First Instance

An asylum seeker has a finite number of opportunities to apply for refugee status. The applicant should treat the first opportunity should be treated as the only opportunity to apply for refugee status. The information given to the adjudicating agency will follow the applicant throughout any appeal. In most countries, the rate of recognition or approval of refugee status is significantly higher in the first instance as compared to appeal or reopening processes as shown in the UNHCR’s statistical year book below:

Last, appeal and reopening processes may take years to adjudicate. Without refugee status and the protections and benefits afforded to refugees, an asylum seeker’s living conditions in the country of asylum may be unbearable and protections from arrest, detention or non-refoulement limited.

General procedures

1. RSD interviews

a. Scheduling

Interviews are typically scheduled at the time of registration. Understand the adjudicator’s procedures for scheduling interviews. The lag time between the registration and the interview may be days, weeks, and sometimes months depending on backlogs and capacity. According to the Handbook, lag times at the UNHCR should not be greater than 6 months although they may be longer in practice. Id. at 3.5.3. Check with the adjudicating office to understand their policies on processing applicants with special needs. The UNHCR should offer accelerated RSD processing procedures for these clients. Id. at 4.6.

The client has the right to reschedule the interview prior to or during the interview if the client cannot proceed with the interview. Permissible reasons during the interview are illness, hunger, exhaustion, fear or other discomfort. It is often difficult to reschedule an interview and receive a new appointment without some delay, and the client should be counseled about the possibility of further delay. If the client has shown a tendency to become exhausted early during an interview, contact and advise the UNHCR before the interview.

Warn clients that this may be the case and build in time to prepare the client for their interview sometime near the time of the interview. For example, if the interview is scheduled for months after their registration, set a schedule with your client to gather evidence and information and meet periodically before the interview. It is best to have a last preparation meeting the day or two before the interview.

b. Interviewer

The client has the right to an interviewer in the gender and language of their choice, trained and provided at the expense of the decision maker. The interviewer should be non- intimidating, non-threatening and impartial. The client has the right to change the interviewer if he/she is intimidating or is suspected of having any bias towards the client for any reason, including background, ethnicity, political leanings, and religion.

The adjudicating agency often has procedures for selecting eligibility officers for particular types of cases. Their criteria is typically based on the agency’s capacity and the applicant’s special needs, vulnerabilities, and background, such as the following criteria:

  • Country of origin
  • Language spoken
  • Special needs or vulnerabilities (i.e. minor, victim of gender-based violence, etc.)
  • Difficulty of case
  • Other family members interviewed by same officer.

Note: Applicants should typically be able to request an interviewer of a specific gender. Make sure your client is comfortable with the sex of the interviewer.

The adjudicating agency may or may not reveal the identity of the interviewer or “eligibility officer” before the interview. However, you may be able to ascertain how eligibility officers are picked to conduct interviews. Inquire with the adjudicating agency directly, or alternatively observe the patterns and practices of the agency by tracking your clients’ interviewers (which should be done as practice during the case).

Counsel the client to treat eligibility officer with respect and formality at all times, regardless of their treatment of the client. A formal complaint can be made later with the assistance of the legal advisor, and the client should be aware that any display of frustration, anger or aggression on their part will not help their claim.

c. Interpreter

The client has the right to an interpreter in the gender and language of their choice, trained and provided at the expense of the adjudicating agency. Contact the agency in advance of the interview if the applicant speaks a language for which they may not be prepared to provide an interpreter. The applicant may be allowed to nominate his/her own interpreter if the agency cannot locate one. Make sure to have the interpreter issue settled to avoid prolonging the RSD process.

The client may choose to change the interpreter at any stage during the interview for reasons including but not limited to the following:

  • Inadequate or improper interpreting (See Interpreter Guidelines);
  • Failure of client and applicant to understand each other;
  • Discomfort by client caused by interpreter;
  • The interpreter is previously known to the client;
  • The interpreter is suspected of having bias towards the client for any reason, including background, ethnicity, political leanings, and religion.
d. Preparing your client for the interview

The preparation for the interview is one of the most important services a legal aid advisor can offer to the asylum seeker in the RSD process. The client needs to know his/her rights and obligations and what to expect before, during and after the interview. The legal advisor must remember to allocate sufficient time to review the claim, arrange a mock interview and to help the client feel confident and be ready for the RSD interview.

Prior to the interview it is important to explain to the client exactly what s/he can expect during and after the RSD interview. A mock interview will also allow him/her to visualize the procedures of the interview. However, s/he should also be aware that the interviewer will not always behave according to set procedures and guidelines, and s/he should be aware of the correct procedures, in case it is necessary to make a complaint.

e. Rights of the Applicant in the Interview

The client has the right to ask the interviewer to clarify questions at any time when the client does not understand what the interviewer is asking. The client should also have the opportunity to clarify any information that he/she may feel was interpreted incorrectly, or simply forgot to mention.

The Applicant has the right to change the interpreter and/ or interviewer. See relevant sections.

The interviewer should read back or show the interview transcript at the end of the interview. The client should use this opportunity to clarify points and add any other relevant information that was not covered during interview.
The client has the right to ask for a break at any time during the interview for any reason, including hunger, exhaustion, to use the bathroom, to calm down, to pray or simply to take a break. Interviews can be very long and exhausting, so it is wise to take a break at least every hour, depending on the client’s endurance.

The client should have the right to have his or her advisor present during the interview and to consult with the advisor when necessary. See Role of Legal Advisor section.

f. Interview process

The interview process typically includes the following steps, not always conclusive nor in this order:

  • Interviewer introduces him or herself and the interpreter if present;
  • Interviewer explains
    • the definition of a refugee as described in the 1951 Convention and any local or international laws that apply;
    • terms of confidentiality;
    • general RSD process;
    • the rights of the asylum seeker;
    • that the failure to inform UNHCR that any of the documents that have been submitted are false may lead to an adverse decision on the application
    • that the asylum seeker should truthfully answer all the questions, and that there will be an opportunity to provide additional information at the end of the interview, if they feel that the questions did not fully address their claim;
  • Interviewer asks applicant if any parts of the account have changed since registration; and
  • Interviewer identifies family members present at the interview or otherwise listed in the application.

During the RSD interview, the interviewer aims to:

  • Understand why the client left the country of origin;
  • Understand why the client can not return to the country of origin or find protection in another state;
  • Establish if the reasons for leaving the country of origin amount to persecution;
  • Establish if the persecution was for reason of race, religion, nationality, membership of a particular social group or political opinion;
  • Assess whether there is a well-founded fear of persecution;
  • Assess the plausibility of the claim;
  • Establish the credibility of the claim; and
  • Understand what the asylum seeker expects from the UNHCR. The interviewer may ask the client, “What do you expect from the UNHCR?” The client should be prepared to answer this question.
g. Responsibilities of client in the interview

No bribes. Explain to your client that he or she should never offer bribes to any member of the adjudicating staff. This may result in immediate rejection of the claim.

Tell the truth. As a legal advisor, you can never sufficiently reiterate the importance of telling the truth.

Respect all parties involve. Counsel the client to treat adjudicators and support staff with respect and formality at all times, regardless of their treatment of the client. A formal complaint can be made later with the assistance of the legal advisor, and the client should be aware that any display of frustration, anger or aggression on their part will not help their claim. The decision makers should not be given any superfluous reason to reject or delay the decision of the claim.

h. Interview logistics

Explaining the venue:
The legal advisor should provide the client with a full explanation of what to expect on the day of the interview, prior to arriving at the adjudicating agency. Explain the average duration of the interviews and discuss the length of time the client would feel most comfortable holding an interview. Give ample instruction on any security or ID checks that may occur upon entrance into the building.

Physical directions:
Ensure that the client has the correct directions and knows how to get to the adjudicating agency. If the client does not speak the host country language, write down the essential words needed to take public transportation. Provide a map, how much each mode of travel will cost, and other necessary info.

Waiting room:
Warn the client if he or she should expect a long waiting period before the interview. The client should bring food and water in anticipation of possibly waiting for long periods of time. If there are special medical or dietary requirements, warn the adjudicating agency if possible ahead of time. An appropriately skilled person should be arranged to care for the children during the interview. In case the client has to have his/her children present in the interview, sufficient food and water should be prepared. Toys or any materials to keep the child(ren) distracted will help make interview more smoothly.

i. Interview of minors and family members

It is important to let the applicant know whether family members will be interviewed during the RSD process. Prep those clients accordingly.

2. Participation of legal advisor

According to the Handbook, a legal representative may accompany applicants during the RSD interview in UNHCR RSD proceedings through the written consent of the applicant. Id. at 4.3.3. With a local adjudicator, access to legal representation in the RSD process may be limited or not guaranteed for the applicant. The UNHCR lists the following criteria as necessary for representing clients in the RSD process:

  • Working knowledge of refugee law and RSD proceedings;
  • Experience assisting refugee claimants; and
  • A thorough understanding of the applicant’s claim. Id.
a. Role of legal advisor

The preparation for the interview is one of the most important services a legal aid advisor can offer to the asylum seeker in the RSD process. The client needs to know his/her rights and obligations and what to expect before, during and after the interview. The legal advisor must remember to allocate sufficient time to review the claim, arrange a mock interview and to help the client feel confident and be ready for the RSD interview.

Your presence at the RSD interview as the client’s legal representative provides the opportunity to ensure the client’s rights are respected, his/her entire claim is heard and any vulnerabilities or special needs are brought to the attention of the adjudicator. It is also an opportunity for the refugee legal aid organization to further its relationship with the RSD adjudicating office.

b. Standards for legal advisors

Official protocol for representation at an RSD interview is defined in various international laws, national laws, UNHCR Standard Operation Procedures (SOP’s) and inter-agency or operational partnership agreements. Legal advisors are bound by the Nairobi Code and likewise, adjudicating offices are bound by codes of conduct and internal guidelines. Be sure that you are familiar with the basic guidelines to ensure that you represent the client in a way that is consistent with those guidelines and that you are able to identify any failures on the part of the adjudicator.

3. RSD decisions

After the interview, the UNHCR begins the process of making a decision on the claim. The UNHCR officer who conducted the interview will review the case and write a credibility assessment and status determination recommendation based on the interview. He/she will research country of origin information and related claims and will review the documents and legal submissions made by the client and the legal advisor.

The client may be called for a follow-up interview to address new points or clarify issues discussed in the previous interview. Follow-up interviews may also be given to other family members included in the claim, including teenaged children.

The interviewer’s recommendation is usually reviewed by an adjudicating officer or officers or goes before a committee to review the case. After the interviewer has prepared and discussed the recommendation, the committee will decide whether the client should be granted refugee status in the first instance. The decision should be prepared within a set time period (i.e. one month according to UNHCR standards), but in fact, may take many months and sometimes years to finalize. The legal advisor should maintain regular correspondence with the UNHCR to check for any updates on the claim.

The client should be informed in writing of the decision and has the right to appeal the decision in writing. Asking for a new decision on a case usually requires proving errors of law, procedural unfairness or providing new information.

If the client is recognized, he or she may be called for a durable solutions interview. The interview aims to determine the most appropriate durable solution, including resettlement or local integration for the refugee. This process normally requires an additional personal interview. As a recognized refugee, the client should receive new documentation, residence status, the right to employment, social services and an assessment for material assistance.

4. Access to a detailed decision

A negative decision can only be effectively and efficiently appealed if the client has been informed of the considerations that lead to that decision. Reasons for the refugee status decision should be provided by the adjudicator to either the client or his/her legal representative, upon written request. If the asylum seeker does not have this information, s/he faces the extremely difficult task of rebutting unknown presumptions.

The client has the right to copies of all documents and submissions that the client provided to the adjudicator. The client should have had the right to read the transcript of the interview at the end of the interview. The adjudicating office will likely not reveal documents and country of origin research generated by the adjudicator.

In the event of a negative decision the legal advisor should request in writing the precise reasons for the decision, and the limited period permitted in which to make the appeal (i.e. 30 days) should not come into effect until the reasons have been provided. If an application for appeal is not made within the permitted amount of time the case will likely be considered closed.