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UNHCR embraces legal aid and improves standards on giving specific reasons for rejection

September 19, 2005

In newly published standards governing refugee status determination procedures by UN offices in around 80 countries, the UN refugee agency has embraced legal aid for asylum-seekers, and called for failed refugee claimants to be given specific reasons for rejection. But UNHCR did not change its policy on withholding evidence from asylum-seekers and took no steps to improve the independence of its appeal system.

Since the 1990s, UNHCR’s RSD procedures have come under increasing criticism for lacking basic safeguards. In the past, UNHCR offices generally failed to give rejected applicants any specific explanations, relied extensively on secret or withheld evidence that applicants could not clarify or rebut, and did not establish independent units to consider appeals. Some UNHCR offices refused to permit asylum-seekers to have legal representation.

UNHCR has long issued advice to governments on RSD, but had never before published a comprehensive statement of its own procedural policies. Calling RSD “a core UNHCR protection function” that “has potentially profound implications for the life and security of the individuals concerned,” the agency’s Department of International Protection (DIP) stated its intention to enhance the “quality, fairness and integrity” of UNHCR’s RSD procedures.

Positive steps

  • Right to counsel: The standards state that asylum-seekers may bring legal representativeswith them to their interviews at UNHCR. The standards do not explicitly state whether asylum-seekers may have legal assistance in preparing written submissions to UNHCR, but the agency has previously advised governments that asylum-seekers have a right to counsel “at all stages of the procedure.”
  • Reasons for rejection: The new standards ask UNHCR field offices to provide, in writing,specific reasons for rejection whenever they turn down a refugee claim. According to the new standards, rejection letters should contain enough facts and explanations to allow the person “to make an informed decision about whether an appeal isappropriate and to focus appeal submissions on relevant facts and issues.”  However, the DIP described these benchmarks as merely a “best practice,” leaving ambiguity about whether field offices will be compelled to comply.
  • Protecting the most vulnerable: UNHCR’s procedures call for especially vulnerable asylum-seekers to receive faster decisions. Human rights groups have expressed alarm about the use by governments of “manifestly unfounded procedures” to reject asylum claims without a full hearing. The new standards prohibit such practices in UNHCR offices.

Remaining gaps

  • Routine use of secret evidence: The refugee agency did not change its general policy of refusing to allow asylum-seekers access to most of the evidence in their files, a policy that conflicts with UNHCR’s advice to governments and that may violate human rights and administrative law.
  • No independent appeals: The new standards contained no provision for setting up independent bodies to hear appeals. UNHCR has told governments that rejected asylum-seekers should be able to appeal to an institutionally separate authority. For its own offices, UNHCR only requires that appeals be considered by an official who was not involved in the first decision.

Continuing debate

The refugee agency explained the gaps between its advice to governments and its own policies as a reflection of “the particular constraints and challenges under which UNHCR must conduct RSD.”

On 8 August, a group of refugee advocacy organizations wrote an open letter to High Commissioner for Refugees Antonio Guterres warning, “Gaps between what UNHCR says to governments and what UNHCR does in its own operations can only erode UNHCR’s credibility.  This is something that neither UNHCR nor refugees can afford.”

The new standards were circulated internally in 2003, but were never before available to the public. UNHCR has cautioned that it has faced difficulty implementing the standards in some of its offices. Field offices are now required to develop their own standard operating procedures to implement the new standards.

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