Transcript Document

Best Practices for Refugee Status
Determination: A UNHCR Global
Perspective
By Richard Towle & Richard Stainsby
Monash University, Prato Centre, Italy
29-30 May 2008
Outline of Presentation
• Accuracy, quality and consistency in global refugee
status determination
• Statistics and trends in global RSD
• Disparities in recognition rates
• Variables causing disparities in the recognition rates
• Consequences of disparities and inconsistent
approaches
• Improving consistency at global, regional and national
levels
Statistics and trends in global RSD
• ‘Lies, damned lies and statistics’ [Disraeli]
Global trends (c’td)
• Of the world’s 10 million + refugees/asylumseekers, only 600,000 are subject to individual
RSD (c. 6%)
• Between 2001-2007, the number of asylum
claimants in 50 industrialized states dropped by
more than 50%, despite a 10% increase in 2007
(largely Iraqis) with fall of 70% + in AUL/NZ
• At same time, UNHCR’s caseload increased by
more than 24% (to 13% of global RSD).
Global asylum-seekers in 2006:
….of 596,000 persons….
Oceania: 7,100
(1%)
UNHCR: 91,500
(13%)
Asia: 53,500
(8%)
Europe: 299,000
(44%)
Americas: 78,000
(11%)
Africa: 159,000
(23%)
Convention Signatories
Who is doing RSD and where ?
 147 State parties to the Refugee Convention
• 99 with established national RSD procedures
(where UNHCR has advisory/supervisory role)
• 16 where UNHCR and governments jointly
(mostly Africa)
 UNHCR doing RSD in 71 states of which:
• 40 are states party to the Convention (where
there no, or inadequate, national procedures);
• 31 are not party to the Convention.
Asylum Trends
Origin of asylum seekers in 2007
Arriving in Europe
Arriving in Canada and the USA
1
Iraq
43,967
1
China
9,925
2
Russia
17,773
2
Mexico
9,529
3
Serbia
14,927
3
Haiti
5,932
4
Pakistan
13,314
4
Colombia
3,776
5
Somalia
11,035
5
El Salvador
3,439
6
Afghanistan
8,902
6
Guatemala
2,397
7
Iran
7,973
7
USA
1,824
8
Turkey
6,491
8
Ethiopia
1,320
9
Eritrea
6,424
9
India
1,266
10
Sri Lanka
5,960
10 Honduras
1,174
11
China
5,933
11 Indonesia
1,079
12
Nigeria
5,605
12 Iraq
1,027
Selective destinations in 2007
 15 asylum states account for 52 % + of global RSD
for individual cases
Certain nationalities tend to cluster in a limited
number of asylum countries:
• Chinese applicants: 50% in USA
• Pakistan applicants: 64 % in Greece
• Russian applicants: 35% Poland, 17% France
• Iraqi applicants:
70% total in Sweden (41%),
Greece (12%), Germany (9%), Turkey (8%)
• Mexican applicants: 74% Canada, 24% USA.
Disparities in recognition rates
• Variables in statistics
– different caseload profiles
– size of caseloads
– different criteria for collection, presentation and
analysis of data
– refugee status vs other ‘protected’ status
– data on 1st and 2nd instance and appeal/review
• Nonetheless, even allowing for inaccuracies
in data, some striking disparities emerge.
Disparities (c’td)
• ‘Asylum in the European Union: A study of the
Implementation of the Qualification Directive’ (Nov.
2007) found:
Iraqi applicants:
• Germany; 16.3 % refugees, 1.1% subsidiary protection
• Sweden; 1.7 % refugees, 73.2% subsidiary protection
• Greece and Slovakia. 0 % refugees, 0% subsidiary protection
• In 2007, Greece received 25,113 new asylum claims of
whom:
• 8 were granted refugee status at 1st instance (0.04%)
• 138 on appeal (giving combined recognition rate of 2.05%)
• Despite the common Qualification Directive, recognition
rates remain disturbingly low when compared with other
EU Member States with similar numbers of asylum
applicants
Comparative recognition rates for Somali
asylum-seekers
100.0%
RR Somali's
Recognition Rates Somali's
Total (Incl. TP)
90.0%
80.0%
70.0%
60.0%
% 50.0%
40.0%
30.0%
20.0%
10.0%
Country
Sp
ain
ee
ce
Gr
nd
s
erl
a
Ne
th
Sw
ed
en
m
Be
lgiu
an
y
Ge
rm
ritt
ain
ea
tB
Gr
Fra
nc
e
US
A
UN
HC
R
Ca
na
da
0.0%
Au
str
alia
•
Causes of disparities in recognition
Problems in domestic legal framework:
 Inconsistent balance between use of
Convention and other forms of ‘protected
status’
 Selective transformation of 1951 Convention
into national law. In particular, incorrect
incorporation of Art 1 and Art. 33 into
legislation
Causes of disparities (c’td)
Broader Political or Policy Factors Affecting RSD
 Historical, cultural, political or other bias for, or
against, certain caseloads or countries leading to
predetermined RSD outcomes
 Perceptions & preferences in asylum country regarding
integration prospects of certain caseloads and/or
potential impact of significant demographic shifts
 Lack of genuine independence of decision-makers
 Overt or inherent deterrence measures in policy and
procedures for RSD
 Extremely low recognition rates can reflect
fundamental reluctance in some countries to assume
responsibility related to individual asylum applications
Causes of disparities in recognition
Divergent interpretation & application of Art 1A(2)
 Persecution by ‘non-state’ actors
 Approach to assessing existence of ‘well founded fear’
• Persons fleeing generalised violence and/or armed
conflict
• Internal flight or protection alternative (IFA)(IPA)
• Evaluation of availability of “State protection”
• Protected characteristics and rights
Causes of disparities in recognition
Interpretation & application of Art 1A(2)
 Interpretation of ‘particular social group’
 Robust or conservative use of exclusion Art. 1F.
Causes of disparities (c’td)
Varying Procedural Approaches
Accelerated procedures that might involve unsafe or generalised
assumptions about safety and/or eligibility and without adequate
procedural safeguards:
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
Some procedures for “manifestly unfounded claims”
Application of IFA as “admissibility” criteria
White lists of safe countries of origin
“No repeat claim” policies
Accuracy of decisions affected by:


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Insufficiently individualized or detailed examination
Reduced rights of appeal/ review
More limited opportunity to seek legal advice & interpreters
Truncated use of COI
Causes of disparities (c’td)
Functional difficulties in RSD
 Legal and skills training
 Access to, and use of, balanced country of origin
information, including adequate resources
 Subjectivity in decision-makers
 Credibility assessments
 Legal or other ‘culture’ of decision-maker and decisionmaking body
 Burn-out, intellectual ‘shortcuts’
 Standardised or template decision-making
(‘boilerplate’ language)
Consequences of inconsistent approaches
 Heightens risk of refoulement
 Creates an asylum ‘lottery’ that will lead to:
 Confusion, uncertainty and unpredictability;
 Overload review and/or appellate bodies and adds to cost and
delay in implementing ‘downstream’ measures after RSD (e.g.
removal of rejected cases or acquired rights for refugees);
 Erosion of public and political support for institution of asylum;
 Erosion of confidence among asylum-seekers and resort to other
creative ways to enter/remain, including fraud and abuse of
process;
 Increase scope for politicisation and distortion of a humanitarian
process;
 Forum-shopping & onward secondary movement to places offering
more favourable outcomes.
Improved Quality & Consistency
At the national level:
 Independent specialized first instance body
 Incorporation of 1951 Convention & appropriate
procedural safeguards of fairness & due process
 Consistency & quality at ‘front end’ of national RSD
 Qualified adjudicators, capacity-building, training &
professional development, legal advice
 Resources (admin support & COI research)
 Appropriate case management
 Guidelines - procedural & substantive (jurisprudential)
 Role of appellate bodies – effective arms length review
Improved quality & consistency
At the regional level
 Searching for common state interests to engage RSD
 Linking RSD to other regional issues (10-Point Plan on
asylum-migration), integration of RSD into broader
migration management and reconciling with border
security and counter-smuggling imperatives
 Learning from the EU experience
 Positive aspects of harmonisation and Directives
 Negative aspects (lowest common denomination), noncompliance and enforcement.
 The Indochinese CPA and other regional arrangements
 Challenges to establishing regional arrangements
Global Initiatives to Improve quality &
consistency
 Need to demonstrate that asylum & common
RSD are in states’ interests - not part of the
problem:
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Depoliticize tensions between states;
Required as legal and humanitarian imperatives and will elevate
the state’s standing as a global citizen;
Provide credible and predictable mechanism for international
burden-sharing, especially through resettlement, return of
rejected cases;
Provide legal basis for refugees’ right to remain and contribute
to workforce;
Contribute to more structured and predictable management of
migration, national security and international relations (and
other migration streams)
Other Global initiatives
 UNHCR’s supervisory and guiding role and
value of a more vigorous EXCOM process
 ‘Peer-to-peer’ judicial networks (IARLJ etc) for
professional development/training,
jurisprudence
 Complete harmonisation is unrealistic and
probably undesirable