UNHCR’s Comments on the European Commission’s
Working Document on the relationship between safeguarding internal security and complying with international protection obligations and instruments - COM(2001) 743 final, 5 December 2001
1. General observations
UNHCR considers that the Commission’s Working Document contains a number of positive elements. In particular, UNHCR welcomes that the Working Document:
(i) while recognising Member States’ legitimate interest in reinforcing security safeguards to prevent terrorists from gaining admission to their territory, emphasizes the need that any current or future security safeguards strike a proper balance with the refugee protection principles at stake (Introduction);
(ii) affirms that, rather than through major changes to the international regime for the protection of refugees, the appropriate approach is to apply scrupulously the exceptions already provided for in that regime (Introduction);
(iii) stresses the need to admit all asylum seekers to an asylum procedure, and rightly points out that automatic bars to accessing an asylum procedure, for instance by rejection at the border, could result in refoulement (Paragraph 1.4.1);
(iv) affirms that exclusion from refugee status should be explored only where there are specific reasons to believe that the person may fall under the scope of one of the relevant clauses (Paragraph 126.96.36.199);
(v) emphasizes that, a person should not be excluded from refugee status unless it is clearly established that there are serious reasons for considering that he/she has committed the acts on which the exclusion is based (Paragraph 1.4.4);
(vi) also emphasizes that the determination of whether a person should be excluded from refugee status, requires a careful assessment of the measure of personal involvement of the refugee claimant in the acts on which the exclusion is based (Paragraph 1.4.4);
(vii) recommends that Member States establish formal and confidential cooperation agreements with the International Criminal Court in relation to cases that may fall under the scope of the exclusion clauses of the 1951 Refugee Convention (Paragraph 2.2.2).
2. Matters of concern
Given that the application of the exclusion clauses normally involves the examination of very complex issues, UNHCR considers that such examination should not take place in the context of admissibility procedures or accelerated procedures.
The inappropriateness of the use of accelerated procedures to handle exclusion issues is further compounded by the fact that under the Draft Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, appeals against decisions taken in accelerated procedures need not have suspensive effective.
3. Drafting suggestions and clarifications
Expulsion for crimes committed on the territory of the country of refuge (Paragraph 1.3)
This paragraph refers to the possibility of expulsion to the country in which the person fears persecution, in conformity with the exception to the principle of non-refoulement envisaged in Article 33(2) of the 1951 Convention. In this connection it would be useful to recall that the procedural guarantees provided for in Article 32(2) of the Convention are also applicable to such expulsions.
Suspension of examination of an asylum claim in extradition cases (Paragraph 188.8.131.52) and inadmissible asylum claims (Paragraph 184.108.40.206)