APPENDIX 41
Memorandum submitted by the United Nations
High Commissioner for Refugees
UNHCR'S MANDATE
AND INTEREST
IN THIS
INQUIRY
1. The United Nations High Commissioner
for Refugees (UNHCR) is a non-political, humanitarian organisation
mandated by the United Nations to lead and co-ordinate international
action for the worldwide protection of refugees and resolution
of refugee problems. UNHCR has two basic and closely related aims:
to protect refugees and to seek long-term solutions for them[42].
Alongside refugees, other persons of concern to UNHCR include
asylum seekers, stateless persons and in certain circumstances,
internally displaced persons.
2. UNHCR's interest in this inquiry stems
from three main considerations. First, the organisation is concerned
that those targeted for removal should not include refugees or
persons with protection needs. This can be ensured if asylum procedures
are scrupulously fair, and if the 1951 Convention is interpreted
and applied in a generous and humanitarian spirit. Second, unsuccessful
asylum applicants are entitled to respect for their human dignity
and human rights. States are bound to respect these rights. Third,
UNHCR recognises that the credibility of the asylum institution
is affected when those deemed to be without valid asylum claims
have the same opportunities to remain as those who qualify for
refugee status[43].
3. UNHCR's submission relates specifically
to the removal of unsuccessful asylum applicants. It emphasises
that a credible removal policy is one that is supported by a fair
and principled asylum procedure. It touches on the need for a
humane and compassionate approach and constraints on removal.
This submission is drawn from a variety of UNHCR/EXCOM documents
and has been prepared specifically for this inquiry.
A HUMANE APPROACH
4. In UNHCR's experience, the most effective
removal policies are those that are humane in character and which
give first priority to voluntary returns. This approach safeguards
human rights and human dignity, while raising the likelihood that
returns will be sustainable. Programmes that offer information
and counselling alongside re-integration assistance should support
a removal policy that highlights voluntary returns. To underpin
sustainable returns, re-integration assistance may be financial
or skills-based, and should include development assistance in
countries of origin. The UK has taken a similar approach with
regard to the recently announced return programme for Afghans.
5. UNHCR is concerned that a removals policy
that is driven by target removal rates may not be consistent with
a humane approach. In the drive to reach targets, sight may be
lost of the need to respect the privacy and personal dignity of
the individual and of the fact that the method adopted for removal
will impact the social cohesion of the community from which a
person is removed. In particular, the filming of removals will
not, in UNHCR's opinion, promote a humane approach to removals.
UNHCR encourages governments to promote voluntary return as an
alternative to forced removals.
A COMPASSIONATE APPROACH:
ADDRESSING SPECIAL
NEEDS
6. A compassionate approach is integral
to a humane and effective removals policy. An effective policy
should safeguard the unity of families and incorporate arrangements
to address the special needs of separated children, the elderly,
the handicapped and single women and couples with young families.
Where the unsuccessful applicant is a separated child, UNHCR recommends
that an assessment should first be made as to which solution is
in his or her best interests. If removal is deemed to be the optimum
course of action, there should be identified a suitable care-giver
in advance of return, who will take responsibility for the child
and provide him/her with appropriate protection and care in the
country of return. This may be a parent, other relative, other
adult care-taker, a government agency or a child-care agency.
UNHCR commends the UK for adopting this approach in its treatment
of this particularly vulnerable category of persons[44].
CONSTRAINTS ON
REMOVAL
7. Firstly, removal may be constrained by
a lack of documentation and a refusal by the country of origin
to readmit their national. These constraints may be addressed
in bilateral negotiations with the country of origin. Where, however
these obstacles to removal persist, a long-term solution for the
individual must be sought. In the interim, it is contrary to international
norms that an individual be detained indefinitely and without
review. It may be appropriate in such instances for the UK to
examine its obligations under the 1951 Convention Relating to
Statelessness and the 1954 Convention on the Reduction of Statelessness.
8. A second constraint on removal will be
protection-related grounds. Where conflict or severe human rights
abuses persist in a country, there are often strong grounds for
withdrawal of removal directions. Careful consideration should
be given to the granting of leave to remain in the UK in such
circumstances.
9. Finally, UNHCR urges that removal should
be avoided where it would be to a situation of internal displacement
in the country of origin. In such circumstances, the return of
unsuccessful applicants will only go to compound the situation
and may present a less than humane approach to the removal of
unsuccessful asylum seekers.
October 2002
42 See the Statute of the Office of the UNHCR annexed
to Resolution 428 (v) adopted by the General Assembly on 14 December
1950. Back
43
EXCOM standing Committee, "Composite flows and the relationship
to refugee outflows, including return of persons not in need of
international protection, as well as facilitation of return in
its global dimension", 12 Meeting, EC/48/SC/CRP.29 25 May
1998. See also EXCOM Standing Committee, "Return of persons
not in need of international protection", 8 meeting, EC/47/SC/CRP.29
30 May 1998. Back
44
UNHCR Guidelines on Policies and Procedures in dealing with Unaccompained
Children Seeking Asylum 1997. See also the Separated Children
in Europe Programme, Statement of Good Practice 2000. Back
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