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UNHCR Reforms (with some compromise): Access to Evidence, Right to Counsel, Interpreters

June 8, 2016

In February, UNHCR published revisions to its Procedural Standards on Mandate Status Determination. Among a number of positive changes, perhaps the most important reform concerns access to evidence in UNHCR. This had been the subject on which UNHCR most stubbornly refused to embrace fundamental due process, essentially insisting on hiding key evidence from asylum-seekers in its own offices, even as it told governments to be more open.

The new policy is unquestionably progress, breaking a longstanding stalemate, and suggesting – I hope – the potential for more reform down the road. And yet, UNHCR’s policy remains a violation of refugees’ due process rights. If UNHCR were subject to independent judicial review, I would be eager to challenge the new policy, even as I applaud it as a step in the right direction.

To understand this mixed review, let me provide a little background.

Under the old evidence withholding policy, UNHCR offices would generally refuse to let asylum-seekers see the transcript of their own RSD interviews. This meant that applicants could not easily detect and correct factual misunderstandings about their cases. And it turned the process of preparing an appeal of a negative RSD decision into an exercise in guesswork.

Access to interview transcripts had been the main problem, simply because the applicant’s own testimony is typically the primary evidence in RSD. But the evidence withholding problem went farther. Sometimes, UNHCR would solicit external opinions on an applicant’s case, or even send an asylum-seeker for a medical exam to evaluate physical evidence of torture. But then UNHCR would refuse to let the asylum-seekers see the reports that had been written about them.

UNHCR internal policies contrasted starkly with the advice UNHCR gave to governments, as I wrote back in 2010: “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.”

This issue has been debated for a long time. Personally, I began criticizing this policy around 15 years ago. Privately, UNHCR officials often explained their reluctance to give asylum-seekers access to the evidence in their own cases in terms of the chaotic contexts in which UNHCR offices often conduct RSD. The concern that I heard most often was that in insecure environments, documents given to asylum-seekers might fall into the wrong hands, perhaps endangering the asylum-seekers themselves.

I never thought this made much sense. Refugees write down their personal stories all the time – to submit to UNHCR, to apply for resettlement. There are already lots of documents with intimate details of refugee stories in the hands of refugees. Moreover, if asylum-seekers don’t want to keep a copy of the evidence because it raises a security problem for them, they don’t have to. It’s an option. It seemed to me that this particular explanation was paternalistic, and reflected some of the more elitist, self-protective instincts of humanitarian agencies. It seemed most plausible to me that some UNHCR staff resisted transparency in RSD for the same reason government officials usually resist transparency. It is not in their self-interest to make it easier for outsiders to scrutinize their work.

To be clear, the resistance to evidence disclosure was not universal in UNHCR. In particular, UNHCR’s office in Lebanon started an experiment in a more open approach nearly a decade ago.

This is the background to the new policy. The new policy is as follows:

UNHCR must share, to the extent possible, all medical, psychiatric and other expert reports as well as any other documents submitted by or on behalf of the Applicant. Legal representatives may, on request, access on the UNHCR Office premises and under supervision, or through other secure and appropriate means as established by UNHCR Offices, the transcript or audio recording of the Interview with the Applicant.

This is clearly a compromise position. It allows evidence to be reviewed only on premises, substantially increasing the difficulty of looking at them. And it only allows legal representatives to look at the documents. The applicants themselves are not allowed to see the evidence. These are restrictions I would normally expect in an unusual national security context, not in routine RSD cases. The limitations reflect a remarkable distrust of refugees on the part of the High Commissioner for Refugees. The applicant, not the lawyer, holds due process rights. But the new policy privileged legal representatives.

Since most RSD applicants do not have legal representatives, they cannot take advantage of the new policies. There is a danger that legal aid organizations – the main voice for RSD reforms – will effectively be bought off by this reform, because they will be able to access documents for their clients even though most asylum-seekers cannot.

On the whole, I probably shouldn’t be so pessimistic. UNHCR is giving access to evidence to those people most able to pointedly argue that UNHCR erred in particular decisions. That is a breakthrough. UNHCR is finally, grudgingly, acknowledging that disclosure of evidence should take place. UNHCR is a big organization that evolves slowly. This step may lead to more reform later. As UNHCR staff get used to the idea that evidence can be disclosed to lawyers, maybe the general ideal of evidence disclosure will gradually become less shocking.

Roundup of Other Reforms

Interpreters are Not Expert Witnesses

Over the years, UNHCR RSD officers have occasionally turned to their interpreters – often refugees themselves – to cast judgment on the veracity of RSD applicants. This is now a violation of policy:

Eligibility Officers should not call upon Interpreters to assess the credibility of an Applicant’s account, or to investigate or comment on the reliability of evidence provided by an Applicant, except as it relates to the use of language and dialect by the Applicant.

It’s Official: Legal Aid is a Good Thing

Early in my career, I often faced UNHCR officials (some quite high ranking) who resisted the idea of asylum-seekers having lawyers at UNHCR officers. Some country representatives devoted considerable creativity to finding reasons why they could not possibly allow legal representation in their RSD procedures. I’m not sure every country representative will be convinced, but this is now the UNHCR official policy:

Legal representation is an important factor in establishing fair and transparent mandate UNHCR RSD procedures and strengthening the quality of decision-making. … UNHCR Offices should encourage the participation of responsible, high quality legal representation in mandate UNHCR procedures. Wherever possible and appropriate, UNHCR Offices should develop partnerships with established legal aid providers that offer responsible, high quality legal representation in mandate RSD procedures, and which have appropriate systems of training and ensuring accountability for their staff.

And this:

Applicants may be accompanied by their legal representative during any RSD or Appeal Interview, as well as any Interview in which UNHCR gathers information that is relevant to the determination of the Applicant’s refugee status or the cancellation, revocation or cessation of his/her refugee status.

On the whole, UNHCR RSD reform continues, slowly, but in the right direction.

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