The State of the World's Refugees 2006 - Chapter 2 Safeguarding asylum: Challenges to protection

States have consistently reaffirmed their commitment to refugee protection. However, there remain a number of gaps, mostly arising from long-standing problems such as violations of the principle of non-refoulement; lack of admission and access to asylum procedures; detention practices that violate international standards; lack of registration and documentation; and shortcomings in refugee status determination procedures.

Refoulement and border closures

At the very heart of the international asylum and refugee protection regime is the right of people whose lives and liberty are at risk to seek safety and security in another state. This principle underpins the notion of non-refoulement, which protects people from being returned to the frontiers of a country where they would be placed at risk on account of their race, religion, nationality, membership of a particular social group or political opinion. This principle is now recognized as a component of customary international law and is therefore considered binding on all states, including those that are not signatories to the 1951 UN Refugee Convention.

Despite the well-established nature of this principle, recent years have seen many instances in which asylum seekers have been rejected at borders or forcibly removed to countries where their safety cannot be assured.[1] In 2001, for example, thousands of Afghans fleeing the bombing of their country found that the borders of neighbouring states, which had hosted millions of Afghan refugees for over two decades, were closed.[2] Some refugees were eventually able to find their way across an international border, primarily to Pakistan. But thousands of others had no alternative but to remain in camps in the unstable border area.

In 2002, in the Great Lakes Region of Africa, tens of thousands of refugees from the Democratic Republic of Congo were returned to their country of origin under conditions that were far from secure.[3] In 2003, several hundred refugees fleeing renewed fighting in the Indonesian province of Aceh were removed from neighbouring Malaysia on the grounds that they were illegal migrants.[4] In the same year, South America witnessed a number of efforts to remove Colombian refugees from countries where they enjoyed temporary protection.[5]

Restrictions on access

Large-scale refoulement and border closure are generally associated with developing countries affected by rapid and large-scale refugee influxes. Governments in such countries often do not have the capacity to establish more sophisticated forms of control over the presence of foreign nationals on their territory. In the industrialized world, where asylum seekers tend to arrive in smaller numbers and over longer periods of time, states have a broader array of measures to obstruct or deter the arrival of people seeking international protection.

Passport and visa requirements are a primary case in point. Many refugees leave their home countries suddenly, without the opportunity to secure the documents they need to travel and enter another country. Others escape from countries that are in such a state of conflict and upheaval that such travel documents are impossible to secure. Even those with valid passports are frequently unable to secure the visa needed to enter an asylum country, since visas are not generally issued for protection reasons and may even be denied if it is thought that the applicant intends to seek asylum when she or he has reached the country concerned. Asylum seekers may consequently resort to the use of false or altered documents and engage the services of professional smugglers in order to make their escape. Significantly, the 1951 UN Refugee Convention recognizes the necessity of such actions, stating that a person who is in need of international protection shall not be penalized for unlawful entry to another country.[6]

Passport and visa requirements are by no means the only method employed to obstruct or limit access to potential countries of asylum. During the past two decades, many countries have imposed sanctions on airlines and other international carriers that transport improperly documented travellers, a strategy that has obliged the carriers to instigate their own checks and controls. A number of industrialized states have also deployed their immigration officials to foreign airports, primarily in countries known to produce significant numbers of asylum seekers and irregular migrants.

In their efforts to identify and apprehend individuals who are travelling without the requisite documents, states are exercising their legitimate and sovereign rights to control their borders, safeguard national security and ensure public safety. In an era of international terrorism, it is entirely understandable that politicians and the public should place such concerns at the top of their agenda.[7] Nonetheless, there is a need to recognize that the measures employed to protect national sovereignty and security can be very blunt instruments, preventing people who are in need of protection from gaining access to the territory and asylum procedures of another state. In some cases, the outcome of such measures is that people are refused admission and are removed to a country where their security is placed in jeopardy, thereby violating the principle of non-refoulement.

Denial of access to a potential country of asylum can also occur as a consequence of the 'safe third country' concept, whereby asylum seekers are refused admission to a state's territory and/or asylum procedures if they have arrived from a country that is considered to be safe or where they could have submitted an application for refugee status.[8] At first sight, this concept does not seem an unreasonable one, in the sense that it appears to prioritize the availability of protection over the asylum seeker's choice of destination. But in practice its application raises serious concerns, especially if the asylum seeker is not provided an opportunity to rebut the presumption of safety in the country from which she or he has arrived, and if that country is unable to consider the asylum seeker's claim to refugee status in a manner that is consistent with international protection standards.

While some states provide exceptions to the application of the safe third country concept, and do not invoke it when the asylum seeker has family members in the third country or when the person concerned is an unaccompanied minor, these exceptions are not the norm. Indeed, some countries have designated all of their neighbours as 'safe countries' for the purpose of asylum applications. This means that any asylum seeker who arrives by land is considered ineligible to submit a claim to refugee status and is liable to summary rejection and return at the border.

In the past five years, a number of governments and politicians in the industrialized states have suggested that it might be possible to prevent asylum seekers from gaining access to their territory, without at the same time denying them access to an asylum procedure and, if they are found to be in need of it, international protection. The favoured means of achieving these objectives is to be found in the notion of 'offshore' or 'extraterritorial processing', whereby certain categories of asylum seeker are removed from the territory of the state in which they have arrived and are transferred to a facility in another country or region pending an assessment of their claim to refugee status.[9] A more detailed analysis of such proposals and their implications for asylum and refugee protection is provided in Box 2.2.

Such policies and measures have compelled many asylum seekers to resort to people smugglers and to enter a country illegally or under a different pretext and claim asylum once they get in. Some asylum seekers who have entered illegally refrain from claiming asylum in an attempt to avoid deportation or restrictions being imposed on them, and instead choose to live as undocumented workers.[10]

Interception

Arrivals by sea have become common in the Caribbean, the South Pacific and the Mediterranean, directing attention to the issue of interception and rescue at sea. The arrival of asylum seekers by boats brings into question states' obligations towards refugees, freedom of navigation and the control of coastal borders.[11]

Interception at sea represents one of the most direct means whereby states seek to prevent asylum seekers from gaining access to their territory and domestic asylum procedures. This approach came to particular prominence in the second half of 2001, when a number of boats carrying asylum seekers were intercepted as they approached Australia. Controversially, the occupants of these boats were not allowed to land on Australian territory but, in the context of an 'extraterritorial processing' initiative which became known as the Pacific Solution, were transferred to other countries (Indonesia, Nauru and Papua New Guinea) where their claims to refugee status were examined (see Box 2.3).

Interception at sea has assumed a variety of different forms and has been practiced in a number of regions. During the Indochinese exodus of the 1970s and 1980s, boats carrying asylum seekers from Viet Nam and Cambodia were routinely apprehended and towed out to the sea by Southeast Asian countries of first asylum. For many years the US Coast Guard has intercepted ships carrying asylum seekers and unauthorized migrants, primarily from Cuba and Haiti. When permitted, access to US asylum procedures has consisted of a summary interview on-board the Coast Guard vessel. Defending its actions, the United States has stated that such interceptions are not in violation of the non-refoulement principle, which it considers to apply only to refugees within the territory of the state, and not to asylum seekers at sea.

In the Mediterranean region, the issue of interception and rescue at sea has arisen in response to the growing number of people transiting through North Africa before seeking entry by boat to the European Union. In June 2004, for example, a German-flagged vessel, the Cap Anamur, rescued a group of 37 people in the Mediterranean. The incident involved three European Union member states: Malta, Italy and Germany. When confronted with the plight of the Cap Anamur, Italy and Germany stated that they considered it an absolute duty to respect the international norm that imposes an obligation to lodge an asylum application in the country of first arrival (which they considered to be Malta, as the ship had crossed its territorial waters) and argued that a derogation of such a norm could open the door to numerous abuses.[12] After several days during which the vessel was not allowed to disembark at any port, and following the intervention of UNHCR and a number of NGOs, the boat was finally allowed to let its rescued passengers off in Sicily on humanitarian grounds.[13]

The occupants of boats intercepted in the Mediterranean have generally been taken for processing to a European port where they have been given the opportunity to submit an asylum claim. But instances have come to light in which vessels have been escorted into international waters with no provision made for the disembarkation of passengers. It should be noted that interception measures that effectively deny refugees access to international protection, or which result in them being returned to the countries where their security is at risk, do not conform to prevailing international guidelines and may even amount to a violation of the 1951 UN Refugee Convention.[14]

Reception and detention

Those refugees and asylum seekers who are able to leave their own country and enter another state often find themselves in a very vulnerable situation. They are likely to be in need of life-sustaining material assistance including food, water, shelter, sanitation and healthcare. In many situations they will be vulnerable due to the traumatic experiences they have gone through, their separation from family members and friends, and their arrival in a country with an unfamiliar language, culture and bureaucracy. In such circumstances, unaccompanied minors, refugee children and adolescents, female heads of household and the elderly and infirm are often at particular risk of hardship and abuse.

In practice, the reception conditions experienced by asylum seekers and refugees vary widely and often fail to meet minimum standards. In the last five years, serious cases of rejection at borders or forcible return of refugees and asylum seekers have been reported.[15] In developing countries, refugees frequently arrive in remote and isolated border regions of their asylum country where resources are scarce, where government bodies, international agencies and NGOs have a limited presence, and where the local population is barely able to eke out a living. All too frequently, refugees who cross a border in order to escape from turmoil in their own country find themselves in areas where the rule of law barely exists and which are characterized by high levels of crime, banditry, social unrest and political violence.

Even in more prosperous states, asylum seekers and refugees may encounter many difficulties in meeting their basic needs. In many of the industrialized states, the assistance that they receive from the state and other bodies may be subject to restrictions and provided on a time-limited basis. While waiting for their status to be determined they may be prohibited from entering the labour market, and therefore feel obliged to accept casual and illegal work in the informal sector where they are vulnerable to exploitation by their employers. In the worst cases, they may resort to more dangerous, illicit activities in order to survive, thereby exposing themselves to the risk of arrest and imprisonment.

The necessary public support for the reception of asylum seekers has continued to be hampered by the tendency of certain elements in the media and some politicians to mix the issues of illegal migration and refugees without sufficient concern for accuracy.[16] Areas of concern include the summary dismissal of asylum claims deemed manifestly unfounded on the basis of very broad criteria and unduly restrictive interpretations of what defines a refugee. The latter include very narrow and restricted notions of what amounts to persecution, who qualify as agents of persecution and what constitutes effective state protection. Furthermore, appeals procedures are often inadequate.[17]

One issue that gives rise to particular concern in the context of reception standards is that of detention. While the legal framework of refugee protection does not forbid governments from holding asylum seekers in detention, various conclusions of UNHCR's Executive Committee have recognized that detention must be regarded as an exceptional act, used only, for example, to establish a person's identity, to ascertain elements of their asylum claim or to protect national security and public order. The manner and duration of detention should be proportionate to these ends, and should also be subject to judicial or administrative review.

In some instances, all illegal entrants, including refugees and asylum seekers, continued to be detained on a mandatory basis. States have cited national security and public order as justification for such detention, and emphasize the need for such measures to determine identity and nationality and to deter other potential asylum seekers.[18]

Many countries detain refugee claimants and their children at various points of the asylum process. Most disturbingly, asylum seekers can be detained for failing to arrive with the necessary travel documents, and can remain in detention for the entire length of the asylum process. And while many states have established special holding centres for asylum seekers and irregular migrants, in other countries they are detained in regular jails, alongside common criminals.

Identification, registration and documentation

For the principle of asylum to be effective, people who are in need of international protection have to be identified, registered and provided with appropriate documentation. The need to strengthen registration as a protection tool has been increasingly recognized. The proper registration and documentation of refugees and asylum seekers are important in assessing and monitoring assistance needs. They are also significant protection tools, notably against refoulement and arbitrary detention. Registration facilitates access to basic rights and family reunification, enables identification of those in need of special assistance, and supports the implementation of appropriate durable solutions.

Where registration procedures are weak or ineffective, the practical consequences can be severe. Unregistered and undocumented refugees may be at risk of arrest, detention, refoulement or deportation, may be denied the material assistance they need in terms of food, water, shelter and healthcare, and may be unable to benefit from the family tracing and family reunion activities that are normally established in the aftermath of a refugee emergency. Such refugees are also disadvantaged when it comes to the establishment of voluntary repatriation, local integration and resettlement programmes that are intended to provide lasting solutions to their plight. In addition, the children of refugees and asylum seekers who are unable to register marriages and births may find themselves effectively stateless, and thereby deprived of rights both in their country of asylum and in their nominal country of origin.

Lack of official documentation continues to impede access to residence permits, public healthcare and social assistance, and to result in refoulement, arrest and detention. In some countries refugees were either not given any identity documentation or received documents valid for limited purposes and not necessarily recognized by the police, security forces or other government elements. In these situations, the lack of proper documentation made refugees more vulnerable to denial of rations and other assistance as well as to abuse, including beatings, extortion, arbitrary arrest and detention, and widespread intimidation.

The heightened focus on registration has yielded positive developments. It has encouraged efforts in many countries to register adult refugees individually, to provide more comprehensive demographic profiles of populations and to issue documentation on a more systematic basis. Some participating countries are Colombia, Côte d'Ivoire, Georgia, Ghana, Guinea, Sierra Leone, Tanzania, Uganda, Uzbekistan and Yemen.[19]

Status determination

In order to benefit from the provisions of the 1951 UN Refugee Convention, a refugee must first be recognized as someone who has a well-founded fear of persecution in her or his country of origin and is therefore in need of international protection. This process of identification and status determination takes place in two principal ways. When large numbers of people from a conflict-affected country cross an international border and seek asylum in another state, it is common for them to be recognized as refugees on a group, or prima facie, basis. This means that each individual does not have to be assessed on his or her need for protection.

In situations where asylum seekers arrive in smaller numbers and over longer periods of time, however, they are usually required to undergo a refugee status determination process, in which their need for international protection is assessed. In certain countries such procedures have attained a relatively high degree of sophistication, thoroughness and fairness. In many others, however, the process of status determination continues to be characterized by limitations and weaknesses.

First, asylum seekers may find that their claims to refugee status are not given a full or fair hearing, especially if they originate from or have transited through a country that is deemed to be 'safe' by the authorities in the state where they are seeking asylum. Other asylum seekers, especially those whose applications are considered to be 'manifestly unfounded' may be channelled into accelerated asylum procedures which do not enable them to secure adequate legal representation or to produce supporting evidence for their claim.[20]

Second, asylum seekers do not always have an adequate opportunity to appeal against the rejection of their claim to refugee status. And in some countries they are not allowed to remain pending the outcome of their appeal, but are returned to third countries or to their countries of origin before the appeal decision has been rendered. The benefit of a successful appeal will evidently be lost in such cases if the person concerned has already been exposed to lasting harm.

Third, the quality of the process used to assess asylum applications is not always adequate, often because states lack the capacity to undertake this task effectively and because they are unable or unwilling to invest sufficient resources in it. Adjudicators in many countries are poorly paid, inadequately trained and insufficiently motivated, and do not have access to the reliable country-of-origin information that is needed to assess an asylum application fairly and thoroughly. In many countries, moreover, the state's limited capacity has led to the growth of substantial asylum backlogs, requiring asylum seekers to live in precarious circumstances for months or years while waiting for a final decision on their case. States in developing regions are especially limited in their ability to undertake refugee status determination. In many instances they cede much or all of that function to UNHCR, which is also hard-pressed to undertake such a time-and labour-intensive task with the human and financial resources at its disposal.

Fourth, asylum decisions lack consistency, with acceptance rates for refugee claimants varying significantly from one country of asylum to another. In 2002, for example, the overall recognition rate for asylum seekers in Canada was 58 per cent, while in Greece it was less than 1 per cent.[21] Such variations can be partially explained by the fact that asylum countries have different caseloads, some of which are more likely to have bona fide claims than others. However, this does not explain why the acceptance rate for Chechen asylum seekers varies from virtually zero in some countries to close to 100 per cent in others.[22] Such inconsistencies arise because of varying interpretations of the criteria for refugee status and because the standard of proof required differs substantially from one country to another. Thus, while decision-makers in some states recognize that refugees often have difficulties in obtaining lawful travel documents, decision-makers elsewhere consider the use of false documents to be an indication of the asylum seeker's lack of credibility.

In recent years, certain groups of refugees in both large-scale influx situations and individualized asylum systems have been singled out and stigmatized on account of their ethnicity, beliefs or nationality.[23] A number of states in various regions effectively discriminated against asylum seekers when they denied them access to asylum procedures on the basis of their country of origin, because they came via certain countries or were from a particular minority.

In some countries, the absence of an appeal on the judgement of the merits of a claim weakens the credibility of the refugee status determination procedure. In addition, a number of restrictive measures have strengthened barriers to admission and thus access to asylum procedures. Shortcomings in procedural safeguards related to refugee status determination remain, most notably in accelerated procedures and the use of the 'safe third country' concept, both of which result in increasing restrictions on access to asylum procedures and infringement of the right to seek asylum. The increase in the use of alternative forms of protection at the expense of recognition under the 1951 UN Refugee Convention leaves asylum seekers and refugees in a state of uncertainty as to the duration and content of the protection afforded.

Restricted rights

Refugees who are recognized on a prima facie basis may not be obliged to submit individual asylum applications, but this is not to suggest that their protection and welfare is guaranteed because they have been admitted to and allowed to remain in a country of asylum. This chapter has already referred to the material hardships that are frequently experienced by refugees in developing countries, while the following chapter examines the many threats that exist in relation to the physical security of such refugees. Above and beyond these difficulties, many of the displaced, especially those living in protracted refugee situations, are confronted with serious restrictions on their human rights in areas such as:

• Freedom of movement: Refugees are often confined to camps or to other designated areas and can leave them only with special permission. They may be subject to fines and even penal sentences if they fail to comply with such regulations.
  
• Civil and political rights: In many situations refugees are barred from engaging in political activities, from holding mass meetings and from establishing their own associations and organizations.
  
• Legal rights: Refugees in developing countries often lack a clearly defined legal status, do not have long-term residence rights and have no prospect of seeking naturalization in their country of asylum.
  
• Socio-economic rights: A further right denied to many refugees is the ability to engage in agricultural, wage-earning and income-generating opportunities. They do not have access to land, they are not allowed to enter the labour market, they cannot take out loans, and restrictions on their freedom of movement make it difficult for them to engage in trade.
  
• Freedom of choice: Refugees living in camps frequently find themselves under the control of authoritarian political and military leaders within their community. This situation further limits their ability to exercise basic human rights, including the right to return to their country of origin at a time of their own choosing.[24]

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Introduction

Responses

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Notes

1. UNHCR, Note on International Protection, Executive Committee of the High Commissioner's Programme, 55th session, A/AC.96/989, 7 July 2004, para. 11.

2. Amnesty International, Afghanistan: Continuing Need for the Protection and Standards for Return of Afghan Refugees, AI Index: ASA 11/014/2002, 25 July 2002.

3. US Committee for Refugees, 'USCR Calls on Rwanda to End Forced Return of Congolese Refugees', Press Release, 26 September 2002; UNHCR, 'Pressure Continues for DR Congolese Refugees in Rwanda to Go Home', News Stories, 20 September 2002.

4. UNHCR, 'Malaysia: UNHCR Extremely Concerned by Deportation of Acehnese', UNHCR Briefing Notes, 5 September 2003; Human Rights Watch, 'Malaysia: Don't Return Indonesian Asylum Seekers', Press Release, 29 August 2003.

5. Amnesty International, 'Panama/Colombia: Border Security Must Not Violate International Refugee Law', Press Release AI Index: AMR 23/034/2003, 28 April 2003.

6. G. S. Goodwin-Gill, 'Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection', in E. Feller, V. Türk, F. Nicholson (eds) Refugee Protection in International Law. UNHCR's Global Consultations on International Protection, Cambridge University Press, Cambridge, 2003, pp. 186-8.

7. UNHCR, Note on International Protection, Executive Committee of the High Commissioner's Programme, 52nd session, A/AC.96/951, 13 September 2001, paras. 17-8.

8. UNHCR, Note on International Protection, Executive Committee of the High Commissioner's Programme, 53rd session, A/AC.96/965, 11 September 2002, paras. 17-8; Note on International Protection, Executive Committee of the High Commissioner's Programme, 54th session, A/AC.96/975, 2 July 2003, paras. 13-4. See also C. Costello, 'The Asylum Procedures and the Proliferation of Safe Country Practices: Deterrence, Deflection and Dismantling of International Protection?', European Journal of Migration and Law, vol. 7, no. 1 March 2005, pp. 35-70.

9. 'Extraterritorial processing' is not anew idea. It draws upon earlier practices, notably in the United States' use of its naval base in Guantanamo Bay to process Haitian asylum seekers. For further reading see G. Noll, 'Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones', European Journal of Migration and Law, vol. 5, no. 3, November 2003, pp. 303-341.

10. S. Castles, H. Crawley and S. Loughna, States of Conflict: Causes and Patterns of Forced Migration to the EU and Policy Responses, Institute of Public Policy Research, London 2003, p. 46.

11. See G. Goodwin-Gill, The Refugee in International Law, Clarendon Press, Oxford, 1996, pp. 161-7. See also UNHCR, Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea, and UNHCR, Rescue-at-Sea. Specific Aspects Relating to the Protection of Asylum-Seekers and Refugees, Expert Roundtable. Summary of Discussions, Lisbon 25-26 March 2002.

12. La vicenda della nave "Cap Anamur" all'esame dei Ministri dell'Interno Pisanu e Schily. Incontro a margine della riunione informale a Sheffield. Comunicato stampa del 06/07/2004. Available at: http://www.interno.it/.

13. In July 2004, UNHCR raised its concerns at the way the cases had been subsequently handled, and which resulted in the deportation of 25 persons to Ghana and 5 to Nigeria in July, while one person received a temporary residence permit without going through the asylum procedure. UNHCR News Stories, 23 July 2004.

14. UNHCR, 'Conclusion on Protection Safeguards in Interception Measures', Executive Committee 54th Session, Executive Committee Doc No. 97 (LIV) - 2003.

15. UNHCR, Note on International Protection, 2004, para. 11.

16. UNHCR, Note on International Protection, 2002, paras. 43-5.

17. UNHCR, Note on International Protection, Executive Committee of the High Commissioner's Programme, 56th session, A/AC.96/1008, 4 July 2005, para. 18.

18. See UNHCR's Notes on International Protection for 2000 to 2005. Also see Amnesty International, Protection Gaps: Amnesty International's Concerns to UNHCR's Standing Committee, 8-11 March 2005.

19. UNHCR, Note on International Protection, 2003, paras. 4-5.

20. UNHCR, 'Asylum Processes (Fair and Efficient Asylum Procedures)', Document prepared for the 2nd Meeting of the Global Consultations on International Protection, Doc EC/GC/01/12, 31 May 2001.

21. M. A. Kate, 'The Provision of Protection to Asylum Seekers in Destination Countries', New Issues in Refugee Research, Working Paper No. 114, UNHCR, Geneva, May 2005, pp. 1-2.

22. R. Lubbers, UN High Commissioner for Refugees, 'Talking Points for the Informal Justice and Home Affairs Council', Luxembourg, 29 January 2005.

23. UNHCR, Note on International Protection, 2001, paras. 38-40.

24. J. Crisp, 'No Solution in Sight: The Problem of Protracted Refugee Situations in Africa', New Issues in Refugee Research, Working Paper no. 75, Geneva: UNHCR, 2003, pp. 11-2.