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Commissioners: Dinah Shelton, José de Jesús Orozco Henríquez, Felipe González, Rose-Marie Belle Antoine.

Petitioners: Universidad San Francisco de Quito, Norwegian Refugee Council.

Country: Ecuador

The Inter-American Commission on Human Rights (IACHR) heard testimony at a hearing on November 2, 2012, regarding the legal difficulties and distinct vulnerabilities of asylum seekers and refugees in Ecuador, which has the highest concentration of refugees in Latin America. The petitioners began with a presentation by Juan Pablo Albán, a law professor and clinic director at the Universidad San Francisco de Quito, who stated that he hoped to open a dialogue with the State regarding its need for new policies that facilitate asylum applications in a timely way. Although Ecuador’s 2008 constitution protects refugees and asylum seekers, Albán said that the provisions were not yet fully operative. He acknowledged some progress (e.g., more officials able to process asylum applications) and noted that the constitution is the first time a Latin American country has included protection for “persons in situations of human mobility.” However, Albán asserted that a disparity continues to exist between the law and practical applications, drawing particular attention to Executive Decree 1182, which regulates the right to shelter. He argued that the Decree is problematic because its definition of ‘refugee’ is derived from the 1951 Convention Related to the Status of Refugees, ignoring the Cartagena Declaration, under which Latin American nations sought to create a regional definition more attuned to realities of migration in the Americas, and  guidelines of the office of the UN High Commissioner for Refugees.

Albán also alleged that the asylum application process in Ecuador is unnecessarily complicated and inaccessible, citing the fifteen-day window in which an applicant has to file for asylum once he or she enters the country and a significant drop in the number of applications received. Even when individuals file within the window, Albán said that the administrative process results in more rejections than acceptances and offers little opportunity for appeal. For those who do receive status, Albán also alleged that the Ecuadorian government is revoking its recognition of persons’ refugee status at an ever-greater frequency, using criteria that go beyond the 1951 Convention, to which Ecuador is a State Party that has ratified the 1967 Protocol.

Concerning the effect the legal regime has on the lives of individuals, Albán discussed the growing stigmatization that refugees and asylum seekers experience from Ecuadorian society. He clarified that he did not believe that this problem was the responsibility of the state—rather, it is a problem for the society as a whole. Albán proposed the state respond by creating a framework of absolute protection for people requiring it. He also formally requested that the IACHR Rapporteur on the Rights of Migrants conduct an in-person visit to confirm allegations.

Speaking for Ecuador, Jose Sandoval, the Director of Refugees, responded that the State’s refugee policy is based on the 1951 Convention and reviewed the Convention’s definitions of refugees. He stated that Ecuador’s constitution recognizes and guarantees the rights of migrants generally—including the norm of non-refoulement, which protects a person in certain circumstances from being returned to a country of origin where the individual’s life or freedom would be threatened—and highlighted the country’s long history of accepting refugees. In response to Albán’s concern regarding Executive Decree 1182, Sandoval stated that the Decree was designed to consolidate varying provisions and create a legal framework that responds to new realities. Sandoval noted that the Decree was a factor in the decrease in the number of applications but also credited a drop in the number of people entering the country. He also highlighted the funds and resources Ecuador dedicates to its refugee and asylum populations.

Commissioner Dinah Shelton asked the petitioners whether a constitutional challenge to Decree 1182 has been brought. She also asked the petitioners to comment on the issue of the IACHR’s specific jurisdiction in this matter. Albán responded that a challenge had not yet been brought, and he clarified that the IACHR’s jurisdiction derives from Articles 1, 22, 24, 25, and 28 of the American Convention on Human Rights. In response to a question from Commissioner Shelton on whether the problems were due to a lack of will on the part of the government or a lack of capacity, Albán responded that the problems were a result of both. Commissioners Felipe González and Rose-Marie Belle Antoine were interested in, respectively, issues of access to justice and trafficking, the latter of which Sandoval said was outside the scope of the hearing.

Antoine also asked the State to discuss the statements regarding revocations or cancellations of status, to which Sandoval cited cases where individuals had been “abusing refugee requests in order to be able to streamline the situation,” and implied that the individuals applied for refugee status because it was the easiest option.