Supplementary notes by UNHCR
ADDITIONAL COMMENTS ON SELECTED ISSUES RAISED
DURING UNHCR'S EVIDENCE BEFORE THE HOME AFFAIRS COMMITTEE ON THURSDAY
20 JULY 2000
(Q283 OF THE
A distinction has to be observed between breaches
of the non-refoulement principle and the return of nationals under
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
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 statussay by reason of involvement
in crimes against humanitymay 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.
THE 1951 CONVENTION
(QQ 284 AND 312)
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.
31 OF THE
1951 CONVENTION (Q 304)
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.
ENTRY (Q 305)
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.
ORIGIN (Q 308)
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
UNHCR Branch Office London
27 September 2000