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When Governments Force UNHCR to Compromise RSD

March 2, 2013

My post about UNHCR-Bangkok abridging the right to counsel touched a nerve with some because I was dismissive of UNHCR’s explanation that the Thai Government won’t allow them to involve legal representatives in RSD interviews. My skepticism has a lot to do with the specific record of the UNHCR office in Thailand, and the risk that local staff can use this kind of excuse to avoid reforms for which they have little enthusiasm to begin with. But it does raise an important question.

What should UNHCR do when a host government forces a UNHCR office to consider deciding refugee status cases without the normal procedural safeguards? This will often happen when an asylum-seeker is detained and awaiting deportation, for example.

In situations like this, doing RSD, even compromised RSD, might allow UNHCR to get some refugees to a more protected situation, whether that means out of detention or even resettled to another country. It would be absurd to ask UNHCR not to do that. But these benefits extend only to those asylum-seekers who are recognized as refugees.

We also need to worry about those who are rejected by UNHCR through these compromised procedures. In these settings deportation is often imminent, and with a RSD rejection the full moral authority of the UN Refugee Agency will be invested in legitimizing the expulsion.

The problem in these situations now is not that UNHCR goes forward with assessing the cases. They should. The problem is that under pressure UNHCR will often treat procedural safeguards as a luxury to be easily discarded, rather than as a risk to human safety. Yet every time UNHCR agrees to conduct an interview in detention, under unusual time pressure, without quality interpretation, without legal advice, or without a full appeal, it is increasing the risk that someone in genuine danger will be deported with UN blessing. This is wrong, legally, practically and morally.

The solution may be in being more explicit about what is going on in these cases. Compromised RSD cannot substitute for fair RSD anymore than a tent can substitute for an actual house. But it can still be useful in exigent circumstances.

When the only option is to compromise on procedural safeguards, we should call it something different, perhaps emergency screening, or “screening pending RSD.” UNHCR must be clear that this is not the real deal. The purpose of the screening is to quickly identify clear refugees, and to get protection to those who can be protected.

But it cannot be the purpose of such streamlined procedures to eliminate anyone. If UNHCR has doubts about a case in an abridged procedure, it should not deny the refugee claim. Instead, UNHCR should designate these cases as needing further investigation, and the people should still be classified by the UN as asylum-seekers. Which means that if the government goes ahead with deportation, everyone should understand that it is violating international law.

  1. Iqbal Awan permalink
    March 23, 2013 11:10 am

    Iqbal Awan
    The right to counsel. UNHCR RLD 4 describes that RSD interviews r conducted exclusively by UNHCR personnel in the field, legal or other counsel would not normally be allowed to attend the interview. Nevertheless, UNHCR often receives written or other communications from a representative of the applicant or some other body such as a refugee support group.
    Where national legislation provides for the participation of legal or other counsel to assist an applicant in presenting his or her claim, it becomes essential to allow such counsel to participate in the interview, otherwise situation happens as reported in the post by some states, particularly not party to Refugee Convention. However UNHCR,s 2003 Standard Procedural Guidelines allow legal representatives to make only brief submission at the end of interview etc. Is this complete right to counsel? The question arises – Does this provide a guaranteed right to counsel, the answer would be no, rather the matter is still prerogative at the hands of UNHCR and states. UNHCR permission to right to counsel should explain limit to what extent it allows legal counsel to go, otherwise confusion would continue to prevail. Reading from the post, that Bangkok government does not allow third entity and is only fine with UNHCR, without evidence, does not hold enough argument to be entertained. If state concerned does not respond to UNHCR,s requests, it can be achieved through effective demarche and advocacy by UNHCR with government and also through public information campaigns. Result-oriented efforts seemed missing in this case with the result Asylum seekers at the end sometimes suffer precious lives due to lack of competence and professionalism, and are thus subjected to agreed refoulement. UNHCR protection mandate should have been seen without visible weaknesses. Customary international law reiterates that all states must adhered to principle of non-refoulement, even they are not parties to 1951 Refugee Convention. UNHCR is mandated to seek state cooperation in performance of its functions.

  2. March 24, 2013 3:30 pm

    RLD 4 is now badly outdated and superceded by the Procedural Standards. But regardless the right to counsel is rooted in general human rights law, not just refugee law. There is a general principle of law at issue here.

    • Iqbal Awan permalink
      March 25, 2013 7:34 am

      Yes, one can understand the scope, perhaps UNHCR does not see its Eligibility Officers sitting as a court to consider same right to counsel even as a general principle of law or soft law which is not legally binding as soft law instruments reflect political instead of legal commitments. Even Procedural Standards put conditionalities for qualifications to act as legal rep for claimants, like knowledge of Reflaw, RSD procedures, specific experience. If EO is not satisfied for requisite experience or qualification, he, she can deny participation. The problem is of implementation of gen prniciple of law but how, it all depends on discretion ?. However, your concern on issue is well justified.

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