A Guide to Raising Procedural Irregularities.

1. A Guide to Raising Procedural Irregularities.

2. A Guide to Raising Procedural Irregularities • Part 1: Applicable Standards - Standards to applied to the UNHCR RSD process • Part 2 Scenario Questions - to test your newly acquired knowledge!

3. Part 1: A guide to UNHCR Applicable Standards: Procedural Standards, Guidelines, and Training Guides

4. Background. • It should be remembered that the UNHCR is not party to International Human Rights Treaties and therefore while there has been much academic discussion regarding it's obligations to respect International Human Rights, the UNHCR does not find itself bound by such 'hard' law treaties. However... • There is various documentation which can be argued form soft law that provide relevant standards for which the UNCHR should follow. • In relation to their practical impact, these are of immense importance...

5. The Applicable Standards. There are three types of documentation that can be described as soft law which the UNHCR should follow when carrying out RSD procedures: 1. Procedural Standards for Refugee Status Determination 2. Guidelines 3. Training Guides These are numbered in order of weight given to them

6. Weight of Importance 1. Procedural Standards for Refugee Status Determination 2. Guidelines 3. Training Guides Therefore if possible you should always try and show a breach of the Procedural Standards as this will create a more persuasive argument than if you solely rely on UNHCR Training Guides.

7. 1. Procedural Standards for Refugee Status Determination • The most comprehensive and authoritative source for UNHCR standards in RSD are the September 2005 Procedural Standards for Refugee Status Determination Under UNHCR's Mandate. • These apply solely in RSD procedures run by the UNHCR. • You can find summaries of the major topics at rsdwatch.org(just click on the UNHCR RSD Policy: quick guide link). You should try and cite these standards before moving on to rely on others.

8. 2. Guidelines • The September 2005 Procedural Standards can be supplemented by UNHCR Guidelines. • These guidelines are applicable to the UNHCR and also recommended to states by the UNHCR, who run their own RSD processes. • The Guidelines can be viewed in the 2012 reissued UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. • Please note there are 8 Guidelines in total

9. 2. Guidelines Examples of the most relevant guidelines are listed below: i. Gender-Related Persecution See Section III “Procedural Issues” of the 2002 Guidance on Gender related Persecution which sets out 12 procedural measures that should be considered by UNHCR during the RSD process when claims are made based on gender-related persecution ii. Child Asylum Claims See Section IV “Procedural and Evidentiary Issues” of the 2009 Guidance on Child Asylum Claims which sets out measures that should be considered by UNHCR during the RSD process of child asylum claims.

10. 2. Guidelines iii. Claims to Refugee Status based on Sexual Orientation and/or Gender Identity See Section V “Procedure Issues” of the 2012 Guidance on Claims to Refugee Status based on Sexual Orientation and/or Gender Identity, which outlines 9 key procedural measures that should be considered by UNHCR during the RSD process when claims are made based on sexual orientation and/or gender. iv. Religion-Based Refugee Claims See Section III “Procedural Issues” of the 2004 Guidance on Religion-Based Refugee Claims which sets out measures that should be considered by UNHCR during the RSD process of religion-based refugee claims.

11. 3. Training Guides • Reference may also be made to UNHCR training guides though by their very nature these are instructional manuals, not firm rules. • They are only relevant to UNHCR operations not state run RSD processes. • The most useful is: Interviewing Applicants for Refugee Status, RLD4 (1995). • Please note that RLD4 is in the process of being reissued so check at UNHCR training guides for the latest version.

12. Part 2: Practice Scenarios relating to Procedural Issues: When things go wrong in the RSD Interview...

13. Instructions 1. Please spilt up into three groups. Each group should receive one of the three scenarios detailed below and a copy of the 'Summary Sheet of the Main Procedural Standards'. 2. Discuss the scenarios within your group and then present your findings to the everyone and open up to questions and discussion 3. Review the model answers at the end of this presentation

14. GROUP 1. The Case of Ms. X During her first instance interview, Ms. X failed to reveal the rape because she was interviewed only to support her husband's application and because the interview atmosphere lacked adequate assurance of confidentiality. Ms. X has not told her husband that she was raped and he was designated the principle applicant for refugee status determination on the basis of his political activities. Ms. X was interviewed only to confirm aspects of his story. She reports that she was never told that she could submit a claim in her own right. Even if she had been asked more information about her own experiences, Ms. X was interviewed through a male interpreter. She reports that she could hear other interviews taking place in the same room on the other side of a divider, and assumed that they could also hear her . As she says, "In my culture, it is hard to talk about rape. It is always the woman's fault. I don't know what my husband would do, or what would happen to me if people knew".

15. The Case of Ms. X Questions: • Would you advise Ms. X to raise procedural irregularities at the appeal stage? • If so, on what grounds?

16. GROUP 2. The Case of Mr. Z During his first instance interview, Mr. Z was not asked to explain any gaps or contradictions within his testimony and the interviewer did not make any reference to this gaps or contradictions. He was accompanied by a legal representative. He now wants to appeal the negative decision at first instance because the UNHCR made a finding of negative credibility due to contradictions in his testimony.

17. The Case of Mr. Z Questions: • Would you advise Mr. Z to raise procedural irregularities at the appeal stage? • If so, on what grounds?

18. GROUP 3. The Case of Ms. Y Ms. Y reports that she had difficulty understanding the interpreter during her first instance interview, especially when the interviewer asked questions about her religious faith. In her signed statement appended to this appeal, she says: "After I said I had converted my religion, the interviewer began asking me about my religion. There were many questions using words that I didn't know, at least that is how the interpreters asked the questions. You know, I am not a well educated person. I learned my faith with my brother at night, so maybe I did not learn all of the right words. Also, I was confused if she was asking me about my first religion, or my new religion, after I converted. When I asked the interpreter to explain, she just said, 'you have to answer the question, not ask questions.' She never translated for the interviewer that I was confused."

19. The Case of Ms. Y Questions: • Would you advise Mr. Z to raise procedural irregularities at the appeal stage? • If so, on what grounds?

20. GROUP 4. The Case of Ms. W Ms. W requests a new interview because she says that she did not understand the interpreter properly and does not believe that everything she said was properly translated. She says: "I didn't feel comfortable in the interview. I don't think the interviewer understood me well. I could only talk to her through the interpreter and I don't know if she translated everything. Sometimes I didn't understand the questions also. I became very confused during the interview."

21. The Case of Ms. W Questions: • Would you advise Mr. Z to raise procedural irregularities at the appeal stage? • If so, on what grounds?

22. Suggested Responses Following discussions please review the following suggested responses...

23. GROUP 1: The Case of Ms. X Suggested Grounds for Appeal • Under these circumstances, UNHCR Guidelines indicate that a woman should not be faulted for failing to reveal her survival of sexual assault, and should be given a new interview. UNHCR's Procedural Standards for Refugee Status Determination under UNHCR's Mandate call for female applicants to have access to female interpreters (section 2.5.1). • More specifically, UNHCR's 2002 Guidelines on International Protection: Gender-related Persecution within the meaning of article 1(A)2 of the 1951 Convention stress the importance of a confidential atmosphere in conducting interviews with victims of sexual assault, and stress that women should be informed that they may have independent grounds for claiming refugee protection (see Guidelines on Gender-Related Persecution para. 36).

24. The Case of Ms. X Therefore.... We submit that Ms. X should have a new interview at the appeal stage so that she can explain to UNHCR in person her full experiences and reasons for fearing deportation. This request is in line with UNHCR policy, which provides that "second and subsequent interviews may be needed in order to establish trust and to obtain all necessary information" with victims of sexual assault (see Guidelines on Gender-Related Persecution para. 36).

25. GROUP 2: The Case of Mr. Z Suggested Grounds for Appeal UNHCR's policy is that 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 (see Procedural Standards section 4.3.6).

26. The Case of Mr. Z Therefore.... We submit that Mr. Z should be granted a new interview in order to have an opportunity to explain any gap or inconsistency.

27. GROUP 3: The Case of Ms. Y Suggested Grounds for Appeal This problem of communication likely led Ms. Y's description of her religious beliefs to appear confused, and may have contributed to a negative credibility assessment on a central issue in her case.

28. The Case of Ms. Y Therefore.... • We submit that she should have a new interview where she can explain again her religious experience and identity. • We would also like to stress that Ms. Y's answers regarding her knowledge of specific points about a particular religion are not indicative positively or negatively of her credibility regarding her religious faith. UNHCR has noted that knowledge tests are not useful in assessing credibility on religious issues with applicants of low educational backgrounds (see Guidelines on International Protection: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees at para. 28), and that in any case it is best to allow asylum-seekers to explain their religious experience in narrative form "through open-ended questions allowing the claimant to explain the personal significance of the religion to him or her." (Id. Para. 29)

29. GROUP 4: The Case of Ms. W Suggested Grounds for Appeal • If Ms. Y became confused or if what she said was not properly translated, her credibility may have been mistakenly rejected. • NOTE: Ms. W’s case is considerably weaker than Ms. Ys and no appeal like this should be submitted to UNHCR. The report of poor interpretation is actually pure speculation. The fact that she became confused is not very helpful; a person who is lying may become confused under close questioning in which an RSD interviewer asks for considerable detail and cross-checks for inconsistencies. This would not necessarily be improper. In a case like this, the legal adviser would need to ask the client to be much most specific about what happened during the interview before any procedural issues are raised on appeal.