UNHCRMandates,ProceduresandRefugeeProtection

11June2017

PRESENTATIONMATERIALS

InternationalRefugeeProtectionFramework• United Nations High Commissioner for Refugees• Established 14 December 1950• Core Mandate from Statute and UNGA Resolutions:

• Provide international protection ie. deliver life-saving support; safeguard fundamental human rights

• Seek and develop durable solutions for persons falling within UNHCR’s core mandate

• Supervisory role for compliance with international obligations towards refugees and asylum seekers

• Non-political and Humanitarian in nature

InternationalRefugeeProtectionFramework

• 1951 Convention Relating to the Status of Refugees• Established the legal foundations of refugee protection• Serves as the core statute guiding UNHCR’s work• Provides the legal definition of ‘refugee’• Identifies the rights that are attached to refugee status

• One of the first ‘international human rights instruments’• Article 33(1) prohibits the refoulement of a refugee

• Widely accepted as customary international law

InternationalRefugeeProtectionFramework

A Refugee is… “any person who...owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

Article 1A(2) 1951 Refugee Convention

WELL-FOUNDEDFEAR

Well-foundedfearanalysis

• Actuality of the risk (of persecution):• Current/Forward-looking assessment• Past persecution not required• Fear of persecution at the time of departure not required (refugees sur place)

• Likelihood of the risk (of persecution):• Reasonable possibility (vs. mere possibility or beyond any reasonable doubt)

‘Subjective’element

• Claimant’s own appreciation of risk in country of origin.

• Reflects requirement to take into account Claimant’s individual personality, experiences (and vulnerabilities) in the assessment

• Urges a holistic approach, including consideration of:• the impact of treatment feared upon individual Claimant (persecution)• “unwillingness to return” or approach authorities for protection

• Not a separate criterion.

‘Objective’element

Indicators reflecting the risk of harm, such as:

• Relevant laws and practices

• Events and occurrences

• Experiences of similarly situated persons

• Personal profile of the Claimant eg, age, class, political or religious affiliations

• Past experiences – note that past persecution is not a requirement

Consider all relevant and reliable information available from credible sources

AvailabilityofStateProtection• International protection available only when the country of origin is

unwilling or unable to protect the Claimant from the harm identified.

• State protection can fail in several ways:

i. Persecutory acts committed by official agents of the State or de facto authorities

ii. Persecutory acts can be State sponsored or tolerated

iii. State may be unable to stop persecutory acts

PERSECUTION

WhatisPersecution?

• Not defined under the Refugee Convention. No universally agreed definition

• Inferred from article 33 to include any threats to life or physical freedom• Academics proposed a ’human rights-based approach’ to persecution which has

been adopted by courts around the world• International human rights law enshrines a significant number of rights which all

persons enjoy. These rights are universal and indivisible• Set out in the ’International Bill of Rights’

• Universal Declaration of Human Rights• International Covenant on Civil and Political Rights• International Covenant on Economic, Social and Cultural Rights

WhatisPersecution?

• The rights set out in these instruments impose different levels of obligation on States in terms of realisation. For some rights the State must ensure immediate realisation of the right in all circumstances. For others, the State must work towards gradual realisation.

• Note also that many rights contain limitations within themselves (eg Article 18 ICCPR)

WhatisPersecution?• For ease of reference, the human rights approach to persecution divides

into various levels of obligation:I. Level 1: Impose highest obligations upon States, and cannot be

derogated from in any circumstances (eg prohibition of torture; slavery)

II. Level 2: Rights that can be derogated from only in times of national emergency (eg freedom of movement; peaceful assembly; freedom of opinion and expression)

III. Level 3: Economic, social and cultural rights. Note that discriminatory withholding from a particular group leading to ”consequences of a substantially prejudicial nature” would amount to persecution.

AnalysingtheharmDescribe the harm

Identify the relevant rights involved

Analyse the rights violated

Assess the seriousness of the violation

GuidingConsiderations

• Requires a evaluation of the effect of all forms of harm identified• Requires an assessment on the effect of the harm on the

Claimant, based on his/her established profile• A Claimant cannot be required to hide his/her protected

characteristic or not exercise the protected right for the purposes of avoiding harm

• Intention of the agent of persecution is relevant but not a determinative factor in the assessment

CumulativePersecution

= discriminatory measures that may not in themselves amount to persecution, but when considered together or with other adverse factors, would be persecution if they lead to consequences of a substantially prejudicial nature, severely restricting the ability to enjoy fundamental rights and accordingly making life intolerable.

ProsecutionvPersecution

• Persons fleeing legitimate prosecution are not refugees.

• However, some forms of prosecution may be persecutory:

• Is there persecutory intent in the law/policy?• Is it enforced applied in a persecutory manner?• Is the sentencing proportional to the offence?• Is there due process protections?• Treatment during prosecution and whilst serving sentences?

CONVENTIONGROUNDS

GuidingConsiderations

• Required for the risk of serious harm to be due to reasons related to a Convention Ground rather than indiscriminate harm.

• Link may be real or imputed by the persecutor, even if the persecutor’s perception is incorrect.

• If the link to a Convention Ground exists, it does not matter that there are other unrelated reasons.

GuidingConsiderations

• Duty on the part of the decision maker to decide which Convention ground Is relevant, if any

• The relevant question is “whether the Convention Ground is squarely connected to the Claimant’s predicament…”

• More than a remote factor;• Need not be the sole or even dominant cause – ‘contributing factor’ is

sufficient

Race&NationalityRace • Real or perceived distinctive ethnic characteristic• May include common genealogy (including skin colour, physical features)• Often overlaps with other grounds, e.g. nationality, religion, MPSG• Persecution on basis of race often involves discrimination which has severe

consequences, e.g. ‘apartheid’, denial of citizenship

Nationality• Includes, but is not limited to “citizenship” of a country. • Also refers to membership in an ethnic or linguistic group and may

overlap with the term “race”

Religion• No universally accepted definition• The term “religion” encompasses:

• Traditional religions (Hinduism, Baha’I, Christianity, Islam, Judaism, Shinto) or sects within them

• Religions/beliefs with institutional characteristics, practices similar to those of traditional religions (Animism, Vodoo, Scientology)

• Acts of failing or refusing to observe a religion or to hold any particular religious belief (Atheism)

§ As a Belief; As an Identity; As a way of life.

PoliticalOpinion

▪ ‘Political’ needs to be broadly interpreted – including opinions on matters related to State institutions, government or society.

▪ Risk of persecution because of actual or imputed political opinion arising from actions or refusal to act in a certain way. For example:▪ Unwillingness to join a political party;▪ Refusal to perform military service▪ Association with others who are believed to hold particular political opinions▪ Refusal to comply with social norms imposed▪ Assistance provided to a group against the Government.

MembershipofaParticularSocialGroup

“A particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.”

2002 UNHCR Guidelines on International Protection

ConstructingParticularSocialGroupsCommon CharacteristicCh

aracteristic

Innate

Unchangeable

Fundamental

Social Visibility

Group

Society

INTERNALFLIGHTALTERNATIVE

InternalFlightAlternative

A specific area in the country of origin where there is no risk of a well-founded fear of persecution or other serious harm and where, given the particular circumstances of the case, the individual could reasonably be expected to establish him/herself and live a normal life.

IFATest1:Relevance

• Is the area of relocation practically, safely and legally accessible to the Claimant?

• Barriers to reaching the area• Passage through original area of persecution• Legal accessibility

• Who is the agent of persecution? What is the geographical extent of his/her reach or authority

• If it is the State, IFA is presumed not to be available• If it is a non-State actor, consider motivation, ability to pursue and

possibility of accessing State protection in the area of relocation

IFATest2:Reasonableness

• Can the claimant, in the country of origin, lead a relatively normal life without undue hardship?

• Durable safety and security in the new area

• Personal circumstances: vulnerabilities? Psychological trauma?

• Socio-economic conditions for economic survival

ESTABLISHINGCREDIBILITY

CredibilityinProtectionDecision-making

For Decision-makers, determining whether the material facts of a claim can be accepted as true:

• Is made on the basis of all the information available;• In light of observed credibility indicators – positive and

negative;• Taking into account the reasonableness of any explanations

provided for apparent credibility concerns

CredibilityIndicators

1. Sufficiency of detail and specificity2. Internal consistency of oral and written information3. Consistency with external statements and documentation4. Consistency with COI5. Plausibility

Due process requires credibility concerns must be put to the Claimant if adverse credibility findings are to be made.

STANDARDOFPROOF

Contextofprotectiondecision-making• Rights-based approach derived from international law• NOT privilege-based and derived from border control

• Attempts to predict future risks faced by the Claimant• Involves reasoned assessment based on available background

information and the personal information of the Claimant• However NOT a focused concentration on the past

Contextofprotectiondecision-making

“…among the most difficult forms of adjudication, involving…fact-finding in regard to foreign conditions, cross-cultural and interpreted examination of witnesses, ever-present evidentiary voids, and a duty to prognosticate potential risks rather than simply to declare the more plausible account of past events…”

Professor James HathawayCited in New Zealand Refugee Appeal No. 75574 (29/04/09)

BurdenofProof

• Often referred to as a ‘shared burden’

• “While the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.”

Paragraph 196, UNHCR Handbook

StandardofProof

• ‘Reasonable likelihood’• ’Serious possibility’• ’Real risk’

• Because of the inherent uncertainties and the severity of potential circumstances, the standard of proof to assess future risk is less than the balance of probabilities.

StandardAssessingRisk

Mere Reasonable possibility Balance of Beyond

Possibility probabilities reasonable doubt

(51%)

Civil law

Criminal Law

Refugee law

EXCLUSIONCLAUSES

EffectofExclusionClauses

• Persons who meet the inclusion criteria, but who are not eligible for refugee status because:

• Receive protection and assistance from UN agency (Article 1D)

• Not in need of international protection (Article 1E)

• Not deserving of international protection (Article 1F)

• Applied restrictively and with highest due process standards

Article1F

The provisions of [the 1951] Convention shall not apply to any person with regard to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations

Legalstandards,criteriaandguidelines

• International refugee law• International criminal law• International humanitarian law• International human rights law• Customary international law• UNHCR’s 2003 Guidelines and Background Note on Exclusion• UNHCR RSD Procedural Standards and IOM/FOM-019/2010

Standardofproofandevidence

• Burden of proof for exclusion on the decision-maker

• ”Serious reasons for considering” individual responsibility• Less than ”beyond reasonable doubt”, but more than ”balance of

probabilities”• Detailed, specific and reliable information

• Grounds negating individual responsibility applies

Exclusionanalysis– Framework

Step 1 Is exclusion triggered?´ Link between applicant and acts?

Step 2 ´ Identify acts within 1F´ Legal assessment – within 1F(a), (b) or (c)?

Step 3 � Basis for individual responsibility: ´ Material elements (actus reus)´ Mental element (mens rea)

� Grounds negating individual responsibility?

Step 4 Proportionality assessment

Article1F(a)Crimesagainstpeace

”Any act aimed at starting or carrying out a war of aggression, including the planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements of assurances, or participation in a common plan or conspiracy in any of the foregoing.”

Article 6, Charter of the IMT

Personal scope: Only persons in positions of authority in a State or State-like entity can commit a crime against peace.

Article1F(a)WarCrimes• Serious violations of international humanitarian law which entail individual

responsibility directly under international law (treaty or custom)´ International armed conflict

• Grave breaches of 1949 Geneva Conventions and 1977 Additional Protocol I, Statutes of ICTY, ICTR, ICC

´ Non-international armed conflict – from early 1990s• Violations of common Art. 3 of the 1949 Geneva Conventions,

Additional Protocol II, Statutes of ICTY, ICTR, ICC

• Civilians as well as military persons can commit or be victims of war crimes – if protected persons under IHL

Article1F(a)Crimesagainsthumanity

• Inhumane acts, when committed as part of a• widespread or• systematic attack• directed against a civilian population

during armed conflict or in peace-time

• Scope: Anyone (with or without connection to a State) can commit or be a victim of crimes against humanity

Article1F(b)Seriousnon-politicalcrime

• “Serious crime”• Apply international standards• Crimes which would be considered serious in most jurisdictions

• Predominance of non-political motives• No clear link between the crime and the alleged political

objective• Proportionality• “Committed outside the country of refuge prior to admission to

that country as a refugee”

Article1F(c)ActscontrarytothepurposesandprinciplesoftheUnitedNations• ’Purposes and principles’ are defined under article 1 and 2 of

the UN Charter• Relates to acts with an international dimension eg endangers

international peace and security; have impact on friendly relations between States

• Material scope: Acts falling within scope of art 1F(a) or comparable egregiousness and character

• Personal scope: may apply to anyone for whom individual responsibility is established.

ROLEOFLEGALREPRESENTATION

RoleofLegalRepresentationCore aims:• Help put forward all the information relevant to their refugee claim• Improving fairness and transparency• Contribute to the efficiency and expediency of the process• Strengthen quality of decision-making• Help identify specific protection needs/vulnerabilities of the Claimant• Discourage the submission of false claims and

misguided/exploitative misinformation• NOT to be adversarial

RoleofLegalRepresentation

To provide the Claimant with “sound, confidential legal and procedural advice, to ensure that the [Claimant’s] refugee claim is fully and accurately presented, and that the [Claimant’s] rights are protected and respected throughout the [procedure]”

Chapter 2.7, Procedural Standards for Refugee Status Determination under UNHCR’s Mandate

• Includes:• Preparation of oral and written submissions;• Collection and submission of supporting evidence, including COI• Submission of legal arguments in support of the claim

RoleofLegalRepresentation

• Legal Representatives are generally required to possess the following:

• Working understanding of the relevant laws• Working understanding of the relevant processes and procedures• Experience in working with Claimants• Thorough understanding of the specific claim of the Claimant that is

being represented• Bound by a code of professional ethics and responsibility

Tools:IntroductiontoCountryofOriginInformation

(COI)

Country of Origin Information• “[…] all relevant facts as they relate to the country of origin at the time

of taking a deacision on the [asylum] application including laws and regulations of the country of origin and the manner in which they are applied.”

– Article 3(3) of the EU Qualification Directive

What is COI?COI supports legal advisors and persons making decisions on international protection in their evaluation of the following relating to the Claimant’s CoO:1.Human rights and security situation2.Political situation and the legal framework3.Cultural aspects and societal attitudes4.Humanitarian and economic situation 5.Events and incidents6.Geography

Essence of COI

To qualify as COI it is essential that the source of the information has no vested interest in the outcome of the individual claim for international protection.

What it is not…• Does not compensate for a poor interview• Does not replace a thorough legal analysis• Does not replace a thorough individualised risk

assessment of the protection claim

COI is supplementary in nature!

Role of COI• Pre-interview Preparation:

Ø Provide a general understanding of the situation in originØ Help identify important aspects of the claim

• Examination of the claim (conducting the interview)Ø Probes credibility of statements made during the interviewØ Informs effective questioning to identify indicators of individual

risk

• Assessment of the potential risk upon return

Limits of COI Research• Need to protect personal data of the Applicant• Commonly inconclusive and too generic• Sometimes, COI is not available at all• Language constraints with non-English sourse

Risk Assessment

From training by ACCORD 2015

COI Research Cycle

Case Questions ResearchSources Presentation

DECISION-MAKING, LEGAL REPRESENTATION

COI RESEARCH

Quality Standards

RELEVANCE ACCURACYCURRENCY

RELIABILITY BALANCE

TRANSPARENCY TRACEABILITY

BY ACCORD

Assessing quality of COI

Relevance + Reliability = Weight

COI quality standards

COI quality standards

COI quality standards

COI quality standards

Principles for researching and using COI

Principles for researching and using COI

Principles for researching and using COI

Principles for researching and using COI

Sources of COI – Portals & Databases

Sources of COI – Specialised Reports

Sources of COI – Internet Searches

Tools:IntroductiontotheIstanbulProtocol

The ‘Istanbul Protocol’

• aka the UN Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Purpose• Manual for doctors • Manual for lawyers • Manual for psychologists • Medical checklist – guide for effective

documentation and investigation

Purpose• Raised standard of medical evidence documenting

torture• Vital reference and resource for training doctors new to

the work• Established evidence based on opinions of many

experts• Increasingly cited in asylum decisions

Most relevant sectionsV. Physical evidence of torture• A. Interview structure• B. Medical history• C. The physical examination• D. Examination and evaluation following specific forms• of torture• E. Specialized diagnostic tests

VI. Psychological evidence of torture • A. General considerations• B. Psychological consequences of torture• C. The psychological/psychiatric evaluation

Chapter V – Evaluation of Physical ScarsParagraph 187:“For each lesion and for the overall pattern of lesion, the physician should indicate the degree of consistency between it and the attribution given by the patient. The following terms are generally used:(a) Not consistent: the lesion could not have been caused by the

trauma described;

(b) Consistent with: the lesion could have been caused by the trauma described, but it is non-specific and there are many possible causes

Chapter V – Evaluation of Physical Scars(c) Highly consistent: the lesion could have been caused by the trauma described and there are few other possible causes;

(d) Typical of: this is an appearance that is usually found with this type of trauma, but there are other possible causes.

(e) Diagnostic of: this appearance could not have been caused in any way other than that described.

Chapter V – Evaluation of Physical Scars• SA (Somalia) v SSHD [2006] EWCA Civ 1302

Ø Decision-maker was alleged to have rejected credibility of the claim by considering the applicant’s oral evidence first, rejecting it and then discounting the medical report.

Ø The doctor did not use the criteria of the IP and simply repeated what the applicant told him about the scars without expressing a clinical opinion as to their consistency with the alleged cause.

Ø The court refers to Chapter V, para 186 of the IP and states medical reports should use these criteria.

Chapter VI – Psychological Consequences• The Istanbul Protocol requires that any evaluation of

torture should include a psychological assessment

• All kinds of torture inevitably comprise psychological processes:– Often causes devastating psychological symptoms– Methods can leave no physical lesions– Physical findings may resolve or lack specificity

Chapter VI – Psychological Consequences

The overall goal of a psychological evaluation is to assess the degree of consistency between a individual’s account of torture and the psychological findings observed during the course of the evaluation.

- Istanbul Protocol para. 261

Chapter VI – Psychological Consequences• No similar Judicial endorsement of Chapter VI as with Chapter V.

However, paragraph 250 IP. Two most prominent diagnostic classification systems:

1. “The International Classification of Disease (ICD-10) classification of mental and behavioural disorders;

2. The American Psychiatric Association “Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).

• Reports making reference to these criteria are likely to be given more weight.

Medical ReportsA medical and/or psychiatric report can have an impact on the interview and decision in many ways.

• For example, a report can:Ø Corroborate the claimant's evidence in support of the claim for refugee

protection (assess the degree of consistency between the person’s account of torture and the findings made during the evaluation)

Ø Provide an expert opinion about any difficulties the claimant may have intestifying at the hearing or in recalling certain experiences

Ø Reduce or eliminate the need for questioning on the torture incident itself

Medical ReportsThe purpose of a medical/psychiatric report is not to prove or disprove the allegations of torture, in other words, to draw conclusions about whether the torture did in fact take place.

Rather, the health professional provides expert opinions on the degree to which his or her findings correlate with the allegations of torture.

Medical ReportsSuch medical evidence can demonstrate that injuries or behaviourspresented could have been caused by the torture described. It makes sense not to expect medical professionals to be able to draw definitive conclusions because:

Ø Many forms of torture leave little trace, and even fewer leave long-term physical signs

Ø It is possible for injuries or marks to be the product of other causes

Best PracticeWhile the structure and contents of a medical report will vary from case to case, the following is a list of the basic elements:

• Basic Case Information (date of subject's name, date of birth, gender, date of evaluation, duration of evaluation, whether an interpreter was used, who else was present)

• Educational and professional qualifications (education, training, experience with victims of torture and in preparing reports)

• Background Information on Victim of Torture (age, occupation, education, family, past medical history, psychosocial history)

• Allegations of Torture and Ill Treatment (summary of allegations reported by claimant)

Best Practice• Physical Examination• Psychological History/Examination• Photographs / Body map• Diagnostic Test Results• Interpretation of Findings (statement of opinion on the consistency between

all sources of evidence citied above and allegations of torture. Reiterate symptoms and/or disabilities that the individual continues to suffer as a result of the alleged abuse. Provide any recommendations for further evaluation and/or care)

• Signature• Relevant Appendices (curriculum vitae, anatomical drawings, test results, etc)

Assessing Weight of the ReportFollowing are a number of questions to consider when assessing the weight of a medical/psychiatric report:

Ø Is the report recent? If not, could a new one be obtained?Ø What are the practitioner's credentials, and specific training/experience? Is

the content of the report within the practitioner’s area of expertise?Ø Did the practitioner meet with the claimant personally or simply refer to

medical records? If the practitioner met with the claimant, how long was the interview? Did it take place in one sitting or over several appointments?

Assessing Weight of the ReportØ Was malingering considered? If so, what steps were taken to rule it out?Ø Were differential diagnoses considered and ruled out? Is there any supporting

evidence? (e.g. X-ray, psychometric tests) Were any tests administered culturally sensitive?

Ø How definitive is the wording of the report? Did the practitioner examine the claimant?

Ø Was a history of other traumatic events in the individual's life taken?Ø Is the claimant a client of a recognized organization for victims of torture?Ø Has the claimant followed up on the diagnosis/suggested treatment?Ø Is the evidence consistent with the claimant's age, culture, gender, etc?Ø Are there any cross-cultural or gender factors that could impact on the reliability

of the examination?

Assessing Weight of the ReportThe following legal principles should be considered when weighing expert evidence:

Ø A decision-maker is not bound to accept and give full weight to an expert report or testimony. It may be weighed in the same manner as any other evidence

Ø However, when the expertise of a witness is not in doubt, the decision-maker should take particular care in explaining why he or she rejects the evidence of the expert, especially if the evidence supports the claimant’s position

Ø The greater the expertise, the greater the weight, unless there are other reasons to give the evidence less weight

Ø An expert’s opinion is not proof of the truthfulness of the information upon which it is based. Where the decision-maker finds the events on which the report was based not to be credible, after taking fully into account the medical report, s/he may give the expert report little weight.

Assessing Weight

• Do not fall into the trap of assessing the non-medical evidence first, concluding the applicant is not credible and then discounting the medical evidence. All evidence must be assessed in the round.