Select Committee on Home Affairs Written Evidence


39.  Memorandum submitted by United Nations High Commissioner for Refugees (UNHCR)

  1.  UNHCR has been entrusted by the United Nations General Assembly with the responsibility of providing international protection, under the auspices of the United Nations, to refugees within its mandate and of seeking permanent solutions for the problem of refugees. [182]Further, by virtue of Article 35 of the 1951 Convention relating to the Status of Refugees (hereinafter "the 1951 Convention"), the United Kingdom of Great Britain and Northern Ireland (the UK), as a State Party, undertakes to: "co-operate with the Office of the United Nations High Commissioner for Refugees in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of the Convention".

  2.  UNHCR notes that the United Kingdom has had recourse to extension of visa regimes, intensified border controls, both at the border and nearer to countries of origin, the imposition of penalties on carriers, and penalties on asylum applicants who enter with false or no documentation. Such measures could result in depriving persons in need of international protection from access to such protection. Eventually, these measures may result in refoulement contrary to Article 33 of the 1951 Convention. Penalties for illegal entry and/or presence of refugees could also be incompatible with Article 31 of the 1951 Convention.

  3.  UNHCR has had opportunity to express its views, both during and after the legislative process of most of the measures mentioned above. UNHCR would like to restrict its present comments to the Home Affairs Committee to two issues—the current policy on applications for family reunification by refugees in the UK and the criminalisation of asylum seekers who seek to enter the UK without valid travel documents.

ENTRY CLEARANCE

Family reunification for refugees

  4.  UNHCR is aware that the objective of the entry clearance system in the Foreign and Commonwealth Office is to "regulate entry to and settlement in the United Kingdom effectively in the interests of sustainable growth and social inclusion". We understand that this is a shared objective with the Home Office, which is responsible for setting immigration policy[183]. Whilst recognising the right of States to prevent the entry of those who do not qualify under the Immigration Rules, UNHCR is concerned that this objective is carried out in accordance with the UK's obligations under the 1951 Convention.

  5.  UNHCR's policies and practice on family unity derive from the principle, set out in international law, that the "family is the natural and fundamental group unit of society and is entitled to protection by society and the State". The Conference of Plenipotentiaries which adopted the 1951 Convention recognised the significance of this principle for refugees when it approved, in its Final Act, the recommendation inter alia that the unity of the family is an essential right of the refugee and that the rights granted to a refugee are extended to members of his/her family. The Executive Committee of the High Commissioner's Programme (UNHCR ExCom), of which the UK is a founding member, has also emphasised the importance of this principle in its Conclusions[184].

  6.  UNHCR would like to emphasise that family reunification is a benefit of incomparable value to the individual members and the family as a unit. At the same time, protecting the family unit through reunification is also a benefit to States, as the integration prospects and the well-being of individual refugees is enhanced, thus enhancing the adjustment of refugees to their new homeland and lowering social costs in the long term. [185]

  7.  The scope of the family unity principle is outlined in UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status[186] and in several UNHCR ExCom Conclusions[187]. In short, where the head of a family meets the criteria of the refugee definition, his/her dependants are normally granted refugee status according to the principle of family unity. Although the minimum requirement is the inclusion of the spouse and minor children, in practice, other dependants such as the aged parents of refugees are often considered if they are living in the same household. UNHCR as a matter of policy promotes the reunification of dependent unmarried children regardless of age, with their parents. This is particularly the case when these children were living with the parents in the country of origin and were separated as a result of flight.

  8.  In line with guidance provided by UNHCR's Executive Committee, UNHCR promotes a flexible definition of the family which emphasises the primacy of the element of dependency among its members. Giving due weight to the element of dependency ensures that decisions on family reunification are sensitive to the specific cultural context and to the individual situation of the refugees concerned. In this regard, UNHCR recommends that the element of dependency be used in an inclusive and not in an exclusive manner. The nuclear family is clearly the core, but element of dependency among family members, both physical and financial, as well as psychology emotional, should find its appropriate weight in the final determination. The dependency principle is to be applied proactively for purposes of inclusion, and not retroactively as a reason for refusing the reunification of families.

  9.  The element of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance as relationships based on blood lineage or legally sanctioned unions. In UNHCR's experience, the disruptive and traumatic aspects of the refugee experience and the flight to safety often means that refugee families are reconstituted out of the remains of various households who depend upon one another for mutual support and survival. These families may not fit neatly into preconceived notions of a nuclear family as understood in the UK (husband, wife and minor children), because the composition and definition of the family is determined by cultural factors in some cases and as a result of the refugee experience in others. Consequently, UNHCR recommends that States adopt a flexible definition of the family in the operation of family reunification procedures. In the absence of blood lineage or legally recognised relationships, UNHCR recommends that the principle of dependency be given the same weight when determining the merits of a family reunion application.

  10.  UNHCR would like to express its concerns regarding the UK's policy and practice on the reunification of refugee families. In UNHCR's view, the current entry clearance policy is too restrictive and results in the needless separation of refugee families. At present, only pre-existing families are eligible for family reunion ie the spouse and minor children who formed part of the family unit prior to the time the refugee sponsor fled to seek asylum[188]. Unfortunately, strict observance of the "pre-existing families" requirement has resulted in hardship[189] in many cases as it fails to take into account the reality of current refugee caseloads where refugees have spent some time in countries of first asylum. [190]A flexible approach, outside the restrictive notion of the nuclear family, would help to reunite family units which are more likely to break down as a result of physical separation during flight or pressures placed upon it in a refugee situation.

  11.  As regards the issue of entry clearance visas, the Independent Monitor's 2004 report sets out in detail the difficulties faced by families of refugees in Kenya seeking to be reunited with their family members in the UK. These range from the inability by the family member to gain admission to the British High Commission in Nairobi to lodge his application, administrative problems leading to the inability to deal with applications speedily and efficiently, lack of specialist training in refugee matters leading to a misunderstanding of the nature of family reunification under the Immigration Rules, bureaucratic insistence on documentation evidencing marriage or birth as well as the wrongful charging of fees. UNHCR London has also come across similar issues experienced by refugee families applying for entry clearance at other UK Missions. UNHCR welcomes the recommendations of the Independent Monitor and urges the UK authorities to implement these recommendations in all UK entry clearance posts.

DOCUMENTATION OFFENCES

Criminalisation of asylum seekers with no or false documents

  12.  Article 31(1) of the 1951 Convention relating to the Status of Refugees provides that

    "Contracting States shall not impose penalties on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".

  The intent behind Article 31(1) is to ensure that persons seeking international protection are not penalized for their illegal entry or presence, provided that they come directly from a territory where their life or freedom was threatened, present themselves without delay to the authorities and show good cause for their illegal entry or presence.

  13.  In granting this protection from penalization, Article 31(1) recognises, inter alia, that departure and entry into host countries by irregular means may be a method used by refugees fleeing persecution to reach safety as refugees are often forced to flee their own country in fear of their lives. [191]In UNHCR's view, a purposive interpretation of Article 31 will also include situations where a person seeking international protection arrives in the UK by irregular means without a valid travel document; whether with a false passport, a passport he/she is not entitled to or without a passport. Refugees and asylum seekers in transit to a final destination country could equally benefit from Article 31 of the 1951 Convention, if all the conditions of Article 31 are met.

  14.  The effective implementation of these obligations requires concrete steps at national level to ensure that refugees and asylum seekers within its terms are not subject to penalties. Specifically, States should ensure that refugees benefiting from this provision are promptly identified, that no proceedings or penalties for illegal entry or presence are applied pending the expeditious determination of claims to refugee status and asylum, and that the relevant criteria are interpreted in the light of the applicable international law and standards. In this regard, the interpretation and application of Article 31 requires that account be taken both of the developing factual circumstances affecting the movements of refugees and asylum seekers, and also of developments in international law, including the impact of regional and international human rights instruments.

  15.  UNHCR is concerned that sufficient safeguards are not put in place to ensure that asylum seekers arriving in the UK without a valid travel document are not penalised contrary to Article 31 of the 1951 Convention. Following the decision of Adimi[192], section 31 of the Immigration and Asylum Act 1999 was enacted to provide refugees with a statutory defence against charges involving offences and attempted offences set out in section 31(3) of the 1999 Act[193]. UNHCR subsequently urged the Home Office to amend its Asylum Policy Instructions (API) to take into account the provisions of Article 31 of the 1951 Convention[194]. For other offences not listed in section 31(1), UNHCR had understood that protection would be available under Article 31 of 1951 Convention as interpreted in the Adimi decision. Subsequent judicial scrutiny appears to indicate the contrary and the extent of protection available to asylum seekers appears to be limited to the terms of the statutory defences set out in section 31 of the 1999 Act[195].

  16.  The protection provided by Article 31 of the 1951 Convention is further undermined by the enactment of section 2 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. Despite assurances that "the defences already available will protect any refugee who has an acceptable reason for being undocumented from being convicted"[196], UNHCR notes that 230 asylum seekers have been arrested and 134 convicted under the new legislation[197]. UNHCR is concerned that the defence of a "reasonable excuse" for a person not being in possession of an immigration document, provided by paragraph 2.3 of section 2 is not sufficient to ensure compliance with Article 31(1) of the 1951 Convention.

  17.  UNHCR is of the opinion that the question whether an excuse is "reasonable" (and whether non-compliance with the instructions of a facilitator was "unreasonable") is inherently subjective and requires a careful assessment of the individual circumstances and special situation of asylum seekers. Very often persons who are of special interest to a government find it difficult, if not impossible, to either apply for a passport or to leave their country of nationality in a regular manner. Hence, the use of forged or irregular documents, and departure by irregular means (including reliance on a facilitator) are common methods used by asylum seekers to arrive in a country of asylum. A proper evaluation should consider an individual's experiences in his/her country of origin as well as during the journey. Factors such as culture, gender, age, social status and education are crucial to determining the context within which individual behaviour can be seen as "reasonable" or otherwise. In UNHCR's experience, the question of whether it is "unreasonable" to expect non-compliance with a facilitator's instructions must also take account of the peculiar relationship of dependency that often exists between an asylum seeker and the facilitator. The act of fleeing persecution is a chaotic and disorienting experience, and asylum seekers are extremely vulnerable to the various forms of duress and coercion exerted by facilitators and traffickers who often represent the sole means for an asylum seeker to flee persecution in his/her country of origin.

  18.  UNHCR urges a review of the current law as it applies to undocumented asylum seekers bearing in mind the UK's obligations under Article 31 of the 1951 Convention. Apart from the concerns outlined above, UNHCR is also concerned that conviction for such offences could also bring the asylum seeker under section 72 of the Nationality Immigration and Asylum Act 2002. As interpreted by section 72, the Home Secretary could then seek to exclude altogether a refugee from protection under the 1951 Convention by invoking Article 33(2) of the 1951 Convention. This could potentially result in a refugee being returned to face persecution in his country of origin, by reason of an offence committed in an attempt to leave the country in the first place. Conviction for such offences could also potentially prejudice an asylum seeker's asylum claim under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 as section 8 requires a deciding authority to treat such offences as damaging to the claimant's credibility. Finally, conviction in such circumstances could prevent a refugee from reuniting with his family abroad as many countries exclude persons with criminal convictions from their family reunification programmes.

1 December 2005






182   Statute of the Office of the United Nations High Commissioner for Refugees, United Nations General Assembly Resolution 428(V), 14 December 1950. Back

183   Report of the Independent Monitor (Immigration and Asylum Act 1999), June 2004 at p 6. Back

184   See ExCom Conclusions No 9 (XXVIII) of 1977, No 24 (XXXII) of 1981, No 84 (XLVIII) of 1997 and No 88 (L) of 1999. Back

185   Family Reunification in the Context of Resettlement and Integration, UNHCR Geneva 20-21 June 2001. Back

186   Paragraphs 181 to 188. Back

187   See Footnote 182 above. Back

188   Paragraphs 352A to 352D of the Immigration Rules HC 395 as interpreted in the Home Office API on Family Reunion. Back

189   For example, parents and siblings of a minor who has been recognised as a refugee are not eligible under the same family reunion provisions. Neither are non-married partners, dependent adult children, dependent parents or other members of the household, post flight spouses or family relationships. Exceptionally, the Home Office may exercise its discretion to allow entry of these persons if there are "compelling, compassionate circumstances." (Home Office API on Family Reunion). Back

190   See examples in Independent Monitor Report infra, p 52, 55. Back

191   Although Article 31 refers to "refugees" the effective implementation of this provision requires that it be applied to any person who claims to be in need of international protection. Article 31 would be rendered meaningless if it were applied only after formal recognition is issued. Indeed the entire construct of refugee protection would be undermined if parties to the 1951 Convention could disavow any obligations towards those who express an intention to seek asylum. Consequently, an asylum seeker is presumptively entitled to receive the provisional benefit of the "no penalties" provision in Article 31(1) until s/he is found not to be in need of international protection in a final decision following a fair procedure. Back

192   R v Uxbridge magistrates Court, CPS and the SSHD, ex parte Adimi, Sorani and Kaziu [1999] 4 All ER p 520 which followed UNHCR's guidance on the proper interpretation of Article 31 of the 1951 Convention. Back

193   Offences under 31(3) include Part I of the Forgery and Counterfeiting Act 1981 (forgery and connected offences), section 24A of the 1971 Act (deception) and section 26(1) of the 1971 Act (falsification of documents). Back

194   UNHCR's comments dated 3 March 2003 and April 2004 attached [not printed]Back

195   R (on the application of Gjovalin Pepushi) v Crown Prosecution Service [2004] EWHC 798 Admin, R (on the application of Hussain) v SSHD and others [2001] EWHC Admin 555. Back

196   Letter Baroness Scotland QC to Baroness Anelay of St Johns dated 28 June 2004. Back

197   Newspaper article in the Guardian dated 18 March 2005. Back


 
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