In addition to the full range of human rights, all asylum seekers have specific rights related to due process in RSD procedures. Similarly, they are obliged by certain responsibilities.
Although UNHCR or local staff may be aware of the asylum seeker’s rights, they might not act to enforce them unless the client claims his/her rights. For example, an interviewer might not offer the client a break. The client must therefore be prepared to ask to enforce his/her rights. Explain that this should not prejudice their claim in any way and that should the client feel intimidated in doing so, he/she should report any procedural unfairness to the legal advisor at the first opportunity after the interview.
The following is by no means conclusive, and may vary greatly depending on local legislation or procedural guidelines. Indeed some of these are best practices, but not necessarily a justifiable rights in local jurisdiction. Even the UNHCR guidelines are not the law in many countries.
- The right to free, impartial status determination without paying for any aspect of the service.
- The right to have a reasoned written response.
- The right to information on how to appeal a decision.
- Under Article 2 of the 1951 Refugee Convention, ‘every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.’
- Under Article 3 of the OAU Convention, ‘every refugee has duties to the country in which he finds himself, which require in particular that he conforms with its laws and regulations as well as with measures taken for the maintenance of public order. He shall also abstain from any subversive activities against any Member State of the OAU.’
- Duty to cooperate with the tribunal by informing them of address or other contact information changes.
- Duty to attend every interview/ meeting/ visa renewal. In many contexts, any action that remotely suggests the applicant is not cooperating with the process could lead to closing of the file.
- During every interaction with officials, credibility is tested. Asylum seekers have to tell the truth and should aim to provide consistent answers in every interview.
Regarding the interviewer
- You have the right to an interviewer in the gender and language of your choice, trained and provided at the expense of the decision maker.
- The interviewer should be non- intimidating, non-threatening and impartial. You have the right to change the interviewer if he/she is intimidating or is suspected of having any bias toward you for any reason, including background, ethnicity, political leanings, and religion.
- You have the right to ask the interviewer to clarify questions at any time when you do not understand what the interviewer is asking. You should also have the opportunity to clarify any information that you may feel was interpreted incorrectly, or simply forgot to mention.
- You have the right to have the transcript of your interview read back to you at the end of the interview and to clarify or add any relevant information.
- Never offer bribes to any member of UNHCR or local RSD staff. This may result in immediate rejection of the claim.
- Treat UNHCR and local RSD staff with respect and formality at all times, regardless of how you feel you are being treated. A formal complaint can be made later with the assistance of your legal advisor, and you should be aware that any display of frustration, anger or aggression on your part will not help your claim. UNHCR or the local authority is the ultimate decision maker and must not be given any superfluous reason to reject or delay the decision of your claim.
- Tell the truth. Failing to tell the truth can result in destroying your credibility, and thus your claim, even if the false information seems minor or unimportant. It is also necessary to provide all relevant information. In many contexts, if authorities believe or find out that applicants are hiding relevant information, they will see this as lying.
- The interviewer should read back the transcript at the end of the interview. You should use this opportunity to clarify points and add any other relevant information that was not covered during interview.
Regarding the interpreter
- You have the right to an interpreter in the gender and language of your choice, trained and provided at the expense of the decision maker.
- You may choose to change the interpreter at any stage during the interview for reasons including but not limited to the following:
- The interpreter or interviewer does not seem to be interpreting correctly or sufficiently understanding you;
- The interpreter or interviewer is acting in a way that makes you uncomfortable;
- The interpreter or interviewer is previously known to you;
- The interpreter or interviewer is suspected of having any bias towards you for any reason, including background, ethnicity, political leanings, and religion.
- Contact UNHCR or the local RSD authority in advance of the interview if you speak a language that the they may not be able to provide an interpreter for. You may be allowed to nominate your own interpreter if the authority cannot locate one, but this should be verified before the interview.
Regarding breaks and scheduling
- You have 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 your endurance.
- You have the right to reschedule the interview prior to or during the interview if the you 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 you should be counseled about the possibility of further delay.
- Request a break or rescheduling when you become aware that it is necessary.
- If you have a tendency to become exhausted early during an interview, contact and advise UNHCR or the local authority before the interview.
Regarding family members
- Each family member has the right to be interviewed individually. Spouses and dependent adults will often be interviewed separately, in part to test credibility.
- Each family member also has the right to individual documentation.
- Dependents of the principal applicant who are under the age of eighteen are not usually offered individual interviews, and should request the opportunity in advance of the interview date if they wish to be interviewed. A specially trained interviewing officer should be provided.
Regarding legal representation
- You have the right to legal advice for the entire duration of the asylum process, until a durable solution is reached. You are entitled to have a representative accompany you during the interview, provided certain conditions are met.
- UNHCR requires that the legal representative is thoroughly aware of the claim, that you consent to the presence of the representative, that the representative does not obstruct or interrupt the interview, and that the legal representative is familiar with the 1951 Convention.
- Permission to have your legal advisor represent you during an interview must usually be sought in advance in writing.
NB. The burden of proof is on the decision maker: an asylum seeker does not have a duty to prove their fear of persecution.