Select Committee on Home Affairs Appendices to the Minutes of Evidence


Supplementary notes by UNHCR



  A distinction has to be observed between breaches of the non-refoulement principle and the return of nationals under readmission agreements.

  The principle of non-refoulement is enshrined in Article 33(1) of the 1951 Convention. It prohibits States from expelling or returning a refugee "in any manner whatsoever to the frontiers of territories where [his/her] life of freedom would be threatened on account of his race, religion, nationality, membership of a social group or political opinion". This principle finds its reflection in a wide variety of international and regional instruments.

  The non-refoulement principle is binding on States, both as a treaty obligation and as a rule of customary international law. In the 1951 Convention context, the principle is breached when States return asylum seekers to their country of origin without prior examination of their claims in fair and effective procedures. The countries referred to in the Chairman's example would transgress international law if they agreed between themselves not to entertain asylum claims from nationals of particular countries, and if they automatically returned asylum seekers from those countries without giving them a fair opportunity to substantiate their claims.

  This situation is to be distinguished from one in which countries enter into agreements for the return of persons whose claims have been rejected in fair asylum procedures. If, through procedures that are indeed fair, a person is found not to have a well-founded fear of persecution for a Convention-related reason, and if he or she is returned to the country of origin in a safe and humane manner, Article 33 (1) of the 1951 Convention would not be infringed.

  There is, however, an important caveat to be borne in mind. Article 3 of the Convention Against Torture and other Cruel and Degrading Punishment and Treatment stipulates that States shall not expel, return or extradite a person "where there are substantial grounds for believing that he would be in danger of being subject to torture". Asylum seekers who fail to establish a claim to protection under the 1951 Convention may still be entitled to protection under the Convention against Torture or other human rights instruments. For example, a person who is found not to deserve refugee status—say by reason of involvement in crimes against humanity—may still be entitled to protection from torture and other cruel, degrading and inhuman treatment in the country of origin. His return under a re-admission agreement would not fall foul of the 1951 Convention, but would be contrary to the Convention against Torture.



  In his speech, the Home Secretary inter alia affirmed the centrality of the 1951 Convention (paras 23-25 of the text of the speech) and described the changes that have occurred in the context in which the Convention is applied (paras 28-29). He also identified what he referred to as "contradictions" in the operation of the Convention (paras 30-33), and made several proposals for addressing them (paras 35-39). The matters raised by the Home Secretary reflect the rationales behind UNHCR's global consultations to revitalise the protection regime. UNHCR would hope that the consultations will provide concerned groups with the opportunity to reflect in depth on the Home Secretary's proposals. At this stage, and without prejudice to the forthcoming debate, UNHCR would make the following preliminary observations.

  UNHCR is particularly reassured by the Home Secretary's endorsement of the fundamental importance of the 1951 Convention, and by his acknowledgement that "countries in the Southern hemisphere and in Asia carry a much heavier burden of refugees and applicants than Western Europe." In UNHCR's view, these elements need to be borne in mind if debates on the future of asylum are to be balanced and meaningful.

  UNHCR sees a need for States to adopt comprehensive approaches to refugee flows, migration, illegal migration, trafficking of persons and organised crime. At the same time, the unique character of asylum issues has to be recognised and respected. The 1951 Convention was never designed to be a tool for immigration policy. That it does not lend itself to migration control should not therefore be seen as a "gap" or a "failure" of the asylum system. Likewise, the fact that the 1951 Convention "does not itself provide the means to deal with the obligations which it creates" or stipulate where asylum should generally be sought (paras 32 and 35) should not be seen as shortcomings.

  Like other treaties, the 1951 Convention lays down foundation principles while allowing States to work out the fine details of implementation over the years. While abuse of asylum procedures and irregular movements of asylum seekers do indeed pose challenges, they have no bearing on the integrity of the 1951 Convention as such. They are matters that States can and should collectively address within the essentially humanitarian parameters laid down by the 1951 Convention. In this regard, UNHCR agrees with Professor Goodwin-Gill's views that the centre at Oakington could be an example of how the challenges of managing an accelerated procedure could be squared with humanitarian concerns and Convention principles.

  The Home Secretary proposed the establishment of a "categorisation" system under which asylum seekers would be processed according to the characterisation allocated to their countries of origin (paras 28-39). While UNHCR considers it legitimate for States to explore measures to streamline procedures, such measures should not obstruct access to fair and effective procedures for individual asylum claims. A number of practical questions arise. Given that persecution is taking on subtler and more complex forms will the proposed system have the flexibility to account for each refugee-producing situation? How will the system ensure that agreements on quotas and countries will not be overly influenced by political compromise and will not weaken the current system of third-country resettlement? Will a system based on pre-judged eligibility be fair and impartial?

  There are even more fundamental concerns. The credibility and strength of the refugee protection regime depends on universal subscription to its basic tenets. "Categorisation" could seriously undermine this universality by superimposing on the present global regime a discrete European-based system. UNHCR would further argue that the refugee protection regime is essentially centred on the humanitarian needs of genuine refugees. Under "categorisation" this focus could well be lost, with attention being diverted to the interests of States and what quotas they would accept.

  UNHCR considers that the global consultations to revitalise the protection regime will provide a context within which all stakeholders can address these questions and concerns. Through these consultations, the proposals put forward by the Home Secretary could be further developed and tailored towards the overall strengthening of the asylum regime.


  Article 31 provides that penalties should not be imposed on refugees solely on the ground of their illegal entry or presence in a State party to the 1951 Convention. In order to enjoy the benefit of this protection, they should "present themselves without delay to the authorities and show good cause for their illegal entry or presence". This provision recognises that refugees are often compelled to flee in desperate situations in which it is impossible to obtain documents or to meet formal requirements prior to entry into the asylum country. Indeed the imposition of penalties for illegal entry could well lead to violation of the non-refoulement principle.

  UNHCR urges states to bear this rationale in mind and thus to adopt a flexible interpretation of the key Article 31 phrase "without delay". A flexible approach would mean that the failure to meet statutory time limits for reporting or the non-fulfilment of other formal requirements should not lead to an asylum request being excluded from consideration. (See UNHCR Executive Committee Conclusion No.15 (1979). Applications should in principle be examined on their merits, with the applicant being given the opportunity to explain the late application.


  UNHCR is extremely concerned that there is more frequent resort to the detention of asylum seekers in Europe, and that illegal entry is one of the grounds cited to justify detention. Unfortunately, the UK is not the only country in Europe that detains asylum seekers contrary to Article 31. The UK is also not alone as regards its failure to provide finite time limits for the detention of asylum seekers. Denmark, Finland, Greece and the Netherlands exhibit a similar failing. Legislation in other EU countries stipulate specific time periods beyond which the asylum seeker should be released if he/she has not been deported or granted leave to enter the country. (For an outline of practice in EU countries please see UNHCR's Reception Standards for Asylum Seekers in the European Union, July 2000).


  There is an urgent need for donor countries to commit more resources towards improving the quality of asylum in host countries in Africa and Asia. To their credit, these host countries have been consistently generous and welcoming towards refugees. They provide sanctuary for the majority of the world's refugees while grappling with severe problems of development. UNHCR would prefer that "regionalisation of aid" is understood to mean a fresh commitment on the part of donor countries to raise the quality of asylum in Africa and Asia as part of a broad undertaking to breathe new life into the protection regime.

  It would be quite another matter if "regionalisation of aid" were intended as a substitute for universal access to asylum procedures in Europe. In UNHCR's view, this would be contrary to internationally agreed principles. One reason why access to extra-regional protection should always be maintained is that refugees may have a well-founded fear of persecution with respect to several States in their given region. This was the case with certain persecuted groups from the Rwanda crises who could not find safe refuge anywhere in the Great Lakes region of Africa, and for whom meaningful protection could be accessed only by leaving the continent altogether. Thus, the "regionalisation" concept has to be carefully thought over to ensure that it advances the end of refugee protection.

  It is possible to take the view that the refugee system is to a large extent already "regionalised" in the sense that the bulk of the global total of refugees remain within their continents of origin. Only a small fraction ever makes their way to Europe. Under the current system, Australia, Canada, European States, New Zealand, the USA and a few other States successfully control the arrival of refugees through the selective process of refugee resettlement programmes. UNHCR considers that the debate on "regionalisation" would benefit from a multi-faceted approach involving more generous donor support to States hosting large numbers of refugees, more efficient status determination procedures in Europe within the parameters set by the 1951 Convention; and a more liberal and flexible approach to resettlement schemes, including in the area of family re-unification.


  States have a legitimate right to control the entry of persons into their territories through the imposition of visa requirements. UNHCR's experience has shown, however, that there are cases where persons needing to flee from persecution either lack the means or the opportunity to fulfil visa requirements. In such situations, visa requirements may constitute an obstacle to the right to seek and enjoy asylum. With this in mind, UNHCR welcomes and supports the practice whereby some States issue "humanitarian visas" to persons at risk. This practice effectively mitigates the restrictions of visa regimes for those genuinely in need of international protection.

UNHCR Branch Office London

27 September 2000

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