Global
Consultations:
Protection
of Refugees in the Context of Individual Asylum Systems
(28-29 June 2001)
The
second meeting under the third track of the Global Consultations on
International Protection again gave rise to active participation and confirmed
the manifest will to find converging views. The spirit of cooperation and dialogue established in the
first meeting had continued to prevail.
The second meeting introduced a refugee voice through the testimony of a
refugee woman whose plea for “Action please” found great resonance
amongst participants. This laid
the ground for improving the Global Consultations’ reach out to the beneficiaries of international
protection. NGOs continued to
participate actively and contribute constructively to the debate. The participants recognized the useful
contribution of the regional workshops in Ottawa, Macau and Budapest, which not
only brought insights on the challenges and constraints experienced at field
level, but also formulated a number of substantive conclusions and
recommendations.
1. Refugee
protection and migration control
Delegations
addressed a number of general issues, including:
·
Recognition of the importance and complexity of the asylum-migration
nexus, in view of mixed flows of persons in need of protection and migrants,
and the likelihood that this trend will intensify as one of the consequences of
globalization;
·
Acknowledgement that available data on migratory movements is
insufficient and of the need to analyze and better understand the types and
volume of mixed movements, as well as the underlying motives, so as to inform
more effective responses;
·
Recognition of the need to view the problem in a human rights context
(not simply border or migration “control”) and as an aspect of
“migration management” which takes account of economic and labour
demands, as well as human rights concerns;
·
Recognition that such movements affect all countries – developed
and developing alike – and present a number of common challenges, but
that developing countries require international support to improve capacity to
respond effectively;
·
Recognition of the imperative for closer cooperation in devising
comprehensive and multifaceted responses amongst all stakeholders:
governmental, intergovernmental and non-governmental In this context, dialogue
between countries of origin, transit and destination is key;
·
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 extreme
suffering this causes, particularly to women and children;
·
Asylum-seekers must be assured of access to procedures and benefit
from appropriate standards of treatment;
·
Need for greater support to developing countries on
socio-economic factors that lead
to migratory flows;
·
Need for greater support to States to host refugees or receive them
back to their country of first asylum.
Such aid could also contribute to stemming secondary movements from
developing host countries facing protracted refugee situations.
Relationship between migratory movements and refugee protection (document EC/GC/01/11)
·
Broad endorsement of the joint IOM/UNHCR paper (EC/GC/01/11);
·
Recognition that the causes of movement are most likely overlapping
and include human rights violations or armed conflict, but also economic
marginalization and poverty, environmental degradation, population pressures,
poor governance and scarcity of decent work;
·
Recognition that, due to increasingly restrictive approaches, more and more asylum-seekers are
resorting to smugglers either in departing from their countries of origin or
moving onwards from countries of first asylum;
·
Undertaking that measures to stem trafficking and smuggling not be
allowed to override States’ commitments to respect refugee protection
responsibilities – particularly respect for the principle of non-refoulement – and human
rights in general, as well as migrant rights.
·
Need to provide more detailed and coherent data and statistics on
migratory movements;
·
The need for clearer commitment by States to introducing adequate
protection safeguards, complying with relevant international instruments;
·
On the question of people smuggling, suggestion that a number of
elements could contribute to preventing resort to smugglers in the first place:
providing opportunities for regular migration; operation of a proper and
efficient asylum system in compliance with international norms; and speedy
return of those found not to be in need of international protection;
·
Need for efforts to encourage new accessions to and full and effective
implementation of refugee instruments, as well as the United Nations Convention
against Transnational Organized Crime and its Protocols (on trafficking of
persons and smuggling of migrants), the 1990 Convention on the Protection of
All Migrant Workers and their Families, and relevant ILO Conventions (notably
nos. 97 and 143);
·
There were a number of positive suggestions on policy orientations, of
which information campaigns (both in countries of origin and receiving
countries) should be an important part: to provide a realistic appraisal of
opportunities for orderly movement; discourage irregular migration; warn of the
dangers of smuggling and trafficking; combat xenophobia; 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;
·
The issue of secondary
movements from countries of first asylum
requires further examination, including an assessment of whether
resettlement is appropriate;
·
IOM was requested to undertake a detailed study on the root causes
underlying irregular migration and it was suggested that regional organizations
(Council of Europe, OSCE and SADC) should also undertake similar studies;
·
Recommendation that development aid, trade and investment policies
should be more sensitive to refugee and migration concerns and address the root
causes of movement.
Interception
and protection safeguards
·
There were diverging views on interception. Some saw this being legitimate as part of States’
sovereign right to guard their borders.
Others acknowledged that interception could be a necessary tool to deter
smuggling, but must be tempered with protection safeguards. Still others – notably the NGOs
– were opposed to interception measures, viewing them as arbitrary and
dangerous;
·
States must avoid a culture of blaming the victims and, in accordance
with the relevant international instruments, should not penalize asylum-seekers
and refugees who use smugglers;
·
Recognition of the need to devote special attention to the plight of
victims of trafficking and smuggling, in particular women and children;
·
Concern that protection safeguards could lead to additional activities
for UNHCR, for which additional resources should be identified.
·
Broad support for UNHCR’s proposal to develop Guidelines on
Safeguards for Interception Measures incorporating appropriate protection
safeguards , which could usefully draw on the results of the Regional Workshop
in Ottawa;
·
Support for the suggestion that States which practice interception
should incorporate safeguards for the protection of intercepted persons in need
of international protection;
·
UNHCR was requested to initiate training efforts focusing on
safeguards in interception;
·
Suggestion that an independent evaluation of existing interception
programmes be undertaken;
·
Proposal to follow-up on the discussions in Ottawa on interception,
with a view to widening participation of countries from other regions.
Return
of persons not in need of international protection
·
Broad agreement on the desirability of quick and effective return of
persons found not to be in need of international protection, but recognition
that this return must be safe, dignified and sustainable, and ideally entail
assistance to the receiving State or the individual;
·
Agreement that the failure to return persons not in need of
international protection
undermines the integrity of asylum and migration management
regimes. Benefits of speedy
return: eases reintegration; discourages smugglers and traffickers; signals to
other potential migrants that the asylum avenue is not open;
·
The obligation of States to accept back their own citizens and
cooperate to readmit their nationals was repeatedly stressed, also as a human rights issue (the right of persons
to return);
·
Although countries of origin in the developing world require
international support to make returns sustainable, return should not be
conditioned upon international support.
·
While the return of persons not in need of international protection
should ideally be voluntary, States have the right to deport them and
non-voluntary return should be
conducted in safe, humane
and dignified conditions;
·
UNHCR’s involvement in return issues should be consistent with
its mandate and combined with an obligation of States to provide resources to
UNHCR for this purpose;
·
IOM was encouraged to continue programmes for the return of persons
not in need of protection (some developing-country delegations expressed
concern about lack of funds to finance such programmes);
·
IOM was requested to develop a set of guidelines for ensuring that
migrants whom IOM returns, do so voluntarily.
Cooperation
between UNHCR and IOM, as well as with States and other stakeholders
·
Encouragement for continued partnership between UNHCR and IOM;
·
Calls for clearer terms of reference as to what this cooperation would
embrace and concerns about the resource implications for UNHCR;
·
Given the complexity of the asylum/migration nexus, this partnership
could also embrace many other partners – governments, other interested
organizations (including regional organizations) and NGOs;
·
Caution was urged concerning the formulation of an international migration-management
regime, and a suggestion made to focus instead on national and regional best
practices;
·
Encouragement to include information activities as an integral part of
IOM/UNHCR cooperation.
·
Strong support for the proposed UNHCR/IOM Action Group on Asylum and
Migration, on the understanding that it would have due regard for the specific
mandates of each organization;
·
Recommendation that governments and relevant intergovernmental
organizations (ILO and Office of High Commissioner for Human Rights were
specifically mentioned) as well as NGOs could usefully participate in its work;
·
Suggestion that the Action Group’s programme of work might
include better data collection; research; formulation of policy options;
promotion or adoption of international standards; training; and practical
project initiatives in the field and in Geneva;
·
Request that a report on the work of the Action Group be shared with
the Executive Committee/IOM’s governing body.
2.
Asylum processes (fair and efficient procedures)
(EC/GC/01/12)
Under
this theme, delegations raised a number of general points, notably:
·
Access to well functioning, fair and efficient procedures is a
condition sine qua non for respect of the principle of non-refoulement, the right to seek and
enjoy asylum and the full and inclusive application of the 1951 Convention;
·
While the adoption of national legislation is important, its content
and the capacity to implement it are also essential;
·
Expeditious and fair procedures are a means to combat abuse;
·
More capacity-building is needed to help offset the severe constraints
that continue to exist in some regions; some offers of help were made to help
set in place asylum procedures and assist them to function effectively;
·
A mere application for asylum should not be grounds for detention;
·
A decision on asylum should be reasoned and include the possibility of
an appeal, combined with free legal aid.
Various
sub-items were also examined under this theme. What follows is a summary of essential points raised and the
conclusions reached.
·
Mechanisms to determine the responsibility of States for examining
asylum claims must be distinct from the substantive examination of such claims;
·
Time limits imposed for lodging an application should not be used to
restrict access to procedures, but non-compliance could impact on the
applicant’s credibility;
·
The Budapest meeting had helped elucidate issues surrounding the
“safe third country” notion and the impact of readmission
agreements on countries consolidating their asylum systems, highlighting
concerns by some countries of the “burden-shifting” effect;
·
Developing host countries face considerable burdens – that are
not adequately recognized – and accepting back persons having sought
“greener pastures” elsewhere must be accompanied by measures of
assistance, in a spirit of burden-sharing.
·
Adequate safeguards are essential in the case of the return of
refugees to a first country of asylum;
·
Adequate safeguards are also vital with respect to the safe third
country notion, notably the accepting State’s consent to the transfer and
prompt consideration of the asylum request;
·
Resettlement and local settlement may need to be considered when
return to certain protracted refugee situations is not viable.
There
was general agreement on the following issues:
·
Value of streamlined and expeditious procedures that identify persons
in need of international protection as well as those who are not;
·
Preference for multilateral or bilateral “Dublin-type”
agreements on apportioning responsibility for examining claims, rather than
unilateral use of the safe third country notion;
·
Undocumented asylum-seekers and uncooperative asylum-seekers are major
problems confronting States
Diverging
views were expressed, however, on:
·
The suspensive effect of appeal procedures. Some delegations felt there should be no suspensive effect
in some instances, while NGOs argued that a suspensive effect should be
guaranteed.
·
All asylum-seekers should have access to procedures to adjudicate
their claims;
·
Safeguards should also ensure access to advice on procedures, legal
counsel, personal interviews, counselling (notably by NGOs), right to appeal
against negative decisions and right to be informed at key moments of the
procedure;
·
Accelerated procedures are useful to resolve manifestly well-founded
cases, as well as those where abuse of procedures or unfoundedness is
manifest, provided they are
accompanied by adequate protection safeguards;
·
Asylum-seekers have a responsibility to cooperate with the
authorities; the authorities have a complementary responsibility to recognize
the vulnerability of asylum-seekers;
·
Lack of documentation does not, in itself, render a claim abusive; the
lack of documentation and the lack of cooperation should be handled as separate
and distinct issues.
Delegations
also shared views and suggestions on several other issues. They included:
·
the importance of training to ensure that officials at borders and
other points of entry are aware of standards and procedures for reception at
the border. Offers of technical and
other support were made by some delegations;
·
special procedures are important to assist asylum-seekers with
special needs, notably female asylum-seekers who need to be attended by female
staff, particularly in the case of trauma or sexual violence. Women should be allowed to lodge
applications in their own right, even if accompanied by a man. Unaccompanied or separated children
asylum-seekers, need to be examined “outside the box”, giving due
consideration to whether the best interest of the child could indeed be
preserved via asylum. Such
children may need to be provided on arrival with a guardian and receive
psycho-social support.
·
The proposed single asylum procedure could be the most effective,
clearest and swiftest means for providing protection expeditiously to all those
who need it, and deserves further examination.
While
some diverging views were expressed under this theme, there was broad agreement
on the following general issues:
·
The need to uphold basic common standards derived from the framework
of international refugee law, while acknowledging 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 should establish fair and efficient
asylum procedures; in this context, the compilation of best practice undertaken
by UNHCR was welcomed;
·
UNHCR should provide further guidance to States on how to handle
multiple applications;
·
The Executive Committee could usefully reach an agreement on some
basic guiding principles, possibly in the form of a Conclusion on Asylum
Procedures, looking in greater detail at the conclusions and recommendations of
document EC/GC/01/12. NGOs
requested the opportunity to participate in these discussions;
·
The Chair proposed to undertake consultations on the feasibility,
modalities, timing, participation and framework of such consultations.
In
closing the meeting, the Chairman acknowledged with gratitude the background
papers that had been prepared by UNHCR including the one prepared jointly with
IOM. He also thanked delegations,
including NGOs, for the great interest they had demonstrated in issues relating
both to the migration/asylum nexus and to the asylum processes, noting their
commitment to protection principles.
He also recalled the positive contribution made by the refugee voice heard
at the opening of the meeting, reminding delegations of the need to continue
the effort to increasingly involve beneficiaries in these important
consultations.