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UNHCR
Comments on amendments to the Nationality, Immigration And Asylum
Bill 2002 relating to appeal rights in clearly unfounded cases (new
clause 14) and carrier sanctions to tackle illegal immigration
UNHCR
welcomes measures aimed both at improving the appellate system and
tackling human trafficking and smuggling. However, we are concerned
that the proposals for such measures in the current Bill undermine
the necessary primacy of international protection for refugees.
The more accelerated the procedure which is used to determine refugee
status, the more important it is to maintain adequate safeguards,
checks and balances as part of the democratic process. Limiting
appeal rights in cases certified as clearly unfounded would amount
to a step in the opposite direction. UNHCR is equally concerned
that sanctions aimed at carriers could have an adverse impact on
rights of access of refugees to status determination procedures.
Appeal
rights in clearly unfounded cases
UNHCR
welcomes measures to improve the appellate system and 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 14 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 14 should receive adequate scrutiny in the House
of Lords.
In-country
appeal rights
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."
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.
Country
of destination
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 14 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.
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
Clause 14(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
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.
Carrier sanctions
A fundamental
principle of the refugee protection regime is that refugees should
be able to enter the territory of a safe state in order to gain
access to international protection. The UNHCR Executive Committee
(EXCOM), of which the UK is a member, in its Conclusion No. 82,
paragraph (d)(ii), emphasises “the need for full respect to
be accorded to the institution of asylum in general,” including
“access, consistent with the 1951 Convention and the 1967
Protocol, of asylum-seekers to fair and effective procedures for
determining status and protection needs.” UNHCR’s principal
concern is that carriers’ sanctions could hinder such access
and therefore conflict with the spirit of the 1951 Refugee Convention.
UNHCR
acknowledges that states have an interest to secure their borders
and take measures to combat human trafficking and smuggling. However,
these measures must incorporate adequate protection safeguards to
ensure that spontaneous arrivals have access to procedures for claiming
international protection.
Main
concerns of UNHCR
1. The effects of the sanctions is contrary to the spirit of the
above mentioned Conclusion in that it prejudices the ability of
asylum-seekers and refugees to benefit from international protection.
2.
UNHCR's principal concern is that there may be persons in need of
international protection whose only viable means of reaching safety
is to resort to the services of smugglers. According to article
14 of the Universal Declaration of Human Rights, “everyone
has the right to seek and to enjoy in other countries asylum from
persecution.” Because carriers’ sanctions have an indiscriminate
effect on persons in need of international protection and may seriously
limit the right to seek and enjoy asylum, they may be incompatible
with the humanitarian tenet on which the international regime for
the protection of refugees is based.
3.
Having ratified the 1951 Convention relating to the Status of Refugees,
the government is under an obligation to ensure refugees a minimum
standard of protection and respect for their rights. As is suggested
by the EXCOM Conclusion No. 6 on Non-Refoulement (1977), this obligation
also covers asylum seekers. The Conclusion requires states to provide
protection "both at the border and within the territory of
a State of persons who may be subject to persecution if returned
to their country of origin irrespective of whether or not they have
been formally recognised as refugees."
4.
UNHCR believes that careful harmonisation of standards of application,
treatment and implementation such as accelerated procedures, rather
than the use of carriers’ sanctions, is a better approach
to addressing unfounded claims.
UNHCR
London
July 2002
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