Background Information on the Situation in Belarus in the Context of the "Safe Third Country" Concept
|Publisher||UN High Commissioner for Refugees (UNHCR)|
|Publication Date||1 March 1997|
|Cite as||UN High Commissioner for Refugees (UNHCR), Background Information on the Situation in Belarus in the Context of the "Safe Third Country" Concept , 1 March 1997, available at: http://www.refworld.org/docid/3ae6b33210.html [accessed 28 April 2016]|
1. The Office of the High Commissioner for Refugees (UNHCR) welcomes the adoption between States of agreements aimed at identifying the country responsible for examining an asylum request, as they constitute the most satisfactory way to address the problem of "refugees in orbit." These agreements are normally based on the notion of safe, or first, country of asylum, providing for the return of refugees and asylum seekers to countries where they have had or could have sought asylum and where their safety would not be jeopardized, either within that country or by an act of refoulement.
2. UNHCR further considers that, in the absence of any formal agreement to this effect, the return of a refugee or asylum seeker to a country where he/she found or could have sought protection should not take place unless certain conditions relating to the person's safety and treatment in that country are met. The Office has identified some factors that should be considered when determining whether the return of a refugee or an asylum seeker to a particular country should take place. These factors, which include both formal aspects and the practice of the State concerned, are: ratification of and, more importantly, compliance with international human rights and refugee instruments; observance of basic recognized human rights standards for the treatment of asylum seekers and refugees, in particular of the principle of non-refoulement; readiness to readmit returned asylum seekers and refugees, consider their claims in a fair manner and provide effective and adequate protection.
3. Belarus has so far not acceded to any international refugee instrument.
4. Belarus is a State Party to the International Convention on the Elimination of All Forms of Racial Discrimination (April 8, 1969), the International Covenant on Civil and Political Rights (November 12, 1973), the International Covenant on Economic, Social and Cultural Rights (November 12, 1973), the Convention Against All Forms of Discrimination Against Women (February 4, 1981), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (March 13, 1987), and the Convention on the Rights of the Child (October 1, 1990).
5. Belarus has not signed any readmission agreements. An agreement is, however, currently being negotiated with Ukraine.
6. Presidential Decree No. 229, "On the Approval of Regulations of the Procedure of Granting Asylum to Foreign Citizens and Stateless Persons," which entered into force on November 24, 1994, provides for an asylum procedure. A number of asylum applicants were refused asylum under this Decree without explanation. No positive decision has yet been taken under this Decree.
7. Belarus adopted a Law on Refugees, which entered into force on July 1, 1995. The law was, however, not implemented until February 1997, due to financial and political constraints. The State Migration Service (since February 1997 called Committee on Migration) of the Ministry of Labor is responsible for the implementation of the Law.
8. Some provisions of the Law give rise to concern as to their compatibility with international refugee law. For instance, Article 7 foresees the denial of refugee status if the alien concerned "before his entry to the Republic of Belarus could leave for a third country where he has close relatives" (without due consideration as to whether the alien could actually be admitted legally into the third country). The Law is also unclear about the appeal procedure. The Law on Refugees and the Regulations governing the procedure of registering refugee applications, adopted by the Cabinet of Ministers on March 14, 1995, foresee a pre-screening procedure for asylum applicants. This procedure could not only lead to denial of access to the determination procedure, but also to the non-observance of the principle of non-refoulement. Furthermore, this provision allows for the examination of a claim for refugee status in the registration phase, with no appropriate procedural safeguards. UNHCR is particularly concerned that, according to Art.15 of the Law on Refugees, the principle of non-refoulement applies to recognized refugees only. The principle of non-refoulement is not reflected elsewhere in Belarusian legislation.
9. The refugee definition contained in Art. 1 of the Law on Refugees may not protect refugees sur place. It remains to be seen whether in the implementation of the law this inadequacy can be redressed.
10. According to Art. 8 of the Law on Refugees, registered asylum seekers have the right to reside temporarily in Belarus pending determination of their status. They are also granted medical care, financial assistance, and temporary accommodation in refugee centers.
11. Under Art. 11 of the Law on Refugees, aliens granted refugee status have the right to reside on the territory of Belarus; to receive medical care; to be granted financial assistance; to obtain information about their country of origin with the assistance of administrative bodies; and to acquire Belarusian citizenship. Except for the rights listed above, Art. 11 guarantees that refugees are entitled to the same rights and duties as aliens permanently residing in Belarus.
12. Due to financial and political constraints, the implementation of the Law on Refugees has not yet become a reality. However, on 5 February 1997, the Committee on Migration accepted, on an exceptional basis, the first applications for refugee status. However, the authorities have clearly indicated that for the foreseeable future, only a small number of applications will be considered on an exceptional basis, and only among Afghan and Ethiopian asylum seekers residing in Minsk, who have lived in Belarus for a long period of time, and whose special situation requires that their status be determined urgently. Due to financial constraints, persons belonging to this category must renounce their right to receive financial assistance following their application for refugee status.
13. As at the end of February 1997, 22 asylum seekers were able to register applications (UNHCR estimates that approximately 2000 non-CIS persons are currently willing to apply for refugee status in Belarus). Decisions on their status have not yet been taken.
14. Outside the Minsk Region, the implementation of the Law on Refugees has not yet started. At present there are no indications that it may start in the near future. Furthermore, while the Law on Refugees does not differentiate between CIS and non-CIS citizens, Belarusian officials have indicated that the Law will not be applied to citizens of CIS countries.
15. Asylum seekers without access to status determination procedures are treated as illegal migrants. They are subjected to expensive fines, detention and harassment by the police. They have no right to work, no access to housing and health care. UNHCR is aware of several instances where asylum seekers, including families with children, were evicted from their apartments by the police, and found themselves homeless due to lack of legal status. In an attempt to provide the very basic necessities to maintain their livelihood until they are able to have their refugee status determined, UNHCR provides monthly financial assistance to the most vulnerable families.
16. UNHCR has no presence at international airports, which makes monitoring extremely difficult. In view of the fact that asylum seekers have no possibility to apply for refugee status at airports, refoulement cannot be excluded. In practice, however, few asylum seekers enter Belarus by air. Given that Belarus has open borders with the Russian Federation, asylum seekers primarily enter Belarus over land.
17. While Belarus does not have the capacity to carry out large-scale returns, it nonetheless uses a variety of measures routinely to expel migrants, including asylum seekers and refugees, from its territory, including to countries where they could face persecution/refoulement and/or would have no access to a refugee status determination procedure. Belarusian border troops expel illegal migrants on a regular basis, including asylum seekers and refugees, to the territory of neighboring countries. Belarusian authorities confirm that foreign embassies in Minsk are contacted when they detain nationals of those countries, including asylum-seekers and refugees, who do not possess proper Belarusian visas and/or residence permits. In such cases, some embassies are known to take custody of their citizens, and to return them to their countries of origin. It should be noted that UNHCR is not kept informed of the presence of asylum seekers at borders, nor are asylum seekers given the possibility to request asylum under the above-mentioned circumstances.
18. In this context, UNHCR continues to promote adherence by the Belarusian authorities to internationally accepted norms related to refugee protection, in particular the 1951 Convention/1967 Protocol, and to strengthen the capacity of the authorities to deal with refugee issues. UNHCR is engaged in technical cooperation activities with the Committee on Migration, border troops and the Ministry of Interior, and provides legal expertise and support. In this regard, UNHCR appreciates the efforts made by the Belarusian Government in trying to develop institutions and procedures aimed at protecting refugees in Belarus. UNHCR is fully committed to continue to support this capacity-building process.
19. With respect to the return of asylum seekers and refugees to Belarus, on the basis of their transit and/or stay here, UNHCR recommends, in view of the above considerations, not to apply the safe third country concept to asylum seekers and refugees who have stayed in or transited through Belarus. In case return to Belarus is contemplated, UNHCR strongly recommends bilateral readmission negotiations with the Belarusian Government to obtain formal assurances
· that the person will be readmitted,
· that refugee status determination will be carried out in a fair manner,
· and that the individual concerned will be provided with effective legal protection.
In the absence of such assurances from the competent Belarusian authorities, the Office advises, at present, against the return of asylum seekers and refugees to Belarus on the basis of their transit or stay there.
UNHCR, Geneva, March 1997