Best Practices for Refugee Status Determination: A UNHCR Global Perspective By Richard Towle & Richard Stainsby Monash University, Prato Centre, Italy.

Best Practices for Refugee Status Determination: A UNHCR Global

Perspective

By Richard Towle & Richard Stainsby

Monash University, Prato Centre, Italy29-30 May 2008

Outline of Presentation

• Accuracy, quality and consistency in global refugee status determination

• Statistics and trends in global RSD

• Disparities in recognition rates

• Variables causing disparities in the recognition rates

• Consequences of disparities and inconsistent approaches

• Improving consistency at global, regional and national levels

Statistics and trends in global RSD

• ‘Lies, damned lies and statistics’ [Disraeli]

Global trends (c’td)

• Of the world’s 10 million + refugees/asylum-seekers, only 600,000 are subject to individual RSD (c. 6%)

• Between 2001-2007, the number of asylum claimants in 50 industrialized states dropped by more than 50%, despite a 10% increase in 2007 (largely Iraqis) with fall of 70% + in AUL/NZ

• At same time, UNHCR’s caseload increased by more than 24% (to 13% of global RSD).

Global asylum-seekers in 2006:….of 596,000 persons….

Europe: 299,000 (44%)

Africa: 159,000 (23%)

Americas: 78,000 (11%)

Asia: 53,500 (8%)

Oceania: 7,100 (1%)

UNHCR: 91,500 (13%)

Convention Signatories

Who is doing RSD and where ?

147 State parties to the Refugee Convention• 99 with established national RSD procedures

(where UNHCR has advisory/supervisory role)• 16 where UNHCR and governments jointly

(mostly Africa)

UNHCR doing RSD in 71 states of which:• 40 are states party to the Convention (where

there no, or inadequate, national procedures);• 31 are not party to the Convention.

Asylum Trends

Origin of asylum seekers in 2007

Arriving in Europe

1 Iraq 43,967

2 Russia 17,773

3 Serbia 14,927

4 Pakistan 13,314

5 Somalia 11,035

6 Afghanistan 8,902

7 Iran 7,973

8 Turkey 6,491

9 Eritrea 6,424

10 Sri Lanka 5,960

11 China 5,933

12 Nigeria 5,605

Arriving in Canada and the USA

1 China 9,925

2 Mexico 9,529

3 Haiti 5,932

4 Colombia 3,776

5 El Salvador 3,439

6 Guatemala 2,397

7 USA 1,824

8 Ethiopia 1,320

9 India 1,266

10 Honduras 1,174

11 Indonesia 1,079

12 Iraq 1,027

Selective destinations in 2007 15 asylum states account for 52 % + of global RSD

for individual casesCertain nationalities tend to cluster in a limited

number of asylum countries:• Chinese applicants: 50% in USA• Pakistan applicants: 64 % in Greece• Russian applicants: 35% Poland, 17% France• Iraqi applicants: 70% total in Sweden (41%),

Greece (12%), Germany (9%), Turkey (8%)• Mexican applicants: 74% Canada, 24% USA.

Disparities in recognition rates

• Variables in statistics– different caseload profiles– size of caseloads– different criteria for collection, presentation and

analysis of data– refugee status vs other ‘protected’ status– data on 1st and 2nd instance and appeal/review

• Nonetheless, even allowing for inaccuracies in data, some striking disparities emerge.

Disparities (c’td)

• ‘Asylum in the European Union: A study of the Implementation of the Qualification Directive’ (Nov. 2007) found:

Iraqi applicants:

• Germany; 16.3 % refugees, 1.1% subsidiary protection• Sweden; 1.7 % refugees, 73.2% subsidiary protection• Greece and Slovakia. 0 % refugees, 0% subsidiary protection

• In 2007, Greece received 25,113 new asylum claims of whom:

• 8 were granted refugee status at 1st instance (0.04%) • 138 on appeal (giving combined recognition rate of 2.05%)

• Despite the common Qualification Directive, recognition rates remain disturbingly low when compared with other EU Member States with similar numbers of asylum applicants

Comparative recognition rates for Somali asylum-seekers

•

0.0%

10.0%

20.0%

30.0%

40.0%

50.0%

60.0%

70.0%

80.0%

90.0%

100.0%

%

Country

Recognition Rates Somali'sRR Somali's

Total (Incl. TP)

Causes of disparities in recognition

Problems in domestic legal framework:

Inconsistent balance between use of Convention and other forms of ‘protected status’

Selective transformation of 1951 Convention into national law. In particular, incorrect incorporation of Art 1 and Art. 33 into legislation

Causes of disparities (c’td)

Broader Political or Policy Factors Affecting RSD

Historical, cultural, political or other bias for, or against, certain caseloads or countries leading to predetermined RSD outcomes

Perceptions & preferences in asylum country regarding integration prospects of certain caseloads and/or potential impact of significant demographic shifts

Lack of genuine independence of decision-makers

Overt or inherent deterrence measures in policy and procedures for RSD

Extremely low recognition rates can reflect fundamental reluctance in some countries to assume responsibility related to individual asylum applications

Causes of disparities in recognition

Divergent interpretation & application of Art 1A(2)

Persecution by ‘non-state’ actors

Approach to assessing existence of ‘well founded fear’

• Persons fleeing generalised violence and/or armed conflict

• Internal flight or protection alternative (IFA)(IPA)

• Evaluation of availability of “State protection”

• Protected characteristics and rights

Causes of disparities in recognition

Interpretation & application of Art 1A(2)

Interpretation of ‘particular social group’

Robust or conservative use of exclusion Art. 1F.

Causes of disparities (c’td)Varying Procedural Approaches

Accelerated procedures that might involve unsafe or generalised assumptions about safety and/or eligibility and without adequate procedural safeguards:

Some procedures for “manifestly unfounded claims” Application of IFA as “admissibility” criteria White lists of safe countries of origin “No repeat claim” policies

Accuracy of decisions affected by:

Insufficiently individualized or detailed examination Reduced rights of appeal/ review More limited opportunity to seek legal advice & interpreters Truncated use of COI

Causes of disparities (c’td)

Functional difficulties in RSD Legal and skills training Access to, and use of, balanced country of origin

information, including adequate resources Subjectivity in decision-makers

Credibility assessments Legal or other ‘culture’ of decision-maker and decision-

making body Burn-out, intellectual ‘shortcuts’

Standardised or template decision-making (‘boilerplate’ language)

Consequences of inconsistent approaches

Heightens risk of refoulement Creates an asylum ‘lottery’ that will lead to:

Confusion, uncertainty and unpredictability; Overload review and/or appellate bodies and adds to cost and

delay in implementing ‘downstream’ measures after RSD (e.g. removal of rejected cases or acquired rights for refugees);

Erosion of public and political support for institution of asylum; Erosion of confidence among asylum-seekers and resort to other

creative ways to enter/remain, including fraud and abuse of process;

Increase scope for politicisation and distortion of a humanitarian process;

Forum-shopping & onward secondary movement to places

offering more favourable outcomes.

Improved Quality & Consistency

At the national level: Independent specialized first instance body Incorporation of 1951 Convention & appropriate

procedural safeguards of fairness & due process Consistency & quality at ‘front end’ of national RSD Qualified adjudicators, capacity-building, training &

professional development, legal advice Resources (admin support & COI research) Appropriate case management Guidelines - procedural & substantive (jurisprudential) Role of appellate bodies – effective arms length review

Improved quality & consistency

At the regional level Searching for common state interests to engage RSD Linking RSD to other regional issues (10-Point Plan on

asylum-migration), integration of RSD into broader migration management and reconciling with border security and counter-smuggling imperatives

Learning from the EU experience Positive aspects of harmonisation and Directives Negative aspects (lowest common denomination), non-

compliance and enforcement.

The Indochinese CPA and other regional arrangements Challenges to establishing regional arrangements

Global Initiatives to Improve quality & consistency

Need to demonstrate that asylum & common RSD are in states’ interests - not part of the problem:

Depoliticize tensions between states; Required as legal and humanitarian imperatives and will elevate

the state’s standing as a global citizen; Provide credible and predictable mechanism for international

burden-sharing, especially through resettlement, return of rejected cases;

Provide legal basis for refugees’ right to remain and contribute to workforce;

Contribute to more structured and predictable management of migration, national security and international relations (and other migration streams)

Other Global initiatives

UNHCR’s supervisory and guiding role and value of a more vigorous EXCOM process

‘Peer-to-peer’ judicial networks (IARLJ etc) for professional development/training, jurisprudence

Complete harmonisation is unrealistic and probably undesirable