Executive Committee Of the High Commissioner's Programme

The points raised in this paper are not necessarily the same as those in the UNHCR background paper and this is not meant as an "answer" to that paper. However, this paper focuses on the recommendations made there. It does not pretend to represent the views of all, or even the majority of NGOs. As the EXCOM format has been chosen for the Global Consultations, NGO in-put is limited and we do not feel obliged by this process to try and present a monolithic view on complex and important refugee protection issues. We do, however, welcome the spirit and attempt to make this process interactive and look forward to continuing the dialogue with both UNHCR and States.

Our position is that asylum is a matter of fundamental human rights. The legal and procedural standards required for the treatment of persons seeking asylum derive from fundamental respect for the dignity of the individual and from the legal obligations undertaken by governments by virtue of their accession to the Refugee Convention and Protocol and to other relevant international human rights instruments. However, in the absence of specific procedural requirements for the refugee determination process in the Refugee Convention, States have developed differing procedures and standards. The purpose of a procedure for determining refugee status is clear: it is to establish whether an applicant is in need of protection against persecution. However, it is vital to recall, as is clearly stated in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status that "a person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of refugee status does not therefore make him a refugee but declares him to be one."

Despite the absence of any specific procedural requirements for the refugee determination process in the Refugee Convention, it is important to consider the implications of international law for such procedures. The principle of non-refoulement contained in Article 33 of the Convention implies the right to admission to the territory and the right to stay until any claim for refugee status is determined. The principle concerns persons within the territory of a state, including its territorial waters, but also at the border and any refugee coming within the authority of an asylum state extra-territorially. It applies whether or not the persons have been formally recognised as refugees, and includes not only a threat to life or freedom on account of race, religion, nationality, membership of a particular social group or political opinion but also a risk of being exposed to torture, to inhuman or degrading treatment or punishment.

Legislation and policies which, intentionally or otherwise, prevent asylum seekers' entry to the territory and access to the asylum procedure, and thus protection from persecution, are clearly inconsistent with this human right standard. Entry and transit visa requirements, sanctions against carriers transporting passengers without the required documentation, and tighter border controls can prevent the admission of asylum seekers and deny access to asylum procedures. NGOs maintain that the objectives of a coherent procedure - fairness and efficiency - are predicated on the right of all asylum seekers, regardless of the legality of entry, to gain access to the procedure for the determination of their case. In addition, a fair and efficient asylum procedure should have the aim of providing a durable solution to a refugee's protection need as early as possible.

NGOs believe that the quality of the asylum procedure is also closely related to national reception policy and that certain standards of social reception are necessary for due process of law and a fair and efficient procedure assistance. Immediately upon arrival, before any initial substantive interview, asylum seekers should be provided with all necessary assistance, including access, if necessary, to medical services, food and rest to enable them to be physically and mentally equipped to deal with the asylum procedure. Asylum seekers who may be survivors of torture should be offered specialist counselling and treatment. Unaccompanied children should be provided at each point in the procedure with psycho-social support as appropriate. Unaccompanied children seeking protection should be provided immediately upon arrival with a guardian who will work closely with the appointed legal representative. Guardians should be carefully selected, trained and supported in their work. As far as possible, they should be matched to take account of the child's ethnic, cultural, religious and linguistic background. In addition to child welfare expertise, guardians should have some knowledge of refugee law and an understanding of the situation in the child's country of origin. The guardian should ensure that decisions on status determination are in the child's best interests. They should consult with the child so that the child's views are taken into account by the decision-making authorities. NGOs reiterate our position that detention of asylum seekers obstructs and undermines the operation of a fair and efficient asylum procedure NGOs note that due to an overall increase in the number of persons applying for asylum in during the last decade, asylum procedures have been put under heavy pressure. However, we find it regrettable that States' responses have focussed on restrictive and deterrent measures, some of which threaten to undermine basic principles of refugee protection. NGOs are of the opinion that asylum procedures will be both fairer and more efficient if protection remains their central focus. An effective asylum procedure depends on good quality initial decision-making. Better initial decisions will clarify whether or not there are grounds to appeal and, if so, refine the issues to be dealt with at appeal, reducing the length and expense of the system as a whole.

An efficient asylum procedure can only be attained if supported by institutional capacity, good quality independent and accurate information and continuous training. With the allocation of sufficient resources, speedier decisions could be achieved without compromising procedural fairness. Measures should also be taken to facilitate speedier decisions on obviously well-founded applications for asylum. It is clearly in the interests of both refugees and national authorities that such decisions are made as quickly as possible. As a key component of an efficient procedure we would identify early access to competent legal counsel as of prime importance.

NGOs have already put forward a range of recommendations on access to asylum procedures, admissibility procedures, the determination of state responsibility, the asylum procedure, appeals, the implementation of asylum procedures, including training of officials, legal representation, data protection, information and transparency, and the suspension of asylum procedures in many national and international fora so we will not repeat that technical advice here today. We would note that, while the recommendations in the UNHCR background paper are directed towards States, many of the principles contained therein are applicable to all bodies which determine refugee status, including UNHCR itself.

UNHCR's recommendations on fair and efficient procedures

(VII. CONCLUDING OBSERVATIONS AND RECOMMENDATIONS, page 11 EC/GC/01/12).

NGOs welcome the decision to place recommendations before the Executive Committee as part of the Global Consultations although we think it is a shame that these recommendations are based on the "best practice" of States. Too often, the best falls woefully short of international standards, including relevant EXCOM Conclusions. We believe that the proposal for a Conclusion on Asylum Procedures is an interesting one - but not on the basis of the recommendations in the UNHCR background paper. We note that the paper is "eurocentric" in the sense of responding to developments in Western Europe and we would be extremely concerned if their export value was increased by a Conclusion based on these recommendations.

UNHCR Recommendation a) on access to asylum procedures:

the Executive Committee should have no problems in endorsing this recommendation on access to asylum procedures in light of EXCOM Conclusions No.71 (XLIV) 1993; No.74 (XLV) 1994; No.82 (XLVIII) 1997; No.85 (XLIX) 1998 and No.87 (L) 1999. In our view, access to a procedure for the determination of refugee status is crucial to respect for the fundamental principle of non-refoulement. The quality of the initial contact between an asylum seeker and the state's official is, therefore, very important. An incorrect decision at the point of access to the territory or failure to pass on the asylum request to the competent authority could have serious consequences for the applicant. In order to boost the role of border officials we believe that UNHCR, designated non-governmental organisations and/or legal advisors should be allowed access to all border areas at ports of entry in order to monitor arrivals. They should also be allowed access to those asylum seekers threatened with expulsion in order to give their opinion on any risk of refoulement, and to counsel the asylum seekers involved.

Any attempt to restrict access to the procedure by, for example, requiring that the asylum request is made within a specified period, or by demanding that the asylum request be formulated in specific terms, or by requiring that the asylum seeker is in possession of specific identity or travel documents may result in the asylum seeker being returned to his/her country of origin in contravention of the Refugee Convention.

UNHCR Recommendations b) and c) on country of responsibility.

NGOs are concerned that these recommendations do not contain any strong procedural safeguards limiting their scope. Further, there is no analysis of whether such procedures are efficient or promote wider policy objectives, such as responsibility-sharing. We strongly believe that procedural devices such as "safe third country" are inimical to responsibility-sharing and, therefore, undermine a central purpose of the international refugee protection regime.

Our concerns are that these procedures are often summary and lack the procedural and legal safeguards applied to the normal asylum procedure. Applicants may be denied access to the territory. Consequently, access to legal advice may be difficult, if not impossible. Asylum applicants may also be penalised on account of their illegal entry, in violation of Article 31 of the Refugee Convention. Finally and most critically, there is often no suspensive right of appeal so that there is a great risk of refoulement.

NGOs are opposed to the use of every admissibility procedures to examine the merits of an asylum application. This is the purpose of the asylum procedure. If states persist in retaining such procedures, as a minimum their scope should be radically reduced and essential procedural and legal safeguards should be attached.

UNHCR Recommendation d) on accelerated procedures.

NGOs are of the opinion that the asylum procedure will be fairer and more efficient if protection remains its central focus. It should not be based on disbelief, deterrents and techniques devised to undermine asylum applications. A procedural environment that is oriented to co-operative inquiry and which relies less on an adversarial approach lends itself to fair refugee status determination and the efficient use of national resources. It is a basic principle of legal culture that an applicant must have the right to state his or her claim fully. This is particularly true when fundamental values such as personal integrity and freedom are at stake. Any reduction or denial of this right creates unacceptable risks for the capacity of government authorities to properly and fairly execute their decisions.

The only purpose of an asylum procedure is to establish whether an applicant is in need of protection or not. It is, therefore, absurd to operate a procedure, as many States do, whereby the decision that an application is 'manifestly unfounded' is taken at the outset of the process rather than as a result of the procedure. It is all the more grave where the consequent procedure, with its emphasis on speed, is characterised by a critical deficiency of legal and procedural safeguards with the result that it may render 'unsafe' first instance decisions.

NGOs would argue that, within the normal asylum procedure, speedier decisions should and can be taken on applications which clearly meet the criteria for recognition of refugee status set out in the Convention. Indeed, the competent authorities should be able to waive the need for an interview where the asylum application and supporting documentation provide sufficient evidence for an immediate grant of refugee status.

States should allocate appropriate human and financial resources to the asylum procedure so that it is both fair and efficient. In particular, States should invest appropriate resources in the initial stages of the procedure to facilitate the highest quality first decisions on asylum applications.

UNHCR Recommendation e) on a single asylum procedure

NGOs agree that the most efficient way of approaching asylum determination is for states to have in place a single national asylum procedure, applicable to all asylum applications regardless of where the application is made or where the procedure is conducted. Experience has shown that the introduction of a variety of asylum procedures for different categories of asylum applications with the hope of shortening procedures often leads to procedural and legal jungles rather than to efficiency. NGOs are opposed to the use of admissibility and accelerated procedures that compromise necessary legal and procedural safeguards for the protection of refugees. NGOs propose that where states persist in retaining such procedures, their scope should be radically reduced and minimum legal and procedural safeguards should be assured.

UNHCR Recommendation f) on the "safe country of origin" concept

The notion of 'safe country of origin' does not relate to an individual assessment of the asylum applicant's status and as such it is wholly unacceptable to maintain the concept as part of a procedure which is based upon the recognition of individual rights. To resort, as some states do, to applying a notion of 'safe country of origin' which effectively excludes certain nationals from having their asylum claim properly examined, amounts to a geographical reservation to Article 1A(2) of the Refugee Convention. Such a reservation is explicitly prohibited by Article 42 of the Convention.

For the reasons we have outlined above, NGOs believe that there should be one single asylum procedure and that procedural devices such as the "safe country of origin" concept do not in fact add value to the efficiency of refugee status determination systems. We are concerned, therefore, that UNHCR appears to endorse the concept in this recommendation without having, in its exegesis of the concept, produced any evidence that the concept adds to efficiency or is not detrimental to the protection of refugees. In our view, such a concept adds nothing to the general presumption in refugee status determination that the country from which an applicant comes is safe; it is, after all, up to the applicant to show why s/he fears persecution. Any additional procedural hoops through which an applicant has to jump to be recognised as a refugee can only detract from the holistic, one-test, approach to status determination which UNHCR advocates.

UNHCR Recommendation g) on legal counsel, interpreters and access to UNHCR.

A fair procedure requires well-informed and qualified decision-makers who are able to interview the asylum applicant in conditions which are conducive to establishing the facts. One of the most crucial elements of the asylum procedure is an environment that facilitates communication of personal testimony, assisted by respect for the confidentiality of the proceedings. The task of establishing the facts should be shared between the competent authority and the asylum applicant. A fair procedure, therefore, also requires well-informed asylum applicants who receive free, independent and competent legal advice.

The availability of qualified, independent and impartial interpreters is vital. In the majority of cases, asylum seekers do not speak or understand the national language. Cultural differences may make communication even more difficult. Investment in good interpreters is not only a question of fairness, but leads to a better assessment of factual situations from the very beginning. This helps to make correct decisions and to increase confidence, which in turn serves efficiency.

We do not see the need to make recommendations on the right of UNHCR to obtain access to refugees and others of concern to the Office but remind the Executive Committee of the Preamble to the Refugee Convention on the duty of co-operation with the Office and, in particular, Article 35 of the Convention. We also remind the Executive Committee of its Conclusions No.33 (XXXV) 1984; No.44 (XXXVII) 1986; No.48 (XXXVIII) 1987; No.75 (XLV) 1994 and No.82 (XLVIII) 1997.

UNHCR Recommendation h) on interviews

Every asylum seeker should be given a fair and complete interview by the competent authorities. Asylum seekers should never be interviewed by police or border guards on the substance of their asylum claim. The right to an interview may be waived where the competent authority considers it possible to grant refugee status or a complementary form of protection on the basis of documentation submitted.

Any procedure or determination which affects a refugee child should be designed to allow the child to be heard, as provided by Article 12 of the Convention on the Rights of the Child. Any meeting for this purpose should take place in a child-sensitive way and in the presence of the child's guardian or a trusted family member. The child may either be heard directly, or a guardian or legal representative may put forward the child's views. If possible, provision should be made for an expert assessment of the child's ability to express a well-founded fear of persecution. Oral interviews with children should never be used for the primary purpose of finding discrepancies. They should be allowed to express themselves in their own way and at their own pace.

UNHCR Recommendation i) on responsible decision-making authority

NGOs believe this recommendation is generally sound. However, it is important to note four aspects of it, which should be clarified:

• First, the purpose of referral to a central authority for an admission decision should be to ensure that a person who is the subject of any such decision is entitled to seek review of that decision by an independent and impartial review body.
• Second, no interview by a border official should be for the purposes of exploring the substantive elements of any claim for protection. This is important not only because an asylum seeker should have adequate time to rest and recuperate after what has most likely been an arduous journey, but also to ensure that the asylum seeker has adequate information about her/his rights before a substantive interview takes place. Moreover, contrary to State practice in a number of countries, information provided at this time should not, other than in exceptional circumstances, constitute grounds for discrediting information provided when making a substantive application for refugee status.
• Third, as with other officials taking substantive decisions on refugee claims, border officials should be properly trained, not to take decisions on refugee claims, but to recognise and respond in a protection-sensitive and rights-respecting way to persons who present themselves at the border and who may wish to seek asylum.
• Finally, as detention of asylum seekers has become increasingly prevalent, indirect effects of the practice have begun to emerge. This is most clearly reflected in practices that have developed in airport transit zones and remotely located detention centres or prisons. The effect has been to deprive people of information about their rights, which is vital to advancing a claim for asylum. The use of detention to obstruct access to information and/or procedures should be condemned.

UNHCR Recommendation j) on information:

NGOs whole-heartedly endorse this recommendation, which is why we deplore the almost complete closure of the UNHCR Centre for Documentation and Research. We believe that decision-makers should have the requisite knowledge of refugee and asylum law. In addition, it should be noted that interpreters should be subject to applicable professional standards. Where no such standards are in place, a code of conduct for interpreters should be developed.

UNHCR Recommendation k) on asylum-seeker responsibility:

NGOs believe that the responsible authorities have a complementary duty to recognise and anticipate the vulnerabilities of asylum seekers. This is a responsibility with relevance beyond the question of burden of proof. We emphasise that where a doubt exists as the credibility of an asylum-seeker's evidence, that the asylum-seeker is given the benefit of that doubt.

UNHCR Recommendation l) on documentation:

NGOs prefer to formulate this recommendation in the following terms: a lack of appropriate documentation or the use of false documents is not in itself sufficient to render a claim abusive or fraudulent. On the contrary, the UNHCR Handbook acknowledges that many refugees who are forced to flee their country will, in fact, do so without adequate documentation.

It is regrettable that an understandable lack of documents and the use of false documents are juxtaposed in the Conference Room Paper with uncooperative asylum seekers. They are qualitatively very different and should be treated separately, as there is nothing inherently uncooperative about an asylum seeker presenting her or himself at the border undocumented, or indeed destroying documents. In any event, an apparent lack of co-operation should be explored in considerable depth before any conclusive decision is reached. Where an individual has destroyed her/his documents, this should not of itself trigger assumptions of lack of co-operation. Rather, destruction of documents may trigger an inquiry in order to ascertain the basis on which the documents were destroyed.

UNHCR Recommendation m) on confidentiality:

In our view, no information, including the name of the individual asylum seeker or members of her or his family, should be shared with consular officials without the express, voluntary and informed permission of the individual. In this regard, it must be recalled that information provided by an asylum seeker must be treated as confidential as it is considered to be the property of the asylum seeker.

Requirements of confidentiality should not impinge on the asylum seeker's right to access information regarding their claims contained on their file. It is a basic principle of procedural fairness that an asylum seeker should be entitled to know the case "against" them where a negative decision has been taken on an application. This principle is consistent with principles of accountability, including those provided for in Article 35 of the Refugee Convention, and would enhance UNHCR's capacity to fulfil its mandate on behalf of refugees.

UNHCR Recommendation n) on special procedures for women and children:

NGOs believe that this position on detention extends beyond separated children to other minors. We note that Guideline 6 of UNHCR's Guidelines on applicable Criteria and Standards relating to the Detention of Asylum-Seekers states that: in accordance with the general principle stated at Guideline 2 and UNHCR's Guidelines on Refugee Children, minors who are asylum-seekers should not be detained.

UNHCR Recommendation o) on written decisions:

We agree with this recommendation, although we would amend that the decision must always be a reasoned one, rather than "in principle" it should be a reasoned one. It is an imperative of natural justice that written reasons are given for a negative decision. No person should ever be denied protection and unable to know the case against her/him. We would also add that where a decision is taken to detain a refugee the decision should also be made in writing, with full reasons given.

UNHCR Recommendation p) on appeals or review:

We agree, and would add that any appeal or review must be impartial, in line with the UN Guidelines on the independence of the judiciary. This includes adequate funding of the appellate or review body. All applicants should have the right to be represented in seeking an appeal or review against a negative decision. This right should extend both to the application for review as well as the hearing of that application.

NGOs object in principle to the notion of taking admissibility decisions in the first place. However, where such decisions are taken, the only reason why a review of admissibility decisions might be seen as permitting an accelerated review procedure would be because the admissibility decision should simply be about whether the applicant's claims are admissible, rather than examining the claims substantively. Then, if the appeal/review is successful, the person should be admitted to the substantive refugee status determination process which would entitle her/him to a fully-fledged review procedure in the event that the substantive application for asylum were rejected. Admissibility procedures require the same standards of procedural fairness as substantive decisions.

NGOs consider that an asylum seeker's right to remain on the territory of the asylum country should not be described as a right they have "in principle". The very institution of asylum, and indeed the principle of non-refoulement are dangerously compromised if this right is obfuscated.

This paper has been prepared by ICVA, with written contributions from:

• Amnesty International
• British Refugee Council
• Canadian Council for Refugees
• Disaster Mitigation Institute (India)
• The European Council on Refugees and Exile
• Inter-Church Committee for Refugees (Canada)
• Jesuit Refugee Service
• Lawyers for Human Rights (South Africa)
• Lawyers Committee for Human Rights (USA)
• The Medical Foundation for the Care of Victims of Torture (UK)
• PARinAC Focal Point for West Africa, OFADEC (Senegal)
• Refugee and Immigration Legal Centre, Inc. (Australia)
• Sierra Leone Association of NGOs
• US Catholic Bishops Conference
• Working Group on International Refugee Policy (Netherlands)

and has drawn on comments from the UNHCR-NGO meeting at Geneva International Conference Centre, 28 June 2001 and from informal discussions.