GLOBAL CONSULTATIONS ON EC/GC/01/15
INTERNATIONAL PROTECTION 15
August 2001
3rd Meeting
Original: ENGLISH
GLOBAL CONSULTATIONS ON
INTERNATIONAL PROTECTION:
DRAFT REPORT OF THE
SECOND MEETING IN THE THIRD TRACK
(28-29 June 2001)
I. INTRODUCTION
2. A
brief welcoming address by the Deputy High Commissioner, was followed by a
statement from a refugee woman, who described her experiences, including
detention, while seeking asylum.
She closed her remarks by making a ringing plea of “Action please”.
II. ADOPTION
OF THE DRAFT REPORT OF THE FIRST MEETING
3. The
Chairman presented for approval the draft report of the first meeting of the
Global Consultations. Amendments
were proposed by two delegations with respect to paragraphs 5,
15 and 17 of the draft report.
With these modifications, the report was adopted (EC/GC/01/8/Rev.l).
III. ADOPTION
OF THE AGENDA
4. The
agenda (EC/GC/01/10/Rev.1) was adopted.
IV.
PROTECTION OF REFUGEES IN THE CONTEXT OF INDIVIDUAL
ASYLUM SYSTEMS
A. Refugee Protection
and Migration Control
5.
The Chairman welcomed the presence for the discussion of this item of
Mr. Gervais Appave, Coordinator of the Migration Policy and Research
Program (MPRP) at the International Organization for Migration (IOM).
6. The Director of the Department of International Protection introduced document EC/GC/01/11 providing a joint reflection on the topic by UNHCR and IOM. Its aim was to present the perspectives and suggested course of action of two organizations with shared concerns, each with different contributions to make to address them, and with a common interest of coordinating their respective contributions. The displacement environment in which the 1951 Convention must operate and the growth of irregular migration and smuggling of people for profit had led to a crowding of the space in which this Convention had to function. The overall challenge was to identify ways to meet the protection needs of refugees and asylum-seekers in situations where migration and asylum intersected. The Director noted that the paper suggested general lines of cooperation between UNHCR and IOM (paras. 45-48), including activities that each organization might pursue separately, albeit in tandem, as well as issues requiring a State response.
7. The
Coordinator of IOM’s MPRP added that the paper was about linkages between
migration and asylum. Since in
reality refugees move within a broader, mixed flow that include both forced and
voluntary movements, the related policies if kept totally separate may lead to
guidelines which are incoherent at best - contradictory at worst. The main question at stake was how to
ensure the integrity of refugee protection processes in the complex world of
migratory realities. IOM hoped to
open a broad debate among its member countries on the migratory aspects of the
phenomenon at its Council meeting in November 2001.
8. During
the ensuing debate, delegations from the countries concerned introduced
summaries of the regional meetings held in Budapest, Macau, and Ottawa. There was broad recognition of the
useful contribution of these meetings, which had not only provided insights on
the challenges and constraints experienced at field level, but also formulated
a number of substantive comments and recommendations.[1]
1. Relationship between
migratory movements and refugee protection
(including the issue
of smuggling and trafficking)
9. All
delegations recognized the importance and complexity of the asylum-migration
nexus, in view of the growth of mixed flows of persons in need of international
protection and migrants, and the likelihood that this trend would intensify as
one of the consequences of globalization.
Many delegations noted the paucity of data available on migratory
movements, the types and volume of mixed movements, as well as on their
underlying motivation. Several
delegations suggested that the causes were likely to be overlapping and
included human rights violations or armed conflict, but also economic
marginalization and poverty, environmental degradation, population pressures,
poor governance and scarcity of decent work. There was consensus that the phenomenon of mixed movements
affected developed and developing countries alike, but that developing
countries required international support to improve their capacity to respond effectively.
10. To
inform more effective responses, delegations agreed on the need for more
detailed and coherent data and statistics on migratory movements and a number
requested IOM to undertake a detailed study on the root causes underlying
migration. One delegation
suggested that regional organizations, such as the Council of Europe, the
Organization for Security and Cooperation in Europe (OSCE) and the Southern
African Development Community (SADC) could also usefully undertake similar
studies. Another delegation
welcomed the launch of the MPRP programme and discussions at IOM Council
meetings encompassing broader migration issues and needs.
11. Delegations unanimously condemned criminal activities of trafficking and smuggling of persons, while recognizing that refugees often had to resort, alongside migrants, to criminal rings to reach first countries of asylum or to move on to other locations. A number of delegations urged that asylum-seekers must be assured of access to asylum procedures and benefit from appropriate standards of treatment. There was wide recognition of the sovereign right of States to guard their borders and to take measures to stem trafficking and smuggling of people in view of the extreme suffering this causes, especially to women and children. A number of delegations made offers of technical support to boost reception capacity at points of entry. Some delegations, however, emphasized the need to view the phenomenon in the human rights context, not simply as a question of border or migration “control”. One delegation suggested that the problem should be viewed as an aspect of migration management and take into account economic and labour demands, as well as human rights concerns.
12. It was widely acknowledged that
legitimate measures to stem trafficking and smuggling should not be allowed to
override States’ commitments to refugee protection responsibilities
– notably the principle of non-refoulement – to the respect of human
rights in general, as well as migrants’ rights. In response to a question from one delegation on the scope
of non-refoulement, the Director of DIP referred to the background document
on Article 33 of the 1951 Convention prepared for the Cambridge expert
roundtable.[2] Several delegations suggested measures
that could contribute to preventing resort to smugglers in the first place:
providing opportunities for regular migration; operation of a proper, speedy
and efficient asylum system in compliance with international norms; and speedy
return of those found not to be in need of international protection.
13. Several delegations emphasized
the need for more capacity-building in host States as well as closer
cooperation in devising comprehensive and multifaceted responses amongst all
stakeholders: governmental, intergovernmental and non-governmental. In this context, a number of
delegations highlighted the need for closer dialogue between countries of
origin, transit and destination, through appropriate policy orientations and
follow-up action. These included
the suggestion that development aid, trade and investment policies should be
more sensitive to refugee and migration concerns and address the root causes of
movement. Many delegations also
recommended that measures be taken to encourage new accessions to and full
implementation of the 1951 Convention and its 1967 Protocol, as well as to the
United Nations Convention against Transnational Organized Crime and its
Protocols (on trafficking of persons and smuggling of migrants), the 1990
Convention on Protection of All Migrant Workers and their Families, and
relevant Conventions (notably nos. 97 and 143 of the International Labour
Organization (ILO)).
14. Many delegations suggested that information campaigns both in countries of origin and receiving countries should play an important part in any comprehensive response and there were calls for NGO involvement. Such campaigns could provide a realistic appraisal of opportunities for orderly migratory movement; discourage irregular migration; warn of the dangers of smuggling and trafficking; combat xenophobia; and convey to the public at large in receiving States the positive side of migration and the assets both migrants and refugees represent to their host societies. One delegation suggested that secondary movements were unavoidable and asked for understanding of the difficulties facing most host countries, particularly in protracted refugee situations. This delegation suggested that such movements required further examination, including an assessment as to whether resettlement could be an appropriate response. Another delegation argued that irregular movement of refugees who had already found protection should be discouraged by sending those refugees back to countries of first asylum. A number of delegations expressed concern at such an approach, in view of the heavy burden of hosting large numbers of refugees for protracted periods.
2. Interception and Protection
Safeguards
15. Delegations expressed diverging
views on interception as a tool to combat irregular migration. Some delegations saw such measures as a
legitimate manifestation of States’ sovereign right to guard their
borders. Others acknowledged that
interception was a necessary tool to deter smuggling, but stressed that it must
be tempered with refugee protection safeguards. One delegation was opposed to interception measures, viewing
them as an arbitrary form of burden-shifting and regretted that interception
was increasingly being used to prevent the lodging of asylum applications. One delegation suggested that States
must avoid a culture of blaming the “victims” of smuggling and
trafficking. Some delegations
recalled that, in accordance with the relevant international instruments,
States should not penalize asylum-seekers and refugees who resort to smugglers
to reach safety.
16. A number of delegations referred
to the positive contribution of the regional meeting held in Ottawa, focusing
on ways of incorporating refugee protection safeguards into interception
measures. One delegation suggested
that the discussions on interception initiated in Ottawa should be pursued with
wider participation of countries from other regions. The suggestion that States that practise interception should
incorporate safeguards for the protection of intercepted persons in need of
international protection was widely supported. In this regard, there was broad support for the suggestion
that UNHCR develop Guidelines on Safeguards for Interception Measures,
incorporating appropriate protection safeguards and drawing on the conclusions
and recommendations of the Ottawa meeting. UNHCR was also requested to initiate related training
efforts for States. One delegation
expressed concern that protection safeguards in interception could lead to new
activities for UNHCR, for which additional resources should be identified. Another delegation suggested that an
independent evaluation of existing interception programmes be carried out. On the issue of in-country processing,
two delegations described their experiences, one of them noting that such
processing might not readily lend itself to the issue of protection. Another delegation did not consider
this processing as a complete alternative to interception, but as a means to
make protection available. A
delegation speaking on behalf of NGOs felt that in-country processing had no
basis in the 1951 Convention.
3. Return of Persons not in Need of
International Protection
17. There was broad agreement on the
desirability of quick and effective return of persons found not to be in need of
international protection. It was
recognized, however, that such return must be orderly, safe, humane, dignified
and sustainable. Several
delegations recommended assistance to the receiving States or the individual. There was agreement that failure to
return persons not in need of international protection could undermine the
integrity of the asylum regime (as well as of migration management
systems). Some delegations
enumerated benefits flowing from speedy return: easier reintegration; discouragement
to smugglers and traffickers; and warning potential migrants that the asylum
avenue is not open. Delegations
from all regions highlighted the difficulties encountered in trying to return
persons not in need of international protection, notably lack of cooperation by
the individuals concerned or by the country of origin and difficulty in
establishing the true country of origin owing to lack of documentation. One delegation suggested that in
situations involving large numbers of refugees, a combination of measures was
required: return, resettlement in
a third country and assistance in the asylum country until large-scale return
was possible.
18. Many delegations stressed the
obligation of all States to accept back their own citizens and to cooperate
with States requesting the readmission.
Several delegations pointed out that denial of the right to return not
only affected the credibility and efficiency of asylum systems but also
amounted to denial of a basic human right and could ultimately contribute to
situations of statelessness. Some
delegations emphasized that countries of origin in the developing world require
international assistance to make returns sustainable. Other delegations felt that return should not be conditioned
upon international support. A
number of delegations pointed out that the return of persons not in need of
international protection should ideally be voluntary, but that States do have
the sovereign right to deport them.
Some delegations emphasized that such non-voluntary return must be
carried out, at minimum, in safe, humane and dignified conditions.
19. Several delegations commended
IOM for its programmes for the return of persons not in need of international
protection and recommended the continuation of these programmes. One delegation pointed out that developing
countries do not have the resources to finance such programmes through
IOM. Another delegation requested
IOM to develop a set of guidelines for ensuring that each migrant whom it
returns does so voluntarily.
Several delegations emphasized that UNHCR’s involvement in return
issues should be consistent with its mandate, should not be
seen as sanctioning the return of
persons who may be in need of international protection, and should be combined
with an undertaking by States to provide resources to UNHCR for any such
involvement. Two delegations
questioned the legitimacy of UNHCR’s involvement with rejected cases and
urged caution.
4. Cooperation between UNHCR and IOM,
as well as
with States and other Stakeholders
20. Many delegations welcomed the closer cooperation between UNHCR and IOM and encouraged both organizations to pursue the lines set out in the joint paper. Some delegations, however, called for clearer terms of reference as to what this cooperation could embrace. Others expressed concern about the resource implications for UNHCR. Delegations encouraged UNHCR and IOM to include information activities as an integral part of their cooperation. Regarding IOM’s commitment to examine the usefulness of establishing or strengthening regional and international mechanisms for managing migration movements, some delegations suggested that it would be preferable to focus on discussions on best practices at national and regional levels.
21. Delegations expressed strong
support for the establishment of the proposed UNHCR/IOM Action Group on Asylum
and Migration, provided the specific mandates of each organization were
respected. Given the complexity of
the migration/asylum nexus, it was suggested that the Action Group should also
include governments, other interested organizations (such as the ILO and the
Office of the United Nations High Commissioner for Human Rights (UNHCHR) and
regional organizations) and NGOs.
The Action Group’s programme of work might include better data
collection and analysis, research, formulation of policy options, promotion or
adoption of international standards, training, and practical project
initiatives in the field and at Headquarters level in Geneva. Reports on the work of the Action Group
could be shared with ExCom and with the Council of IOM.
B. Asylum Processes (Fair and Efficient
Procedures)
22. Introducting this item, the
Deputy Director of DIP recalled that fair and efficient asylum procedures were
an essential component of a comprehensive approach to composite flows; they
were also key to full and inclusive application of the 1951 Convention and its
1967 Protocol, not least the principle of non-refoulement. The document on this subject
(EC/GC/01/12) suggested that, in many cases, a single consolidated procedure to
assess whether an asylum-seeker qualified for refugee status or other
complementary protection might prove to be the most effective and expeditious
means of identifying those in need of international protection. Its concluding section drew on examples
of best State practice that built on existing ExCom conclusions on asylum
procedures and established commonly agreed standards.
23. In a general discussion of this
item, many delegations observed that access to well functioning, fair and efficient
procedures was a condition sine qua non for respect of the principle of non-refoulement, the right to seek and
enjoy asylum and full and inclusive application of the 1951 Convention. Such procedures could also contribute
to combating their abuse. The
adoption of national legislation was an important means to implement the
Convention effectively, but such legislation should be in accordance with
international standards. Several
delegations from developing countries pointed to the need for more capacity-building
to offset the very real constraints they faced. Some delegations offered help to set in place asylum
procedures and assist them to function effectively.
1. Admissibility Procedures
24. Several delegations referred to
the Budapest regional meeting’s contribution to elucidating issues
surrounding the “safe third country” notion and the impact of
readmission agreements on countries consolidating their asylum systems. The meeting had brought to light
concerns by such countries of the “burden-shifting” effect. A number of delegations from developing
countries referred to the burdens they already bore in hosting refugees,
particularly for protracted periods, and maintained that accepting back asylum-seekers
and refugees must be accompanied by assistance measures, in a spirit of burden
and responsibility sharing.
Adequate safeguards were also vital with respect to application of the
safe third country notion, notably the accepting State’s consent to the
transfer and examination of the asylum request. It was recognized that the decision to determine the
responsibility of States to review asylum claims was separate and distinct from
the substantive examination of such claims. Many delegations also highlighted the value of multilateral
or bilateral “Dublin-type” agreements to apportion responsibility
for examining asylum claims, over unilateral use of the safe third country
notion.
25. A number of delegations
expressed concern at the impact of operation of the first country of asylum
concept and requested guidance on its scope, particularly in situations where
the first country of asylum was confronted with large numbers of refugees in
protracted refugee situations.
Many delegations emphasized the need for adequate safeguards in
situations where refugees were returned to a first country of asylum. Such safeguards would contribute to
avoiding situations of refugees “in orbit”. It was also suggested that resettlement
and local settlement might need to be considered when return to protracted
situations was not viable. On the
question of time limits for lodging applications, it was recognized that they
should not be used to restrict access to procedures, but rather to determine
whether non-compliance with the deadline affects the applicant’s
credibility.
2. Equitable and Expeditious Asylum
Procedures
26. There was broad agreement on a
number of issues. Delegations
recognized the value of streamlined, fair and expeditious procedures that
identify persons in need of international protection and those who are
not. Many delegations reported
that undocumented and uncooperative asylum-seekers made it difficult for them
to implement procedures effectively.
There were diverging views on the “safe country of origin”
notion and whether appeals should have suspensive effect. Many delegations felt that the
“safe country of origin” notion was useful, provided adequate
safeguards could be built into its operation. For other delegations, the very notion amounted to exclusion
of entire nationalities from protection under the 1951 Convention or possibly a
geographical limitation in violation thereof. While some delegations argued that appeals should not
suspend decisions to deport cases in certain circumstances, one delegation
representing NGOs argued that suspensive effect should be guaranteed until a
final decision on the asylum claim.
27. There was general agreement that
all asylum-seekers should have access to procedures to adjudicate their
claims. Key features should
include access to advice on procedures, personal interviews (by specialized
staff when justified by the asylum-seeker’s vulnerability and specific
circumstances), counselling (notably by NGOs), legal aid, the right to appeal
negative decisions and the right to be informed of key decisions and stages in
the procedure. A decision on
asylum should be reasoned.
Accelerated procedures were useful to resolve manifestly well-founded cases as well as those
where abuse of procedures or an obvious lack of foundation for a claim was
manifest. Asylum-seekers had a
responsibility to cooperate with the authorities. Lack of documentation, however, did not in itself render a
claim abusive. The issue of lack
of cooperation and lack of documentation should ideally be handled as separate
issues. In addition, a mere
application for asylum should not per se be considered grounds for
detention.
3. Other Issues
28. Many delegations highlighted the
importance of training border officials and those at other points of entry on
standards and procedures for reception at the border. One delegation believed that the participation of NGOs and
intergovernmental organizations at the border could be useful to shoulder
national efforts. A number of
delegations offered technical and other support, and a representative of the
International Association of Refugee Law Judges informed delegations of its
training programme for appellate-level judges. Some delegations also described their own procedures for
making special provisions for asylum-seekers with special needs, notably female
asylum-seekers who needed to be attended by female staff, particularly in the
case of trauma or sexual violence.
Women should also be allowed to lodge an application in their own right
and have it considered on an individual basis, including if accompanied by a
man. One delegation suggested that
the claims of the growing number of unaccompanied or separated minors seeking
asylum need to be examined “outside the box”, giving due
consideration to whether the best interest of the child could indeed always be
preserved through asylum. In terms
of special needs, minors may need to be provided upon arrival with a guardian
and receive psychosocial support.
The single asylum procedure advocated by UNHCR was welcomed as a
potentially effective, rapid means for providing international protection
expeditiously to all those who need it.
This procedure deserved further examination.
4. Conclusions
29. There was broad agreement on a
number of issues, notably the need for basic common standards for refugee status
determination procedures derived from the framework of international refugee
law. Delegations also acknowledged
the need for flexibility, so as to take account of national and regional
specificities and domestic legal and administrative systems. States that have not yet done so were
encouraged to establish fair and efficient asylum procedures. In this context, the compilation of
best practice contained in document EC/GC/01/12 (notably paragraph 50) was welcomed
as a useful basis for guidance. It
was suggested that the Executive Committee could usefully undertake informal
consultations aimed at agreeing on basic guiding principles to build on ExCom
Conclusions 8 and 20, possibly in the form of a Conclusion on Asylum
Procedures, and build on UNHCR’s paper in greater detail. NGOs requested an opportunity to
participate in such discussions, even if they are taken up within the Executive
Committee. The Chairman proposed
to undertake informal discussions as to whether or not to take up the question
of an ExCom conclusion and, if so, the timing, participation and framework for
the related consultations.
V. CHAIRMAN’S SUMMARY
30. At the end of the discussions, the Chairman provided a brief oral summary highlighting some of the key issues and conclusions emerging from the discussions. A more complete written summary was made available following the meeting.