RSD Standards Update

To the Council of Europe, UNHCR re-affirms fairness

Update 9 December 2005:

 

UNHCR says EU states violate commitments to asylum standards, especially on ‘safe third country’ rules, and access to appeals.

 

4 April 2005

 

New statement raises questions about  UNHCR’s own RSD practices

 

In March, UNHCR released comments on the Council of Europe’s proposed minimum standards on refugee status determination (RSD), updating previous comments to the Council from January 2003.

 

UNHCR is now telling governments that the dozens of countries where UNHCR conducts refugee status determination should not be considered first countries of asylum. The High Commissioner continued to push European governments to maintain fairness in the way they decide asylum cases.  

 

This latest advice to Europeans is consistent with human rights law, administrative law, past statements by UNHCR, and accepted standards of best practice.  However, UNHCR’s own RSD procedures generally fall short of the standards that UNHCR sets for others. The gap between UNHCR standards and UNHCR practice in RSD can be seen on several fronts, especially giving reasons for rejection, limiting the use of secret evidence, providing an independent appeal, and respecting the right to counsel.

 

UNHCR was the largest decision-maker of refugee status in 2003, deciding refugee cases in dozens of countries where governments have not set up their own asylum systems.

 

 

Are states where UNHCR performs RSD safe countries of asylum?

 

The High Commissioner told the Council of Europe that the countries where UNHCR performs RSD may not be safe first countries of asylum. The High Commissioner said (at p. 35):

 

Countries where the Office is engaged in refugee status determination under its mandate should, in principle, not be considered first countries of asylum. UNHCR often undertakes such functions because the State has neither the capacity to conduct status determination nor to provide effective protection.

 

If applied, this rule would stop European states from returning asylum-seekers to Turkey, much of the Middle East and North Africa, as well as many countries in Southeast Asia. UNHCR did not mention problems with its own procedures as a reason why such countries should not be considered first countries of asylum, although these issues may also be relevant.

 

Despite this public statement, UNHCR offices themselves continue to consider countries where “the Office is engaged in refugee status determination” to be valid “first countries of asylum.” In recent years, UNHCR offices have asked asylum-seekers and refugees to return to Egypt, Lebanon, Libya, and Syria, among others, arguing that these states were in fact first countries of asylum.  UNHCR conducts status determination in all of these countries.

 

 

Standards of fairness in RSD

 

UNHCR’s refugee status determination procedures have been criticized for lacking safeguards recognized in UNHCR’s own public statements (read RSDWatch.org’s bibliography for more details). This inconsistency continued as the High Commissioner’s advice to the Council of Europe re-affirmed the importance of fairness in asylum systems.

 

Areas of inconsistency include:

 

Reasons for rejection: One of the most frequent criticisms of UNHCR’s RSD procedures is that UNHCR offices usually do not give rejected asylum-seekers full written reasons, although UNHCR staff often prepare multi-page internal case assessments. People who say they are in danger of persecution are hence refused protection without knowing why.

 

UNHCR’s practice would fail to meet the safeguard proposed by the Council of Europe. The Council of Europe’s proposed minimum standard, article 8, states:

 

Member States shall ensure that decisions on applications for asylum are given in writing. Member States shall also ensure that, where an application is rejected, the reasons in fact and in law are stated in the decision and information on how to challenge a negative decision is given in writing.

 

UNHCR responded to this by emphasizing the importance of informing rejected asylum-seekers about how to appeal (p. 13).

 

 

Withholding of evidence (secret evidence): As RSDWatch.org has noted, UNHCR’s internal policy on using secret evidence in refugee status determination differs from the public advice that the High Commissioner has given the Council of Europe.

 

UNHCR offices generally refuse to let asylum-seekers review the transcripts of their interviews with UNHCR staff, UNHCR assessments of their cases, testimony by other witnesses, country of origin information used by UNHCR, and medical and mental health examination reports solicited by UNHCR, among other things.

 

The latest rules proposed by the Council of Europe would allow for more transparency than the norm at UNHCR offices. UNHCR nevertheless criticized the Europeans for being too restrictive.

 

The Council’s proposed standard (article 14) would allow an asylum-seeker’s lawyer to “enjoy access to such information in the applicant’s file as is liable to be examined by the authorities.” But the Council  would allow states to make an exception where disclosure

 

would jeopardize national security, the security of the organizations or persons providing the information, or the security of the person(s) to whom the information relates or where the investigative interests … or the international relations of the Member States would be compromised.

 

In its most recent comments, UNHCR found these exceptions too broad:

 

UNHCR is concerned that this would leave asylum-seekers and decision-makers in unequal positions and limit the applicants’ possibility to challenge factual errors. UNHCR therefore recommends that information and its sources may be withheld only under clearly defined conditions, where disclosure of sources would seriously jeopardize national security or the security of the organizations or persons providing information (p. 19).

 

The Council proposed as a minimum (article 12) that “applicants have timely access to the report of the personal interview [which should contain] at least the essential information regarding the application, as presented by the applicant.” UNHCR advised that in addition to being given access to the interview report, asylum-seekers should be asked to approve the interview record in order to avoid misunderstandings (p. 18).

 

UNHCR noted that country of origin information relied on by government decision-makers “should be similarly available to the asylum-seeker and his or her legal adviser/counselor, and should further be subject to the scrutiny of reviewing bodies” (p. 11-12).

 

 

Right to an appeal:  UNHCR offices typically allow rejected asylum-seekers to appeal, although they cannot always know why they were rejected in the first place. Their appeals are reviewed by a second UNHCR staff member, but not by a separate and independent body. UNHCR could set up an internal appellate tribunal system to hear RSD cases from its own offices, but it has not done so.

 

UNHCR’s current practice would not meet the standards proposed by the Council of Europe, which require a “right to an effective remedy before a court or tribunal against [refusals of asylum applications]” (article 38). UNHCR praised the Council’s proposal:

 

UNHCR notes with satisfaction that applicants have the right to an effective remedy before an independent and impartial tribunal or body. Such an appeal instance should have the jurisdiction to review questions both of fact and law. (p. 50).

 

 

Right to counsel: Some, though not all, UNHCR offices refuse to accept that asylum-seekers have a right to legal representation at all stages of the refugee status determination procedure, for instance refusing to allow legal representatives to attend interviews and refusing to accept documents prepared with legal assistance.

 

To the Council of Europe, UNHCR emphasized that asylum-seekers have a right to legal advice and representation. UNHCR said:

 

In UNHCR’s view, the right to legal assistance and representation is an essential safeguard, especially in complex European asylum procedures. Asylum-seekers are often unable to articulate cogently the elements relevant to an asylum claim without the assistance of a qualified counselor because they are not familiar with the precise grounds for the recognition of refugee status and the legal system of a foreign country. Quality legal assistance and representation is moreover, in the interest of States, as it can help to ensure that international protection needs are identified early. The efficiency of first instance procedures is thereby improved. (p. 19)

 

UNHCR also advised that “the need to consult with a legal counselor” may be a valid reason for a person to delay submitting an asylum application (p. 11).

 

 

Questions raised

UNHCR is now in the position of trying to promote refugee protection standards for European governments even as it engages an internal debate about what standards should apply to its own offices. While UNHCR’s comments to the Council of Europe should be a routine part of UNHCR’s supervision of refugee law, the gap between what UNHCR says and what UNHCR does on refugee status determination procedure raises two key questions.

 

First, will this inconsistency undermine UNHCR’s moral authority just as UNHCR’s leadership is needed to resist government efforts to erode refugee protection?

 

Second, will UNHCR reform its RSD practices to meet the benchmarks it has set for others?

 

Though UNHCR has promised since 2003 that it is revising its own RSD procedures, it has to date not released any details about the proposed reforms to the public. NGOs have called for an independent assessment of the way UNHCR conducts RSD.

 

 

 

 

 

 

 

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