"Institution- and Capacity-Building in the field of Refugee Protection and Asylum" - UNHCR Working Paper for meeting of Working Table III of Stability Pact for South Eastern Europe

Background

The Governments of South Eastern Europe are all parties to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. The countries in the region under consideration, particularly those that emerged from the former Socialist Federal Republic of Yugoslavia (SFRY) have experienced from their establishment, at the beginning of the past decade, the arrival of large numbers of refugees from neighbouring newly independent countries. The legal regime applied to these refugees has been rather specific given the size of the refugee population and the absence of other legal regimes to regulate their treatment. On the other hand, asylum seekers from countries other than those from the former SFRY have found themselves unable to have their claim assessed or to receive a decision on the merits of their claim. Recently, these countries have begun to experience the transit or arrival of asylum seekers from other regions often in mixed migratory flows.

The State of Play

In accordance with its mandate, one of UNHCR's overall objectives in the South Eastern Europe Region is to collaborate with governments in the development of asylum systems consistent with international and regional standards. Activities in this regard were initiated in most countries around 1997. The process was delayed due to the various parties' preoccupation with the consequences of the Kosovo crisis that particularly affected the region. A measure of stability now provides an opportunity to reactivate the process with renewed impetus.

Implementation strategies differ in each country, as they take into account the different stages in which each country finds itself in the area of refugee legislation, eligibility procedures, reception facilities and support systems. While UNHCR's support to the authorities is currently tailored to the specific needs in each country, UNHCR plans to develop, in the second quarter of the year, a region-wide co-ordinated approach to promote the development of consistent asylum systems in all the countries concerned. In doing so, UNHCR expects to use the accumulated experience in capacity building activities, which have been undertaken, most recently, in the context of the Central European States.

In recent years, the countries in the South Eastern Europe region have begun to receive small but increasing numbers of asylum seekers and refugees from outside the immediately neighbouring countries. As in other regions, they arrive after uncertain journeys and are sometimes smuggled over borders together with groups of economic migrants from countries in which they were unable to find adequate protection. Most of them intend to continue their journey to other countries and only few request asylum in the region. Without underestimating the challenges facing States in dealing with mixed population and their legitimate interest in controlling irregular migration, it is UNHCR's view that the differentiation between refugees and those deemed not to be in need of international protection is of paramount importance, and must be maintained in the crafting and implementation of migration control regulations and measures. Such regulations and measures should in no way compromise the application of internationally agreed principles and standards of refugee protection to which all the countries of the region subscribe.

The identification of people in need of international protection depends, to a great extent, on the establishment of fair and efficient procedures to enable identification and processing of asylum claims. The 1951 Convention and its 1967 Protocol, together with UNHCR's central mandate to oversee their proper implementation, remain crucial to international protection. Recent trends therefore highlight the importance of putting in place functional, fair asylum systems, which would permit the speedy processing of asylum claims in its continuum from reception to the identification of durable solutions.

The countries in the region are all on their way to establish an asylum system. Some have already adopted specific asylum legislation while others are at the drafting stage. These steps must be followed by the full implementation of the legislation, through the issuance or amendment of the relevant by-laws, decrees or other legal acts, as well as with the establishment of the appropriate institutions to transform the law into practice. In addition, the process will require training, skills development as well as generally enhancement of practitioner capacity (ex. border police, immigration officers, the judiciary) to handle asylum claims in a manner consistent with international and regional standards.

UNHCR will promote a regional approach to the development of asylum systems in the countries of South Eastern Europe by encouraging the exchange of experience among countries in the region as well as with EU Member States and applicant countries of Central Europe.

ALBANIA

Legal Asylum Framework

In 1997, UNHCR embarked with the Government of Albania (GoA) on a process aiming at institution and capacity building as well as addressing information gaps among the population regarding issues on refugee status, illegal departure, return and irregular movements. UNHCR played a pivotal role in the drafting of the Asylum Law, (the "Law") which was approved by Parliament on 14 December 1998. However, the intervening mass exodus of refugees from Kosovo in 1999 prevented its early implementation.

Institution and Capacity Building in the Field of Asylum

Because the interim refugee status determination procedures and co-ordination mechanisms have been only recently established, there are scores of related issues that need to be dealt with systematically in order to equip the institutions and personnel that will be involved in implementing the Law. In addition, the series of lacunae in the law, institutions and practice that have been identified through a systematic analysis will need to be filled so that the Law eventually meets minimum international standards. Without by-laws, subsidiary legislation or rules of procedures and adequate training of the various actors, the law will be ineffective. The eligibility procedure that exists is still in its infancy and requires extensive work at strengthening before it can be truly operational. The limited institutional capacity to deal with even limited numbers of asylum seekers or refugees will need to be raised to prevent the erosion of asylum altogether. A very positive factor is the GoA's commitment to implementing a full-fledged asylum system as a continuation of its strategy to match its legislation with West European and other international standards with the prospect of progressively approaching into Euro-Atlantic structures. In this perspective, GoA has accepted UNHCR's collaboration and lead role in the drafting of the required legal instruments that will foster adequate protection of asylum seekers and persons granted asylum in Albania. This commitment and understanding and the serious desire by the GoA to implement the Stability Pact objectives offer a window of opportunity that will be used to its full.

The Strategy or Plan of Action for Albania for the current year has two main components:

• the drafting of by-laws, decrees and/or amendments to the legal acts currently in use, and

• training of the relevant actors: government officials, NGOs (and to some extent UNHCR staff) to acquire and improve the skills required to undertake their job.

This training will concentrate on refugee and human rights law. A team of potential trainers from amongst the government officials/selected NGO community will be established to assist in the implementation of this programme. UNHCR expects to play a leading role in the process including training the trainers, development of training materials, in addition to funding the programmes and related activities. It is envisaged that besides refugee law and general protection principles, the participants of this training - government officials, lawyers or judges, will acquire skills in refugee status determination (RSD) process and interview techniques. The programme will also take into account gender sensitive issues with counselling to be given special emphasis.

BOSNIA AND HERZEGOVINA (BH)

Legal Asylum Framework

While BH has received large numbers of refugees from the region it has, thus far, had limited experience in dealing with third country asylum seekers and refugees, and its asylum structures are still in the nascent stages. In 1999, to address the influx of refugees from the Federal Republic of Yugoslavia, in particular Kosovo, the BH Government, in consultation with UNHCR, adopted the Instruction on Temporary Admission of FRY Refugees. However, only with the recent adoption of the Law on Immigration and Asylum ("the Law") that a legislative framework ensuring adequate protection to third country refugees was established. The Law is a very important step towards providing protection and asylum to refugees consistent with recognised principles and international standards. However, further measures remain to be taken by the Government in order to achieve full implementation of the Law and a fully functional asylum system. In particular, the issuance of by-laws regulating in detail, the implementation of the Law by State and Entity authorities, as well as the establishment of a unit fully qualified in asylum and refugee matters within the Ministry of Civil Affairs and Communication and an Appeals Panel under the Council of Ministers.

Institution and Capacity Building in the Field of Asylum

The co-operation and partnership that UNHCR has developed with the BH Government by supporting its efforts to protect and assist refugees from the region is expected to continue. It can easily be extended to the implementation of the newly adopted Law on Immigration and Asylum and the establishment of asylum structures. In particular, UNHCR envisages to contribute to this process in the following areas:

Technical-Legal Assistance to the establishment of an asylum system

Upon invitation from the Ministry of Civil Affairs and Communication, UNHCR will provide comments on the by-laws to the Law on Immigration and Asylum, which are currently being drafted by the Ministry.

UNHCR, in co-operation with the Ministry for Civil Affairs and Communication, is planning to provide training to Government officials on procedures and criteria for determination of refugee status, in accordance with international standards. Priority will be given to the staff of the unit within the Ministry of Civil Affairs and Communication in charge of making decisions on asylum applications and, in the second instance, to the members of the Appeals Panel. To this end, UNHCR is in the process of preparing and translating manuals and materials to be used in the training.

Financial assistance to the establishment of asylum structures

Within the framework of its ongoing programme to enhance the capacity of the Ministry of Civil Affairs and Communication to protect and assist refugees, UNHCR will contribute to the establishment of asylum structures. Such assistance may, in particular in the initial stages, include contributions towards establishment and running costs of reception centre(s) for asylum seekers, and assistance to the care and maintenance of asylum seekers and refugees.

Co-operation in related fields

With the establishment of the State Border Service, border officials will, in practice, often be the first authority the asylum seeker meets and to whom the need for protection must be expressed. It is, therefore, essential that the border officials are familiar with the relevant provisions of international and domestic law relating to asylum seekers and refugees. UNHCR will co-operate with the United Nations Mission in BH (UNMIBH) on providing the necessary training for personnel of the State Border Service in this regard.

Since 1996, UNHCR has supported the development of a network of Legal Aid and Information Centres throughout Bosnia and Herzegovina, which works to ensure respect of the rights of persons of UNHCR's concern. Through training and capacity building, UNHCR will work to integrate a refugee perspective into the activities of the Legal Aid and Information Centres, with the aim, eventually, to bring them in a position to represent asylum seekers in asylum procedures and promote respect of the rights of refugees.

CROATIA

Legal Asylum Framework

Even though Croatia has hosted large number of refugees since it was established, a system for the processing of asylum claims is still lacking in Croatia. The current system distinguishes between refugees from countries of the former Socialist Republic of Yugoslavia and refugees from "third countries". The arrival of refugees falling within the first category, namely Bosnians and persons from the Federal Republic of Yugoslavia, specifically Kosovo, were granted protection under "Temporary Status" and "Temporary Protection" respectively. These forms of protection were regulated by a series of internal rules issued by the National Office for Displaced Persons and Refugees (ODPR).

Asylum seekers from third countries are considered as aliens under the Law on Movement and Stay of Foreigners. Depending on the possession or the lack of a visa to enter Croatia, asylum seekers may be treated as illegal aliens liable to detention and the imposition of a fine prior to their ability to submit a claim to refugee status. It is understood that other potential asylum seekers appear to transit Croatia to other countries in the region.

In the absence of an organised body to conduct refugee status, the Ministry of Interior (MOI) has conducted a number of assessments of claims - initially with the support of UNHCR. The MOI is however, required by the Law on Movement and Stay of Aliens to request an 'opinion' from the Ministry of Labour and Social Affairs (MLSA) before issuing its decision. The opinion refers to whether Croatia is able to provide a recognised refugee with social assistance and employment. So far the MOI has made its decisions contingent of such opinions and not on the merits of the claim. To date, they have all been negative.

Institution and Capacity Building in the field of Asylum

In 1997 UNHCR began conducting training sessions for Government officials on refugee status determination and topics of International Protection of Refugees. It also initiated formal discussions with the Croatian Government on the development of an Asylum Law. A drafting working group (WG) was formed within the MOI in late 1998. In early 1999 the WG began its work of drafting of the asylum legislation. To assist in the process, UNHCR has made available technical advice and expertise. It has further organised seminars, round-tables and study trips to Austria and Denmark.

The Law on Asylum is currently in its second draft. The adoption of the Law on Asylum will be an important if not sufficient step to develop the asylum system in Croatia. A number of by-laws will need to be issued and other norms will have to be amended before the asylum system is fully operational. UNHCR plans to continue to support the Government in the process leading to the establishment of such asylum system by jointly identifying lacunae and norms that are not compatible with internationally recognised standards of protection. It will also work with the authorities in furthering the capacity of the adjudicators, judicial personnel, immigration officers and the border police in the process from access to the status determination procedure to the identification of durable solutions.

Similarly UNHCR envisages the provision of training advocacy and support to professional associations and NGOs that provide asylum seekers with legal counsel and advice.

The Federal Republic of Yugoslavia (FRY)

Legal Asylum Framework

At present there are three legal regimes for refugees. A federal regime governs asylum seekers and refugees from outside the former Yugoslavia, while a republican regime in each of the two federal republics, Serbia and Montenegro, is applicable to refugees from countries from the former Yugoslavia.

Upon registration, refugees from countries of the former Yugoslavia enjoy the rights to material assistance. The Serbian and Montenegrin refugee legislation applicable to citizens from the former Socialist Federative Republic of Yugoslavia (SFRY) does not contain specific time limits, but to some extent foresees the possibility to withdraw status when reasonable conditions for return have been created.

Concerning refugees from third countries, the FRY considers itself bound to the 1951 Convention and 1967 Protocol on the Status of Refugees. The FRY Constitution stipulates the right of asylum for foreign citizens and stateless persons. The Federal Law on the Movement and Residence of Foreigners of 1980, to date still in force, contains provisions for granting asylum in similar terms as the FRY Constitution. In practice, however, these provisions have not been applied. UNHCR used to determine refugee status under its general protection mandate. Refugees recognised in this manner were, and still are, allowed to remain in FRY without a particular status and with the consequent limitations to their economic and social rights.

Institution and Capacity Building in the Field of Asylum.

UNHCR has only been involved in capacity building measures to a limited extent: several seminars on the 1951 Convention and its 1967 Protocol related to the Status of Refugees for staff of the Serbian and Montenegrin Refugee Commissioners were organised in the period 1992-1998.

As concerns third country asylum seekers the current situation offers very few opportunities for capacity building activities. Given the economic and political conditions in FRY and with the presence of an estimated 500,000 refugees from the former Yugoslavia and some 200,000 internally displaced persons from Kosovo, it is unrealistic to expect that FRY will be able or willing to establish an asylum system for asylum seekers from third countries in the near future. Only if and when sustainable returns of refugees to Croatia and Bosnia will take place on a relatively large scale, and the international isolation of FRY will have ended, could activities towards capacity building for a functioning asylum system be envisaged.

The former Yugoslav Republic of Macedonia (FYROM)

FYROM has experienced the arrival of asylum seekers since the beginning of its independence. In 1992, approximately 40,000 refugees arrived from Bosnia and Herzegovina. In 1999, the Kosovo crisis presented FYROM with an unprecedented political and logistical challenge when it received more than 200,000 refugees from Kosovo in a two-month period; a number equivalent to 10% of its present population. FYROM managed to overcome successfully this situation through a combination of demarches by UNHCR and the international community and the willingness by sectors of the political establishment to secure the admission of refugees seeking access to the territory.

Refugees from Kosovo are granted the status of humanitarian assisted persons on a prima facie basis provided that they did not transit through Serbia, FRY, which is considered to be an internal relocation alternative by the authorities. New arrivals from Kosovo are small in number and are mainly persons belonging to the non-ethnic Albanian groups presently being persecuted there. Refugees originating from Serbia proper, including both ethnic Albanians and Serbs, are screened very carefully by the authorities. Currently there are some 20,000 refugees, 12,855 of which are registered as humanitarian assisted persons.

Considering the volatile situations in the neighbouring countries, it is difficult to predict the demand that the FYROM asylum system will face in the future. Nevertheless, UNHCR considers of utmost importance promoting the adoption of national asylum legislation that conforms to universal and regional standards.

Legal Asylum Framework

FYROM is a State party to the 1951 Convention relating to the status of refugees and its 1967 Protocol. However, the principles laid out in the Convention are neither adequately reflected in national legislation nor implemented. It should be noted that despite the existence of limited provisions relating to asylum and refugee status in the Law on Movement and Residence of Aliens, the Government does not grant refugee status to asylum seekers.

Institution and Capacity Building in the field of Asylum

Since early 1998, UNHCR has been involved in an advisory capacity in the Working Group on the "Draft Law on Asylum," established upon the initiative of the Ministry of Interior (MOI). The first complete version of the Draft Law was finalised prior to the eruption of Kosovo crisis, which regretfully forestalled the process. Work resumed in September 1999. In January 2000 the MOI drafting group shared with UNHCR the latest Draft Law on Asylum. Unfortunately, certain aspects of this latest text are not consistent with international standards and European practice. UNHCR will continue to support the process drawing the authorities' attention to such inconsistencies and suggesting relevant amendments. It will also provide support for the establishment of an Asylum Body, the adoption of a refugee status determination (RSD) system and the development of an Asylum Network in which all relevant actors (administration, judiciary) participate.

Technical-Legal assistance to the Establishment of an Asylum Body and adoption of a RSD system and related activities

Even in the absence of the Law on Asylum, the Immigration Bureau is likely to implement RSD procedures for the residual cases and new arrivals under the umbrella of the Law on Movement and Residence of Aliens. At present, there is no independent body dealing exclusively with Asylum related issues within the Immigration Bureau of the Ministry of Interior and no established practice of refugee status determination. UNHCR is discussing with its government counterpart a programme to promote and assist, both technically and materially, the establishment of a separate Asylum Bureau within the Immigration Bureau, with a staff of Inspectors who will be responsible solely for RSD and refugee-related issues.

UNHCR, in co-operation with the Ministry of Interior, is also planning to provide training to other key government officials both to inform them on universal and regional standards for RSD as well as recommended standards of treatment of the refugee population.

Other related activities that are currently being explored are:

• The establishment of a library within the Immigration Bureau will be set up, containing legal documents, manuals, country of origin information and other materials relevant for RSD. The most relevant refugee legal documentation will be translated into Macedonian.

• The promotion of exchange of experience of those selected officers who will deal with asylum seekers with other Eligibility Officers from Western Europe.

• A Regional Workshop on Comparative Asylum Legislation and RSD practices in the region. Speakers would include experts from the Council of Europe, drafters of asylum legislation from countries in Central Europe, officers in charge of national commissions dealing with refugees or those officers who deal with asylum claims on an ad hoc basis, and UNHCR officials. Participants should include two government officials who deal with asylum claims on a daily basis and UNHCR local staff in the region.