|
UNHCR
comments on the Home Secretary's announcement on 7 october 2002
regarding further amendments to the Nationality, Immigration and
Asylum Bill 2002
Resettlement
The
functions of resettlement: protection and solutions
1. It is essential to recall the true functions of any resettlement
programme and to stress the need for them to be reflected in any
prospective arrangements for a UK resettlement scheme.
2.
Resettlement serves three important functions. Firstly, it is a
vital instrument of protection. It is geared primarily to the special
needs of refugees under the Office's mandate whose life, liberty,
safety, health or fundamental human rights are at risk in the country
where they sought refuge. Secondly, along with voluntary repatriation
and local integration, it is one way of ensuring long-term solutions
for refugees. Thirdly, it is a mechanism through which States may
share with countries in refugee-producing regions the responsibility
for providing international protection to refugees.
3.
Besides the obvious benefits for refugees, resettlement offers several
complementary benefits for States. Through resettlement schemes,
the pressure placed on countries of first refuge by large numbers
of refugees is alleviated. Also, refugees bring with them important
skills and resources, as well as diversity to the resettlement country.
4.
Resettlement should not be perceived or pursued as a panacea for
irregular international migration. Neither should it be seen as
a substitute for access to asylum procedures for persons who arrive
spontaneously in the UK. UNHCR will continue to support the UK’s
moves toward an effective resettlement programme - one that does
not preclude access to fair procedures for those who arrive spontaneously,
and which complements other strategies to address the complex issues
of irregular migration.
How
does resettlement work?
5. Resettlement is offered by UNHCR to refugees in their first country
of asylum who are at risk there, or for whom no other long-term
solution can be found. UNHCR identifies refugees for resettlement
from existing refugee populations, in accordance with the criteria
set out in the UNHCR Handbook on Resettlement. While UNHCR is closely
consulted in the processing of resettlement cases, the decision
to accept or reject referred cases is ultimately made by the resettlement
State. A State may also decide to accept refugees for resettlement
who have not been referred by UNHCR. Resettlement countries may
set a quota and may also choose to offer resettlement places to
categories of refugees such as women-at-risk, handicapped refugees
and serious medical cases.
6.
Currently, 18 countries offer resettlement places in co-operation
with UNHCR. 10 countries run the largest and longest-standing programmes:
Australia, Canada, Denmark, Finland, the Netherlands, New Zealand,
Norway, Sweden and Switzerland. More recently, Benin, Brazil, Burkina
Faso, Chile, Iceland, Ireland, Spain and Argentina have established
resettlement programmes.
7.
Relative to global protection needs, resettlement currently offers
a long-term solution to only a small number of refugees. In 2001,
of the 12 million refugees around the world, some 33,100 refugees
(0.275%) were resettled from countries of first asylum under UNHCR
auspices. The ten main destination countries accounted for some
98% of all resettlement arrivals of which the three largest destination
countries for resettlement were USA (18,350), Canada (5,140) and
Australia (2,560) .
Existing
resettlement arrangements in the UK
8. The “resettlement” of refugees to the UK is not a
new practice in the sense that there are existing ad hoc arrangements,
namely the Mandate Refugee Scheme and the “Ten or More”
Plan, through which refugees – already identified as such
– may arrive in the UK. The Mandate Refugee Scheme allows
UNHCR to refer for resettlement in the UK refugees who have a close
family tie in the UK. Under the Ten or More Plan (TOM) the UK has
agreed to accept ten or more vulnerable disabled or medically at
risk refugees for resettlement in the UK . The British Red Cross
handles the administration of referrals on behalf of UNHCR. Between
1990 and 1999, 2,620 cases were resettled to the UK under these
schemes .
9.
UNHCR welcomes the government's decision to formalise and expand
its involvement in the resettlement of refugees . We urge the UK
to ensure that the fundamental protection objectives of resettlement
are respected and not obscured by wider migration-related concerns.
It is also important for the UK to draw on the experience of other
resettlement countries, as well as on the experience of UK-based
organisations.
Safe
country of origin list – presumption that claims are unfounded
10.
UNHCR does not accept that a country may be declared 100% safe.
It is impossible to exclude, as a matter of law, the possibility
that an individual could have a well-founded fear of persecution
in any particular country, however great its commitment to human
rights and the rule of law. It bears emphasising that the process
of determining whether a country is ‘safe’ for a particular
asylum seeker is itself the core objective of asylum procedures.
This suggests that safe country lists are at odds with the fundamental
premise of refugee protection that everyone has the right to seek
and to enjoy asylum from persecution. It is a basic requirement
of international refugee protection that asylum seekers are given
access to fair and efficient asylum procedures without discrimination
on the basis of the country of origin. A “safe country”
list must never be used therefore, to bar asylum seekers from entering
the asylum procedure altogether .
11.
UNHCR accepts that a safe country of origin list may be a useful
tool for identifying applications that may be placed in an accelerated
procedure. There are, however, some risks in the use of such procedures,
not least the risk that an overly strict presumption that applications
from “safe countries” are not valid could result in
erroneous decisions to deny refugee claims. In order to avoid such
risks, the use of “safe country” lists should be accompanied
by appropriate procedural guarantees.[EXCOM Conclusion No. 30 (XXXIV)
The Problem of Manifestly Unfounded or Abusive Applications for
Refugee Status or Asylum 1983. See also UNHCR comments on the introduction
of non-suspensive effect of appeals in cases certified as manifestly
unfounded.]
12.
Clearly, a safe country of origin list and a presumption of non-validity
places a heavier burden of proof on an asylum applicant. Asylum
applicants must therefore be given a real opportunity to rebut the
presumption, recognising that a rebuttal will only be truly effective
where an appeal is heard in the UK.[See also the House of Lords
Select Committee on the European Union, 11th Report: Minimum Standards
in Asylum Procedures, 4 April 2001.]
13.
UNHCR further advises that the decision to designate a country as
“safe” should be based on verifiable country assessments
from States or from UNHCR and other competent humanitarian organisations.
The assessments should consider, inter alia, the country’s
record of respect for human rights and the rule of law, ratification
and compliance with international human rights instruments, and
the access given to independent national and international organisations
which may verify and supervise respect for human rights norms in
the country. The country’s record of producing refugees and
other persons with protection needs should also be taken into account.
14.
UNHCR recommends that the addition of any countries to a safe country
of origin list should receive proper parliamentary scrutiny and
approval. Any negative developments in a country of origin should
also be taken into account and it should be possible to remove a
country from that list. This procedure should be flexible and allow
for a rapid removal from the list where there is a suden change
in circumstances in a country.
Exceptional
Leave to Remain
15.
The grant of exceptional leave to remain (ELR) is vital to those
who, despite not coming within the 1951 Refugee Convention’s
strict definition of a refugee, have international protection needs.
UNHCR is concerned that proposals to restrict the grant of ELR may
result in the denial of this complementary form of protection to
persons who need such protection. Such persons include those who
risk being tortured or subjected to cruel, inhuman or degrading
treatment in their countries of origin, as well as those for whom
there are compassionate reasons for remaining in the UK.
16.
It is a matter of accepted international practice that complementary
protection is generally granted to groups of nationals rather than
on an individual (case by case) basis. This makes for efficient
processing and keeps to a minimum the waiting period for providing
complementary protection, particularly where the number of applicants
makes a case-by-case approach impractical and time consuming. Current
UK practice follows this approach where the nationals of particular
countries are granted blanket ELR for a specified duration.
17.
UNHCR recommends that this practice should be maintained, as it
is an important way to efficiently provide complementary forms of
protection for those who need it. The country of origin profiles
of the main beneficiaries illustrates that the present ELR policy
responds to actual protection needs. In 2001, the largest groups
receiving ELR were nationals of Afghanistan, the Czech Republic,
Iraq, Sierra Leone and Somalia – countries with well-known
records of protracted armed conflict, widespread human rights abuses,
weak governmental structures, and the absence of the rule of law.
18.
Such evidence suggests that the UK’s ELR policy has over the
years been invaluable in addressing protection needs and in ensuring
that people are not removed to countries where they their lives
and safety would be at risk. As far as we are aware, there is no
contrary evidence that ELR has been extended to those who do not
merit its protection. We would suggest therefore, that the proper
inference to be drawn from increasing numbers of ELR beneficiaries
is that the UK’s ELR policy enables it to discharge its broad
international obligations to provide complementary protection to
those who need it. UNHCR is in favour of maintaining the policy
in its present form.
Support
for asylum applicants in-country
19. We note that the Home Secretary proposes to end the presumption
of support for those who apply for asylum in the UK. Exceptions
to this will include “families with children, those with special
needs, and those whose home situation has changed significantly
since they came to the UK”. It is commendable that these exceptions
have been recognised, as they will enable vulnerable individuals
to avoid hardship, and accommodate the special circumstances of
refugees sur place. It should nevertheless be borne in mind that
there will be instances where those outside the excepted categories
will be equally vulnerable and as much in need of support as those
who are identified as exceptions. We urge that the new proposals
should be flexible enough to accommodate the needs of such individuals.
In particular, it will be important to ensure that the requirement
to seek asylum “at the earliest opportunity” is interpreted
flexibly. A flexible approach will ensure that the new proposals
are not perceived or implemented as a punitive, deterrent scheme.
UNHCR
London
15 October 2002
|
