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:
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:
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:
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