legislation. Comparing different drafts of the refugee act over the years provided context for its intended scope and helped highlight points of contention. A literature review of relevant sources also provided additional background.
The UNHCR has coordinated with other non-UN member states: Palestine, Puerto Rico, and Western Sahara. However, these non-member states differ contextually from Taiwan. Puerto Rico’s asylum procedures are governed by the United States, which is a signatory to the 1967 Protocol and has a domestic framework for adjudicating asylum claims and refugee resettlement (USDOJ, n.d.; USCIS, n.d.). Whereas Palestine and Western Sahara tend to be refugee-producing, Taiwan is an area where people are seeking protection, and the UNHCR’s roles in those contexts make it difficult to draw parallels for Taiwan. In Western Sahara, the UNHCR supports family visits between Sahrawis living in refugee camps in Algeria and individuals in the territory (UNHCR, 2014). With respect to Palestine, the UNHCR’s role is limited because, in 1949, prior to the existence of the Refugee Convention, the UN General Assembly established the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) to provide humanitarian assistance and protection to refugees and displaced persons fleeing Palestine (UNRWA, n.d.). UNHCR is only mandated to protect Palestinian refugees who are outside of the UNRWA’s area operations (UNHCR, 2017).
I also examined the context of Hong Kong. Although Hong Kong does not have its own seat in the UN, it differs from Taiwan and other non-UN members as it is a Special Administration Region of the People’s Republic of China (PRC) and enjoys international recognition. Under Article 153 of the Basic Law (1997), the PRC government determines whether to extend its international obligations to Hong Kong; the Hong Kong government cannot decide to become a party to international instruments on its own. This chapter considers Hong Kong to be a non-signatory as the PRC has not extended the Refugee Convention and Protocol to Hong Kong (UNHCR, 2018, July). In Hong Kong, the UNHCR conducted RSD before the adoption of a domestic refugee framework and assisted the Hong Kong government in its transition to a Unified Screening Mechanism (USM) to consider non-refoulement claims under local law. To identify lessons learned for Taiwan, I interviewed academics and practitioners familiar with both the RSD and USM contexts and drew upon my own personal experience representing individuals in RSD claims before the UNHCR while serving as Legal Director of the Hong Kong Refugee Advice CentreFootnote 2 in 2009–2011.
Since there are a limited number of non-UN members receiving asylum seekers, I expanded the scope of comparative locales to include UN members who are non-signatories to the Refugee Convention and Protocol in the Asia Pacific where the UNHCR operates, including Bangladesh, India, Indonesia, Malaysia, Pakistan, Sri Lanka, and Thailand. I primarily consulted UN and secondary sources to research these contexts.
Taiwan’s Lack of Official Diplomatic Relationships and the UNHCR Mandate
The ROC, led by the Nationalist Kuomintang (KMT) Party, was one of the founding members of the UN and the Security Council in 1945 when it governed mainland China. During the civil war, the Chinese Communist Party (CCP) defeated the Nationalists and established the People’s Republic of China (PRC) on the mainland. In 1949, the Nationalists re-established the ROC on the island of Taiwan and continued to hold the “China” seat in the UN until 1971 when, led by Albania, the UN General Assembly passed Resolution 2758, replacing the ROC with the PRC as the only lawful representative of China to the UN (UNGA, 1971; USDOS, n.d.). Although Taiwan has transitioned from Nationalist rule to a democratic system, the ROC Constitution still governs the island. As a non-UN member state, Taiwan has faced challenges in garnering UN and international support, and only has official diplomatic relationships with 12 UN member states and the Holy See (MOFA, n.d.).
Historically, the majority of UN members have opposed Taiwan’s efforts to apply for UN membership because UN General Assembly Resolution 2758 recognises that the PRC is the only lawful representative of China to the UN (Worsnip, 2007). However, in 2021, United States Secretary of State Antony Blinken publicly urged other UN members to support Taiwan’s participation, highlighting that “Taiwan’s meaningful participation in the UN system is not a political issue, but a pragmatic one” to combat the numerous complex and global issues faced by the international community (Blinken, 2021). For example, although the international community could learn from Taiwan’s “world-class” response to the Covid-19 pandemic, Taiwan was not at the World Health Assembly (Blinken, 2021).
The forced displacement of 89.3 million people worldwide, including 27.1 million refugees, 4.6 million asylum seekers, and 53.2 million internally displaced people, is another critical issue (UNHCR, 2022, p. 2). As the number of conflict-affected countries has doubled during the past decade, the cost to human, state, and international security is significant (UNHCR, 2022, p. 5).
While there are no publicly available statistics on refugees and asylum seekers in Taiwan, Hong Kong citizens began fleeing to Taiwan in 2019 in response to the PRC’s extradition law; the number leaving increased in 2020 when the PRC imposed a national security law in Hong Kong (Leong, 2022; Watt, 2020). From 2020 to April 2022, 28,219 Hong Kongers lived in Taiwan (Leong, 2022). However, it is unclear how many Hong Kongers fear return because of their political opinion or another of the Convention’s protected grounds, but obtained residency on a different basis. There are also an estimated 1000–2000 Tibetans with residence visas or permanent residence in Taiwan, but there are no accurate statistics how many would have met the Convention definition of a refugee (Hale, 2023; Kironska, 2022). Additionally, individuals from the PRC and Xinjiang, as well as those from Afghanistan, Ukraine, Myanmar, Syria, Thailand, Turkey, Pakistan, and several African countries, have sought protection from persecution in Taiwan (Amnesty International, 2022). According to NGO representatives assisting asylum seekers, the reasons for fleeing their countries of origin generally involved fear of persecution due to political opinion, sexual orientation, or gender identity.
In the absence of a refugee law, Taiwan has provided asylum temporarily on an individualised, case-by-case basis that lacks a clear process. For example, in 2009, Lai Chien-chung, the former ambassador of Taiwan to Honduras, granted temporary political asylum to the daughter of ousted Honduran President Jose Manual Zelaya Rosales on humanitarian grounds and “based on the fact she was not directly involved in politics” (SB, 2009). However, to avoid a political standoff, the Taiwanese government denied asylum to his wife, the current Honduran President Xiomara Castro (SB, 2009).
Drafts of Taiwan’s refugee act explicitly include cooperation with the UNHCR, whose mandate is “to lead and coordinate international action for the worldwide protection of refugees and the resolution of refugee problems” (Legislative Yuan, 2016, June 1; UNHCR, n.d.-c). However, the UNHCR has not had a presence in Taiwan even though there are asylum seekers on the island in need of protection. Historically, the UNHCR has supported other non-UN members, such as Palestine and Western Sahara, with refugee or returnee populations (UNHCR, 2002). Additionally, the UNHCR has partnered with other non-signatory governments to the Convention and Protocol to assist in refugee protection.
Disparate Treatment of Different Population Categories in Existing Domestic Legislation
Existing domestic legislation has special provisions for individuals who are from mainland China, Hong Kong, and Macau as well as certain stateless people including Tibetans and non-citizen nationals of the ROC who resided in Thailand, Myanmar, and Indonesia. People from other areas are considered foreigners. This has resulted in the disparate treatment of individuals depending on their place of origin and their ability to remain in Taiwan without being refouled to an area where they may face persecution.
The Ministry of the Interior (MOI) may grant long-term residency to individuals from mainland China on a case-by-case, special project approach out of political, economic, social, educational, science-tech, or cultural considerations (Mainland Relations Act, 2022, art. 17(4)). However, this provision does not apply to mainlanders who enter Taiwan without permission or stay beyond the duration authorised, which has resulted in the repatriation of mainland Chinese in need of protection (Chiu, 2018, p. 158). “Political” considerations include the immediate threat of being persecuted for one’s noteworthy role in leading democracy movements, but this case-by-case, special project approach is not equivalent to a pathway or mechanism for seeking asylum or refuge in Taiwan (Mainland Rules, 2021, art. 18(1); Chiu, 2018, p. 158).
Residents of Hong Kong and Macau whose safety and liberty are immediately threatened for political reasons shall be provided necessary assistance (HK & Macau Laws, 2022, art. 18). The term “political reasons” is not defined in the legislation and regulations governing Hong Kongers and Macanese (Lin, 2018, p. 148). Such cases are referred to the Executive Yuan for “special handling” (HK & Macau Enforcement Rules, 2016, art. 25). However, certain categories of individuals may not be granted assistance, including those who enter Taiwan without permission, use a false identity or fraudulent documents, enter with permission, but overstay, or are believed to be involved in criminal acts (HK & Macau Residency Regulations, 2022, art. 22). In June 2020, in response to the CCP imposing a nationality security law in Hong Kong, the Taiwanese government launched the Hong Kong Humanitarian Aid Project to “provide needed assistance to Hong Kong citizens” and “to uphold universal values and support the Hong Kong people’s fight for freedom and democracy” (MAC, 2020, p. 1). Due to the absence of a refugee law in Taiwan, certain Hong Kongers may apply for a “special project status” to study and work in Taiwan without a residence permit, but the mechanisms and standard for receiving this type of protection lack clarity (Leong, 2022).
Certain stateless individuals, including exiled Tibetans and descendants of KMT soldiers who were left behind on the Thai-Myanmar border in the 1960s, may apply for residency in Taiwan (Immigration Act, 2022, art. 16). In 2009, Article 16 of the Immigration Act, which governs this population, was amended to allow stateless individuals from India or Nepal, who entered Taiwan between 21 May 1995 and 31 December 2008, to apply for residency and to be issued Alien Resident Certificates—after the Mongolian and Tibetan Affairs Commission has confirmed their Tibetan identities (Loa, 2009). In 2016, this provision was further amended, extending the time period to cover those who entered before 29 June 2016 (Hsiao, 2016; Immigration Act, 2022, art. 16). Such amendments have received criticism for creating exceptions for different groups of people and a refugee act has been proposed as a more “reasonable solution” (Loa, 2009).
Non-citizens who do not fall into the categories above are considered foreigners. Although foreigners who enter Taiwan without permission or overstay their visit or residency could face deportation, the MOI’s National Immigration Agency may temporarily suspend deportation on a case-by-case basis under certain conditions (Foreigners’ Regulation, 2016, art. 6). However, there is no mention of non-refoulement or suspending deportation for foreigners who fear return to their countries of origin. In 2022, the MOI amended legislation allowing foreigners whose deportation order was suspended to be granted a provisional registration permit (Alien Residency Regulations, 2022, art. 24).
Legislative History of Taiwan’s Draft Refugee Act
Since 2002, during the administration of Chen Shui-bian, the first president representing the Democratic Progressive Party, the Taiwanese government has recognised the need for a refugee act. However, over two decades later, Taiwan still has not passed any refugee legislation (Huang, 2010, p. 1). Earlier drafts of the refugee act explicitly included people from mainland China, Hong Kong, and Macau, noting that the mechanisms in Article 17(4) of the Mainland Relations Act, Article 19(3) of the Mainland Rules, Article 18 of the HK & Macau Laws, and Article 16(1)(12) of the Regulations Governing Permits for Hong Kong and Macau Residents Entering the Taiwan Area and Setting up Residence or Registered Permanent Residence do not provide for refugee status determination (Legislative Yuan, 2007, 2008). Recognising that the existing framework treated people from mainland China, Hong Kong, and Macau differently from foreigners and stateless people, these drafts also sought to equalise the periods of time to apply for residency, long-term residency, or citizenship with those of foreigners.
In 2009, the MOI submitted an amended refugee act to the Executive Yuan, who then submitted it to the Legislative Yuan for consideration. The 2009 draft eliminated people from mainland China and residents of Hong Kong or Macau from its applicable scope. Their inclusion was viewed as incompatible with the ROC Constitution and existing legislation, would be unlikely to reach societal consensus, and would potentially cause adverse impacts on cross-straits relations (Huang, 2010, pp. 54–56). Since then, the Executive Yuan has not included these three groups in subsequent versions of proposed legislation, suggesting that existing laws already govern people from those areas. Including these groups as foreigners would likely be controversial and could aggravate cross-strait relations (Huang, 2021).
The March 2016 draft of the refugee act proposed by Hsiao Bi-khim and other members of the Legislative Yuan included people from those areas (Hsiao, 2016). However, the Internal Administration Committee and Foreign and National Defense Committee rejected the inclusion, noting that the applicable laws governing mainland Chinese and residents of Hong Kong and Macau are the Mainland Relations Act and the Hong Kong & Macau Laws, respectively (Legislative Yuan, 2016, February 1, pp. 210–211, 217).
Article 3 of the Executive Yuan’s, 2016 draft refugee act adopts the Convention definition of a refugee. This provides that foreigners or stateless people may apply for refugee status in Taiwan if they have left their country of citizenship or residence because of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and are unable to avail themselves of protection from that country or are unwilling to return for reasons of such fear. The definition also includes individuals who have been forced to flee their homeland for reasons of war or large-scale natural disaster, and is more expansive than the Convention. Drafts from members of the Legislative Yuan proposed that the definition explicitly include gender, sexual orientation, and gender identity, but the Executive Yuan found it unnecessary to enumerate them as separate protected grounds because they fall under the particular social group ground (Legislative Yuan, 2016, February 1, p. 211). Article 4 of the Executive Yuan’s, 2016 draft included provisions allowing foreigners and stateless individuals to apply for asylum from outside of Taiwan, at Taiwan’s border, airports, or ports, prior to entering Taiwan, and after entering Taiwan (Executive Yuan, 2016, p. 358). Since 2016, there has been little movement or political will to pass the refugee act.
Based upon publicly available information from the MOI, interviews with NGOs involved with the drafting of the refugee act, and a review of the UNHCR’s comments on national legislation on Refworld, it does not appear that the government of Taiwan has worked with the UNHCR during the drafting process (UNHCR, n.d.-a.). Former Deputy Foreign Minister at the Ministry of Foreign Affairs Wu Chih-hung confirmed that the Taiwanese government did not contact the UNHCR from 2008 to 2016, but it is unclear whether the Taiwanese government communicated with the UNHCR before or after that time period (Legislative Yuan, 2016, June 1, p. 197). The MOI report from 2010 mentions that the Taiwanese government would welcome assistance from the UNHCR in conducting RSD and receiving support for refugee resettlement in the event there is a mass influx of refugees in Taiwan (Executive Yuan, 2016, pp. 358, 360; Huang, 2010, pp. 19, 29, 57). All drafts of the refugee legislation in 2016 contemplated cooperation with the UNHCR, including Article 3 of the Executive Yuan’s, 2016 draft which called for the MOI to request the UNHCR’s assistance in conducting RSD in Taiwan (Executive Yuan, 2016, p. 358; Legislative Yuan, 2016, June 1).
Challenges for Asylum Seekers and Refugees in Taiwan
Taiwan’s exclusion from UN membership and its lack of diplomatic relations with other governments is an obstacle to effective refugee protection. As a practical matter, it is challenging for Taiwan to assist individuals in third country resettlement whether they arrive after being recognised as a refugee by the UNHCR elsewhere, or are seeking protection from the Taiwanese government, which lacks a domestic RSD framework.
During joint deliberation meetings of the draft refugee act in 2016, several members of the Legislative Yuan raised the feasibility of requesting the UNHCR’s assistance given that Taiwan is not a UN member state (Legislative Yuan, 2016, June 1, p. 187). When asked how the Taiwanese government could handle RSD applications if the UNHCR did not respond to the Taiwanese government’s request for assistance, the former Minister of the Interior Yeh Jiunn-rong reaffirmed the necessity of seeking the UNHCR’s assistance in processing RSD applications in Taiwan, believing it was possible for Taiwan to receive international assistance as refugee issues are universal human rights concerns (Legislative Yuan, 2016, June 1, p. 191).
In addition to the lack of a formal asylum adjudication process, individuals who find themselves in need of protection in Taiwan face barriers to obtaining work authorisation, accessing health care, and securing stable housing. Since most are not able to work, they rely on NGOs or churches to assist with basic needs. Without a residence permit, asylum seekers are not able to open bank accounts in Taiwan. For example, one Tibetan, who lived in Taiwan for over 20 years before being granted residency, worked without authorisation during that time but could only receive his salary via other people’s accounts (Deng, 2016). Additionally, children born to asylum seeking or undocumented women in Taiwan frequently are not registered at birth and become de facto stateless as nationality in Taiwan is based on jus sanguinis rather than jus soli (Chen, 2022, p. 7). Without household registration, these children have limited access to education and health care. Additionally, according to local NGO representatives, language access is a challenge in Taiwan if the asylum seeker or refugee is unable to communicate in either Mandarin or English.
Observation and Lessons Learned from Hong Kong and Non-Signatory States
For decades, the UNHCR has operated in non-UN member and non-signatory states, often conducting RSD and facilitating refugee resettlement; its mandate allows this with the host’s consent. In practice, the UNHCR’s role in these areas varies significantly, signing a Memorandum of Understanding (MOU) with some, but not others; moreover, there is no standard approach to the MOUs (Janmyr, 2021, p. 40). Since Hong Kong has a lengthy history with the UNHCR and has developed its own system for non-refoulement protection, there are numerous lessons learned applicable to the Taiwan context. This section also examines the UNHCR’s operations in Bangladesh, India, Indonesia, Malaysia, Pakistan, Sri Lanka, and Thailand. While not an exhaustive review, it draws upon common themes to derive lessons learned for Taiwan.
Expanding the Refugee Act to Include All Populations
To avoid disparate treatment of different populations, a refugee act that is inclusive of mainlanders, Hong Kongers, and Macanese, as proposed in the drafts by the Legislative Yuan before 2009 and by Hsiao Bi-khim in 2016, would enhance protection. NGO representatives in Taiwan have voiced the importance of an inclusive refugee act covering all non-citizens rather than a special project approach. Currently, there are special projects for different populations, such as the Hong Kong Humanitarian Aid Project, but a refugee act that includes all non-citizens would provide greater transparency for accessing fear-based protection and to streamline existing protection mechanisms for all groups.
As including mainland Chinese, Hong Kongers, and Macanese in refugee legislation is controversial and politically sensitive, there may be alternate ways to frame who qualifies for protection. For example, Palestinian refugees have primarily been dealt with outside of the confines of the Convention (Mathew, p. 55). The UNRWA, which operates in Jordan, Lebanon, Syria, the Gaza Strip, and the West Bank, defines Palestinian refugees as “persons whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948, and who lost both home and means of livelihood as a result of the 1948 conflict” (UNRWA, n.d.). Pursuant to Article 1(D), the Convention “shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the [UNHCR] protection or assistance”. Therefore, the UNHCR does not have a mandate over Palestinian refugees within UNRWA’s area of operations and is involved in conducting RSD in some non-signatory states receiving Palestinian refugees (UNHCR, 2017). However, defining protection needs by specific events would perpetuate the disparate treatment of different populations in Taiwan. It could also result in amending legislation based on political and other events that lead to displacement of these populations and could complicate the processes for protection.
Centralising RSD and Related Non-Refoulement Claims
A centralised and unified process for adjudicating asylum, non-refoulement, and related humanitarian claims results in greater efficiency and fewer disparities in adjudication. Hong Kong and India are two contexts where bifurcated processes have existed, with the UNHCR determining certain types of cases and the government others, showcasing the complexities cause by non-centralised and non-unified processes.
Between 1996 and 2014, the UNHCR conducted RSD in Hong Kong. The UNHCR and the Hong Kong government signed an MOU to allow Hong Kong immigration officials to be seconded to the UNHCR to increase RSD capacity. The Law Society of Hong Kong, Hong Kong Bar Association, and refugee rights advocates criticised the UNHCR’s RSD process for numerous deficiencies, including problematic interview procedures, substandard interpretation, insufficient access to evidence or reasoning for negative RSD decisions, lack of an independent appeal mechanism, and limited legal representation (Lee et al., 2012). The Court of Final Appeal’s judgementsFootnote 3 recognising that high standards of fairness apply to torture claims, as well as an independent inquiry on persecution claims prior to removing an individual to their country of origin, prompted the government to adopt the USM (UNHCR Hong Kong, n.d.).
Before Hong Kong established the USM, the government adjudicated torture claims under the Convention Against Torture (CAT) while the UNHCR conducted RSD. The existence of these dual, but parallel paths for protection was “procedurally inefficient, unfair and prone to abuse” (Justice Centre, 2014, p. 7). In many instances, claimants made both refugee and CAT claims in tandem or subsequently lodged a separate claim after the failure of the first claim. This prolonged the processing time of applications, caused significant backlogs, and left claimants in limbo for many years. Since the UNHCR did not share the rationale of a negative RSD claim with the Hong Kong government and there was no process for the government to assess an individual’s risk of persecution, that person could be refouled to a country where they faced persecution. Additionally, this dual system was not trauma-informed, as claimants who experienced past harm were forced to undergo two separate proceedings detailing what happened to different adjudicators. Interpreters were also necessary for both sets of proceedings. Recognising these inefficiencies, Hong Kong launched the USM system. Though the USM has been met with criticism for other reasons, legal professionals and experts in the field had recommended a unified system for considering non-refoulement claims (Daly, 2014).
In India, the government adjudicates refugee claims from neighbouring countries, such as Sri Lanka and Tibet, whereas the UNHCR conducts RSD for individuals from Myanmar and non-neighbouring countries. As the UNHCR is not allowed to set up registration centres in border areas, asylum seekers need to learn about the process and travel to New Delhi, where the only UNHCR office is located, to make a claim (Shanker & Vijayaraghavan, 2020, p. 24). Although the UNHCR provides recognised refugees with identity cards, not all state authorities in India recognise the UNHCR cards, whereas they accept identity documents provided to refugees by the Indian government (Shanker & Vijayaraghavan, 2020, p. 25). This leads to inadequate protection and insufficient access to health care, education, and other basic rights for refugees recognised by the UNHCR.
The contexts of Hong Kong and India demonstrate that using separate processes and laws for people from different areas may lead to disparate treatment amongst groups and can leave more room for protection pitfalls. As such, a cohesive system where one body performs RSD is not only more efficient but enhances refugee protection. It conserves resources, such as interpretation, legal representation, and adjudication, but also helps minimise re-traumatising individuals.
As discussed above, Taiwan has separate legislation for different groups of non-citizens. Although initial drafts of the refugee act included individuals from mainland China, Hong Kong, and Macau, they are omitted from the Executive Yuan’s most recent draft in 2016. Excluding these groups could lead to complexities in the future, and the government would be wise to examine other contexts with disparate laws to better understand potential challenges and to contemplate the benefits of centralising RSD for all groups.
Access to Publicly Funded Legal Representation
Lack of access to legal services has been identified as a concerning gap in the implementation of the Hong Kong Humanitarian Aid Project in Taiwan, limiting awareness of the screening criteria and documentation necessary to establish individualised protection (Leong, 2022). Whether an individual is proceeding before the UNHCR or government-mandated RSD, access to publicly funded legal representation is critical to navigate the complexities of the legal processes in a foreign jurisdiction, often in a foreign language. The UNHCR recognises the right to legal representation, acknowledging its importance in establishing fairness and transparency in the RSD process, as well as strengthening decision-making (UNHCR, 2020, p. 64).
In Hong Kong, the Court of Final Appeal in C & Ors determined it was unfair and unlawful to: (1) refuse legal representation during screening interviews and oral hearings for torture claims, and (2) fail to provide publicly funded legal representation (Daly, 2014). This case, along with others,Footnote 4 clarified what constitutes high standards of fairness in assessing non-refoulement cases and the duties required by the Hong Kong government prior to removing an individual to their country of origin. Under the USM, applicants in theory have access to publicly funded legal assistance, but from 2014 to 2020, only 8% of legal aid applications were approved; the majority of claimants proceeded without counsel (Justice Centre, 2020). Moreover, there are two options for publicly funded legal assistance: (1) the Legal Assistance Scheme for Non-refoulement Claimants independently operated by the Duty Lawyer Service (DLS) or (2) a Pilot Scheme (PS) administered by the Hong Kong government’s Security Bureau who selects and pays for lawyers representing applicants (DLS, n.d.; Melwani, 2021, p. e). Under the PS, there is a clear conflict of interest as lawyers are paid for by the same government bureau responsible for removing their clients (Melwani, 2021, p. 2).
The existence of publicly funded legal aid is not enough; it must be accessible and the criteria to receive representation through any such programme should not be so stringent that the majority of applicants end up proceeding without legal counsel. With the enactment of a refugee act in Taiwan, it is paramount that publicly funded legal representation be available to assist applicants with navigating the new procedures and to help them understand the types of evidence required to obtain protection in Taiwan.
Establishing an Appeals Process
When the UNHCR conducted RSD in Hong Kong, it did not initially provide written decisions and reasoning for negative RSD determinations, which hindered an applicant’s ability to make a meaningful, independent appeal (Hong Kong Human Rights Commission Society, 2006, p. 3). Under the UNHCR’s Procedural Standards (2020, p. 270), applicants have the right to appeal a negative RSD decision. The scope of appeal should also take into consideration any new information relevant to the claim, including any changes in the applicant’s personal circumstances or in their country of origin. An independent appeal mechanism, which includes meaningful access to legal representation, is necessary to safeguard the protection of individuals who may be returned to persecution in their country of origin.
In Taiwan, any refugee legislation should include a clear process for appealing a case that includes publicly funded legal representation during the appeal. To ensure fairness in the appellate process, the applicant must be provided with a written decision detailing the reasons for the denial.
Designing Trauma-Informed, Context-Specific Training
Although Hong Kong transitioned to the USM, the UNHCR still continues to provide a consultative and supportive role to the Hong Kong government. Before the start of the USM in Hong Kong, the UNHCR conducted trainings for decisions-makers (Security Bureau, 2014, p. 7). The UNHCR has provided technical advice and capacity-building for officers and decision-makers involved in the USM and has given recommendations on screening procedures (UNHCR, 2018, Oct. para. 10). Additionally, the UNHCR has sought durable solutions for refugees.
In Hong Kong, a shortcoming identified was the poor quality of USM decisions, reflecting a low comprehension level of non-refoulement law by decision-makers, including key legal and factual concepts. Some decision-makers also displayed cynicism or hostility towards applicants and lacked gender-sensitivity, reducing sexual and gender-based violence to private matters and dismissing the possibility that they could constitute protected reasons for non-refoulement protection (Justice Centre, 2020). A lesson derived from the Hong Kong context is that regular, ongoing training in both substantive law and the practical considerations in interviewing asylum seekers is necessary for adjudicators, lawyers, and others working on such claims.
In Taiwan, robust, context-specific training regarding the intricacies of the legal requirements and applicable standards for a new domestic legal refugee framework would be critical. Opportunities for additional, issue-specific topics that arise along with ongoing trainings would be important to support a transition to a domestic refugee framework. Training on topics including trauma-informed representation and adjudication, gender-sensitivity, cultural-competency, and working with interpreters would be crucial to communicating with asylum seekers from different backgrounds. Such training should be tailored to the role the attendee is playing in the RSD process, e.g. decision-maker, legal representative, interpreter, social worker, etc. To share lessons learned and enhance collaboration amongst those involved in refugee protection within the Asia Pacific region, refugee advocates in Taiwan have suggested that the UNHCR could also consider convening regional training and invite relevant stakeholders from Taiwan who are involved in the RSD process.
Providing Identity Documents and Registering Births
A common theme emerging from the contexts examined is the importance of providing asylum seekers and refugees with a legal identity document in the country where the RSD process occurs. If the UNHCR issues an identity document to a recognised refugee, a MOU or other agreement with the local government to accept the document as a valid form of legal documentation is critical (Islam et al., 2021, p. 22). For example, the UNHCR in India conducts RSD, facilitates the resettlement of recognised refugees, and has the sole responsibility for granting refugee status certificates (UNHCR India, n.d.). However, the domestic law regarding these certificates and the rights associated with them are subject to the political will of the government and can hold little to no legal authority even though some courts have recognised the legal validity of these certificates (Kaul, 2021). In Malaysia, the government has criticised the UNHCR for independently issuing identity documents to asylum seekers or refugees registered with the agency without their input and approval (Peter, 2022).
Whether the UNHCR or the Taiwanese government conducts RSD in Taiwan, it is critical that any refugee certificate issued be a legally valid form of identity recognised throughout the country. Identity documents, including refugee certificates, are often the primary means to access basic rights, such as housing, health care, and education; they also facilitate the ability to attain banking and other services (Islam et al., 2021, pp. 15–19, 22). As children in Taiwan born to asylum seekers and undocumented mothers face challenges in accessing services, universal birth registration, allowing for the children of non-citizens to be registered, would help prevent issues of statelessness and legal limbo and effectuate access to education, social assistance, and health care (Islam et al., 2021, p. 21).
Allowing Employment Authorisation
In many situations of forced migration, individuals remain in limbo for years before a decision is made on their case. This process may be prolonged in the event of an appeal, a global pandemic, or another circumstance beyond an individual’s control. The ability to obtain work authorisation and have meaningful access to employment opportunities in the country where the RSD claim is being processed is critical to achieving self-sufficiency. In the absence of employment authorisation, individuals are often forced to find work in the informal sector and may be more likely to experience exploitative working conditions (Islam et al., 2021, p. 34). Being able to work contributes to personal security, empowers displaced individuals to seek a livelihood, and enables them to contribute to the local economy.
Learning from the experiences described above, although Taiwan has not passed refugee legislation, the Employment Service Act allows for “a refugee who has been permitted to stay” in Taiwan to engage in certain types of work and exempts them from several conditions or requirements imposed on other foreigners (2018, art. 51(1)). Neither the Employment Service Act nor any other laws in Taiwan define or discuss the term “refugee” and there is no formal mechanism for refugees or asylum seekers to obtain employment authorisation (Yang, 2022). However, the Ministry of Labor (2021) has allowed stateless and non-citizen ROC nationals from Thailand or Myanmar who obtained residency under Article 16(3) of the Immigration Act to apply for a work permit with the Central Competent Authority without their employer initiating the process, under this provision. As employment authorisation for a refugee is explicitly contemplated in existing law, the Taiwanese government should clarify who qualifies as a refugee and establish clear processes to obtain such permission.
Accessing Social Services
Access to social services is also critical for asylum seekers. Many individuals have experienced trauma, in their countries of origin, en route to, and inside, the country of reception. Re-traumatisation also may occur during the RSD process. Having access to health care, including mental health services, is an important protection concern.
In addition to conducting RSD in Thailand, the UNHCR provides emergency and life-saving health care, legal and social counselling, and psycho-social support, as well as facilitating access to education, financial and other material support, and seeking durable solutions for vulnerable cases (UNHCR, 2022, December 31). In Sri Lanka, the UNHCR handles all forms of refugee protection in Sri Lanka, including RSD, refugee resettlement, connecting vulnerable refugees with legal resources on housing as well as land and property documents, and assisting with reintegration (UNHCR, n.d.-d).
In Taiwan, asylum seekers have had to rely on NGOs, churches, and others for food, housing, and other basic needs. Looking at the experiences in other countries, in implementing a domestic refugee framework, the Taiwanese government must also consider access to social services, including health care and psych-social support, as a holistic approach to refugee protection. Consulting with the UNHCR regarding its work to connect individuals to such services in Thailand and Sri Lanka could be beneficial.
Re-Thinking Durable Solutions
Asylum seekers and refugees worldwide often remain in limbo for years, without any ability to integrate locally, while waiting a protracted period for third country resettlement. Although host countries are often reluctant for local integration to be a permanent solution, in reality, many individuals are forced to remain in the host country for years and even decades while they await a durable solution. As such, opportunities for local integration, including access to language classes, employment opportunities, and pathways to residency, are important for Taiwan’s domestic refugee framework. To combat xenophobia, anti-immigrant rhetoric, concerns about “losing” job opportunities to non-citizens, and perceived misconceptions about national security issues, public education campaigns to allay these fears are strategically necessary in Taiwan for citizens to provide a welcoming environment to asylum seekers and refugees (Amnesty International, n.d.).
Recommendations
After examining the contexts in other non-UN member and select non-signatory states described above and discussing with local refugee advocates in Taiwan what gaps in protection remain, the following recommendations are made to the government of Taiwan and the UNHCR:
To the Government of Taiwan
-
1.
Contact the UNHCR to request consultation on the draft refugee act, determine the UNHCR’s capacity to be involved in RSD and resettlement, and explore other potential collaborations to achieve refugee protection in Taiwan.
-
2.
Pass a refugee act that includes an expansive definition of who qualifies for protection, which not only incorporates the Convention definition, but also includes those forced to leave because of war or large-scale natural disaster. Review the refugee definitions included in the Bangkok Principles, Organization of African Unity Convention, and the Cartagena Declaration, which enumerate additional circumstances for extending protection.
-
3.
Include people from the mainland area, Hong Kong, and Macau in the refugee act for inclusive legislation that does not differentiate between different groups of people.
-
4.
Develop clear procedures for RSD rather than an informal ad hoc system decided on a case-by-case basis.
-
5.
Regularly train decision-makers on the correct legal standards and evidentiary considerations for adjudicating asylum claims, to effectuate consistent decisions. Include training on the impact of trauma and working with an interpreter as well as cultural and gender considerations.
-
6.
Establish an independent appeal process for refugee claims.
-
7.
Provide publicly funded legal aid to allow asylum seekers access to representation during first instance and on appeal.
-
8.
Issue identity documents for asylum seekers and refugees to minimise hurdles to accessing housing, health care, and other services.
-
9.
Allow work authorisation for asylum seekers and refugees under Article 51(1) of the Employment Service Act so that they can contribute to the local economy and become self-sufficient. The government has used this provision to allow stateless individuals from Thailand and Myanmar to work, showing that they have employed a broad definition of “refugee” in granting employment authorisation.
-
10.
Extend universal access to health care to asylum seekers and refugees in Taiwan.
-
11.
Increase language access to asylum seekers and refugees by providing interpretation during the asylum process as well as offer opportunities to learn the local language to enhance communication.
To the UNHCR
-
1.
Be open to engaging with the government of Taiwan, local NGOs, and other organisations working with asylum seekers and refugees. This could include connecting the government of Taiwan with other regional and international organisations to provide support. The global protection of human beings who fear for their life transcends the politics of the UN and the “One China Policy”.
-
2.
Review, comment, and consult on Taiwan’s draft refugee act and encourage its enactment.
-
3.
In the absence of domestic refugee legislation in Taiwan, consider assisting with RSD in Taiwan with the intention to train and build local capacity to conduct RSD.
-
4.
Be available as a resource to provide technical assistance and support, including verifying individuals who have undergone the RSD process in a third country, but find themselves in Taiwan.
-
5.
Assist with resettling recognised refugees to third countries and facilitating connections to other countries that may not have diplomatic relations with Taiwan to ensure that refugees receive appropriate protection.
-
6.
Provide support for public education campaigns framing refugee narratives, including debunking myths related to national security risks and the displacement of locals from employment opportunities.
-
7.
Convene regional trainings for decision-makers involved in the RSD process in the Asia Pacific region and invite decision-makers from Taiwan to participate.
-
8.
Support Taiwan’s transition to a domestic framework if refugee legislation is enacted and engage in capacity-building to train immigration officers and decision-makers.
Conclusion
The UNHCR’s involvement in refugee protection in Hong Kong, as well as other non-signatories to the Convention, provides context for informing potential collaboration between the government of Taiwan and the UNHCR. Cooperation between the Taiwanese government and the UNHCR would help increase protection for individuals seeking asylum in Taiwan as well as facilitate resettlement for recognised refugees who find themselves in Taiwan. As proposed in the draft refugee act, the government of Taiwan has contemplated assistance from the UNHCR in RSD and resettlement. A first step for the Taiwanese government is to seek input from the UNHCR on Taiwan’s draft refugee act and explore areas for potential coordination in protecting asylum seekers and refugees on the island. If the Taiwanese government approaches the UNHCR for assistance, as the lead refugee agency, the UNHCR would fall short of its mandate if it rejected the request, and asylum seekers and refugees on the island would fail to receive protection and could be refouled to places where they have a well-founded fear of persecution.
Notes
- 1.
The practice of refugee protection and adherence to non-refoulement principles varies amongst non-signatories to the Refugee Convention and Protocol. Some non-signatories have signed other international treaties with explicit non-refoulement provisions, such as Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance, or complementary protection such as in the ICCPR and CRC.
- 2.
In 2014, Hong Kong Refugee Advice Centre relaunched as Justice Centre Hong Kong.
- 3.
Sakthevel Prabakar v Secretary for Security 2004 7 HKCFAR 187; FB & Ors v Director of Immigration and Secretary for Security (HCAL 51/2007); Ubamaka Edward Wilson v Secretary for Security (FACV 15/2011); and C & Ors v Director of Immigration (4HKC 563/2013).
- 4.
Prabakar; FB & Ors; and Ubamaka.
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Acknowledgements
My deep appreciation goes to the refugee rights advocates in Taiwan for taking the time to speak with me and provide critical contextual background: Wang Si, Deputy Secretary-General and Lai Yen-rong, Commissioner on Refugees at the Taiwan Association for Human Rights; Chiu Eeling, Executive Director, Amnesty International Taiwan; Lin Hsinyi, Executive Director, Taiwan Alliance to End the Death Penalty and Huang Yibee, CEO Covenants Watch, both on the Board of the Human Rights Network for Tibet and Taiwan.
This chapter would not have been possible without the stellar research contributions in English and Mandarin of an individual to whom I am immensely grateful; you know who you are—thank you for all your incredible work. I appreciate Micah Lesch, Giulia Marchi, and Talia Harrow at the University of California, College of the Law, San Francisco, for their research support. I also appreciate everyone who spoke with me about the Hong Kong context.
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Lin, C. (2024). Examining Refugee Protection in Non-Signatories to the Refugee Convention and Protocol: Lessons Learned for the Taiwan Context. In: Momesso, L., Ivanova, P. (eds) Refugees and Asylum Seekers in East Asia. Palgrave Macmillan Studies on Human Rights in Asia. Palgrave Macmillan, Singapore. https://doi.org/10.1007/978-981-97-2867-1_3
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