Legal Status, Labelling, and Protection - The Case of Iraqi Refugees' in Jordan

International Journal of Refugee Law Vol. 25 No. 1 pp.
1–38
© The Author (2013). Published by Oxford University Press. All rights reserved.
For Permissions please email: journals.permissions@oup.com
doi:10.1093/ijrl/eet001, Advance Access publication March 14, 2013
Articles
Legal Status, Labelling, and Protection: the
Case of Iraqi ‘Refugees’ in Jordan
DALLAL STEVENS*
Abstract
Discussion of Middle Eastern refugee law and policy has focused largely on Palestinians,
with relatively little analysis of non-Palestinian refugees and the legal framework that
applies to them in Middle Eastern countries. This article seeks to address this gap through
a wide-ranging examination of the treatment of Iraqi refugees in Jordan (a non-signatory
state to the Refugee Convention), following the invasion of Iraq in March 2003. In so
doing, it also examines certain issues with wider global implications, such as the nature of
refugee protection, the importance of identity, and the need for improved ‘burden sharing’.
The article provides a brief outline of the background to refugees in Jordan, together with
a discussion of the legal regime applicable to asylum seekers and refugees. It assesses the
importance of legal status and labelling to the Iraqis in Jordan, not only for access to rights
and provision of needs, but also for identity. The tension between UNHCR’s concepts
of ‘protection’ and ‘protection space’ and the Jordanian Government’s own approach to
sanctuary are explored, with reference to five key areas: employment, health, education,
resettlement and return. The article concludes by reflecting on the extent to which the
Jordanian case study can assist improved management of mass flight in the future.
1. Introduction
Shortly after the invasion of Iraq in March 2003, the world became acutely
aware of the consequences of military intervention for Iraqis – not only for
individuals remaining in their own country, but also for those who decided
to leave in search of safety elsewhere. At the time, media reports noted with
alarm the movement of people across the Iraqi border to neighbouring Arab
countries, mainly Syria and Jordan. The United Nations High Commissioner
for Refugees (UNHCR) labelled the Iraqi refugee crisis as ‘the big one’,1 and
any hope of an early resolution to the crisis, with a return of Iraqis to their
* Associate Professor, School of Law, University of Warwick, Coventry, CV4 7AL; d.e.stevens@
warwick.ac.uk. The author would like to thank the British Academy for its award of a small grant for
this project; Professor Gillian Hundt, Dr Sahar Almakhamreh, Dr Mahasen Aljaghoub, and Dr Salah
Alzaroo for their advice, participation and help with formulating and conducting the study; Ms Zeenat
Islam for her research assistance; and Dr Ayman Halasa, Mr Khair Smadi, Ms Oroub Al Abed, Ms
Kate Washington, Ms Eva Abu Halaweh (Mizan), UNHCR (Amman), CARITAS (Amman), Legal
Aid (Amman), and IMC (Zarqa) for their valuable co-operation and assistance.
1
UNHCR regional representative, Stephanie Jaquemet, to Reuters. A Lyon, ‘Iraqis flee-
ing conflict flood over borders’, 30 Jan 2007, <http://uk.reuters.com/article/2007/01/30/
lifestyle-migration-mideast-dc-idUKL2914300920070130?pageNumber=1>.
2 Dallal Stevens
own state, was soon dashed. In fact, the reverse occurred: rising internal
violence and revenge killings resulted in increasing numbers preferring to
take their chances abroad rather than face the climate of fear and chaos that
reigned in much of Iraq. However, the decision to migrate did not curtail
their problems; rather, it set in place a plethora of new hurdles and dilemmas
for the displaced population. While the world initially looked on in sympathy,
the passage of time marked a diminution of interest in the ongoing plight of
the displaced Iraqis by both politicians and the world’s media. Today, beyond
the region, limited reference is made to the case of Iraqi refugees.
The Middle East, despite its traumatic history of forced migration,2 has
long been inadequately analysed in the legal refugee studies literature (with
the exception of Palestinian refugees). While a number of studies have been
undertaken on the social well-being of Iraqi refugees, there is a clear lack
of analysis of the role of law, and particularly of legal status, in contribut-
ing to the problems confronted by Iraqis in a number of Middle Eastern
states. Jordan raises some unique issues in the refugee law context: it has
not ratified the 1951 UN Convention Relating to the Status of Refugees or
the 1967 Protocol (Refugee Convention), and its domestic law on the treat-
ment of asylum seekers and refugees is virtually non-existent. This is not to
suggest, however, that it has adopted a wholly belligerent attitude towards
refugees. In fact, the opposite is true. Jordan has accommodated refugees
and displaced peoples for much of its history, and is widely acclaimed for
its generosity in hosting Palestinians in its territory. Where it can be said
to fall short is in its refusal to regard any group other than Palestinians as
‘refugees’. Furthermore, the roles of the state, UNHCR, and (I)NGOs in
the provision of protection and aid, and their inter-connection, are not
always clear. And the implications for asylum and refugee policy beyond
the Middle East are arguably worrying.
The aim of this article is to examine the particular problem con-
fronted by ‘forced migrants’/’refugees’ in a state not party to the Refugee
Convention and to assess the inter-relationship between rights, protection,
and legal status.3 While this wide-ranging analysis seeks to enhance greater
understanding of the issues faced specifically in Jordan, consideration of
the Jordanian situation forces one to challenge some key concepts of ref-
ugee law and policy more broadly, as well as the current approaches to
protection adopted by states and by UNHCR. For example, what, in fact,
is the essence of ‘protection’ in contemporary refugee policy,4 to whom is
2
See, eg, D Chatty, Dispossession and Displacement in the Modern Middle East (CUP, 2010).
3
This article will use the term ‘refugee’ to describe both Palestinian and Iraqi residents in Jordan,
despite the uncertainty regarding use of the term for Iraqis.
4
‘Protection’ has many meanings, some of which are considered below. For discussion of the mean-
ing of ‘protection’ within art 1A(2) of the Refugee Convention, and the difference in interpretation
between ‘internal protection’ and ‘diplomatic protection’, see, A Fortin, ‘The meaning of “protection”
in the refugee definition’ (2001) 12 IJRL 548–76.
The Case of Iraqi ‘Refugees’ in Jordan 3
it owed, and what are the implications of UNHCR’s move towards the
concept of ‘protection space’? Is ‘protection space’ about rights protection,
supporting livelihoods, or both, and does Jordan’s tolerance of Iraqis in its
territory constitute protection? To which rights should an asylum seeker/
refugee be entitled in a hosting state? Who owes the obligation to protect
and to provide a minimum level of rights, particularly in a protected dis-
placement situation? How much does legal status matter? And, is humani-
tarian action alone sufficient?
The article opens with a brief outline of the background to Jordan’s
reception of refugees, and moves on to examine the national law relat-
ing to refugees and foreigners, as well as the involvement of UNHCR in
Jordan. The article then turns to the importance of labelling of Iraqis in
Jordan and its implications for protection, rights and needs. The concept
of ‘protection space’ is explored, with particular reference to employment,
health, education, resettlement and return. The significance of aid, so per-
tinent to the Iraqi case, is also considered. Finally, the article concludes
with an assessment of lessons arising from the Jordanian case-study that
may assist future refugee crises.
2. Jordan as refugee-receiving country

Although Jordan is not a party to the Refugee Convention, the country –
including its former incarnation, Transjordan – has received millions of
refugees over the years: Somalians, Sudanese, Chechens, Circassians,
Armenians, Palestinians, Mandeans, Iraqis and, most recently, Syrians. The
vast majority of the refugee population is Palestinian. The most notori-
ous inward flow occurred in 1948, when an estimated 100,000 Palestinians
crossed from Palestine to Jordan and were housed in tents in four temporary
camps, as well as in towns and villages.5 In the 1950s, the United Nations
Relief and Works Agency (UNRWA) replaced the tents with durable brick
buildings, and the Jordanian Government has since assisted in the provision
of basic services. Following the Israeli occupation of the West Bank and
Gaza Strip in 1967, a further influx of Palestinians ensued: approximately
140,000 UNRWA registered individuals plus a further 240,000 occupants
of the West Bank (considered to be ‘displaced persons’ rather than refugees
in view of the fact that the West Bank was administered by Jordan between
1948 and 1967).6 These refugees were accommodated in six emergency
camps. Decades later, in June 2010, there were over 2 million registered
Palestinians refugees in Jordan, with some 346,000 based in camps.7 In
5
UNRWA, <http://www.unrwa.org/etemplate.php?id=100>.
6
ibid.
7
UNRWA in Figures, 30 June 2010, <http://www.unrwa.org/userfiles/file/statistics/UNRWA_
in_figuresJune_2010_English.pdf>. About half the population in Jordan is estimated to be of
Palestinian origin.
4 Dallal Stevens
addition, UNRWA is of the view that there are a significant number of
Palestinians in Jordan who are not registered.
Though Palestinians have been the main focus of most discussions on
refugees in Jordan, many other groups of forced migrant have entered the
country. The major arrivals have been refugees from Iraq following the over-
throw of the Iraqi monarchy in 1958; from the Ba’thist regimes of Iraq and
Syria between the 1960s and 1980s; from Lebanon during the civil war of
1975–91 (though the majority of Lebanese travelled to Syria or outside the
Middle East); again from Iraq during the Iraq/Iran war in 1979, and dur-
ing the 1990–91 Gulf War (during which 1 million Iraqis and foreigners are
claimed to have crossed into Jordan over 2 months);8 and from Kuwait, when
300,000 Jordanian nationals of Palestinian origin were expelled during the
Gulf War. The number of Iraqis who actually entered Jordan immediately
pre- and post-March 2003 is uncertain.9 This is due, on the one hand, to the
fact that many transited through Jordan10 or were engaged in circulatory
migration, and, on the other, to the porous border between Iraq and Jordan,
which Jordanians and Iraqis crossed relatively unhindered.11
The Iraqi asylum application rate in Jordan from 1996 (when recording
started by UNHCR) to 2003 was fairly steady, but refugee status grants
were not particularly high.12 In March 2003, UNHCR recorded just 940
Iraqi refugees in Jordan,13 a small proportion of the estimated permanent
stock of about 200,000 to 300,000 Iraqis in Jordan.14 The very low refu-
gee figure is the result of UNHCR only recording asylum applicants at its
offices in Amman. The numbers of people who choose not to seek protec-
tion from UNHCR, for whatever reason, are by definition unknown.
In the immediate months following the outbreak of war in Iraq, in
March 2003, the first to arrive in Jordan were third country nationals who
8
G Chatelard, ‘What visibility conceals: Re-embedding Refugee Migration from Iraq’ in D Chatty
and B Finlayson (eds), Dispossession and Displacement: Forced Migration in the Middle East and North Africa (The
British Academy, 2010), 22.
9
For a discussion of the pre-2003 period, see, G Chatelard, ‘Migration from Iraq between the Gulf
and Iraq Wars (1990–2003): Historical and socio-spatial dimensions’ (COMPAS, Working Paper no
68, 2009).
10
For a further discussion of Iraqi transit migration, see, G Chatelard, ‘Incentives to transit: Policy
responses to influxes of Iraqi forced migrants in Jordan’ (EUI Working Papers, RSC no 2002/50,
Mediterranean Programme Series).
11
At least until the Jordanian authorities began to tighten up their entry requirements from Nov
2005 onwards.
12
Iraqi asylum applicants to Jordan:
1996 1997 1998 1999 2000 2001 2002 2003
5,981 5,049 7,872 7,727 6,623 4,096 2,234 3,345
(from ‘UNHCR 2003 Statistical Yearbook Country Data Sheet – Iraq’, Sept 2005).
13
UNHCR, ‘Iraqi refugee and asylum-seeker statistics’, Mar 2003, available at: <http://www.
unhcr.org/3e79b00b9.html>.
14
Chatelard, above n 9, para 2.2.3.
had been living in Iraq – Sudanese, Somalians, Malians and Eritraeans;15
they were soon followed by Palestinians, Iranian Kurds, and, finally,
Iraqis.16 Clearly, the number of Iraqis who left Iraq at that time are difficult
to assess with any degree of accuracy. Not only did the borders between
Iraq and Jordan and Iraq and Syria remain open for a number of years,
but return migration also took place after the fall of Saddam Hussein.17
What is certain is that a major incursion occurred following the increasing
inter-communal violence in Iraq in 2006. The Jordanian Government has
long claimed that it suffered a considerable burden, at one stage suggest-
ing that there were 750,000 to 1 million Iraqis in the country as a direct
consequence of the Iraq War and its aftermath. This number has been
widely debated, with some suggesting that Jordan exaggerated the figure
for political and economic gains: the greater the number the greater the
investment of aid and the assumption of responsibility by the international
community, especially by the United States, regarded by most in the region
as responsible for the displacement crisis.18
To seek some resolution of the statistical uncertainties, the Jordanian
Department of Statistics asked Norway’s Institute for Labour and Social
Research (FAFO) to undertake an analysis of the numbers of Iraqis pres-
ent in Jordan. In May 2007, FAFO reported that there were between
450,000–500,000 Iraqi nationals in Jordan. While this is widely cited as
the definitive statistic, the report itself is less than convincing. It actually
estimated the number of Iraqis at 161,000, but then went on to say:
The survey was based on interviews in nearly 1000 sample clusters and depended
on Iraqis identifying themselves as Iraqi nationals. The comparatively low number
may be a result of the fact that Iraqis may have been reluctant to reveal themselves
to the Jordanian authorities. They may have feared deportation or other sanctions
and therefore preferred not to identify themselves as Iraqis to the survey teams,
but rather as Jordanians or other Arab nationalities.19
It concluded briefly that:
Given the major discrepancies in figures, the Jordanian government’s techni-
cal team was tasked with reconciling the various and contradictory estimates of
15
According to a leaked cable, only 46 third country nationals crossed the border between 24 and
25 Mar, five days after the commencement of the invasion, bringing the total population of the transit
camp at the border to 169, <http://wikileaks.org/cable/2003/03/03AMMAN1800.html>.
16
Human Rights Watch, ‘Flight from Iraq: Attacks on Refugees and Other Foreigners and their
Treatment in Jordan’ (10 May 2003), available at: <http://www.unhcr.org/refworld/docid/3f4f5957a.
html>.
17
G Chatelard & K Dorai, ‘Iraqis in Syria and Jordan: Entry and Reception Regimes and their
effects on Migratory Patterns’ (conference paper, Future of Iraq: Social, Economic and Political Issues in
Question, Japan Center for Middle Eastern Studies, Beirut, 16–17 Jan 2010).
18
See further discussion on aid below.
19
FAFO/Gov of Jordan/UNFPA, ‘Iraqis in Jordan – Their Number and Characteristics’ (May
2007), 7, <http://www.dos.gov.jo/dos_home_e/main/Iraqis%20in%20Jordan.pdf>.
6 Dallal Stevens
the size of the Iraqi community and has concluded that the number of Iraqis in
Jordan is estimated at 450,000–500,000.20
It is claimed by some that the Jordanian Government objected to the
lower estimate and persuaded FAFO to agree to the higher figure,21 despite
its own view that, in contradiction to the report, it did not, in fact, encoun-
ter much hesitation or unwillingness to be counted.22 Certainly many
organizations on the ground dispute the very high figures suggested by
the Government and ultimately by FAFO. Indeed, the latest number of
Iraqi refugees actively registered with UNHCR is 32,200 (January 2013).23
Taking into account returns to Iraq (of which there have been relatively
few), increasing movement across borders, resulting in fluctuating popula-
tions, and resettlement (which has been cumbersome and limited), and
assuming that not all Iraqis in Jordan are registered with UNHCR, the
difference in the statistical data still leads one to assume that, even at the
height of Iraqi influx, the numbers were significantly overstated. The
current view posited by (I)NGOs is that there are between 100,000 and
200,000 Iraqis in Jordan, and there are suggestions that the Government
has resisted, of late, making specific reference to the higher numbers.24
3. Refugee law and process

Whatever the real figure for Iraqis, with the total population of Jordan in
the region of 6,500,000 (2012), the proportion of refugees – Palestinian
and Iraqi – is still very high indeed. In fact, Jordan has the highest ratio of
refugees to indigenous peoples of any country in the world.25 Yet, Jordan’s
refugee law remains virtually non-existent. Not only is Jordan not a party
to the Refugee Convention, it does not possess any domestic refugee law.
As with many states, it does, however, pay lip-service to the non-binding
1948 Universal Declaration of Human Rights, and thus to article 14(1):
the right of every individual to seek and enjoy asylum from persecution.
In addition, Jordan is a member of UNHCR’s Executive Committee
(ExCom), which exists to ‘review and approve the agency’s programmes
20
ibid, 8.
21
International Crisis Group, ‘Failed responsibility: Iraqi refugees in Syria, Jordan and Lebanon’
(Middle East Report no 77, 10 July 2008), <http://www.crisisgroup.org/~/media/Files/Middle%20
East%20North%20Africa/Iraq%20Syria%20Lebanon/Iraq/ailed_responsibility___iraqi_refugees_
in_syria__jordan_and_lebanon.ashx>.
22
FAFO, ‘Seven questions on the estimation of the number of Iraqis in Jordan’, 1, <http://www.
fafo.no/ais/middeast/jordan/IJ_7Q.pdf>.
23
‘Regional Response Plan for Iraqi Refugees 2012’ (RRP), 46, <http://www.unocha.org/cap/
appeals/regional-response-plan-iraq-2012>. Interestingly, there has been an increase of registra-
tions from Jan 2011, when UNHCR reported 30,800 Iraqi registrations: UNHCR, ‘2011 UNHCR
Country operations profile – Jordan’, <http://www.unhcr.org/pages/49e486566.html>.
24
See, <http://www.wikileaks.ch/cable/2010/02/10AMMAN459.html>.
25
G Chatelard, ‘Jordan: A refugee haven’ (Migration Policy Institute, Aug 2010).
and budget, advise on international protection and discuss a wide range of
other issues with UNHCR and its intergovernmental and non-governmen-
tal partners’.26 One of its more influential functions is the production of
regular Conclusions on global refugee law and policy that seek to further
good practice by states. Jordan, as an ExCom member, can be regarded as
implicitly acknowledging the importance of UNHCR and of refugee law
and policy more generally.
Within domestic legislation, provision is made in the Jordanian
Constitution of 1952 for the barring of extradition of political refugees.27
However, beyond the Constitution, the closest the national law comes to
recognition of the concept of asylum or refugee status is Law No 24 of
1973 on Residence and Foreigners’ Affairs, which controls the entry and
stay of non-nationals in Jordan. Here, occasional reference is made to
‘refugees’ and to ‘asylum’ – for example, those seeking political asylum
are expected to report to the nearest office of the Directorate of Public
Security/Division for Residence and Foreigner Affairs, or a police station,
within 48 hours.28 Not much else is specified as to the consequences of
reporting. Article 29(h) states that provisions of the Law do not apply to
‘Persons exempted by the Minister on account of special considerations
connected with international or humanitarian courtesy or of the right to
political asylum or yet in application of the principle of reciprocity’. No
such exemption has been promulgated.
Jordan is not alone in adopting this stance in the Middle East – only Egypt,
Yemen and Israel have acceded to the Refugee Convention. In Jordan’s case,
political sensitivities are often cited as a major reason for continuing refusal
to ratify the Convention – the most obvious being ‘the Palestinian issue’.
It is true that for Arab states, such as Jordan, the term ‘refugee’ has par-
ticular resonance and is generally equated with ‘Palestinian’. Under article
1D paragraph 1 of the Refugee Convention, Palestinians are excluded from
consideration if they are receiving protection or assistance from UNRWA;
but most Palestinians in Jordan have citizenship,29 and would, in any case,
26
UNHCR, <http://www.unhcr.org/pages/49c3646c83.html>.
27
Art 21: ‘Political refugees shall not be extradited on account of their beliefs or for their defence
of liberty’.
28
Art 6; The main government offices in Jordan responsible for admission, residence and protec-
tion are the Ministry of Interior, the Residency and Borders Directorate, and the General Intelligence
Department.
29
Gained under the 1949 amendment to the 1928 Law on Nationality, which stated that ‘All those
who at the time when this Law goes into effect habitually reside in Transjordan or in the Western part
[of the Jordan] which is being administered by [the Kingdom], and who were holders of Palestinian
citizenship, shall be deemed as Jordanians enjoying all rights of Jordanians and bearing all the atten-
dant obligations.’ The 1954 Law on Nationality (No 6) granted Jordanian nationality to, inter alia,
Palestinians living in Jordan between 20 Dec 1949 and 16 Feb 1954 (this included the West Bank). On
31 July 1988, Jordan severed its relationship with the West Bank and declared all those residing in the
West Bank as ‘Palestinians’, thereby revoking their Jordanian nationality.
8 Dallal Stevens
fall under the cessation provision of article 1C(3).30 While it might have been
the case in 1951 that there was little incentive for Arab states to sign the
Convention once article 1D had been negotiated, it is somewhat spurious to
maintain this argument as an ongoing excuse for failure to ratify. More per-
suasive alternatives are: (i) the fact that the potential political problem associ-
ated with one Arab state granting refugee status to the citizens of another
is arguably a major barrier to accession,31 and (ii) Jordan and its neighbours
have yet to be persuaded of the benefits of signing up to a system that guar-
antees myriad enhanced rights for new non-Palestinian refugees.
Notwithstanding lukewarm attitudes to the Refugee Convention, Jordan
did agree to UNHCR establishing an office in Amman in 1997, and signed
a Memorandum of Understanding (MOU) with UNHCR in 1998.32
The very act of agreeing a MOU puts paid to political rhetoric that the
term ‘refugee’ is only associated with Palestinian.33 After all, the MOU
clearly adopts the Refugee Convention definition of a ‘refugee’ without
geographic or temporal limitation,34 and permits UNHCR to interview
‘asylum seekers’ in Jordan and to determine their refugee status.35 It also
reinforces respect for the principle of non-refoulement;36 sets out the duties
and obligations on the part of the state, UNHCR, and the refugee; states
that asylum seekers and refugees should be treated in accordance with
internationally accepted standards and that refugees should receive legal
status;37 and UNHCR agrees to find recognized refugees a durable solution
within six months, either through voluntary repatriation to the country of
origin or resettlement in a third country.38 The term ‘refugee’ is therefore
fully recognized in this document, as is the term ‘asylum seeker’. Up until
2003, when certain changes were sought, UNHCR applied the MOU
and carried out individual refugee status determinations (RSD). As in all
circumstances where UNHCR is conducting RSD, its legal competence
30
‘This Convention shall cease to apply to any person falling under the terms of section A [defini-
tion of a ‘refugee’] if: ... [h]e has acquired a new nationality, and enjoys the protection of the country
of his new nationality’.
31
A Halasa, ‘The legal status of non-Palestinian refugees in Jordan’ (2006) 212 Mu’tah Journal for
Legal Research 221–50 (in Arabic).
32
The copy of the Memorandum has been removed from the UNHCR website. A version in
Arabic, with an unofficial translation into English, is available at: <http://www.carim.org/public/
legaltexts/LE2JOR002_AREN.pdf>.
33
An informal copy of the MOU is available on the website of CARIM, <http://www.carim.org/
public/legaltexts/LE2JOR002_AREN.pdf>.
34
There is some question about the validity of the MOU within Jordan as it has not met two appar-
ent constitutional requirements for an international agreement: publication in the Official Gazette
and Parliamentary approval. However, it would appear the judiciary is not clear on the constitutional
position (interview on file with Jordanian law professor, Dr Ayman Halasa).
35
Art 3.
36
Art 2(1).
37
Art 5.
38
ibid.
arises from its own Statute, and refugee status is based on both the original
mandate contained therein39 and subsequent expansion of the mandate.40
In view of the paucity in Jordan of international and national legal
norms on asylum seekers and refugees, the obligation to determine refu-
gee status and to provide protection has been shouldered by UNRWA –
for Palestinians – and UNHCR for non-Palestinians. Notwithstanding the
existence of the MOU between state and Office, the relationship between
UNHCR and Jordan has not been straightforward. Shortly after commence-
ment of hostilities by the US and UK in Iraq, and the arrival of the first refu-
gees in Jordan, a Letter of Understanding was signed between the Jordanian
Government and UNHCR, in which it was agreed that a Centre be estab-
lished in the border area between Iraq and Jordan to provide ‘temporary
protection’ to beneficiaries.41 Despite clear reference to temporary protec-
tion applying only in relation to the Centre, UNHCR attempted to intro-
duce a pan-national ‘temporary protection regime’ (TPR) for all refugees.42
The advantages of a TPR were threefold: (i) it would protect Iraqis from
return or refoulement to Iraq; (ii) it would enable UNHCR to avoid process-
ing asylum claims (at the time it had limited resources to conduct individual
RSD for a major influx); and (iii) it would also, in theory, enable beneficiaries
to have improved access to certain services. It could also be argued that a
TPR would reduce the burden on UNHCR by absolving it of the obligation
to seek resettlement for the beneficiaries within six months, as demanded by
the MOU for UNHCR recognized refugees.43 Indeed, there is a suggestion
in UNHCR’s Country Operations Plan for 2005 that resettlement was to
be the least likely option for the majority of Iraqis: ‘It is expected that the
temporary protection regime will continue, followed by possible voluntary
repatriation in the future. The solutions capacity has changed significantly in
Jordan; resettlement is not any longer the only viable durable solution …’.44
As far as the Government was concerned, however, the ‘temporary
protection’, as set out in the Letter, covered arrangements in the Centre
only, and specifically excluded the possibility of local integration, assimi-
lation or permanent residency in Jordan.45 However, confusion remained
39
1950 UNHCR Statute, paras 6A(ii) and 6B.
40
For a helpful discussion of individuals covered by UNHCR’s mandate, see, ‘Population
Movements Associated with the Search for Asylum and Refuge’, ExCom/WGSP/5, 4 Dec 1990;
UNHCR, ‘Protection of Persons of concern to UNHCR who fall outside the 1951 Convention:
A Discussion Note’, UN doc EC/1992/SCP/CRP.5, 2 Apr 1992, para 11.
41
Signed in Apr 2003, available at: <http://untreatorgy.un./unts/144078_158780/5/4/12963.pdf>.
42
UNHCR, ‘UNHCR urges states to grant temporary protection to Iraqis’, 26 Mar 2003, <http://
reliefweb.int/sites/reliefweb.int/files/reliefweb_pdf/node-122092.pdf>.
43
Art 5.
44
UNHCR, ‘Country Operations Plan 2005 – Jordan’, 1, <http://www.unhcr.org/refworld/
pdfid/415962462.pdf>. The Plan does go on to say that resettlement is the most viable option for
selected groups, such as survivors of torture, women at risk, and others with special protection needs, 2.
45
Letter of Understanding between the Government of the Hashemite Kingdom of Jordan and
UNHCR, 15 Apr 2003, art 2(3).
10 Dallal Stevens
as to the nature and extent of the TPR. In its Country Operations
Plans for Jordan for both 2005 and 2006, UNHCR assumes, incorrectly,
that the Government of Jordan had agreed to a TPR in the Letter of
Understanding (while at the same time noting in the 2006 Plan that the
Government ‘has recently started questioning the temporary protection
regime as the adequate response … and … has communicated to UNHCR
in writing that it no longer considers the TPR regime as valid’).46 The
Government had in fact formally rejected a TPR in April 2005; Jordan’s
interpretation of the Letter as referring only to arrangements in the bor-
der camps and not authorizing a wider TPR throughout the country was
correct. For the Government, TPR was very quickly deemed a step too
far by UNHCR, as it bore no resemblance to the MOU, regarded as the
bedrock of UNHCR’s involvement in Jordan. UNHCR, however, per-
sisted in the vain hope that the Jordanian Government’s opinion would
change, and only finally conceded the rejection of the TPR in its Plan for
2008–09.47
The question arises as to why Jordan was so resistant to the concept of
temporary protection, which has a long history and is regarded as appro-
priate for mass influx situations, particularly where non-signatory states
are concerned.48 As the term suggests, temporary protection is intended to
offer interim protection while a durable solution is sought; the attraction
to the host state is the clear understanding between benefactor and ben-
eficiary that return to the home state in the future is expected. Fitzpatrick
describes it as ‘interim protection, non-refoulement through time’.49 While
there was concern that temporary protection could act as a pull factor
during a period of mass inward flow,50 for the Jordanian Government, it
was also the non-rejection and non-refoulement aspects of temporary pro-
tection that were evidently troubling. A broad application of a TPR is
apparently perceived as restricting Jordan’s sovereign right to determine
entry and exclusion.51 Such a stance ignores the widely held view that
non-refoulement is a principle of customary international law;52 that Jordan
46
UNHCR, ‘Country Operations Plan 2006 – Jordan’, 1, <http://www.unhcr.org/refworld/
pdfid/43327b4e2.pdf>.
47
UNHCR, ‘Country Operations Plan 2008–09 – Jordan’, 2, <http://www.unhcr.org/49cb98a42.
html>.
48
For discussion of the concept of temporary protection, see, J Fitzpatrick, ‘Temporary protection
of refugees: Elements of a formalized regime’ (2000) 94 AMJIL 279.
49
ibid, 283.
50
ibid.
51
K Smadi, email correspondence, on file.
52
For a general discussion of non-refoulement as a norm of customary international law, see, G
Goodwin-Gill & J McAdam, The Refugee in International Law (OUP, 2007, 3rd edn), 345–54. While the
broader consensus is in favour of a norm of customary international law, Hathaway remains unper-
suaded and provides the opposing academic opinion in The Rights of Refugees under International Law
(CUP, 2005), 263–370.
clearly acknowledged its non-refoulement obligations in the MOU; and that 53
non-rejection at the frontier is regarded as fundamental to non-refoulement.54

One also suspects that the Government demanded adherence to the MOU
to ensure that resettlement took place as soon as possible, and Iraqis were
removed from Jordanian soil; a TPR, which might seem unstructured and
without an obvious end-date, can, despite its name, give the impression of
permanence – the European model of the 1990s, during the Yugoslavian
crisis, has done little to assuage such fears.
Perhaps more significantly, during the period in which UNHCR
assumed that a TPR was in place, individual RSD was not carried out for
the majority of Iraqis entering Jordan. Early on, UNHCR decided that it
would register asylum seekers and other ‘persons of concern’ under the
supposed TPR and that RSD would only be conducted for non-Iraqis and
‘high profile Iraqis’.55 Whether the Jordanian Government regarded this as
an advantage or disadvantage to its own policy objectives is unclear. What
is known is that in the period between late March 2003 and April 2005,
during which UNHCR considered Iraqis as ‘persons of concern’ under
the TPR, Jordan regarded them as ‘asylum seekers’ as per the MOU.
In part as a consequence of the failure of the TPR, in January 2007,
UNHCR started to apply prima facie refugee status to all Iraqis from cen-
tral and southern Iraq,56 and also argued that all Iraqis from central and
southern Iraq who had fled since April 2003 should be considered refugees
on a prima facie basis.57 While this approach was attractive to UNHCR, in
that it would, again, obviate the need to conduct individual RSD, it was
once more resisted by the Jordanian Government, possibly fearing that
prima facie recognition would be tantamount to temporary protection.58
The Government refused to accept that prima facie refugees should receive
a refugee card, and demanded that UNHCR treat registered Iraqis as asy-
lum seekers unless and until an individual RSD was conducted in accor-
dance with the MOU. UNHCR was forced to amend its approach and
53
‘In order to safeguard the asylum institution in Jordan and to enable UNHCR to act within
its mandate to provide international protection to persons falling within its mandate, it was agreed:
(i) that the principle of non-refoulement should be respected that no refugee seeking asylum in Jordan
will be returned to a country where his life or freedom could be threatened because of his race,
religion, nationality, membership of a particular social group, or political opinion’, Memorandum of
Understanding, art 2.
54
See, eg, ExCom, ‘Protection of Asylum-Seekers in Situations of Large-Scale Influx’, no 22
(1981), para II A(2).
55
‘UNHCR Country Operations Plan 2004 – Jordan’, <http://www.unhcr.org/refworld/
country,,,COP,JOR,,3fd9c6724,0.html>.
56
For the reasoning behind the decision, see, A Harper, ‘Iraq’s refugees: ignored and unwanted’
(2008) 90 International Review of the Red Cross 169, at 175–77.
57
ibid, 176.
58
See, eg, D McNamara, former UNHCR Director of International Protection, in D McNamara
& G Goodwin-Gill, ‘UNHCR and international refugee protection’, RSP Working Paper no 2, June
1999, 7.
12 Dallal Stevens
commenced issuing an ‘Asylum Seeker Certificate’ to Iraqis who registered
in its office in Amman.
These differences in nomenclature – ‘asylum seeker’, ‘refugee’, ‘person
of concern’, ‘beneficiary of temporary protection’, and ‘prima facie refugee’–
placed a strain on the relationship between Jordan and UNHCR, with Jordan
insisting at every turn that UNHCR abide by the terms of the MOU, and
UNHCR seeking alternative ways in which to provide a safe haven for Iraqis
without the need to conduct RSD, with its significant burden on resources;
its inherent risk of refusal; and potential return to Iraq. As a consequence of
the ‘bad blood’ between the two concerning Iraqi migration, UNHCR sus-
pended its activity in March 2007 for three weeks culminating in the replace-
ment of its then representative (Robert Breen) by Imran Riza.
From 2007 onwards, Iraqis are required to register with UNHCR and
receive an Asylum Seeker Certificate, which carries no entitlement to work
or to residency, and is limited to six months. Its only benefit is that it offers
some protection, in the form of potential assistance from UNHCR, in the
face of certain eventualities, such as detention and proposed deportation.
Registered asylum seekers are also scheduled for a substantive RSD interview.
According to the MOU, RSD should occur within two weeks of registration,
but the reality is that the interview takes place as and when there is availabil-
ity of a UNHCR officer, although UNHCR does try to hold them within
a few months of registration. If refugee status is granted, UNHCR has six
months under the MOU to arrange voluntary return or resettlement. Again,
in reality, resettlement (the preferred option in the majority of cases) takes
much longer to arrange. The interesting point here is that, despite Jordan’s
objection to any attempt by UNHCR to sidestep the MOU, officials do not
seek to remove anyone remaining beyond the six month resettlement period
(and most do). Instead, they admit that they ‘bend the rules’ and ‘turn a blind
eye’ when the MOU is not strictly adhered to regarding departure.59 Once
a case has been submitted for resettlement, a blue card is issued. This card
must be signed jointly by the Ministry for the Interior and UNHCR. While
any recognized refugee is entitled to such a card (so, in theory, all prima facie
status refugees could be entitled to a blue card),60 UNHCR only issues the
blue card to those Iraqis with a realistic opportunity for resettlement outside
Jordan within the MOU specified time of six months.61 In 2009, UNHCR
revised its eligibility criteria for asylum seekers from Iraq and determined
that all Iraqi asylum seekers from the five Central Governorates of Baghdad,
59
See, <http://wikileaks.org/cable/2008/01/08AMMAN264.html>.
60
The issue of whether prima facie status leads to an equivalent status to that offered by the Refugee
Convention is somewhat contentious. One view is that prima facie status is a legal refugee status; the
alternative is that it is a lesser status with fewer rights: for discussion, see, I Jackson, The Refugee Concept
in Group Situation (Martinus Nijhoff, 1999), 107–8; M Albert, ‘Governance and prima facie refugee status
determination: Clarifying the boundaries of temporary protection, group determination, and mass
influx’ (2010) 29 RSQ 61–91.
61
Art 5.
Diyaka, Kirkuk, Ninewa and Salah-Al-Din continued to be in need of inter-
national protection (as Refugee Convention refugees, or prima facie refugees,
or beneficiaries of complementary protection).62 Arguably, the May 2012
revised guidance has somewhat tempered this position.63
In summary, then, the picture is confused and confusing. The Jordanian
Government insists on compliance with the MOU, with its definition of
‘refugee’ as that contained in the Refugee Convention, but continues to
refer to all Iraqis as ‘guests’; UNHCR is granted permission by the state
to carry out RSD; its attempts to apply temporary protection or prima facie
status have been rejected by the Government. Nonetheless, in carrying out
RSD, UNHCR applies its own eligibility criteria for Iraqis, which up to
2012 endorsed a prima facie approach, in relation to Iraqi asylum seekers
from the Central Governorates of Baghdad, where individual RSD was
not feasible; it insisted further, that ‘Iraqi asylum-seekers from the Central
Governorates of Baghdad, Diyala, Kirkuk, Ninewa and Salah Al-Din
should be considered as refugees based on the 1951 Convention criteria or the rele-
vant applicable regional criteria’ (emphasis added).64 It also called on those
states that were able, because of the availability of an extended refugee
definition,65 to offer international protection, where state interpretation of
the Refugee Convention did not afford refugee status to asylum seekers
from the five Governorates. In determining refugee status, UNHCR now
considers the individual risk profiles of Iraqis, as well as the level and inten-
sity of violence in their place of former residence.
UNHCR’s guidebook on RSD written for asylum seekers in Jordan66
states that:
I n order to be recognized as a refugee you must show that you are outside your
country of nationality or habitual residence, and have:
• a well founded fear of persecution
° ° for reasons of race, religion, nationality, membership of a particular
social group or political opinion, or
62
UNHCR, ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of
Iraqi Asylum Seekers’ (Apr 2009), available at: <http://www.unhcr.org/4a2640852.pdf>; UNHCR,
‘Note on the continued applicability of the April 2009 UNHCR eligibility guidelines for assessing the
international protection needs of Iraqi asylum-seekers’ (July 2010), available at: <http://www.unhcr.
org/refworld/docid/49f569cf2.html>. The 2007 position had been that Iraqi asylum seekers from
Central and Southern Iraq should be considered to be in need of international protection: UNHCR,
‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum
Seekers’ (Aug 2007), 14, <http://www.unhcr.org/46dec4da2.html>.
63
UNHCR, ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum
Seekers from Iraq’ (May 2012), available at: <http://www.unhcr.org/refworld/pdfid/4fc77d522.pdf>.
64
UNHCR Eligibility Guidelines, above n 62, para 12.
65
Namely art 1 of the Convention Governing the Specific Aspects of Refugee Problems in Africa,
10 Sept 1969, and Section III para 3 of the Cartagena Declaration on Refugees, 22 Nov 1984.
66
UNHCR, ‘Guidebook for asylum seekers on UNHCR’s refugee status determination procedures
in Jordan’, Sept 2009 version.
14 Dallal Stevens
° ° f or reasons arising from a situation of generalized violence or serious
public disorder,
• and that your country does not want or cannot protect you.67
Unfortunately, this definition is erroneous: ‘for reasons arising from a
situation of generalized violence or serious public disorder’ does not need
to be connected to a well founded fear of persecution, but constitutes a
second category of refugee recognized by UNHCR under its expanded
mandate:
In addition to individuals who meet the criteria in the 1951 Convention defini-
tion, UNHCR recognizes as refugees persons who are outside their country of
nationality or habitual residence and unable to return there owing to serious and
indiscriminate threats to life, physical integrity or freedom resulting from general-
ized violence or events seriously disturbing public order.68
This inaccuracy aside, the inclusion of both definitions of refugee – that
of the Refugee Convention and UNHCR’s broader mandate – raises the
question of which definition UNHCR is applying in relation to Iraqi RSD
in Jordan. A glance at recent statistics on the number of Iraqi refugees in
Jordan reveals that, of 33,753 registered with UNHCR, 32,628 are des-
ignated as ‘refugees’; 1,109 as ‘asylum seekers’; and six are categorized as
‘others’.69 However, with no further explanation, it is unclear whether the
refugees are from one of the five Governorates (and therefore likely to be
deemed a refugee by UNHCR); are legacy refugees from the 2007 eligibil-
ity criteria and are from Central or Southern Iraq; have had an individual
RSD to assess Refugee Convention criteria; or fall within UNHCR’s wider
mandate (applicable, in particular, to early prima facie applicants). Such
nomenclature might not matter if a looser approach is adopted towards
those entitled to protection and a safe haven, but, for many states, too
inclusive a category of beneficiaries is undermining of refugee law and
unwelcome.
4. Visa laws and residency rights

The very evident anathema that Jordan has towards the term ‘refugee’ is
striking. After all, Jordan regards itself – and is regarded – as having an
open door policy to Arab nationals – but only when Arabs enter to visit,
67
ibid, at 1.
68
UNHCR, ‘Resettlement Handbook’ (4 July 2011), ch 1, 19, <http://www.unhcr.org/4a2ccf4c6.
html>; for a useful commentary on the expanded competence of UNHCR and the concept of inter-
national protection, see also, ExCom, ‘Note on International Protection – submitted by the High
Commissioner’, UN doc A/AC.96/830, 7 Sept 1994.
69
UNHCR Region – Iraq Operation, ‘Statistical report on UNHCR registered Iraqis and non-
Iraqis – Iraq, Egypt, Iran, Jordan, Lebanon, Syria, Turkey, and the GCC countries’, <http://www.
unhcr.org/refworld/pdfid/4e92a86d2.pdf>.
work, study or invest. Entry by all non-nationals is governed by Law No 24
of 1973 on Residence and Foreigners’ Affairs (as amended), and by bilat-
eral arrangements with neighbouring Arab states. With the current excep-
tion of Iraq, nationals from Arab countries of the Gulf and Mashreq70
(including Egypt) are exempted from visa requirements. Nationals of the
North African Arab states of Algeria, Libya and Morocco can obtain a
visa on arrival but are not charged, although Moroccan women between
18 to 35 years must obtain prior approval. Tunisians, however, require
a visa on arrival for which they are required to pay the normal visa fee
of JD10 (US$ 14).71 For exempted nationals, all that is needed is a valid
passport at the border to be registered as visitors for 3 months on a renew-
able basis, normally up to six months.72 However, there is no right to work
associated with visitor status.73 Longer term residence permits of a year
are available in certain cases: for holders of an employment contract; those
with secure income (the amount originally required to be deposited with
the Bank of Jordan was US$ 150,000); investors; those with scientific or
vocational skills that are not met in Jordan; diplomats; disabled persons or
minor children dependant on a Jordanian resident; and students admitted
to a Jordanian education establishment.74
Iraqis, too, benefited from this pan-Arab open border policy in so far
as they were permitted to enter as temporary visitors and were covered
by the law on admission for nationals of a neighbouring Arab state. They
were not, as indicated, designated asylum seekers or refugees by the state
(though, on registration with UNHCR, such status might be forthcom-
ing). Thus, until November 2005, when three hotels were bombed in
Amman, Iraqis could enter Jordan without the need for a prior visa. Soon
after this event, however, Iraqis began to be turned away at the border
or were issued with very short-term visas – for one month or less. Young
men between 17 and 35 were particularly vulnerable to rejection, as were
Shi’a, and, by November 2006, the border was effectively closed to them.75
In addition, from 2007 onwards, Iraqis were asked to present the new
G-series passport, which was difficult to obtain.76 For those already based
in Jordan, it became increasingly difficult to get residence permits renewed
70
The definition of the Mashreq countries varies, but generally includes Cyprus, Jordan, Syria, the
Palestinian Authority, Lebanon and Iraq; it can sometimes include Egypt.
71
See, ‘Euromed Migration II (2008–2011): Migration Legislation, Institutions and Policies in the
Euromed Region’, table 6.4.5, available at: <http://www.euromed-migration.eu/sites/euromed-
migration.eu/myzms/content/e1152/e16559/e16566/MigrationLegislation,Institutionsandpoliciesi
ntheEUROMEDregionEN_eng.pdf>.
72
Law No 24 of 1973, art 20.
73
P Weiss Fagen, ‘Iraqi Refugees: Seeking Stability in Syria and Jordan’ (ISIM/CIRS, 2007), 8.
74
Law No 24 of 1973, art 26.
75
US Committee for Refugees and Immigrants, ‘World Refugee Survey 2009, Jordan’ (July 2009);
Int’l Catholic Migration Commission (ICMC), ‘Protection, mobility and livelihood challenges of dis-
placed Iraqi in urban settings in Jordan’ (May–Oct 2009), 13; Chatelard & Dorai, above n 17.
76
World Refugee Survey, ibid.
16 Dallal Stevens
(with the exception of students and investors). To renew a temporary visa,
Iraqis were expected to exit and re-enter; failure to do so made them sub-
ject to the daily fine of JD 1.5 (US$ 2) for illegal residence. After 2005,
renewal could not be guaranteed. In 2007, Jordan announced its intention
to implement a new visa regime and, from 1 May 2008, Iraqis seeking
entry were required to pay JD 10 (US$ 14) for their visas and to obtain
them in advance. But only certain groups were eligible to apply: business
people, government officials, students, those requiring medical attention,
and those with an institutional guarantor in Iraq or Jordan.77 Early oper-
ation of the rules indicated that the authorities were prepared to reject
a sizeable proportion of applicants. For example, by mid-July 2008, of
some 28,000 applications, 17,000 were granted; 6,000 refused; and 4,800
outstanding.78 Following complaints from the Iraqi ‘guests’, in February
2009, the rules were relaxed for Iraqi business people, investors and dip-
lomats, and entry to Jordan eased, through the establishment of a special
office at the Karamah crossing with Iraq.79 However, as a result of all these
measures, the numbers of non-elite/non-investor Iraqis entering Jordan
declined from 2006.80 Iraqis are the only Arab nationals who are both
charged for their visas and require prior approval to enter Jordan.
Most Iraqis in Jordan have not renewed their visas after expiry and were
therefore burdened with cumulated fines. This inevitably created uncer-
tainty, as well as fear of arrest and removal. In an attempt to resolve the
problem, the Government offered to waive the whole fine if Iraqi over-
stayers left the country, or to halve it if they sought to legalize their sta-
tus.81 But as legalization of status simply meant renewal of the temporary
visa, with the necessary documentation qualifying them to stay in the
Kingdom – such as work contracts or bank statements – it has been sug-
gested that few Iraqis chose this route.82 Nonetheless, the Interior Ministry
claims 60,000 Iraqis rectified their status, and that 80% of all Iraqis based
in Jordan do not have legal entitlement to remain.83 Despite this, the
Jordanian Government indicated that it would not deport people back to
Iraq in view of ongoing security concerns in that country.84 In a second
attempt at an amnesty, King Abdullah called for a ‘General Pardon Law’,
which was approved in June 2011 and which cancels all overstay fines. At
77
ICMC, above n 75.
78
World Refugee Survey, above n 75.
79
H Hazaimeh, ‘New instructions ease restriction for Iraqi guests’ The Jordan Times (20 Feb 2009).
80
Chatelard & Dorai, above n 17.
81
In Mar 2008.
82
L Hindi, ‘Iraqis welcome decision on fines, but question impact’ The Jordan Times (15 Feb 2008);
IRIN Middle East, ‘Jordan: Government stops issuing residency permits to Iraqis’ (16 July 2008),
<http://www.irinnews.org/report.aspx?ReportID=79276>.
83
IRIN, ibid.
84
ibid.
the same time, the Residency and Borders Directorate called, once more,
on all foreigners to rectify their residency status.85
This co-application of international refugee law, on the one hand, and
national immigration law, on the other, provides a striking example of the
tensions and uncertainties that arise where legal status is absent, is ignored,
or lacks clarity. There are implications not only for the protection and
access to rights, but also for individual identity.
5. Labelling of Iraqis in Jordan

In his seminal article on labelling and identity formulation, Zetter explored
the formation of identity within the context of humanitarian practices and
policies of NGOs, governments, and intergovernmental agencies.86 In par-
ticular, he focused on understanding the role of bureaucratic interests and
procedures in defining the label of the ‘refugee’,87 and sought to show why
refugees do not necessarily conform to the image or label applied to them
by humanitarian agencies. Zetter followed up his analysis with a second
contribution, in which he argued that labelling was a powerful explanatory
tool to explore the complex and often disjunctive impacts of humanitarian
intervention on the lives of refugees.88 He considers the labelling concept
within contemporary political discourse, and suggests that ‘the formation
of the refugee label, largely under conditions of globalization, reflects
causes and patterns of forced migration which are much more complex
than in the past’.89 Whereas, previously, non-governmental organizations
were responsible for transforming the refugee label, Zetter now finds that
governments, particularly in the global north, rather than NGOs, are the
pre-eminent agency, and that the refugee label has become politicized as
well as fractioned, imparting new meanings to the refugee label: ‘the politi-
cal, the populist, the bureaucratic, the self ’.90
Zetter’s analysis of labelling, where humanitarian agencies tend to pro-
mote an inclusive approach to refugees,91 but where state action legitimizes
exclusion and marginalization, is ideally suited to the Jordanian scenario.92
Labelling is clearly politicized. Not only does it have implications for treat-
ment within Jordan, access to rights and to services, and options for the
future of so many Iraqis, such as resettlement, it also plays a major role
in the shifting identities of all Iraqis. Such identities might be externally
85
‘At a Glance’ Jordan Times (13 June 2011).
86
R Zetter, ‘Labelling refugees: Forming and reforming a bureaucratic identity’ (1991) 4 JRS 39–62.
87
ibid, 41.
88
R Zetter, ‘More labels, fewer refugees: Remaking the refugee label in an era of globalization’
(2007) 20 JRS 172–92, at 173.
89
ibid.
90
ibid, 174–5, 188.
91
But, as Zetter suggests, such an approach can also have damaging consequences.
92
Above n 88, 189.
18 Dallal Stevens
ascribed, or internally assumed.93 External ascription can arise from law
and legal processes; while internal ascription is often associated with self-
perception and group narrative.94 One has only to list the multifarious cat-
egories applicable to non-nationals in Jordan (in need of humanitarian aid
or protection) to appreciate the role played by laws, codes, rules, general
practice, and custom in contributing to confusion of status, and, ultimately
of identity:
• UNHCR granted ‘refugee’ status as a result of individual RSD/application
of the Eligibility Guidelines,
• UNHCR registered ‘asylum seeker’ issued with an Asylum Seeker Certificate
(renewable every six months),
• UNHCR granted ‘prima facie group determined refugee’, largely from
Central/Southern Iraq,
• UNHCR ‘refugee’ who has not been resettled within six months in accor-
dance with MOU,
• ‘economic migrant’ (on account of embargos issued against Iraq), 1991–1993,
• ‘visitor’ (with resident permits) = ‘guest’ or ‘incomer’,
• ‘overstayer’ (without resident permits) = ‘guest’ (that is, a guest who has over-
stayed his or her welcome!) or ‘incomer’,
• ‘circular migrant’ (movement across border, back and forth to Iraq, and to
other Arab states or Western states, usually in search of employment),
• ‘deregistered refugee’ (UNHCR is deregistering refugees who have not con-
tacted the offices for four months or picked up food vouchers in two months),95
• ‘Arab brother or sister’.
In addition, of course, religion and nationality also play a part, so that
non-nationals – as well as citizens – are subject to further classification
or description as, inter alia, Muslim, Sunni, Shi’a, Christian, Jordanian,
Palestinian, Iraqi, Sabean, Kurd, Assyrian, Chaldean, or Mandean. Over
the years, many members of such groups have also adopted particular
descriptions of themselves. Iraqis, for example, might use the terms tal-
bin luju’ (asylum-seekers) or laji’in (refugees) to reflect the legal categoriza-
tion adopted by Western host states in which they have sought asylum.
R Zetter, ‘Creating identities – diminishing protection’, draft paper on file with author.
93
ibid.
94
95
In Apr 2010, it was reported that there were 165,493 registered refugees in the Syrian offices of
UNHCR and that UNHCR had deregistered 58,000: see, Syria Today (July 2010), <http://www.syria-
today.com/index.php/july-2010/570-news/9851-un-high-commissioner-for-refugees-marks-world-
refugee-day-in-damascus>. The UNHCR ‘Handbook on Registration’ (Sept 2003), 193, sets out five
grounds for deregistration: final rejection of asylum claim; cessation of refugee status; cancellation of
refugee status; revocation of refugee status; and death. Non attendance at the UNHCR office is not
one. This action of deregistration (if truly such) seems to contradict UNHCR’s own guidance on regis-
tration and deregistration in the Handbook. There, it makes it clear that deregistration is rarely simple
and that: ‘The de-activation of a record, eg, in cases of prolonged absence, where a person of concern
to UNHCR is no longer seeking active assistance from UNHCR and is removed from distribution lists,
should not be confused with deregistration’(at 193). De-activation of the record would appear to be a
more appropriate course of action.
Alternatively, they might describe themselves as muhajirin (emigrants), man-
fiyin (the forgotten), or mughtaribin (the alienated/exiles), and construct an
internal identity which reflects their own personal narratives of the causes
of flight, and which may, for many, be more empowering than ‘refugee’.96
Finally, political and academic discourse has also been prone to typecast
Iraqis; the most damaging attributions – those of ‘refugee warriors’ and
‘carriers of conflict’ – proved wholly inaccurate but significantly muddied
the protection waters.97
In Jordan, then, a range of labels apply – legal; non-legal; bureaucratic;
political; humanitarian; and the individual. Labels – particularly legal
labels – clearly matter in those countries with developed asylum regimes
and overall commitment to human rights.98 From a positive perspective,
different levels of rights protection apply to asylum seekers during RSD,
to refused asylum seekers pending removal, to those in receipt of comple-
mentary protection, and, of course, to the ultimate legal label, the refu-
gee. The negative context of labels is that they are often utilized by states
to limit residence and minimize the receiving state’s responsibilities. One
might assume that Jordan, with no domestic asylum system and fledgling
human rights compliance, would remain unmoved by the power of labels
in the refugee context, but this is clearly not the case. The political sig-
nificance of the label is as powerful in Jordan as in any state party to the
Refugee Convention – indeed, perhaps more so. The association of ‘refu-
gee’ with Palestinian, and hence with permanent residency, has patently
distorted the discourse in Jordan. Jordan’s fear of creating semi-permanent
residence for another large Arab cohort is very real, as was the (ill-con-
ceived) belief that Iraqis posed a potential violent threat to the stability
of Jordan.99 Hence, the continued stress on the label ‘guest’ or ‘tempo-
rary guest’, which infers transience, generosity of the host, and, arguably,
responsibility on the visitor not to overstay his or her welcome. As one
Jordanian official explained:
The solution is in Iraq. We refuse to accept that the solution will be outside Iraq.
They [the Iraqis] are not happy anywhere else. Everything we do towards Iraqis is
96
Chatelard, above n 8, 2009 version, available at: <http://halshs.archives-ouvertes.fr/
docs/00/37/09/80/PDF/Chatelard_British_Academy.pdf>, 9.
97
For an interesting discussion of the implications of such labelling of Iraqis, see, R Leenders,
‘Getting the “Ladder of Options” right – The illusive and real security fallout of the Iraqi refugee
crisis’ (Middle East Institute, Foundation pour la Recherche Stratégique, Sept 2010), <http://wikileaks.org/
cable/2007/03/07AMMAN1380.html>.
98
Hathaway argues, though, in the case of states party to the Refugee Convention, that ‘if the goal
of the various alterative protection labels [to refugee status] and their accompanying “temporary” pro-
tection systems is to avoid the need to recognize most Convention rights, they are legally untenable’.
Labels simply do not matter: J Hathaway, ‘What’s in a label’ (2003) 5 European Journal of Migration
and Law 1–21, at 6.
99
Leenders, above n 97, para 5.
20 Dallal Stevens
temporary, simply to make their lives easier. We cannot make it [Jordan] a natural
place to stay.100
In addition, the tension between efforts by the (I)NGO community, on
the one hand, to have an inclusive label, and by the state, on the other, to
exclude is also very evident. As occurs across both signatory and non-sig-
natory states, the access to rights or services – inclusion – is very dependent
on the category assigned to the non-national, and without an advanced
human rights framework present in the state, non-nationals, particularly
those regarded as (potentially) burdensome, are vulnerable to exploitation,
neglect, or exclusion. Uncertainty about legal status has to some extent
enabled the state to limit its role in meeting perceived needs of Iraqis,
forcing (I)NGOs and UNHCR to step into the vacuum. Their involve-
ment has been crucial but, without the relative formality and associated
benefits of a TPR, a co-ordinated, structured, and committed approach to
the problems faced by the Iraqi community was lacking. As a consequence,
UNHCR started to champion an alternative concept, perhaps with the
aim of encouraging a greater sense of obligation towards displaced Iraqis –
whatever their status or ascribed identity – in Jordan and Syria: that of
‘protection space’.
6. ‘Protection space’

When discussing protection in the refugee context, commentators do not
generally define the term, nor always explain from what protection is
sought.101 Although ‘protection’ can have many meanings, there appears
to be an underlying assumption that clarification is superfluous, perhaps
because lack of protection from one’s own state goes to the heart of the
refugee condition. Indeed, to be determined a refugee under international
law, an individual must establish unwillingness or inability to avail him or
herself of the protection of the country of nationality.102 Notwithstanding
the apparent self-evidence of this statement, its true meaning is not so clear.
In protracted refugee situations, as prevail in Jordan, Syria and Lebanon,
where circumstances in both hosting and originating country are not static,
and where the need for protection cannot always be assumed, greater defi-
nitional precision would contribute much to understanding and improved
practice.
Broadly speaking, the Refugee Convention is concerned with those
who cannot access the protection of their own country, and who conse-
quently need to seek ‘surrogate protection’ elsewhere. When a hosting state
provides protection, one of its most important duties is not to refoule the
100
Quoted in J Sassoon, The Iraqi Refugees: The New Crisis in the Middle East (IB Taurus, 2009), 52.
101
See, Fortin, above n 4.
102
Art 1A(2), Refugee Convention; 1950 UNHCR Statute, para 6A(ii).
refugee to territories where life or freedom would be threatened. Herein 103
lies the core of the general understanding of protection: asylum or a safe

haven in which return must not be forced against the will of the asylum
seeker/refugee. While the Refugee Convention clearly articulates those
rights to which the refugee is entitled, it famously does not do so for the
asylum seeker.104 A potential source of confusion for non-signatory states
(and perhaps others) as to the meaning of ‘protection’ arises from its alter-
native usage as employed in UNHCR’s Statute, as opposed to the Refugee
Convention; listed in paragraph 8 of the Statute are the ways in which the
High Commissioner will ‘provide for the protection of refugees falling under the
competence of his Office’ (emphasis added).105 To the layperson, few of
the listed items would probably meet the more widely understood meaning
of ‘protection’: keeping safe from harm.
UNHCR is charged with the provision of ‘international protection’ as
opposed to ‘national protection’ provided by states. Over time, the under-
standing and application of protection has altered, and UNHCR has pub-
lished many non-binding Notes and Conclusions on the issue of protection
and its application in different circumstances.106 Whereas UNHCR’s early
work was concerned with legality and technicality – that is on individ-
ual refugee determination, protection from non refoulement, and resettle-
ment – more recently, it has focused increasingly on practical solutions
and assistance for large groups of people.107 Indeed, some have questioned
whether UNHCR has strayed too far from its protection mandate towards
solution-seeking and assistance.108 Furthermore, a number of relatively
103
Art 33(1), Refugee Convention.
104
For a comprehensive account of refugee rights, see, Hathaway, above n 52.
105
8. ‘The High Commissioner shall provide for the protection of refugees falling under the com-
petence of his Office by: (a) Promoting the conclusion and ratification of international conventions
for the protection of refugees, supervising their application and proposing amendments thereto; (b)
Promoting through special agreements with Governments the execution of any measures calculated to
improve the situation of refugees and to reduce the number requiring protection; (c) Assisting govern-
mental and private efforts to promote voluntary repatriation or assimilation within new national com-
munities; (d) Promoting the admission of refugees, not excluding those in the most destitute categories,
to the territories of States; (e) Endeavouring to obtain permission for refugees to transfer their assets
and especially those necessary for their resettlement; (f) Obtaining from Governments information
concerning the number and conditions of refugees in their territories and the laws and regulations con-
cerning them; (g) Keeping in close touch with the Governments and inter-governmental organizations
concerned; (h) Establishing contact in such manner as he may think best with private organizations
dealing with refugee questions; (i) Facilitating the co-ordination of the efforts of private organizations
concerned with the welfare of refugees.’
106
See, in particular, various Notes on International Protection; ‘Protection of persons of concern
to UNHCR who fall outside the 1951 Convention: a discussion note’ EC/1992/SCP/CRP.5, 2 Apr
1992; and ExCom Conclusions: ‘Temporary Refuge’ ExCom Conclusion No 19, 16 Oct 1980, and,
‘Protection of asylum seekers in situations of large-scale influx’, ExCom Conclusion No 22, 21 Oct
1981.
107
For a detailed discussion, see, D Kennedy, ‘International refugee protection’ (1986) 8 HRQ 1–69.
108
See, eg, G Goodwin-Gill, ‘International protection and assistance for refugees and the displaced:
Institutional challenges and United Nations Reform’, RSC Workshop paper, ‘Refugee Protection on
International Law: Contemporary Challenges’, Oxford, 24 Apr 2006.
22 Dallal Stevens
new concepts – such as ‘temporary protection’,109 ‘complementary protec-
tion’,110 ‘humanitarian’ or ‘protection space’111 and ‘effective protection’112 –
have led to considerable reflection by both academic commentators and
UNHCR on the rationale for and the requirements of protection.113
This apparent lack of definitional certainty of the core requirements of
protection can seem somewhat puzzling, but, arguably, can also hinder pro-
tection provision. UNHCR has defined ‘protection’ as ‘all actions aimed at
ensuring the equal access to and enjoyment of the rights of women, men,
girls and boys of concern to UNHCR, in accordance with the relevant
bodies of law (including international humanitarian, human rights and
refugee law)’.114 International protection is deemed to be ‘at the heart’ of
the Refugee Convention, and that ‘today international protection is better
characterized as ensuring that the range of rights and needs of people who
are not protected by their own country are met’.115 Protection is not itself
defined but is ‘delivered’ through positive action; and part of that delivery
encompasses ensuring basic rights, securing fundamental needs, and pro-
viding sufficient humanitarian space.116 This is UNHCR’s understanding
of protection and may differ considerably from a state’s own view of pro-
tection obligations, notwithstanding the Refugee Convention.
Even if one accepts the ‘what’ of protection, this does not determine the
‘how’ and ‘who’ of delivery. It is in this context that protection space comes
to the fore, especially where non-signatory states, such as Jordan, are con-
cerned, or those without developed asylum procedures. While ‘protection
space’ is not a new idea to UNHCR, it, too, lacks definition. For example,
when Evans Barnes referred to ‘protection space’ in her UNHCR Research
109
J Fitzpatrick, ‘Temporary protection of refugees: Elements of a formalized regime’ (2000) 94
AMJIL 279; D Perluss & J Hartman, ‘Temporary refuge: Emergence of a customary norm’ (1985–86)
26 Virginia Journal of International Law 551–626; K Kerber, ‘The temporary protection directive’
(2002) 4 European Journal of Migration and Law 193–214; M Gibney, ‘Between control and humani-
tarianism: Temporary protection in contemporary Europe’ (2000) 14 Georgetown Immigration Law
Journal 689–709.
110
For discussion of complementary protection, see, J McAdam, Complementary Protection in
International Refugee Law (OUP, 2007); Goodwin-Gill & McAdam, above n 52, ch 6.
111
See discussion below.
112
For discussion of ‘effective protection’, see, C Phuong, ‘The concept of “effective protection” in
the context of irregular secondary movements and protection in regions of origin’, Global Migration
Perspectives No 26 (Global Commission on International Migration, Apr 2005).
113
Eg, one of UNHCR’s latest initiatives on protection, commenced in 2007 by the current High
Commissioner, António Guterres, is devoted to a ‘Dialogue on Protection Challenges’ – ie, an annual
discussion of protection gaps and responses, while another, ‘The Strengthening Protection Capacity
Project’, seeks to assist states to improve their ability to receive and protect refugees. UNHCR has a
detailed webpage devoted to ‘protection’, <http://www.unhcr.org/pages/49c3646cc8.html>.
114
UNHCR, ‘An Introduction on International Protection’ (2005), 7, <http://www.unhcr.org/ref-
world/pdfid/4214cb4f2.pdf>.
115
ExCom, ‘Note on International Protection – Report of the High Commissioner’, UN doc A/
AC.96/1098, June 2011, para 3.
116
ExCom, ‘Note on International Protection – Report of the High Commissioner’, A/
AC.96/1085, 30 June 2010, para 2.
Paper, she considered the term to be ‘fuzzy’ and vague. In searching for
117
greater precision, she linked it to ‘humanitarian space’118 and identified

two elements to humanitarian space: physical space and action space.119
Physical space might be seen as geographical or territorial space,120 while
action space is a space in which ‘an individual has the possibility of mov-
ing and making decisions’.121 Her final definition is ‘an environment which
enables the delivery of protection activities and within which the prospect
of providing protection is optimized’.122 Thus, the ability of the space to be
fluid – to expand or contract – is vital. UNHCR’s definitive policy docu-
ment on refugee protection in urban areas,123 reinforces the importance
to be attributed to ‘protection space’, but there is still an admission that
uncertainty clouds understanding of the concept:
While the notion of protection space does not have a legal definition, it is a con-
cept employed by the Office to denote the extent to which a conducive environ-
ment exists for the internationally recognized rights of refugees to be respected
and their needs to be met.
The obligations, whether they be on the state or UNHCR, are clearly
far-reaching. In the Jordanian context, where the division of responsibil-
ity for refugees can appear somewhat blurred, the question is whether the
state is cultivating a space for protection, as understood and sought by
UNHCR and partner agencies, or whether it is engaged in an alternative
process of ‘real politik’ that places state interests far above the ‘protection
needs’ of Iraqi nationals. Certainly, it would appear that any notion of
protection space that might exist would be akin to ‘physical space’ rather
than ‘action space’.
7. ‘Protection rights’, ‘protection needs’

As has been discussed, UNHCR’s attempt to convince the authorities that
Iraqis should be labelled ‘asylum seekers’ or ‘refugees’, to which certain
obligations were owed, met with limited success. Jordan’s own analysis of its
obligations to Iraqis is quite simple: a visitor or guest to a country is offered
hospitality but is not owed protection as such. Protection is associated with
asylum; hospitality is a cultural (and religious) tradition. The guest is alien
117
A Evans Barnes, ‘Realizing protection space for Iraqi refugees: UNHCR in Syria, Jordan and
Lebanon’, UNHCR Research Paper no 167 (Jan 2009).
118
Itself defined as ‘a space of freedom in which we are free to evaluate needs, free to monitor the
distribution and use of relief goods, and free to have a dialogue with the people’ (R Brauman, Former
President of Médecins Sans Frontières, cited in Evans Barnes, ibid, 11).
119
ibid, 12.
120
ibid.
121
ibid.
122
ibid.
123
UNHCR, ‘UNHCR Policy on Refugee Protection and Solutions in Urban Areas’, Sept 2009,
para 20; see also, ‘Regional Response Plan for Iraqi Refugees 2010’, 37.
24 Dallal Stevens
(but within pan-Arabism, not as alien as in other parts of the world), sub-
ject to legal rules on residence, and generally to be treated with courtesy; in
return, the guest is expected to respect the laws of the hosting state, comply
with temporary residence obligations, and leave once these have expired.
Reciprocal arrangements between the hosting state and country of origin
might guarantee access to certain rights, such as health care, but the guest
is not expected to work or educate his or her children, without permission.
Of course, reality is different. On the one hand, Jordan has, in practice,
granted a wider territorial protection akin to that pertaining to refugee or
asylum seeker status: protection from non-refoulement.124 On the other hand,
with international protection extending to much more than prevention of
return to a country or territory where life or freedom may be endangered,
even for those who are not necessarily refugees stricto sensu, Jordan’s legal
obligations are wider than she might appreciate: after all, she is signatory
to a number of international human rights instruments, including the
ICCPR, ICESCR, CEDAW, CRC, CERD, and CAT,125 and is expected
to uphold the rights of all, irrespective of nationality, within her territory.
Employment, health care and education are arguably the most imme-
diate needs/rights for a new arrival in a foreign country and it is to these
that we now turn for an assessment of the extent to which basic protection
rights and needs of Iraqis in Jordan have been met – that is, whether there
is, in fact, a ‘conducive environment’ in which needs are met and rights
respected. Consideration is also given to resettlement and return, so core
to the Iraqi context.
7.1 Labour, poverty, exploitation

Most Iraqis are not entitled to work without permission from the Ministry
of Labour.126 This has been of considerable concern to the NGO and
charitable communities for some time.127 In 2011, there were moves to
allow Iraqis from certain professions to work legally. However, not all will
be able to benefit from such a concession, and, with an unemployment
rate in Jordan of approximately 13.4 per cent,128 most Iraqis are forced to
124
There have been some deportations, but numbers are relatively small. The RRP reports that by
the end of Oct 2011, 69 Iraqis were detained and 8 Iraqis had been deported: RRP, above n 23, 47.
125
1966 International Covenant on Civil and Political Rights; 1966 International Covenant on
Economic, Social and Cultural Rights; Convention on the Elimination of All Forms of Discrimination
against Women; Convention on the Rights of the Child 1990; Convention on the Elimination of all
forms of Racial Discrimination 1965; Convention against Torture 1984.
126
Permits are valid for a year but renewable. Employers are subject to fines if they employ foreign
workers without the requisite work permit.
127
Eg, the Catholic Archbishop, Antonio Veglio, president of the Pontifical Council for Migrants
and Travellers, called upon Jordan to enact the necessary legal reforms that would enable Iraqi refu-
gees to be gainfully employed: C Gatz, ‘Archbishop calls on Jordan to allow Iraqi refugees to work
legally’ CNEWA (18 Mar 2011), <http://www.cnewa.org/default.aspx?ID=1451&pagetypeID=8&s
itecode=US&pageno=1>.
128
Estimated for 2010.
depend on their own resources to survive. The funds of many are depleted,
as they enter their fourth or fifth year of exile, with worrying consequences.
There is a widely held view amongst NGOs and lawyers that Iraqis have
resorted increasingly to working illegally and are subject, as a result, to
exploitation in the informal work place. Fortunately, although this is com-
mon knowledge, the number of arrests is not significant.129
Perhaps of greater concern is that, as stated in a UNHCR report, due to
the bar on employment, ‘[m]en have been stripped of their role as family
provider and [feel] that their masculinity has been undermined’.130 One
distressing corollary is that, as a coping strategy, women are selling sex on
an individual basis, with the full knowledge of their husbands;131 the other
is a reported high level of domestic violence in Iraqi households. A further
issue is that many households are female-headed and, in general, Iraqi
women have not been used to this new role.132 A recent research study
examining the position of Iraqi female-headed households concluded
that there were a number of ways in which Iraqi women were coping:
through remittances, volunteer positions in local NGOs, travel stipends,
self-employment at home, and informal work.133 They are also heavily reli-
ant on aid from international organizations and monthly monetary allow-
ances from UNHCR. They cope because they believe their stay in Jordan
is transient – either that they will be resettled or, if conditions improve, will
return to Iraq.
7.2 Health Care
Jordan is the medical tourist centre of the Arab world and Iraqis have a
long tradition of accessing its private medical care. However, until late
2007, Iraqis were barred from obtaining subsidized treatment in public
hospitals.134 Since then, they have been entitled to public primary health-
care on the same basis as uninsured Jordanian nationals (for a minimal fee),
but are still expected to pay for medication and treatment of long-term ill-
nesses. The extremely vulnerable can access fully subsidized care provided
by a range of NGOs – for example CARITAS, which provides health,
dental and psychological services and covers the cost of hospital treatment,
whether Iraqis are registered with UNHCR or not.135 The Jordan Red
Crescent has established five primary health centres, which have proved
129
Interview with Kate Washington, CARE, 22 July 2010, on file.
130
UNHCR, ‘Surviving in the City: A review of UNHCR’s operation for Iraqi refugees in urban
areas of Jordan, Lebanon and Syria’ (July 2009), para 113.
131
G Chatelard, ‘World ignoring Iraqi refugees’ ABC Net (18 Feb 2010).
132
S Moradian, ‘Economic coping mechanisms of Iraqi female headed households in Jordan’
(2010), ISP Collection Paper 908, 8, <http://digitalcollections.sit.edu/isp_collection/908>.
133
ibid, 23.
134
‘Jordan: Cost of health care a major hurdle for Iraqi refugees’ IRIN (27 Mar 2008).
135
Interview at CARITAS, 18 Feb 2010, on file.
26 Dallal Stevens
very successful in providing care to Iraqis,136 while the law firm Legal Aid,
which has taken over the partnership agreement with UNHCR in pro-
viding basic legal advice to refugees, has entered into MOUs with pri-
vate doctors to take on specialist health cases which cannot be handled by
other NGOs. Under the agreement, doctors treat patients free of charge,
or at 50 per cent of the cost for six months, while pharmaceutical com-
panies provide some medication free of charge.137 A decline in donor sup-
port is resulting in a shift away from health provision by the humanitarian
community towards increased use of governmental Public Health Care
Centres.138
There are high levels of medical need amongst Iraqi refugees,139 partic-
ularly in relation to conditions described as ‘diseases of affluence’: namely
hypertension, obesity, diabetes and cancer, which places increased pressure
on health services. In addition, many within the Iraqi community have
been found to be suffering from brain and neurological disorders,140 as well
as mental health problems. Unsurprisingly, anxiety about legal status and
future uncertainty is common; for example, the Institute for Family Health
conducted a 9-month project sampling 1,454 Iraqis (837 men and 617
women) from 1 January to 30 September 2009. Only UNHCR registered
asylum seekers were considered. The research concluded that 26 per cent
suffered from high-to-severe psychological problems.141
7.3 Education
A number of factors have created a rather challenging education environ-
ment for Iraqi children. The Jordanian Constitution provides compulsory
free elementary education for Jordanian nationals only,142 but Iraqi chil-
dren were initially permitted to attend state schools if their parents had
a valid residency permit. As the legal status of most was suspect, many
were barred from the cheaper state schools and families were forced to
enrol their children in private schools at considerable personal expense.
In 2007, a Royal Decree finally granted permission to all Iraqi children
to attend state schools irrespective of legal status; the initial uptake was
136
T Suifan, ‘Quality of health services provided to Iraqis at Jordan Red Crescent Health Centers’
(2010) 6 Journal of Social Sciences 170–8.
137
Interview with Legal Aid, July 2010, on file.
138
RRP, above n 23, 48.
139
Of 36, 953 registered in Jordan with UNHCR in 2010, 7,621 were receiving health assistance:
‘Iraqi refugees at high risk of brain and nervous system disorders’ ScienceDaily (12 Apr 2011); in the
‘2011 Regional Response Plan for Iraqi Refugees - Mid-Year Review’, it was reported that 13% of the
registered refugee population was suffering from a ‘critical medical condition’ (chronic illness, heart
disease, and cancer), <http://reliefweb.int/sites/reliefweb.int/files/resources/Full%20Report_163.
pdf>, 51–2.
140
‘Iraqi refugees at high risk of brain and nervous system disorders’ ScienceDaily (12 Apr 2011).
141
This research was presented at a psycho-social NGO meeting held at the premises of UNICEF
on 17 Feb 2010; however, some participants raised concerns about the statistical methods employed.
142
Art 20.
not as great as anticipated: for 2007–08, it was estimated that there were
24,000 Iraqi children in state schools.143 Some state schools continued to
refuse entry to Iraqi children without special permission. Furthermore, up
to 2008, attendance at state schools for Iraqi children was not completely
free; they were expected to contribute JD 20–30 (US$ 28–42) per term
plus the cost of books, about JD 50 (US$ 70) per student.144 With the
increasing impoverishment of many Iraqis, these fees proved too high and
children were pulled out of both private and state schools. Consequently,
a large number of Iraqi children have missed vital periods in their educa-
tion. In August 2008, the Jordanian Government announced that it would
waive annual fees in state-owned schools.145 This continues to be the posi-
tion to date.
Further problems have emerged. There have been reports of bullying
of Iraqi children by both staff and students in public schools.146 In the
early years, some children missed school as they were anticipating early
resettlement or return to Iraq. The Catholic organization, CARITAS,
also reported that some families have not sent their daughters to school –
even fee-paying schools – for fear of attack/kidnapping.147 A number of
organizations provide non-formal education such as intensive studies in
Maths and English due to the different levels of education between Iraqis
and Jordanians. They also provide vocational training for short periods
only (3 months), in case attendees are resettled. This is seen as a neces-
sary provision, particularly for teenagers, who are often bored and do
not have training for employment.148 However, an anticipated decline in
donor support in 2010–11, due to many donors assessing that Iraqis will
start to return home, has created some uncertainty in education delivery
in Jordan.149
Despite recent government changes, and the intervention of non-gov-
ernmental organizations, there is talk of ‘a lost generation’, especially of
girls and women between 15–25, with serious implications for the future
of these young people and for the countries in which they finally settle.
The very wealthy, too, face difficulties. Those who have managed to pay
for the education of their children through school and university find that
employment prospects for their offspring in Jordan after graduation are
limited.
143
IRIN, ‘Jordan: Iraqi students exempted from school fees’ (27 Aug 2008).
144
ibid.
145
Taylor Luck, ‘Ministry exempts Iraqi students from school fees’ The Jordan Times (25 Aug 2008).
146
Interview with Kate Washington, CARE, 22 July 2010, on file.
147
Interview with Community Center Manager, CARITAS, July 2010, Amman, on file.
148
ibid.
149
UNESCO, ‘2011 Education For All Global Monitoring Report’, 214, <http://unesdoc.unesco.
org/images/0019/001907/190743e.pdf>.
28 Dallal Stevens
7.4 Resettlement and return
7.4.1 Resettlement
The Jordanian Government’s ‘non-refugee’ approach towards Iraqis and
its fear of permanent residence, together with the MOU and its limited
sojourn of six months for recognized refugees, ensures that the aim of
many Iraqis is resettlement.
Obtaining sufficient offers for resettlement outside Jordan (or the
other countries in the region) has not been straightforward and signifi-
cant numbers still await resettlement. From 2008 to May 2010, Jordan
submitted 20,710 cases for resettlement, and expected there to be about
3,600 resettlement needs in 2011,150 and 2,500 Iraqis and non-Iraqis in
2012.151 UNHCR issues regular pleas to states to raise their allocation,
with occasional success.152 Although Iraqi preference for resettlement is
thought to be Europe,153 the vast majority have been taken by the US:
of 166,084 total referrals, since 2007, to the US Refugee Admissions
Program, 58,811 have been admitted.154 The EU, by contrast, selected
approximately 8,400 Iraqi refugees between 2007 and 2009 for resettle-
ment in twelve EU member states. Of these, 3 300 were taken by eight
EU countries.155 With such a comparatively poor record, the EU pledged,
in November 2008, to resettle more Iraqis to European member states,
especially those ‘with particular medical needs, trauma or torture vic-
tims, members of religious minorities or women on their own with family
responsibilities’.156 However, this had to be carried out on ‘a voluntary
basis and in the light of the reception capacities of Member States and
the overall effort they have already made as regards reception of refu-
gees’.157 The improved target was 10,000 places, although no time-scale
was provided.158 A 2010 study reported that the pledge to resettle up to
10,000 refugees from Iraq had not yet been met. ‘The question’, it said,
‘is how much more the EU and the EU Member States are prepared to
150
UNHCR, ‘UNHCR Projected Global Resettlement Needs 2011’, 38, <http://www.unhcr.
org/4c31e3716.pdf>.
151
152
See, eg, the latest statement by UNHCR: ‘UNHCR calls for more resettlement places and better
integration support for resettled refugees’, 4 July 2011, <http://www.unhcr.org/4e11735e6.html>. In
2011, almost 100,000 vulnerable refugees are in need of resettlement.
153
Noor Hussein Foundation representative, on file.
154
US Citizenship and Immigration Services, ‘Iraqi Refugee Processing Fact Sheet, June 2011’,
<http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextc
hannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextoid=df4c47c9de5ba110VgnV
CM1000004718190aRCRD>.
155
Denmark, Finland, France, Ireland, the Netherlands, Portugal, Sweden, and the UK.
156
16325/1/08 REV 1 (Presse 344) 25.
157
ibid.
158
ibid.
do to address the continuing needs of Iraqi and other refugees in search
of durable solutions’159 – clearly, not much.
Resettlement has not always proved the utopian dream many envisage.
In the US, for example, where there is no formal mechanism for resettle-
ment in place, problems have arisen in a number of towns and cities to
which Iraqis have been sent.160 While each state does hold a cultural reori-
entation, with the involvement of NGOs, there are Iraqi refugees who
have not had their basic needs met or who have been left ‘high and dry’.161
Most NGOs feel there is a need for improved information provision to
Iraqis awaiting resettlement. A study conducted in May 2010 by Columbia
University School of International and Public Affairs on ‘Refugee reset-
tlement in the United States’, identified a number of surprising ‘chal-
lenges’: ‘conflicting policy goals, lack of adequate funding to all areas of
the resettlement system, obstacles to coordination and planning between
agencies, and the lack of systematic monitoring and evaluation of the vari-
ous components of the US Refugee Admissions Programme’; ‘insufficient
pre-departure orientation for admitted refugees during the selection and
pre-departure phase, gaps in information and inconsistent anticipatory
planning during the placement phase, and the “lottery effect” created by
the lack of a uniform set of services provided to refugees across states and
voluntary agencies in the medium to long-term phases of resettlement’.162
A further difficulty in the resettlement process can arise when differ-
ences emerge between UNHCR protection criteria163 and the national
law of the state to which they are being sent – Canada, for instance, has
found some Iraqis inadmissible if a family member is held to have ‘ben-
efited’ from Saddam Hussein’s repressive regime.164 The US has recently
increased security checks on individuals identified for resettlement and, as
a consequence, departures from Jordan (and Syria) have declined.165 Other
problems arise in view of the fact that a number of countries no longer
consider resettlement to be the most appropriate solution for Iraqi refugees
in view of the change in governance in Iraq; their preference is for return
to Iraq.
159
ICMC, ‘10000 Refugees from Iraq: A Report on Joint Resettlement in the EuropeanUnion’,
May 2010, 41.
160
Above n 153.
161
Interview with Kate Washington, CARE, 22 July 2010, on file; ibid.
162
‘Refugee resettlement in the United States – An examination of challenges and proposed solu-
tions’ (Columbia University School of International and Public Affairs, May 2010), iii, <http://www.
sipa.columbia.edu/academics/workshops/documents/IRCFINALREPORT.pdf>. For information
on US resettlement criteria, see, Resettlement Handbook, above n 68.
163
UNHCR’s resettlement submission categories are: legal and/or physical protection needs; survi-
vors of torture and/or violence; medical needs; women and girls at risk; family reunification; children
and adolescents at risk; lack of foreseeable alternative durable solution; see, Resettlement Handbook,
ibid.
164
Interview with UNHCR officer, Amman, Feb 2010, on file.
165
30 Dallal Stevens
7.4.2 Return
While potential resettlement countries might consider return to Iraq the
preferred outcome, a number of reports indicate that Iraqis in Jordan (and
elsewhere) prefer to remain in their host country rather than return to
Iraq. Incentives, such as the offer by the Iraqi Government of D1.5m (US$
1,300) to returning families, and the removal of squatters from proper-
ties,166 appears to be doing little to assuage concerns. A UNHCR poll con-
ducted in 2010 described Iraqi fears:
The survey was carried out at the Al Waleed border crossing between Syria and
Iraq, in July and August. Of 498 families, representing more than 2000 individu-
als, 46 per cent cited political uncertainty, while 15 per cent blamed unstable secu-
rity conditions. A further 13 per cent said they are holding back because of poor
educational opportunities, and six per cent cited housing shortages.
Most people crossing the border – 89 per cent – said it was for a short trip only.
In 42 per cent of cases this was for visiting family members, 18 per cent said they
were checking conditions on the ground, 15 per cent to obtain documentation,
and 10 per cent to check on property.
A similar survey on the Iraq–Jordan border among some 364 families (represent-
ing approximately 1450 individuals) found that none were returning to Iraq per-
manently. Similar reasons were cited.167
In October 2010, UNHCR reported that, following a survey of 2,353
Iraqis who had returned to Baghdad between 2007 and 2008, 61 per
cent regretted leaving Syria or Jordan.168 While relatively high numbers
of refugees (62,000) and internally displaced (363,000) returned in 2008
and 2009, returns declined in 2010 (26,000 refugees and 92,000 IDPs).169
From January to November 2011, numbers were on the rise again with the
return of 60,000 refugees and 170,000 internally displaced.170 Somewhat
surprisingly, though, only seventy-eight people are reported to have sought
UNHCR’s assistance in Jordan to voluntarily repatriate.171
UNHCR’s own view is that ‘Iraq continues to suffer from sporadic vio-
lence, a general lack of basic services and high unemployment’,172 and
that ‘Iraqi asylum applicants originating from Iraq’s governorates of
Baghdad, Diyala, Ninewa and Salah-al-Din, as well as from Kirkuk prov-
ince, should continue to benefit from international protection in the form
of refugee status under the 1951 Refugee Convention or another form of
166
A England, ‘Grim struggle continues for Iraqi refugees’ The Financial Times (18 Aug 2010).
167
UNHCR Poll, ‘Iraqi refugees reluctant to return to Iraq permanently’ (8 Oct 2010), <http://
www.unhcr.org/4caee5a99.html>.
168
S Nebehay, ‘Iraqi refugees regret going home, UNHCR survey finds’ Reuters (19 Oct 2010),
<http://www.reuters.com/article/idUSTRE69I2GU20101019>.
169
UNHCR, ‘Iraq Operation – Monthly Statistical Update on Return – November 2011’, <http://
www.iauiraq.org/documents/1592/Return%20Update%20IRAQ%20NOV%202011.pdf>.
170
ibid.
171
172
<http://www.unhcr.org/4cd96bd39.pdf>.
protection …’. Yet despite such misgivings, North Atlantic countries are
173
increasingly sceptical about the lack of safety in Iraq, frequently consider-

ing it generally safe for return. Taking the United Kingdom as an example,
in an important 2010 Country Guidance case, HM and Others (article 15(c))
Iraq CG,174 the Upper Tribunal had found that:
Although Iraq is still a ‘weak state’ afflicted by many problems … [w]e do not
find that the degree of indiscriminate violence characterising the current armed
conflict taking place in Iraq reaches such a high level that substantial grounds are
shown for believing that any civilian returned there, would, solely on account of
his presence there face a real risk of being subject to that threat.
Such might have been the circumstance in 2006–07, when levels of vio-
lence were very high resulting in over 20,000 civilian deaths; by 2009, how-
ever, according to the UN 2010 Humanitarian Action Plan referred to by
the Tribunal, violence had dropped by 85 per cent (with 3,000–4,600 civil-
ian deaths).175 In a second case, in September 2011, the Upper Tribunal
concluded that ‘it is in our view reasonable to conclude the situation has
not changed materially since the publication of the country guidance in
HM as regards the general levels of violence in Iraq. Clearly there has
been an improvement since 2006/2007, but equally significant problems
remain and there are particularly categories of people … who are at espe-
cial risk’.176
The UK Border Agency’s Operational Guidance Note on Iraq (OGN –
last updated December 2012), used by case-workers in decision making,
sets out its understanding of the current position in Iraq, with reference to
a number of reports and case-law. It determines that:
A state of civil instability and/or where law and order has sometimes broken down
does not of itself give rise to a well-founded fear of persecution for a Refugee
Convention reason. The claimant must demonstrate a well-founded claim for asy-
lum where he or she is at risk of persecution on Convention grounds.177
Even in circumstances where there are recognized issues (those ‘at espe-
cial risk’), such as for Christians or other religious minorities in central and
173
Letter from UNHCR to NCDAC, UK, reflecting its position in 2009: see, NCADC, ‘Act
now: support the campaign against mass expulsion to Iraq’, 16 June 2011, <http://ncadc.org.uk/
blog/2011/06/act-now-support-the-campaign-against-mass-expulsion-to-iraq/>; see also, ‘UNHCR
reports increase in flight of Iraqi Christians; reiterates advice on protection needs’, 17 Dec 2010,
<http://www.unhcr.org/4d0b467c6.html>.
174
[2010] UKUT 331 (IAC), para 278(i) and (ii); note that this judgment was quashed by the Court
of Appeal in HM (Iraq) and RM (Iraq) v Secretary of State for the Home Department [2011] EWCA Civ 1536
on a technical point. It was remitted to the Tribunal for rehearing in April 2012 and the determination
was promulgated in November 2012: HM & Others (Article 15(c)) Iraq CG [2012] UKUT 00409 (IAT).
175
ibid, paras 105 and 255.
176
EA (Sunni/Shi’a mixed marriages) Iraq CG [2011] UKUP 00342 (IAC), para 21.
177
Para 3.6.18, <http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/
countryspecificasylumpolicyogns/iraq-ogn?view=Binary>.
32 Dallal Stevens
southern Iraq, the OGN calls upon caseworkers assessing asylum claims
to consider whether internal relocation to the Kurdistan Region of Iraq
would be an acceptable option (that is, ‘not unduly harsh’).178
Interestingly, whereas Jordan has not engaged in enforced returns of
Iraqis to Iraq, a number of European countries commenced sending Iraqis
back: in particular, the Netherlands, Sweden and the United Kingdom.179
While intervention by the European Court of Human Rights, in which
it called for suspension of removals,180 has been complied with to a cer-
tain extent, the United Kingdom, for one, has continued to return Iraqis
whose asylum applications have been refused.181 Between 2004 and 2010,
over 14,000 individuals were returned to Iraq, either by enforced removal,
notified voluntary departure, assisted voluntary return, or other voluntary
departure; over 50 per cent of these were asylum cases.182 Such actions
do little to encourage improved protection regimes in countries such as
Jordan. As it is hosting considerably more Iraqis than individual EU states,
Jordan can counter any criticism of its protection policies by pointing out
its superior record insofar as returns are concerned. (While there is evi-
dence of rejection of Iraqis at the frontier in the past, and of some depor-
tations, due to infringement of residency laws, the numbers are very low in
comparison with other countries.)
7.5 A brief conclusion on rights

The enhancement of rights delivery in a number of areas – particularly in
education, health, low rates of detention, and waiver of overstay fines – lies
at the heart of UNHCR’s ongoing support for the concept of ‘protection
space’ in Jordan. But the reasons for Jordan’s partial softening of policy are
complex. In many ways, the protracted nature of the problem has forced
Jordan’s hand; it could not remain indifferent to external pressure. The
role of, what UNHCR, UNICEF, WHO and other partner NGOs refer
to as, ‘intensive advocacy effort’ has certainly been key, as have the various
capacity-building initiatives, and high-level political discussions focusing
on economic aid and support to Jordan. Without these, Jordan would have
178
ibid, para 2.4 passim.
179
Amnesty International, ‘Stop forcible returns from Europe to Iraq’, 17 June 2010, <http://www.
amnesty.org/en/appeals-for-action/stop-forcible-returns-europe-iraq>.
180
The Court indicated that it would apply the enforcing mechanism of Rule 39 to any Iraqi who
challenged his or her deportation to Iraq before the Court; O Bowcott, ‘European court demands halt
to forcible return of Iraqi asylum seekers’ The Guardian (5 Nov 2010).
181
‘UK “to continue deporting failed Iraqi asylum seekers”‘ BBC News (22 Nov 2010), <http://
www.bbc.co.uk/news/uk-politics-11816974>.
182
Home Office, ‘Removals and Voluntary Departures Data Tables Immigration Statistics
April-June 2011’, table rv.05, <http://www.homeoffice.gov.uk/publications/science-research-
statistics/research-statistics/immigration-asylum-research/immigration-tabs-q2-2011v2/
removals-q2-11-tabs>.
been unable and unwilling to improve conditions for the majority of Iraqis.
And it is undoubtedly the last – aid – that has proved most influential.
8. The politics of aid

In many respects, the financial consequences of displacement govern
state behaviour and outcomes for ‘oustees’, and this is certainly true for
Jordan. In the early period following the 2003 invasion, it was clear that
there was wide international sympathy for the emergent ‘refugee crisis’
in Iraq’s Arab neighbours. This sympathy soon translated into a discus-
sion of the ‘burden’, both financial and infrastructural, to be borne by
Jordan, amongst others. With the US leading the way, there was a clear
commitment to assist affected Arab states. Many felt an obligation to sup-
port the refugees as far as possible with both assistance and resettlement
packages, and Jordan was one such beneficiary, successfully nudging prom-
ises of international aid from Europe and North America. In early 2007,
the same year that the contentious FAFO report concluded that there were
at least 500,000 Iraqis present in Jordan, the Government estimated the
annual cost to be US$ 1 billion.183 Yet, this figure was strongly contested by
a Jordanian economist, Yusuf Mansur, who argued that the number could
be no higher than US$ 282.3 million.184 He said:
We cannot look at this as a one-sided problem and not attribute the benefits we
have seen from the surging population. Iraqis have spent tons of money in the
Kingdom and are partly behind the boost in the stock market and real estate. …
If we calculate money the government received in visas alone we are talking about
JD 50 million.185 [US$ 70.5 million]
Later, the Jordan Times reported that the Government assessed the cost to
be US$ 2.2 billion from 2005–08.186 As a consequence, money has poured
in from the US, the European Union, UNHCR, and other donor organi-
zations. Much of this has gone to the Jordanian Government. In 2003, for
example, in addition to its annual aid package of US$ 250 million, the US
made a supplemental aid donation of US$ 700 million, as a direct conse-
quence of the Iraq war.187 Year on year, the US Government continues to
provide Jordan with substantial economic as well as military assistance, but
it is not alone in providing financial support. In 2007, UNHCR is said to
have given about 61 per cent of its operational budget of US$ 35 million
183
L Hindi, ‘Iraqi expatriates costing Jordan $1 billion annually – Interior Ministry’ The Jordan
Times (7 May 2007).
184
ibid.
185
ibid.
186
L Hindi, ‘States hosting Iraqi nationals ready to help with repatriation’ The Jordan Times (19 Mar
2008).
187
See, J Sharp, ‘Jordan: Background and US Relations’ (Congressional Research Service, 21 Apr
2011), table 2.
34 Dallal Stevens
directly to Jordan to help build schools and hospitals capable of meeting
the needs of the Iraqi population.188 In the 2012 Regional Response Plan
for Iraqi refugees, the Community-based Protection Working Group, con-
sisting of the Government of Jordan, donors, NGOs and UN agencies,
assessed that a budget of almost US$ 62 million was needed in order to
achieve certain objectives for the needs of Iraqis in Jordan (down from
US$ 70 million in 2011).189 This included UNHCR’s own budget, which
has declined from US$ 63.4 million in 2010, to US$ 43.4 in 2011, to US$
42.5 in 2012.190
Jordan has astutely managed the finances of refugee protection; it has
sought and received considerable aid. But there have been criticisms voiced
against the process: internationally funded programmes were required to
identify equal numbers of poor and vulnerable Jordanians as Iraqis;191 few
if any conditions were imposed on the aid packages provided to the gov-
ernment; Jordan, perceived as a western ally, was favoured over Syria in
donations from the US and others, despite the latter hosting many more
Iraqis;192 and there is no certainty that the larger structural projects – such
as building schools and hospitals – have helped Iraqis in the manner antici-
pated, although Jordan as a whole has clearly benefited.193
9. Conclusion
By analysing the treatment of Iraqi refugees in Jordan, this article has
highlighted a number of important issues that are also pertinent to refu-
gee protection in the wider region and globally: the nature of ‘refugee-
hood’, the importance of status, the meaning of ‘protection’, and who is
the responsibility-bearer for protection provision.
There are many paradoxes in the behaviour of Jordan to its refugees.
Through its ongoing resistance to calls to accede to the Refugee Convention
and Protocol, Jordan is positioned outside the community of nations that
accepts the need for an international legal regime to establish basic norms,
as well as to avoid the destabilizing effects of cross-border movements.194
188
‘In Jordan, aid for Iraqi refugees is often redirected’ (2007) The Christian Science Monitor (3 July
2008).
189
RRP, above n 23, 73; UN, ‘Regional Response Plan for Iraqi Refugees 2011’, 63.
190
RRP, ibid.
191
C Skopec, N Valleva & MJ Baca, ‘Anticipating the Unexpected: Urban Refugee Programming
in Jordan’ (Middle East Institute, Fondation pour la Recherche Stratégique, 1 Nov 2010), 12. Organizations
did not necessarily object to this practice, since many Jordanians were poorer than Iraqis (about 14%
live below the poverty line).
192
C Berman, ‘An Uncommon Burden: Aid, Resettlement, and Refugee Policy in Syria’, (Middle
East Institute, Fondation pour la Recherche Stratégique, 20 Dec 2010).
193
Seeley, ‘The Politics of Aid to Iraqi Refugees in Jordan’, Middle East Report 256 (Aug 2006),
<http://www.merip.org/mer/mer256/politics-aid-iraqi-refugees-jordan>.
194
For further discussion, see, E Haddad, ‘Refugee protection: a clash of values’ (2003) 7 IJHR
1–26.
Yet it is an ExCom member and has a well-established reputation inter-
nationally as a home for Palestinian refugees. As a non-party state to the
Refugee Convention, but a major host to Palestinian refugees, Jordan’s
legal attitude towards the new Iraqi incomers was somewhat unclear. The
use of labelling and legal status, or lack of status, has been an important
component of its policy: from the outset, the Government was careful to
classify Iraqi arrivals as ‘guests’ or ‘Arab brethren’, and to avoid the term
‘refugee’, despite the application of the MOU defining ‘refugees’ as those
meeting the criteria of article 1A(2) of the Refugee Convention. Refusal
to acknowledge the presence of Iraqi ‘refugees’ in its territory, to accept
a temporary protection regime or prima facie refugees, or to sign up to the
Refugee Convention, were also designed to reinforce the message that any
stay was limited, as were any rights owed to Iraqis. While this approach
satisfied any seeming solidarity owed to Arabs entering from a neighbour-
ing state, and complied with the strict reading of the MOU, it also had
underlying political motivations. In constructing a restricted – albeit shift-
ing – identity for Iraqis, the state sought to ensure that Jordanian identity,
so heavily shaped by the Palestinian presence, remained as unhampered as
possible by the new arrivals, and consequently politically more agreeable.
By maintaining non-status for Iraqis, the Government of Jordan is able to
exercise control and power in its relationship with Iraq and Iraqis, with
international donor countries, and with UNHCR and (I)NGOs.
The longevity of the displacement crisis has created an additional sta-
tus ‘problem’. While the international community generally continues to
describe Iraqis in Jordan as ‘refugees’, their current status is not so clear.
Do they continue to meet the requirements of refugee status or prima facie
refugee status, or are many now part of a category that only partially ful-
fils the Refugee Convention definition – that is: unwillingness or inability
to avail oneself of the protection of the country of nationality, but with-
out the requisite persecution for a Convention ground?195 Furthermore,
on account of disagreement with UNHCR eligibility criteria, continuing
entitlement to surrogate protection has been questioned (as evidenced in
certain destination states, such as the UK). This despite UNHCR’s endur-
ing view that ‘[v]iolence, particularly emanating from anti-government
and extremist elements is ongoing and serious human rights violations
continue, with many Iraqis leaving the country because of targeted threats
against them’.196 Such confusion on status, which is exaggerated by persis-
tent displacement situations, leads to additional dilemmas for the hosting
country and, potentially, for UNHCR/protection provision partners: to
what rights is the resident entitled? When can return be encouraged or
actually carried out? Who should bear the cost of long-term residence?
195
Art 1A(2), Refugee Convention.
196
36 Dallal Stevens
A further paradox of Jordan is that although it has sought to obscure the
nature of the Iraqi ‘refugee’ presence, it has remained true to a generous
concept of territorial protection – in the sense of providing a geographi-
cal space for sanctuary. Its willingness to be flexible, while UNHCR seeks
resettlement options beyond the mandated period permitted in the MOU,
and its disinclination to remove or refoule the majority of Iraqis, in compari-
son with many Western states, has allowed ‘protection space’ to be culti-
vated (or purchased as some contend)197 in which the needs of Iraqis can
be met. Although full implementation by Jordan of human rights instru-
ments, to which the state is signatory, is not particularly evident, UNHCR
and its partner organizations and (I)NGOs have sought to fill some of
the resulting gaps by a partial approach to rights and refugee protection.
Over time, improvement of fundamental rights for the displaced has taken
place, albeit in a somewhat ad hoc fashion, and partial protection, in the
sense of needs provision, does exist. There has been a further encouraging
sign, in the nascent emergence of civil society and its willingness to call
for change. On the other hand, while the existence of ‘protection space’
might be lauded, the Jordanian example is not without flaws: too many
NGOs were initially involved; service provision was uncoordinated until
recently; the actual numbers of Iraqi refugees in the country were unclear
and probably inflated from the outset; aid was largely untargeted; and the
clear shift in responsibility towards UNHCR has been criticized.198
In many respects, it could be argued that the outcome in Jordan is sat-
isfactory: territorial protection is available; certain rights and needs of
the Iraqi community are being safeguarded through a negotiated pro-
cess between the national and international; refoulement, deportation and
detention are relatively rare; and immigration offenders are not actively
pursued. From this perspective, lack of legal status might seem a minor
inconvenience. However, legal status is significant: it empowers the indi-
vidual, provides some certainty to an already vulnerable person, and can
protect against the whim of ministerial changes in policy. Legal status,
when linked to longer-term planning that focuses on the skills of the refu-
gee and contribution to society, rather than on vulnerability and needs,
could help to avoid creating a disaffected, unproductive population with
future implications for integration or re-integration.199 Such issues are now
coming to the fore. The limited and time-consuming options for resettle-
ment or return for the majority of the displaced have resulted in the crisis
becoming protracted, which is a further complicating factor. Indeed, the
197
Seeley, above n 193.
198
See, M Kagan, ‘“We live in a country of UNHCR”. The UN surrogate state and refugee policy
in the Middle East’ (UNHCR, New Issues in Refugee Research, Research Paper no 201).
199
For a further discussion of the inefficiencies of short-term humanitarianism, see, H Dodd, ‘Iraqi
refugees in Jordan: the challenges of providing assistance in an opaque environment’ (Middle East
Institute, Fondation pour la Recherche Stratégique, 1 Dec 2010).
greatest irony of the Jordanian case is that, despite all attempts by the host
to avoid such an outcome, the population has, after all, assumed a degree
of permanence.
Accepting, then, that the manner in which the Iraqi refugee ‘crisis’ in
Jordan was handled was problematic, the inevitable question remains: what
lessons can be learned and applied to future mass flight situations? Some,
such as improved UNHCR–NGO co-ordination and information sharing,
are clear-cut and relatively easily implemented; others, such as who assumes
responsibility for the ‘burden’, are much more controversial and difficult
to define. Twenty years ago, following both Grahl-Madsen’s suggestion in
1980 of national resettlement quotas,200 and a 1986 Danish proposal for the
establishment of UN regional processing centres responsible for resettle-
ment,201 Hathaway, recommended a system in which all states would have
to agree to grant asylum to persons arriving in their territories who were
identified by an international supervisory agency as refugees; as part of
this, there would have to be ‘a legally binding internationally administered
system of resource sharing to meet the needs of refugee populations’.202
Hathaway envisaged a system whereby states could trade the obligation to
take refugees – thus a less developed country could agree to assume part of
another state’s asylum quota in return for cash or development aid.203 This
idea has been explored further. Schuck, for example, also proposed a quota
system for the distribution of refugees, and went on to suggest that:
[r]ather than protect the quota refugees itself (presumably, but not necessarily, on
its own territory), [the state] could transfer part or all of its quota obligation to
another state in a voluntary, public transaction. … The payment presumably would
take the form of cash, but it could, in principle, be any resources that the transferee
values enough to accept: credit, commodities, development assistance, technical
advice, weapons, political support, or some combination of these assets.204
Though an international regime for burden-sharing has not emerged,
an unacknowledged version clearly exists in Jordan in the form of ‘aid/
cash for refugees’ through direct aid to the hosting state as well as through
state financing of UNHCR.205 This was very evident in the case of Jordan,
but financial support was, and is, contentious in many respects: it was
200
A Grahl Madsen, Territorial Asylum (Almqvist & Wiksell International/Ocean Publications, 1980),
102–14.
201
UNGA, ‘International Procedures for the Protection of Refugees’, draft resolution, Denmark,
UN doc A/C.3/41/L.51, 12 Nov 1986; and see, Goodwin-Gill & McAdam, above n 52, 3, n 8; G
Noll, ‘Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres
and Protection Zones’ (2003) 5 European Journal of Migration and Law 303–41, 311.
202
J Hathaway, ‘Reconceiving refugee law as human rights protection’ (1991) 4 JRS 113–31, 126.
203
ibid, 127.
204
P Schuck, ‘Refugee burden-sharing: A modest proposal’ (1997) 22 Yale J of Int’l L 243–97,
283–84.
205
E Thielemann, ‘Burden Sharing: The international politics of refugee protection’, Working
Paper 134 (The Center for Immigration Studies, Mar 2006), 17–18.
38 Dallal Stevens
undoubtedly a form of compensation to Jordan by those involved in the
2003 invasion for bearing the burden of displacement; it was based on
controversial statistics of the numbers of refugees on the ground, which
many have claimed were exaggerated; it resulted in an influx of INGOs,
with the result that there were too many stakeholders competing for finan-
cial assistance, duplication of service provision, and consequent ‘NGO
shopping’ amongst savvy Iraqis; some consider that aid was used to pur-
chase ‘protection space’ once it emerged that refugee protection would
not be straightforward in the region.206 Burden-sharing through donor aid
also raises moral questions about the commodification of refugees and
the politicization of aid.207 On the other hand, the money that flowed into
Jordan certainly led to a greater willingness by the state to assist the exiled
Iraqis, notwithstanding that improved provision occurred gradually and
on an ad hoc basis.
As we witness yet further flights of peoples in the Middle East – the lat-
est from Syria to the neighbouring countries of Lebanon and Jordan – we
would do well to reflect on the lessons of Jordan and its Iraqi refugees.
There is an urgent need for greater honesty and clarity about the true
nature of protection, the wide range of potential beneficiaries, and the
extensive assistance obligations. Only then will progress be made towards
a transparent, equitable and universal system of refugee protection.
206
Seeley, above n 193.
207
From 2009, the situation improved with some mapping (completed in Oct 2009), coordina-
tion and dialogue between providers. Referrals now increasingly taking place between providers. The
annual Regional Response Plans for Iraqi Refugees reveal significant improvements in protection
provision.

Legal Status, Labelling, and Protection - The Case of Iraqi Refugees' in Jordan

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Legal Status, Labelling, and Protection - The Case of Iraqi Refugees' in Jordan

Uploaded by

Copyright:

Available Formats

International Journal of Refugee Law Vol. 25 No. 1 pp.

2. Jordan as refugee-receiving country

3. Refugee law and process

non-rejection at the frontier is regarded as fundamental to non-refoulement.54

4. Visa laws and residency rights

5. Labelling of Iraqis in Jordan

6. ‘Protection space’

lies the core of the general understanding of protection: asylum or a safe

greater precision, she linked it to ‘humanitarian space’118 and identified

7. ‘Protection rights’, ‘protection needs’

7.1 Labour, poverty, exploitation

increasingly sceptical about the lack of safety in Iraq, frequently consider-

7.5 A brief conclusion on rights

8. The politics of aid

You might also like