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UNHCR
Briefing On Nationality, Immigration And Asylum Bill, September
2002
UNHCR
welcomes the opportunity presented by new asylum legislation to
give effect to the objects and purposes of the 1951 Convention Relating
to the Status of Refugees. UNHCR is gravely concerned that, to date,
the government has not responded positively to recommendations for
change that would bring the Bill into line with international protection
standards. We are also concerned that the government has proceeded
to introduce several draconian measures through amendments that
dramatically impact upon the principle of non-refoulement, rights
of appeal and other aspects of due process. Our comments will focus
on these main issues of concern. This briefing is not meant to be
exhaustive and readers may also wish to refer to our initial comments
on the Bill and the White Paper. Copies of these are available upon
request.
THE
PRINCIPLE OF NON-REFOULEMENT
Serious
Criminals - New Clause 64
1.
UNHCR is very concerned that Clause 64 suggests an approach to Article
33(2) of the 1951 Convention which is at odds with the Convention’s
objects and purposes. Clause 64 also runs counter to long-standing
understandings developed through State practice over many years,
regarding the interpretation and application of Article 33(2). In
its present form, Clause 64 creates a risk that refugees may be
sent back to face persecution contrary to the 1951 Convention. If
Clause 64 were allowed to stand, as proposed, it would be at variance
with the following precepts: that Article 33(2) should be restrictively
interpreted and applied; the principle that the applicability of
Article 33(2) has to be judged on a case-by-case basis; and the
principle that under Article 33(2), the burden of proof lies principally
on the State.
Article
33(2) should be restrictively interpreted and applied.
2. Article 33(2) is framed as an exception to the principle of non
refoulement – a principle that is the cornerstone of refugee
protection and a norm of customary international law. The interpretation
and application of Article 33(2) should therefore be subordinate
to the 1951 Convention’s overriding object, namely to ensure
that refugees receive protection and are not returned to face persecution.
As with any exception to human rights guarantees, Article 33(2)
must always be interpreted restrictively. Such an approach is particularly
warranted in view of the serious possible consequences for the individual.
Article 33(2) is, therefore, a measure of last resort, to be applied
under extraordinary circumstances.
The
applicability of Article 33(2) has to be judged on a case-by-case
basis.
3. This principle is firmly enshrined in State practice. In UNHCR’s
experience, a case-by-case approach is the best way to ensure that
the various conditions of Article 33(2) are properly established.
These conditions are, in as far as the second alternative of Article
33(2) is concerned: conviction by a final judgement for a particularly
serious crime, and a finding - on reasonable grounds - that the
refugee constitutes a danger to the community of the country. A
criminal conviction for a crime regarded as “particularly
serious” - does not per se suffice for the application of
Article 33(2). A further judgement has to be made that the particular
refugee in question poses a present or future threat to the community
of the country.
4.
A judgement on the potential danger to the community necessarily
requires an examination of the circumstances of the refugee as well
as the particulars of the specific offence. Relevant considerations
include whether the refugee may be regarded as incorrigible in light
of prior convictions for grave offences, and the prospects for the
refugee’s reform, rehabilitation and reintegration into society.
Where the refugee has responded to rehabilitative measures, or where
there are indications that the refugee can be reformed, Article
33(2) should not apply because the potential threat to the community
would have been (or could be) removed. Other relevant considerations
would include the refugee’s behaviour while serving his earlier
sentence, the fact that they are released on parole, and the refugee’s
co-operation in reform programs.
5.
The particulars of the offence are crucial pointers as to whether
the convicted refugee poses or is likely to pose a danger to the
community. UNHCR is very concerned that Clause 64 introduces an
irrebuttable presumption that an offence is deemed “particularly
serious” exclusively on the basis of a custodial sentence
of two years or more. This is not appropriate inasmuch as it completely
excludes from judicial consideration the overall context of the
offence, including its nature, effects and surrounding circumstances,
the offender’s motives and state of mind, and the existence
of extenuating (or aggravating circumstances). In UNHCR’s
view, it is imperative that contextual factors such as these should
be considered carefully if Article 33(2) is to be properly applied.
6.
With respect to proportionality, UNHCR is furthermore of the position
that, in each case, a rational connection between the removal of
a refugee and the elimination of the danger needs to be established,
that refoulement constitutes the last possible resort to eliminate
the danger and that the danger to the country of refuge outweighs
the risk to the refugee upon refoulement. In order for Article 33(2)
to be applied consistently with the core objects of the 1951 Convention
regime, all these elements need to be carefully assessed on a case-by-case
basis. In UNHCR’s view, this cannot be achieved by the legislative
presumption proposed by Clause 64.
Under Article 33(2), the burden of proof lies principally
on the State.
6. This follows from the general principle of law that the burden
of proving a particular fact falls upon the party asserting it.
The critical question is whether a refugee convicted of a particularly
serious crime poses such a clear and grave danger to the community
that the country of asylum is left with no choice but to return
him or her to face persecution. It is appropriate that the country
of asylum should bear the onus of establishing the relevant facts,
particularly because by applying Article 33(2), the State will be
pursuing an exception to a primary obligation under an international
human rights treaty.
7.
The presumption proposed by Clause 64 shifts the burden of proof
from the State to the refugee, as the latter is required to show
that that he or she is not a danger to the community. This is an
excessively onerous – if not impossible – burden for
a refugee to carry. It effectively requires the refugee to prove
a negative, and to do so against a Secretary of State who has already
communicated his decision to remove. Given that in any such proceedings,
the refugee will almost certainly be at a severe disadvantage, questions
should be raised as to whether requirements of due justice are fully
respected. Such questions would be especially pertinent where, as
a result of the new proposals for costs sanctions (see paragraphs
12 and 13 below), quality legal advice is not readily available
to the refugee. The result might well be that the refugee may be
removed to face persecution even where he or she does not represent
a danger to the community, thus contravening the letter and the
spirit of the 1951 Convention.
Article
33 (2) does not apply to persons detained for mental health reasons/
persons who have not been convicted for a particularly serious crime.
8. UNHCR is very concerned by the provisions in subsection 9(b)(ii)
of the Bill, which extend the reference to "a period of imprisonment
of at least two years" to individuals sentenced to detention
or ordered to be detained in institutions other than a prison, including
a hospital. The broad nature of this provision would cover those
individuals detained under the Mental Health Act 1983 and who have
been neither convicted of a particularly serious crime nor even
been tried in relation to a charge of such a crime. In addition,
and more disturbingly, it would apply to individuals who are placed
in such institutions because of the potential harm they might inflict
on themselves and who do not pose, nor have ever posed, a risk to
society. It is quite possible that survivors of torture who are
suffering from trauma could fall into such groups.
THE
ASYLUM PROCEDURE: APPEAL RIGHTS AND DUE PROCESS
9.
UNHCR welcomes measures designed to improve the appellate system
(and to tackle human trafficking and smuggling). However, we are
concerned that Clause 85 undermine the necessary primacy of international
protection for refugees and [that they could also undermine] existing
procedural safeguards. We are once again urging the government to
proceed with the utmost caution on this issue and to consider fully
any representations made in the consultation process. In particular,
we would stress that these proposals, which envisage fundamental
changes to the asylum procedure, ought to attract much longer periods
of consultation.
Appeal
rights in clearly unfounded cases
10. UNHCR recognises that States may have recourse to accelerated
procedures in determining asylum applications. However, equal emphasis
ought to be placed on maintaining a high quality determination process,
as well as on speeding up the time taken to decide claims. In particular,
accelerated procedures ought to be accompanied by the appropriate
safeguards. UNHCR is concerned that the new Clause 85 could have
a significantly adverse impact on the quality of the appeals process
in refugee status determination. We note that, owing to time constraints,
these provisions were not debated during the course of the Bill's
passage through the House of Commons. It is, therefore, of the utmost
importance that the new Clause 85 should receive adequate scrutiny
in the House of Lords.
11.
Appeals in manifestly unfounded cases should have suspensive effect.
The more accelerated a procedure is, the higher the risk that an
erroneous decision will be taken, the consequences of which could
include a return to the country of persecution for the applicant.
Such decisions should, therefore, always be accompanied by the appropriate
procedural guarantees, including a possibility of appeal within
the UK. It is instructive to note that Home Office statistics suggest
that approximately 40% of such certificates are currently overturned
on appeal. In particular, UNHCR would recall its Executive Committee,
of which the UK is a member, stated in 1983 that:
"[A]n
unsuccessful applicant should be enabled to have a negative decision
reviewed before rejection at the frontier or forcible removal
from the territory. Where arrangements for such a review do not
exist, governments should give favourable consideration to their
establishment." [UNHCR Executive Committee Conclusion No.
30 (XXXIV), "The Problem of Manifestly Unfounded or Abusive
Applications for Refugee Status or Asylum", 1983, paragraph
(e)(iii).]
It
is difficult to envisage how it would be possible to properly launch
an appeal against a refusal of an asylum claim from outside the
UK, especially if the failed applicant were returned to his or her
country of origin. Access to legal advice would be more problematic
since it would be necessary to find a legal representative with
experience of UK asylum law and practice. UNHCR is, therefore, of
the opinion that safeguards in the clearly unfounded category of
cases must include an appeal within the territory of the UK, and
should not be made subject to exceptions in view of the potentially
grave consequences for the applicant.
12.
It is unclear from the Bill's passage in the House of Commons exactly
which country would be responsible for taking back asylum-seekers
whose claims were certified as being clearly unfounded. The text
of the new Clause 85 states that "it is proposed to remove
the person to a country of which he is not a national or citizen".
UNHCR is unclear how such an arrangement would work in practice
and whether applicants could be sent to countries with which they
have no former connection. However, when questioned on the matter
during the Second Reading of the Bill in the House of Commons, Minister
Beverly Hughes stated that "In relation to clearly unfounded
cases […] return would be to a person's own country, or country
of origin. In third country cases, removal, by definition, would
not be to that person's own country but to a third country"
(Hansard, 11 June 2002, Column 820). UNHCR is concerned that a right
of appeal from someone's country of origin would be no more than
illusory, owing to the difficulties inherent in alleging persecution
whilst still in one's country of origin. A more fundamental problem
is that in order to satisfy the Refugee Convention definition of
a refugee it is necessary to be outside one's country of nationality,
or in the case of stateless persons, one's country of former habitual
residence. It is difficult to see how this condition could be satisfied
once an asylum-seeker had been returned to the country from which
they had originated. In effect, this could amount to a determination
of an individual's claim without any substantive examination or
rights of appeal. UNHCR would be very concerned about such a shift
in policy and practice.
13.
In addition, UNHCR would be concerned if the legislation permitting
removal were not amended to include a country of former habitual
residence, so as not to exclude stateless persons. If this were
not the case, it would be possible to send a stateless person whose
claim was certified as clearly unfounded to a country with which
he or she had no former connection.
Human
rights in the country of destination for cases certified as clearly
unfounded
14. Clause 85(3)(b) states that one element of certification of
clearly unfounded claims would be to the effect that the applicant's
human rights would not be at risk in his or her country of origin.
UNHCR would like clarification as to how such an opinion would be
reached. The standard of proof necessary for such an assumption
to arise is not clear from the text of the proposed amendment. Also,
UNHCR would call attention to the need for all such material to
be freely available and accessible.
Judicial
review of the decision to certify as clearly unfounded
15. Secretary of State Mr Blunkett indicated during the Report Stage
of the Bill that it would still be open for individuals whose claims
had been certified to judicially review that decision (Hansard,
11 June Column 798). UNHCR is not sure how this would match with
his decision to replace judicial review with statutory review in
cases where the Immigration Appeal Tribunal refused leave to hear
an appeal from an adjudicator's determination.
16.
UNHCR welcomes measures designed to shorten the length of the asylum
determination process, but is concerned at the prospect of restricting
appeal rights by making it impossible to appeal or judicially review
decisions of the High Court in proposed statutory review cases.
Many important issues relating to the interpretation of the 1951
Refugee Convention have been decided through judicial review in
the Court of Appeal and the House of Lords, such as returns of asylum-seekers
to safe third countries they have passed through and the interpretation
of the Convention ground of a particular social group. To limit
appeals in the judicial review process in this way would be to remove
the highest level of judicial scrutiny from vital questions of interpretation
in the area of refugee protection (asylum law). Questions of interpretation
are complicated matters which often require the attention of the
highest judicial offices in the country. The United Kingdom can
rightly be proud of the standards it sets in its legal processes
for interpreting and applying the Refugee Convention. These ought
to be maintained so that the United Kingdom remains a standard-setter
in refugee law and policy throughout the world. We would urge the
government to reconsider this proposal.
17.
UNHCR regrets that the proposal seeks to limit the statutory review
to review on the papers without an oral hearing. UNHCR is of the
opinion that oral hearings serve an important purpose. They often
facilitate full argument on points raised on appeal and provide
an opportunity to listen to expert argument on difficult points
of law. In UNHCR’s view the current procedure of oral hearings
in substantive judicial review cases constitutes a best practice
which should be maintained in the interests of high standards of
refugee protection.
18.
UNHCR welcomes the move to speed up the appeal process and limit
the amount of time that asylum-seekers spend in uncertainty. With
regard to the ten-day appeal timetable, UNHCR would, however, urge
that provision be made for exceptions in cases where the applicant
can demonstrate reasons for not being able to comply with it. This
is particularly important in view of the fact that there is no requirement
for legal advice to be provided in accommodation centres under the
Bill. Equally, legal advice can be difficult to obtain for asylum-seekers
who have been dispersed outside London. Given the current policy
of dispersal, these individuals would also be placed at a disadvantage
if the requirement relating to time limits were enforced in all
cases without exception and flexibility.
Costs
Sanctions
19. UNHCR is concerned about the proposals to introduce a "duty
to certify" on the Immigration Appellate Authority (IAA) and
the High Court Judge hearing a statutory review, in cases where
the IAA or the Judge are of the opinion that the applications before
them are meritless. First, this could produce a potential conflict
with the Legal Services Commission's Funding Code Criteria. Section
13 of that Code already requires the Commission to undertake an
assessment of the merits of an application when deciding whether
to grant public funding to an immigration case. There would seem
to be an obvious conflict if the IAA or a High Court Judge certified
a case as being meritless where that case had already received public
funding following a merits-based assessment by the Commission.
20.
Secondly, this could have a knock-on effect in terms of access to
quality legal advice for asylum-seekers. Cases classed as borderline
by the Commission, because difficult disputes of fact, law or expert
evidence do not make it possible to rate the prospects of success
as higher than 50%, might not be taken on by legal representatives
because of the risk of them being subsequently certified and no
payment being made for work already carried out. Many asylum-seekers
find themselves in the archetypal "borderline situation"
because of the circumstances in which they are forced to leave their
countries of origin. Paragraphs 195 to 205 of the UNHCR Handbook
on Procedures and Criteria for Determining Refugee Status stress
this point, noting that "the requirement of evidence should
[…] not be too strictly applied in view of the difficulty
of proof inherent in the special situation in which an applicant
for refugee status finds himself" (paragraph 197). In addition,
"[…] it is hardly possible for a refugee to 'prove' every
part of his case and, indeed, if this were a requirement the majority
of refugees would not be recognised" (paragraph 203). The potential
difficulty of access to legal representation could seriously undermine
the ability of asylum-seekers to challenge the refusal of the IAT
to hear an appeal against the refusal of their asylum application
and thus to obtain a proper review of their claims. In effect, this
amounts to a restriction on asylum-seekers' rights of appeal through
no fault of their own. We strongly urge the Government to reconsider
the implementation of costs sanctions.
FREEDOM
FROM DEPRIVATION OF LIBERTY
Routine
bail hearings
21. The detention of asylum-seekers is in the view of UNHCR, inherently
undesirable [UNHCR Guidelines on applicable Criteria and Standards
relating to the Detention of Asylum-Seekers, 1999]. UNHCR's Executive
Committee has stated in its Conclusion No. 44 that detention measures
taken in respect of asylum seekers should be subject to judicial
or administrative review [UNHCR Executive Committee Conclusion No.
44 (1986) "Detention of Refugees and Asylum Seekers"].
22.
UNHCR is very concerned to note the repeal of sections 44-52 of
Part III of the Immigration and Asylum Act 1999. The provisions
for routine bail hearings are regarded by UNHCR as essential to
the safeguarding against arbitrary detention. UNHCR recommends that
clause 60 (6)(a) be deleted and attention instead be focused on
the implementation of Part III of the 1999 Act.
THE
RIGHTS OF THE CHILD
The
UK Reservation to the Convention on the Rights of the Child
23. UNHCR reiterates its concern that the UK continues to maintain
a reservation to the 1989 Convention on the Rights of the Child
as regards children who are non-nationals. We are of the opinion
that such differential treatment could act to the detriment of asylum
seeking children in comparison to children who are UK nationals.
Education
of asylum seeker children
24. UNHCR urges that clause 34 be amended so that the notions of
equal opportunity and the full development of a child's potential,
as stipulated in Articles 28 and 29 of the CRC can be fully exercised.
Education of asylum seeker children is vital. It should be of the
highest possible standard, taking into account the best interests
and special needs of the individual child. It is important that
education is relevant to the particular needs and situation of these
children. It should initially be in the children's own language,
reflect their own culture, while facilitating understanding of the
UK, and providing for the learning of English. This will in turn
enhance the child's ability to integrate into the UK [Refugee Children:
Guidelines on Protection and Care, UNHCR Geneva 1994, chapter 9].
25.
The proposal in the Bill to educate children in accommodation centres
rather than local schools suggests a discriminatory approach to
the right of all children to be educated. Being educated in a centre
may not be in the best interest of all children and UNHCR is concerned
that these interests should always remain paramount.
FINDING LONG-TERM SOLUTIONS FOR REFUGEES
A
Formalised Resettlement Programme
26.
UNHCR welcomes the government's proposal to introduce a formalised
resettlement programme in the UK. Resettlement is a protection tool
and a durable solution for the most vulnerable of refugees around
the world. It is of concern to UNHCR that the wording of the Bill
does not mirror this approach to resettlement, instead referring
to the "settlement of migrants,” who are in turn defined
as a "person who leaves the country where he lives hoping to
settle in another country." UNHCR recommends that the clause
be redrafted to reflect the true nature of a resettlement programme,
re-situating it in the context of international protection, expressly
acknowledging its function in the protection of refugees rather
than migrants. Furthermore, considering the key role played by resettlement
in enabling vulnerable refugees to reach places of safety without
having to rely on illegal and precarious measures, UNHCR recommends
that the UK allocate a generous quota for resettlement purposes.
27.
This briefing does not address our concerns with regard to the following
issues: Authority to Carry and carrier sanctions, conditions in
Accommodation Centres, provisions relating to nationality and support
for asylum seekers. UNHCR recommendations in respect of these issues
are set out in our initial comments on the Bill and the White Paper.
UNHCR
London
18 September 2002
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