Follow-up on Earlier Conclusions of the Sub-Committee on the Determination of Refugee Status, inter alia, with Reference to the Role of UNHCR in National Refugee Status Determination Procedure

EC/SCP/22

Introduction

1. The Executive Committee has devoted considerable attention to the determination of refugee status. As its twenty-seventh session, the Committee recommended that the High Commissioner continue to follow-up the implementation of the 1951 United Nations Convention and the 1967 Protocol relating to the Status of Refugees in various member States, including procedures for the recognition of refugee status.¹ The following year, at the second meeting of the Sub-Committee of the Whole on International Protection, the determination of refugee status was examined in detail on the basis of a note submitted by the High Commissioner.² In that note, attention was drawn to the need for determining refugee status in order to identify those persons who are refugees within the meaning of the international refugee instruments. The legal basis for the determination of refugee status is the refugee definition contained in these instruments, viz: the 1951 UN Convention and the 1967 Protocol relating to the Status of Refugees, the Statute of UNHCR and, on the regional level, the 1969 OAU Convention governing the specific Aspects of Refugee Problems in Africa. Attention was drawn to the importance of procedures for determining refugee status, which it was considered should meet certain basic requirements intended to provide the applicant for refugee status with the necessary guarantees.³ The note also dealt with a number of other issues notably the competence to determine refugee status and UNHCR participation in refugee status determination procedure.⁴

2. At its second meeting, the Sub-Committee adopted a set of conclusions on the Determination of Refugee Status, which were endorsed by the Executive Committee at its twenty-eighth session (No. 8) . In these conclusions the Executive Committee, inter alia, expressed the hope that all States party to the 1951 Convention and the 1967 Protocol that had not yet done so should take steps to establish procedures for the determination of refugee status and give favourable consideration to UNHCR participation in such procedures in an appropriate form. The Executive Committee also identified a number of basic requirements that refugee status determination procedures should satisfy. The text of these conclusions is given in annex I.

3. The importance of procedures for determining refugee status was reiterated by the Executive Committee at its twenty-ninth⁵, thirtieth⁶, thirty-first⁷, and thirty-second⁸ sessions.

4. In order to facilitate the consideration of the matter by the Executive Committee at its twenty-eighth session, the Office submitted an information document (A/AC.96/INF.152) that contained a description of the refugee status determination procedures existing in 18 States. This document has been periodically updated and the present version (A/AC.96/INF.152/Rev.3) describes the procedures that now exist in thirty-five States. (See attachment)

5. At Several meetings of the Sub-Committee and at various sessions of the Executive Committee, the view was expressed that the question of follow-up on earlier conclusions on international protection should appropriately be considered at future meetings of the Sub-Committee⁹ it is in compliance with this suggestion, and in view of the importance of the subject, that the determination of refugee status has been submitted for consideration by the Sub-Committee at its seventh meeting. In the present note it is proposed to recall the importance of procedures for determining refugee status, to examine the progress made in the establishment of such procedures since the Executive Committee's twenty-eighth session, to describe the basic features of the procedures adopted with particular reference to the role of UNHCR and to examine certain general questions related to their implementation. These questions concern the access of asylum-seekers to determination procedures and the phenomenon of manifestly unfounded or abusive applications. Finally, brief mention will be made of the problem of the determination of refugee status in cases of large-scale influx.

Importance of procedures for determining refugee status

6. As pointed out in document EC/SCP/5 submitted to the second meeting of the Sub-Committee, determination of refugee status is of fundamental concern to UNHCR since it is closely related to the question of asylum and admission, and also because it can give rise to special problems bearing on the High Commissioner's protection functions¹⁰ In the light of UNHCR's experience, refugee status should be determined under formal procedures rather than informal or ad hoc arrangements within the existing administrative framework.¹¹ Such procedures must ensure that the appropriate distinction is made between applications for refugee status on the one hand and normal immigration or deportation proceedings on the other. Without such differentiation, there is a risk that the routine enforcement of immigration control measures will result in refugees being subjected to refoulement, to summary rejection at frontiers, or to imprisonment or detention for illegal entry or presence.

7. Procedures for the determination of refugee status should also ensure that application are examined by officials familiar with both the relevant legal provisions and the special problems facing applicants for refugee status. it should be recalled that the applicant for refugee status is normally in a particularly vulnerable situation. In an alien environment, often speaking a different language, fearful of the consequences of possible return, and sometimes without complete documentation, the applicant may experience serious difficulties in presenting his case to the authorities.

8. The experience of the office has also confirmed the importance of applying normal procedural safeguards in determination of status proceedings which often decide on matters of life and death - such as informing applicants beforehand on their rights, ensuring their personal appearance before the determining authority, the availability of interpreters, access to legal counsel and the local UNHCR office, and the keeping of written records.

Progress made in regard to procedures for the determination of refugee status since the twenty-eighth session of the Executive Committee

9. When the determination of refugee status was considered by the Executive Committee at its twenty-eighth session in 1977, procedures for the determination of refugee status had, to the knowledge of UNHCR, been established by 17 States. In the intervening five-year period, determination procedures have been introduced by 18 additional States, as described in document A/AC.96/INF.152/Rev.3; since the date of that document, a determination procedure has been established by Japan. A number of other States are in the process of elaborating such procedures.

10. This positive trend is greatly to be welcomed and the adoption by States of determination procedures is an indication of the importance that they attach to carrying out, in good faith, their obligation under 1951 UN Convention and the 1967 Protocol.

11. While the 1951 UN Convention and the 1967 Protocol provide a definition of the persons entitled to benefit from their provisions, the method for identifying these persons and thus for distinguishing refugees from other aliens is left to each State party to determine in accordance with its particular legal and administrative institutions. The procedures established since 1977, like those already existing at that time, vary considerably both in structure and detail. They do, however, display one particular common feature, namely that responsibility for determining refugee status is vested in a clearly defined authority which, in the great majority of cases, is a single central authority.¹² In certain cases the authority entrusted with the determination of refugee status is also the authority responsible for aliens and immigration in general. In other cases a distinct procedural framework has been established to deal with refugees and sometimes also with stateless persons. Having regard to the special reasons calling for the establishment of refugee status determination procedures, arrangements of the second type may have distinct advantages. In order to ensure that the position of the applicant is safeguarded to the greatest possible extent, it may also be desirable for the central authority entrusted with the determination of status to be an independent body.

12. The nature of the authority competent to determine refugee status varies widely. In certain countries this responsibility is entrusted to a particular government department such as the Ministry of Interior (or Home Affairs), Foreign Affairs, Justice or Immigration. In other countries the decision to grant or to deny refugee status is made by a Minister personally (or on his behalf), by two ministers acting jointly, or the Head of State.

13. In some countries determination of refugee status is entrusted to an independent body attached administratively to a particular Ministry. In one country refugee status is determined by an independent commission composed of representatives of the Ministry of the interior, the Ministry of Foreign Affairs and a representative of UNHCR.

14. In certain countries the legally competent authority is required, either at the first instance or on appeal, to seek the advice of a committee composed of representatives of several ministries or government departments. In almost all cases, UNHCR participates in the deliberations of such advisory committees, which sometimes also include representatives of non-governmental organizations or private citizens.

15. With regard to the possibility of appeal or review of a negative decision, the procedures are generally in line with the recommendation made by the Executive Committee at its twenty-eighth session; i.e., that if the applicant is not recognized he should be given a reasonable time to appeal for a formal reconsideration of the decision, either to the same or to a different authority, whether administrative' or judicial according to the prevailing system.¹³ In several countries provision is made for an appeal to an authority different from the authority that makes the first determination can be requested to reconsider its decision, a type of review that can, however, be only of limited effect. In some countries decisions denying refugee status may be appealed to the courts or to administrative tribunals. In several States, on the other hand, no provision is made for an appeal against, or for a review of, a decision denying refugee status.¹⁴

16. It will be seen from the preceding paragraph that refugee status determination procedures have now been established by a number of States and that these procedures generally conform to the recommendations of the Executive committee. While this progress is greatly to be welcomed, it should be recalled that more than half of the States parties to the refugee instruments have not yet established determination procedures.

17. A significant development since the Executive Committee's thirty-second session has been the adoption by the Committee of Ministers of the Council of Europe on 5 November 1981 of recommendation R(81)16 on the Harmonization of National Procedures relating to Asylum. This recommendation sets out basic principles that should be applied in the different national procedures and practices for the examination of asylum requests. In defining these principles due account was taken of the basic minimum to be accepted by the member States of the Council of Europe.

The role of UNHCR in the determination of refugee status

18. In the conclusion adopted at its twenty-eighth session, the Executive Committee expressed the hope that all Governments parties to the 1951 UN Convention and to the 1967 Protocol would give favourable consideration to UNHCR participation, in an appropriate form, in refugees status determination procedures.¹⁵ Many determination procedures do in fact provide for some form of UNHCR participation that facilitates the office's statutory duty of supervising the application of international instrument for the protection of refugees.¹⁶

19. The role played by UNHCR in determination procedures varies considerably. In ones country UNHCR is an equal voting member of the independent commission that determines refugee status. In another country UNHCR determines refugee status on behalf of the national authorities. In a number of countries UNHCR sits as an observer on the committee that advises the authority competent to determine refugee status. in a few States of UNHCR representative is a member of the appeals commission that reviews decisions denying or withdrawing refugee status.

20. It may be added that in countries that are not parties to the 1951 UN Convention or the 1967 Protocol, UNHCR - in order to carry out its protection and assistance tasks - is frequently required to make a formal determination as to whether a particular individual is a refugee under the High Commissioner's mandate.

21. Through its involvement in national determination procedures -and in determining whether particular individuals are refugees within the High Commissioner's mandate - the office has acquired extensive experience in applying the criteria of refugee status. This experience can be made available to Governments on a current basis through UNHCR participation in determination procedures. Such participation may also contribute to an harmonization of practices in applying the refugee definition. UNHCR participation in determination procedures also serves the emphasize the purely humanitarian and non-political character of the determination of refugee status and may thus help to avoid possible tension between the country of asylum and the country of origin of refugees. Finally, through its participation, UNHCR is in a position to reassure the international community - and also concerned non-governmental organizations - that decisions on refugee status have been reached in full conformity with accepted international norms.

22. As noted above, a number of States have found it appropriate to entrust UNHCR with a substantive role in their determination procedures, e.g., by making UNHCR a voting member of the decision - making authority or by entrusting UNHCR with the task of determining refugee status on behalf of the national authorities. The High Commissioner believes, however, that it is neither necessary nor in line with the traditional functions of his office for UNHCR to assume alone the decision-making responsibility, but that a meaningful participatory role is essential to meet existing concerns. such a role could range from membership in a status determination commission to an advisory role in which arrangements UNHCR would be informed of intended negative decisions, with the possibility of making representations to the authorities before a decision is taken at the first instance or at the appeals level, or UNHCR participation as an observer - with the right to express its views - in the deliberations of advisory boards operating at the first instance or appeals level.

Access of asylum-seekers to refugee status determination procedures

23. The most critical decision concerning an individual application for refugee status may well be the one taken by the police or border official to whom the applicant first presents himself upon arrival. The existence of a determination procedures is not of any value to an applicant who is not given access to that procedure and is summarily expelled from the country before his claim has even been seriously considered. It frequently occurs, however, that due to psychological and/or language problems, fear, fatigue or absence of documentation a claim to refugee status may not become apparent during the applicant's first encounter with the national authorities. It was in recognition of these difficulties that specific measures were recommended by the Executive Committee at its twenty-eighth session as basic requirements for determination procedures, viz: the competent official (e.g. immigration officer or border police officer) to whom the applicant addresses himself at the border or in the territory of a contracting State, should have clear instructions for dealing with cases that might come within the purview of the relevant international instruments. He should be required to act in observance of the principle of non-refoulement and to refer such cases to a higher authority.¹⁷

24. Since the Executive Committee's twenty-eighth session, a number of Government have issued administrative instructions or circulars to immigration and border officials requiring all asylum requests, irrespective of their apparent substantive merits, to be duly referred to the competent central authority. In numerous instances such measures have served to prevent the expulsion or refoulement of persons who have subsequently been recognized as refugees under established determination procedures. The office is, however, also aware of cases in which persons wishing to apply for refugee status have been turned away by border authorities without being given access to determination procedures. Incidents of this kind point to the need for ensuring that such instructions are indeed issues, or for ensuring that the serious consequences of disregarding such instructions are duly brought to the notice of immigration or border police officers who might be confronted with an asylum request.

Manifestly unfounded or abusive applications for refugee status

25. While it is essential that all asylum requests are duly referred to the competent authority, there is also a legitimate concern of Governments shared by UNHCR - that determination procedures should not provide an avenue for manifestly unfounded, or even abusive applications. Such application - of which there has in recent years been a proliferation in a number of countries - are often submitted in circumvention of normal immigration restrictions by aliens seeking to enter or to remain in the country for purely economic reasons, or reasons of personal convenience. Sometimes, the legal safeguards of a determination of status procedure are abused by individuals who are obviously not refugees, but who merely wish thereby to delay the legal and administrative consequences of illegal immigration.

26. There can be no doubt that manifestly unfounded and abusive applications are detrimental to bona fide applicants since by overloading the procedures, they delay the recognition of refugee status and may cause a loss of public support for refugees and asylum-seekers in general. This situation has led a number of Governments to adopt measures for dealing with the problem of such applications. These measures involve the introduction or reintroduction of the visa requirement for certain nationalities, restrictions of the right to work for asylum-seekers, accommodating asylum-seekers in reception centres and, within the procedures themselves, limiting or dispensing with procedural safeguards such as judicial or administrative review.

27. Such measures are fully understandable from the point of view of the object that they are intended to achieve. They nevertheless give rise to concern due to their far-reaching nature. While measures for dealing with manifestly unfounded and abusive applications should indeed be effectively pursued, the necessary safeguards for ensuring that genuine application will thereby not erroneously be rejected should be maintained. It should not be overlooked that the question as to whether or not an application is manifestly unfounded or abusive does involve a substantive evaluation that is not dissimilar to the evaluation carried out when dealing with refugee applications generally. The rejection of an application as manifestly unfounded or abusive should therefore only be decided by or after reference to the authority to which applications for refugee status are normally referred.

28. Once such an application is refused the rejected applicant may understandably not be granted all the appeal or review possibilities available to the genuine applicant for refugee status. Uncertain circumstances, however, such a refusal can reasonably be challenged. This points to the need for retaining some kind of appeal or review possibility, so as to ensure that rejected applicants are not subjected to measures of expulsion or refoulement pursuant to a single decision by an administrative authority.

Determination of refugee status in cases of large-scale influx

29. In concluding the present note, it should be mentioned that recognition procedures adopted to implement the 19851 UN Convention and the 1967 Protocol are conceived primarily to facilitate the determination of the refugee status of individual applicants. In case of sudden and large-scale influx such procedures are often impracticable. In situations of this kind it may therefore be necessary to find an intermediate solution for the group as a whole, e.g., by regularizing the situation of the group on a temporary basis until individual screening can be carried out, or by resorting from the outset to a so-called prima facie group determination of refugee status. In such cases regard is had to the objective circumstances that led the group to leave - or to remain outside - the country of origin, in order to determine whether the members of the group qualify for immediate protection pending an individual examination of their case or can - in the absence of indications to the contrary - be presumed to be refugees. If the initial prima facie group determination is negative, consideration should be given to appropriate procedures permitting the determination of the status of individuals who apply for recognition as refugees.

30. UNHCR has recourse to similar techniques in determining whether a particular group qualifies for international protection or assistance. In so doing the office bases itself either on the refugee definition figuring in the UNHCR Statute, or on the wider concept of externally displaced persons in a refugee-like situation.

Conclusions

31. (a) The experience of UNHCR since the Executive Committee's twenty-eighth session has confirmed the importance of procedures for determining refugee status.

(b) Since the Executive Committee's twenty-eighth session, procedures for the determination of refugee status have been established by a significant number of States Parties to the UN Convention of 1951 and to the Protocol of 1967. It should nevertheless be pointed out that more than half of the States parties to these instruments have not yet established determination procedures.

(c) Considering the particular, vulnerable situation of asylum-seekers and the gravity of the issues involved, certain procedural safeguards would seem desirable. Applicants should, e.g., be informed of their rights; be able to state their case in person; have access to legal counsel, interpreters and UNHCR; and have the proceedings recorded in writing. It would also seem desirable to entrust the determination of refugee status to an independent national body.

(d) While most countries provide rejected applicants with the possibility to appeal or to have their case reviewed by a higher body, in a large number of States negative decisions cannot be appealed or can merely be reconsidered by the same body of first instance, often only upon presentation of new facts.

(e) Many refugee status determination procedures provide for UNHCR participation in different forms so as to make available to the authorities its wide experience in the application of the criteria of refugee status. It also serves to emphasize the purely humanitarian and non-political character of the determination of refugee status and enables UNHCR to confirm that determination has been carried out in full conformity with accepted international norms.

(f) In national determination procedures, UNHCR should not, however, assume alone the decision-making responsibility but should exercise a meaningful participatory or advisory role. While the exact nature of this role would depend upon the form of the particular procedure, it could involve the possibility for UNHCR to express its views before a negative decision is taken or to participate as an observer in the deliberations of advisory boards at the first instance or appeal level.

(g) In line with the recommendation made by the Executive Committee at its twenty-eighth session, a number of Governments have issued administrative instructions to immigration and border officials requiring all asylum applications to be referred to the competent central authority. There have, however, been cases in which persons wishing to apply for refugee status have been turned away at the border without being given access to the determination procedure. It is therefore essential that appropriate instructions be issued by all concerned Governments that have not yet done so. Where such instructions have already been issued they should if necessary be reiterated.

(h) Since the Executive Committee's twenty-eighth session there have been in some countries a high number of manifestly unfounded applications for refugee status. These are rightly considered as detrimental to bona fide applicants and efforts to deal with such applications should be effectively pursued. Decisions rejecting applications on the ground that they are manifestly unfounded should, however, only be made by or after reference to the authority that normally decides on applications for refugee status. Persons whose applications are so rejected should be given an appeal or review possibility, which need not, however, be as far-reaching as those available in the normal course of the proceedings.

(i) Refugee status determination procedures are designed for the determination of individual applications. In large-scale influx situations their implementation may not be practicable and it may be necessary to resort to a general evaluation of the refugee character of the group(s) in question.

Annex I No. 8 (XXVIII) Determination of Refugee Status¹⁸

The Executive Committee

(a) Noted the report of the High Commissioner concerning the importance of procedures for determining refugee status;

(b) Noted that only a limited number of States parties to the 1951 Convention and the 1967 Protocol had established procedures for the formal determination of refugee status under these instruments;

(c) Noted, however, with satisfaction that the establishment of such procedures was under active consideration by a number of Governments;

(d) Expressed the hope that all Governments parties to the 1951 Convention and the 1967 Protocol which had not yet done so would take steps to establish such procedures in the near future and give favourable consideration to UNHCR participation in such procedures in appropriate form;

(e) Recommended that procedures for the determination of refugee status should satisfy the following basic requirements:

(i) The competent official (e.g. immigration officer or border police officer) to whom the applicant addresses himself at the border or in the territory of a Contracting State, should have clear instructions for dealing with cases which might come within the purview of the relevant international instruments. He should be required to act in accordance with the principle of non-refoulement and to refer such cases to a higher authority.

(ii) The applicant should receive the necessary guidance as to the procedure to be followed.

(iii) There should be a clearly identified authority - wherever possible a single central authority - with responsibility for examining requests for refugee status and taking a decision in the first instance.

(iv) The applicant should be given the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned. Applicants should also be given the opportunity, of which they should be duly informed, to contact a representative of UNHCR.

(v) If the applicant is recognized as a refugee, he should be informed accordingly and issued with documentation certifying his refugee status.

(vi) If the applicant is recognized, he should be given a reasonable time to appeal for a formal reconsideration of the decision, either to the same or to a different authority, whether administrative or judicial, according to the prevailing system.

(vii) The applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority referred to in paragraph (iii) above, unless it has been established by that authority that his request is clearly abusive. He should also be permitted to remain in the country while an appeal to a higher administrative authority or the courts is pending.

(f) Requested UNHCR to prepare, after due consideration of the opinions of States parties to the 1951 Convention and the 1967 Protocol, a detailed study on the question of the extra-territorial effect of determination of refugee status in order to enable the Committee to take a considered view on the matter at a subsequent session taking into account the opinion expressed by representatives that the acceptance by a Contracting State of refugee status as determined by other States parties to these instruments would be generally desirable;

(g) Requested the Office to consider the possibility of issuing - for the guidance of Governments - a handbook relating to procedures and criteria for determining refugee status and circulating - with due regard to the confidential nature of individual requests and the particular situation involved significant decisions on the determination of refugee status.

1 Conclusions on the International Protection of Refugees adopted by the Executive Committee of the UNHCR programme, Geneva, 1980. Conclusion no. 2(c) (XXVII) (No. 2) (1974).

2 Document EC/SCP/5 of 24 August 1977.

3 Ibid, paragraph 4, paragraphs 6-10 and paragraphs 11-16.

4 Ibid, paragraphs 6-10 and paragraph 17.

5 Conclusion No. 11 (h)

6 Conclusion No. 14 (f)

7 Conclusion No. 16 (h)

8 Conclusion No. 21 (d)

9 See, for example, document A/36/12/Add. 1, paragraph 9.

10 EC/SCP/5, paragraph 14.

11 Ibid, paragraph 12.

12 The designation of such a clearly identified authority - wherever possible a single central authority - was recommended by the Executive Committee in its 1977 conclusions. See annex I, Rec. (iii).

13 Conclusion No. 8(e)(vi).

14 See Doc. A/AC.96/INF.152/Rev.3.

15 Conclusion No. 8 (d).

16 The Statute of the Office of the United Nations High Commissioner for Refugees, paragraph 8(a), gives UNHCR the duty of supervising the application of international conventions for the protection of refugees. The States parties to the UN Convention of 1951 and, the Protocol of 1967 have undertaken, in Articles 35 and II respectively, to facilitate this duty.

17 Conclusion No. 8 (e)(i).

18 Conclusion endorsed by the Executive Committee of the High Commissioner's programme upon the recommendation of the Sub-Committee of the Whole on International Protection of Refugees.