A client may approach you for assistance after he or she has had contact with the UNHCR or government RSD adjudicating office and their case has been closed. Assess a client’s possibilities to re-open their case by first identifying the reasons the case was closed.
A case may be closed for many reasons:
- The applicant abandoned their application, did not attend an interview or did not respond to follow up inquiries or procedures required by the adjudicating office;
- The applicant withdrew their application or otherwise terminated the RSD process;
- The applicant failed to appeal within the required time limit;
- The applicant’s appeal was rejected after the first instance and no other action was taken;
- The applicant was believed deceased;
- The applicant was believed to be naturalized in the host country or third country; or
- The adjudicating office discretionarily closed the case for other procedural reasons.
The handbook on procedural standards for refugee status determination under UNHCR’s Mandate (Chapter 9) discusses reasons for closures. Understand local government procedures for closing a case as they may deviate from the above list.
Once you have clearly identified reasons for the case closure, you can begin to work with the client to decide whether they may reopen their case and what information will be needed to present a successful case.
According to the UNHCR procedural standards handbook, an applicant’s case may be re-opened when:
- Evidence of “significant change in personal circumstances” of the applicant,
- Conditions in the country of origin “significantly affect eligibility for refugee status,”
- “Reliable and material new evidence” indicates that the claim was improperly denied, and
- The grounds for refugee status were not “adequately examined or addressed,”
- The applicant failed to appeal a denial and has “a valid and credible explanation” for failing to do so.
UNHCR provides that an application to re-open a case should not be rejected without a screening process, including review of the application by an adjudicating officer. This same opportunity to re-open a refugee claim should exist in countries where a local government adjudicator has reviewed the claim in the first instance. However, the re-opening mechanism is not consistently available to applicants. In fact, part of your role as an advisor may be to advocate on behalf of your client and others to re-open a case, where this practice is not commonplace.
A new and neutral decision maker should review the application for appeal or re-opening from the first instance. The client is not guaranteed a rehearing upon the submission of the legal appeal or re-opening. However, the legal representation and the submission of strong legal briefs may improve the client’s chances of being granted a rehearing.
Assisting your client in appeals and re-openings
You can assist your client to submit a request to re-open their case in a similar fashion to preparing an appeal. While an appeal typically argues errors of law or procedural fairness and may include new information, a re-opening must provide new information or evidence to substantiate claims to re-open the case.
Beware that your client may be afraid to challenge procedural fairness. Educate your client on his rights and where challenges to errors of law are possible. With the assistance of a legal advisor, the client has the opportunity to effectively appeal or re-open a decision. A fair system demands an independent appeal or re-opening.
Your first step in requesting a case re-opening is to identify all information provided to the adjudicating officer previously during the first instance application and any subsequent appeals. The client should be an integral part of the preparation of the re-opening, especially if you or your organization did not assist the client during the first instances. Ask the client to try to remember and visualize as much as possible the content and procedures during the first instance. Literate clients may be able to write their own re-opening letter if they are advised of what type of information to include.
The client should be prepared to address contradictions that arise between the information the client provided to the adjudicator in the first-instance or appeal and any new information. Misstatements should be addressed according to the Nairobi Code, Section 7 (Duty of Integrity), which binds the legal adviser to truthful communication with the adjudicating office at all times. Duty of confidentiality and other ethical obligations also apply.
The client should provide details of the events that have occurred since the client’s last contact with the adjudicating office. Examine the continued activities of the client, of organizations that s/he is or was associated with, and continued persecution to persons in a similar situation. Include new risks associated with return, arising from the client’s activities in the country of asylum or the period of unauthorized absence from the county of origin.
In general, your re-opening submission should include the following information:
- A relevant summary of the first-instance or appeal submission and interview(s);
- New information and grounds for refugee claim and any supporting evidence available;
- New information and any changes in the country of origin that may provide new evidence or grounds that would otherwise be missed;
- Issues of procedural fairness, including irregularities during the first instance or appeal, particularly any that explain an omission of information;
- Omissions in the testimony presented in the first instance or appeal and reasonable explanations for client omissions or procedural irregularities;
- Other reasons (e.g. fear, confusion, intimidation, trauma, etc.) that caused the client to omit information in the first instance and appeal stages; and
- Clarifications about the original claim that may not have been relayed or understood or may have been recorded or interpreted incorrectly in the RSD interview.