APPENDIX 15
Memorandum submitted by the United Nations
High Commission for Refugees (UNHCR)
1. The United Nations High Commissioner
for Refugees (UNHCR) is mandated by its Statute to provide, in
co-operation with States, international protection to refugees.
A central aspect of the protection function is UNHCR's duty to
supervise the application of the provisions of the 1951 Convention
relating to the Status of Refugees. UNHCR's interest in the present
inquiry stems from the impact that some elements of the Emergency
Anti-Terrorism Bill will have on the climate for refugee protection
and on the proper interpretation and application of the 1951 Convention.
We have two inter-related areas of concern: the danger of creating
unwarranted associations between asylum-seekers/refugees and "terrorists",
and the possible impact of the new measures on procedural justice
for asylum seekers.
General considerations
2. UNHCR fully understands the need for
States to take robust steps to combat acts of terror-producing
violence against those living in their territories. Following
the tragic events in the USA on 11 September, this need has acquired
a new and compelling urgency. Those events have left all States-not
least democracies like the UK-with a difficult challenge: that
of finding new and effective ways to eradicate such acts and ensure
the safety of their citizens, without unduly infringing the principles,
rights and freedoms in whose name the fight against "terrorism"
is being fought.[83]
3. UNHCR takes the view that the current
environment calls for a reaffirmation of the rights, freedoms
and humane ideals-not least among them principles of refugee protection-that
lie at the heart of democratic values. In this connection, we
would urge UK authorities to use every appropriate occasion to
reaffirm the UK's commitment to implement its obligations under
the 1951 Convention fully and effectively in accordance with its
objects and purposes. UNHCR would recommend that the passage of
Anti-Terrorism legislation be accompanied by statements acknowledging
that the existing framework of refugee law-both in the UK and
internationally-is designed to help, not hinder, the Government's
efforts to address legitimate security concerns. It would also
be crucial for the public to be assured that the Anti-Terrorism
legislation is not intended to prejudice asylum seekers or refugees.
Unwarranted associations between asylum and "terrorism"
4. According to reports, the Anti-Terrorism
Bill contains provisions coupling "asylum" with "terrorism"
within the framework of new measures to combat terrorism. UNHCR
is gravely concerned that this coupling creates an unwarranted
association-not least in the public mind-between asylum seekers
and refugees on the one hand, and "terrorism" on the
other. The Bill also creates the erroneous impression that maintaining
existing asylum law would somehow impede efforts to combat terrorism.
In our view, any association between asylum seekers/refugees and
"suspected terrorists" would be fundamentally at odds
with both the spirit and the letter of refugee law.
5. Under existing law, the protection of
the 1951 Convention does not apply where there are serious reasons
for considering that a person has committed crimes against peace,
war crimes, crimes against humanity, serious non-political crimes,
and acts against the purposes and principles of the United Nations.
Under other Articles of the 1951 Convention, refugees are expressly
enjoined to conform to national laws, and the prohibition on return
amounting to refoulement is lifted where persons are a danger
to national security or to the community. These provisions clearly
show that the 1951 Convention does not offer protection to persons
involved in acts of terror or extreme violence. Such persons are
deemed not to deserve the special protection that is accorded
under the international refugee regime. They are therefore precluded
from protection although they may otherwise fulfil the criteria
for refugee status.
6. Given that the 1951 Convention adequately
excludes persons involved in acts of terror or extreme violence,
UNHCR would argue that there is no need for the Anti-Terrorism
Bill to alter existing asylum procedures.
Procedural issues
7. UNHCR is concerned by reports that under
the new measures, the Special Immigration Appeal Commission (SIAC)
may be barred from addressing asylum questions, effectively suspending
the application of the 1951 Convention to SIAC appellants. Such
a measure would wrongly imply that the examination of asylum issues
in the normal way is not compatible with a proper investigation
of national security issues. The measure would also infringe the
established principle of procedural justice that persons who request
asylum should be given access to fair and effective procedures
for determining their refugee claims.[84]
This principle is grounded in the right to seek and enjoy asylum
from persecution as stipulated in Article 14 of the Universal
Declaration of Human Rights, as well as in the general obligation
on States to assure asylum seekers and refugees "the widest
possible exercise of fundamental rights and freedoms".
8. The principle of access to fair and effective
procedures would be breached by provisions that seek to suspend,
curtail or abridge the examination of refugee claims. If this
principle is to be observed, it is important that the Anti-Terrorism
Bill allow SIAC to retain its existing responsibility to decide
asylum claims. While this would in no way impair SIAC's effectiveness
on matters of national security, it would ensure that SIAC's decisions
are informed by a holistic examination of inclusion, national
security and exclusion matters, without offending the asylum applicant's
entitlement to due process.
Conclusion
9. UNHCR shares the concern of States with
regard to acts of terror and violence, and fully understands that
recent developments justify renewed efforts to safeguard national
security. Refugee law and procedures-as they currently exist-do
not in any way impede such efforts. On the contrary, a principled
application of the 1951 Convention would complement efforts to
combat terror-producing violence in all its forms. Provisions
in the Anti-terrorism Bill that alter existing asylum procedures
would serve only to foster-particularly in the public perception-a
pernicious association between asylum seekers and "terrorists".
In UNHCR's view, such provisions would be neither reasonable nor
necessary.
November 2001
83 These comments are based on the Home Secretary's
Statement of 15 October 2001 to the House of Commons, and related
Home Office Press Releases. Back
84
See UNHCR Executive Committee Conclusion No. 82 (1997), paragraph
(d) ii; and paragraph (r) of Conclusion No. 85 (1998). Back
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