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In criticizing EU states on RSD fairness, UNHCR challenges its own policies

April 12, 2010

In a 134-page study of more than 1000 asylum claims, UNHCR has criticized EU governments for operating inconsistent and sometimes unfair refugee status determination systems. But some criticisms targeted at Europeans are also applicable to UNHCR’s own RSD operations around the world, especially on the need to provide asylum-seekers access to transcripts of their own interviews.

Directly and indirectly, the new report has three key implications for UNHCR’s RSD operations:

  1. Fair RSD is fundamental to refugee protection.
  2. UNHCR is calling for fairness in RSD while refusing to practice what it preaches.
  3. Despite gaps, UNHCR’s RSD procedures are more fair than those of some governments.

“It can be a matter of life or death for the asylum-seeker.”

Recognizing refugees as refugees is the foundation of refugee protection, and that depends on effective registration and RSD systems. Refugee status determination saves lives, prevents torture, reduces violence, and helps innocent people avoid all types of persecution.

Acknowledging the importance of RSD isn’t new for UNHCR. But in private, UNHCR officials are still sometimes heard questioning whether concerns about UNHCR RSD fairness and efforts to improve training and staffing really matter.

The answer, in the words of UNHCR’s Director for Europe:

“Asylum decision-making is one of the most difficult administrative or judicial tasks. … It involves an assessment of facts, subjective fear, credibility and future risk – and it can be a matter of life or death for the asylum-seeker.”

This is why NGOs have called on UNHCR to ensure that its own RSD procedures meet or exceed minimum standards of fairness. But it also is a reason why RSD needs to be a priority in UNHCR’s budget, in order to staff RSD operations with people capable of administering such a difficult and high stakes adjudication.

As the UNHCR report on Europe says: “The recruitment and retention of highly qualified and skilled interviewers is essential for an effective procedure.” In UNHCR, only around one in six staff members who work on RSD cases has a full time UN contract. Around half are part-timers, and some are classified as volunteers.

UNHCR tells Europe one thing, and its own offices something else

On at least three issues – disclosure of evidence, providing reasons for rejections, and independence of appeals – UNHCR’s concerns about some European asylum systems could apply to its own RSD operations.

In the past, UNHCR has asserted that its Procedural Standards for RSD under UNHCR’s Mandate – the collection of policies governing UNHCR’s own RSD procedures – should not be used as a model for states. Yet UNHCR’s report on European RSD twice cites the Procedural Standards as a model to follow. The gap between what UNHCR says and what UNHCR does on RSD fairness offers reluctant governments an unfortunate but easy rebuttal to UNHCR’s critique, while bolstering calls for UNHCR itself to reform.

NGOs have warned that fairness gaps in UNHCR lead to errant rejections just as in government-run RSD systems, and that UNHCR needs to lead by example on RSD.

Access to transcripts: The most yawning gap between what UNHCR says and what it does is on disclosure of evidence, especially giving asylum-seekers access to their own interview transcripts. UNHCR policy for its own offices calls for systematic withholding of interview transcripts from asylum-seekers, but for EU governments UNHCR advocated the opposite position:

All applicants should receive a copy of the report of the personal interview before a decision is taken by the determining authority. … UNHCR welcomes the [ ] requirement that applicants should have timely access to the report of the personal interview, and recommends that applicants should automatically receive a copy of the report of the personal interview before a decision is taken on the application. The practice observed in a number of Member States demonstrates that this is and can be done.

UNHCR criticized some EU states for giving applicants access to their interview transcripts only after a decision has been made on their cases. By contrast, UNHCR policy prohibits its field offices from giving such access at any stage, although the agency has indicated willingness to experiment with pilot projects that provide access to select legal aid organizations.

In its study of Europe, UNHCR called for asylum-seekers not just to have access to their transcripts, but to have the chance to correct and certify their accuracy:

UNHCR considers that the determining authority should seek the applicant’s approval of the contents of the interview transcript. … UNHCR notes with concern that it has observed in some Member States that applicants are required to approve the written report without being given the opportunity to check the content of the report. In others, approval of the content of the report is not sought, and applicants do not have an opportunity to check and rectify the contents of the written report at all. This would appear at variance with Article 8 of the Charter of Fundamental Rights of the European Union.

UNHCR offices do not seek applicants’ approval of their interview transcripts, and would be effectively blocked from doing do by the UNHCR ban on providing asylum-seekers copies of the transcripts at all.

Disclosure of third party evidence: A coalition of NGOs has asked UNHCR to clarify its rules governing disclosure of third party evidence to asylum-seekers. UNHCR’s report on Europe would seem to endorse the principles that NGOs have been calling on UNHCR itself to adopt. UNHCR wrote:

The designated authority must ensure that the applicant is, upon notification of the negative decision, entitled to access his/her case file containing relevant information. In cases where disclosure might seriously jeopardize national security, or the security of persons providing information, restrictions on access may be applied, on an exceptional, proportionate basis.

Giving written reasons for rejection: UNHCR has called on its own field offices to provide detailed written reasons to rejected asylum-seekers as a best practice, and has a series of pilot projects to do so. But UNHCR has not made giving reasons for rejection mandatory for its own offices, and some have refused.

In the report on EU asylum systems, UNHCR said, “When the outcome is negative, the applicant needs to know the reasons in fact and law so that s/he can take an informed decision as to whether to exercise any right of appeal.” UNHCR expressed concern that many decisions given to rejected applicants in Europe do not specify the evidence considered and showed no legal reasoning. UNHCR complained that many asylum decisions in Europe “consisted of very brief generic and standard legal paragraphs,” which is also true of the reasons given to applicants by some UNHCR field offices.

Independent appeals. UNHCR praised EU states for generally providing an appeal to an independent tribunal in most asylum cases. UNHCR RSD procedures only partially comply with this standard. Establishing an independent appeal system for UNHCR may be more challenging since there is no independent judiciary available in the UN that could handle such appeals. However, governments often establish administrative appeals systems with executive ministries that provide an independent appeal without the necessity of going to court.

UNHCR is sometimes more fair to asylum-seekers than governments

Despite substantial gaps, UNHCR RSD systems are significantly more likely to accept a refugee claim on average than government-run RSD system, as RSDWatch has reported in the past. A look at how some European RSD systems operate illustrates why so many government-run RSD systems are likely to reject bona fide refugees:

A few examples:

  • EU rules allow a government to reject certain asylum claims without interviewing the applicant, if they consider the application clearly unfounded. UNHCR bans this practice for its own offices, and criticized the European rule.
  • In one EU state, an asylum-seeker who shares no language with the adjudicator may be rejected without having access to an interpreter. UNHCR policy does not allow such rejections in UNHCR offices.
  • In one EU state, “The majority of interviews observed lasted five minutes each, and the longest by far was 35 minutes,” according to the study. Although complaints of such limited hearings have sometimes been made against UNHCR offices, such cursory work would not be considered acceptable by UNHCR. Consistent monitoring is difficult, but anecdotal information available to RSDWatch indicates that UNHCR’s RSD interviews are, in general, considerably more thorough and training of UNHCR interviewers has improved somewhat in recent years.
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