By: Alexander C. Burlin and Ruba Ahmad
Refugee recognition is often narrowly defined as the determination of one’s legal status as a refugee under the definitions set forth in the 1951 Refugee Convention. However, refugees and asylum-seekers are often in need of other forms of legal recognition to obtain protection and access to durable solutions, including the recognition of his or her legal identity through the procurement of civil and legal documentation. This is particularly important where the host state has a weak legal framework for refugee protection and where formal Refugee Status Determination (RSD) is limited in scope. Based on a study conducted by Arab Renaissance for Democracy & Development (ARDD) in the Spring of 2020,1 as well as key informant interviews with legal aid practitioners, we illustrate the importance of civil and legal documentation in the context of the Syrian refugee crisis in Jordan,2 highlighting documentation issues, protection challenges, and best practices.
Recognition and documentation in Jordan
Since the start of the Syrian civil war in 2011, up to 1.3 million Syrians have sought shelter in Jordan. Although the country is not a signatory to the 1951 Refugee Convention nor the 1967 Protocol, Syrian refugees are able to register with UNHCR under a 1998 Memorandum of Understanding with the Government of Jordan (GoJ) and receive an Asylum Seeker Certificate (ASC). Since 2014, the Jordanian Ministry of Interior (MoI) has also issued Syrian refugees registered with UNHCR a service card (‘MoI-card’). Although UNHCR Jordan solely conducts formal RSD for a minority of Syrians “depending on the needs identified,”3 ASCs and MoI-cards provide for a de facto recognition of refugee status before government and humanitarian authorities. Both documents provide Syrians with protection from refoulement and facilitate access to public services such as free education and subsidized healthcare.
While the recognition of refugee status is a critical aspect of ensuring protection for Syrians in Jordan, this protection is both temporary and limited; ASCs and MoI-cards are valid for a one-year renewable period only, and neither provides for a comprehensive set of legal rights. For instance, refugee documentation does not guarantee citizenship, marriage, or inheritance rights, nor does it automatically facilitate the right to work or the right to own property, etc. In many areas of their day-to-day life, Syrian refugees require other forms of legal recognition and documentation to enjoy long-term and comprehensive protection, including birth certificates, marriage certificates, death certificates, passports, family books, and national identity cards. These documents enable refugees to prove his or her legal personhood and kinship relations.
Civil and legal documentation issues
As is often the case with forced displacement, many Syrians in Jordan lack correct civil and legal documentation. In general, issues related to this type of documentation can be divided into three categories:
- Lacking documentation: Some Syrians were unable to retrieve their identity documents before departing from Syria and thus entered Jordan without documentation. Between 2011-2013, the GoJ also confiscated approximately 220,000 identity documents from Syrians who entered the country via unofficial crossings, not returning them until years later. Furthermore, some Syrians may have lost documentation or may have been misled to throw it away.
- Incorrect documentation: Considering that many Syrians lacked documentation upon entering Jordan, some resorted to using documentation that is factually incorrect, such as a national identity card that previously belonged to a relative. Some Syrians have also used incorrect documentation due to a fear of persecution related to their actual identity. As such, many have illegally registered with the GoJ and other authorities using incorrect information.
- Unofficial documentation: Another consequence of a lack of documentation is the proliferation of unofficial documentation. Over the past decade, some Syrians have acquired documentation through informal means such as the black market. This documentation could be either correct or incorrect on a factual level, but would be illegal to use in either case. This issue has also been noted with refugee documentation and some Syrians have also obtained unofficial MoI-cards for the black market.
Oftentimes, a person will face different documentation issues for various types of civil and legal documentation. He or she may also register different documentations with various humanitarian and government agencies.
As the refugee crisis has become increasingly protracted, documentation issues have snowballed and become increasingly complex. In particular, new deaths, marriages, and births have created new documentation issues related to changing kinship relations. First, some Syrian refugees have registered civil events using the incorrect documentation discussed above, resulting in marriage certificates that are legally invalid and birth certificates that do not document the legal identity of the child. Second, some Syrian refugees have not managed to register civil events due to challenges with the Jordanian civil registration process. For instance, many Syrian couples have been married informally by a religious sheikh based on Syrian tradition. In Jordan, under Article 36(c) of the Personal Status Law, informal marriages are illegal and need to be ratified by the Shariʿa Court at a cost of 1,000 dinars. Since an official marriage certificate is also required to obtain a birth certificate, some Syrian were also unable to register births with civil courts. If a child is not registered within a year, a couple must get special approval from the Magistrates courts under Article 34 of the Civil Status Law, a process that can be complex and inaccessible. In this way, protracted displacement has increased the number of Syrians without correct civil documentation.
Protection challenges related documentation issues
Issues related to civil and legal documentation may prevent a refugee from having his or her correct legal identity recognized by relevant authorities, resulting in a series of protection challenges:
Inability to exercise civil and political rights: The lack of correct civil and legal documentation means that Syrians may not be able to exercise civil and political rights tied to these documents, including the right to divorce (marriage certificates), the right to nationality (birth certificates), and the right to inheritance (birth, marriage, and death certificates). Civil documentation issues are particularly a problem for Syrian children without a correct birth certificate; as they are unable to substantiate their legal identity, they may not inherit their parents’ citizenship and therefore risk becoming stateless.
Risk of facing criminal charges: If a Syrian refugee has used an incorrect or unofficial document, he or she may face a legal lawsuit for forgery. Under Jordanian law, punishments for forgery range from three months to twenty-five years jail time, depending on the time of crime committed. Typically, Syrian refugees sentenced for forgery receive either three months or six months jail time. Although no official statistics exist, legal aid practitioners report that there has been a significant number of such sentences, particularly during the first years of the crisis.
Limited access to justice: If a Syrian refugee lacks documentation or has previously used incorrect or unofficial documentation, he or she may refrain from interacting with official authorities out of fear of facing criminal charges. This is particularly an issue in terms of access to justice; if a Syrian refugee is wronged, it is likely that he or she will refrain from filing a lawsuit against the perpetrator thinking that the court might discover past or current use of incorrect documentation. In turn, a lack of access to justice affects all areas of a refugee’s life, including his or her ability to benefit from labor protection.
Loss of opportunities and services: The lack of correct civil and legal documentation means that Syrian refugees may lose out on opportunities and services. Although most humanitarian services in Jordan solely require an ASC or MoI-card, some programs and scholarships ask for additional civil and legal documentation. This was especially important in the beginning of the Syrian crisis, when donors would sometimes request non-UNHCR documentation for Cash4Work or Cash4Rent programs. Moreover, if a person has previously used incorrect or unofficial documentation, they may refrain from registering with an opportunity or service out of fear of being discovered.
Risk of increased illegal activity, including human trafficking: A Syrian refugee with documentation issues may be more likely to rely on informal and/or illegal channels to obtain services, opportunities, and access to justice, including retaliatory violence and human trafficking services. The increased risk of human trafficking is particularly worrisome considering that a refugee may be abandoned in a third country without assistance and legal documentation.
Obstacles to long-term, durable solutions: Documentation issues pose significant obstacles related to repatriation and resettlement. On one hand, the Syrian border police may deny entry to a person who cannot show evidence for their Syrian citizenship, such as children without birth certifications. On the other hand, documentation issues may lead to difficulties for resettlement, as some resettlement countries require verification of a refugee’s correct civil and legal documentation. Moreover, documentation issues in the host country will often continue once a refugee returns to Syria or leaves for a resettlement country; for instance, a child with incorrect documentation might have an educational record that is invalid once their legal identity is corrected in the future.
Best practices for solving documentation issues
Since the start of the Syrian refugee crisis, humanitarian stakeholders have collaborated to organize a series of initiatives to expand access to correct documentation and enable the recognition of the legal identity of all Syrians in Jordan. These initiatives include programs for advocacy, legal counsel, awareness, and financial support, sometimes focusing solely on issues with civil and legal documentation and other times in tandem with issues related to refugee documentation. In addition to ongoing services and support, these programs have resulted in important institutional, policy, and legal developments, including:
- 2013: The issuance of a government regulation to end the confiscation of Syrian identity documents.
- 2014: The establishment of Shariʿa and Civil Courts in official refugee camps.
- 2014: A first temporary exemption of fines for all informally married couples.
- 2015: A second temporary exemption of fines for all informally married couples.
- 2018: The issuance of an amnesty period during which Syrians registered with an illegal identity could have their status regularized and obtain valid MoI-cards.
- 2018: The establishment of a Special Committee under the MoI working to facilitate regularization of complex legal cases.
- 2019: The issuance of a general pardon for crimes taking place before December 2018, including those related to legal and civil documentation.
Based on ARDD’s involvement in these efforts, some best practices can be inferred for how to increase access to correct civil and legal documentation:
Joint advocacy: The most effective initiatives related to documentation have been collaborative projects between legal aid practitioners, UNHCR, and the GoJ. Considering the often-complex nature of civil and documentation challenges, there is a need to bring together actors that can cater to different issues. For instance, a lot of cases have required a combination of legal changes implemented by the GoJ, legal representation through pro bono lawyers, and information campaigns by UNHCR. To mobilize all actors, legal aid practitioners have advocated for issue-linkages; for instance, the GoJ became more invested in solving documentation issues for refugees when the MoI became aware of subsidiary risks such as increasing black market activity.
Building institutional infrastructure: In Jordan, stakeholders have institutionalized joint advocacy efforts through specialized departments and networks. In April 2014, for instance, the Syrian Refugees Affairs Directorate was established as a separate body within the MoI to oversee all matters related Syrian refugees. The Directorate has served as a critical interlocutor between civil society actors and the GoJ. Moreover, between March 2018 and March 2019, the GoJ instated a Special Committee (SC) that can issue discretionary legal rulings to deal with complex cases of civil and legal documentation challenges for individuals who may otherwise be penalized under Jordanian law. Both of these bodies have been essential in ensuring the necessary flexibility and dynamism required to deal with complex legal challenges for refugees in Jordan.
Early implementation of a legal analysis: Civil and documentation challenges often become increasingly difficult over time, particularly when refugees use incorrect documentation to create or register additional documents on an incorrect basis, such as birth or marriage certificates. Although international organizations sometimes overlook legal issues during the “relief stage,” this is not recommendable. During the Iraqi refugee crisis in Jordan of the early 2000s, a lack of early advocacy and support resulted in protracted civil and legal documentation issues that were difficult to resolve.
Comprehensive solutions: Considering the complex set of challenges that prevent refugees from obtaining correct civil and legal information, it is critical that actors working on documentation offer comprehensive support programs for beneficiaries. These depend on the context and the development of documentation issues, but may include: disseminating information about the importance of documentation; providing cash assistance to incentivize status regularization; assisting with legal representation in courts; establishing specialized courts and legal offices; and providing psychosocial support to establish trust in authorities.
Local leadership: Documentation challenges are often rooted in the way the national legislation is interpreted and applied. To ensure the design and implementation of effective programs, it is essential that donors and international NGOs fund and cooperate with aid practitioners and legal experts who have a nuanced and grounded understanding of the local context. For instance, some external actors initially advocated for the deletion or reform of Jordanian laws and articles related to documentation, this is typically a very long and bureaucratic process in Jordan. As such, local aid practitioners have instead advocated for the issuance of “bylaws,” including “regulations” and “decisions,” to quickly facilitate access to civil and legal documentation.
Looking forward
At the time of writing, the COVID-19 pandemic has introduced new challenges to civil and legal documentation in Jordan. Following the government issued lockdown, adopted on March 21, Civil and Sharia Courts were inactive for over two months. During this period, Syrian refugees who needed to register vital events such as marriages and births were unable to do so and ongoing legal processes involving documentation issues were stalled. At this stage, it is difficult to estimate the effect this will have on documentation in the long-term. It is a positive development that the government has temporarily waived all penalties regarding a delay in legal documentation through Defense Law Order No. 5 of 2020. Nevertheless, the lockdown has increased the likelihood of families getting married informally or having at-home births without a registered midwife. There is also a risk that some Syrians may think that civil registration will not be necessary following the end of the lockdown period and therefore incur legal penalties. In this way, the COVID-19 pandemic has underscored the need to continuously monitor developments in documentation, quickly disseminate accurate information, and launch targeted initiatives that speak to the specific challenges of the local context.
Alexander C. Burlin alexanderburlin@nyu.edu
Research Fellow, New York University Abu Dhabi
Ruba Ahmad ruahmed@ardd-jo.org
Former Research Manager, Arab Renaissance for Democracy & Development (ARDD)
This article was originally published on Refugee Law Initiative website.
References:
1 The study.
2 This is according to government estimates. As of September 4, 2020, the official number registered with UNHCR is 659,673. For latest information, see “Total Persons of Concern,” Syria Regional Refugee Response – Jordan, UNHCR, https://data2.unhcr.org/en/situations/syria/location/36.
3 “Refugee Status Determination,” UNHCR Jordan, accessed June 14, 2020, https://help.unhcr.org/jordan/en/helpful-services/refugee-status-determination/
