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Seven NGOs offer joint comments to UNHCR on new RSD procedures

October 9, 2005

On 1 September, UNHCR published comprehensive standards to guide refugee status determination procedures in around 80 offices. On 7 October, a group of refugee rights groups in the Middle East and Africa offered detailed comments on the new standards.

The following are excerpts of the joint comments.

First, we are pleased with the greater emphasis upon fairness of procedure, due process, confidentiality, increased ease of access to the application procedure, the right to counsel, and the right to receive reasons for rejection of refugee status claims.  Simultaneously, we are cautious about the ambiguous language used with regard to several issues in elaborating these standards.  When combined with the absence of rigorous implementing procedures, these ambiguities risk undermining the relevance of the standards.

Second, we would like to encourage greater emphasis upon principles of professionalism and accountability within UNHCR in these new Standards. Staff should be held accountable for their actions whether intentional or inadvertent. We would further recommend greater emphasis upon training staff and setting criteria for what constitutes appropriate qualifications and experience to duly fulfill each task.

Third, there are many principles directly imported from previously established guidelines that do not indicate significant change from the past on subjects where reforms are required.  In particular, we are concerned by the lack of progress in building an independent appeal system for UNHCR RSD decisions, and by the fact that the new standards do not change UNHCR’s policy of withholding evidence from asylum-seekers.

Fourth, there are a number of procedures for protecting those deemed by the UNHCR as groups with special needs that reiterate previous standards, improve upon such standards, or require further clarification. The new Procedural Standards recognize the vulnerability and needs of the aforementioned groups. The major advancement that the new RSD Standards introduce is collating previous standards from other documents into a single comprehensive document that is easier to use both for RSD personnel and for other organizations working with refugees. Generally, the new RSD Standards recognize the needs of these groups to special assistance in accessing services and in the RSD process. The new RSD Standards also refer to counseling applicants with special needs.

Specific Comments (highlights)

We have serious concerns with regards to reported instances of some UNHCR offices’ inspection and confiscation of forged documents. First, it is unlikely that registration officers in UNHCR offices around the world are all fully trained in identifying forged documents. Nor are there necessarily fair procedures in place for determining that a document is forged.  Second, even if sufficient training is offered to registration officers and if due process provided, UNHCR offices are not government authorities having the right to confiscate forged passports carried by refugees and asylum-seekers.

Although the Procedural Standards stress the importance of confidentiality, more clarification on how to ensure it throughout the RSD process is necessary. For example, the practice of calling applicants by their names in open areas where many refugees and other people are present, hence revealing their identity, can constitute a breach of their confidentiality and safety. At registration, applicants should be given the choice either to be referred to by their names, aliases, or file numbers in public.

We commend UNHCR for proposing a generic letter explaining to asylum-seekers the reasons for the denial of their application. Since the checklist system provided in Annex 6-1 does not always explain the reasons for rejection clearly, we hope that it will not prevent the decision-makers from providing sufficient details that would permit applicants to fully understand the reasons for their rejection and be able to submit an appeal responding to the exact elements of the claim upon which they were denied.  In accordance with principles of procedural and administrative justice, we submit that this should be a minimum standard rather than a best practice guideline.

We regret that UNHCR has not revised its policy regarding the withholding of evidence from asylum-seekers. UNHCR’s policy is to not provide to asylum-seekers evidence generated by UNHCR itself, which includes a person’s own interview transcript, country of origin information, assessments by UNHCR staff, and in some cases medical reports.

This widespread use of withheld evidence contradicts basic principles of administrative justice and UNHCR’s own commitment to transparency in RSD. We are also concerned that this policy greatly increases the risk of factual errors in applicants’ files because applicants will be unable to correct or explain misunderstandings.

While the Procedural Standards clearly outline a complaints process, it should be recognized that some refugees, despite being assured to the contrary, fear that raising complaints about the RSD process will have an adverse effect on their claim.  Since UNHCR’s Standards permit withholding evidence, and there is no independent appeals process, there is no clearly reliable procedural safeguard to prevent such retribution.

The right to legal representation should be a minimum standard inspired by the principle of the right to a fair and impartial hearing. We are concerned by the fact that some UNHCR offices reportedly do not recognize the right of refugees to legal representation or permit legal representatives to accompany them to their interviews.  The new standards are encouraging because they state that asylum-seekers may bring legal representatives with them to their RSD interviews, which some UNHCR offices have resisted in the past.

While a significant step forward, we would urge UNHCR to add to these standards more specific instructions to its offices regarding the right to counsel. It should be specified that asylum-seekers have a right to counsel at all stages of the procedure, and can access legal assistance in preparing written applications to UNHCR as well as in oral interviews. Moreover, UNHCR should inform asylum-seekers at the registration stage of their right to counsel, and direct them to NGOs that can provide such services. Responsible legal assistance is an important means of providing asylum-seekers information about the process, which increases their ability to make informed decisions about whether to apply or file appeals and to submit all relevant facts and legal arguments.

The RSD Procedural Standards state that the eligibility officer deciding upon an appeal must be different from the officer deciding upon a first instance case.  However, minimum standards endorsed by UNHCR in the past require an independent body either within or outside of the UNHCR should be established to assess and decide upon appeals.  There are several ways in which this could be accomplished in UNHCR RSD procedures. For example, in certain willing hosting countries, it may be possible to establish an appeals review committee comprised of local judges and lawyers trained in RSD and a UNHCR officer not connected with first instance decision-making.  In the alternative, establishing a separate review body within the UNHCR system, organized along lines similar to review bodies in jurisdictions having their own domestic RSD systems, would effectively set up a kind of tribunal from within, supervised by headquarters in Geneva and thus not subjected to local pressures that could compromise its independence.

The current lack of independent appeal is a substantial gap in UNHCR RSD procedures which limits the chance that a factual or legal error by decision-makers will be corrected. In addition, lack of appeal reduces the overall accountability of the RSD system and reduces opportunities for feedback that would allow UNHCR RSD operations to continually improve and develop standards.

We recognize that establishing independent appeal involves challenges for UNHCR locally and globally, but insist that this is a minimum standard that should be met. We would look forward to working with UNHCR to develop concrete plans to develop an independent appeal.

Submitted by:

Africa Middle East Refugee Assistance (AMERA)


Asylum Access (USA)

Frontiers (Ruwad) Association (Lebanon)

Helsinki Citizens Assembly Refugee Legal Aid Program (Turkey)

Refugee Consortium of Kenya

Refugee Law Project (Uganda)

Wits Law Clinic, University of Witwatersrand (South Africa)

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