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Access to evidence

UNHCR’s Procedural Standards for RSD under UNHCR’s Mandate

Quick reference guide

The following is a RSDWatch summary and analysis of UNHCR’s Procedural Standards for Refugee Status Determination under UNHCR’s Mandate, published by UNHCR in September 2005.  All references (i.e. section x.x) are to these Standards, unless otherwise noted.

Access to evidence

See Asylum Access’ 2008 critique of UNHCR’s evidence policy

Access to evidence is one of the main areas in which UNHCR holds itself to a lower standard of fairness than governments, and where UNHCR’s policy conflicts with standards of administrative and human rights law. Whereas UNHCR urges governments to share all evidence with asylum-seekers except in exceptional circumstances, UNHCR itself makes wide use of secret evidence. Under UNHCR’s current rule, asylum-seekers applying for refugee status determination will not be allowed to review much of the evidence upon which UNHCR will make decisions about their lives.

UNHCR’s RSD standards require field offices to provide asylum-seekers “originals or copies of all documents they provided to UNHCR, or of which they are the source” (section 2-2). But UNHCR generally withholds “documents generated by UNHCR or a source other than the individual concerned” (section 2.1.2).

In many refugee cases, the most important piece of evidence is the transcript of the asylum-seeker’s own testimony. UNHCR policy prohibits field offices from providing asylum-seekers copies of their own interview transcripts:

As a general rule, UNHCR interview transcripts and notes should not be disclosed, however the interview transcript taken directly from Applicant’s own statements may be read back to the Applicant during the interview (section 2.1.2).

Copies of other “documents generated by UNHCR” may be provided to asylum-seekers if:

  • Disclosure is required for a legitimate purpose;
  • Disclosure would not jeopardize the security of the individual concerned, his/her family members, or other persons with whom the individual is associated;
  • Disclosure would not compromise the security of UNHCR staff;
  • Disclosure would be consistent with UNHCR’s international protection mandate, including its humanitarian and non-political character, and would not otherwise undermine the effective performance by UNHCR of its duties. (section 2.1.2)

These rules were first issued internally by UNHCR in 2001. They have been used by UNHCR offices to refuse to provide asylum-seekers copies of medical reports about their own bodies and mental health, and to prevent applicants from cross-examining or rebutting documentary or other witness statements that are used against them.

These restrictive rules for UNHCR’s RSD operations contradict human rights standards and UNHCR’s own advice to governments. They also appear to contradict UNHCR’s statement in its RSD Standards that “fair, transparent and consistent” RSD procedures are “vital elements” for “establishing confidence in the integrity of the procedures” and maintaining office security (section 2.4.1).

In 1986, in Feldbrugge v. Netherlands, the European Court of Human Rights held that people have the right to know the case to be met in an administrative decision-making process, especially evidence that might be used against them. The European court ruled specifically that a claimant in administrative hearings has the right to see medical reports considered in his or her case.

International human rights law permits exceptions from fair procedures only “in time of public emergency which threatens the life of the nation.” Such protections are particularly strong when the stakes are high, as they clearly are in refugee status determination.

In 2003, UNHCR submitted comments to the Council of Europe. In this document, UNHCR expressed its opposition in most cases to withholding evidence (i.e. secret evidence) from asylum-seekers:

While [a proposed European rule] rightly stipulates that Member States shall ensure that precise country of origin information is made available to decision-makers, it does not rule out that sources on which such information is based, may be withheld from the scrutiny of the asylum-seeker or his/her counsel. Such an approach would leave the asylum-seeker and decision-maker in unequal positions. UNHCR recommends that information and its sources may be withheld only in clearly defined cases in which disclosure of such sources would jeopardise national security or the security of organisations or persons providing the information in question.

On 29 March 2005 UNHCR re-iterated these principles in new comments on the Council of Europe’s proposed minimum standards on refugee status determination (RSD). The Council’s proposed standard (article 14) would allow an asylum-seeker’s lawyer to “enjoy access to such information in the applicant’s file as is liable to be examined by the authorities.” But the Council  would allow states to make an exception where disclosure

would jeopardize national security, the security of the organizations or persons providing the information, or the security of the person(s) to whom the information relates or where the investigative interests … or the international relations of the Member States would be compromised.

In its most recent comments, UNHCR found these exceptions too broad:

UNHCR is concerned that this would leave asylum-seekers and decision-makers in unequal positions and limit the applicants’ possibility to challenge factual errors. UNHCR therefore recommends that information and its sources may be withheld only under clearly defined conditions, where disclosure of sources would seriously jeopardize national security or the security of the organizations or persons providing information (Comments to the Council of Europe p. 19).

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