No Margin for Error
Monitoring the fairness of refugee status determination procedures at selected UNHCR field offices
No Margin for Error is the only public, independent multi-country survey of UNHCR’s RSD procedures, and thus the best available published barometer of progress in the campaign for more fairness in UNHCR’s RSD procedures.
Several UNHCR field offices improved the fairness of their procedures for deciding refugee cases in 2007, but progress toward RSD reform appeared inconsistent. UNHCR’s own minimum standards of fairness were still not fully implemented worldwide nearly four years after UNHCR headquarters first issued them. UNHCR policy continued to prohibit providing refugee applicants copies of their own interview transcripts and other evidence considered in their cases.
More than 90,000 people who say they are in danger of persecution depend on the UN refugee agency to obtain protection as refugees through a process known as refugee status determination (RSD). Nearly every independent assessment of UNHCR’s RSD procedures has raised concerns about them, chiefly about lack of basic fairness safeguards. UNHCR typically withholds most evidence from scrutiny by the applicants whose life is at stake, and does not provide a meaningfully independent appeal. Some UNHCR offices have resisted asylum-seekers’ rights to legal representation. Specific reasons for rejection normally have not been given.
UNHCR officials have repeatedly stated their intention to improve UNHCR’s RSD practices. In late 2006, UNHCR stated that it was engaged in a process of “ambitious and progressive” reform of its RSD operations, though it has said it favors “graded” implementation of these changes. The centerpiece of these reforms is UNHCR’s Procedural Standards for RSD under UNHCR’s Mandate, which was issued to UNHCR offices internally in November 2003 and published in September 2005.
Although this report includes information about only a small number of countries, the UNHCR offices covered have some of the largest RSD operations in the world, and together represent more than half of the individual refugee applications handled by UNHCR worldwide.
In 2006, RSDWatch published its first No Margin for Error report, measuring the actual procedures used at six of the largest UNHCR RSD operations in the world against the benchmarks set by UNHCR’s own Procedural Standards. This is the second No Margin for Error report, covering the procedures used in eight UNHCR RSD offices in 2007.
Like the 2006 report, this report measures the practices of selected UNHCR offices against the benchmarks of UNHCR’s Procedural Standards. However, this year’s report also compares UNHCR practices against established norms of due process. This change stems from the fact that some UNHCR offices have begun exceeding the fairness required by UNHCR’s own policy in the area of sharing evidence with refugee claimants.
RSDWatch found progress toward increased fairness in several UNHCR field offices in 2007.In 2007, three of the eight offices covered had fully complied with the minimum standards, while two others failed to achieve full compliance only because of gaps in the content of information provided to asylum-seekers at first registration. In other respects, five of eight offices surveyed complied with the minimum standards.
This means that UNHCR’s own minimum standards were still not fully implemented worldwide, nearly four years after UNHCR headquarters first issued them. Yet improvement from 2006 was nevertheless significant. Of the six offices covered by No Margin for Error in 2006, only one had fully complied with all of the mandatory sections. None had fully implemented the best practice recommendation that rejected asylum-seekers should be given specific reasons for rejection in writing. In 2007, UNHCR’s offices in Thailand and Kenya provided individualized, written reasons for rejection as part of a headquarters-sponsored project. RSDWatch was not able to assess the level of detail provided in these individualized rejection letters, however.
Several UNHCR offices reportedly improved their provision of information to asylum-seekers. UNHCR’s office in Kenya allowed the right to counsel to asylum-seekers under a policy reform that began in 2006.
Serious gaps remained in the fairness of UNHCR’s RSD procedures. Some UNHCR offices continued to resist the right to counsel in 2007. Several UNHCR offices continued to refuse to put reasons for rejection in writing, opting instead to inform rejected asylum-seekers only orally of the justifications for UNHCR’s decision. UNHCR’s offices in Cambodia, Hong Kong and Israelimposed limits of legal aid for asylum-seekers in RSD beyond what is allowed by UNHCR’sProcedural Standards, though they made some moves to relax their restrictions after being criticized by refugee advocates. In both Cambodia and Israel, UNHCR justified gaps by blaming host governments, although governments do not have the authority to tell UNHCR how to assess refugee claims in its own offices.
There were worrying signs of potential declines in fairness in some UNHCR offices. In particular, UNHCR’s Hong Kong office used a new program to reject some nationalities of asylum-seekers in an accelerated manner, in violation of the Procedural Standards. UNHCR’s Israel office has used such a program in cooperation with the Israeli government for several years.
UNHCR maintained its global policy restricting asylum-seekers’ access to evidence considered in their cases. UNHCR prohibits field offices from giving applicants copies of their own interview transcripts, and also restricts disclosure of other types of evidence obtained and considered by UNHCR.
UNHCR’s offices in Lebanon and Turkey experimented in 2007 with means of giving legal advocates more access to evidence or assessments in refugees’ UNHCR case files, though UNHCR indicated this access may be limited in the future.