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Regional Protection Programme in the Eastern Europe

BelarusBelarus

MoldovaMoldova

UkraineUkraine

Funded by the European Union and Funded by the European Union and being implemented by UNHCRbeing implemented by UNHCR

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Part 1: Migration and Protection

(structure of presentation)

Who cross the borders? Who cross the borders? What are the main obligations of the States What are the main obligations of the States

vis-à-vis the different categories of persons? vis-à-vis the different categories of persons? What statistics tell us? What statistics tell us? The role of each stakeholder: The role of each stakeholder: • StatesStates• UNHCR UNHCR • NGOsNGOs• Border and immigration control officials Border and immigration control officials

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Who cross the borders?Who cross the borders?

• All kinds of personsAll kinds of persons• Refugees, migrants Refugees, migrants

(regular/irregular)(regular/irregular)• Reasons including Reasons including

human rights human rights violations, poverty, violations, poverty, warwar

• Some can not go Some can not go back to their back to their countriescountries

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Case example: Case example: • ““My name is Sheila. I come from Nigeria. I met My name is Sheila. I come from Nigeria. I met

the border guard Mr. Pinchuk at Kyiv airport. the border guard Mr. Pinchuk at Kyiv airport. He was at passport control and he noticed that He was at passport control and he noticed that I was carrying a false passport. He took me to I was carrying a false passport. He took me to a room at the airport’s immigration police a room at the airport’s immigration police station and spoke to me until he realized that I station and spoke to me until he realized that I did not understand anything he said. Later, he did not understand anything he said. Later, he came back with an interpreter. I was able to came back with an interpreter. I was able to explain that I was in my 7explain that I was in my 7thth month of month of pregnancy and needed help. Then other pregnancy and needed help. Then other people came and helped me”. people came and helped me”.

• Refugee Documentary (5 min)Refugee Documentary (5 min)

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Some of aspects of these stories:

- Human needs Human needs - The entry officials can make a real The entry officials can make a real

difference in people’s livesdifference in people’s lives- People have gone through difficult People have gone through difficult

journeyjourney- Other Other

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Irregular migrants have rights like anybody else

• In States of destination and transit• Because these States have ratified

international and regional treaties• These treaties are applicable to all

persons regardless of their nationality

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Which treaties say so ?

The Human Rights Bill:

• Universal Declaration of Human Rights (1948)• International Covenant on Civil&Political Rights

(19660)• International Covenant on Economic, Social and

Cultural Rights (1966)

UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990)

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Which rights ? • Right to life• Right to seek and to enjoy asylum in other countries

from persecution• Prohibition against torture and inhuman or degrading

treatment • Freedom from slavery and forced labour• Right to non-discrimination • Freedom of movement / limited detention• Right to a hearing with the assistance of an

interpreter if necessary • Health care

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The most important obligation of States in relation to Refugees is not to return

them to persecution 1951 Convention on the Status of Refugees: • Fear of Persecution• Five possible grounds for persecution• Outside the country of nationality (or residence)• Can not return to it, or is not willing to do so, because

of that fear• Article 31: right to non refoulement• Article 33: Prohibition of expulsion or return

Convention Against Torture, Article 3

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What the statistics tell us?

• Number of asylum-seekers amongst migrants dropped in Ukraine (governmental statistics):

– 2,500 applications in 2008– 1,233 applications in 2009– 1,328 applications (1500 persons) in 2010• Recognition rate is 135 persons ( 9 %) • 131 asylum applications transferred from

border authorities in 2010 and 178 – from the Ministry of Internal Affairs

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UNHCR’s role globally

MANDATE • To provide international protection to refugees • To seek durable solutions to their problems

• UNHCR has a supervisory responsibility over Governments’ implementation of the 1951 Refugee Convention, Art. 35

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UNHCR’s role globally

Activities: UNHCR works with Governments and NGOs towards:• Securing the admission of asylum-seekers into the

territory of States and to asylum procedures • Preventing refoulement• Assuring minimum standards of treatment of

asylum-seekers and refugees • Promoting the reunification of separated refugee

families

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UNHCR’s 10 Point Plan: Refugee protection in mixed migration

To assist States in recognizing and addressing refugee

protection needs in situations of mixed migration: 1. Cooperation among key partners 2. Data collection and analysis 3. Protection-sensitive entry systems 4. Reception arrangements5. Mechanisms for profiling and referral 6. Differentiated processes and procedures7. Solutions for refugees 8. Addressing secondary movements9. Return arrangements for non-refugees and alternative

migration options10. Information strategy

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The role of entry officials

As the first authority to enter into contact with people arriving, they must identify persons at border areas who may have protection needs and:

• Ensure non-refoulement • Ensure access to asylum procedures to anyone who

applies for asylum, whether expressively or implicitly • Identify victims of trafficking and tehir traffickers• Identify persons with specific needs:

unaccompanied/separated children, irregular migrants with health care or other needs, family unity, etc.

• Link up with national referral institutions to respond to the identified needs.

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The role of entry officials: To reconcile border controls with the protection of

those crossing borders, entry officials must: • Become very familiar with international norms and

the main protection principles • Develop good communication skills with persons from

different cultures and experiences (e.g. trauma, etc)• Develop operating procedures to deal with identified

needs• Maintain close working relationship with national

referral institutions

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Part 2: The Legal Framework - The 1951 Refugee Convention in relation to the

national asylum legislation- The principle of non-refoulement in the context of

1951 Refugee Convention and human rights law instruments

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Question 1: • As Ukraine has adopted its own asylum and

immigration legislation, should Ukraine make sure that border control measures are in accordance with those norms?

• They are no longer bound by the more general 1951 Convention on the Status of Refugees - Is this statement correct? Justify your reply.

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Queston 1: Key messages

• Ukraine ratified the 1951 Convention so is bound by the rules of the Convention as international legal obligations cannot be derogated from through national laws - the latter must be adapted in order to comply with international law.

• Articles 55 (c) and 56 of the UN Charter on duty to promote and respect human rights;

- Article 103 of the UN Charter - obligations under the UN Charter prevails obligations under any other international agreement.

• Constitution of Ukraine (Article 9)

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Question 2: “A person attempting to cross Ukraine’s external border

by means of a false passport only applies for asylum at the point where he is stopped by the border authority. The person is refused entry to the territory of Ukraine and may be sanctioned for fraudulent use of personal documentation, as established in national legislation”.

• Is this statement correct or incorrect?• Which international legal provisions are relevant in

this context?

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Queston 2: Key messages • Article 14 of the Universal Declaration of Human Rights – “

the right to seek and enjoy asylum” is recognized as a basic human right. In exercising this right asylum-seekers are often forced to arrive at, or enter, a territory 'illegally'.

• Art. 31 of the 1951 Convention states: “The Contracting State shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

• This is called the principle of non-penalization for illegal entry. It applies not only to recognized refugees but also to asylum-seekers pending determination of their status.

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Question 3: “A person was apprehended at the border for an attempt of irregular border crossing into the EU. He was sanctioned for an administrative offence (violations of immigration rules) through the court decision referring him to the deportation. At the time of apprehension, the person claimed that he wanted to seek asylum in the EU but he wanted to apply for asylum in Ukraine too since he fears for his safety if returned to his home country”.

• Should this person be deported to his country of asylum?

• Which international legal provisions are relevant in this context?

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Question 3: Key messages

• Article 33 of the 1951 Refugee Convention:

“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.

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Question 3: Key messages • Material scope of the Article 33 (1):

“..in any manner whatsoever..”

- At the border when considering entry

- During asylum procedures

- During consideration of deportation or expulsion, even to third countries

- During extradition procedures

- Working with victims of trafficking and smuggling

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Question 3: Key messages • Personal scope of Article 33:

- Refugees - except for those falling under Article 33(2)

- Asylum seekers

- Persons considered to be at risk of torture or ill-treatment, persons being considered for return to a situation of generalised violence

International humanitarian law: Art. 3 Convention Against Torture, Art. 3 of ECHR

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Documentary Refugee Film

(10 min)

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Part 3: Who is a Refugee?

Objectives:

• Understand the basic elements of refugee status determination

• Know who is responsible for deciding whether someone is a refugee

• Differentiate between a potential refugee and the broader category of migrants

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A person is a refugee as soon as he or she fulfils the criteria contained in

the 1951 Convention • Recognition of refugee status is a declaratory act • Refugee status determination procedures in each

country for asylum-seekers• All refugee can be asylum-seekers while only

some asylum-seekers are refugees

• 1951 Refugee Convention and 1967 Protocol• National legislation

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The role of border guards • In general, national legislation DOES NOT foresee any

refugee status determination role for border guards• Border guards often have the key to access to asylum

procedures• Refugees often ignore their right to international protection • Border guards have a DUTY to understand:

– Who is a refugee– The circumstances in which refugee try to access

international protection (incl. smuggling & trafficking networks)

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The role of UNHCR • UNHCR has a responsibility to SUPERVISE the

application of the 1951 Convention on the Status of Refugees (Art. 35 of 1951 Conv. & Para. 8 of UNHCR statute)

• UNHCR conducts RSD some times:

– To ascertain whether a person is a refugee and is therefore entitled to international protection

– To decide on the resettlement of refugees to another country

– To give governments advice on refugee status of individuals within their territory

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The five elements of the refugee definition:

1. Outside the country of nationality/former habitual residence

2. Well-founded fear 3. Persecution 4. Grounds (race, religion, nationality,

membership of a particular social group, or political opinion)

5. Unable or unwilling to seek that country’s protection OR TO RETURN there

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The subjective element: FEAR • A state of mind• Fear does not have to be explicitly stated: – An expression of unwillingness to return

already signals some kind of fear– Sometimes objective conditions in country of

origin can imply fear: i.e. if there is a clear risk of persecution

– Applying for asylum also presupposes the existence of fear

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The objective element : Well - Founded

• The context of the situation in the applicant’s country of origin: COI (country of origin information)

• In light of his / her personal circumstances: – Profile – Background– Experience• Credibility assessment • No need to prove fear “beyond reasonable

doubt”

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Persecution • A threat to life or physical freedome as well as to

the enjoyment of fundamental rights: – Not every situation of discrimination re.

Enjoyment of rights is persecution– Serious violations of non-derogable rights– Cumulative grounds: combined effect of

discriminatory measures which, if taken separately, would not amount to persecution.

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GROUNDS of persecution • Race • Religion • Nationality • Membership of a particular social group• Political opinion

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GENDER may seriously affect the

reasons and the form of persecution • Since mid-1980’s the effect of gender on

persecution is broadly acknowledged: – Forms of persecution (sexual violence and

rape of men and women, female genital mutilation, forced marriage, trafficking - such as for forced prostitution, discriminatory laws or practices)

– Reasons for persecution (homosexuals in restrictive communities, women who fail to adhere to specific codes of behaviour, etc)

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Some individuals would meet initial criteria but

DO NOT DESERVE recognition as refugees • Conditions spelled out in the 1951 Convention:

“exclusion clauses”: – Crimes against peace– War crimes – Crimes against humanity – Non political crimes outside country of refuge prior to

admission to that country – Acts contrary to the purposes and principles of the UN• To be interpreted RESTRICTIVELY & to consider: – Individual responsibility – Proportionality

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Thank you for your attention!