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Draft
Special Immigration Appeals Commission (Procedure) Rules 2003
UNHCR Comments
General
comments
1. Procedures by which asylum decisions are made and reviewed are
an essential part of the apparatus for delivering protection to
refugees. Given that the jurisdiction of the Special Immigration
Appeals Commission (SIAC) includes cases where international protection
is claimed, it is crucial that SIAC’s procedures are consistent
with standards of international protection that are laid down in
relevant international instruments. The Conclusions of UNHCR's Executive
Committee (ExCom Conclusions) are one such source of general guidance.
In this regard, an important benchmark was laid down by the Executive
Committee when it drew the attention of States to the need to assure
asylum seekers access to “fair and effective procedures for
determining status and protection needs.” (See paragraph (d)
(ii) of Conclusion No. 82 (Conclusion on Safeguarding Asylum (1998))
2.
The sensitive nature of SIAC’s jurisdiction underscores the
need for its procedures to meet high standards of fairness. Rigorous
adherence to procedural fairness should help to achieve a proper
balance between addressing national security concerns and fulfilling
national obligations under the 1951 Convention and other relevant
international instruments.
3.
UNHCR notes the need to ensure consistency between the draft SIAC
Rules 2003 and the draft Immigration and Asylum Appeals (Procedure)
Rules 2003 (draft IAA(P)R). Given the close links between the two
sets of Rules, some sections of UNHCR’s comments to the draft
IAA(P)R are applicable to the draft SIAC Rules 2003. Our comments
on the draft IAA(P)R are therefore attached for ease of reference.
We would draw your particular attention to our concerns regarding
the removal of the entitlement to oral hearings, and the limits
imposed on factual jurisdiction. Also, we would strongly urge that
the SIAC Rules 2003 be informed by the view that efficiency in procedures
can be achieved without compromising fairness, even in cases where
national security concerns are raised.
4.
Our comment below touch on the following areas: the time limit for
appeals by detainees (Rule 8); the restrictions on the entitlement
to an oral hearing (Rule 28); the time limits for the Secretary
of State to contest an application for bail (Rule 31); and the summoning
of witnesses (Rule 40).
Specific
comments
Time
limit for appealing to the Commission under the 1997 Act
5. Under Rule 8 of the draft SIAC Rules 2003, it is proposed that
the time limit for detainees to file appeals should be reduced from
the 10 days allowed at present, to 5 days. This mirrors Rule 2.2
of the draft IAA(P)R. UNHCR is concerned that the proposed time
limit of five days would be incompatible with the fair and effective
standard for procedures, because detention regimes by their very
nature impose severe constraints to detainees’ ability to
access legal procedures and to file appeal notices on time. Our
views on this point are elaborated in paragraphs 6 and 7 of our
attached comments on the IAA(P)R.
Entitlement
to oral hearings
6. UNHCR is concerned that under Rule 28, an application to SIAC
for leave to appeal may be decided without an oral hearing, unless
there are special circumstances that make a hearing necessary or
desirable. For the reasons outlined in paragraph 3 of our comments
to the IAA(P)R, UNHCR favours oral hearings because they can be
a crucial aid to just and fair decisions and are often indispensable
to ensuring that decision-makers have before them all the relevant
information, including as regards credibility. We would therefore
recommend that the entitlement to oral hearings should be maintained
in applications for leave to appeal. If, however, Rule 28 were to
be retained in its present form, UNHCR would recommend that it be
amended to allow the Commission to consider requests for oral hearings
along the lines of Rule 23(3) ad 23(4).
7.
We welcome the fact Rule 28 empowers SIAC to call for an oral hearing
in “special circumstances”. UNHCR would urge SIAC to
interpret “special circumstances” in a liberal and humanitarian
spirit, as this would be in the interest of fair decision-making.
Bail
hearing and decision – time limit for Secretary of State
8. UNHCR would welcome clarification on Rule 31(2), which sets the
Secretary of State’s limit for filing reasons for contesting
a bail application at “no later than 2.00pm the day before
the hearing”. Rule 31(2)(b) provides that where the Secretary
of State receives notice of the hearing less than 24 hours before,
he may contest the application ‘as soon as reasonably possible’.
While these provisions are generous to the Secretary of State, they
could well leave the appellant insufficient time to address the
reasons for the Secretary of State’s objections to bail. Clearly,
this would be prejudicial to the applicant’s ability to make
his case for bail. UNHCR would therefore recommend that Rule 31
be amended to allow the bail applicant sufficient time to respond
to the Secretary of State’s objections.
Summoning
of witnesses
9. Rule 40(3) provides that where a summons is issued at the request
of a party, that party must pay or tender the expenses of the witness.
UNHCR is very concerned that this rule will work to the detriment
of asylum seekers, many of whom would be unable to afford the costs
witness expenses. UNHCR would recommend that the Rule should incorporate
an exception in favour of indigent asylum seekers.
UNHCR London
March 2003
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