Select Committee on Home Affairs Appendices to the Minutes of Evidence


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.


  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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