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Appeals in RSD: Slow, and often successful

January 2, 2013

Asylum-seeekers who file appeals against first instance rejections in UNHCR RSD are often successful, but they have to wait a very long time.

According to data reported by 12 UNHCR offices for 2011, half of all appeals decided by UNHCR offices resulted in the asylum-seeker winning (i.e. refugee recognition). There was considerable variation among the offices, from a 76 percent appeal success rate in Turkey to 14 percent in Syria.

Appeal Success Rate
2011
State Appeals Decided REC RATE
Algeria 51 0%
Hong Kong 179 1%
Egypt 81 54%
India 752 20%
Kenya 3,778 52%
Lebanon 104 7%
Malaysia 656 54%
Morocco 146 3%
Nepal
Syria 167 14%
Thailand 48 27%
Turkey 1,485 76%
TOTAL 7,447 50%

That’s good news for refugees, but they have to wait a long time for it. UNHCR offices decided less than half as many appeals as were filed in 2011, leaving 13,646 appeal cases pending just in these 12 offices. And it should be noted that UNHCR reported appeals data for only 7 of its 15 largest operations, so its’s reasonable to expect that the global backlog of appeals is quite a bit larger. This reflects considerable hardship for refugees who have to wait, and shows the resource strain that UNHCR offices face processing their RSD caseloads.

UNHCR Appeal Backlog 2011
State Appeals filed Appeals Decided Pending End of 2011
Algeria 59 51 13
Hong Kong 234 179 149
Egypt 323 81 690
India 755 752 138
Kenya 12,811 3,778 10,276
Lebanon 172 104 228
Malaysia 1,228 656 945
Morocco 251 146 151
Nepal 2 2
Syria 324 167 201
Thailand 165 48 292
Turkey 1,737 1,485 561
TOTAL 18,002 7,447 13,646

The data appears in raw from in UNHCR’s 2011 Global Trends report. Historically UNHCR has not consistently reported on appeal cases as separate from first instance applications. Over the last few years UNHCR’s reports have gradually become more specific, allowing us to start to develop a clearer picture of how the UNHCR appeal system is working in practice, beyond the anecdotal experience of legal aid personnel in the field.

In UNHCR RSD, a rejected asylum-seeker is entitled to file one appeal within 30 days of the first decision. Although UNHCR policy calls for appeals to be considered by a different officer, there is no structurally independent appeals system in most UNHCR RSD operations.

After losing an appeal, a rejected applicant’s file is normally considered closed. But UNHCR will consider requests to re-open file in specific circumstances. But while a re-opening is not an appeal of right in a formal sense, UNHCR policy permits re-opening if there are “serious reason to believe that the claim was improperly decided and/or that grounds for eligibility for refugee status were not adequately examined or addressed.” This is broad enough to make re-opening requests a second level of appeal, at least in some cases. For common law lawyers, the standard in a UNHCR petition to re-open might be analogous to a judicial appeal in administrative law, where the judiciary treats the administrative decision with deference but will still reverse it if it appears to be clearly wrong.

UNHCR reported data on petitions to re-open from seven offices, with a success rate of 38 percent. But of 639 re-opening petitions filed during the year, UNHCR reached a decision on just 384.

Many aspects of the appeals data appear spotty and raise as many questions as it answers. For instance, UNHCR offices only issued 7,351 first instance rejections in 2011, and yet they received 18,002 appeals. The UNHCR office in Kenya only rejected 15 asylum-seekers at first instance in 2011, but received 12,811 appeals. In Turkey there were 1,737 appeals, but only 318 rejections, and in India 755 appeals against 502 rejections.

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