|
A United Nations High Commissioner for Refugees (UNHCR)
Submission to:
The Conservative Party National and International Security Policy Group
March 2007
“At a time of rising intolerance, fuelled by security concerns and confusion in public opinion between migrants and refugees, we are bound first to preserve asylum and rebuild trust in asylum systems. I want to call on humanitarian and rights-minded politicians and concerned members of the civil society and media; we need to work together and UNHCR is willing to cooperate with all.”
Antonio Guterres, United Nations High Commissioner for Refugees.
1. Executive Summary
1.1. UNHCR welcomes this opportunity to input into the future direction of the Conservative Party’s policies on national and international security.
1.2. UNHCR recommends that the Conservative Party should pay special attention to the following areas in relation to refugees and asylum seekers:
1.2.1. UK Security and Immigration – Over recent years, there has been a huge investment in measures to strengthen the UK’s borders. These measures are portrayed as essential for ‘migration management’ and the prevention of migrants entering the UK outside the legal routes. UK immigration controls provide very limited legal channels for a refugee to enter in order to apply for recognition of their refugee status. As a result, most refugees seeking to enter the UK are forced to do so ‘illegally’. UNHCR recognises the legitimate interests of States to safeguard their national security, however, UNHCR also emphasises the importance of States maintaining their adherence to essential refugee protection principles.
1.2.2. Detention – Under the Immigration Act 1971, asylum seekers may be held in immigration detention centres or even prisons while the Home Office considers their claim. The detention of asylum-seekers is, in the view of UNHCR inherently undesirable. This is even more so in the case of vulnerable groups such as single women, children, unaccompanied minors and those with special medical or psychological needs. Freedom from arbitrary detention is a fundamental human right and the use of detention is, in many instances, contrary to the norms and principles of international law.
1.2.3. Quality Initiative Projecy – The UN Refugee Agency’s Quality Initiative Project, which has been underway since 2004, aims to raise the quality of the refugee determination process in the UK through systematic monitoring and through the provision of advice on procedure and the application of the refugee criteria. This project is part of an ongoing effort to ensure that the right decision is made first time. Not only will this mean that the asylum procedure will be more efficient and less of a burden to the UK taxpayer, but asylum seekers themselves will be spared the time consuming and expensive ordeal of appealing decisions which were incorrect at the first instance.
1.2.4. Resettlement- Resettlement, together with local integration and voluntary repatriation, is one of the three long-term, or durable solutions UNHCR works to achieve on behalf of refugees. When refugees are particularly vulnerable in the country in which they have found asylum, and they cannot return to their country of origin, UNHCR attempts to resettle them in a safe third country. The UK Gateway Protection programme, a project which sees UNHCR work in close partnership with the Home Office, aims to resettle 500 particularly vulnerable refugees a year. UNHCR believes that civil society groups, and particularly Conservative Party Clubs, should actively promote this vital refugee protection scheme.
1.2.5. Integration - The 1999 Immigration and Asylum Act introduced the policy of dispersal. New asylum seekers requesting full support are dispersed to local authorities around the country. There are certain criteria which must be fulfilled for a humane and effective dispersal system to work. Communities that are receiving asylum-seekers must be well briefed and prepared with local structures in place to meet the needs of those arriving. Asylum seekers should also be fully informed of conditions at their destinations so that integration is maximised as quickly as possible.
1.2.6. The Asylum-Migration Nexus – The issues of asylum and refugee protection have become inextricably linked with the question of international migration often referred to collectively as ‘mixed migration’. This has led to states strengthening measures to deter the arrival of irregular people making it increasingly difficult for people to ‘seek and enjoy asylum in another state’, a right guaranteed by the Universal Declaration of Human Rights.
1.2.7. Trafficking in Persons – States have a responsibility to combat trafficking and to protect and assist victims of trafficking. UNHCR has a responsibility to ensure that refugees, asylum-seekers, internally displaced persons (IDPs), stateless persons and other persons of concern do not fall victim to trafficking. The Office also has a responsibility to ensure that individuals who have been trafficked and who fear being subjected to persecution upon a return to their country of origin, or individuals whose claim to international protection falls within the refugee definition are recognized as refugees and afforded international protection.
1.2.8. Internally Displaced Persons (IDPs) - In recent years the international community has begun to debate major IDP issues more vigorously. In 2005 a more coordinated approach was agreed to tackle the problem of IDPs which gave UNHCR the lead role in overseeing the protection and shelter needs of IDPs and to coordinate and manage any camps which are established in areas where UNHCR has pre-existing operations or expertise. Given the increase in the number of people for whom the agency provides support, UNHCR remains concerned about ensuring reliable funding for both IDPs and refugees.
1. Introduction
1.1. UNHCR’s mandate is to lead and co-ordinate international action to protect refugees and resolve refugee problems worldwide with a primary purpose to safeguard the rights and well-being of refugees and other persons of concern.
1.2. UNHCR strives to ensure that everyone can exercise the right to seek asylum and find safe refuge in another State, with the option to return home voluntarily, integrate locally or to resettle in a third country.
1.3. This responsibility includes the function of supervising, in co-operation with States, the application of the 1951 Refugee Convention.
1.4. UNHCR is currently helping 21 million persons who are refugees, asylum seekers, returned refugees or internally displaced or stateless people.
1.5. In the UK, asylum applications are the lowest they have been for 13 years. This is due to Europe’s borders not being the scene of serious conflicts, persecution and violence and also tightened border controls and restrictive immigration laws.
1.6. There is still much the UK government and its EU partners, in cooperation with UNHCR, must do to protect refugees and asylum seekers and help to resolve the problems they face.
1.7. Financial assistance for programmes which protect and adequately provide for refugees in countries of first asylum is a vital contribution made by the UK in demonstrating responsibility-sharing with the developing countries that shelter most of the world’s refugees. Aid for areas of origin is also vital so that refugees can return home in safety and dignity.
1.8. Despite these invaluable programmes around the world, there is no substitute for a comprehensive asylum system which is protection-oriented and effective to meet the need of refugees who spontaneously arrive in the United Kingdom and elsewhere in the EU.
2. UK Security & Immigration
2.1. Over recent years, there has been a huge investment in measures to strengthen the UK’s borders. These measures are portrayed as essential for ‘migration management’ and the prevention of migrants entering the UK outside the legal routes.
2.2. UK immigration controls, much like many other states particularly in Europe, provide very limited legal channels for a refugee to enter in order to apply for recognition of their refugee status. As a result, most refugees seeking to enter the UK are forced to do so ‘illegally’, either using forged travel documents, or avoiding immigration controls altogether.
2.3. Refugees often have to rely on forged documents in order to flee persecution and seek asylum elsewhere, and the 1951 Refugee Convention explicitly prohibits states from penalizing them for doing so.
2.4. In recent years the UK has transferred areas of immigration control to private companies. Airlines and other carriers are required to pay a fine for every improperly documented traveller they bring to the UK. Those companies try to avoid fines by refusing to let passengers board unless they are convinced that their documentation is valid. In doing so UNHCR fears these private companies, may be undermining the fundamental right to asylum and forcing refugees to remain in countries where their lives are at risk.
2.5. Distinguishing between those fleeing persecution and irregular migrants seeking to enter the UK for other purposes remains a concern. Immigration controls should not prevent refugees fleeing persecution from reaching sanctuary in the UK.
2.6. Visas are a legitimate tool for controlling immigration, but in practice, it is uncommon for a refugee to obtain a visa for the purposes of seeking asylum in the UK. It is at the discretion of a Minister as to whether an individual can obtain a visa for this purpose.
2.7. UNHCR recognises the legitimate interests of States to safeguard their national security and endorses efforts directed at eliminating and effectively combating international terrorism. UNHCR also shares the concern of States to ensure that there should be no avenue for those committing or aiding the commission of terrorist acts to secure access to their territory.
2.8. Alongside these concerns, UNHCR emphasises the importance of States maintaining their adherence to essential refugee protection principles, with the understanding that a faithful application of the 1951 Refugee Convention will not extend protection to those who are undeserving.
2.9. It should be emphasised that the 1951 Refugee Convention provides the appropriate tools to ensure that refuge is not provided to terrorists. Article 1F (c) is the third of three subsections under Article 1F of the 1951 Refugee Convention known as the exclusion clauses, which seek to deprive those guilty of heinous acts and serious common crimes of international protection as refugees.
2.10. States are encouraged to use the clauses rigorously, albeit appropriately, in a manner consistent with international standards.
2.11. UNHCR believes that the current statutory definition of terrorism, as outlined in the Terrorism Act 2000 and Terrorism Act 2006, could lead to a denial of protection for some refugees who fulfil the 1951 Refugee Convention definition of a refugee.
3. Detention
3.1. Under the Immigration Act 1971, asylum seekers may be held in immigration detention centres or even prisons while the Home Office considers their claim.
3.2. At the end of December 2005, 1450 asylum seekers were being held in detention, constituting 74 percent of all Immigration Act detainees. 30 children under the age of eighteen were in detention.
3.3. There is no time limit on their period of detention and they do not usually receive written reasons for their detention. An automatic right to bail was provided for in the 1999 Act but abolished under the 2002 Nationality, Immigration and Asylum Act.
3.4. Detention is a real cause for concern, both in relation to the fundamental right to liberty and the standards and quality of treatment to which detained asylum seekers are subjected.
3.5. According to Article 14 of the Universal Declaration of Human Rights, the right to seek and enjoy asylum is recognised as a basic human right. In exercising this right asylum-seekers are often forced to arrive at, or enter, a territory illegally. Article 31 of the UN Refugee Convention also states that countries should not impose penalties on refugees who enter illegally providing they present themselves without delay to the authorities.
3.6. The detention of asylum-seekers is, in the view of UNHCR inherently undesirable. This is even more so in the case of vulnerable groups such as single women, children, unaccompanied minors and those with special medical or psychological needs. Freedom from arbitrary detention is a fundamental human right and the use of detention is, in many instances, contrary to the norms and principles of international law.
3.7. UNHCR holds that there should be a presumption against detention. Where there are monitoring mechanisms which can be employed as viable alternatives to detention, (such as electronic monitoring, reporting obligations or guarantor requirements), these should be applied first.
3.8. If detained, asylum-seekers should be entitled to the following minimum procedural guarantees:
3.8.1. To receive prompt and full communication of any order of detention, together with the reasons for the order, and their rights in connection with the order, in a language and in terms which they understand;
3.8.2. To be informed of the right to legal counsel. Where possible, they should receive free legal assistance;
3.8.3. To have the decision subjected to an automatic review before a judicial or administrative body independent of the detaining authorities. This should be followed by regular periodic reviews of the necessity for the continuation of detention, which the asylum-seeker or his representative would have the right to attend;
3.8.4. Either personally or through a legal representative, to challenge the necessity of the deprivation of liberty at the review hearing, and to rebut any findings made. Such a right should extend to all aspects of the case and not simply the executive discretion to detain;
3.8.5. To contact and be contacted by the local UNHCR Office, available national refugee bodies or other agencies and an advocate. The right to communicate with these representatives in private, and the means to make such contact should be made available.
3.9. Detention should not constitute an obstacle to an asylum-seekers’ possibilities to pursue their asylum application. Objective 2 of the Immigration and Nationality Department’s review highlight’s the government intention to increase the use of fast-track processes for asylum decision-making. Detention of asylum-seekers may exceptionally be resorted to for the following reasons:
- To verify identity.
- To determine the elements on which the claim for refugee status or asylum is based.
- In cases where asylum-seekers have destroyed their travel and /or identity documents or have used fraudulent documents in order to mislead the authorities of the State, in which they intend to claim asylum.
- To protect national security and public order.
3.10. UNHCR holds that minors who are asylum-seekers should not be detained.
3.11. Given the very negative effects of detention on the psychological well being of those detained, UNHCR believes that active consideration of possible alternatives should precede any order to detain asylum-seekers falling within the following vulnerable categories:
- Unaccompanied elderly persons.
- Torture or trauma victims.
- Persons with a mental or physical disability.
4. Quality Initiative Project
4.1. In line with UNHCR’s supervisory role (as set out in Article 35 of the 1951 Refugee Convention), UNHCR has offered its expertise to work with the Home Office on improving further the quality of first instance decision-making.
4.2. UNHCR believes that the UK government, taxpayers and refugees have everything to gain from high-quality first instance asylum decisions.
4.3. The UN Refugee Agency’s Quality Initiative Project, which has been underway since 2004, aims to raise the quality of the refugee determination process in the UK through systematic monitoring and through the provision of advice on procedure and the application of the refugee criteria.
4.4. This project is part of an ongoing effort to ensure that the right decision is made first time. Not only will this mean that the asylum procedure will be more efficient and less of a burden to the UK taxpayer, but asylum seekers themselves will be spared the time consuming and expensive ordeal of appealing decisions which were incorrect at the first instance.
4.5. As part of this process, UNHCR samples approximately 2 percent of initial decisions in asylum applications, and in July 2005 started to sample asylum interviews. An assessment of quality is made and feedback is provided to relevant Home Office counterparts in regular meetings.
4.6. During the current phase UNHCR is focussing on asylum decisions taken by the New Asylum Model (NAM) – a new regionalised Home Office procedure with a single ‘caseowner’ deciding claims as well as evaluating the impact of the model’s procedural features on the quality of decision-making.
4.7. Since the start of the project UNHCR has delivered four reports to the Minister of State for Immigration, Citizenship and Nationality which have set out observations on the quality of decision making arising from the audit. Recommendations were also made focussing on issues such as training and supervision, the supply and application of country information and the asylum interview. The greater majority of these recommendations have been accepted by the Minister and UNHCR is now working jointly with Home Office colleagues towards their effective and sustainable implementation.
5. Resettlement
5.1. Despite the best efforts of countries of asylum to help people who have fled their country, the trauma and suffering of refugees does not simply disappear. They are rarely able to simply pick up everyday activities in a new setting and live and work as they did before. Sometimes the threats that caused refugees to leave their homes in the first place are present also in the country of refuge.
5.2. When individual refugees are at risk, or when there are other reasons requiring them to leave the region, UNHCR attempts to resettle them in safe third countries. Together with voluntary repatriation and local integration, resettlement is one of the three long-term solutions UNHCR works to achieve on behalf of refugees.
5.3. Through resettlement, refugees and persons of concern gain legal protection, residency and often eventually citizenship from governments who agree to open up their communities to new members. The task of receiving and settling refugees requires that UNHCR works closely with central and local authorities, non-governmental organizations (NGOs) and religious and social welfare groups. It is often through the efforts of NGOs that the public in resettlement countries is made aware of the plight of needy refugees.
5.4. In April 2003, the government created the Gateway Protection Programme (GPP) in close cooperation with UNHCR. The GPP aims to resettle up to 500 particularly vulnerable persons to the UK and will augment the existing Mandate and Ten or More resettlement schemes which have existed in the UK since the early 1970s.
5.5. The Gateway Protection Programme serves to strengthen the UK's commitment to refugee protection and international responsibility sharing. The Programme is a vital channel for refugees to come to the United Kingdom.
5.6. UNHCR strongly commends the UK government’s adherence to the protection principles of the Gateway Protection Programme. The strategic use of the Programme represents a key component of the United Kingdom’s responsibility-sharing of refugees globally.
6. Integration
6.1. The 1999 Immigration and Asylum Act introduced the policy of dispersal. New asylum seekers requesting full support are dispersed to local authorities around the country. The policy was introduced in order to ease the disproportionate burden on support services in London and the South East of England.
6.2. UNHCR stresses that certain criteria must be fulfilled for a humane and effective dispersal system to work. These can be summarised as:
6.2.1. Communities that are to receive relocated asylum seekers must be well briefed in advance. This is essential in order to allay concerns they may have and to ensure there is a welcoming reception for dispersed asylum seekers.
6.2.2. Asylum seekers must be fully informed of conditions at their destination before they are dispersed.
6.2.3. Local structures, both governmental and non-governmental, must be in place to receive asylum seekers and to meet their needs. In particular this must include access to legal advice so that they can benefit from a fair and efficient refugee status determination process.
7. The Asylum-Migration Nexus
7.1. The asylum-migration nexus describes the phenomenon whereby refugees and other migrants move from the poorer and less stable parts of the world, usually by irregular or illegal means, so as to seek asylum and/or take up residence in more prosperous and secure regions.
7.2. Given the lack of legal entry possibilities resulting from tighter migration and security-related controls a growing feature amongst some migrants is to resort to people-smugglers.
7.3. To ensure that refugees and asylum-seekers continue to enjoy the right to seek asylum set out in the 1951 Refugee Convention and its 1967 Protocol, and do not become entangled in the growing web of migratory controls and sanctions to thwart people smuggling, UNHCR has been obliged to focus sharper attention on the relationship between refugee protection, international migration and development.
7.4. The developing countries in which most of the world’s refugees reside are all confronted with serious economic, infrastructural and security problems, and frequently do not provide the conditions in which to provide a high standard of refugee protection. UNHCR considers that industrialized countries, like the UK, should maintain equitable and effective asylum systems, to admit a larger number of refugees by means of resettlement programmes, and to provide tangible support to the notions of burden and responsibility-sharing, as endorsed by UNHCR’s Agenda for Protection, a document which builds upon the 1951 convention ensuring flexibility in approaches to refugee problems.
7.5. It is essential to ensure that the principle of asylum is not undermined by the effort to stem irregular migration. To that end UNHCR makes the following recommendations:
7.5.1. States should establish entry management systems that are able to identify new arrivals with international protection needs and which provide appropriate and differentiated solutions for all the profiles of people involved in mixed movements.
7.5.2. States have an obligation to respect Article 31 of the 1951 Refugee Convention, which states that refugees must not be penalized on account of their illegal entry or presence in a country, ‘provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.’
7.5.3. Police officers, border guards, immigration and asylum officials should be trained to uphold the principles of international refugee law.
7.5.4. States should establish fair, thorough and efficient refugee status determination procedures so that asylum seekers are quickly informed of the outcome of their case. In situations of mass influx, the provision of prima facie refugee status to new arrivals has proven to be a particularly valuable means of safeguarding asylum and refugee protection.
7.5.5. In order to preserve the integrity and credibility of asylum systems, UNHCR believe steps must be taken to ensure the departure of those asylum seekers whose applications for refugee status are rejected after a full and fair examination of their case and who do not require other forms of humanitarian protection.
7.5.6. Industrialized countries, many of which are confronted with the prospect of diminishing and ageing populations and whose economies increasingly rely on illegal and casual migrant labour, should establish regular migration programmes.
7.5.7. Unless they are able to access the labour markets of the North by legal means, migrants from the South will continue to submit invalid claims to refugee status, further undermining public confidence in the whole notion of asylum.
7.5.8. Refugee resettlement programmes, like the UK’s Gateway Protection Programme, should be expanded. Resettlement is one of the key strategic focuses of UNHCR and is one pillar of the Ten Point Plan. This would allow more people who are in need of international protection to move in an orderly manner to, and gain residence rights in, a country which offers them a more promising future.
7.6. As long as the levels of human security differ so greatly from one part of the world to another the onward movement of refugees and asylum seekers will continue to take place.
7.7. UNHCR urges governments to take measures to reduce the North-South economic division and to improve the quality of life of persons in the developing world.
8. Trafficking in Persons
8.1 Trafficking in persons, the primary objective of which is to gain profit through the exploitation of human beings, is prohibited by international law and criminalized in the national legislation of a growing number of States. Although the range of acts falling within the definition of trafficking varies among national jurisdictions, States have a responsibility to combat trafficking and to protect and assist victims of trafficking.
8.2 UNHCR’s involvement with the issue of trafficking is essentially twofold. Firstly, the Office has a responsibility to ensure that refugees, asylum-seekers, internally displaced persons (IDPs), stateless persons and other persons of concern do not fall victim to trafficking. Secondly, the Office has a responsibility to ensure that trafficked individuals who fear being subjected to persecution upon a return to their country of origin, or individuals who fear being trafficked and whose claim to international protection falls within the refugee definition are recognized as refugees and afforded the corresponding international protection.
8.3 Not all victims or potential victims of trafficking fall within the scope of the refugee definition. To be recognized as a refugee, all elements of the refugee definition have to be satisfied.
9. Internally Displaced Persons
9.1. The internally displaced “are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.”
9.2. Currently, there are an estimated 23.7 million IDPs in at least 50 countries living amidst war and persecution. They have little legal or physical protection and a very uncertain future.
9.3. IDPs remain under the ‘protection’ of often antagonistic governments or prey to rebel militias.
9.4. UNHCR’s mandate does not specifically cover IDPs. But internally displaced civilians are often caught up in the same conflicts and face the same problems as refugees. Because of the UN Refugee Agency’s expertise, it has for years helped many of these people in countries such as Sri Lanka, Iraq, Bosnia and Herzegovina, Croatia, Colombia, Angola and Sudan. Currently an estimated 6.6 million IDPs fall under UNHCR’s mandate’.
9.5. In recent years the international community began to debate major IDP issues more vigorously: the question of the sanctity of state sovereignty versus human rights, how better to help these vulnerable people and what organizations should fulfill what roles.
9.6. In 2005, a more coordinated and cohesive approach to tackle the problem was agreed: Under the general umbrella of the office of the UN emergency relief coordinator, the UN Refugee Agency has been given the ‘lead’ role in overseeing the protection and shelter needs of IDPs as well as the coordination and management of any camps which are established. Other UN agencies have adopted similar roles in the areas of water, nutrition, health, logistics and telecommunications.
9.7. By August 2006, this approach was being applied in DR Congo, Uganda, Liberia, Somalia, Lebanon, and Chad.
9.8. Given the likely increase in the number of people for whom the agency will be providing support, one of the remaining concerns for UNHCR is ensuring reliable funding for both IDPs and refugees.
UNHCR, London
March 2007
|
