Raising Procedural Irregularities

As clients go through the RSD process, as a refugee rights organization you will need to be able to spot and respond to Procedural Irregularities. The following section is set out as a guide to enable you to develop a personalised approach to picking up on when procedural irregularities occur within the RSD process by the local UNHCR office or officer and how to respond when appealing a decision based on these irregularities.

The appeal process will vary according to the country in which you are working and the body that governs the RSD process and therefore it is vital to become familiarized with the local system. Please note that this guide focusses on UNHCR run RSD programmes, however the information can be tailored and used when dealing with government run RSD programmes.

UNCHR RSD procedures

This section should be read in conjunction with the UNCHR procedural standards for refugee status determination. All references to section numbers refer to the procedural standards. See below:

Some basic facts

  • In 2011, there were 80,100 first instance RSD applications to UNHCR, and 18,700 appeals.
  • UNHCR is the second largest system in the world for dealing with new RSD applications. South Africa continues to top the list with nearly 107,000, with the United States third with 76,000.

Critique of UNHCR RSD procedures

UNHCR’s RSD procedures are the subject of global debate and criticism because they lack many of the safeguards expected of a fair refugee status determination system:

  • UNHCR procedures are less transparent than they should be because:
    • rejected applicants usually are not given the reasons (see section 6.4)
    • rejected applicants usually cannot see most of the evidence that UNHCR uses (see section 2.1.2).
  • Although appeals are considered by a different UNHCR staff member than first instance rejections (see section 7.1.1) there is little institutional independence between first instance and appeal decision-making.
  • These safeguards are advocated by the UNHCR for governments who run their own RSD process

These problems are thoroughly examined in academic literature and NGO reports (see the bibliography on www.rsdwatch.org).

Scope of client appeals/petitions

Petitions filed for individual clients by your organisation are generally not the place to try to reform UNHCR RSD. There are various reasons for this:

  • UNHCR do not publish decisions as judicial precedent
  • The best avenue for pushing RSD reform is through public reports, organisations such as RSDWatch, lobbying and the use of the media. You could also raise systemic issues with the UNHCR at the national level once you become established

When representing a client the main goal is gaining refugee status for that client. Therefore, in general, the only procedural standards you would raise in an RSD appeal are those that are relevant to the individual case and likely to benefit his or her chances. This means you should focus on procedural standards that are accepted by UNHCR itself, not on standards that we would all like UNHCR to adopt.

Complaints against UNHCR staff

RSD appeals are also not a forum for raising complaints against individual UNHCR staff members. They are a means by which to correct errors that occurred in the RSD process, but not a mechanism for establishing accountability for staff.

If there is a report of serious abuse by a UNHCR staff member, or a pattern of systematic gaps, it should be raised through UNHCR’s local complaints procedure, or through the Inspector General’s Office in Geneva. This however should not be taken lightly and all the factors and potential consequences for the office should be considered before submitting a complaint.

Further resources:

UNHCR’s RSD standards provide the following caution in relation to complaints:

Applicants should be advised that reporting through complaints procedures will not in any way prejudice or positively influence the consideration of their refugee claim or other decisions regarding assistance or services to which the complainant would otherwise be entitled. At the same time, the seriousness of the complaint procedures should be emphasized and Applicants should be advised that unfounded or malicious accusations against UNHCR staff will be reported to UNHCR Headquarters, and may result in prosecution in the host country.

A Two-step approach to deciding whether to raise PI’s

This section should be read in conjunction with the UNCHR procedural standards for refugee status determination. as seen in the following link. All references to section numbers refer to the procedural standards.

The two-step approach

When dealing with Procedural Irregularities it is useful to split the issue into two steps for each client:

  • Step 1 – Does the client meet the refugee definition?

Before investigating all the procedural irregularities that occurred with a client’s or potential client’s case up to this point, the first step is to consider if the person has grounds for claiming to be a refugee.

If in assessing a possible appeal case you can find only procedural issues, you should consider whether to advise your client that she may not be a refugee, and you should consider whether to file an appeal for her.

Everyone has the right to seek asylum, but by the time a person has been rejected and is trying to appeal they have already made an application and had it considered. As an organisation you are not obligated to assist in filing an appeal if there is no basis on which to argue that the person is actually a refugee. See the Screening section for further discussion on this and the Nairobi Code.

RSD appeals are about refugee status determination. In other words, they’re about whether a person meets the refugee definition. A client’s substantive basis for refugee status is always the center of her case; raising procedural irregularities can lead to a new interview and can get UNHCR to look at the case again, but not much more than that.

It is not enough to simply identify every problem in a person’s procedural history

You need to establish that the problem had consequences for refugee status determination because all of the evidence was not heard, or a client’s credibility may have been unfairly damaged.

  • Step 2 – Investigation of the 1st Instance Application

In any appeal case, you need to develop an understanding about what happened during the first instance application (or, in closed files, at both first instance and appeals stages of the application).

You will need to collect copies of all of the forms and testimonies filed previously by your client. If these were not kept, you can request them from UNHCR (see section 2.2).

If your office sent a legal representative with the client to the original interview, you will need to review the transcript if one was put in the file. Otherwise, you need to reconstruct what happened in the interview by asking the client what she was asked and how she answered, as well as whether she had the opportunity to present all relevant testimony and evidence.

Remember: the questions your client was asked by UNHCR will be clues about what doubts UNHCR had about the case.

When your client reports something that breached a procedural rule, you should carry out three things:

Documentation

If you raise a procedural irregularity as a ground of appeal, your client will effectively be making a claim on which she bears the burden of proof.

Much like in the substance of the refugee claim, there is likely to be little documentary proof; most claims of procedural irregularities are based just on the clients’ testimony. Therefore, the report about what went wrong needs to be detailed and coherent, because your client’s credibility is essential. It should be reported in a signed testimony.

Be aware that in making these allegations, your client is at a serious disadvantage.

UNHCR will have a transcript of her interview, which she and you cannot access (see section 2.1.2). If the UNHCR staff member made abusive comments, or if there were disruptions or interpretation problems in the interview, they were likely not recorded in the transcript.

However, if your client reports that she did not have the chance to talk about particular issues or says that his/her interview was only 25 minutes long, there will be a record that UNHCR will look at. If the UNHCR transcript indicates she was in fact able to testify about the relevant issues or that the interview went on for two hours, your client will have severely damaged her credibility.

Assessment and counseling

You need to advise your client that UNHCR keeps a transcript of the interview, and warn them that they could damage their case by making an exaggerated report about interview problems. If your client is vague or contradictory about what happened in the interview, you need to consider whether it is really in his or her interests to raise a procedural ground of appeal.

Beyond issues of credibility, you need to consider whether the procedural irregularities raised actually affected RSD.

In theory, RSD interviews should be in a quiet, confidential and reassuring environment, without interruptions. Interviewers are supposed to use open-ended questions, and avoid interrupting the applicant (see section 4.3.6). These rules are violated often, and to an extent even the best RSD interviewer would struggle to follow them 100 percent of the time.

When these types of problems arise, you need to assess whether they actually prevented your client from providing testimony on all relevant facts.

For example:

  • If your client is very scared or fragile, or the refugee claim very sensitive – small problems could have big implications. You would then definitely want to raise them on appeal.
  • Small problems can accumulate to a generally ineffective atmosphere, which also may be relevant, and may contribute to a halting and confused interview that can lead to a negative credibility assessment. But if your client, despite interruptions, was able to provide a complete and coherent account, you may not want to raise procedural claims on appeal.

These are judgment calls, but the point is that you should only raise a procedural ground of appeal if it had some actual effect. Otherwise, you are just complaining for the sake of saying that UNHCR is imperfect, which is not likely to help your client.

But if something did prevent key information from coming out in a coherent, credible way, then definitely raise it, even if the UNHCR standard is ambiguous.

Raising it as a ground of appeal

The appeals section will detail specific grounds of appeal.

Further resources:

Summary of the main procedural standards

Credibility assessment

Interviewers should provide applicants an opportunity to clarify or explain any gap or inconsistency during the interview. If an applicant is not allowed to explain a gap in his or her testimony it cannot be used later to reach a negative credibility decision. (Procedural Standards section 4.3.6)

  • Credibility problems are particularly common where a refugee claim is based on a person’s membership in a political party or religion.
  • Interviewers often make the mistake of testing credibility by giving the applicant a knowledge test, with questions like “Who was the first Caliph of Islam? Who is the leader of your political party?” Such knowledge tests favor educated people but do not indicate much about actual credibility.
  • Both religion and politics are very subjective, and UNHCR standards call for applicants to be interviewed mainly in narrative form in which they are asked to describe their personal experiences. See UNHCR’s 2004 Guidance on Religion-Based Refugee Claims, paras. 28-33.

Access to evidence

At the end of the interview, UNHCR staff should “read back elements of the RSD Interview transcript that are most relevant to the determination of the claim” (Procedural Standards section 4.3.11)

UNHCR’s RSD standards require field offices to provide asylum-seekers “originals or copies of all documents they provided to UNHCR, or of which they are the source” (Procedural Standards section 2-2).

UNHCR generally withholds “documents generated by UNHCR or a source other than the individual concerned” (Procedural Standards section 2.1.2)

Interview environment

In theory, RSD interviews should be in a quiet, confidential and reassuring environment, without interruptions. UNHCR staff should take the opportunity at the beginning of the RSD Interview to create an environment of trust and respect in which the Applicant will have the best opportunity to tell her story as coherently and completely as possible (Procedural Standards section 4.3.5).

  • Problems in interview environment are perhaps the most common procedural issues in RSD, but they are also the most delicate to raise in an appeal.
    • Perfection in an RSD interview environment is rarely achieved
    • There are relatively few clear binding standards about what constitutes an effective environment
  • The task is to assess whether the environmental problems prevented your client from coherently and credibly relaying her experiences.
  • The most relevant UNHCR document on these issues is the 1995 training manual interviewing applicants for refugee status, RLD4 as seen in the link below:

Interpretation issues

Applicants for RSD should have access to the services of trained and qualified interpreters at all stages of the RSD process (Procedural Standards section 2.5.1).

  • Clients often report that they believe that the interpretation during their RSD interview was faulty.
  • Interpretation problems often lead to negative credibility assessments or misunderstandings of the facts when key information is mistranslated, key details are not translated at all, or questions are mistranslated to applicants leading to an apparent confused reply.
  • However, rejected asylum-seekers also may subjectively perceive the interpreter to have been poor because they lack any other explanation for their rejection.
  • Before raising interpretation problems, question clients very carefully about why they believe there was a problem in interpretation. Ask for specific examples; do not settle for generalities like “I don’t think he understood me.”

Gender issues

UNHCR’s standards require field offices to make “every effort” to provide female interpreters for female applicants, but stop short of committing to do so in every case (Procedural Standards section 2.5.1).

The right to request interviews be conducted by staff member of the same gender as the applicant (Procedural Standards section 3.1.3).

Please also check UNHCR’s 2002 guidelines on gender-related persecution which lists further rules.

UNHCR’s 2002 guidelines on gender-related persecution lists further rules:

  • Women should be interviewed separately from male relatives
  • UNHCR should explain to women that they may have their own independent refugee claims.
  • “The interview room should be arranged in such a way as to encourage discussion, promote confidentiality and to lessen any possibility of perceived power imbalances.”
  • “The interviewer should allow the claimant to present his/her claim with minimal interruption.”
  • “The interviewer should remain neutral, compassionate and objective during the interview, and should avoid body language or gestures that may be perceived as intimidating or culturally insensitive or inappropriate.”
  • “Particularly for victims of sexual violence or other forms of trauma, second and subsequent interviews may be needed in order to establish trust and to obtain all necessary information.”
  • “Interviewers should be responsive to the trauma and emotion of claimants and should stop an interview where the claimant is becoming emotionally distressed.”
  • “The type and level of emotion displayed during the recounting of her experiences should not affect a woman’s credibility.”

Further resources: