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UK
White Paper on Asylum and Immigration: “Secure Borders, Safe
Haven”
UNHCR Comments
Introduction
and general remarks
1. Every new asylum legislation represents a fresh opportunity to
give concrete expression to the objects and purposes of the 1951
Convention within the broader international refugee protection regime.
The principles that constitute this regime should be the measure
against which the White Paper is to be assessed.
2.
A striking feature of the White Paper is its recognition of the
close relationship between asylum and migration issues, and the
developing European dimension to both of these issues. The Paper
usefully locates asylum policy within the broad frame of globalisation
and migratory flows, and conceives of comprehensive solutions that
address both protection and migration needs in a systematic manner.
This reflects the conceptual approach developed in the course of
the Global Consultations, namely to ensure that adequate protection
safeguards are an integral part of migration control measures. The
UNHCR considers following to be protection imperatives; ensuring
admission to safety and granting access to asylum-procedures to
determine international protection needs, treating all asylum seekers
in line with human rights standards and extending international
protection to those who need it. The crucial question is whether
the White Paper’s proposals will ensure that a system which
revolves around control and removal is balanced by these protection
imperatives.
3.
The following are comments on areas of the White Paper that are
of particular interest to UNHCR. They relate mainly to sections
of Chapters 2, 4, 5, and 6 of the White Paper.
Citizenship
and nationality
4. Acquiring citizenship in a country of asylum is an effective
and durable way to bring refugee status to an end. Recognised refugees
would thus be among the potential beneficiaries of expedited citizenship
procedures. For this reason, UNHCR welcomes the White Paper’s
intention to speed up the process of acquiring British citizenship.
Expedited procedures would be consistent with Article 34 of the
1951 Convention, which calls on States inter alia to “as
far as possible facilitate the assimilation and naturalisation of
refugees” and to “make every effort to expedite naturalisation
proceedings and to reduce as far as possible the charges and costs
of such proceedings.” If the acquisition of citizenship is
to be meaningful for refugees, it should be complemented by measures
to facilitate and enhance their integration into UK communities.
UNHCR recommends that expedited citizenship procedures should be
implemented so as to allow recognised refugees to derive full benefit
from the refugee integration programme as well as from the labour
market measures outlined in the White Paper. UNHCR would further
recommend the inclusion of citizenship.
5.
Fundamental to the exercise of good Citizenship is the citizens’
understanding of what it means to be forced to flee and thus to
lose the protection of the state of origin and to have to seek refuge
in another country. The responsibility to provide protection to
such persons therefore lies at the heart of good citizenship. UNHCR
therefore welcomes the introduction of compulsory teaching of citizenship
and democracy in English schools and the promotion of active citizenship.
UNHCR recommends that issues relating to refugees and statelessness
should be incorporated into citizenship curricula throughout the
United Kingdom and stands ready to assist the government in this
regard.
The
general approach: asylum policy within a migration framework
6. As pointed out above, UNHCR appreciates the White Paper’s
endeavour to
dovetail asylum policy with migration policy and to draw on the
European harmonisation experience to address domestic challenges.
For example, issues such as those raised by the Red Cross Centre
at Sangatte might best be solved through a common European asylum
system that would offer a consistent and coherent approach, while
providing a high level of protection to asylum seekers and refugees.
At the same time, it is important that the opening up of migration
channels does not weaken national commitments on the asylum front.
Resettlement
programme
7. UNHCR commends the UK for its decision to establish a resettlement
programme. As indicated in the White Paper (paragraph 4.16), the
principal rationale for this decision is that vulnerable persons
should not be exposed to the risk of traffickers and smugglers in
order to access international protection. This rationale is welcome
because it recognises the need to facilitate access to international
protection by opening “new doors” for all refugees.
A generous resettlement quota will ensure a proper implementation
of this rationale. Moreover, a UK resettlement scheme can be strengthened
through “joined up” implementation with expedited citizenship
procedures, the Refugee Integration Programme and the labour market
measures outlined in the White Paper.
8. Ideally, the UK programme should be designed with a long-term
view of incorporating comprehensive protection solutions. Its design
should make allowance for the future establishment of an EU resettlement
programme. UNHCR will be pleased to continue to provide advice on
resettlement issues and to share its experience regarding best practices
in this area.
Induction
centres and accommodation centres
9. It is apparent that the aim of these centres is to ensure close
management and control of residents, ultimately with a view to enhancing
efficiency in decision-making and improving removal rates. International
experience confirms that these aims are most efficiently achieved
by creating an environment in which residents are treated with respect,
and in which their rights are fully safeguarded. UNHCR therefore
welcomes the commitment to “ensuring that asylum seekers are
properly supported and accommodated”, and that “asylum
seekers will not be detained in Accommodation Centres”. UNHCR
understands that the latter commitment equally applies to asylum
seekers in induction centres.
10.
We recommend that measures should be put into place to facilitate
asylum seekers’ access to quality legal advice wherever they
may reside. We note the White Paper’s view that “legal
advice is not a pre-requisite to initial decision making”
and “should not hold up the decision making process”
(para. 4.36). UNHCR’s experience is that quality legal advice
at the earliest possible stage helps not only to assure applicants
that the procedures are fair, but also to ensure speed and efficiency
in the asylum process. Quality advice minimises the prospects for
appeals, and fosters confidence among asylum seekers.
11.
UNHCR further recommends that the quality of care arrangements and
accommodation should meet standards such as those outlined in UNHCR’s
comments on the European Commission proposal for a Council Directive
on minimum reception standards. (COM (2001) 181 final) of July 2001.
There is a direct correlation between a wide range of facilities
and purposeful activities in centres, the sense of security and
support experienced by residents and levels of compliance with asylum
procedures. A regime that is open, fair and humane will often yield
fruit in the form of more efficient management. UNHCR suggests that
support groups should be allowed full access to residents to ensure
that counselling and other welfare services are adequately provided.
Measures to address the special accommodation needs of children
should also be implemented.
12.
The operation of the centres should be kept on a flexible footing
and regularly reviewed to reflect the experience of other EU States
as well as the provisions of relevant EU Directives and Regulations.
The UK can also draw on its own good practice, an example of which
is the use of community-liaison officers to promote good relations
between asylum seekers and host communities.
Unaccompanied
asylum seeking children
13. Children are especially vulnerable people. “Childhood
is entitled to special care and assistance” and authorities
have a general responsibility to act in the best interests of children.
In UNHCR’s view, these are the principal considerations that
should govern all matters relating to children, including those
children who happen to be seeking asylum. 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.
UNHCR recommends that this Reservation be withdrawn, as it potentially
constricts the scope of the UK’s obligations towards children
who are asylum seekers.
14.
UNHCR welcomes the White Paper’s declared intention to “continue
to offer protection and appropriate levels of care” to separated
children who are seeking asylum. UNHCR recommends that in practical
terms children who are asylum seekers should be considered as having
– in common with all other children – an entitlement
to special care and protection considerations. If anything, they
are children in especially difficult circumstances whose claim to
special consideration is particularly compelling. Addressing the
special needs of children in a humane and sensitive manner should
be seen as compatible with the White Paper’s underlying aims
to better manage the asylum process, to achieve efficiency in asylum
procedures and to tackle abuse of the system.
15.
UNHCR acknowledges the problem of abuse of procedures and supports
efforts to address it. In UNHCR’s experience, procedures that
aim to tackle abuse could themselves impact negatively on children
and adolescents, and are therefore best applied in a flexible and
humane spirit. UNHCR supports policies which ensure that age assessments
are carried out by trained experts, with regard being had to the
child's ethnic/cultural background. The experts concerned should
proceed cautiously and be prepared to give the benefit of the doubt.
16.
Children should be given the opportunity to participate in the asylum
process. UNHCR encourages the UK to explore the various methods
by which the participation of children can be facilitated. One such
method is through the appointment of a guardian. Independent expert
oversight of matters involving separated asylum-seeking children
can facilitate participation while ensuring that the child's best
interests are safeguarded. The approach should be holistic, and
in this respect, a guardian should assume primary responsibility
for the child's legal, social, medical and psychological needs during
the asylum procedure, and maintain responsibility while a durable
solution is identified and implemented.
17.
Insofar as it is a voluntary process with the necessary safeguards
in place, interviewing children is another appropriate method to
facilitate participation. We welcome the commitment to ensure that
no one will be allowed to interview children about their claims
unless they have received necessary training. (Para. 4.58). We recommend
that this requirement be extended to all staff involved with asylum-seeking
children, including interpreters. Special consideration should also
be given to ensuring that the interview environment is as child-friendly
as possible.
18.
Procedures for eliciting information from children work best where
the concerned staff have a good understanding of the refugee criteria,
its application to children and child-specific forms of human rights
violations. Country of origin information that provides detail on
the position and treatment of children should also be made available.
Applications made by separated children should be prioritised and
processed in a timely manner.
19.
Children can achieve the protection and care they need in an environment
where their special psychological, religious, cultural and recreational
needs are met, and their physical safety, emotional stability and
overall development are safeguarded. For these reasons, UNHCR is
unequivocably opposed to the detention of children who are seeking
asylum. Consultations on the White Paper should be an opportunity
to review the extent to which the present asylum regime is generally
conducive to the proper development of children who are asylum seekers.
UNHCR recommends that the impact of dispersal on families and children
- not least in terms of community ties, physical safety and psychological
development – should be re-appraised. These factors should
be key to any discussion regarding the placement of separated asylum
seeking children away from the South East.
Asylum
appeals
20. A well-functioning appeals system is integral to fair and efficient
refugee status determination procedures. The importance of high
quality appeals stems from a number of considerations. Appellate
decision-makers generally have strong traditions of judicial independence,
and it is often at the appellate level that protection principles
and the finer points of refugee law are authoritatively articulated.
21.
We welcome proposals to increase judicial capacity and make legal
advice more readily available. Notwithstanding these commendable
proposals, urgent attention is drawn to the need to enhance the
quality of decision-making at first instance. Sound and well-reasoned
first instance decisions help to ensure that appeals can be decided
swiftly without infringing principles of due process or fairness.
In UNHCR’s experience, a fair and efficient asylum system
should place equal emphasis on speed and high quality. To ensure
such equal emphasis UNHCR would welcome concrete proposals to improve
the quality of decisions. One step in this direction would be ongoing
training of legal representatives and decision-makers at all levels.
UNHCR stands ready to contribute to such training activities.
22.
Asylum procedures often require the careful evaluation of complex
facts. Hence the need for safeguards to ensure that all relevant
documents and information are placed before the decision-maker.
Common experience indicates that asylum systems benefit from a measure
of flexibility as regards time limits and other procedural parameters.
UNHCR is concerned that proposals for a statutory closure date and
strict parameters for appeals should not be implemented in a manner
that prejudices asylum seekers and impedes effective review of an
asylum claim at the appeal stage.
23.
Further, UNHCR is concerned about the new rules providing for personal
delivery of some asylum appeal determinations directly to asylum
seekers. (para. 4.64) . The removal-oriented rationale of these
rules could potentially result in asylum applicants not being permitted
the time and latitude to seek legal advice and to apply for judicial
review, in particular in cases where complementary forms of protection
under human rights instruments might be applicable. We would welcome
any action that would remove this risk. At the minimum, UNHCR would
recommend amendment of these rules to ensure that the appellant
has time to lodge any application for judicial review before action
is taken to enforce removal.
Oakington
Reception Centre
24. Accelerated procedures such as those in place at Oakington are
acceptable if adequate safeguards are in place to guarantee fairness,
and provided that their applications are appropriate for expeditious
consideration. Factors to be considered in this regard include the
profile of the applicants in question and the situation in their
countries of origin. UNHCR notes that where decisions are made by
off-site staff who have had no direct contact with the asylum seeker,
there is no opportunity to make a full assessment of credibility
or to factor in the demeanour of the applicant. UNHCR recommends
that these areas be addressed, and that accelerated procedures be
applied to cases that are manifestly well-founded.
Detention
25. The detention of asylum seekers has long been a matter of grave
concern to UNHCR, both in relation to the fundamental right to liberty
and because of the standards and quality of treatment to which detained
asylum seekers are subjected. UNHCR welcomes the proposals on reporting
(paras. 4.42 to 4.46). UNHCR encourages the UK to apply reporting
requirements before resorting to detention of asylum seekers. UNHCR
is concerned that the intention to detain families “at other
times and for longer periods than just immediately prior to removal”
could result in measures that depart from international standards
as outlined in Executive Committee Conclusion No. 44 (1986) and
further elaborated in UNHCR’s Guidelines.
26.
With regard to the proposal to repeal most of Part III of the Immigration
and Asylum Act 1999 (on automatic bail hearings), it is pertinent
to recall that Conclusion 44 recommends that detention measures
“should be subject to judicial or administrative review”.
UNHCR recommends that the proposal to repeal should be reconsidered.
Given UNHCR’s concerns with the detention of asylum seekers,
it regarded Part III as a bulwark against arbitrary detention and
a crucial safeguard for the asylum seeker’s entitlement to
liberty and freedom of movement. UNHCR further recommends that affirmative
measures be put in place to facilitate bail applications by detained
asylum seekers as well as the provisions of quality legal advice
and representation. The White Paper proposes to modify statutory
bail powers so that it may additionally be exercised by non-Immigration
Service staff. (Para. 4.58). Whether this will be beneficial will
depend on whether the extension of powers facilitates access to
bail and contributes to reducing the incidence of arbitrary detention.
It will be crucial that those newly empowered to grant bail are
properly trained on the particular needs and circumstances of asylum
seekers.
27.
UNHCR retains a concern for the methods by which detention is effected.
If, as the White Paper suggests, existing search procedures cause
“needless distress” to detained persons, then the proposal
to extend the power of detainee escorts to enable them to enter
private premises to search a detained person (para. 4.81) will have
the similar effect of demeaning and humiliating. The proposals seem
likely to disrupt community relations and aggravate the distrust
that many asylum seekers already feel towards asylum policies. UNHCR
recommends that this proposal should be reconsidered, or at a minimum
accompanied by measures to strengthen the accountability of escort
and detention staff and to establish mechanisms for redress and
grievances relating to complaints and violations of rules in this
regard.
Removals
28. Persons who have benefited from a fair procedure and are found
not to be in need of international protection may be removed from
the country from which they sought asylum. UNHCR and its Executive
Committee have long recognised that return of those not in need
of international protection is one of the measures necessary to
preserve the integrity of the asylum institution. Nevertheless,
the methods employed to effect removals should be consistent with
human rights requirements and failed asylum seekers should be dealt
with humanely.
Voluntary
Assisted Returns
29. UNHCR supports programmes of voluntary return that respect the
asylum seeker’s right to informed and independent decision-making
and which pursue the sustainability of return through comprehensive
schemes in countries of return. UNHCR’s experience is that
while return incentives are valuable, the durability of return is
most effectively underpinned by development assistance. Specially
designed return programmes for children should be established which
incorporate the necessary safeguards.
Refugee
Integration
30. UNHCR welcomes the interest expressed in the White Paper in
drawing from the activities and good practices in many areas of
the country as well as in the EU and further afield. As indicated
above, UNHCR sees close connections between integration, a resettlement
programme and the various initiatives to create more flexible access
to the labour market, and recommends that practical steps be taken
to ensure the smooth dove-tailing of these elements. In this regard,
UNHCR encourages the UK to incorporate the insights of refugees
in its implementation programmes. Through its work with asylum systems
over the decades, UNHCR has been closely acquainted with good integration
practice in many countries and would be pleased to share its expertise
with the National Refugee Integration Forum.
Tackling
fraud – people trafficking, illegal entry and illegal working
31. UNHCR generally favours an approach that places asylum issues
within the reality of contemporary trends in migration. Without
a holistic and comprehensive approach, these trends will continue
to impinge on the asylum arena in a way that could undermine global
confidence in the protection regime for refugees. The challenge,
of course, is to reconcile effective State action in two disparate
fields. One is the field of policing and the enforcement of immigration
law and international criminal law. The other is the field of refugee
protection, under which States are obligated to allow exceptions
to normal procedures for non-citizens in special circumstances.
Smuggling
and trafficking
32. UNHCR’s interest in this area stems from the fact that
people who meet the criteria for refugee status are frequently compelled
to resort to smugglers or traffickers in order to access international
protection. The Foreword to the White Paper itself acknowledges
“how difficult people are finding it to reach this country”.
Although access to procedures for determining protection needs is
a principle of the global asylum regime, the system as it currently
exists offers few structured, controlled or orderly avenues for
such access. It is left to the refugee’s personal ingenuity
and resources or to the smuggler’s preferences to determine
whether and how he or she can enter a country in order to claim
international protection there. UNHCR welcomes emerging ideas (some
of which are canvassed in the White Paper), on how the global system
can be put on a more predictable and more orderly footing. Clearly,
however, global asylum reform, desirable as it may be, is a matter
for the long term and is unlikely to result in any immediate predictability
of movements. Thus, measures to combat trafficking and smuggling
must incorporate adequate protection safeguards to ensure that spontaneous
arrivals have access to procedures for claiming international protection.
Illegal
working
33. As regards illegal working, the ‘new approach’ mentioned
in paragraph 5.13 is in line with UNHCR’s views already expressed.
The comprehensive approach espoused should, however, include a recognition
that illegal working may be related to the fact that asylum seekers
receive a level of support that is below the national minimum. The
proposal to replace vouchers with cash and to increase the value
of support by 1.6% (para. 4.52) is welcome but is still inadequate.
UNHCR recommends that the support given to asylum seekers should
be comparable to the national minimum.
34.
UNHCR is pleased to note that the White Paper recognises that the
victims of exploitation should receive the care and support they
need, and proposes the development of a best practice ‘toolkit’
for the guidance of practitioners. (Paras. 5.34 and 5.35). UNHCR
recommends that this toolkit should adequately address situations
where victims of trafficking and smuggling may be in need of international
protection. UNHCR is prepared to contribute to the preparation of
the toolkit.
Border
controls
35. While border controls are a matter of sovereign prerogative,
they are also linked to question of access to territory for those
who may be entitled to international protection. Any legislation
on this issue should therefore reflect a proper balance between
the need for secure borders on the one hand, and on the other hand,
the UK’s international protection responsibilities.
36.
Fair and efficient determination and removal procedures are a crucial
element for striking the right balance. The authorities need to
be confident that the status determination system is sensitive and
efficient enough to identify those in need of international protection
and those who are not. Swift removal of those who are not in need
of international protection is therefore crucial. From our perspective,
the strengthening of border controls should be complemented with
training and other measures to enhance fairness in both status determination
and removal procedures. UNHCR is prepared to work with the UK to
develop training programmes in this area.
War
criminals
37. UNHCR shares the White Paper’s view that the UK should
not provide a safe haven for war criminals, those who commit crimes
against humanity and other serious criminals. This view is reflected
in various provisions of the 1951 Convention, notably Articles 1F,
2, 32, and 33. Article 1F seeks to ensure that those who are found
to have been involved in serious crimes prior to seeking asylum
are disqualified from the benefits of international protection.
Article 2 states that refugees are bound to respect the laws of
the countries in which they reside. Article 32 provides for the
expulsion of certain categories of dangerous refugees and stipulates
safeguards for the same. Article 33 sets out – as an exception
to the principle of non-refoulement – the exceptional grounds
on which a refugee may be returned to a country in which he fears
persecution. The UNHCR Handbook on Procedures and Criteria for Determining
Refugee Status, as well as Conclusions of UNHCR’s Executive
Committee and various UNHCR Guidelines furnish guidance on these
and related issues.
38.
UNHCR is confident that existing Convention provisions, when scrupulously
applied, are adequate to ensure that serious criminals cannot enjoy
the benefits of international protection. In this regard, it would
favour more principled application of existing provisions over the
introduction of new legislation. The Convention provisions protect
the integrity of the institution of asylum by debarring serious
criminals from its ambit. At the same time, the provisions operate
within a framework of due process and other procedural principles.
Respect for these principles is itself crucial to the integrity
of the asylum institution. Any new legislation on this issue –
if this is thought to be necessary – should be consistent
with the 1951 Convention provisions as well as with the framework
principles that have developed over the decades. In particular,
new legislation should not compromise on due process principles
as this could undermine the 1951 Convention.
39.
The White Paper’s proposals raise concerns for UNHCR. For
example, paragraph 7.22 indicates that Immigration Rules will be
amended to “make it clear that suspected war criminals can
be refused entry to, and leave to remain in, the UK on the grounds
of their conduct, character or associations.” One question
is whether the basis for “suspicion” will meet the standard
of proof for applying Article 1F exclusion or for invoking Articles
33 (2) or 32. Moreover, an important general principle under the
1951 Convention regime is that of individual liability – rather
than guilt by association – for the crimes in question. These
should be addressed in any new legislation.
40.
A broader question is whether the new legislation is consistent
with the rationales for exclusion under the 1951 Convention. The
Convention’s primary purpose is to identify those in need
of international protection and to provide for their needs. In a
legal and conceptual sense, Articles 1F, 32 and 33(2) of the 1951
Convention should not be regarded as penal arrangements that are
independent of the humanitarian frame of the Convention framework.
For this reason, among others, these Articles are best interpreted
and applied restrictively, within the framework of a refugee status
determination procedures.
41. In this light, it is noteworthy that the White Paper appears
to focus on the contribution that exclusion provisions can bring
to the fight against criminal elements, the intention being to use
“immigration powers where criminal proceedings are not possible”.
(Paragraphs 7.26 and 7.27). This language could be understood to
suggest that the exclusion provisions could be applied as an alternative
– rather than alongside - criminal proceedings. If so, the
exclusions would be utilised as a punitive scheme divorced from
refugee status determination without its specific safeguards. This
would be a matter of concern for UNHCR.
Conclusion
42. We trust that these comments will be carefully considered along
with those of other refugee organisations, and that the views of
stakeholders will be reflected in the forthcoming asylum legislation.
UNHCR stands ready to provide further comments and assistance where
necessary.
UNHCR London
18 March 2002
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