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Module 6 Individual Arrivals

By Loretta Morales,2014-05-07 15:41
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Module 6 Individual Arrivals

    MODULE 6

     INDIVIDUAL ARRIVAL

    Summary 1 Learning Objectives 2 Key Messages 2 Preparation 2 Module 6 Breakdown 2 Activity 1 - Presentation on Individual Arrival 3 Activity 2 - Case Study 7 Handout 1 - Case Study: Arrival at the Airport 9 Handout 2 - Case Study: Asylum Application 10 Handout 3 - Case Study: Illegal Border Crossing 11 Summary

    The purpose of this module is to raise participants’ awareness of the protection concerns in

    situations of individual, as opposed to mass, arrival. It provides an overview of the rights of asylum-seekers when they arrive at the border and the elements of a fair refugee status

    determination (RSD) procedure.

    Participants will learn that the host state has responsibility for conducting individual RSD

    procedures. They will see, however, that the UNHCR has often been the world’s largest individual

    decision-maker in refugee situations and, at times, has been solely responsible for RSD in dozens

    of countries (even in those countries that are a party to the 1951 Refugee Convention).

    The participants will identify the range of protection issues that arise for certain individuals, such

    as unaccompanied minors, women, children, and the elderly. They will also learn that certain

    asylum-seekers will not qualify for protection as refugees because they are excludable, that is, they have committed serious crimes against peace, war crimes, or acts contrary to the purposes of the

    United Nations.

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MODULE 6 - INDIVIDUAL ARRIVAL INTRODUCTION

    Learning Objectives

    By the end of the session, participants will be able to:

    ? Identify the key protection concerns of asylum-seekers who arrive individually;

    ? Identify standards for fair RSD procedures.

    Key Messages

    ? The principle of non-refoulement means that, on arrival, asylum-seekers must not be turned

    away at the border or frontier;

    ? Asylum-seekers are extremely vulnerable at the time that they first cross a border and

    should have immediate access to assistance and advice in a language they understand;

    ? The RSD procedure must comply with international standards for a fair determination,

    including that decisions be made by an independent, competent (including gender-

    sensitive), and impartial decision-maker;

    ? Some asylum-seekers do not qualify for protection as Convention refugees because they

    have committed serious crimes or other acts. The basis for excluding them is strictly

    defined in the 1951 Refugee Convention.

    Preparation

    ? Review recent changes to the standards and policies relating to individual asylum-seekers,

    as it is a fast-changing area. See, in particular, the Convention Plus, Global

    Consultations, and recent EXCOM conclusions noted in the bibliography;

    ? Select and photocopy the case study or studies that you will use in the session.

    Module 6 Breakdown

    Timing Method Resources needed Activity 1: Presentation Presentation in plenary Module 6.ppt 30’

    on Individual Arrival Handout 1 - Case Study: Arrival at the Case studies Activity 2: Case Study 60’ Airport

     Handout 2 - Case study: Asylum

    Application

    Handout 3 - Case Study: Illegal Total: 90 minutes Border Crossing Sources

    ? Reception of Asylum-seekers, Including Standards of Treatment in the Context of Individual

    Asylum Systems, Global Consultations on International Protection, 4 September 2001,

    EC/GC/01/17;

    ? Guidelines on Policies and Procedures in dealing with Unaccompanied Minors Seeking

    Asylum, Office for the United Nations High Commissioner for Refugees, Geneva 1997;

    ? See, generally, the UNHCR position papers from the Global Consultation relating to

    Refugee Status Determination, including those on: Access to procedures, “Safe Third

    Countries” and “Time Limits”; Complementary forms of protection; Strengthening protection

    capacities in host countries; Local integration; Reception of asylum seekers; Protection of

    refugees in mass influx situations: overall protection framework.

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MODULE 6 - INDIVIDUAL ARRIVAL ACTIVITY 1

    Activity 1 - Presentation on Individual Arrival Timing Method Resources needed

    Presentation Presentation in plenary Module6.ppt 30’ Total: 30 minutes

    Note to trainer

    ? Refer participants to “Individual arrival” in Protecting Refugees: A Field Guide for NGOs.

    ? The following notes after the slides provide background information for the trainer. The trainer

    should make a judgement about the level of information they give according to the experience

    in the group.

    Slide 1: Individual arrival

    Slide 2: Objectives

    ? Identify the key protection concerns of asylum-seekers who arrive individually;

    ? Identify standards for fair RSD procedures.

    Slide 3: Admission to a country of asylum It is important to emphasise that, while states have the right to control their border, they do not have the right to refuse entry this would be considered refoulement.

    Slide 4: Asylum-seekers

    When a person enters another country and seeks refuge, they are known as an asylum-seeker.

    They have a right to an individual determination of their claim to asylum. This can lead to a

    declaration that they are a refugee.

    Those individuals who have not yet been declared as refugees are in a vulnerable position.

    Often, nearly all asylum-seekers are in a vulnerable position and do not receive adequate

    assistance.

    Some states try to severely limit the number of individual asylum-seekers who can gain access to

    their countries and to RSD procedures.

    If an asylum-seeker presents himself/herself without delay to the national authorities to let them

    know they are on their territory to seek protection, then they cannot be subject to penalties for

    entering the country illegally. States have the obligation to set up RSD procedures, which can vary

    considerably from one country to another. Many countries do not yet have such procedures.

    Some states say that, because a person did not come with a valid passport, or because they used

    a false passport, that they are illegal. It is almost impossible for asylum-seekers to leave their country, let alone gain access to another country, if they state their intentions to seek asylum.

    States are not free to place undue restrictions on the movement of refugees, and any restrictions must be necessary, and usually only until such time as their status in the host country is

    regularised.

    There have also been many documented cases of sexual exploitation at borders by officials and

    other forms of coercion. It is often the case that NGOs working in the area will be the first to

    become aware of this.

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MODULE 6 - INDIVIDUAL ARRIVAL ACTIVITY 1

    Slide 5: Asylum-seekers have rights

    While an individual is having their asylum claim determined, they have basic rights and are always entitled to humane treatment. Some host countries do not allow asylum-seekers to work or allow them access to education, health care, or social assistance.

    Some states and the media may play on the confusion in the public mind between refugees, asylum-seekers, and illegal migrants, and this has a direct impact on the protection that asylum-seekers enjoy.

    Asylum-seekers must comply with the laws of the host country extending them international protection.

    Refugees have a well-defined set of rights that states have agreed to. The sources of these rights are found in refugee law, human rights law, and international humanitarian law.

    Slide 6: Who is responsible?

    Normally, it is the host government, through its officials, that registers asylum-seekers,

    determines the validity of their claim to asylum, and issues any documentation to ensure that the legal status of the asylum-seeker or refugee is known.

    In a number of countries, it is the UNHCR that takes full responsibility for determining asylum

    claims, and this can be a controversial role for them.

    Sometimes, the UNHCR implements and oversees this process. There are examples of situations where NGOs have done so, too: NGOs may receive asylum-seekers who individually arrive at a camp, for example, and may register them and refer them to the UNHCR or the government. There are also cases of NGOs providing documentation, although this might not be an appropriate role for an NGO and will really depend on the local circumstances and whether taking up this role will compromise their ability to deliver on their other assistance and protection work. Registration, RSD, and then documentation are the normal sequence of events for individually arriving refugees. It is important to determine who has responsibility for each stage. Registration indicates that this person is seeking asylum within the host country, and the asylum-seeker should be given some form of an identity card.

    Slide 7: Conditions of reception

    The level of ability of those officials who deal with asylum-seekers upon arrival is a major factor in determining the quality of protection asylum-seekers will enjoy.

    Officials who are not aware of, or sensitive to, gender issues or the needs of children may not provide these groups with a suitable interview process.

    Enabling legislation is also a major factor: some of the most prominent host countries in the world, such as Pakistan, Iran, and Thailand, have not signed the 1951 Refugee Convention. As a result, in some countries, reception and RSD processes are often unclear, irregular, or non-existent. This may jeopardise legal protection and material assistance.

    Slide 8: All refugees need:

    Information, as it is a key protection tool on arrival.

    Sometimes, governments and organisations are unwilling to provide asylum-seekers with information on the RSD process on the mistaken assumption that this will somehow promote abuse of the system.

    In reality, many genuine refugees can have their claims rejected due to misinterpretation or confusion, or they may feel that they have to exaggerate their stories in order to be recognised as refugees. All information and processes must take place in a language the asylum-seekers understand.

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MODULE 6 - INDIVIDUAL ARRIVAL ACTIVITY 1

    Note to trainer

    ? It is not necessary to provide all the information associated with this slide. Pick out issues that

    are relevant in the country you are in.

    Slide 9: Special protection needs on arrival It is important to differentiate between individual asylum-seekers when they arrive to determine if

    they have special needs. Children, the elderly, mentally and physically disabled people, and

    women might have particular concerns. These include:

    ? The need for early screening for special protection needs;

    ? Immediate family tracing in cases of separation;

    ? Treatment for trauma;

    ? Attention to specific medical needs;

    ? Access to other family members or community members;

    ? Reproductive health care;

    ? The need for sensitivity to, and provision for, same-gender assistance, where appropriate.

    Taking into account the governing principles embodied in the Convention on the Rights of the

    Child, the additional physical, emotional, and recreational needs of children must be taken into

    account by all actors.

    Special attention should be paid to the risk of child trafficking. Separated, underage female

    asylum-seekers are most vulnerable.

    The elderly and mentally ill are frequently destitute and risk neglect and abandonment by family

    members if they are unable to provide care. Some asylum-seekers may be mentally handicapped

    or severely traumatised and unable to articulate their claim, and this may be corroborated through

    interviews with other family members or persons accompanying them during flight.

    Cases of female asylum-seekers often raise specific concerns. For example, their reasons for

    flight might be due in whole or in part to gender-specific forms of persecution, and this should be

    raised as a concern to the RSD officials, and special measures should be taken.

    Female asylum-seekers need to be interviewed individually with female staff and

    interpreters, regardless of whether they are accompanied by a male relative. Problems faced

    by women range from those deriving from shortcomings in asylum procedures to those inherent in

    poor physical reception conditions.

    Without the assistance of trained staff or psychological, social, or medical referrals, they may be unable to describe the sexual violence or other forms of persecution that they may have suffered.

    Depending on their social and cultural background, special attention may be required when

    providing medical care. Gender-sensitive accommodation arrangements and counselling may also

    be necessary.

    Women accompanying female asylum-seekers may not be able to corroborate the stories of their

    male relatives, since they may not have been informed about the reasons for flight, either for their

    own safety or for reasons relating to culture and gender roles.

    However, there are other cultural, religious, or gender-specific concerns that arise, and it must be

    stressed that many men and boys have suffered sexual violence or forms of torture that

    they might not be able to speak about. RSD officials need to be alert to this and ensure that they provide a safe context for the asylum-seeker to indicate the nature of the harm they have suffered.

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MODULE 6 - INDIVIDUAL ARRIVAL ACTIVITY 1

    Slide 10: Refugee status determination (RSD) The basic principles of a fair RSD procedure include, amongst other things:

    ? Access to an asylum procedure;

    ? Access to advice and information;

    ? Right to counsel;

    ? Access to competent interpreters throughout the process;

    ? A determination by an independent, impartial, and competent decision-maker;

    ? Written and detailed reasons for rejection;

    ? A right to an independent appeal of the decision in the first instance.

    Particular emphasis must be placed on the fact that asylum-seekers need to be interviewed

    in a language they fully understand.

    While procedures should not be rushed and thus be unfair, they should also not drag on, leaving

    the asylum-seeker in legal limbo.

    Spouses arriving with their husbands should be given the opportunity to put in a separate claim,

    as they may have their own valid reasons for applying for asylum.

    Interpreters must not intimidate the asylum-seekers and should not have any prejudicial links or

    possible links to the authorities in the country of origin that might have been the agents of

    persecution. The asylum-seeker needs to be comfortable with the interpreter chosen, as tension

    between members of different ethnic groups may exist and hinder the free flow of information if the

    individual thinks the interpreter may be prejudiced.

    It is not appropriate for any asylum-seeker to be compelled to give details of how they have been

    persecuted if doing so would be traumatising. It is often not necessary for a high level of detail.

    A sophisticated decision-maker, and those who assist asylum-seekers in these proceedings, will know how to elicit the amount of information needed to establish the credibility of the claim being

    made. They will also know how to support the case in the broader context of general patterns they

    have observed in other cases or documented in credible human rights reports.

    The fairness of the overall RSD system can be measured on the basis of the average length of time that the process takes, and, while procedures should not be rushed and thus be unfair, they

    should also not drag on, leaving the asylum-seeker in legal limbo.

    Slide 11: Lawful detention

    One of the most common violations of refugee rights at the time of arrival is that asylum-seekers

    are detained. All asylum-seekers in detention can be exposed to torture and other mistreatment.

    There is also a danger that they will remain hidden, without access to support from NGOs, legal

    processes, and communication with their families. Female asylum-seekers in detention can be

    exposed to sexual violence and deprivation.

    This is important for humanitarian workers, as they may be amongst the few who have access to

    those who are detained.

    ? Children should never be detained;

    ? Asylum-seekers are not criminals and should not be treated as such or kept with

    criminals.

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MODULE 6 - INDIVIDUAL ARRIVAL ACTIVITY 2

    Activity 2 - Case Study

    Timing Method Resources needed

    Module6.ppt Group work on case studies Case studies 30’

    20’ Feedback to plenary Plenary feedback Handout 1 - Case Study: Arrival at the Wrap-up 10’ Airport

     Handout 2 - Case Study: Asylum

     Application

    Handout 3 - Case Study: Illegal Border

    Crossing Total: 60 minutes

    Note to trainer

    ? The presentation introduced the key concepts that a humanitarian worker would want to bear

    in mind if they are working in an area where there are individuals arriving and making asylum

    claims.

    ? The following case studies provide participants with an immediate opportunity to apply some

    of the concepts they have just learned. They are designed so that participants can identify

    gaps in the protection system. Decide prior to the session which case study is most relevant

    for the context.

    ? They also help participants to identify and illustrate the concept of complementarity and to

    discuss how different actors could, on the basis of their organisational strengths and/or

    mandates, ensure that individual asylum-seekers get better protection at the time of arrival.

    ? All three case studies follow the story of a refugee arriving in a country. You can modify them

    to suit the local circumstances, if that is appropriate. However, it is important to retain the key

    elements of the case that illustrate how authorities, NGOs, and the UNHCR deal with the

    asylum-seeker.

    ? It is not necessary for the participants to address all of the issues that arise in the case

    studies. This will depend on their level of experience.

    Group work on case studies (30 minutes)

    Divide the participants into three groups.

    Either distribute the same case study to each group or a different case study to each group.

    Ask the groups to read the case study all the way through, noting the key facts before trying to

    answer the questions.

    Ask each group to answer the questions at the end of each case study.

    Display the questions using Slide 12.

    Slide 12: Case study questions

    ? Outline the protection issues arising in this case;

    ? How could the RSD procedure be improved in the state?

    ? How might your organisation contribute to improving this situation?

    Tell them to write on a flip chart the key points that they want to share with the other participants

    in the feedback session.

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MODULE 6 - INDIVIDUAL ARRIVAL ACTIVITY 2

    Feedback to plenary (20 minutes)

    Ask all groups to put their flip charts on the wall. Ask one group to lead the feedback for the first question and if the other groups have anything to add. Repeat this process for all three questions, leading with a different group each time.

    Add additional considerations as necessary.

    Wrap-up (10 minutes) Show Slide 13.

    Slide 13: Best practice for states in individual arrivals

    Best practice includes:

    ? Respect for human rights and human dignity;

    ? An appropriate range and standard of assistance;

    ? Clear, efficient, and effective RSD procedures;

    ? Facilitation of self-reliance for asylum-seekers;

    ? Proactive management of public opinion;

    ? Burden-sharing with other states;

    ? Gender sensitivity in all interventions (including RSD) and awareness of special protection

    issues, such as those related to children, the disabled, and the elderly.

    Best-practice approaches give humanitarian actors standards to advocate for within the

    limits of their role, as well as indicators that can be used to measure changes in state

    behaviour.

    Ask participants what might constitute best practice for NGOs. The following are some suggestions:

    ? Identify responsibilities of host governments or the UNHCR, and monitor whether they are

    delivering on them;

    ? Share information on asylum-seekers with other NGOs, the government, and the UNHCR,

    as appropriate;

    ? Provide information and training to asylum-seekers on their rights and how to access

    assistance and services;

    ? Lobby governments on best practice;

    ? Build the capacity of officials dealing with arrival and RSD, including the training of

    interpreters, who may be drawn from the refugee population;

    ? Obtain access to RSD procedures, and monitor their efficiency, fairness, and effectiveness;

    ? Encourage governments to create and use alternatives to detention and monitor those who

    are detained;

    ? Support local community structures.

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MODULE 6 - INDIVIDUAL ARRIVAL HANDOUT 1

    Handout 1 - Case Study: Arrival at the Airport

    Mr A and his family, nationals from State Y, arrive at the airport in the State of K. His wife and two

    children accompany him, a boy aged 15 and a girl aged 19. The family also includes Mr A’s niece,

    aged 13. On arrival in the State of K, Mr A immediately presents himself to the immigration

    authorities at the airport and claims asylum for his family. He does not speak the language of the

    State of K, but the man who organised his flight and false travel documents had given him a piece

    of paper with the words “Asylum-UNHCR” and a telephone number written on it. Mr A hands the piece of paper to the immigration officer.

    The immigration officer does not understand Mr A’s language and makes no effort to get an

    interpreter. He escorts the family to a room in the airport where they are all subjected to a body

    search. Although a female immigration officer carries out the body search, there are male officers

    in the room. The wife and three children are taken to a separate room where many other people of

    different nationalities are waiting.

    Mr A is not given any chance to seek any advice or help from anyone, and he does not understand

    what is happening. He is also very worried because the paper bearing the words “Asylum-UNHCR”

    has disappeared. No procedure is explained to him, and he is simply asked to describe his reasons

    for wanting to come to the State of K and claim asylum. Mr A explains to the interpreter that he is a

    leading member of a minority clan in his country, which is currently torn apart by a civil war. He

    adds that his senior rank in the clan makes him a particular target, and he also fears for the

    security of his family. He is not asked to explain what fears his family members have, and the

    immigration officer does not interview any other members of the family. Not even Mrs A has an

    opportunity to tell her story.

    After 24 hours, Mr A is given a written notice saying that his claim for asylum has been refused

    “because the facts of his case do not meet the definition of a refugee”. He is told that he has

    another 24 hours to appeal the decision and is given the number of a lawyer. He tries repeatedly to

    contact the lawyer but does not manage to get through until 36 hours have passed. The lawyer

    tells him that he is “unfortunately out of time to appeal” and dismisses him by saying that he “can

    do nothing else to help him”. Mr A is reunited with his family, who have been kept in a locked communal area with minimal

    facilities, and he tells them the bad news: that they will be deported to their home country very

    soon. Mrs A tells him that she has collected the numbers of various refugee support agencies.

    Background information

    ? The niece’s parents have been killed;

    ? State Y is in serious turmoil, with increasing conflict and forced conscription of adults and, in

    some cases, minors;

    ? The State of K’s Immigration Act does not guarantee that asylum-seekers will obtain the

    assistance of a lawyer at the first stage of the RSD procedure but will get help during the

    appeals stage. However, an appeal must be lodged within 24 hours of a negative decision

    being given, and no exceptions can be granted.

    The Immigration Act also specifies: “all asylum-seekers will be held in detention until they are

    removed from the country. Only those granted refugee status will be released and given a permit to

    stay in the country.”

    Questions

    ? Outline the protection issues arising in this case.

    ? How could the RSD procedure be improved in the State of K?

    ? How might your organisation contribute to improving this situation?

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MODULE 6- INDIVIDUAL ARRIVAL HANDOUT 2

    Handout 2 - Case Study: Asylum Application

    Mr R. originates from a West African country torn apart by a civil war that has lasted for many years.

    After fleeing across two other countries experiencing civil unrest, Mr R finally arrives in the State of D. Mr R is accompanied by his family, which includes his wife, who is three-months pregnant; their 17-year-old daughter; their adopted son, who is 9 years old; an elderly uncle; and Mrs R’s mother.

    After staying a couple of weeks with other exiled persons at the border, they complete asylum claim forms and send them as instructed to the Refugee Eligibility Commission, which is a

    department of the Ministry of Interior.

    Two months pass before they are finally granted an individual interview. At her hearing, Mrs R is not able to give details about the reasons why they left their country and keeps repeating that she simply had to leave with her husband.

    For the next 10 weeks, their asylum application is examined by the Refugee Eligibility Commission, and the family has no contact at all from the Commission during this time.

    During this period, the family contacts several NGOs and the Red Cross Society in D, but they are told that these agencies are not allowed to assist asylum-seekers who have only temporary status. They are told by everyone whom they ask to help them that no assistance can be given to them

    before they are granted refugee status.

    Mrs R. encounters some medical complications and has to be hospitalised. As they cannot afford medical help, she doesn’t get the needed care, and she has a miscarriage.

    They are finally informed that their asylum claim has been rejected, that the decision is final, and that there is no possibility for appeal.

    The Refugee Commission asks them to get in touch with the Immigration Office, which will help them leave the country. Meanwhile, they learn from relatives who remained in their country of origin that the situation has deteriorated and that they should stay away at all costs.

    Mr and Mrs R meet a person working in an NGO for the protection of human rights and explain

    their case. They are told by the NGO representative that he will see what he can do. However, he soon leaves for a mission, and nobody else is answering calls at his office.

    Questions ? Outline the protection issues arising in this case. ? How could the actors involved with the R family have assisted or protected them better? ? How might your organisation contribute to improving this situation? Copyright ? 2005 Reach Out Refugee Protection Training Project Page 10/11

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