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When UNHCR demands more of itself: Accelerated procedures

May 31, 2010

A central critique of  UNHCR’s RSD policy has been that UNHCR holds itself to a lower standard than it expects of government refugee status determination systems. Often this is the case. But a recent statement by UNHCR to a court in Luxembourg is a reminder that, on certain issues, UNHCR sometimes asks more of its own offices than it demands of others.

The case before the court concerned whether a full right of appeal should be available to asylum seekers rejected through expedited “manifestly unfounded” procedures. UNHCR said there must be a right of full appeal by “an authority, court or tribunal, separate from and independent of the authority which made the initial decision.”

Accelerated rejection of manifestly unfounded claims has been legitimized by the UNHCR Executive Committee (EXCOM) as a means to efficiently turn away clearly fraudulent refugee claims in order to reduce the incentive for migrants to abuse the asylum system. But the standards are vague and procedures vary widely from country to country. (In the U.S. the manifestly unfounded mechanism is called a “credible fear” interview.)

UNHCR’s statement, published on 21 May, acknowledges that governments can use accelerated procedures to reject some asylum claims, so long as certain standards are met:

In UNHCR’s view, national procedures for the determination of refugee status and subsidiary protection status may include special procedural devices for dealing in an expeditious manner with applications which are obviously without foundation as not to merit a full examination at every level of the procedure. Such applications have been termed either “clearly abusive” or “manifestly unfounded” and are to be defined as those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 Convention or to any other criteria justifying the granting of asylum. … However, Member States should not dispense with key procedural safeguards or the quality of the examination procedure to meet time limits or numerical targets.

But UNHCR policy does not allow its own offices to follow this path, prohibiting accelerated rejection of manifestly unfounded claims in mandate status determination. UNHCR’s Procedural Standards (section 4.6.4) say this:

Claims that appear to be manifestly unfounded … should be processed under normal RSD procedures, and should not be referred to Accelerated RSD Processing procedures. As access to Accelerated RSD Procedures involves giving staffing and scheduling priority to certain categories of Applicants over other registered Applicants, it should be reserved for Applicants who have compelling protection needs.

UNHCR thus rules out for its own offices a popular mechanism used by governments to make their RSD systems more efficient and less vulnerable to abuse.

Leading by example?

UNHCR argued to the Luxembourg court that there should be a distinction between prioritizing certain cases, and thus deciding them earlier, and abbreviating procedures by compromising on due process protections to make the process faster at the expense of fairness. Acceleration is okay, UNHCR said, but abbreviation is not.

In essence, UNHCR’s RSD policy calls for accelerated protection, identifying categories of vulnerable applicants who should have their RSD cases decided (quite likely favorably) sooner than others, while governments tend to expedite in order to reject cases quicker. The preference for early protection over early rejection is a credit to UNHCR, and it is not new (see this RSDWatch article from 2005).

While UNHCR told the Luxembourg court that accelerated procedures should be used to prioritize more deserving cases, it did not point out to the court that its own RSD policies are an example showing how this can be done. This was a missed opportunity, but there would have been a pitfall. While UNHCR has a policy exceeding minimum standards on accelerated procedures, it has not yet established an internal appeal system in mandate RSD that would meet the standards that it promoted to the court. This would have been a major problem, since the subject of the Luxemourg case was primarily about the right to appeal.

The Luxembourg case thus shows both an opportunity and a risk. UNHCR has the chance to bolster its arguments to governments by leading by example. But these opportunities are likely to be missed if UNHCR continues to insist on dual standards, one set for governments and another for itself.

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