1. As NGOs committed to the protection of refugees and asylum seekers, we welcome the discussion in this forum on the reception of asylum seekers and congratulate UNHCR on a number of issues raised in its discussion paper , in particular the recognition that, like civil and political rights, economic, social and cultural rights are also applicable to asylum-seekers. In this regard, we would like to draw attention to an earlier NGO Statement on socio-economic rights, presented to the Standing Committee in June of this year .

2. There are a number of elements of this discussion that require further examination, analysis and elaboration, particularly from a rights-based perspective. We have touched on some of them in our written comments on the Reception Standards paper. In our view, however, they are worthy of and indeed demand considerably more attention than they have hitherto been given.

3. In this statement we wish to highlight a number of issues of particular concern and suggest some ways forward that are constructive, transparent, and protection-oriented.

International legal framework

4. We very much welcome the reference made by UNHCR in its paper to a range of human rights instruments including the Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of all forms of Discrimination against Women, and the Convention on the Rights of the Child. To this list we would add also the Convention on the Elimination of all forms of Racial Discrimination as well as the Convention against Torture, the latter instrument being of particular relevance in the context of detention. In addition, regional human rights instruments are also relevant. The importance of incorporating applicable international standards into national legislation is also underlined.

5. Although reception standards have been treated separately from issues of protection within the context of the Global Consultations, they are closely linked. Indeed, inadequate reception standards in any country may constitute a failure to accord protection. In most countries in the world, reception systems and conditions are serving to undermine refugees' and asylum seekers' chances of finding effective protection.

6. We endorse an approach which highlights the importance of the responsibility of UNHCR to supervise full and effective implementation of obligations under the Convention pursuant to article 35, emphasising that the starting point of any discussion on reception standards should be the principle of non-discrimination. Supervision to ensure non-discriminatory implementation of reception standards, which should be informed by other human rights standards, is essential given the potential for them to deteriorate rapidly and for double standards to emerge. The formulation of global standards does not mean minimum standards. Rather, with the universally applicable principle of non-discrimination, enshrined in several key human rights instruments, as our starting point, we must recognise that human rights obligations impose important restrictions on a State's right to isolate asylum seekers from the general population, whether physically, socially or economically.

Challenges faced by States

Cost

7. States argue that they cannot afford proper reception for asylum seekers. But what of the human cost implications of inadequate reception standards? We are, after all, here to discuss protection of refugees. In this regard, we pose two questions to the international community, and in particular to States members of the Executive Committee:

1. Can the international community abide the disproportionate expenditure and lengths to which some industrialised States are prepared to go to prevent people in need of international protection from entering their territory or accessing procedures, sometimes for short term political gains?
2. Can the international community stand idly by while palpable failures to accord civil, political, economic, social and cultural rights persists? In some instances these protection failures reflect a negligently low expenditure on the part of the international community which obstructs scope for building protection capacity. In others they reflect a lack of real political will to explore even low cost ways of realising the rights of asylum seekers and refugees.

8. We recognise the links between reception standards and the capacity-building topic of the Global Consultations, a human rights approach which we support as the only way to address the problem of inadequate protection with any integrity.

9. The rights referred to in the Reception Standards paper have universal application and must be accorded in a non-discriminatory way. The quality of reception is the responsibility of the international community, not least because measures taken to prevent people from entering or remaining in a destination country amount or lead, directly or indirectly, to violations of their fundamental human rights.

Reception conditions, systems abuse and smuggling

10. In our view, it is not appropriate to use reception conditions as a way to discourage "misuse" of asylum claims. Indeed, it is unacceptable that refugees be made to suffer because they have been forced to use irregular means of gaining access to a country of asylum. It would be better done by (i) ensuring legal means of access, and (ii) eliminating unnecessary delays in status determination. This second matter would also reduce the cost of reception, which we referred to earlier.

11. There is little real evidence that reception conditions do in fact constitute a pull factor, but that a range of other considerations are far more important to the asylum seeker's choice of country of asylum. The deterrent objective of the practice of lowering reception standards appears to be equally ineffective. It is, however, too often the case that an unsubstantiated and uninformed link is made for short term political gain between reception conditions, perceived abuse and smuggling of persons. NGOs therefore call for collaborative and transparent cross-sectoral research which examines the full nature and scope of these issues and the relationship between them, and taking a balanced view to the question of push and pull factors.

Reception Conditions and Irregular Movement

12. The concept of "irregular movement" is provided for in EXCOM Conclusion 58. NGOs are concerned with the considerable attention given to measures to address irregular migration in discussions on refugee protection. We emphasise that the concept of irregular movement has a specific meaning. To be an irregular mover, an asylum seeker must have found protection, which clearly must be effective. It follows, given the lack of solutions available to the majority of the world's refugees, that not all secondary movements can be properly described as irregular movements. In this regard, we refer to the NGO statement on the Migration Asylum Interface, presented in June of this year . Any association that is made between available reception standards and irregular movement must be viewed and analysed with care and caution.

13. If measures are to be taken to address so-called irregular movement, there must be careful analysis on an individual basis to determine whether the individual asylum seeker had actually found effective protection.

Reception Standards and Durable Solutions

14. The adequacy of reception standards will have a direct impact on the realisation of the durable solutions of local integration and resettlement. In particular, reception standards should support the eventual integration of persons who may be recognised as refugees. We also strongly urge States to recognise that adequate reception standards should not be perceived as a disincentive to voluntary return. To the contrary, there is some evidence to suggest that adequate standards may in fact be conducive to it. On the other hand, a situation where asylum seekers may be chronically disempowered as a result of inadequate reception standards may have the opposite effect. This has been described as the "virtuous circle" of good reception and good integration or good return.

Reception Standards in the context of Smuggling and Trafficking

15. This approach is also true of the smuggling phenomenon, which is frequently confused with trafficking. In some countries, the current emphasis on smuggling and trafficking virtually consumes all policy conceptualisation and procedural responses to the reception and treatment of asylum seekers. In particular, this emphasis seeks to criminalise trafficked or smuggled persons, and restrictive reception practices are viewed as an effective mechanism for deterring smugglers and traffickers. This approach runs counter to standards provided for in the Optional Protocols to the International Convention on Transnational Organised Crime that stipulate that victims of smuggling and trafficking should not be penalised, and indeed, in the case of those who are asylum seekers, may have had no other realistic alternative in their search for effective protection. In addition, these deterrent measures contribute to substantial (and needless) suffering and, in some cases, re-traumatisation of an already vulnerable individual. NGOs urge that this emphasis be rejected.

16. We recognise the need for States to take measures to address the problem of smuggling and trafficking. There are ethical and rights-respecting ways of doing so. We therefore support the UNHCR paper's call for greater efficiency in the asylum determination process, 'reducing the length of time of the asylum procedures' as representing an 'effective way to address these concerns'. However, this ought to happen only under circumstances where quality in decision making is guaranteed, accompanied by appropriate procedural safeguards, including the opportunity to submit a substantive appeal against a negative decision before an independent authority.

Challenges faced by asylum seekers

Assistance and related issues

17. Inadequate reception standards are fundamental for meaningful access to asylum procedures. The question of access was discussed in the course of the Global Consultations in June in the context of fair and effective asylum procedures, but it bears repeating here.

18. Reference made in the UNHCR paper to provision of support in kind should be qualified. Support in kind might be appropriate in cases of mass influx, on initial arrival or in some other situations in developing countries reliant on international assistance. However, where there is a risk that such support would serve to discriminate against or otherwise identify publicly an asylum seeker (e.g. voucher systems), assistance in kind is unacceptable. Again, we emphasise that reception standards should be developed in a rights- and solution-oriented way, also noting that failure to take this approach can in fact undermine the efficiency of the asylum procedure. Furthermore, we wish to stress the importance of ensuring the physical safety of refugees and asylum seekers.

19. It is now time to start a serious debate in relation to economic, social and cultural rights in the context of reception of asylum seekers, and recognise that these rights, including education, shelter, food and medical assistance, are integral to giving effect to all durable solutions: voluntary return; local integration and resettlement.

20. Further, we must resist the notion that permission to work should be denied on the basis that it leads to alleged abuse of asylum procedures. Mechanisms to combat abuse of asylum procedures must include the development of realistic migration policies. In this regard, we refer to the NGO background paper on the migration/asylum interface referred to earlier.

Freedom of movement

21. The detention of asylum seekers should only be resorted to as an exceptional measure, for limited reasons, and after alternatives to detention have been explored. Under no circumstances should it be used as a deterrent mechanism to combat abuse of asylum procedures. In particular, children should never be detained.

22. If detention is used, detention decisions must always be made on an individualized basis, and asylum seekers must have the right to the prompt presentation of written reasons for their detention. Detainees must also have the right to timely, effective and substantive review of the detention decision by an independent body, and the right to de novo review on a periodic basis. Any detention must be subject to reasonable and enforceable time limits. Further, detainees should have the right to free legal assistance to challenge their detention.

23. The increasing use of measures to restrict the freedom of movement of refugees and asylum seekers is a trend that must be challenged. This is relevant to industrialised states, especially those where detention is widely used, although some States place restrictions on asylum seekers' freedom of movement in other ways. In developing countries the freedom of movement issue is also relevant, both in relation to detention as well as where refugees' movement in and out of camps may be restricted. In many countries of the world, detention regimes pay scant regard to the civil, political, social, and cultural rights of refugees, and to the rights accorded special populations such as children. The increasing use of and the disproportionate expenditure on detention facilities and other restrictions on the movement of people within the territory of a State unacceptably compromise minimum human rights standards, not least minimum international standards on detention.

24. Research should be done in a transparent way, on the real costs, both human and fiscal of detention policies and alternatives to detention. We can make no progress on reception while it is judged solely in terms of its perceived deterrent value. It does not deter the smugglers and traffickers; they do not stay on in the country of asylum.

25. The lack of access to legal entry is highly relevant to this debate, given that asylum seekers are often left with no choice but to seek to circumvent ordinary means of entry and face punitive measures in an attempt to find effective protection. In this connection, we consider that States should reject legal fictions relating to apprehension, detention and expulsion from so-called "international zones" or other designated zones within the territory of a State.

Registration, documentation and temporary stay permits

26. Registration should have as its primary purpose the protection of refugees and of their fundamental human rights. In the NGO Statement on registration, given during the Global Consultations on Mass Influx Situation in March, we highlighted the utmost importance of registration as a tool of protection. Registration, when carried out in an adequate and protective manner, is an important tool for identifying specific protection needs, whereas inadequate registration often hampers protection and the ability of refugees to assert their rights. In the NGO Statement, we listed a set of principles, which at a minimum should be applied to a registration process in order to ensure that the registration is happening, with a view to strengthening the protection of refugees and asylum seekers.

27. The issuing of documents is of equally crucial importance to the protection of asylum seekers and refugees from expulsion, non-refoulment, detention or other limitations of their freedom of movement, sexual exploitation and other serious attacks on their person and security. The issuing of documentation identifying people and indicating their status as either asylum seekers or refugees, is an obligation under Article 27 of the 1951 Refugee Convention, and is also reaffirmed in Excom Conclusion No. 35 (1981) on Identity Documents for Refugees. Excom Conclusion No. 35 further recognises the value of registering and issuing appropriate documentation to refugees in large scale influx situations. Registration and issuing of documentation should be provided on an individual basis and in a non-discriminatory way in order to extend the fullest protection to the individual as soon as possible. Women must have equal access to registration and documentation.

28. We note, in this regard, that the Reception Standards paper refers to best state practices. Drawing on the 1951 Convention itself as well as relevant EXCOM Conclusions, we are concerned that registration, documentation and temporary stay permits should be seen as a right, not just a question of best state practice.

Groups with special needs

29. NGOs welcome the attention that has been given to the issue of reception standards and addressing this question from the point of view of groups with special needs. However, we would strongly urge the inclusion of unaccompanied and separated minors as specific categories, as well as survivors of torture and trauma, and persons with other disabilities or health problems. We are particularly concerned about the detention of these groups, given the well documented detrimental impact on such individuals, which may in fact serve to perpetuate the trauma of the persecution which gave rise to the flight in the first place. It should not be forgotten that such groups make up the majority of refugees.

30. Again, this area would benefit from a more thorough and focused approach to evaluation and research.

31. People may form part of more than one such group. UNHCR reminds us in the discussion paper of the particular vulnerability of female asylum seekers who have suffered sexual torture. Child survivors of torture are another especially vulnerable group and we draw attention to article 39 of the Convention on the Rights of the Child:

• "States parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment, or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child."

32. The focus on an environment fostering health, self-respect and dignity is of pivotal importance for adults also. It is the dignity of survivors of torture which has been under sustained attack by their torturers. An emphasis on dignity and respect for human rights are key elements in facilitating the recovery of survivors of torture and organised violence. Gender sensitivity is a central part of this.

33. The daily assault on the dignity of asylum seekers caused by discrimination and major or petty deprivations, causes enormous suffering to refugees. NGOs and medical practitioners providing trauma counselling to survivors of torture have found that detention upon reception in the host country can be particularly harmful and have serious and lasting psychological effects, for example compounding the trauma of previous detentions and causing them to relive past horrors, increasing anxiety and distress, and the possibility of self-harm and suicide. It is incumbent upon States to confront these issues in a responsible way.

Challenges faced by UNHCR

34. In certain situations, UNHCR is responsible for status determination as well as the ongoing protection of and assistance to asylum seekers and refugees. In carrying out such mandates, UNHCR also faces certain challenges. These include: attracting the necessary funding to fulfil its obligations to guarantee adequate reception standards, ensuring that others are fulfilling their responsibilities and, in general, providing reception standards in a principled and rights-respecting manner.

35. In this regard, we welcome the current evaluation process in relation to the implementation in a range of different places of implementation by UNHCR of its Policy on Refugees in Urban Areas. In this regard, we reiterate previous calls for review of this policy and in particular urge that guidelines on irregular movement, applying the standards set out in EXCOM Conclusion 58, be developed in a more explicit way. We also recommend that guidelines be developed for assessing assistance needs of individual asylum seekers and refugees.

36. We therefore call upon States, in considering the possibility of an EXCOM Conclusion to:

1. Recognise that the principle of non-discrimination should be the starting point of any discussion on reception standards;
2. Given that inadequate reception standards can render what might otherwise be fair status determination procedures unfair and meaningless, reception standards must not inhibit, in any way, access to a full and fair asylum procedure;
3. Asylum seekers who are survivors of torture or organised violence, have disabilities, or special health needs should all be considered as being "groups with special needs";
4. Any recognition of economic, social and cultural rights, and in particular the right to work, should not be used as grounds for reducing assistance where, for example, a person granted permission to work is unable to do so. This can render the vulnerable even more vulnerable;
5. Minimum human rights standards, including the Guidelines on Detention of Asylum Seekers, should be endorsed in the context of detention practices, and should address alternatives to detention;
6. The principle of family unity should be respected;
7. Access to UNHCR and NGOs is vitally important and should be ensured at all times;
8. Unencumbered access to adequate and effective means of communication must be facilitated for all asylum seekers as a matter of right and as a matter of course;
9. There must be transparency in the reception system, including funding, and asylum seekers must have access to assistance and information concerning their rights;
10. The right to freedom of movement should not be restricted to a specific area in the territory of a State but should be guaranteed for the whole territory of the State whose international protection obligations have been engaged. Any restriction may only be imposed in accordance with international human rights law.

New challenges

Security

37. As a final word in relation to the issue of security, which has attracted increasing attention since the tragic events of 11 September, we are concerned about the impact that a response to these events may have on the reception and rights of asylum seekers, including the following:

• An already serious humanitarian emergency in Afghanistan and neighbouring countries could be significantly worsened;
• We urge States to look closely at budgets for protection and registration in this regard;
• New legislation intended by governments to curb entry of persons suspected of being "terrorists" may create new barriers for people in need of international protection;
• "Profiling" of certain nationalities or ethnic/religious groups by immigration officials may increase discriminatory attitudes and procedures;
• Detention of asylum seekers, already used by too many governments, could become even more widely used, particularly for asylum seekers without adequate documentation (in particular, we are alarmed by the prospect of indefinite detention without any evidentiary basis or other legal safeguards);
• Racism, xenophobia and "criminalisation" of non-nationals, including asylum seekers and refugees, which have already reached alarming levels in many regions, could become even more widespread;
• Enhanced intergovernmental cooperation to combat terrorism, and sharing of sensitive immigration information, could put bona fide asylum seekers, amongst others, at great risk and breach their basic human rights.

This Statement has incorporated feedback provided on this discussion paper by NGOs attending a preparatory meeting with UNHCR on 25 September, 2001. In addition, it has received input and feedback and/or specific endorsement from a number of NGOs, including:

• Amnesty International
• British Refugee Council
• Canadian Council for Refugees
• European Council on Refugees and Exiles (ECRE)
• International Council of Voluntary Agencies (ICVA)
• Jesuit Refugee Service
• Lawyers for Human Rights (LHR), South Africa
• Lawyers Committee for Human Rights (LCHR)
• Lutheran Immigration and Refugee Service (LIRS)
• Medical Foundation for the Care of Victims of Torture
• Refugee Assistance in Japan, representing Working Group of PARinAC
• Japan Forum
• Refugee Children and Vulnerable Citizens, Tajikistan
• Refugee Council of Australia
• Society and Law, (Tajikistan)
• Victorian Foundation for the Survivors of Torture
• Women's Commission for Refugee Women and Children