UK White Paper on Asylum and Immigration:
“Secure Borders, Safe Haven”
1. Every new asylum legislation represents a fresh opportunity to give concrete expression to the objects and purposes of the 1951 Convention within the broader international refugee protection regime. The principles that constitute this regime should be the measure against which the White Paper is to be assessed.
2. A striking feature of the White Paper is its recognition of the close relationship between asylum and migration issues, and the developing European dimension to both of these issues. The Paper usefully locates asylum policy within the broad frame of globalisation and migratory flows, and conceives of comprehensive solutions that address both protection and migration needs in a systematic manner. This reflects the conceptual approach developed in the course of the Global Consultations, namely to ensure that adequate protection safeguards are an integral part of migration control measures. The UNHCR considers following to be protection imperatives; ensuring admission to safety and granting access to asylum-procedures to determine international protection needs, treating all asylum seekers in line with human rights standards and extending international protection to those who need it. The crucial question is whether the White Paper’s proposals will ensure that a system which revolves around control and removal is balanced by these protection imperatives.
3.
The following are comments on areas of the White Paper that are of
particular interest to UNHCR. They relate mainly to sections of Chapters 2, 4,
5, and 6 of the White Paper.
4.
Acquiring citizenship in a country of asylum is an effective and durable
way to bring refugee status to an end. Recognised refugees would thus be among
the potential beneficiaries of expedited citizenship procedures. For this reason, UNHCR welcomes the
White Paper’s intention to speed up the process of acquiring British
citizenship. Expedited procedures
would be consistent with Article 34 of the 1951 Convention, which calls on
States inter alia to
“as far as possible facilitate the assimilation and naturalisation of
refugees” and to “make every effort to expedite naturalisation
proceedings and to reduce as far as possible the charges and costs of such
proceedings.” If the
acquisition of citizenship is to be meaningful for refugees, it should be
complemented by measures to facilitate and enhance their integration into UK
communities. UNHCR recommends that
expedited citizenship procedures should be implemented so as to allow
recognised refugees to derive full benefit from the refugee integration
programme as well as from the labour market measures outlined in the White
Paper. UNHCR would further recommend the inclusion of citizenship.
5.
Fundamental
to the exercise of good Citizenship is the citizens’ understanding of
what it means to be forced to flee and thus to lose the protection of the state
of origin and to have to seek refuge in another country. The responsibility to
provide protection to such persons therefore lies at the heart of good
citizenship. UNHCR therefore welcomes the introduction of compulsory teaching
of citizenship and democracy in English schools and the promotion of active
citizenship. UNHCR recommends that issues relating to refugees and
statelessness should be
incorporated into citizenship curricula throughout the United Kingdom
and stands ready to assist the
government in this regard.
6.
As pointed out above, UNHCR appreciates
the White Paper’s endeavour to
dovetail asylum policy with migration policy and to
draw on the European harmonisation experience to address domestic challenges. For example, issues such as those
raised by the Red Cross Centre at Sangatte might best be solved through a
common European asylum system that would offer a consistent and coherent
approach, while providing a high level of protection to asylum seekers and
refugees. At the same time, it is
important that the opening up of migration channels does not weaken national
commitments on the asylum front.
7. UNHCR commends the UK for its decision to establish a resettlement programme. As indicated in the White Paper (paragraph 4.16), the principal rationale for this decision is that vulnerable persons should not be exposed to the risk of traffickers and smugglers in order to access international protection. This rationale is welcome because it recognises the need to facilitate access to international protection by opening “new doors” for all refugees. A generous resettlement quota will ensure a proper implementation of this rationale. Moreover, a UK resettlement scheme can be strengthened through “joined up” implementation with expedited citizenship procedures, the Refugee Integration Programme and the labour market measures outlined in the White Paper.
8. Ideally, the UK programme should be designed with a long-term view of incorporating comprehensive protection solutions. Its design should make allowance for the future establishment of an EU resettlement programme. UNHCR will be pleased to continue to provide advice on resettlement issues and to share its experience regarding best practices in this area.
9.
It is apparent that the aim of these centres is to ensure close
management and control of residents, ultimately with a view to enhancing
efficiency in decision-making and improving removal rates. International experience confirms that
these aims are most efficiently achieved by creating an environment in which
residents are treated with respect, and in which their rights are fully
safeguarded. UNHCR therefore welcomes the commitment to “ensuring that
asylum seekers are properly supported and accommodated”, and that
“asylum seekers will not be detained in Accommodation
Centres”. UNHCR understands
that the latter commitment equally applies to asylum seekers in induction
centres.
10. We
recommend that measures should be put into place to facilitate asylum
seekers’ access to quality legal advice wherever they may reside. We note the White Paper’s view
that “legal advice is not a pre-requisite to initial decision
making” and “should not hold up the decision making process”
(para. 4.36). UNHCR’s experience is that quality legal advice at the
earliest possible stage helps not only to assure applicants that the procedures
are fair, but also to ensure speed and efficiency in the asylum process. Quality advice minimises the prospects
for appeals, and fosters confidence among asylum seekers.
11. UNHCR further recommends that the quality of care arrangements and accommodation should meet standards such as those outlined in UNHCR’s comments on the European Commission proposal for a Council Directive on minimum reception standards. (COM (2001) 181 final) of July 2001. There is a direct correlation between a wide range of facilities and purposeful activities in centres, the sense of security and support experienced by residents and levels of compliance with asylum procedures. A regime that is open, fair and humane will often yield fruit in the form of more efficient management. UNHCR suggests that support groups should be allowed full access to residents to ensure that counselling and other welfare services are adequately provided. Measures to address the special accommodation needs of children should also be implemented.
12.
The operation of the centres should be kept on a flexible footing and
regularly reviewed to reflect the experience of other EU States as well as the
provisions of relevant EU Directives and Regulations. The UK can also draw on its own good practice, an example of
which is the use of community-liaison officers to promote good relations
between asylum seekers and host communities.
13.
Children are especially vulnerable people. “Childhood is entitled to special care and
assistance” and authorities have a general responsibility to act in the
best interests of children. In
UNHCR’s view, these are the principal considerations that should govern
all matters relating to children, including those children who happen to be
seeking asylum. UNHCR
reiterates its concern that the UK continues to maintain a Reservation to the
1989 Convention on the Rights of the Child, as regards children who are
non-nationals. UNHCR recommends
that this Reservation be withdrawn, as it potentially constricts the scope of
the UK’s obligations towards children who are asylum seekers.
14. UNHCR
welcomes the White Paper’s declared intention to “continue to offer
protection and appropriate levels of care” to separated children who are
seeking asylum. UNHCR recommends that in practical terms children who are
asylum seekers should be
considered as having – in common with all other children –
an entitlement to special care and protection considerations. If anything, they are children in
especially difficult circumstances whose claim to special consideration is
particularly compelling. Addressing the special needs of children in a humane
and sensitive manner should be seen as compatible with the White Paper’s
underlying aims to better manage the asylum process, to achieve efficiency in
asylum procedures and to tackle abuse of the system.
15. UNHCR acknowledges the problem of abuse of procedures and supports efforts to address it. In UNHCR’s experience, procedures that aim to tackle abuse could themselves impact negatively on children and adolescents, and are therefore best applied in a flexible and humane spirit. UNHCR supports policies which ensure that age assessments are carried out by trained experts, with regard being had to the child's ethnic/cultural background. The experts concerned should proceed cautiously and be prepared to give the benefit of the doubt.
16.
Children should be given the opportunity to participate in the asylum
process. UNHCR encourages the UK
to explore the various methods by which the participation of children can be
facilitated.[2] One such
method is through the appointment of a guardian. Independent expert oversight
of matters involving separated asylum-seeking children can facilitate
participation while ensuring that the child's best interests are safeguarded.
The approach should be holistic, and in this respect, a guardian should assume
primary responsibility for the child's legal, social, medical and psychological
needs during the asylum procedure, and maintain responsibility while a durable
solution is identified and implemented.
17. Insofar as it is a voluntary process with the
necessary safeguards in place, interviewing children is another appropriate
method to facilitate participation. We welcome the commitment to ensure that no
one will be allowed to interview children about their claims unless they have
received necessary training. (Para. 4.58). We recommend that this requirement be extended to all staff
involved with asylum-seeking children, including interpreters. Special
consideration should also be given to ensuring that the interview environment
is as child-friendly as possible.
18.
Procedures for eliciting information from children work best where the
concerned staff have a good understanding of the refugee criteria, its
application to children and child-specific forms of human rights
violations. Country of origin
information that provides detail on the position and treatment of children
should also be made available.
Applications made by separated children should be prioritised and processed
in a timely manner.
19.
Children can achieve the protection and care they need in an environment
where their special
psychological, religious, cultural and recreational needs are met, and their
physical safety, emotional stability and overall development are
safeguarded. For these reasons,
UNHCR is unequivocably opposed to the detention of children who are seeking
asylum. Consultations on the White
Paper should be an opportunity to review the extent to which the present asylum
regime is generally conducive to the proper development of children who are
asylum seekers. UNHCR recommends
that the impact of dispersal on families and children - not least in terms of
community ties, physical safety and psychological development – should be
re-appraised. These factors should
be key to any discussion regarding the placement of separated asylum seeking
children away from the South East.
20. A
well-functioning appeals system is integral to fair and efficient refugee
status determination procedures.
The importance of high quality appeals stems from a number of
considerations. Appellate
decision-makers generally have strong traditions of judicial independence, and
it is often at the appellate level that protection principles and the finer
points of refugee law are authoritatively articulated.
21.
We welcome proposals to increase judicial capacity and make legal advice
more readily available.
Notwithstanding these commendable proposals, urgent attention is drawn
to the need to enhance the quality of decision-making at first instance. Sound and well-reasoned first instance
decisions help to ensure that appeals can be decided swiftly without infringing
principles of due process or fairness.
In UNHCR’s experience, a fair and efficient asylum system should
place equal emphasis on speed and high quality. To ensure such equal emphasis UNHCR would welcome concrete
proposals to improve the quality of decisions. One step in this direction would be ongoing training of
legal representatives and decision-makers at all levels. UNHCR stands ready to
contribute to such training activities.
22.
Asylum procedures often require the careful evaluation of complex
facts. Hence the need for
safeguards to ensure that all relevant documents and information are placed
before the decision-maker. Common
experience indicates that asylum systems benefit from a measure of flexibility
as regards time limits and other procedural parameters. UNHCR is concerned that proposals
for a statutory closure date and strict parameters for appeals should not be
implemented in a manner that prejudices asylum seekers and impedes effective
review of an asylum claim at the appeal stage.
23.
Further, UNHCR is concerned about the new rules providing for personal
delivery of some asylum appeal determinations directly to asylum seekers.
(para. 4.64)[3]. The removal-oriented rationale of these
rules could potentially result in asylum applicants not being permitted the
time and latitude to seek legal advice and to apply for judicial review, in
particular in cases where complementary forms of protection under human rights
instruments might be applicable.
We would welcome any action that would remove this risk. At the minimum, UNHCR would recommend
amendment of these rules to ensure that the appellant has time to lodge any
application for judicial review before action is taken to enforce removal.
24.
Accelerated procedures such as those in place at Oakington are
acceptable if adequate safeguards are in place to guarantee fairness, and
provided that their applications are appropriate for expeditious
consideration. Factors to be
considered in this regard include the profile of the applicants in question and
the situation in their countries of origin. UNHCR notes that where decisions are made by off-site staff
who have had no direct contact with the asylum seeker, there is no opportunity
to make a full assessment of credibility or to factor in the demeanour of the
applicant. UNHCR recommends that these areas be addressed, and that accelerated
procedures be applied to cases that are manifestly
well-founded.
Detention
25.
The
detention of asylum seekers has long been a matter of grave concern to UNHCR,
both in relation to the fundamental right to liberty and because of the
standards and quality of treatment to which detained asylum seekers are
subjected. UNHCR welcomes the proposals on reporting (paras. 4.42 to 4.46).
UNHCR encourages the UK to apply reporting requirements before resorting to
detention of asylum seekers.[4] UNHCR is
concerned that the intention to detain families “at other times and for
longer periods than just immediately prior to removal” could result in
measures that depart from international standards as outlined in Executive
Committee Conclusion No. 44 (1986) and further elaborated in UNHCR’s
Guidelines.[5]
26.
With regard to the proposal to repeal most of Part III of the
Immigration and Asylum Act 1999 (on automatic bail hearings), it is pertinent
to recall that Conclusion 44 recommends that detention measures “should
be subject to judicial or administrative review”. UNHCR recommends that the proposal to
repeal should be reconsidered.
Given UNHCR’s concerns with the detention of asylum seekers, it
regarded Part III as a bulwark against arbitrary detention and a crucial
safeguard for the asylum seeker’s entitlement to liberty and freedom of
movement. UNHCR further recommends
that affirmative measures be put in place to facilitate bail applications by
detained asylum seekers as well as the provisions of quality legal advice and
representation. The White Paper
proposes to modify statutory bail powers so that it may additionally be
exercised by non-Immigration Service staff. (Para. 4.58). Whether this will be
beneficial will depend on whether the extension of powers facilitates access to
bail and contributes to reducing the incidence of arbitrary detention. It will
be crucial that those newly empowered to grant bail are properly trained on the
particular needs and circumstances of asylum seekers.
27.
UNHCR retains a concern for the methods by which detention is
effected. If, as the White
Paper suggests, existing search procedures cause “needless
distress” to detained persons, then the proposal to extend the power of
detainee escorts to enable them to enter private premises to search a detained
person (para. 4.81) will have the similar effect of demeaning and humiliating.
The proposals seem likely to disrupt community relations and aggravate the
distrust that many asylum seekers already feel towards asylum policies. UNHCR recommends that this proposal
should be reconsidered, or at a minimum accompanied by measures to strengthen
the accountability of escort and detention staff and to establish mechanisms
for redress and grievances relating to complaints and violations of rules in
this regard.
29.
UNHCR supports programmes of voluntary return that respect the asylum
seeker’s right to informed and independent decision-making and which
pursue the sustainability of return through comprehensive schemes
in countries of return. UNHCR’s
experience is that while return incentives are valuable, the durability of return is most
effectively underpinned by development assistance. Specially designed return programmes for children should be
established which incorporate the necessary safeguards.[6]
30.
UNHCR welcomes the interest expressed in the White Paper in drawing from
the activities and good practices in many areas of the country as well as in
the EU and further afield. As
indicated above, UNHCR sees close connections between integration, a
resettlement programme and the various initiatives to create more flexible
access to the labour market, and recommends that practical steps be taken to
ensure the smooth dove-tailing of these elements. In this regard, UNHCR encourages the UK to incorporate the
insights of refugees in its implementation programmes. Through its work with
asylum systems over the decades, UNHCR has been closely acquainted with good
integration practice in many countries and would be pleased to share its
expertise with the National Refugee Integration Forum.
Tackling fraud – people trafficking, illegal
entry and illegal working
31. UNHCR generally favours an approach
that places asylum issues within the reality of contemporary trends in
migration. Without a
holistic and comprehensive approach, these trends will continue to impinge on
the asylum arena in a way that could undermine global confidence in the
protection regime for refugees.
The challenge, of course, is to reconcile effective State action in two
disparate fields. One is the field
of policing and the enforcement of immigration law and international criminal
law. The other is the field of refugee protection, under which States are
obligated to allow exceptions to normal procedures for non-citizens in special
circumstances.
32. UNHCR’s interest in this area
stems from the fact that people who meet the criteria for refugee status are
frequently compelled to resort to smugglers or traffickers in order to access
international protection. The
Foreword to the White Paper itself acknowledges “how difficult people are
finding it to reach this country”.
Although access to procedures for determining protection needs is a
principle of the global asylum regime, the system as it currently exists offers
few structured, controlled or orderly avenues for such access. It is left to the refugee’s personal
ingenuity and resources or to the smuggler’s preferences to determine
whether and how he or she can enter a country in order to claim international
protection there. UNHCR welcomes
emerging ideas (some of which are canvassed in the White Paper), on how the
global system can be put on a more predictable and more orderly footing. Clearly, however, global asylum reform,
desirable as it may be, is a matter for the long term and is unlikely to result
in any immediate predictability of movements. Thus, measures to combat trafficking and smuggling must
incorporate adequate protection safeguards to ensure that spontaneous arrivals
have access to procedures for claiming international protection.
33.
As regards illegal working, the ‘new approach’ mentioned in
paragraph 5.13 is in line
with UNHCR’s views already expressed. The comprehensive approach espoused should, however, include
a recognition that illegal working may be related to the fact that asylum
seekers receive a level of support that is below the national minimum. The proposal to replace vouchers
with cash and to increase the value of support by 1.6% (para. 4.52) is welcome
but is still inadequate. UNHCR recommends that the support given to asylum
seekers should be comparable to the national minimum.
34. UNHCR is pleased to note that the White Paper recognises that the victims of exploitation should receive the care and support they need, and proposes the development of a best practice ‘toolkit’ for the guidance of practitioners. (Paras. 5.34 and 5.35). UNHCR recommends that this toolkit should adequately address situations where victims of trafficking and smuggling may be in need of international protection. UNHCR is prepared to contribute to the preparation of the toolkit.
35. While border controls are a matter of sovereign prerogative, they are also linked to question of access to territory for those who may be entitled to international protection. Any legislation on this issue should therefore reflect a proper balance between the need for secure borders on the one hand, and on the other hand, the UK’s international protection responsibilities.
36. Fair
and efficient determination and removal procedures are a crucial element for
striking the right balance. The
authorities need to be confident that the status determination system is
sensitive and efficient enough to identify those in need of international
protection and those who are not.
Swift removal of those who are not in need of international protection
is therefore crucial. From our perspective, the strengthening of border
controls should be complemented with training and other measures to enhance
fairness in both status determination and removal procedures. UNHCR is prepared to work with the UK
to develop training programmes in this area.
37. UNHCR
shares the White Paper’s view that the UK should not provide a safe haven
for war criminals, those who commit crimes against humanity and other serious
criminals. This view is reflected
in various provisions of the 1951 Convention, notably Articles 1F, 2, 32, and
33. Article 1F seeks to ensure
that those who are found to have been involved in serious crimes prior to
seeking asylum are disqualified from the benefits of international
protection. Article 2 states that
refugees are bound to respect the laws of the countries in which they
reside. Article 32 provides for
the expulsion of certain categories of dangerous refugees and stipulates
safeguards for the same. Article 33 sets out – as an exception to the
principle of non-refoulement – the exceptional grounds on which a refugee may be returned to
a country in which he fears persecution.
The UNHCR Handbook on Procedures and Criteria for Determining Refugee
Status, as well as Conclusions
of UNHCR’s Executive Committee and various UNHCR Guidelines furnish
guidance on these and related issues.
38. UNHCR
is confident that existing Convention provisions, when scrupulously applied,
are adequate to ensure that serious criminals cannot enjoy the benefits of
international protection. In this
regard, it would favour more principled application of existing provisions over
the introduction of new legislation. The Convention provisions protect the
integrity of the institution of asylum by debarring serious criminals from its
ambit. At the same time, the
provisions operate within a framework of due process and other procedural
principles. Respect for these principles is itself crucial to the integrity of
the asylum institution. Any
new legislation on this issue – if this is thought to be necessary
– should be consistent with the 1951 Convention provisions as well as
with the framework principles that have developed over the decades. In particular, new legislation
should not compromise on due process principles as this could undermine the
1951 Convention.
39. The White Paper’s proposals raise
concerns for UNHCR. For example,
paragraph 7.22 indicates that Immigration Rules will be amended to “make
it clear that suspected war criminals can be refused entry to, and leave to
remain in, the UK on the grounds of their conduct, character or
associations.” One question
is whether the basis for “suspicion” will meet the standard of
proof for applying Article 1F exclusion or for invoking Articles 33 (2) or
32. Moreover, an important general
principle under the 1951 Convention regime is that of individual liability
– rather than guilt by association – for the crimes in question. These should be addressed in any new
legislation.
40. A broader question is whether the new legislation is
consistent with the rationales for exclusion under the 1951 Convention. The
Convention’s primary purpose is to identify those in need of
international protection and to provide for their needs. In a legal and conceptual sense,
Articles 1F, 32 and 33(2) of the 1951 Convention should not be regarded as
penal arrangements that are independent of the humanitarian frame of the
Convention framework. For this
reason, among others, these Articles are best interpreted and applied
restrictively, within the framework of a refugee status determination
procedures.
41. In this light, it is noteworthy that the White Paper appears to focus on the contribution that exclusion provisions can bring to the fight against criminal elements, the intention being to use “immigration powers where criminal proceedings are not possible”. (Paragraphs 7.26 and 7.27). This language could be understood to suggest that the exclusion provisions could be applied as an alternative – rather than alongside - criminal proceedings. If so, the exclusions would be utilised as a punitive scheme divorced from refugee status determination without its specific safeguards. This would be a matter of concern for UNHCR.
42.
We trust that these comments will be carefully considered along with
those of other refugee organisations, and that the views of stakeholders will
be reflected in the forthcoming asylum legislation. UNHCR stands ready to
provide further comments and assistance where necessary.
UNHCR BO London; 18 March,2002.
[1] The UNHCR “Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum 1997” define an unaccompanied child as a person who is under the age of eighteen, and who is "separated from both parents and is not being cared for by an adult who by law or custom has responsibility to do so". UNHCR would urge the government to adopt this definition.
[2] See principles and best practices in “Separated Children in Europe Programme, Statement of Good Practices” by Save the Children and UNHCR, October 2000
[3] Immigration and Asylum Appeals (Procedure) (Amendment) Rules 2001
[4] “Guidelines on applicable Criteria and Standards relating to the Detention of Asylum Seekers”, UNHCR, February 1999.
[5] See also the UN Standard Minimum Rules for the Treatment of Prisoners, 1977 and other relevant instruments enumerated in UNHCR’s Guidelines.
[6] See “Guidelines and Statement of Good Practice”, UNHCR, 1997.