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Asylum Access calls on UNHCR to stop withholding evidence from asylum-seekers, proposes changes in 2003 Procedural Standards

June 20, 2008

The US-based refugee rights group Asylum Access has called on the United Nations to stop withholding key pieces of evidence from asylum-seekers in its refugee status determination procedures. The group criticized the UN refugee agency (UNHCR) for increasing the risk of refugees being refused protection by mistake because they are unable to see or correct errors and misunderstandings in their own case files.

In a report released on World Refugee Day, Asylum Access said that UNHCR appeared to accept that general rules of fairness require disclosing most evidence to asylum-seekers. But the agency’s actual policies were far more restrictive.

UNHCR has advised governments that refugee applicants and decision-makers should usually be in equal positions with regard to access to evidence, and UNHCR’s Department of International Protection Services Director George Okoth-Obbo told NGOs in 2006 that UNHCR offices should withhold evidence only in “exceptional” cases.  Yet UNHCR’s policy in use in 80 countries takes the reverse approach, preventing most evidence disclosure.

“Rather than state a general rule that applicants and decision-makers should be on an equal footing, and that non-disclosure should be exceptional, [UNHCR’s actual policy] essentially makes disclosure itself the exception,” the report concluded.

UNHCR’s withholding of evidence and internal case assessments has been criticized by courts in Israel and Hong Kong, and by the European Court of Human Rights in the 2006 case of D. v. Turkey.

Asylum Access, which operates refugee legal aid programs in Ecuador and Thailand and is the parent organization of RSDWatch, proposed a series of revisions to UNHCR’s 2003 Procedural Standards for Refugee Status Determination under UNHCR’s Mandate. Those standards limit disclosure of “documents generated by UNHCR or a source other than the individual concerned.” Most notably, UNHCR policy prohibits field offices from providing asylum-seekers copies of their own interview transcripts.

Evidence withholding has been point of longstanding disagreement between refugee advocates and UNHCR. On other issues central to RSD reform UNHCR officials have signaled willingness to change although there are questions about the pace of change.

UNHCR’s current policy stems from a 2001 internal memorandum on confidentiality which justified secrecy on vague security grounds, which UNHCR chose not to change when it developed theProcedural Standards for RSD. When the Standards were published in 2005, UNHCR officials said publicly that they were “a living document” and could be changed.

Asylum Access did not dispute that some evidence should be withheld in rare cases with genuine security threats. But UNHCR officials sometimes justify broader evidence withholding by fear that in chaotic environments refugees could be put in danger by their testimonies leaking out into the community. Asylum Access called this “paternalistic,” and noted that refugee testimonies circulate already because even without UNHCR disclosure asylum-seekers prepare written statements about their cases.

“If there is a security risk to refugees in holding these documents, the refugees can choose not to request them,” the report argued. “But the choice about whether to receive the evidence must be left to the individual concerned.”

Asylum Access also argued that UNHCR’s limited resources make evidence disclosure more essential because strains on UNHCR staff increase the chances they will make mistakes in assessing applications. “Applicants themselves have more incentive and more knowledge by which to catch mistakes in their files than any other person involved in the process,” the report said.

READ THE FULL REPORT

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