Follow-up on Earlier Conclusions of the Sub-Committee on the Determination of Refugee Status with Regard to the Problem of Manifestly Unfounded or Abusive Applications

EC/SCP/29

Introduction

1. The problem of applications for refugee status submitted by persons who obviously have no valid claim to be considered refugees was discussed by the Sub-Committee of the Whole on International Protection at its second and seventh meetings. At the second meeting the question arose in connection with the requirement that a bona fide applicant for refugee status be permitted to remain in the country pending a decision on his initial request and also pending an appeal. In the conclusion on the determination of refugee status adopted by the Sub-Committee at the meeting, it was recognized that this requirement might be waived when it was established by the authority competent determine refugee status that a request was "clearly abusive"¹ At the seventh meeting of the Sub-Committee, the problem of "manifestly unfounded or abusive applications for refugee status" was mentioned in the note submitted by the High Commissioner on the determination of refugee status² as well as in the discussion of that item. In the conclusions adopted by the Sub-Committee at that meeting, it was considered that the question of manifestly unfounded or abusive applications for refugee status, in view of its importance, should be placed on the agenda of the eighth meeting of the sub-Committee, when it would be examined further on the basis of a study to be prepared by UNHCR³

2. Pursuant to this conclusion, the office has consulted its representatives and, though them, the national authorities of concerned States parties to the 1951 United Nations Refugee Convention and the 1967 Protocol in order to determine the nature and dimensions of the problem and to evaluate the kinds of measures that have been taken or that might be envisaged to resolve it. In analysing the present situation and the measures taken or proposed, the Office has been sensitive to the need for an efficient functioning of refugee status determination procedures, and at the same time for ensuring that the interests of bona fide applicants for refugee status are protected.

The problem of the proliferation of unfounded asylum claims

3. The proliferation of asylum applications in a number of industrialized States parties to the 1951 United Nations Refugee Convention and the 1967 Protocol has evidently led to an increase in unfounded asylum claims, a phenomenon which has given rise to serious concern on the part of the States affected. These concerns have resulted in particular from the fact that the number of unfounded claims has become disproportionately high and that a significant percentage of such claims are to be considered as manifestly unfounded or abusive⁴

4. In several of these countries it is reported that a growing number of applications for refugee status are being submitted by economic migrants as a means of circumventing normal immigration regulations. One of the reasons for this phenomenon would appear to be adverse world-wide economic trends, which have prompted increased emigration from less developed countries. At the same time widespread unemployment in developed countries has led them to impose more severe limitations on legal immigration, limitations which contrast sharply with the generous asylum policies which the countries concerned continue to follow for recognized refugees. many would-be immigrants to those countries have consequently resorted to spurious claims to refugee status in order to secure admission or avoid deportation. Even if their applications are eventually denied, filing such applications secures for applicants the opportunity to remain in the country at least for the duration of the determination procedure. This opportunity is obviously more attractive where applicants for refugee status have the right to work and access to social benefits. A number of national authorities have noted that long delays in the determination procedure may also serve as an added incentive for the filing of spurious applications.

5. The proliferation of spurious applications has imposed heavy burdens upon the countries affected, in terms of both the administrative cost of processing applications and the social expenditures incurred en behalf of all asylum-seekers while their applications are pending. Such applications have also been detrimental to the interests of applicants with valid claims to refugee status. Such claims have contributed in certain countries to delays in the recognition of refugee status and thus in the enjoyment by refugees of the rights to which they are entitled under the Convention and the Protocol. At the same time, growing public awareness of the fact that a large proportion of applicants for refugee status are in the end determined not to be refugees has contributed to a decline in popular sympathy for asylum-seekers in general, and to scepticism about the validity of the claims even of recognizes refugees. References to "false refugees" have become commonplace in certain countries, and political pressure has grown for more restrictive policies with regard to all applicants for asylum.

6. The Governments of those countries which are most seriously affected by the problem of spurious claims rightly perceive a need to adopt measures to deal with the problem. In considering such measures, States have been confronted with the difficult task of reconciling their own humanitarian objectives, including the maintenance of generous asylum, policies, with the need to enforce immigration laws and to prevent the abuse of procedural safeguards designed to protect the interests of bona fide asylum-seekers.

7. The large numbers of unfounded applications for refugee status has led some of these Governments to consider or to adept a variety of measures designed to meet the problem. The measures include the imposition of visa requirements for persons of certain nationalities, denying some or all applicants for asylum the right to work or access to social benefits, requiring applicants to live in special centres, and subjecting some applicants to detention while their applications are pending. Although such measures may prevent certain misuses of the refugee status determination system by applicants whose claims are without foundation, they give rise in certain cases to serious concern because of their adverse impact on applicants who have valid grounds for requesting recognition as refugees.

8. Other measures proposed or adopted by States are aimed more specifically at dealing with spurious applications within the framework of existing procedures for the determination of refugee status. These measures include the introduction of special procedures to permit a more rapid disposition of applications deemed to be obviously without merit, limiting opportunities for administrative or judicial review, devising ways to shorten existing procedures, and/or providing increased staff or resources to the authority competent to determine refugee status so as to reduce the time required to reach a final decision. Procedural measures of this kind have the distinct advantage of providing a means of dealing with the problem of unfounded applications while at the same time safeguarding the interests of applicants who may have a valid claim to refugee status.

The concept of "manifestly unfounded" or "abusive" applications

9. Several States have made special provision in their refugee status determination procedures for the handling of applications which are considered to be clearly without foundation. While the terms used, as well as the operative definitions, differ, the aim of such measures is to set apart for more expeditious treatment a class of applications which are deemed to be manifestly of such a character as not to require full examination at every level of the determination procedure.

10. It will be recalled that the conclusion on the determination of refugee status adopted by the Sub-Committee at its seventh meeting referred to "manifestly unfounded or abusive applications" as those which are "fraudulent or not related to criteria for the granting of refugee status laid down in the 1951 UN convention."⁵ This wording is based upon a recommendation of the Committee of Ministers of the Council of Europe which refers to asylum applications for which it is established by a competent central authority that "the request is manifestly based en grounds having no connection with asylum, in particular that it is fraudulent or is related neither to the criteria for the granting of refugee status laid down in Article 1 A(2) of the 1951 Geneva Convention nor to any ether criteria justifying the granting of asylum."⁶

11. In all States which have made special provision for dealing with manifestly unfounded applications, the term (or its equivalent) includes applications which clearly bear no relation to the criteria contained in the applicable definitions, as for example a request in which an applicant states unequivocally that he seeks asylum in order to obtain better employment possibilities. From available information it would appear, however, that applications which completely fail to disclose any prima facie claim relevant to the applicable criteria are comparatively few.

12. Another class of requests which several national authorities would include in the "manifestly unfounded" category is composed of applications for asylum which, while stating grounds sufficient to qualify the applicant for refugee status, do not fulfil the criteria applied by the country concerned for granting asylum, as when it appears that the applicant has obtained - or could obtain - asylum, in another country to which he could reasonably be expected to proceed. Given the close link between the determination of refugee status and the granting of asylum, it is considered in the States concerned that there is no need to proceed to determine refugee status if the applicant is in any case ineligible for asylum in that country. one national authority has employed the term "incompatible" instead of "manifestly unfounded" for this type of application, which is also referred to as "inadmissible".

13. Several countries also treat as "manifestly unfounded" new applications from persons whose requests have already been considered and rejected and who do not present any grounds for reversing the previous decision. The possibility has also been mentioned of including in this category applications rejected in another country which follows similar criteria and procedures.

14. A much larger group of applications which most of the national authorities concerned include in the "manifestly unfounded" category consists of applications based upon allegations which, if true, would constitute grounds for the recognition of refugee status, but which are inconsistent with what are considered to be established facts concerning conditions, practices or events in the applicant's country of origin. A number of national authorities appear to treat applications as obviously groundless on the basis of a presumption against the well-foundedness of claims made by nationals of particular countries, or by members of specific groups within those countries. Some authorities have stated that procedures to dispose of manifestly unfounded applications would be of little value in coping with the problem of spurious claims unless applications of this kind were treated, as "manifestly unfounded."

15. Reliance on "established, facts" to determine that an application is manifestly unfounded may be problematical to the extent that facts which are considered established may not be undisputed. Moreover, the prevailing practices in a given country of origin may be subject to exceptions, or conditions in the country may change, without this necessarily being known to the refugee status determination body. It would therefore be appropriate to treat any "established fact" concerning country of origin as a presumption, potentially subject to rebuttal by suitable evidence. With this understanding, it would appear reasonable for applications based upon allegations contrary to facts known to the competent authority to he treated as manifestly unfounded unless the applicant can present some plausible basis for substantiating his claim. This appears to be the actual practice - in those countries that have adopted this type of procedure.

Procedural measures for dealing with manifestly unfounded or abusive applications

16. The procedural measures adopted in various countries to meet the problem of applications considered manifestly unfounded or abusive vary considerably. In two States, applications which appear to be manifestly unfounded after a first examination or hearing are submitted to the central authority, competent for the determination of refugee status, but are dealt with in a shortened or summary form. Such cases are rejected as manifestly unfounded only if the all members of the competent body, as well as the representative of UNHCR, concur. Applicants whose requests are rejected as manifestly unfounded retain the same right to review or appeal as other applicants.

17. In two other States all applicants are treated in the same manner in the first instance of the procedure. However, when the authority competent to determine refugee status finds that an application is "obviously groundless" (in one State) or that no reasonable person could doubt that the applicant is not a refugee (in the second), the applicant is not permitted to remain in the country during an administrative or judicial appeal. In such cases rejected applicants are nonetheless permitted to apply to an administrative court in summary proceedings to seek an order allowing them to remain in the country pending appeal on the ground that their application is not manifestly unfounded.

18. In a few States the possibility exists for the immigration or aliens police authority which first examines an applicant for refugee status to reject the claim as manifestly unfounded. In such cases, however, representative of the authority competent to determine refugee status is notified of the case and given an opportunity to review the decision before it is implemented.

The need for procedural safeguards

19. The determination of whether or not an application for refugee status is manifestly unfounded or abusive requires a substantive evaluation that is similar in nature to that involved in the determination of refugee status generally, and the consequences for a rejected applicant of an erroneous determination are no less serious. It is therefore essential that any special procedure established for dealing with manifestly unfounded or abusive claims should include certain procedural safeguards. It is also important that the criteria for making such a determination should be defined in such a way that no application will be treated as manifestly unfounded or abusive unless its fraudulent character or its lack of any connection with the relevant criteria is truly free from doubt.

20. One indispensable protection against an erroneous decision is a thorough personal interview or hearing of each applicant for refugee status by an official who is familiar with the various factors which need to be considered in making such a determination. The chairman of one refugee status determination body observed that in some cases applicants whose requests appear at first sight to be unfounded, in that they make no reference to any grounds for fear of persecution, are subsequently determined actually to be refugees. He confirmed the view of experienced participants in determination procedures that even those applicants whose applications initially appear to be unrelated to the relevant criteria must be carefully interviewed to ensure that they have stated their actual grounds for seeking asylum. Given the complexity of the matter and the necessity in most cases of evaluating the applicant's personal credibility, it would be desirable for the interview to be conducted whenever possible by a representative of the authority charged with the determination of refugee status.

21. In accordance with the previous recommendations of the Executive Committee⁷, the manifestly unfounded or abusive character of an application should be established by the authority which has the responsibility for examining requests for refugee status and taking a decision in the first instance. This requirement nay be satisfied either by having that authority make the initial determination that an application is manifestly unfounded or abusive, as in the procedures described in paragraphs 16 and 17, supra, or by having that authority review a determination previously taken, e.g. by the immigration police, before it is actually implemented. In examining the application, the competent authority should give due consideration to the particular facts presented by the applicant in support of his claim.

22. Once an application has been rejected as manifestly unfounded or abusive, there may be good reason for an applicant not to be granted the appeal or review possibilities that are available to other applicants for refugee status. In view of the gravity of the matter and the risk of error, it would seem necessary however to preserve some effective possibility of having the decision reviewed. The usefulness of such a review possibility is demonstrated by a number of recent judicial decisions in which courts have found, that determinations that particular applications were "obviously groundless" had been made erroneously in the first instance. In several of these cases it was subsequently found that the applicants concerned were in fact refugees. Such cases point to the risk involved when a rejected applicant is subject to expulsion or refoulement pursuant to a single decision by an administrative authority.

Other measures to deal with the problem of unfounded claims

23. By permitting more expeditious treatment of a significant number of applications, special procedures for manifestly unfounded or abusive applications can to a certain degree lighten the administrative burden on national authorities and reduce delays. Experience shows, however, that the spurious character of many wholly groundless applications for refugee status is not immediately obvious. Many unfounded, and even fraudulent and abusive, applications are not manifestly so, and can only be rejected after careful examination of all the facts of the case and an assessment of the credibility of the applicant. In one country, for example, manifestly unfounded claims constitute about 20 per cent of the total caseload and less than one third of all rejected applications. In another country, somewhat more than one quarter of all applications for refugee status are found to be obviously groundless. Since there thus remain a substantial number of unfounded applications which cannot be dealt with as "manifestly unfounded or clearly abusive", special procedures to handle manifestly unfounded or abusive requests cannot be expected entirely to eliminate the problem of spurious applications in general. Most authorities agree therefore that other measures are needed - whether in conjunction with or instead of such procedures⁸ to deal with the proliferation of unfounded claims.

24. It seems clear that the length of refugee status determination procedures - often counted in years rather than weeks or months aggravates the problem of spurious claims and to some extent may even serve as an incentive to file them. Most of the national authorities consulted concur that speedier decisions could be achieved without sacrificing procedural fairness if sufficient resources were allocated to the task, and that this is probably the most effective means of alleviating the problem. The experience of a number of States demonstrates in particular the value of allocating sufficient manpower to the authorities competent to determine refugee status in the first instance. In one of the States most seriously affected, a substantial increase in personnel, combined with a reallocation of the responsibility for handling appeals to several different tribunals, has resulted in a steady diminution of the backlog of undecided applications. It may be added that a few countries have sought to avoid the detrimental effect of long delays in the refugee status determination procedures for some applicants by establishing an expedited procedure for applicants who clearly have valid grounds for claiming refugee status.

25. The length of the appeals process has in some countries proved to be a matter of serious concern. The opportunity to obtain a review of a decision rejecting an application for refugee status is an extremely valuable procedural protection, and it is desirable for such a review to be entrusted to an independent judicial or administrative body. Given the fundamental importance which the decision may have for the applicant, undue haste should be avoided even where an application appears to be without foundation. However, the experience of several countries shows that it should be possible to reduce to a few months the period necessary to obtain a final decision on an application, while. at the same time providing adequate procedural safeguards including an appeal to an independent tribunal. In cases deemed to be manifestly unfounded, one country provides for summary judicial review, with the assistance of counsel, within a matter of weeks or in urgent cases days. The possibilities for expediting the process of judicial review of course differ according to the legal and judicial system prevailing in each country but the experience of this and other countries demonstrates that a fair refugee status determination procedure does not inherently entail long delays.

26. In the final analysis, there may indeed be no effective means of completely resolving the problem of unfounded applications for refugee status. Efforts to ensure that manifestly unfounded or abusive applications do not create an impediment to the effective functioning of determination procedures may only provide partial solutions to the wider problem of unfounded claims. With regard to any measures adopted the fundamental consideration should always be that the interests of the bona fide asylum-seeker should not he adversely affected.

Conclusions

27. Applications for refugee status by persons who clearly have no valid claim to be considered refugees under the relevant criteria constitute a serious problem in a number of States parties to the 1951 Convention and the 1967 Protocol. Such applications are burdensome to the affected countries and detrimental to the interests of those applicants who have good grounds for requesting recognition as refugees.

28. National procedures for the determination of refugee status may usefully include special provision for dealing in an expeditious manner with applications which are considered to be so obviously without foundation as not to merit full examination at every level of the procedure. Such applications have termed either "clearly abusive" or "manifestly unfounded" and have been defined as those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 United Nations Convention. They include applications obviously having no relation to the applicable criteria, applications based on allegations which are in conflict with material facts known to the competent authorities, and applications for refugee status by persons who enjoy asylum in another country.

29. When special procedures are established for applications which appear to be manifestly unfounded or abusive, the following minimum procedural safeguards should be observed:

(a) The applicant for refugee status should be given a full personal interview for refugee status, wherever possible by an official of the authority competent to determine refugee status.

(b) The manifestly unfounded or abusive character of an application should be established by the authority normally competent to determine refugee status.

(c) In view of the substantive character of a determination that an application for refugee status is manifestly unfounded or abusive, and of the potentially grave consequences of an erroneous determination a rejected applicant should be given an opportunity to have the decision reviewed before a measure of expulsion or refoulement is implemented. This review possibility can be less far reaching and more simplified than that available in the case of rejected applications which are not considered manifestly unfounded or abusive.

(d) Measures to deal with manifestly unfounded or abusive applications may not resolve the problem of large numbers of applications for refugee status in general. This more general problem could be alleviated by:

(i) Allocating sufficient personnel and resources to refugee status determination bodies so as to enable them to accomplish their task expeditiously; and

(ii) The introduction of measures that would reduce the time required for the completion of the appeal process.

1 Conclusions on the International Protection of Refugees adopted by the Executive Committee of the UNHCR programme, Geneva, 1980. Conclusion No. 8 (XXVIII) (1977) para. e (vii)

2 EC/SCP/22/Rev. 1, paras. 25-28).

3 Conclusion No. 28 (XXXIII)(1982), para. (d).

4 The problem of unfounded applications for refugee status is by definition limited to States which have adopted procedures for the determination of refugee status, virtually all of which are States parties to the 1951 United Nations Refugee Convention and/or the 1967 Protocol. In these States the recognition of refugee status is normally linked to the granting of asylum and to the full enjoyment of the rights provided for in these international instruments.

5 Conclusion No. 28(XXXIII) (1982), para (d).

6 Recommendation No. R(81) 16 on the harmonization of national procedures relating to asylum (adopted by the Committee of Ministers on 5 November 1981 at the 339th meeting of the Ministers' Deputies), para. 4.

7 Conclusion No. 8 (XXVIII)(1977), para. (e)(vii).

8 The authorities of a few countries confronted with substantial numbers of applications have indicated that special procedures to eliminate manifestly unfounded claims either do not appear necessary or could not readily be introduced into their legal systems.