Certain Comments by the United Nations High Commissioner for Refugees on the Asylum and Immigration Bill 1995

Since the end of 1994 the Government has expressed concerns at the rise in asylum applications in the United Kingdom. Home Office statistics indicate that while the number of applications dropped by almost half from 1991 to 1992 they rose in 1994 and again in 1995. It has been assumed that the increase in asylum applications in the UK is due to the more restrictive measures introduced in other European countries thereby exposing the UK as an attractive option to asylum seekers who are perceived as abusing the system.

The Home Secretary has indicated the Government's intention to address the perceived abuses of the UK asylum procedures by introducing restrictions along the lines employed in other European countries. The proposed measures are found in the Asylum and Immigration Bill 1995.

In the main, the proposed measures expand the category of cases for accelerated consideration. Specifically, changes are made to introduce for the first time a notion of "safe country of origin" and to significantly restrict the current appeal rights for "safe third country" cases that are contained in the 1993 Act by abolishing the suspensive effect of such appeals.

UNHCR recognises and supports the efforts of governments to streamline their procedures and to curtail abuse. In so doing, the primary principle of non-refoulement can not be compromised and minimum standards of procedural fairness and effectiveness must be maintained in refugee status determination system. [1]

UNHCR is concerned that the proposals currently before parliament focus on restricting access to asylum procedures in a way that may make it just as difficult for genuine refugees to enter the process as it would for fraudulent applicants.

The effect and implication of the changes to present asylum and immigration laws must also be seen in concert with the proposed withdrawal of social benefits to certain classes of asylum seekers which were announced by the Secretary of State for Social Security at the end of 1995. The social welfare amendments withdraw state support for all asylum-seekers applying "in country" and for those who apply at the point of entry, from the time their claims have been assessed by the Home Office. The proposed withdrawal of welfare benefits would undoubtedly cause hardship to many genuine applicants, including vulnerable individuals such as women and children. Consequently, it will undermine legal protection by making it difficult for them to subsist while pursuing their claims.

UNHCR believes that a more appropriate way to respond to the current challenges is to simultaneously reinforce the following three elements of the asylum process:

1.         All asylum applicants should have fair access to individual refugee status determination procedures which include the right to legal advice and an effective right of review or appeal against an unfavourable decision, before removal from the UK.

2.         A balanced and expeditious process should be in place which emphasises the 'quality' of all decisions based on the humanitarian spirit of the 1951 Refugee Convention. To ensure such quality decisions and to meet the time constraints imposed by current legislation, the system should receive more resources, especially trained personnel at both the initial and appeals level

3.         All decisions should be implemented swiftly. Those in genuine need of protection will receive it. Ways must be found to ensure that those whose claims are rejected after a full and fair refugee hearing and appeal, actually leave the country. [2]

By strengthening the existing procedures in the balanced way described, UNHCR believes that the attractiveness of the UK for fraudulent claimants will be considerably diminished and the strain on the welfare system will be reduced to manageable levels. At the same time, the humanitarian spirit of the 1951 Refugee Convention will be preserved. [3]

COMMENTS RELATING TO THE NOTION OF "MANIFESTLY UNFOUNDED" CASES - CLAUSE 1 OF THE BILL

GENERAL COMMENT

UNHCR recognises that the large number of asylum-seekers in the United Kingdom is placing an increasing burden on resources available to assess their claims in a timely and fair way. It acknowledges that accelerated procedures may, in some circumstances, be warranted so as to distinguish clearly undeserving refugee claims from those that are meritorious. It therefore welcomes any effort to strengthen and expedite the existing procedures.

In striking the right balance, however, UNHCR is firmly of the opinion that where such important matters are at issue, quality, fairness and transparency of process can not be compromised in the interests of expedition alone.

It should be noted that Clause 1 is formulated in only general terms, which makes it difficult to predict its implications. This hampers any meaningful analysis and the elaboration of specific comment. The Office stands ready for further consultation with the competent authorities as to how the Bill and any ancillary rules should be refined to provide fundamental procedural safeguards.

COMMENT ON "SAFE COUNTRY OF ORIGIN" DESIGNATION

UNHCR opposes the use of the notion of "safe country of origin" as an automatic bar to access to the asylum procedures. Where, however, the notion of "safe country of origin" is used only as a procedural tool to assign certain applications to accelerated procedures such as procedures for "manifestly unfounded" claims, the Office has no objection in principle. This assignment may involve a rebuttable presumption at to whether the claim ought to enter an expedited process but it ought not raise the standard of proof beyond that required in normal all asylum claims.

The decision to include countries in a "safe country of origin" list should only be based on independently verifiable assessments of current factual situations. Countries where there is more than an insignificant risk of persecution or other threats to life and freedom should not be considered "safe". Therefore, countries which are experiencing civil war or other serious internal disorder should not be included in such lists.

In determining whether a country is "safe", states should take into account certain basic factors. These include its respect for human rights and the rule of law, its record of not producing refugees, its ratification and compliance with human rights instruments and its accessibility to independent national or international organizations for the purpose of verifying and supervising respect for human rights.

Where the notion is used as a procedural tool for assigning claims made by persons coming from countries enumerated on the list to accelerated procedures, it should be ensured that these procedures contain the normal safeguards. At a minimum these should include the right to individual assessment of the claim, and a right of appeal to an independent tribunal before removal from the territory takes place.

With these general observations in mind, UNHCR comments specifically as follows:

i)          It is not clear whether clause 1 will be confined to procedural implications (such as an accelerated procedure with foreshortened time limits for lodging a claim and pursuing an appeal), or whether it will in some way alter the standard of proof normally expected in asylum claims. The wording of clause 1(3) that a designated country is one where " ... there is in general no serious risk of persecution.... " remains equivocal as to meaning. As mentioned above, if its purpose is merely to activate an accelerated procedure then the provision is not be objectionable per se.

ii)         The object and purpose of the Refugee Convention is the accurate identification and protection of refugees against refoulement. UNHCR would therefore expect that any accelerated procedures must still meet fundamental safeguards of quality, fairness, and transparency. These should include, inter alia, the following elements:

- there should be no prejudgment of the individual case's merits despite the general designation of the country.

- there must be a fair opportunity to present the claim before the first instance decision is taken. This should include the opportunity of access to, legal advice and adequate time to prepare for an oral interview.,

- there must be a fair and reasonable opportunity for a negative first instance determination to be reviewed on its merits by an independent body. in accordance with normal principles of administrative fairness and natural justice.

- in order for the review to be effective, there must be suspensive effect pending the exhaustion of the review/appeal right

-the burden of proof will remain on the asylum-seeker to prove the claim but the normal standard of proof applied in asylum cases must be maintained (see UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status, paras 195-197 and 203-204). In this respect, the threshold provided by the House of Lords in Sec of State v Sivukamaran, namely, "...a reasonable degree of likelihood....", would appear to be appropriate.

UNHCR would be generally supportive of changes that met these basic criteria.

iii)         If, however, the proposed changes were to directly or indirectly alter the substantive elements of refugee status determination, then more serious objections would arise. If the effect of a designation were to impose, through the establishment of a rebuttable presumption, a standard of proof higher than that prescribed in Sivukamaran, then this would be incompatible with the terms of the 1951 Convention relating to the Status of Refugees.

iv) This clause does not indicate the machinery by which a designation would take place. Notwithstanding UNHCR's general reservations regarding the use of the notion of "safe country of origin"[4], it is of the opinion that any procedures should have the following safeguards:

a) As mentioned above, the designation should be based upon objective and clearly established criteria. The meaning of the present wording of clause 1(3) is not immediately ascertainable. In the interests of transparency and fairness, there should be full disclosure of both the criteria and the evidence upon which the designation is to be made.

b) The process by which a country is designated must be clearly established and open to objective scrutiny. Likewise, a sufficiently flexible, transparent and objective mechanism for "delisting" a country should be established when the criteria are no longer fulfilled.

OTHER CATEGORIES OF "MANIFESTLY UNFOUNDED" CASES

The other grounds for activating the special accelerated procedures require particular care. In their present form, they give cause for some concern. Each of the grounds specified in clause 1((3A)(a)-(e) must entail a careful collection and assessment of substantive evidence.

Fundamental principles of administrative fairness and natural justice must be scrupulously observed for the consequences of an erroneous decision can be grave:

(a)        In particular, the wording in sub-clause (c) relating to the manifest falseness "..... of any of the evidence adduced in support....." of a claim is an inappropriate element to include effectively in any accelerated procedures. False evidence, such as forged documentation, may be material or non-material to the essence of a refugee claim. Issues of credibility and the relative weight to be attached to the whole panoply of truthful and untruthful assertions of fact are best left to the normal enquiry process. Their inclusion in accelerated procedures is very problematic.

(b)        UNHCR's observation of practices in other jurisdictions has shown that expressions such as "... frivolous and vexatious... " [sub-clause (e)], and " ... manifestly fraudulent ..." [sub-clause (d)] are elusive concepts, both in theory and in practice. Similarly, the wording in sub-clause (c) relating to the manifest falseness " .... of any of the evidence adduced in support.... " of a claim may be an inappropriate element to include in accelerated procedures.

(c)        The question of expedited procedures for clearly abusive and manifestly unfounded claims was considered very fully by the Executive Committee of UNHCR in 1983 [EXCOM No.30 (XXXIV)]. The guidelines set out in that important conclusion are considerably less expansive than the present legislative changes. They identify basic procedural criteria that ought to be met in such cases. These include, inter alia, the right to a personal interview and a review or appeal with suspensive effect.

(d)        UNHCR has monitored a broad cross-section of cases in the United Kingdom where the Secretary of State has certified that a claim was "Without foundation because it was frivolous or vexatious in terms of paragraph 334-336 of HC 395. In the period 1 January 1995 to 11 October 1995, UNHCR received notification of 155 appeals against such a certificate. The appeal was unsuccessful in 110 cases (71%). In 45 cases (29%), the Special Adjudicators did not agree with the Secretary of State's decision and remitted or allowed the appeal.

(e)        The frequency of this reversal gives some cause for concern because it points to an inappropriate application of the criteria set out in EXCOM no.30. UNHCR anticipates that by further widening the scope of cases deemed to be "without foundation" to include claims that ought properly be given full and careful substantive assessment, the number of successful appeals will remain high. It may arguably increase. UNHCR is concerned that this may undermine any probative value in the accelerated procedures.

COMMENTS ON THE "SAFE THIRD COUNTRY" PROVISIONS - ARTICLES 2 AND 3 OF THE BILL

INTRODUCTORY COMMENTS:

UNHCR recognises the need to reduce the irregular movement of asylum-seekers and refugees who have already found protection in a third country, or where it would appear reasonable that they be called upon to request asylum from another State where certain conditions are fulfilled. (EXCOM Conclusions 15 and 58). Clearly, it is expedient and, indeed, legitimate for States to identify inter se, which State has the responsibility to examine a substantive claim for refugee status. Ibis is an integral part of the need for international solidarity and burden sharing. It is even more apposite in the current climate of harmonisation of asylum practice that characterises Western Europe.

The Schengen Implementation Agreement and the Dublin Convention (when it comes into force and effect) are both useful attempts to provide consistency and uniformity in regional states' practices. However, these two regional instruments do not address the responsibility of States outside the European Union.

In this context, it must be recognised that the notion that an asylum-seeker ought to seek protection at the first available opportunity is not a principle of international law but, rather, a practice that some states have employed to limit the numbers of asylum-seekers claiming refugee status in their own countries. Some states apply the notion very restrictively whereas others not at all. Recent experience has shown that amongst those states that do have such procedures, their asylum practices remain far from consistent, inter se. Mere membership of the European Union, and being signatory to the 1951 Refugee Convention and other human rights instruments of a regional and international character, have not created the intended coherence and reliability required to assign each State's responsibilities to identify refugees and prevent their refoulement.

The harmonisation of States' responsibilities to accept a refugee claim for assessment is far from clear. It has been hampered by a complex web of bilateral readmission agreements between many EU states (and including some with non-EU members) that do not include undertakings to admit and assess a refugee claim. As a consequence, return to an ostensibly safe European State may, in turn, trigger a chain of readmission agreements where no state actually takes responsibility to assess the claim. At each stage the protection guarantees are diminished and the risk of refoulement exacerbated. In this environment, the notion of "safe third country" removals without meaningful appeal rights having suspensive effect is. very problematic.

By way of illustration of the complex issues involved, some European states insist that persecution must emanate from agents of the state before refugee status can be bestowed. Others, like the United Kingdom, recognise that refugee status must be given to those fearing persecution from non-state agents provided it is shown that the state is unable or unwilling to offer effective protection. Clearly, the assessment of the safety of a third country can only take place in the context of a substantive consideration and not in the summary process contemplated. The claimant might be able to satisfy the United Kingdom's refugee criteria but would fail that in the "safe third country". In those circumstances, can the United Kingdom safely return an asylum-seeker to the first country ? The conclusion, although perhaps surprising, must be that such a country is not safe for that asylum-seeker.

The example illustrates the lack of consistency and coherence between many states. It underscores the impossibility of a generalised determination that any given country is or is not safe.

For these reasons, UNHCR is of the opinion that there can be no automatic or reliable assumption that simply because an asylum-seeker passed through another EU state or some other liberal democracy, en route to the United Kingdom, the country is "safe" against refoulement, whether directly or indirectly. UNHCR's statistical analysis of United Kingdom "third country" appeals in 1995 indicates the considerable difficulties in applying the concept in practice. [see below, point iv]

Because of the current lack of consistency in inter-state practice, and the attendant risk of refoulement, UNHCR is not supportive of unilateral action by states to return asylum-seekers to countries through which they might have earlier passed, unless the prior agreement of that receiving state is first obtained. This may be achieved through bilateral or multilateral readmission agreements guaranteeing access to asylum procedures. In other words-, UNHCR recommends that States adopt inter se, provisions on the responsibility for examination of asylum claims either through conclusion of specific agreements to this effect or through insertion of such provisions in ordinary readmission agreements. The United Kingdom has recently established a workable agreement with the Spanish authorities and with some ports in France whereby removal is not attempted without agreement of the receiving state. Appeal rights are expeditiously dealt with in-country These agreements provide some certainty of protection and UNHCR is generally supportive of them.

UNHCR recognises that in some circumstances the determination of whether any given country of asylum is "safe" can take place within an accelerated procedure provided the process, itself, meets basic standards of administrative fairness and natural justice. All asylum-seekers should be given a fair and meaningful opportunity to rebut a certification that they could have found protection in some third country. This can only be achieved through access to legal advice and an effective appeal process wherein the appellant remains in the territory.

Two of the commendable features of the Asylum and Immigration Appeals Act 1993 are the provision for an independent appeal to the Special Adjudicators in all cases, and the suspension of removal to the designated 'safe' third country while the appeal is heard. In its reporting to the UN Human Rights Committee and to the Committee against Torture in 1995, the United Kingdom quite properly drew each Committee's attention to the procedural safeguards provided by the in-country appeal right for all, irrespective of their immigration status. In UNHCR's opinion, these are minimum and fundamental procedural safeguards against an erroneous certificate by the Secretary of State. The assessment of the availability of effective protection in some 'safe third country' may be just as complex as an examination of the substance of the claim. The consequences of an erroneous decision are, clearly, just as serious.

SPECIFIC COMMENTS ON CLAUSES 2 AND 3 OF THE BILL:

In the context outlined above, UNHCR has reservations about the proposed changes to the existing provisions relating to the "safe third country" practice.

i)          The proposed removal of "in-country" appeal rights, or appeal with suspensive effect, gives rise to particular concern. The adequacy of protection given through an appeal right that can only be activated from outside the United Kingdom is very much in issue. Any analogy to "out-of-country" appeals for other immigration categories, such as an appeal against refusal of a visa, is inappropriate because the magnitude of risk is not the same. In all likelihood, an asylum-seeker will be removed to the very country that he alleges to be unsafe and from where he is required to activate an appeal to the Special Adjudicator in the United Kingdom. This may well be without recourse to legal advice. The appeal right may be available de jure, but de facto, quite inaccessible and ineffective. If the country is unsafe then the risk of refoulement is exacerbated and the UK appeal procedures impotent to provide any effective protection against it. In those circumstances, the United Kingdom may find itself in violation of the Refugee Convention.

ii)         The question also arises whether an appeal possibility which can only be exercised from outside the country can be considered as an "effective remedy" in the sense of Article 13 of the European Convention on Human Rights.

iii)         The current appeal procedures empower the Special Adjudicators with jurisdiction to assess the Secretary of State's certification de novo. The Adjudicator has power to call for supporting evidence as to how the Secretary of State reached that conclusion. The process is open and transparent. Independent information and opinion, including that of UNHCR, may be sought by the parties to the appeal and even by the Special Adjudicator himself. The appeal is a meaningful and effective review process that meets basic standards of administrative fairness

iv)        UNHCR is currently a party to all appeals where the "safety" of a third country has been at issue. The Office has been served with a total of 736 decisions by the Special Adjudicators during the period September 1994 to December 1995. Of those decisions served, the Special Adjudicators agreed with the certification of the Secretary of State in 449 instances (61%). In 285 instances (39%), the Special Adjudicators disagreed with the certification by concluding that the given third country was not, in fact, "safe". The grounds upon which appeals were allowed were varied and in many cases mixed. In some, the passage of time prevented return. In others there were procedural or systematic failures in the receiving country that made removal untenable. [5] All such cases were then remitted for consideration of the substance of the claim.

The frequency with which the Special Adjudicators have reversed primary findings of "safety" by the Secretary of State is worrying evidence of the fallibility of the primary certification process. In UNHCR's view, it strongly underscores the need for an effective and independent "in-country" appeal to be maintained.

v)          For this reason, UNHCR is concerned that the disapplication of the suspensive effect pending an appeal, as proposed by clause 3(2) of the Bill, may well render the de jure appeal right quite nugatory. The restriction of the scope of the appeal to assessing only the "reasonableness" of the primary certification, as proposed by clause 3(1)(b), will further erode the protection offered by an appeal, even if it were possible to activate it from outside the United Kingdom.

vi)        With some justification, an "out-of- country" appeal to a Special Adjudicator as formulated by clause 3, may be perceived as an inadequate and ineffective remedy. A practical consequence of the inevitable erosion of the current administrative appeal right may be that an unsuccessful asylum-seeker will have to resort directly to judicial review of the Secretary of State's primary certification. Indeed, judicial review may offer the only effective remedy to an asylum-seeker. This would lead to the very curious and inexpedient result whereby a statutory appeal process, created expressly to lessen the burden on the judiciary, becomes by-passed as ineffective. The higher judicial courts may become inundated with applications for judicial review seeking, inter alia, suspensive effect. This may in turn, lead to precisely the opposite result intended by the Bill, but at considerable cost to the quality and integrity of the regime of asylum in the United Kingdom.

CONCLUSION:

UNHCR believes that the appropriateness of the present proposals must be measured by reference to the above-mentioned elements of a well-functioning asylum regime namely; fair access to refugee status determination procedures; a fair and expeditious process which places a premium on quality and accurate identification of those in need of protection and fair and prompt implementation of decisions. This will, of necessity, involve the deployment of increased resources to process the cases more expeditiously. Under such a functional asylum regime, those identified as refugees or given exceptional leave to remain will be promptly given protection and attendant legal and welfare rights. Those who do not qualify can be fairly and expeditiously removed from the country. [6]

A balanced response to each of these elements would inevitably diminish the attractiveness of the United Kingdom as a place of asylum for fraudulent claimants, reduce the strain on welfare support systems and yet retain the essential humanitarian character of the regime itself.

UNHCR is concerned that the present proposals focus almost exclusively on restricting access to the procedures in a way that may make it as difficult for genuine refugees to enter the process as those who are not. Viewed together with the recent measures to remove the right of welfare support for many asylum-seekers in the process, there may be a general negative impact on the humanitarian basis of asylum. UNHCR is concerned by the predictions that many thousands of asylum-seekers may be adversely affected by these changes. The combined effect of the measures does not really address the root problems at issue. By dealing only in a piecemeal way with this complex issue, there is a real risk that the delicate humanitarian balance inherent in a functional and credible asylum regime, may be disturbed. It is for these reasons that UNHCR recommends strengthening the three elements described in the introduction.

UNHCR Branch Office for the United Kingdom and Ireland
London, 19 January 1996

[1] See attached "Fair and Expeditious Asylum Procedures: UNHCR, November 1994.

[2] In EXCOM Conclusion 1995 para 19(1) "Emphasises in this context the need to address problems pertaining to the return of persons not in need of international protection, and encourages UNHCR to cooperate with other international organisations in looking into ways in which the return process can be facilitated and to, inform the Standing Committee.".

[3] For a more comprehensive analysis see UNHCR: An Overview of Protection Issues in Western Europe: Legislative Trends and Positions Taken by UNHCR, European Series Vol. 1 No.3, Sept. 1995.

[4] See earlier in general comments and also Western European Overview, supra p. 13-14.

[6] See 1995 EXCOM para. 19(1) supra.