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UNHCR
Comments on Clause 54 “Late claim for asylum: refusal of support”
The United Nations General Assembly has entrusted UNHCR with the
responsibility of providing international protection, under the
auspices of the United Nations, to refugees within its mandate.
Conclusion No. 82 of the UNHCR Executive Committee, of which the
United Kingdom is a member, draws attention to the obligation to
treat asylum-seekers and refugees in accordance with applicable
human rights and refugee standards as set out in relevant international
instruments.
All
persons in the territory of the asylum state are entitled to be
treated humanely and with dignity while they are awaiting the outcome
of their asylum claims. The origins of this entitlement are found
in the Preambles to the Universal Declaration of Human Rights (UDHR)
and the International Covenant on Economic, Social and Cultural
Rights (ICESCR). UNHCR is concerned that Clause 54 of the Nationality,
Immigration and Asylum Bill imperils the rights of asylum-seekers,
as secured by these international instruments. Article 11 of the
ICESCR places a positive duty on State Parties to take “appropriate
steps to ensure realisation of the right” to an adequate standard
of living, which includes the provision of food, clothing and accommodation
to asylum seekers who are unable to secure these.
Any
differential treatment towards asylum-seekers with respect to the
core rights of the ICESCR is acceptable only when it is based on
reasonable grounds. Clause 54 envisages a prohibition on support,
by either the Secretary of State or a local authority, for an asylum-seeker
who does not make his asylum claim “as soon as is reasonably
practicable” after arrival in the UK. UNHCR is concerned that,
in discriminating between asylum-seekers who claim “as soon
as is reasonably practicable” and those who do not, the clause
may deny support to those most in need of it. It is uncertain how
a decision maker will overcome the practical difficulties of interpreting
‘reasonably practicable’ in the context of asylum-seekers
who may be suffering from trauma, language problems and lack of
information. The mental or physical effects of, for example, torture
can inhibit or prevent a person from disclosing the persecution
which will found his asylum claim. It would be regrettable if, in
such a case, an asylum seeker was penalised as a result of the persecution
on which their claim is founded.
UNHCR
is also concerned at the potential effect of Clause 54 on refugees
‘sur place’: those who become refugees due to circumstances
arising in their country of origin whilst they are in the UK. This
group do not, by definition, claim asylum either on entry into the
UK or “as soon as is reasonably practicable” afterwards.
The conditions which will form the basis of their claim have yet
to occur at the time of entry into this country. UNHCR believes
it is unreasonable to deny support to this group, when they later
become asylum-seekers, based on a requirement which they could not
possibly have fulfilled.
The
recently-issued conclusion No. 93 of the UNHCR Executive Committee,
of which the United Kingdom is a member, recommends that “asylum-seekers
should have access to the appropriate governmental and non-governmental
entities when they require assistance so that their basic support
needs, including food, clothing, accommodation, and medical care,
as well as respect for their privacy, are met.” UNHCR considers
it disproportionate to deprive asylum-seekers of these basic necessities
solely because they have delayed in making an asylum claim. We recognise
the legitimate interest States have in encouraging the prompt submission
of asylum applications, however UNHCR believes that, in securing
this interest through the withdrawal of support, the State imposes
too severe a penalty on individuals who can ill-afford to bear it.
UNHCR
London
24 October 2002
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