Asylum Procedures: Report on Policies and Practices in IGC Participating States 2009

Asylum Procedures

REPORT ON POLICIES AND PRACTICES IN IGC PARTICIPATING STATES

May 2009

The IGC is an informal, non-decision making forum for inter-governmental information exchange and policy debate

on issues of relevance to the management of international migratory ﬂ ows. The IGC brings together 17 Participating

States, the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration

(IOM) and the European Commission. The IGC is supported by a small Secretariat located in Geneva, Switzerland.

The Participating States are Australia, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland,

Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland, United Kingdom and United States of America.

Publisher: Inter-governmental Consultations on Migration, Asylum and Refugees (IGC)

37-39 Rue de Vermont

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E-mail: [email protected]

Internet: www.igc-publications.ch

ISBN 978-2-8399-0531-2

electronic or mechanical, or by any information storage and retrieval system, without written permission from the

Printed in France by Graphi 4

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

The 2009 Asylum Procedures report was produced by the IGC Secretariat as a follow-up to similar books (so-called

“Blue Books”) published in 1995 and 1997. The aim of this publication is to gather in a single document standardised

country reports that provide comprehensive and comparative descriptions of refugee status determination procedures

in the 17 Participating States.

The information contained in the 2009 report was compiled by the IGC Secretariat on the basis of substantial

contributions from Participating States. Information on the role of the UNHCR in States’ asylum procedures was

gathered with the assistance of the Refugee Agency’s Bureau for Europe and several of its country and regional

ofﬁ ces.

All statistical data contained in this report was obtained directly from Participating States as part of the regular IGC

data collection process. Unless otherwise indicated, statistical information reﬂ ects ﬁ rst and repeat applications and is

presented up to 31 December 2008. Information on asylum law, procedures and policies is current up to April 2009.

This report would not have been possible without the considerable input of asylum policy-makers and practitioners

in Participating States, the advice of Mike Bisi (former deputy coordinator of IGC), and the support of the entire

staff of the IGC Secretariat.

The 2009 Asylum Procedures report was edited by Geraldine Wong.

PREFACE

ASYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

CONTENTS

Preface .............................................................................................iii

Glossary ..........................................................................................vii

Introduction ....................................................................................13

Country Reports .............................................................................19

AUSTRALIA ........................................................................21

BELGIUM ..........................................................................53

CANADA ..........................................................................75

DENMARK .........................................................................99

FINLAND ......................................................................... 121

FRANCE .......................................................................... 143

GERMANY ....................................................................... 165

GREECE ......................................................................... 189

IRELAND ......................................................................... 205

NETHERLANDS .................................................................. 235

NEW ZEALAND ................................................................. 253

NORWAY ........................................................................ 275

SPAIN ............................................................................ 297

SWEDEN ......................................................................... 317

SWITZERLAND ................................................................... 339

UNITED KINGDOM ............................................................. 361

UNITED STATES OF AMERICA ................................................. 393

Annexes ........................................................................................429

Statistical Information on Asylum Applications Made in Participating States ..................431

Basic Instruments of International Refugee Law and Human Rights Law: Relevant Extracts

...441

Selected UNHCR Executive Committee Conclusions on International Protection ............451

Selected Regional Instruments – Extracts .......................................................................461

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GLOSSARY

Adversarial: Involving opposing parties, contested; as distinguished from an ex parte hearing or proceeding, in which

the party seeking relief has given legal notice to the other party, and afforded the latter an opportunity to contest it.

Adjudication: The act of making a formal decision or judgment on a matter.

Asylee: An asylum-seeker who has been granted protection under the Immigration and Nationality Act in the United

States.

Asylum: The grant, by a State, of protection on its territory to persons from another State who are ﬂ eeing persecution

or serious danger. Asylum encompasses a variety of elements, including non-refoulement, permission to remain on

the territory of the asylum country, and humane standards of treatment.

Asylum-seeker (also refugee claimant or applicant): A person who seeks safety from persecution or serious harm

in a country other than his or her own and awaits a decision on the application for refugee status under relevant

international and national instruments. Not every asylum-seeker will ultimately be recognised as a refugee, but

every refugee is initially an asylum-seeker.

Carrier sanctions: Sanctions, usually in the form of ﬁ nes, imposed on carriers (owners of the conveyance) who

bring into the territory of a State persons who lack valid entry documents.

Cessation clauses: Legal provisions that set out the conditions in which refugee status comes to an end because

it is no longer needed or justiﬁ ed. Cessation clauses are found in Article 1C of the 1951 Convention relating to the

Status of Refugees.

Complementary protection: Formal permission given by a country under its national law or practice, to reside in

the country, extended to persons who are in need of international protection even though they do not qualify for

refugee status under the 1951 Convention relating to the Status of Refugees. See Subsidiary protection.

Convention refugee: A person recognised as a refugee by States under the criteria set out in Article 1A of the

1951 Convention relating to the Status of Refugees, and entitled to the enjoyment of a variety of rights under that

Convention. See Refugee.

Country of ﬁ rst asylum: The ﬁ rst country in which an asylum-seeker has been granted an effective hearing of his

or her application for asylum.

Country of origin information (COI): Information on conditions in countries of origin, gathered speciﬁ cally for

use in procedures that assess claims of persons for refugee status or other forms of international protection. COI

usually helps to answer questions regarding the political, social, cultural, economic and human rights situation as

well as the humanitarian situation in countries of origin.

1 Based on International Migration Law: Glossary on Migration, International Organization for Migration (IOM) (2004) and Master Glossary of

Terms, United Nations High Commissioner for Refugees (UNHCR) (June 2006), unless otherwise indicated.

2 Black’s Law Dictionary with Pronunciations, ﬁ fth edition, 1979.

3 Austrian Red Cross/ ACCORD, Researching Country of Origin Information: A Training Manual, Part 1, 2004 (updated April 2006), available online

at: http://www.coi-training.net/content/doc/en-COI%20Manual%20Part%20I%20plus%20Annex%2020060426.pdf.

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De novo: Beginning anew. An appellate court may undertake a review de novo.

De jure: Existing by right or as a matter of law; descriptive of a condition in which there has been total

compliance

with all the requirements of the law.

Dependant: A person who relies on another for support. In the migration context, a spouse and minor children

are generally considered “dependants,” even if the spouse is not ﬁ nancially dependent.

Detention:

Restriction on freedom of movement, usually through conﬁ nement, of a person by government authorities.

Diplomatic asylum: Refers broadly to asylum granted by a State outside its territory, particularly at its diplomatic

missions.

Exclusion clause: Legal provisions that deny the beneﬁ ts of international protection to persons who would

otherwise satisfy the criteria for refugee status. In the 1951 Convention relating to the Status of Refugees, the

exclusion clauses are found in Articles 1D, 1E and 1F.

Expulsion: An act by an authority of the State with the intention and with the effect of securing the removal of a person

or persons (usually non-nationals or stateless persons) against their will from the territory of that State. See Removal.

Ex ofﬁ cio: Refers to powers that, while not expressly conferred upon an ofﬁ cial, are necessarily implied in the ofﬁ ce.

Family reuniﬁ cation: Process whereby family members separated through forced or voluntary migration regroup

in a country other than the one of their origin.

Freedom of movement: A human right laid down in Article 13 (1) of the Universal Declaration of Human Rights,

which includes inter alia the element of “… freedom of movement and residence within the borders of each State.”

Group-based protection: Approaches whereby the protection and assistance needs of refugees are addressed

without previously determining their status on an individual basis.

Inclusion clause: Clause in the 1951 Convention relating to the Status of Refugees (Article 1A (2)) that deﬁ nes the

criteria that a person must satisfy in order to be recognised as a refugee.

Inquisitorial: Involving an inquiry or inquest, or the investigation of certain facts and the active involvement of the

decision-maker or adjudicator in the proceedings.

Integration: Generally, the process by which migrants become accepted into society, both as individuals and

groups. Integration implies consideration of the rights and obligations of migrants and host societies, of access

to different kinds of services and the labour market, and of identiﬁ cation and respect for a core set of values that

bind migrants and host communities in a common purpose.

Interception: Any measure applied by a State outside its national territory to prevent, interrupt, or stop the movement

of persons without required documentation from crossing borders by land, air or sea, and making their way to the

country of prospective destination.

International protection: Legal protection, on the basis of international law, aimed at protecting the fundamental

rights of a speciﬁ c category of persons outside their countries of origin, who lack the protection of their own

countries.

Judicial Review: A court’s review of a lower court’s or an administrative body’s factual or legal ﬁ ndings.

Mandate refugee: A person who meets the criteria of the UNHCR Statute and qualiﬁ es for the protection of the

UNHCR, regardless of whether or not he or she is in a country that is a party to the 1951 Convention relating to

4 Black’s Law Dictionary with Pronunciations, ﬁ fth edition, 1979.

5 UNESCO, People on the Move: Handbook of Selected Terms and Concepts, July 2008.

6 Black’s Law Dictionary with Pronunciations, ﬁ fth edition, 1979.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

the Status of Refugees or the 1967 Protocol relating to the Status of Refugees, and whether or not he or she has

been recognised by the host country as a refugee under either of these instruments.

Non-refoulement: A core principle laid down in the 1951 Convention relating to the Status of Refugees according

to which “no contracting State shall expel or return 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, and nationality, membership of a

particular social group or political opinion” (Article 33(1) of the 1951 Convention). The principle of non-refoulement

is a part of customary international law and is therefore binding on all States, whether or not they are parties to

the 1951 Convention.

Permanent residence: The right, granted by the authorities of a host country to a non-national, to live and work

in the territory on a permanent (unlimited or indeﬁ nite) basis.

Prima facie refugee: A person recognised as a refugee, by a State or UNHCR, on the basis of objective criteria

related to the circumstances in the country of origin, which justify a presumption that the person meets the criteria

of the applicable refugee deﬁ nition.

Protection visa (PV): Permit granted in Australia to asylum-seekers who have been recognised as Convention

refugees.

Readmission agreement: Agreement that addresses procedures, on a reciprocal basis, for one State to return

non-nationals in an irregular situation to their home State or a State through which they have transited.

Reception centre: A location with facilities for receiving, processing and attending to the immediate needs of

refugees or asylum-seekers as they arrive in a country of asylum.

Refugee: A person who meets the eligibility criteria under the applicable refugee deﬁ nition, as provided for in

Article 1A (2) of the 1951 Convention relating to the Status of Refugees. See also Convention refugee.

Regularisation: Any process or programme by which the authorities of a country allow non-nationals in an irregular

or undocumented situation to stay lawfully in the country.

Removal: The act of a State in the exercise of its sovereignty in removing a non-national from its territory to his

or her country of origin or a third country after refusal of admission or termination of permission to remain. See

also Expulsion.

Resettlement: The transfer of refugees from the country in which they have sought refuge to another State that

has agreed to admit them. The refugees (often referred to as resettled or quota or mandate refugees) will usually

be granted asylum or some other form of long-term rights.

Return: The act of a person returning to his or her country or place of origin or habitual residence. See Voluntary

return.

Revocation: Rescinding, withdrawing or cancelling of permission or status granted.

Safe country of origin: The country of a person’s nationality or habitual residence where effective protection can

be sought and secured. A safe country of origin does not generally produce refugees.

Safe third country: A country in which an asylum-seeker could have had access to an effective asylum regime,

and in which he or she has been physically present prior to arriving in the country in which he or she is applying

for asylum.

Stateless person: A person who is not considered a national by any State under the operation of its law (Article

1 of the 1954 UN Convention Relating to the Status of Stateless Persons).

Subsidiary protection: A form of complementary protection granted by EU member states when “serious harm”

is established in accordance with Article 15 of Council Directive 2004/83/EC. See Complementary protection.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Suspensive effect: The right to remain in a country pending the outcome of a legal proceeding.

Temporary protection: Generally speaking, an arrangement developed by States to offer protection of a temporary

nature to persons arriving from situations of conﬂ ict or generalised violence, often without prior individual status

determination, or individually to persons who cannot return because of a generalised risk to the population in the

country of origin.

Territorial asylum: Usually, asylum granted within the territorial limits of the State offering asylum.

Unaccompanied minor: A person below the legal age of majority who is not accompanied by a parent, guardian,

or other adult who by law or custom is responsible for the minor.

Unauthorised entry: Act of crossing the borders of a State without complying with the necessary requirements

for legal entry of that State.

Visa: An endorsement by a consular ofﬁ cer in a passport or a certiﬁ cate of identity that indicates that the ofﬁ cer,

at the time of issuance, believes the holder to fall within a category of non-nationals who can be admitted under

the State’s laws.

Voluntary return: The assisted or independent return to the country of origin based on the person’s free and

informed decision. See Return.

7 UNESCO & The Hague Process, People on the Move: Handbook of Selected Terms and Concepts, July 2008.

INTRODUCTION

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

INTRODUCTION

When the IGC ﬁ rst began collecting information on asylum procedures in the mid-1980’s, the approaches of

Participating States were deﬁ ned chieﬂ y by their differences. Over the next several years, the overall asylum caseload

grew rapidly, prompting greater efforts at exchanging good practices in such fora as the IGC. By 1997, when the

IGC last published a report on asylum procedures, it had become possible to identify common approaches and

de facto harmonisation of policies.

In the 1990’s, measures such as accelerated procedures were being introduced, asylum institutions obtained a

boost in human resources and efforts were being made to streamline the application process within a centralised

system. Meanwhile, Member States of the European Union (EU) were drafting the Treaty of Amsterdam providing

for the establishment of a common asylum system.

In the last decade, the number of asylum-seekers arriving in IGC States

has ﬂ uctuated well below the annual intake

prevalent in the 1990’s. Through these peaks and troughs, asylum procedures have continued to evolve on the

basis of remarkably similar approaches. This commonality of approach is particularly evident in the prevalence of

the single procedure and other efforts to simplify asylum determination.

This introduction seeks to highlight, among various trends evident in the 2009 Asylum Procedures report, the

emergence of the single procedure and a few other key developments in IGC States in the period since the last

Blue Book was published. As the individual country reports show, these developments are in part a reﬂ ection of

legal requirements in the EU, but they also point to a common interest among IGC States to strengthen the integrity

and efﬁ ciency of asylum procedures, regardless of the size of their caseload.

The Single Procedure

A key achievement for IGC States within the last decade has been the introduction of a single procedure that

allows an asylum-seeker to make one application to obtain either Convention refugee status or a complementary

form of protection.

In 1997, within their asylum procedure, about half of the current IGC States allowed for the possibility of examining

grounds for Convention refugee status as well as other grounds to remain. However, approaches to a “single

procedure” were hardly uniform. Procedures included an examination of grounds for persecution under the 1951

Convention and any combination of protection- and non-protection-related considerations, such as humanitarian

grounds related to the asylum-seeker’s personal circumstances (for example, health considerations and family ties)

or protection from torture or threats caused by armed conﬂ ict or environmental disasters. A positive decision led

to one of many possible status or permits, such as humanitarian status and temporary protection.

Over the past decade, a single procedure that allows decision-makers ﬁ rst to consider whether asylum applicants

meet criteria for Convention refugee status and, failing that, whether they meet criteria for obtaining a complementary

1 This introduction beneﬁ ted from the advice of Ms. Annette Zepp Glinoga at the Federal Ministry of Interior in Germany.

2 The 1997 report covered procedures and data trends in all current Participating States, except Greece, Ireland and New Zealand (which

subsequently joined the IGC), as well as Austria and Italy which, at the time, were participating in the IGC. See Report on Asylum Procedures:

Overview of Policies and Practices in IGC Participating States, IGC, September 1997.

3 For example, in 1997, the various status that could be granted by the Danish Immigration Service included Convention refugee status, de facto

status, asylum based on the applicant’s strong ties to Denmark, humanitarian status, exceptional leave to remain and temporary protection.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

form of protection, has emerged as the preferred approach for a majority of IGC States.

In parallel, a consensus

has grown regarding what constitutes complementary (or subsidiary) protection: that is, protection from violations

of human rights under international law, including risk of torture or degrading treatment or punishment.

The concept of complementary protection is today an integral element of asylum determination rather than a

discretionary or ad hoc type of decision-making. Granting complementary protection, for the majority of IGC States,

is a consideration that is separate from other grounds to remain that are more compassionate or administrative in

nature, for example, family ties, health issues or administrative difﬁ culties related to return to the country of origin.

Today, while criteria for complementary protection are examined within the asylum procedure, in the majority of IGC

States, permission to remain on non-protection-related grounds is granted outside the asylum procedure, usually

by a different authority.

Thus, the current approach to the single procedure is characterised by a clearer distinction

than might have been the case in 1997 between granting status on protection-related grounds and granting permits

on other, non-protection-related grounds.

The prevalence of the single procedure itself is evidence of two important trends of the last decade. In the European

Union (EU), having a single procedure is one of the stated objectives of the Common European Asylum System

(CEAS).

The legal requirement that Member States fulﬁ ll their commitments to implement common minimum

standards on asylum, including Council Directive 2004/83/EC, was an important factor in the emergence of the

single procedure in some of the European States.

4 As indicated in its country report, Australia currently provides protection under the Convention against Torture (CAT) through ministerial

intervention powers but the government is exploring the possibility of providing this type of complementary protection within a single asylum

procedure. In Ireland, new legislation will be coming into force in the coming years to introduce a single procedure offering Convention

status and complementary protection, while in New Zealand, a new Immigration Bill currently before Parliament foresees the granting of

complementary protection under a single procedure. The U.S. fulﬁ lls its obligations under the CAT both within the asylum procedure (under the

defensive procedure) and outside the asylum procedure. See the country reports for further information.

5 The legal basis for granting complementary protection encompasses Article 3 of the CAT and Article 7 of the International Covenant on Civil

and Political Rights (ICCPR). In Europe, States also consider Article 3 of the European Convention on Human Rights (ECHR), while those

EU Member States that have implemented the legislative instruments of the Common European Asylum System have regard for provisions

contained in Council Directive 2004/83/EC, including protection from harm associated with armed conﬂ ict or generalised violence.

6 This does not preclude States from considering their non-refoulement obligations outside the asylum procedure. In most cases, States will take

account of any risks of harm associated with returning a person, prior to implementing removal. For States that have integrated consideration

of both protection- and non-protection-related grounds into a single procedure, see for example Finland.

7 See a list of the overarching objectives of the CEAS in “Policy Plan on Asylum: An Integrated Approach to Protection across the EU.”

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the

Committee of Regions. Commission of the European Communities, 17 June 2008. COM (2008) 360.

224,528

833,730

504,214

282,142

100,000

200,000

300,000

400,000

500,000

600,000

700,000

800,000

900,000

1983

1984

1985

1986

1987

1988

1989

1990

1991

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1993

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1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

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2007

2008

Applications in all IGC Participating States

European Participating States

North American Participating States

Oceania Participating States

Figure 1:

Evolution of Asylum Applications in IGC Participating States*, 1983-2008

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Having the single procedure also falls in line with one of the primary interests of IGC States: to make asylum

procedures more fair and efﬁ cient. For instance, the Canadian Immigration and Refugee Protection Act, which

came into force in 2002 and introduced a single procedure for granting international protection, clearly states

the objective of establishing “fair and efﬁ cient procedures that will maintain the integrity of the Canadian refugee

protection system.”

In many cases, the introduction of a single procedure was accompanied or preceded by reforms aimed at simplifying

the entire process and reducing the amount of time an asylum-seeker must spend awaiting a decision. In Denmark, for

example, asylum-seekers are no longer required to undergo interviews ﬁ rst by the Police and then by the Immigration

Service. In Belgium, the admissibility and eligibility stages of the procedure, which involved two separate authorities,

were eliminated with the introduction of a single procedure before the Commissioner General for Refugees and

Stateless Persons (CGRS).

In effect, the intended consequence of having a single procedure is to be able to present an asylum-seeker with

a clear resolution of his or her claim within a reasonable time frame. By centralising the sequential steps of the

status determination process within a single authority and by making protection-related grounds the only criterion

in status determination, States help to make the decision-making process more efﬁ cient and strengthen their ability

to meet their protection obligations.

Achieving Efﬁ ciency, Safeguarding Integrity

With reforms such as the introduction of a single procedure, IGC States have attempted to not only address concerns

regarding efﬁ ciency but also pursue their interest in safeguarding the integrity of procedures.

Beginning in 1997, the overall asylum caseload began to grow, compared with the relatively low numbers of new

applications made in previous years. Faced with new pressures, States took measures to address concerns at

various stages of the asylum procedure. One such concern was ensuring that persons with a genuine need for

protection were able to access the procedure and be granted protection as quickly as possible. Persons who clearly

did not present a need for protection were subject to accelerated procedures aimed at identifying and removing

from consideration claims that were unfounded.

Concepts of safe countries of origin and safe third countries have now become the norm rather than the exception

in refugee status determination. Efforts are also made to identify early in the procedure persons who might pose

risks to national security and to exclude persons with serious criminal histories from consideration for the granting

of asylum.

Conversely, claims made by vulnerable groups, such as unaccompanied minors, and by persons who demonstrate

a clear need for protection are given priority.

Over time, IGC States have focused their attention on improving the ability of asylum authorities to make quality

decisions that contribute to the integrity of the overall system. Since 1997, many have invested in the creation of

dedicated and professional teams of researchers and analysts to gather country of origin information (COI).

Support

tools such as training programmes for decision-makers, language analysis and age determination tests for minors

are but some of the additional administrative measures taken to improve efﬁ ciency and integrity.

Technology has also played an important supporting role in assuring the integrity of the asylum determination

procedure. All IGC States ﬁ ngerprint asylum-seekers, although this is done within certain age limits and other

exceptions prescribed by law.

Fingerprinting, like maintaining databases of applications, allows authorities to

keep records of persons who have made a claim for asylum and, among other things, to identify repeat applicants

and persons with criminal records. Some tools, however, have proven to be less useful in asylum determination:

8 Immigration and Refugee Protection Act, Bill C-11, 28 June 2002. See the full text of the legislation at: http://laws.justice.gc.ca/en/I-2.5/.

9 Increasingly, IGC States provide training to decision-makers on issues speciﬁ c to unaccompanied minor asylum-seekers, including child-

sensitive interview techniques, and will appoint a legal guardian to guide the child through the asylum procedure.

10 Readers will ﬁ nd in several country reports a summary of the key changes that COI ofﬁ ces in IGC States have undergone since 1997. Among

the common developments has been the increased use of advanced information technology to gather and deliver country information more

efﬁ ciently and an ongoing focus on ensuring the quality of COI being provided to decision-makers.

11 In a few cases, such as in Australia, ﬁ ngerprinting of asylum-seekers is undertaken on a discretionary basis.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

forensic testing of documents, for example, is undertaken less frequently in States where the majority of asylum-

seekers claim to carry no identity documents at all.

As was articulated in the 1997 Report on Asylum Procedures, the ability to effectively return persons who do not

have a need for protection or other grounds for remaining is an important element of a credible asylum system. In

the last decade, States have increased their efforts to implement returns of rejected asylum-seekers. Measures

such as assistance with return and reintegration as well as readmission agreements have been designed to facilitate

return fairly and efﬁ ciently.

Yet, as far-reaching as these individual efforts at achieving greater efﬁ ciency and integrity have been, there has

also been greater reliance on practical cooperation and partnership among States. The U.S.-Canada Safe Third

Country Agreement, which came into force in late 2004, works on the basic principle that the country in which the

asylum-seeker ﬁ rst arrived takes responsibility for examining the claim, with certain exceptions. In Europe, both

Switzerland and Norway now take part in the Dublin II Regulation, which assists States parties (generally speaking,

Member States of the EU) to determine which among them is responsible for examining an asylum claim.

Practical cooperation has also extended to bilateral arrangements to facilitate information sharing on individual

asylum cases. The Canada-U.S. Statement of Mutual Understanding on Information Sharing (SMU), for example,

allows the two countries to exchange information regarding asylum-seekers on a systematic or case-by-case

basis. Other arrangements, such as the multilateral Hunter Valley Declaration,

aim as well to achieve systematic

exchange of biometric data on asylum-seekers. The overarching goal of such arrangements is to contribute to the

integrity of asylum programmes.

The Common European Asylum System

In Europe, the time that has elapsed since the last report on asylum procedures was published has been devoted to

laying down minimum standards for a common asylum system. The implementation of legislative instruments has

been a key, ongoing exercise for IGC States in the EU

and, as noted above, that exercise has had an important

bearing on reforms introduced in the last several years.

The 2009 Asylum Procedures report does not set out to cover the entirety of de jure harmonisation in the EU in the

area of asylum. However, the country reports do provide an indication of both the challenges and opportunities

presented to States by the requirements of the Tampere and Hague Programmes. Given the broad scope of existing

procedures and the legislative framework governing asylum, being able to apply common minimum standards has

necessitated a re-thinking of existing norms and procedures. In Ireland, for example, signiﬁ cant legislative reforms

that would see the introduction of a single procedure and an overhaul of the appeal procedure are pending. In

Finland, transposition into national law of the Qualiﬁ cation Directive has prompted the introduction of a third type of

complementary protection (humanitarian protection) in order to maintain the availability of a high level of protection.

Work towards achieving a common European asylum system has also provided States with greater opportunities

to cooperate with one another. The creation of common guidelines on country of origin information (COI) and the

establishment of the European Asylum Curriculum are but two examples of recent cooperative efforts. Practical

cooperation, like the single procedure, is an overarching objective of the CEAS. Thus, in early 2009, the Commission

issued a proposal for a regulation establishing an asylum support ofﬁ ce to facilitate practical cooperation and

provide technical assistance in the development of fair asylum policies.

To move the CEAS closer to reality, the European Commission has also proposed a series of amendments to existing

legislative instruments.

In tabling these proposals, the Commission articulated its aim to create a “human and fair

procedure[,] … higher standards of protection, a more equal level playing ﬁ eld and higher efﬁ ciency for the system.”

12 The Hunter Valley Declaration was signed in April 2007 by the U.S., Canada, Australia and the United Kingdom.

13 Denmark has an opt-out clause for participation in EU policies in the area of Justice and Home Affairs and is therefore not legally bound by EU

asylum instruments. Denmark has opted in to the Dublin and Eurodac systems.

14 “Setting up of European Asylum Support Ofﬁ ce Proposed by the Commission,” Press release (IP/09/275), 18 February 2009.

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/275.

Proposals were tabled in December 2008 to make amendments to the Reception Conditions Directive, the Dublin II Regulation and the Eurodac

Regulation.

16 Statement by Jacques Barrot in “Putting the asylum seekers at the heart of a human and fair procedure: the EU Commission proposes to

modify the Common European Asylum System.” Press release (IP/08/1875), 3 December 2008.

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1875&format=HTML&aged=0&lang.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Conclusion

The 2009 Asylum Procedures report reveals a long list of developments that have taken place over the last decade.

This introduction has singled out only a few of them to show that, since 1997, one of the chief goals of IGC

States has been and continues to be the improvement of their capacity to efﬁ ciently handle asylum applications

while maintaining their commitment to international protection. The introduction of new laws and administrative

mechanisms points to an ongoing preoccupation with striking the right balance between safeguarding the integrity

of the asylum procedure and making the procedure fair, transparent and efﬁ cient.

In trying to reach this goal, States have looked back at past reforms, but they have also attempted to learn from

one another. The regional context of asylum has become more important. In the European Union, the harmonisation

of asylum policy has involved both Member States and their neighbours in an ongoing dialogue on creating better

synergies across borders. In North America, the United States and Canada have implemented the Safe Third Country

Agreement and engaged in more systematic exchanges of information.

Cooperation, regardless of geography, has opened up possibilities in areas as diverse as combatting fraud, sharing

responsibility for examining asylum claims and exchanging credible country of origin information. While undoubtedly,

de jure harmonisation of policies and practices in the EU will continue apace, that IGC States share common interests

in achieving greater efﬁ ciency, fairness and integrity and are investing in collaborative efforts toward these goals

can only ensure progress in de facto harmonisation of asylum procedures.

COUNTRY REPORTS

Australia

AUS

23 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

24 - NATIONAL LEGAL FRAMEWORK

25 - INSTITUTIONAL FRAMEWORK

26 - PRE-ENTRY MEASURES

27 - ASYLUM PROCEDURES

34 - DECISION-MAKING AND STATUS

36 - E

FFICIENCY AND INTEGRITY MEASURES

38 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

40 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

42 - R

ETURN

43 - INTEGRATION

44 - ANNEXE

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AUS

1 Background: Major Asylum

Trends and Developments

Asylum Applications

Australia has long afforded protection under its

international obligations to those in need. However,

reported data has been available only since the early

1990’s. Asylum application numbers peaked at 17,000

in 1991 and again in 2000 and 2001, with more than

12,000 each year. Australia currently receives around

4,000 asylum applications per year.

Top Nationalities

In the early 1990’s, the majority of asylum-seekers

arrived from China and Indonesia. By 2000 and 2001,

the top countries of origin were Iraq and Afghanistan.

In recent years, the top countries of origin have been

China, Sri Lanka, Iraq, Pakistan and Iran.

Figure 2:

Top Five Countries of Origin in 2008

1 China 1,223

2 Sri Lanka 417

3 India 371

4 Indonesia 237

5 Malaysia 231

Key Developments

In the 1980’s, the Determination of Refugee Status

Committee (DORS) had responsibility for examining

claims at the first instance and reviewing negative

decisions. The DORS Committee consisted of

government representatives from the Departments

of Immigration, Local Government and Ethnic Affairs

(DILGEA), Foreign Affairs, the Prime Minister and Cabinet

and the Attorney General. A representative of the United

Nations High Commissioner for Refugees (UNHCR) also

attended meetings in an advisory capacity. Where there

were clear grounds for humanitarian stay, but where

refugee status was not recommended, the Minister for

Immigration, Local government and Ethnic Affairs, could

approve temporary entry on humanitarian grounds.

In 1990, a two-stage refugee determination process

was introduced as follows:

• There was a primary stage where determinations

wer

e made by a DILGEA ofﬁ cer, and

• There was a review stage where unsuccessful

applicants could seek r

eview of their decision by

the Refugee Status Review Committee (RSRC).

For the ﬁ rst time, a non-government representative was

involved in the decision-making process – a nominee

of the Refugee Council of Australia was represented

on the RSRC – in addition to government members

from DILGEA, Department of Foreign Affairs and Trade,

and the Attorney-General. Successful onshore refugee

applicants were granted a four-year Temporary Entry

Permit rather than permanent residence.

500

17,000

7,215

9,770

7,992

12,608

3,191

4,750

2,000

4,000

6,000

8,000

10,000

12,000

14,000

16,000

18,000

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Figure 1:

Evolution of Asylum Applications in Australia, 1989-2008

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

In 1993, the Refugee Review Tribunal (RRT) replaced the

RSRC. In contrast to the RSRC, the RRT has a statutory

basis, makes binding decisions and is independent.

A year later, as part of major reforms to the Migration Act

1958 and visa arrangements, a new permanent Protection

Visa (PV) was introduced which incorporated refugee

status determination as part of the visa eligibility criteria.

In 1999, a three-year Temporary PV (TPV) was

introduced for unauthorised arrivals and asylum-

seekers who had spent seven days in a third country

where they could have sought or obtained protection,

with the aim of discouraging human smuggling activities

resulting in unauthorised boat arrivals and discouraging

refugees from leaving their country of ﬁ rst asylum. Other

PV applicants remained eligible for a permanent PV.

In September 2001, legislation was passed excising certain

territories from the Australian migration zone to prevent

unlawful non-citizens who have ﬁ rst entered Australia at

an excised offshore place from accessing visa applications

and review processes in Australia and enable such persons

to be taken to a declared country (for example Nauru) for

refugee processing (this was commonly called the “Paciﬁ c

Solution”). Further territories were excised in 2005.

Also in 2001, there was the codiﬁ cation of key elements

of the refugee deﬁ nition such as persecution, particular

social group, non-political crime and particularly serious

crime.

1 In 2001, the following places were excised: the Ashmore and Cartier

Islands, Christmas Island, Cocos (Keeling) Islands and Australian

offshore resource and sea installations. From 22 July 2005, further

territories were excised which included: all islands that form part of

Queensland and are north of latitude 21° south, all islands that form

part of the Northern Territory and are north of latitude 16° south, all

islands that form part of Western Australia and are north of latitude

23° south, and the Coral Sea Islands Territory.

From 12 December 2005, there has been a legislative

requirement for DIAC and the RRT to process PV

applications within a 90-day time frame.

Since the change in government on 24 November 2007,

asylum policies have been reformed to ensure that refugees

are provided with a fair, humane and certain outcome.

The most signiﬁ cant reforms (which are detailed below)

relate to the dismantling of the Paciﬁ c Solution and the

abolition of the TPV regime, with all persons owed refugee

protection now accessing a permanent visa.

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

Australia provides protection to persons who meet the

United Nations deﬁ nition of a refugee, as deﬁ ned in

the 1951 Convention and 1967 Protocol relating to the

Status of Refugees through the PV process. The PV

process is governed by the Migration Act 1958 and the

Migration Regulations 1994.

Australia currently meets its international obligations under

other international human rights instruments (such as the

Convention against Torture, International Covenant on Civil

and Political Rights, Convention on the Rights of the Child)

through Ministerial intervention powers to grant visas when

doing so is considered to be in the public interest.

200

400

600

800

1,000

1,200

1,400

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

China Sri Lanka India

Figure 3:

Evolution of Applications from the Top Three Countries of Origin for 2008

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2.2 Recent/Pending Reforms

Unauthorised Boat Arrivals

In February 2008, all remaining asylum-seekers who

were being processed on Nauru under the Pacific

Solution were granted Humanitarian visas and were

settled in Australia. Unauthorised boat arrivals will no

longer be taken to Nauru for processing but will have

their protection claims processed on Christmas Island,

which is part of Australian territory.

On 29 July 2008, the government announced that

a framework of excision of offshore islands and

non-statutory processing of person s who arrive at

an excised offshore place will remain. The refugee

processing arrangements were substantially improved,

however, and now include provision of publicly funded

independent advice and assistance, independent merits

review of unfavourable refugee status assessments,

robust procedural guidance for asylum decision-makers

at the ﬁ rst instance and external scrutiny of the process

by the Commonwealth Ombudsman.

Abolition of Temporary Protection Visas (TPVs)

On 9 August 2008, TPVs were abolished. All PV

applicants are now entitled to receive a Permanent PV

if they are found to be in need of protection, regardless

of the nature of their entry into Australia.

Temporary Humanitarian visas (THVs) granted to persons

outside Australia under the Secondary Movement

Relocation (subclass 451) and Secondary Movement

Offshore Entry (subclass 447) have also been abolished.

Current and former TPV and THV holders still in Australia

on 9 August 2008 now have access to a permanent visa,

Resolution of Status (subclass 851) visa, and are entitled

to the same beneﬁ ts as holders of Permanent PVs. Only

health, character and security requirements

need to be

met, and no reassessment of protection claims is required.

Asylum-seekers have also beneﬁ ted from the Australian

government’s changes to detention policy, which

ensure that detention occurs only as a matter of last

resort and for the shortest practicable time.

2 Under Australian law, all foreign nationals entering Australia must

meet a health requirement, and authorities are guided by the Public

Interest Criteria (PIC) in determining which procedures may be used

to assess persons against this health requirement. Usually, applicants

will undergo a chest x-ray and medical examination. Character

checks ensure that PV applicants are not a threat to national interest.

For example, checks are done to determine whether the person has

previously been convicted of a criminal offence.

3 These changes are described below under the section Freedom of

Movement and Detention.

Future Changes

In 2009, the Australian government will introduce

complementary protection arrangements that will allow

Australia to meet its non-refoulement obligations under

international treaties such as the Convention Against

Torture and other Cruel, Inhuman and Degrading

Treatment or Punishment (CAT), through the PV

process, rather than through Ministerial Intervention.

The Australian government will also introduce more

ﬂ exible work rights arrangements for asylum-seekers.

3 Institutional Framework

3.1 Principal Institutions

The Department of Immigration and Citizenship (DIAC)

administers Australia’s Humanitarian Program, which is

made up of an offshore resettlement component and

an onshore protection component. DIAC receives PV

applications, and DIAC ofﬁ cers, acting as delegates of

the Minister for Immigration and Citizenship, decide

if the PV applicant engages Australia’s protection

obligations under the 1951 Convention.

The Refugee Review Tribunal (RRT) reviews DIAC

decisions that refuse to grant a PV or cancel a PV.

The Administrative Appeal Tribunal (AAT) reviews

DIAC decisions that refuse to grant a PV, or cancel

a PV, relying on Articles 1F, 32 or 33(2) of the 1951

Convention. The AAT also reviews DIAC decisions that

refuse to grant, or cancel a visa on character grounds

under section 501 of the Migration Act 1958.

The Federal Magistrates Court or the Federal Court

hears applications for judicial review of an RRT decision

if there has been an error of law. Applicants may also

pursue judicial review to the High Court, either having

exhausted Federal Court avenues, or direct to the High

Court’s original jurisdiction.

3.2 Cooperation between

Government Authorities

There is no structural cooperation between DIAC and

the RRT, AAT or the courts, as these bodies work

independently when reviewing DIAC PV decisions.

Regular meetings are held between the RRT executive

and DIAC to discuss and resolve issues of concern and

to settle general PV policy and procedure.

4 See the annexe for the text of section 501 of the Migration Act.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

The following government agencies are also involved

in the PV procedure:

• The character test includes Australian Federal

Police penal checks in r

elation to criminal

conduct within Australia (and sometimes

overseas if the applicant has resided in a country,

other than the country of feared persecution, for

12 months or more)

• Australian Security Intelligence Organisation

(ASIO) conducts security checks to ascertain

whether an applicant is a direct or indirect risk

to national security for the purposes of the ﬁ rst

exception to Article 33(2) of the 1951 Convention

• The Minister of the Department of Foreign Affairs

and T

rade determines whether an applicant may

be directly or indirectly associated with the

proliferation of weapons of mass destruction.

Conﬁ dentiality and privacy principles are adhered to

when information is exchanged between DIAC and

other principal institutions or government agencies.

4 Pre-entry Measures

Australia has a universal visa system that requires all

non-citizens to obtain a visa before entering Australia.

When entering Australia, under the Migration Act

1958, citizens and non-citizens are required to identify

themselves to an immigration inspector or some other

person authorised by the Department at a port of entry

and to provide certain information in order to enter

Australia. This process is designed to regulate the entry

of people to Australia and to ensure that those who enter

have the authority to do so, that they are who they claim

to be, and that they provide other information if required.

Under this process, the clearance authority examines

a person’s authority to enter Australia and checks that

the person is an Australian citizen, a visa holder or a

person eligible for a visa in immigration. The person’s

travel document is also checked.

4.1 Visa Requirements

Australia has a non-discriminatory immigration

programme and a universal visa system requiring all

non-citizens to obtain a visa before entering Australia.

DIAC is the competent authority for issuing visas.

4.2 Carrier Sanctions

The Migration Act 1958 allows for ﬁ nes of up to AUD

$10,000 for the master, owner, agent, charter and

operator or agent of a vessel that carries any person

who does not hold a visa to Australia. As a matter of

policy, DIAC may issue Infringement Notices for up to

AUD $5,000 for the same offence, where organised

malpractice is not an issue.

4.3 Interception

In addition to its universal visa requirement, Australia has

a number of programmes in place to intercept the entry

of persons who pose security, criminal or health risks.

Overseas Compliance Ofﬁ cers

Overseas Compliance Ofﬁ cers (OSCOs) are specialists

whose job is to identify and respond to immigration

malpractice. They work closely with visa ofﬁ cers to

detect and combat fraud in visa caseloads. There are

currently 33 OSCOs at 23 posts, in 19 countries.

Immigration Alert Checking

The Movement Alert List (MAL) is DIAC’s principal

electronic alert system which consists of a Person Alert

List (PAL) and a Document Alert List (DAL).

The purpose of MAL is to alert DIAC’s decision-

makers to information the Department holds about an

individual during the processing of visa and citizenship

applications, passenger processing at overseas check-

in points (such as at airports) and immigration clearance

at the Australian border.

As at the end of October 2008, there were approximately

650,000 names listed on the PAL. Persons may be

listed on MAL when they have serious criminal records,

where their presence in Australia may constitute

a risk to the Australian community, and if they are

subject to exclusion periods prescribed by migration

legislation. This exclusion can occur for a number of

reasons, including health concerns, debts owed to the

Commonwealth or other adverse immigration records.

About 1.96 million documents of concern (i.e. lost,

stolen or fraudulently altered passports) are also

recorded on the DAL.

Details identifying persons of concern are recorded

on MAL as a result of the department’s liaison with

law enforcement agencies and departmental ofﬁ ces in

Australia and overseas.

If there is a MAL true match a decision on entry is taken

by DIAC in consultation with any other relevant agency.

Advance Passenger Processing (APP)

Under the Advance Passenger Processing or “APP”

system, all airlines and cruise ships must provide DIAC

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AUS

with information on all passengers and crew, including

transit passengers, travelling to or via Australia. This

information is collected at check-in through the APP

system and is transmitted to Australia for use by

border agencies prior to the arrival of the vessel. The

data transmitted to Australia is cross-checked against

Australia’s immigration databases.

APP checking occurred in about 99.8 per cent of all

passenger and crew air arrivals during 2007-2008.

Airline Liaison Ofﬁ cers

Airline Liaison Officers (ALOs) play a key role in

protecting Australia’s borders by preventing and

deterring irregular movement of persons in the region.

ALOs conduct document screening of many Australia-

bound passengers at key international gateways. They

also provide advice to airlines and host governments on

passenger documentation issues, and by their visible

presence, deter the activities of those involved in people

smuggling. ALOs assist airline check-in staff with

training and advice about Australia’s entry requirements.

There are currently (as at October 2008) 18 ALOs at

11 overseas locations, although this number remains

ﬂ exible to enable response to changing situations. In

2007-2008, Australian ALOs interdicted 143 irregularly

documented Australia-bound travellers.

Immigration Inspectors at Australia’s Border

Under the Migration Act 1958, citizens and non-citizens

are required to identify themselves to a clearance

authority and provide certain information to enter

Australia. This process is designed to regulate the entry

of persons to Australia and to ensure that those who

enter have the authority to do so, that they are who they

claim to be and that they provide other information if

required.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

A PV application may be made at the port of entry and

within Australia at ofﬁ ces of DIAC.

PV applications for those who claim to be members

of the same family unit may be made in combination.

Only spouses and dependants who are in Australia are

eligible for a combined application. This reduces the

number of individual PV application forms that need to

be submitted (and the PV application charge payable)

by a family unit.

Family unit members can make claims

of their own and may lodge separate PV applications if

they so wish.

Access to Information on PV Procedures

Some information on the PV procedure is available in

English on the DIAC website

at www.immi.gov.au.

Staff at DIAC offices can also provide additional

information on the PV procedure.

5.1.1. Outside the Country

Applications at Diplomatic Missions

It is not possible to make an asylum application at an

Australian diplomatic mission except for those within

the Refugee category of the offshore Humanitarian

Program, as described below.

Resettlement/Quota Refugees

Average Yearly Quota

In 2008–2009, the Australian government has increased

the Humanitarian Program to 13,500 places comprising

the following:

• 6,500 places for the Refugee category (a one-

time incr

ease of 500 places from previous years)

• 7,000 places for the Special Humanitarian

ogram and onshore protection needs.

The increase of 500 places under the Refugee category

is intended for Iraqis and is in recognition of the critical

resettlement needs of this caseload.

Selection of Refugees

The regional composition of the offshore programme

will be evenly distributed in 2008–2009. Africa, the

Middle East and Asia will remain as priority regions, and

each region will be allocated a 33 per cent intake, with

the remaining one per cent allocated for contingencies.

Some caseloads expected to be resettled under the

offshore resettlement programme in 2008-2009 include

the following: Sudanese, Congolese, Burundians,

Eritreans, Liberians, Iraqis, Afghans, Burmese and

Bhutanese.

Criteria for Resettlement

The Refugee category provides resettlement in Australia

to persons who are subject to persecution in their home

country and are currently outside their home country.

The majority of applicants who are considered under

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

this category are identiﬁ ed and referred by the UNHCR

for resettlement. The Refugee category includes the

Women-at-Risk programme. Each year, 10.5 per cent

of the Refugee category allocation is set aside for the

Women-at-Risk programme. Australia has consistently

exceeded this allocation for the past few years.

The Special Humanitarian Program provides

resettlement for persons who are subject to substantial

discrimination amounting to human rights violations in

their home country and are living outside their home

country. The name of an Australian citizen or permanent

resident or community organisation in Australia who is

willing to support the application (a “proposer”) must

be included in the application.

In addition, all applicants are required to meet health and

character criteria to be eligible for the granting of a visa.

Procedures

Applications for a visa under the Refugee category may

be made at an Australian diplomatic mission.

Refugee and Humanitarian visa applications that

are accompanied by a proposal form for the Special

Humanitarian Program category may be made at the

DIAC ofﬁ ce in Sydney or Melbourne.

Following an assessment of claims, the application is

either refused for not meeting the criteria or forwarded

to the relevant overseas post for further consideration,

interview and decision.

There is no possibility to appeal against decisions to

refuse offshore applications for resettlement. Refused

applicants may, however, reapply at any time.

5.1.2. At Ports of Entry

If a person, regardless of his or her immigration status,

states at a port of entry (a seaport or airport) that he or

she has a fear of return to the country of citizenship or

usual residence, a full entry interview of the person is

conducted by an immigration inspector or some other

ofﬁ cer authorised by DIAC to ascertain the reasons

for the person’s arrival in Australia, including the

nature of any claims the person may make. It is not an

assessment of the merits of the claim for protection.

After the full entry interview has been conducted,

details of the case are faxed to an assessing ofﬁ cer,

5 Applications for persons from Africa are made at the Sydney ofﬁ ce,

while applications at the Melbourne ofﬁ ce apply to countries in the

Middle East and parts of South West Asia (Afghanistan, Bahrain,

Iran, Iraq, Jordan, Kuwait, Lebanon, Oman, Pakistan, Qatar, Saudi

Arabia, Syria, Turkey, United Arab Emirates and Yemen).

namely a senior DIAC ofﬁ cer representing the Refugee,

Humanitarian and International Division.

Based on the information given by the person, the

assessing ofﬁ cer will decide whether the person at face

value may engage Australia’s protection obligations. This

is a low threshold test. If the assessing ofﬁ cer considers

that the person may, at face value

, engage Australia’s

protection obligations, the person will be provided

with a publicly funded migration agent (immigration

consultant) to assist with the preparation and making

of a PV application. Arrangements will then be made for

the person to be transferred to the nearest immigration

detention facility. The PV application is processed in

the normal PV procedure, as described below. Priority

is given to ﬁ nalising detention cases.

If the person does not provide information or make claims

that the assessing ofﬁ cer considers at face value may

engage Australia’s protection obligations, arrangements

may be made for the person to be removed. A person,

however, can apply for a PV at any time after the

entry interview while he or she remains in immigration

detention in Australia, if new information or claims are

made, or if the person requests a PV application form.

5.1.3. Inside the Territory

Persons who have entered Australia and are living

either in the community or are in immigration detention

centres, may apply for protection by completing and

submitting the approved application form for a PV.

Application and Admissibility

Asylum-seekers may make a PV application with

DIAC, either in person or via the postal service. PV

applications are processed in DIAC regional ofﬁ ces in

Sydney or Melbourne by trained PV decision-makers.

For a PV application to be valid, a PV applicant must be

physically present in Australia and meet the following

requirements:

• Complete and sign form 866, answering all

questions

• Provide all personal details, including a current

esidential address

• Attach all relevant documents (e.g., certiﬁ ed

copies of birth certiﬁ cates)

• Provide reasons if all relevant documents are

not attached

• Attach and sign any extra pages referred to in

the application

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• List the documents that are attached to the

application and/or that will be provided separately

• Include claims for protection

• Include the details and signatures of the witness

and interpr

eter (if applicable)

• Attach a recent passport-sized photograph

• Enclose an application fee of AUD$30 for

community applicants only (no char

ge for PV

applicants in detention)

• Sign an Australian Values Statement (if over 18

years of age).

Applicants who ar

e living in the community and whose

PV applications are found to be valid may be eligible

for a Bridging visa (BV)

which allows them to remain

lawfully in Australia for the duration of the asylum

procedure. The BV is issued with certain conditions

and is valid until the primary PV application is ﬁ nally

determined.

A further BV may be granted if a person

pursues judicial review or seeks ministerial intervention

after a ﬁ nal determination on his or her primary PV

application. This is done on a case-by-case basis.

Inadmissibility and Appeal

A PV application will be invalid if form 866 is incomplete

and omits material information or information allowing

a decision-maker to consider the substantive issues

raised by the PV application (e.g., the applicant’s

reasons for claiming protection).

However, if the PV applicant later provides the

necessary information, the invalid PV application will

become a valid PV application.

A PV application will also be invalid if a cheque is

dishonoured for the application fee, or if a person who

has been refused a PV makes a further (repeat) PV

application (unless the Minister intervenes to allow a

further application to be made, as described below).

A PV application is also invalid if a person is affected

by any of these provisions:

• Section 91E of the Migration Act 1958

ovides that a person covered by the 1989

6 The speciﬁ c class of BV that a PV applicant will be eligible for depends

on their immigration status at the time they apply for a PV. Applicants

who hold proper authorisation for stay in Australia when they lodge

their PV application will be granted a BV which allows them to remain

lawfully in the community until the PV application is ﬁ nally determined

or whilst they seek judicial review. They are generally eligible for work

rights and Medicare if they have spent fewer than 45 days in Australia

in the 12 months prior to making their PV application. In many cases,

persons without proper stay authorisation, including PV applicants,

may also be eligible for a BV. DIAC is currently reviewing its BV policy,

and the Australian government is considering changes to access to

work rights and Medicare.

7 These sections of the Act may be found in the annexe to the chapter.

Comprehensive Plan of Action approved by

the International Conference on Indo-Chinese

Refugees or who has a prescribed connection

with a declared safe third country cannot

in certain circumstances make a valid PV

application. The Minister can lift this bar under

section 91F

• Section 91K of the Migration Act 1958 provides

that a PV application by a T

emporary Safe Haven

visa holder will not be a valid application unless

the bar has been considered and resolved by

reference to exercise of the Minister’s public

interest power under section 91L

• A PV application made by a person who is a

national of two or mor

e countries (dual national),

or where the person has a right to re-enter and

reside in a country, in respect of which there is

a ministerial declaration in force and in which

the person has at some stage resided for a

period of at least seven days, will not be a valid

application unless the effect of the application

bar in sections 91N and 91P(1) of the Migration

Act 1958 has been considered and resolved by

reference to exercise of the Minister’s power

under section 91Q(1).

A decision that a PV application is invalid is not eligible

for appeal before the RRT, but may be subject to judicial

review before the Courts. The applicant may commence

proceedings in the Court within 28 days of the actual

notiﬁ cation of the decision.

Accelerated Procedures

Australia does not have an accelerated procedure in

place. However, as a matter of policy, certain categories

of applications are given a higher priority. The order of

priority is as follows:

• Detention cases

• Sensitivity and priority of cases involving

unaccompanied minors in the community

should be considered in each individual case

and priority given accordingly

• Torture/trauma cases

• PV applicants in receipt of Asylum-Seeker

Assistance (ASA)

• Special needs applicants, such as persons with

physical or psychological disabilities, or those

who ar

e in serious ill health

• Further PV applications made following a

decision by the Minister to lift the section 48A

bar to make a further PV application

• All new initial PV applications.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Depending on local arrangements, other priorities may

be instituted. For example, in the interests of efﬁ cient

case management, cases with similar claims from a

particular country can be concurrently allocated and

then considered by a decision-maker, although each

case must still be considered on its individual merits.

Normal Procedure for Protection Visas

After a PV application is determined to be valid, a PV

decision-maker from DIAC assesses the PV applicant’s

claims against the deﬁ nition of a refugee set out in the 1951

Convention, Australia’s domestic laws, and all information

available on the conditions in the asylum-seeker’s country

of origin. All PV applications are assessed on an individual

basis. All primary PV decisions by DIAC must be made

within three months of application.

Other Requirements

Where a PV applicant is found to be a person to whom

Australia has protection obligations, the PV applicant

must satisfy the following criteria before a PV is granted:

• Undergo a health assessment (chest x-ray, HIV

test and medical examination)

• Be of good character

• Not be a security risk to Australia

• Be physically present in Australia at the time of

the decision.

Interview

An interview is not mandatory but the applicant may be

invited to an interview if further information is required.

DIAC has signiﬁ cantly increased the rate of interviews

for initial PV applicants.

DIAC uses sensitive questioning techniques for children

and victims of torture/trauma during the interview process.

Review/Appeal of Protection Visa

Decisions

Appeal

If DIAC refuses a protection claim, the PV applicant may

appeal the decision at an independent tribunal – the RRT

or the AAT depending on the basis for the initial refusal.

The applicant has 28 days from the date of notiﬁ cation

of the decision to refuse a PV (seven working days

for an applicant in immigration detention) to lodge an

application with the RRT or AAT.

The RRT undertakes a fresh merits review of DIAC

decisions to refuse or cancel a PV. A decision on the

review by the RRT must occur within three months of

application. If the RRT is unable to make a decision

favourable to the applicant on the written evidence

available, it must give the applicant the opportunity

for a personal hearing. A fee of AUD $1,400 becomes

payable if the RRT afﬁ rms the original refusal decision.

The AAT reviews DIAC decisions that refuse to grant a

PV, or cancel a PV, relying on Articles 1F, 32 or 33(2) of the

1951 Convention. The AAT also reviews DIAC decisions

that refuse to

grant or cancel a visa on character grounds

under section 501 of the Migration Act 1958.

Judicial Review

An asylum-seeker may apply for judicial review of an

RRT decision in the Federal Magistrates Court or the

Federal Court if there has been an error of law, including

consideration of whether the correct procedures were

followed in the decision-making process, whether the

person was given a fair hearing, whether the decision-

maker correctly interpreted and applied the relevant law

(including the provisions of the 1951 Convention), and

whether the decision-maker was unbiased. Applicants

may also pursue judicial review to the High Court, either

having exhausted Federal Court avenues, or direct to

the High Court’s original jurisdiction.

If a failed PV applicant is subject to removal and has a

pending appeal or request for ministerial intervention,

then that person will not be removed from Australia

until a ﬁ nal determination is made either by the court,

tribunal or the Minister.

Freedom of Movement during the

Procedure

There are no restrictions placed on the freedom of

movement of PV applicants who enter Australia lawfully

and maintain their lawful status. If a person is complying

with immigration processes and is not a risk to the

community, then detention cannot be justiﬁ ed. However,

undocumented arrivals and persons who have been

denied entry will be detained for the management of

health, identity, and security risks to the community.

Detention

Under the government’s reforms, persons are detained

only if the need is established.

Three groups are subject to mandatory detention:

• All unauthorised arrivals, for management of

health, identity and security risks to the community

8 Information on Australia’s seven key immigration detention values

can be found in the annexe.

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• Unlawful non-citizens who present unacceptable

risks to the community

• Unlawful non-citizens who have repeatedly

efused to comply with their visa conditions.

In all cases, DIAC must justify a decision to detain and

not presume detention.

All efforts are being made to consider unlawful non-

citizens who are currently unable to be removed for

the grant of an appropriate visa. If visa grant is not

appropriate, alternative detention measures will be

considered, in line with the principle stated above that

detention in Immigration Detention Centres (IDCs) is to

be a measure of last resort.

Flexible immigration detention options include

immigration residential housing (IRH), immigration transit

accommodation (ITA), alternative places of detention

and community detention (residence determination).

While these options remain “immigration detention” in

a legislative sense and still require a level of security

and restriction of liberty, these alternatives are less

intrusive than other detention options. As such, DIAC

considers use of these facilities always preferable

to accommodation in IDCs where an evaluation of a

person’s needs and the risk he or she poses to the

community deems it appropriate.

All families with children who enter into immigration

detention are referred to the Minister for Immigration and

Citizenship for possible consideration for Community

Detention arrangements as soon as practicable, once

health, security and identity requirements are satisﬁ ed.

DIAC currently contracts out the provision of immigration

detention services and the provision of health care. The

guidelines for the provision of immigration detention

services and the standard of care provided by the

detention services providers have been developed

after extensive consultation with the sector and are

consistent with Australia’s international human rights

obligations and the Australian government’s Key

Immigration Detention Values.

Detention services and their delivery are subject to an

external scrutiny and accountability framework that

includes the Parliament and a number of statutory

authorities such as the Commonwealth Ombudsman,

the Privacy Commissioner and the Australian Human

Rights Commission. This framework is in place to

ensure that persons in immigration detention are treated

humanely, fairly, and with dignity.

Detention that is indefinite or otherwise arbitrary

is not acceptable, and the length and conditions of

immigration detention, including the appropriateness of

both the accommodation and the services provided, are

subject to regular review. A senior DIAC ofﬁ cer reviews

the situation of each person in immigration detention

every three months to conﬁ rm that the further detention

of the individual is justified. The Commonwealth

Ombudsman also undertakes a review of those persons

who have been in immigration detention for six months,

in addition to the existing review at two years, to

strengthen the existing oversight and management of

those in immigration detention.

For those in immigration detention, the Australian

government facilitates access to legal advice and

representation. Upon arrival at an immigration detention

centre, persons are informed, as part of the induction

process, of their right to receive visits from their legal

representatives, to contact legal assistance by phone

and to receive and send material to legal representatives

via fax or post.

If persons in immigration detention are assessed as prima

facie engaging Australia’s protection obligations, they

are additionally provided with access to the Immigration

Advice and Application Assistance Scheme (IAAAS) at no

cost to them. This includes the assistance of a professional

interpreter and translation services at all points, if required.

The service includes assistance with the preparation,

making and presentation of applications for visas through

the primary decision and merits review stages.

Recent Reforms to Detention Policies Affecting Families

As signatory to the Convention on the Rights of the Child,

Australia takes its obligations very seriously. In June

2005, Australia reformed the management of immigration

detention to enable families with children to live in the

community under alternative detention arrangements

while their visa status was resolved. In 2008, Australia took

these reforms further by introducing a range of reforms

to Australia’s immigration detention system, including

the introduction of seven key immigration detention

values. In accordance with these values, children and,

where possible, their families, are not to be detained in an

immigration detention centre under any circumstances.

Reporting

During the PV procedure, PV applicants must report such

things as change of address to DIAC. Even though there

are mandatory requirements in the Migration Act to inform

DIAC of any change of address, non-compliance with this

requirement by a PV applicant is dealt with on a case-

by-case basis. If a person fails to notify DIAC of address

changes, he or she may not receive important information

in relation to the PV application. For example, the PV

applicant may fail to request a review of the PV decision

to the RRT or make an appeal for judicial review within

the time frame stipulated in the Migration Act.

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Repeat/Subsequent Applications

Section 48A of the Migration Act 1958

provides that

a PV applicant, whose application for a PV has been

refused, whether or not the application has been ﬁ nally

determined, may not make another PV application.

However, under section 48B of the Migration Act 1958,

the Minister for Immigration and Citizenship has a non-

delegable, non-compellable power to lift the restriction

on further applications, and allow a person to make a

fresh PV application, if the Minister is satisﬁ ed that it is

in the public interest to do so.

There is no limit on the number of times that a person

barred under section 48A of the Migration Act 1958

can request that the Minister lift the bar to allow a fresh

PV application.

Requirements and Procedure for a Repeat

Application

When a request is made to the Minister for Immigration and

Citizenship to allow a fresh PV application, DIAC ofﬁ cers

examine the case against the ministerial Guidelines.

DIAC can initiate a referral to the Minister without a request

being made where new information arises that would bring

a particular case within the Minister’s Guidelines.

A case is referred to the Minister in the form of a submission

summarising the particulars of the case and the individual’s

immigration history when new information in support of

the applicant’s claims for protection becomes available,

or if there has been a change of circumstances in the

applicant’s country of nationality, or habitual residence,

and the information appears to be credible, is 1951

Convention-related and enhances the applicant’s chances

of making a successful claim. The information raised must

also meet one of the following requirements:

• It was not known to the applicant during the

consideration of the previous application

• It was not known to the applicant but is now

known to DIAC and is r

elevant to the claims

• It was available to the applicant, but for plausible

and compelling reasons, was not provided earlier.

Where the Minister for Immigration and Citizenship

decides to lift the section 48A bar, a fresh PV application

may be made.

The fresh PV application is considered by a DIAC

PV decision-maker in accordance with standard PV

application procedures, guidelines and legislation.

9 See the text of section 49 of the Act in the annexe to the chapter.

Review/Appeal

While the decision on whether or not a repeat application

is allowed may not be reviewed, an applicant does have

access to merits review if the fresh PV application is

refused by DIAC.

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

Australia does not apply the “safe country of origin”

concept within its asylum system.

Asylum Claims Made by a Citizen of an EU

Member State

A claim for asylum by an EU member state citizen is

considered individually based on the merits of the claim,

having regard to Australia’s obligations under the 1951

Convention and the domestic legislative framework.

5.2.2. First Country of Asylum

PV applicants who are found to be owed protection

obligations are granted Permanent PVs regardless of

their mode of arrival in Australia or whether they have

passed through a country where they may have claimed

asylum en route to Australia.

5.2.3. Safe Third Country

As part of the PV assessment process, decision-makers

examine whether effective protection in a safe third

country is available to PV applicants. Decision-makers

have regard to section 36 (3)–(7) of the Act which

requires them to consider whether the applicant has

taken all possible steps to exercise legally enforceable

rights to enter and reside, whether temporarily or

permanently, in a safe third country.

If the applicant has not exercised that right, he or she

is not considered to be a person to whom Australia

has protection obligations and the application must be

refused on the basis of section 36 (3) of the Act.

When undertaking an assessment of whether an

applicant will have effective protection in a safe

third country, decision-makers refer to the facts and

circumstances of each application. Decision-makers

will consider information provided by the applicant,

including visa and passport evidence, as well as

take into account comprehensive up-to-date country

information. If a decision has been made to return a

person to a safe third country, the applicant may have

10 See also the section above on Admissibility.

11 See the chapter annexe for an extract of section 36(3) of the Act.

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that decision reviewed in light of any new information

or a change in circumstance.

Other “safe third country” provisions are found in

Subdivisions AI and AK of the Migration Act 1958.

These provisions prevent certain non-citizens from

making a valid PV application, including those covered

by a Comprehensive Plan of Action (Indo-Chinese

Refugees), those who are a national of two or more

countries and those who have resided in a speciﬁ ed

country for a continuous period of at least seven days.

The bar on making a valid application may be lifted if

the Minister for Immigration and Citizenship thinks that

it is in the public interest to do so.

There is a Safe Third Country Agreement between

Australia and China in which China agreed to accept

the return of Vietnamese refugees from Australia who

had already been resettled in China, and continue to

afford them protection.

In practice, these provisions have not been used in

recent years.

5.3 Special Procedures

5.3.1. Unaccompanied Minors

Guardianship

As a signatory to the Convention on the Rights of the

Child, the Australian government takes its obligations

towards unaccompanied minors very seriously.

Unaccompanied minors (UAMs) are covered by the

Immigration (Guardianship of Children) Act 1946 (IGOC

Act). The Act ensures that unaccompanied minors who

arrive in Australian territory seeking to stay have a legal

guardian. Unaccompanied minors who fall under the

IGOC Act are wards of the Minister for Immigration

and Citizenship and the Minister becomes their legal

guardian. The Minister delegates the function as a

guardian of wards to ofﬁ cers of the department and to

ofﬁ cers in relevant child welfare authorities in each State

and Territory. Guardianship continues until the ward

turns 18 years of age, leaves Australia permanently or

becomes an Australian citizen.

Protection Visa Process

Unaccompanied minors may apply for protection after

arriving in Australia. If a UAM is found to be owed

protection obligations by Australia and he or she

meets other visa requirements, he or she is granted a

permanent PV.

Speciﬁ c procedural safeguards embedded in the PV

process for examining the claims of UAMs include the

following:

• Decision-makers’ questions during the

interview ar

e tailored to the child’s age, stage

of language development, background and

level of maturity

• Child-friendly interview procedures are used to

allow a child to discuss fr

eely the elements and

details of his or her claim

• UAMs are provided with interpreters to ensure

clear communication between the child and the

decision-maker

• Country of origin information includes a range

of information r

egarding the situation of children

in countries of interest

• Applications from UAMs are given processing

priority

Beneﬁ ts

UAMs are provided with migration advice and

application assistance by a registered migration

agent under the Immigration Advice and Application

Assistance Scheme (IAAAS).

UAMs qualify without delay for income support and

assistance, including medical treatment if required,

under the Asylum Seeker Assistance Scheme (ASA).

5.3.2. Stateless Persons

Australia does not have a speciﬁ c legal framework or

procedures for determining statelessness. As is the

case for any other asylum-seeker, stateless persons

may apply for a PV. The decision-maker will assess

each case on its merits.

The Ministerial intervention powers under the Act

provide the Minister the capacity to be ﬂ exible when

looking at cases that are unique and exceptional.

These types of cases may include claims by stateless

persons whose claims for asylum have been rejected.

The Minister looks at each claim on a case-by-case

basis taking into account the individual circumstances

and may grant a visa if doing so is in the public interest.

5.3.3. Processing of Offshore-Entry

Persons

New processes have been put in place for those who

arrive in an excised offshore place and claim protection.

Asylum-seekers will receive publicly-funded advice and

assistance and access to an independent review of

negative decisions. In addition, their cases are subject

to external scrutiny by the Immigration Ombudsman.

These measures will build on strengthened procedural

guidance for departmental decision-makers.

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6 Decision-Making and

Status

6.1 Inclusion Criteria

6.1.1. Convention Refugee

The decision-maker will assess the merits of a protection

claim against the criteria for the grant of a PV as set

out in the Migration Act. A PV is granted to persons in

Australia who are owed protection obligations under

the 1951 Convention.

6.1.2. Complementary Forms of

Protection

Australia does not have a formal system of complementary

protection. Currently, Australia discharges its wider

international treaty obligations through the personal

intervention powers of the Minister for Immigration and

Citizenship. For more information, see Status and Permits

Granted outside the Asylum Procedure below.

The Australian government is considering the possibility of

introducing complementary protection, including criteria

for assessing Australia’s non-refoulement obligations,

into the Protection visa framework. This would allow

for complementary protection claims to be considered

through a transparent, accountable and objective process,

with the ability to seek merits review by an independent

tribunal, and appeal to the courts on points of law.

6.2 The Decision

Applications for PVs are assessed by decision-makers who

are experienced and trained in law, policy and procedures

concerning the 1951 Convention. Decision-makers are

required under the Migration Act to notify the applicant of

the decision to grant or refuse a visa in writing as prescribed

by the legislation. In the case of a decision to refuse a

visa, the applicant is provided with written reasons and the

criteria he or she failed to satisfy as well as the reason a

particular criterion was not satisﬁ ed. The applicant is also

informed of his or her review rights and where to apply for

review. A notiﬁ cation letter is given by hand to applicants

or sent by registered post to their authorised recipient.

Box 1:

Australian Case Law on Determination Criteria

Interpretation of Article 1A of the 1951 Convention

On 1 October 2001, legislation was passed to clarify elements of the 1951 Convention as it applies to PV applications

which included the meaning of “persecution”, “membership of a particular social group”, “non-political crime” and

“particularly serious crime”. These legislative changes addressed the issue that the interpretation of the term “refugee” by

various Australian courts and tribunals had expanded, whilst still ensuring that Australia provides appropriate protection

to refugees consistent with the 1951 Convention.

Domestic Violence

In MIMA v Khawar [2002] HCA 14, the High Court held that domestic violence against women (who can be identiﬁ ed as a

“particular social group”) may fall under the 1951 Convention if the State condones or tolerates it. In this case, it was determined

that there was a social group in Pakistan comprising, at its narrowest, “married women living in a household which did not

include a male blood relation to whom the woman might look for protection against violence by members of the household.”

Effective Protection

In NAGV v MIMIA [2005] HCA 6, the High Court overturned the common law “effective protection” doctrine, as developed

by the Full Court of the Federal Court in Thiyagarajah v MIMIA [1997] 80 FCR 543, when assessing third country protection.

The effect of the decision in NAGV is that decision-makers can no longer rely on a determination of whether ”the applicant

can, as a matter of practical reality and fact, gain access to another country of protection” in order to conclude that

Australia does not owe protection obligations to an applicant. As a result, a protection visa can no longer be refused on

the basis that an applicant has common-law-effective protection. Decision-makers now need to consider each aspect

of third country protection in relation to each protection visa application. If effective protection is established, then that

will be a sufﬁ cient basis on which to refuse the application.

Credibility

In Bakhtyar v MIMA [2001] FCA 947, the Federal Court held that decision-makers must make allowance for the different

cultural settings of applicants and “avoid applying assumptions about human behaviour which are contingent upon or

informed by local culture.”

Additional case law relevant to determination practices in Australia can be found in the annexe.

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6.3 Types of Decisions, Status

and Beneﬁ ts Granted

If a person is found to meet the requirements for

Australia’s protection obligations, he or she will be

granted a Permanent PV.

Beneﬁ ts

Recognised refugees and PV holders are entitled to the

following beneﬁ ts:

• Permanent residence

• Right to family reuniﬁ cation

• Right to education

• Right to work and immediate access to social

welfar

e beneﬁ ts on the same basis as Australian

citizens

• Permission to travel and enter Australia

• Travel documents

• Eligibility to apply for Australian citizenship

after holding the permanent r

esidence visa for

a speciﬁ ed period.

Box 2:

Residence Requirement for Citizenship

Persons who became permanent residents on or

after 1 July 2007 may apply for citizenship if they

have been lawfully resident in Australia for four

years immediately before applying including 12

months as a permanent resident.

Persons who became permanent residents before 1

July 2007 and apply for citizenship before 30 June

2010 must have been physically present in Australia

as a permanent resident for a total of two years

in the ﬁ ve years before applying for citizenship,

including one year in the two years before applying.

6.4 Exclusion

Australia considers Article 1F of the 1951 Convention

and any security-risk cases, when assessing a claim

for protection. All claims for protection are screened

for exclusion.

If the PV applicant excluded has been assessed to be a

threat to the Australian community and the national interest,

he or she may be detained in accordance with the detention

12 Immediate family members eligible for reuniﬁ cation must be

presented within ﬁ ve years of the granting of the PV and may

include a spouse, a dependent child under 18 years of age, and a

parent of the PV holder.

provisions in the Migration Act. A person who is excluded

may have his or her case reviewed by the Administrative

Review Tribunal (AAT), and subsequently by the court.

6.5 Cessation

Persons found to be owed protection are granted a

permanent visa.

Cessation consideration will generally only arise if

visa cancellation or criminal deportation processes

have been instigated. This process is instituted by the

Department. Cases that invoke Article 1C of the 1951

Convention are assessed on a case-by-case basis.

A person whose status is subject to a cessation decision

may have the decision to refuse a PV application or

cancel a PV reviewed by the Refugee Review Tribunal

(RRT), if he or she is in Australia, and subsequently, to

have the RRT’s decision reviewed by the court.

6.6 Revocation

Australia does not have a speciﬁ c provision to revoke a PV.

Australia may cancel a PV only in unique and exceptional

cases where there are national interests or security

concerns that may justify cancellation of a PV. However, the

cancellation powers in the Act are used rarely. A decision

to cancel a visa may be subject to review by the court.

Section 82 of the Migration Act requires that a decision-

maker must undertake a detailed assessment of

international obligations arising under treaties to which

Australia is a party prior to cancelling or refusing to

grant a visa.

6.7 Support and Tools for

Decision-Makers

Decision-makers in Australia use the following tools:

• Legislation (the Migration Act 1958 and the

Migration Regulations 1994)

• Australian case law

• Protection Visa Procedures Manual (PVPM),

which pr

ovides guidance on the policy and

practice and sets out migration law provisions

relevant to the determination of PV applications,

including key articles of the 1951 Convention

• Refugee Law Guidelines, which are prepared by

in-house lawyers to pr

ovide legal guidance on

assessment of protection obligations under the

1951 Convention

• UNHCR Handbook on Procedures and Criteria

for Determining Refugee Status and UNHCR

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

guidelines on policies and procedures in dealing

with unaccompanied children seeking asylum

• DIAC Guidelines on gender issues, outlining how

to deal with clients in a sensitive manner giving

egard to their personal circumstances

• DIAC Onshore Protection Interim Advice

documents.

6.7.1. Country of Origin Information

The Country Research Section (CRS) at DIAC is

responsible for providing country of origin information

(COI) to primary decision-makers, and to pre-removal

international obligations assessment decision-makers.

All COI is made available and accessible to departmental

ofﬁ cers via an electronic database, CISNET.

CRS prepares research papers on the general human

rights situations in high priority countries or on complex

issues of interest to decision-makers. CRS is also

responsible for administering Effective Protection

checks with third countries, which includes nationality/

identity checks, re-entry/residency checks, and UNHCR

checks.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

Two provisions in the Migration Act 1958 (sections 46

and 40) allow for the acquisition of ﬁ ngerprints from

non-citizens who apply for a visa, including a PV. The

powers are discretionary and the purpose for acquiring

ﬁ ngerprints must be in accordance with section 5A (3)

of the Act. Fingerprints may only be collected by way of

an identiﬁ cation test conducted by an ofﬁ cer who has

been authorised by the Minister for Immigration to do so.

Fingerprints cannot be acquired from children under the

age of 15 years or from persons who are incapable of

understanding the general nature, effect and purposes

of a requirement to provide them. Fingerprints can also

be acquired from PV applicants by informed consent.

Whether acquired by way of a formal legislative requirement

or by informed consent, the applicant must be advised, in

language that they are reasonably likely to understand,

why and how the ﬁ ngerprints will be collected, to whom

they may be disclosed, as well as their rights under the

Privacy Act 1988 and the Freedom of Information Act

1982. While these provisions exist, ﬁ ngerprint data is

currently not collected on a routine basis from all PV

applicants.

7.1.2. DNA Tests

DNA testing may be used as a last resort strategy

when claims are doubtful or if credible documentation

cannot be provided to substantiate claimed familial

relationships. DNA testing is not mandatory and an

applicant is under no obligation to agree to a test when

the latter is suggested.

If the PV applicant decides to undertake DNA testing,

DIAC provides information on how to arrange a test

that will meet the Department’s requirements. Any test

obtained outside the departmental requirements may

not be accepted.

7.1.3. Forensic Testing of Documents

The Document Examination Team located within

the Department has the capacity to provide forensic

Box 3:

Australian Case Law: Cessation Clauses

In the case of MIMIA v QAAH of 2004 [2006] HCA 52, the majority of the High Court held that a Protection visa applicant

must have a current well-founded fear of persecution under Article 1A(2), regardless of whether the applicant had previously

been recognised as a refugee in Australia by the grant of a Temporary Protection visa, and regardless of whether the

1951 Convention had ceased to apply to the applicant under Article 1C(5). The majority did not accept that Article 1C(5)

imposed a different test to that imposed by Article 1A(2) and did not accept that Article 1C(5) placed any onus or burden on

Australia to establish that there had been substantial, durable and permanent changes in the applicant’s country of origin.

In effect, the High Court accepted the former Minister’s submission that Article 1C(5) was a mirror image of Article 1A(2).

The Court also pointed out that the language of Article 1C(5) made it clear that the status of a person permitted

to reside in an asylum country could change. The phrases “He can no longer” and “the circumstances…have ceased

to exist” indicate that the circumstances in question are not merely a matter of history, but may change just as

circumstances in his or her country of origin may change. Article 1C(5), therefore, applies automatically and is not

dependent for its application upon a request for a particular kind of visa, though in practice such a request will

ordinarily lead to the visa consideration of whether or not a person is entitled to continuing protection.

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document examination services to decision-makers.

This service is provided upon request and on a case-

by-case basis.

7.1.4. Database of Asylum

Applications/Applicants

The Integrated Client Service Environment (ICSE) is

a departmental system that records the making and

consideration of all visa applications. It is a central

repository of client information that the decision-maker

uses to record all the events that relate to a client in

relation to his or her PV application. This tool captures

the entire PV process from the receipt of application to

the ﬁ nalisation of the protection claim.

7.1.5. Other Tools

In addition to the Movement Alert List (MAL) and Airline

Liaison Ofﬁ cers (ALOs), described above, the following

tools are at the disposal of decision-makers:

• The Security Referral Service (SRS), which

allows for information for PIC 4002

referrals

to be captured in a structured electronic format

and sent to the Australian Security Intelligence

Organisation (ASIO) for assessment

• The Identity Services Repository (ISR), a tool

that captur

es client identity information that

will assist decision-makers in assessing and

recording the identity of clients at ﬁ rst contact

and throughout further contact with the

department.

13 PIC 4002 refers to the Public Interest Criterion that outlines the

interpretation of, and procedures for, assessing visa applicants

against security requirements.

7.2 Length of Procedures

All primary PV decisions by the Department are required

to be made within the statutory time frame of 90

days from the Department’s receipt of the completed

application. Cases for which these time frames are not

met are subject to periodic reports to Parliament.

7.3 Pending Cases

As at 3 April 2009, there were 1,257 initial PV applications

on hand at the primary stage. The decision-makers

have 90 days to make a decision.

Australia is not considered to have a significant

backlog/legacy caseload. About eight per cent of the

pending initial caseload continues to be processed in

under 90 days, the statutory timeframe to process PV

applications.

7.4 Information Sharing

Australia has entered into bilateral agreements with Four-

Country Conference (4CC) countries (United Kingdom,

United States and Canada) to share ﬁ ngerprint samples

of absconders, current and rejected asylum-seekers

and visa applicants. DIAC also shares information with

Australian Federal Police and Department of Foreign

Affairs in cases involving fraudulent documents.

Box 4:

COI Research at the Refugee Review Tribunal

On 17 February 2009, it was announced that the Refugee Review Tribunal (RRT) will publish its country of origin

research to provide greater transparency in its decision-making.

More than 450 research documents from the major countries of reference for RRT reviews will initially be published,

including country of origin information from China, India, Malaysia, Bangladesh, Indonesia, Lebanon, Sri Lanka,

South Korea, Pakistan and Vietnam.

The research published includes general background information, commissioned research and opinions from

academics and experts as well as responses researched in answer to speciﬁ c questions posed by RRT members in

relation to particular reviews. These responses are carefully edited to protect the identity and privacy of individual

visa applicants and to maintain the integrity of the review process.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Box 5:

Cooperation with UNHCR and Non-

Governmental Organisations (NGOs)

UNHCR

The UNHCR Regional Ofﬁ ce in Canberra has no

direct role in the determination of refugee status in

Australia but holds a general monitoring function.

In accordance with its supervisory role, the UNHCR

engages with the government of Australia on an

at least bimonthly basis to discuss issues related to

legislation, policy and practices that may arise in the

asylum system. The UNHCR’s supervisory role with

respect to individual protection claims brought to

its attention, its ofﬁ cial positions, country of origin

information, and best practices are generally well

received by government authorities.

NGOs

The Australian government consults the Refugee

Council of Australia (RCOA) and other NGOs that

provide assistance on key issues that have an

impact on asylum-seekers. The Minister holds his

own consultation with NGOs as and when required,

while the Department consults with NGOs for their

input in major policy changes. The NGOs do not

have access to departmental information provided

by asylum-seekers.

8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

All PV applicants are free to make their own private

arrangements and engage a lawyer or other agent at

their own expense or to seek legal aid.

Legal representatives or other agents may be present

during an interview, but they may not initiate any active

involvement in the interview. However, at the end of the

interview PV applicants may consult privately with their

representative or agent.

Migration Agents

PV applicants are encouraged to use registered

migration agents to assist them during the PV

procedure. The Ofﬁ ce of Migration Agents Registration

Authority (MARA) or a DIAC ofﬁ ce can make a list of

registered migrant agents available to them.

8.1.2. Interpreters

DIAC encourages the use of accredited interpreters

from the Department’s Translating and Interpreting

Services during the PV interview process and bears

the cost.

8.1.3. UNHCR

PV applicants may approach the UNHCR directly with

a request for assistance, and in such instances DIAC

will provide the UNHCR with access to information

on the individual asylum-seekers. The UNHCR plays

a supervisory role in the case of individual protection

claims brought to its attention to ensure consistency

with the 1951 Convention.

In addition, the Public Information unit of the UNHCR

raises awareness about UNHCR’s work and refugee

issues amongst parliamentarians, schools, the media

and the general public.

8.1.4. NGOs

NGOs in Australia provide support and assistance to

asylum-seekers and refugees. NGO support includes

the following:

• Assist refugees in countries of ﬁ

rst asylum when

they repatriate to their homeland

• Provide settlement support to refugees

• Advocate on behalf of a particular refugee

community

• Provide community education on refugees

• Seek funding for speciﬁ

c projects to enhance

capacity to serve the refugee community

• Provide legal advice and assistance to refugees

• Provide information on advocacy for refugees

and humanitarian entrants in Australia

• Provide support services for refugees, asylum-

seekers and other vulnerable persons in

immigration detention

• Provide tracing and restoration of family links

• Provide emergency support where the need

arises.

8.2 Reception Beneﬁ ts

8.2.1. Accommodation

Australia does not have reception centres to

accommodate asylum-seekers. Financial assistance

provided under the Asylum-Seeker Assistance Scheme

(ASA) may cover the cost of accommodation.

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The various types of accommodation provided to

asylum-seekers under the detention arrangements are

currently under review.

8.2.2. Social Assistance

The Australian government established the Asylum

Seeker Assistance Scheme to

provide financial

assistance to eligible PV applicants during the period

in which their applications for protection are processed.

The ASA scheme is managed by the Department and

is administered through contractual arrangements by

the Australian Red Cross Society. Applications and

enquiries relating to the ASA scheme are lodged with

the Australian Red Cross Society.

Financial assistance provided under the ASA scheme

is 89 per cent of the Special Beneﬁ t paid by CentreLink

and is paid every two weeks. The maximum ﬁ nancial

assistance paid to the PV applicants depends on the

family composition. The ﬁ nancial assistance provided

under the ASA Scheme is

to cover food, accommodation

and basic health care. To be eligible for ASA, asylum-

seekers must fulﬁ ll the following requirements:

• They must have lodged a valid PV application

for mor

e than six months (primary processing

time)

but ASA may be granted earlier where

exemption criteria are met

• They must be in ﬁ nancial

hardship

• They must hold a Bridging visa or other visa

• They must not be eligible for either

Commonwealth or overseas income support

• They must not be the spouse, de facto or

sponsor

ed ﬁ ancé(e) of a permanent resident.

Asylum-seekers can be exempted from the above eligibility

criteria if they fall under one of the following categories:

• Unaccompanied minors, elderly persons or

families with childr

en under 18 years of age

• Persons unable to work as a result of a disability,

illness or the ef

fects of torture and/or trauma.

8.2.3. Health Care

No person in Australia is refused emergency medical

treatment on the basis of his or her immigration

status. Health services are provided to PV applicants

by qualiﬁ ed health professionals. To be eligible for

Medicare (the Australian government’s health insurance

scheme), PV applicants must meet the following criteria:

• They must have an unﬁ

nalised application for a

permanent visa

• They must hold a valid Bridging visa with work

rights.

Some asylum-seekers without work rights may qualify

for Medicar

e if they are the spouse, child or parent

of an Australian citizen or permanent resident. ASA

recipients who do not have access to Medicare may

receive assistance with their health care costs and they

can also be referred to counselling services.

State governments in Australia have issued advice to

hospitals in their states not to seek payment for medical

services from asylum-seekers. Asylum-seekers are

provided full medical care which includes pathology,

diagnostic, pharmaceutical and other services.

8.2.4. Education

Children between the ages of six and 15 years are eligible

for primary and secondary school education. Those who

are living in community residence within the detention

facilities are provided with tailored education programs to

meet their developmental needs while those living in the

community have access to the public education system.

8.2.5. Access to Labour Market

PV applicants who are granted a Bridging visa with

work rights are able to access the labour market while

Box 6:

Immigration Advice and Application Assistance Scheme (IAAAS)

The IAAAS is government-funded and provides migration advice and application assistance free of charge to all PV applicants

in detention and to the most vulnerable PV applicants in the community. There are 23 IAAAS providers around Australia

who are Registered Migration Agents or ofﬁ cers with legal aid commissions. The IAAAS providers do not provide legal

advice as such and do not work under the free general legal aid scheme funded by the government.

PV applicants do not need to accept an offer to use IAAAS services, but if they seek immigration assistance from

someone who is not an IAAAS provider, they need to fund the assistance themselves. Eligibility for IAAAS-funded

assistance ceases when the PV has been granted or refused following appeal. IAAAS is not available to failed asylum-

seekers requesting Ministerial intervention or applying for judicial review.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

their applications for protection are being considered.

A Bridging visa may have work rights attached to it

depending on the individual’s circumstances.

8.2.6. Family Reuniﬁ cation

Family reunion is available only to PV holders.

8.2.7. Access to Beneﬁ ts by Rejected

Asylum-Seekers

ASA payments cease upon grant of PV or 28 days after

notiﬁ cation that PV applications have been refused by

the Department, but some rejected asylum-seekers

who seek appeal at the RRT may be eligible for ASA if

they meet the exemption criteria. ASA payments cease

when the RRT makes a decision on the application.

Rejected PV applicants who reside lawfully in the

community, whose cases are ﬁ nalised and who do not

depart from Australia within 28 days of their asylum

application being finalised, may continue to have

access to the following beneﬁ ts: emergency health

care, primary and secondary education for children.

9 Status and Permits

Granted outside the

Asylum Procedure

9.1 Humanitarian Grounds

The Minister for Immigration and Citizenship has non-

compellable power to substitute a more favourable

decision than that of the RRT or the AAT in relation to

character issues, if the Minister considers that it is in the

public interest to do so. These public interest powers

allow visas to be granted on broader humanitarian grounds

where the criteria for the grant of the visa applied for has

otherwise not been met, and to give effect to Australia’s

international obligations under other human rights treaties.

The Minister’s intervention powers are intended for

unique and exceptional cases where the Minister

considers it is in the public interest for that person to

remain in Australia.

The following factors may be relevant, individually or

cumulatively, in assessing whether a case involves unique

or exceptional circumstances that would result in referral to

the Minister for consideration to intervene to grant a visa:

• Particular circumstances or personal characteristics

of a visa applicant that pr

ovide a sound basis for

believing that there is a signiﬁ cant threat to the

person’s personal security, human rights or human

dignity on return to his or her country

• Circumstances in which the application

of relevant legislation leads to unfair or

unreasonable results in a particular case

• Strong compassionate circumstances such

that a failur

e to recognise them would result in

irreparable harm and continuing hardship to an

Australian citizen or an Australian family unit (in

which one member of the family is an Australian

citizen or permanent resident)

• Circumstances where exceptional economic,

scientiﬁ

c, cultural or other beneﬁ t to Australia

would result from the visa applicant being

permitted to remain in Australia

• The length of time the person has been present

in Australia (including time spent in detention)

and his or her level of integration into the

Australian community

• Compassionate circumstances regarding the

age, health and/or psychological state of the

person.

9.2 Withholding of Removal/Risk

Assessment

In relation to involuntary removals, Australia has

an administrative pre-removal clearance process

undertaken by the Department to assess potential risks

that may lead to the violation of a person’s human rights

or contravene Australia’s non refoulement obligations

under conventions such as ICCPR and CAT if they are

removed from Australia. The risk factors are as follows:

• The person has previously applied for or held

a PV and does not want to be r

emoved from

Australia because he or she fears persecution

or a violation of human rights (including the right

to life or right not to be subjected to torture or

to cruel, inhuman or degrading treatment or

punishment). This risk factor considers those

cases where a person is a failed PV applicant

or has had his or her PV cancelled and believes

he or she is still owed protection

• The person has acquired a criminal history in

Australia which he or she believes will place him

or her at risk of a violation of their rights to life

or right not to be subjected to tortur

e or cruel,

inhuman or degrading treatment or punishment.

This risk factor considers those circumstances

where the person may be removed to a country

which allows for death penalty to be imposed,

is known to use torture or cruel, inhuman

or degrading treatment or punishment and

supports double jeopardy (i.e., country may not

recognise the person’s past convictions served

in Australia)

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• The person will face outstanding criminal

charges in the country of return and it is a

country that allows for the death penalty to be

imposed or is known to use torture or cruel,

inhuman or degrading treatment or punishment

• The proposed country of return has taken an

adverse inter

est in the person. This factor may

arise if the Department has received a persistent

or unusual or adverse level of interest from a

Consulate/Embassy/High Commission when

arranging a person’s removal

• Cases involving a child – this risk factor may

arise in those cases wher

e the person removed

is the parent of either an Australian-born

child or a child born overseas. This may also

apply to those cases in which the Department

is considering removing a child (either by

themselves or accompanied by an adult). (Such

an assessment may include the “best interests

of the child” principle to determine an outcome)

• The UNHCR, the United Nations Human

Rights Council (UNHRC) or the United Nations

Committee Against T

orture (UNCAT) have

shown interest in the case. This risk factor may

be applicable if the person being considered

for removal has lodged a complaint with the

relevant UN body regarding removal

• The person is being considered for removal to a

country wher

e the UNHCR has issued a Return

Advisory

• Other circumstances in a case in which

otection or humanitarian issues have arisen.

This risk factor is available for those cases in

which a removal ofﬁ cer may be uncertain as to

whether a human rights issue exists or has been

explored in determining whether the person can

be removed from Australia.

Once a pre-removal clearance is given it remains valid

for a period of six months from the date of the clearance

unless there is a change in the person’s circumstances or a

change in country information. An example of a change in

circumstance would be if a person has made a complaint

to a United Nations (UN) body such as the UNHRC or

UNCAT.

9.3 Obstacles to Return

Bridging Visas and Removal Pending Bridging

Visa (RPBV)

Asylum-seekers who are unable to be returned or

removed and persons who cannot be returned following

a pre-removal assessment may be granted a temporary

Bridging visa or Removal Pending Bridging visa (RPBV)

to enable them to be released from immigration detention

and remain lawfully in Australia while arrangements for

their removal are made. All applicants for the Bridging

visa or persons being considered for the grant of a

RPBV must meet the relevant character and security

requirements before it can be granted.

There is no formal application form for the RPBV. The

visa process may be started by the Minister issuing

an invitation or indicating that he or she is inclined to

exercise his or her power under section 195A of the

Migration Act. The eligibility criteria as set out in the

Migration Regulations for RPBV are as follows:

• The person is in immigration detention

• The Minister is satisﬁ ed that the person’s removal

from Australia is not reasonably practicable at

that time, for reasons other than the person being

party to proceedings in a court or review tribunal

related to an issue in connection with visas

• The Minister is satisﬁ ed that the person will do

everything possible to facilitate removal from

Australia

• Any visa applications made by the person, other

than a r

epeat PV application, must have been

ﬁ nally determined.

RPBV holders have access to a range of social support

beneﬁ ts:

• Work rights

• Access to certain social security beneﬁ ts

such

as Special Beneﬁ t and Rent Assistance

• Access to Medicare beneﬁ ts

• Access to early Health Assessment and

Intervention services

• Eligible for Torture and Trauma counselling

• Public education for school-age minors; access

to English as a Second Language service for

school-aged children.

The RPBV comes into effect when granted by the Minister

and allows the holder to remain in Australia, but not to

leave and/or re-enter Australia, and ceases when the visa

holder leaves Australia. The RPBV is non-renewable and

is valid for 18 months. However, this visa can be ceased

earlier if one of the following conditions is met:

• The Minister is satisﬁ ed that removal is now

reasonably practicable

• The holder breaches a visa condition.

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9.4 Gro up-Based Protection

Australia does not have procedures in place for granting

group-based protection under the current PV framework.

Historically, Australia has granted temporary haven

for certain prescribed groups. The current Australian

migration framework allows the government to develop

regulations tailored to the particular circumstances of

new groups, if the need arises.

Safe Haven

The Subclass 449 Humanitarian Stay (Temporary) visa

provides temporary safe haven in Australia for people

who have been displaced by upheaval in their country

and for whom the Australian government considers

the most appropriate assistance to be temporary safe

haven. It was used to assist displaced Kosovars in

1999 and also East Timorese in particularly vulnerable

situations. The visa provides temporary stay on the

understanding that holders return to their home country

when the Australian government considers it safe to

do so.

Application for this visa is by acceptance of an offer

made by a departmental ofﬁ cer who is authorised for this

purpose. Such an offer can only be made to a person

or caseload speciﬁ ed by the Immigration Minister. The

visa is granted by a delegated departmental ofﬁ cer.

This visa is administered separately from the PV and

is not counted as part of the Humanitarian Program.

Past and present holders of Subclass 449 visas may

not apply for any other visa, including a PV, unless the

minister allows it.

9.5 Regularisation of Status over

Time

Australia does not have procedures in place to

regularise the status of a person over time. Under the

current migration framework, a non-citizen must have

a visa to enter and remain lawfully in Australia. If a

person is found to be unlawfully in Australia he or she

may be removed.

9.6 Regularisation of Status of

Stateless Persons

Australia does not have specific procedures for

regularising the status of stateless persons. Currently

stateless persons are dealt with in an ad hoc manner

if they fall outside the 1951 Convention. The Minister

has a non-delegable and non-compellable power to

grant a visa if the person claiming statelessness has

a unique and exceptional circumstance that warrants

the Minister to use his or her intervention power on

humanitarian grounds to allow the person some form

of continued stay in Australia.

10 Return

The Migration Act provides the legislative basis

for the removal of unlawful non-citizens, including

failed asylum-seekers, from Australia in particular

circumstances (section 198 of the Act).

10.1 Pre-departure Considerations

The pre-removal clearance is an assessment that

checks whether or not the involuntary removal of

certain clients will engage Australia’s international

treaty obligations. This clearance is in addition to

any assessment made in connection with a previous

PV application or Ministerial Intervention request and

is designed to identify any changes in the person’s

circumstances or their country of return which

could entail their removal breaching Australia’s non-

refoulement obligations under international treaties or

conventions.

10.2 Procedure

emovals are forcibly implemented on occasion where

there is a need to comply with, and enforce, Australian

law with regard to the removal of uncooperative

non-citizens who have no lawful reason to remain in

Australia.

PV applicants whose refusal decision is afﬁ rmed by the

RRT who have no other legal reason to stay in Australia

have 28 days to depart the country. If they stay beyond

this 28-day period, the Department may enforce the

removal. There is no removal order – a removal happens

as a consequence of law.

The Department also provides assistance to eligible

persons through a Voluntary Assisted Return

programme on a case-by-case basis.

10.3 Freedom of Movement/

Detention

There are no restrictions on the freedom of movement

of PV applicants who entered Australia lawfully

and maintain their lawful status. However, with

undocumented arrivals or where entry has been

denied and they have requested protection, they will

be detained to conduct health, character and security

checks. If these persons pose no risk to the national

interest or the Australian community, they will be

allowed to live in the community while their applications

for refugee status are being considered.

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10.4 Readmission Agreements

Australia has a few readmission agreements in place,

but they are conﬁ dential.

11 Integration

Persons who are granted a refugee visa under the

offshore Humanitarian Program have access to a range

of integration programmes.

PV holders are eligible for the services provided by

the Integrated Humanitarian Settlement Strategy

(IHSS). IHSS, which is delivered by DIAC, provides

initial, intensive settlement support. IHSS services are

generally provided for approximately six months, but

may be extended in particular cases. Services provided

under the IHSS are as follows:

• Case coordination, information and referrals,

which include a case coor

dination plan based

on an initial needs assessment

• On Arrival Reception and Assistance, which

includes meeting eligible entrants on arrival and

oviding them with initial orientation

• Accommodation Services, which helps entrants

ﬁ

nd appropriate and affordable accommodation

• Short-term Torture and Trauma Counselling

services, which pr

ovides an assessment of

needs, a case plan, referral for torture and

trauma counselling.

In addition to the IHSS services, resettled refugees have

access to the Australian Cultural Orientation (AUSCO)

Program, which is delivered offshore to refugee and

humanitarian entrants over five years of age and

aims to enhance their settlement prospects. AUSCO

courses are designed to prepare entrants for travel

to Australia, create realistic expectations about their

life in Australia and provide a practical introduction to

Australian life, laws, culture and values. Free English

language tuition is also provided through the Adult

Migrant English Program (AMEP) for eligible adult

migrants and humanitarian entrants who do not have

functional English.

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12 Annexe

12.1 Selections from the Migration Act 1958

Section 36- Protection visas

(1) There is a class of visas to be known as protection visas.

(...)

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia to whom the Minister is satisﬁ ed Australia has protection obligations

under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa.

Protection obligations

(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible

steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and

however that right arose or is expressed, any country apart from Australia, including countries of which the

non-citizen is a national.

(4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race,

religion, nationality, membership of a particular social group or political opinion, subsection (3) does not

apply in relation to that country.

(5) Also, if the non-citizen has a well-founded fear that:

(a) a country will return the non-citizen to another country; and

(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality,

membership of a particular social group or political opinion;

subsection (3) does not apply in relation to the ﬁ rst-mentioned country.

Section 48A- Non-citizen refused a protection visa may not make further application for protection visa

(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made:

(a) an application for a protection visa, where the grant of the visa has been refused (whether or not

the application has been ﬁ nally determined); or

(b) applications for protection visas, where the grants of the visas have been refused (whether or not

the applications have been ﬁ nally determined);

may not make a further application for a protection visa while in the migration zone.

14 Migration Act 1958 (as amended up to Act No. 159 of 2008) - Act No. 62 of 1958 as amended. 8 October 1958, available online on UNHCR

Refworld at: http://www.unhcr.org/refworld/docid/49896a7d2.html (Volume 1) and http://www.unhcr.org/refworld/docid/49896b012.html

(Volume 2) [accessed 19 February 2009].

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Section 48B- Minister may determine that section 48A does not apply to non-citizen

(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a

particular non-citizen, determine that section 48A does not apply to prevent an application for a protection

visa made by the non-citizen in the period starting when the notice is given and ending at the end of the

seventh working day after the day on which the notice is given.

(2) The power under subsection (1) may only be exercised by the Minister personally.

(3) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each

House of the Parliament a statement that:

(a) sets out the determination; and

(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for

thinking that his or her actions are in the public interest.

(4) A statement under subsection (3) is not to include:

(a) the name of the non-citizen; or

(b) any information that may identify the non-citizen; or

connected in any way with the matter concerned--the name of that other person or any information

that may identify that other person.

(5) A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days

of that House after:

(a) if the determination is made between 1 January and 30 June (inclusive) in a year--1 July in that year; or

(b) if the determination is made between 1 July and 31 December (inclusive) in a year--1 January in

the following year.

(6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in

respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person,

or in any other circumstances.

Section 91A- Reason for Subdivision (Safe third countries)

This Subdivision is enacted because the Parliament considers that certain non-citizens who are covered by the CPA,

or in relation to whom there is a safe third country, should not be allowed to apply for a protection visa or, in some

cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.

Section 91E- Non-citizens to which this Subdivision applies unable to make valid applications for certain visas

Despite any other provision of this Act, if this Subdivision applies to a non-citizen at a particular time and, at that

time, the non-citizen applies, or purports to apply, for a protection visa then, subject to section 91F:

(a) if the non-citizen has not been immigration cleared at that time--neither that application nor any

other application made by the non-citizen for a visa is a valid application; or

(b) if the non-citizen has been immigration cleared at that time--neither that application nor any other

application made by the non-citizen for a protection visa is a valid application.

15 Comprehensive Plan of Action approved by the International Conference on Indo-Chinese Refugees, held at Geneva, Switzerland, from 13 to

14 June 1989.

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Section 91F- Minister may determine that section 91E does not apply to non-citizen

(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to

a particular non-citizen, determine:

(a) that section 91E does not apply to an application for a visa made by the non-citizen in the period

starting when the notice is given and ending at the end of the seventh working day after the day that

the notice is given; or

(b) that section 91G does not apply to an application for a visa made by the non-citizen during the

transitional period referred to in that section.

(2) The power under subsection (1) may only be exercised by the Minister personally.

(...)

Section 91K- Non-citizens to whom this Subdivision applies are unable to make valid applications for certain

visas (Temporary safe haven visas)

Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a

particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary

safe haven visa), then that application is not a valid application.

Section 91L- Minister may determine that section 91K does not apply to a non-citizen

(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to

a particular non-citizen, determine that section 91K does not apply to an application for a visa made by the

non-citizen in the period starting when the notice is given and ending at the end of the seventh working day

after the day that the notice is given.

(...)

Section 91N- Non-citizens to whom this Subdivision applies (access to protection from third countries)

(1) This Subdivision applies to a non-citizen at a particular time if, at that time, the non-citizen is a national

of 2 or more countries.

(...)

91P- Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas

(1) Despite any other provision of this Act but subject to section 91Q, if:

(a) this Subdivision applies to a non-citizen at a particular time; and

(b) at that time, the non-citizen applies, or purports to apply, for a visa; and

that application, nor any other application the non-citizen makes for a visa while he or she remains

in the migration zone, is a valid application.

(...)

91Q- Minister may determine that section 91P does not apply to a non-citizen

(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice

given to a particular non-citizen, determine that section 91P does not apply to an application for a

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visa made by the non-citizen in the period starting when the notice is given and ending at the end of

the seventh working day after the day that the notice is given.

(...)

Section 311- Migration Agents Registration Authority not bound by legal forms etc.

The Migration Agents Registration Authority, in considering a registration application or a possible disciplinary

action under section 303:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.

Section 351- Minister may substitute more favourable decision

(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of

the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant,

whether or not the Tribunal had the power to make that other decision.

Section 501- Refusal or cancellation of visa on character grounds

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as deﬁ ned by subsection (7)); or

(b) the person has or has had an association with someone else, or with a group or organisation,

whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(i) the person’s past and present criminal conduct;

(ii) the person’s past and present general conduct;

the person is not of good character; or

(d) in the event the person were allowed to enter or to remain in Australia, there is a signiﬁ cant risk

that the person would:

(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia; or

(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether

by way of being liable to become involved in activities that are disruptive to, or in violence

threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test.

Section 502 - Minister may decide in the national interest that certain persons are to be excluded persons

(1) If:

(a) the Minister, acting personally, intends to make a decision:

(...)(iii) to refuse to grant a protection visa, or to cancel a protection visa, relying on one or

more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2); in

relation to a person; and

(b) the Minister decides that, because of the seriousness of the circumstances giving rise to the

making of that decision, it is in the national interest that the person be declared to be an excluded

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

person; the Minister may, as part of the decision, include a certiﬁ cate declaring the person to be an

excluded person (...).

Section 503- Exclusion of certain persons from Australia

(1) A person in relation to whom a decision has been made:

(...)

following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);

(...) is not entitled to enter Australia or to be in Australia at any time during the period determined under the

regulations.

(2) The period referred to in subsection (1) commences, in the case of a person who has been deported or

removed from Australia, when the person is so deported or removed.

12.2 Selections from the Immigration Guardianship of Children Act 1946

Section 6- Guardianship of non-citizen children

The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives

in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian

of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural

guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until

the provisions of this Act cease to apply to and in relation to the child, whichever ﬁ rst happens.

Section 4AAA- Non-citizen child

(1) Subject to subsections (2) and (3), a person (the child ) is a non-citizen child if the child:

(a) has not turned 18; and

(b) enters Australia as a non-citizen; and

(2) Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living

in Australia under the care of:

(a) a parent of the child; or

(b) a relative of the child who has turned 21; or

(3) Subsection (1) does not apply if:

(a) the child enters Australia in the charge of, or for the purposes of living in Australia under the care

of, a person who is not less than 21 years of age (the adult ); and

(b) a prescribed adoption class visa is in force in relation to the child when the child enters Australia; and

16 Immigration (Guardianship of Children) Act 1946 (as amended up to Act No. 144 of 2008). Act No. 45 of 1946 as amended 15 August 1946,

available online on UNHCR Refworld at

http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=

search&docid=49817ec42&skip=0&query=Immigration%20

guardianship%20of%20children%20act [accessed 9 March 2009].

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AUS

(4) A person is a non-citizen child if:

(a) the person has not turned 18; and

(b) a direction under section 4AA is in force in relation to the person.

12.3 Additional Case Law on Determination Practices

Internal Relocation Principle

In SZATV v Minister for Immigration and Citizenship [2007] HCA 40 and SZFDV v Minister for Immigration and

Citizenship [2007] HCA 41, the High Court considered whether inconsistency exists between the application of

the internal relocation principle and the principle established in S395/2002 v MIMA [2003] HCA 71 (a requirement

that a person modify his or her behaviour to avoid persecution may itself amount to persecution). The High Court

upheld the internal relocation principle as currently applied, but held that whether it is reasonable or practicable to

relocate to another part of the country depends upon the particular circumstances of the applicant and the impact

upon that person of relocation. Decision-makers must ensure that in ﬁ nding that an applicant is able to relocate,

they are not expecting the applicant to censure that aspect of themselves or their behaviour that may have led to

them having a well-founded fear of persecution in another part of the country.

Well-Founded Fear

In WAKZ v MIMA [2005] FCA 1065, the Federal Court found that subjective fear of harm based on psychological

frailty cannot amount to a well-founded fear of persecution if it is not based on an objectively well-founded fear of

apprehended objectively persecutory behaviour.

Particular Social Group

In Applicant S v MIMIA [2004] HCA 25, the High Court formulated a test for determining whether a group falls within

the deﬁ nition of a “particular social group” in Article 1A(2) of the Refugees Convention. Decision-makers should apply

this test: (1) the group must be identiﬁ able by a characteristic or attribute common to all members of the group; (2)

the characteristic or attribute common to all members of the group cannot be the shared fear of persecution; and

(3) the possession of that characteristic or attribute must distinguish the group from society at large.

The High Court also rejected the proposition, which had been accepted in the Federal Court for some years, that

the particular social group must be recognised or perceived within the society in question. Rather, the issue is

whether the particular social group is distinguished from the rest of society in question. As well, the High Court

outlined how social and legal factors could indicate the existence of a particular social group (“[if] the community’s

ruling authority were to legislate in such a way that resulted in discrimination against left-handed men, over time

the discriminatory treatment of this group might be absorbed into the social consciousness of the community. In

these circumstances, it might be correct to conclude that the combination of legal and social factors (or norms)

prevalent in the community indicate that left-handed men form a particular social group distinguishable from the

rest of the community”).

Cessation Clauses

In MIMIA v WABQ [2002] FCA 329, the Federal Court largely disagreed with the interpretation of Article 1D in prior

Australian case law, and set a precedent on how the clause is interpreted and applied in Australia. The Court held

that “persons…who are at present…receiving” refers to a group of persons, namely Palestinian refugees, who

were receiving protection (United Nations Conciliation Commission on Palestine, UNCCP) or assistance (United

Nations Relief and Works Agency for Palestine, UNRWA) at the time the Convention was signed or ratiﬁ ed (28 July

1951). The Court also held that “ipso facto” does not mean that Palestinian refugees are automatically entitled to

the beneﬁ ts of the Refugees Convention if UNRWA ceases to provide assistance and UNCCP ceases to provide

protection. “Ipso facto” means, that if assistance or protection ceases, Palestinian refugees may be assessed as

to whether they are refugees within the meaning of Article 1A(2) of the Refugees Convention.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

12.4 Immigration Detention Values

Immigration detention in Australia is required by the Migration Act 1958 (the Act). It is administrative in nature and is

not used for punitive or correctional purposes. The Government’s position is reﬂ ected in the seven key immigration

detention values that underpin immigration detention. These are:

1. Mandatory detention is an essential component of strong border control.

2. To support the integrity of Australia’s immigration programme, three groups will be subject to mandatory

detention:

a. all unauthorised arrivals, for management of health, identity and security risks to the community;

b. unlawful non-citizens who present unacceptable risks to the community; and

c. unlawful non-citizens who have repeatedly refused to comply with their visa conditions;

3. Children, including juvenile foreign ﬁ shers and, where possible, their families, will not be detained in an

immigration detention centre (IDC);

4. Detention that is indeﬁ nite or otherwise arbitrary is not acceptable and the length and conditions of detention,

including the appropriateness of both the accommodation and the services provided, would be subject to

regular review;

5. Detention in IDC is only to be used as a last resort and for the shortest practicable time;

6. Persons in detention will be treated fairly and reasonably within the law; and

7. Conditions of detention will ensure the inherent dignity of the human person.

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12.5 Additional Statistical Information

1,000

2,000

3,000

4,000

5,000

6,000

1997 2002 2008

Colombia

Philippines

South Korea

Fiji

Malaysia

Indonesia

India

Sri Lanka

China

Figure 4:

Evolution of Top Five Countries of Origin for Australia in 1997, 2002 and 2008

Convention Status

Other

Authorisations

to Remain

Rejections Other Decisions*

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1992

257 5% 0 0% 4,709 88% 363 7% 5,329

1993

425 5% 0 0% 7,737 82% 1,257 13% 9,419

1994

846 11% 0 0% 5,754 76% 1,012 13% 7,612

1995

674 6% 0 0% 6,055 50% 5,288 44% 12,017

1996

1,195 12% 0 0% 6,573 64% 2,492 24% 10,260

1997

1,320 9% 0 0% 12,475 85% 856 6% 14,651

1998

836 7% 0 0% 10,453 90% 335 3% 11,624

1999

1,209 15% 0 0% 6,613 82% 200 2% 8,022

2000

4,050 31% 0 0% 8,358 65% 457 4% 12,865

2001

3,364 29% 0 0% 7,698 67% 452 4% 11,514

2002

1,234 13% 0 0% 7,761 83% 363 4% 9,358

2003

240 5% 0 0% 5,034 95% 0 0% 5,274

2004

354 11% 0 0% 2,721 86% 87 3% 3,162

2005

572 17% 0 0% 2,786 82% 62 2% 3,410

2006

697 20% 0 0% 2,626 77% 84 2% 3,407

2007

1,216 33% 0 0% 2,448 66% 58 2% 3,722

2008

1,397 32% 0 0% 2,867 66% 69 2% 4,333

*Other decisions may include withdrawn claims, abandoned claims or claims otherwise resolved.

Figure 5:

Decisions Made at the First Instance, 1992-2008

Belgium

BEL

55 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

56 - NATIONAL LEGAL FRAMEWORK

57 - INSTITUTIONAL FRAMEWORK

57 - PRE-ENTRY MEASURES

58 - ASYLUM PROCEDURES

64 - DECISION-MAKING AND STATUS

67 - E

FFICIENCY AND INTEGRITY MEASURES

68 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

70 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

71 - R

ETURN

71 - INTEGRATION

72 - ANNEXE

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1 Background: Major Asylum

Trends and Developments

Asylum Applications

In the early 1980’s, Belgium was receiving fewer than

5,000 applications per year. The numbers started to

increase in the mid 1980’s, however, reaching a peak

of 26,000 in 1993 and another peak of 42,000 in 2000.

Annual applications have decreased considerably since

the second peak, and in 2008, Belgium received 12,000

applications.

Top Nationalities

In the 1990’s, most asylum-seekers came from Zaire

(now the Democratic Republic of Congo), Romania,

India and the former Yugoslavia. Since 2000, most

claimants have come from Russia, the former

Yugoslavia, Iraq and Iran.

Important Reforms

Major reforms over the period since the early 1980’s

have included an increase in staff working on asylum,

the withdrawal of work rights from asylum-seekers, and

the provision of beneﬁ ts in kind rather than in cash at

reception centres.

Until 1 June 2007, the asylum procedure was

characterised by a two-phase system, as follows:

• Admissibility: The Immigration Department

(ID), which received asylum applications, was

responsible for a ﬁ rst decision in the admissibility

phase. If the application was found to be

admissible, the ﬁ le was transferred to the Ofﬁ ce

of the Commissioner General for Refugees

and Stateless Persons (CGRS) for an in-depth

investigation (eligibility phase). If the application

was found to be inadmissible, an urgent appeal

could be lodged with the CGRS. If the CGRS

overturned the decision of the ID and decided the

application was admissible, the ﬁ le went through

to the eligibility phase (still at the CGRS). If the

CGRS conﬁ rmed the initial inadmissibility decision

of the ID, there remained a possibility to lodge a

non-suspensive appeal with the Council of State.

• Eligibility: In this phase, a positive decision

of the CGRS would lead to the recognition of

refugee status. A decision to refuse could be

appealed before the Permanent Refugee Appeals

Commission (administrative court). A positive

decision by the Appeals Commission resulted in

the granting of refugee status. Asylum-seekers

could appeal a negative decision of the Appeals

Commission before the Council of State. This ﬁ nal

appeal did not have suspensive effect.

As outlined below, significant reforms to asylum

procedures were introduced in 2006, leading to the

elimination of the two-phase procedure, and putting

in its place a single procedure for obtaining either

Convention refugee status or subsidiary protection.

2,900

4,510

11,420

42,691

15,957

12,252

26,882

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

5,000

10,000

15,000

20,000

25,000

30,000

35,000

40,000

45,000

* Applications made by accompanied minors under age 14 are not included

Figure 1:

Evolution of Asylum Applications* in Belgium, 1983-2008

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Figure 3:

Top Five Countries of Origin in 2008*

1 Russia 1,620

2 Iraq 1,070

3 Afghanistan

879

4 Guinea (Conakry)

661

5 Iran

614

* Applications made by accompanied minors under age

14 are not included

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

Refugee status is granted on the basis of the 1951

Convention Relating to the Status of Refugees

(1951 Convention). The asylum procedure and the

competencies of asylum institutions are governed by

the Aliens Act of 15 December 1980 (Law regarding the

entry, residence, settlement and removal of aliens).

The Aliens Act includes provisions for subsidiary

protection (i.e., complementary protection), residence

permits granted for medical or health reasons, and

humanitarian status.

While the European Union (EU) asylum acquis has been

largely transposed into the Aliens Act, there remains the

1 The Aliens Act is currently available in French and Dutch at the

following links on the website of the CGRS: http://www.cgvs.be

transposition of certain provisions of Council Directive

2005/85/EC.

2.2 Recent Reforms

Asylum Procedures

Signiﬁ cant legislative reforms were adopted in 2006

that resulted in the introduction of subsidiary protection

and a new single asylum procedure. The Aliens Act

deﬁ nes subsidiary protection and sets out conditions

for obtaining this complementary form of protection.

The new single procedure came into effect on 1 June

2007, replacing the former two-phase (admissibility and

eligibility) procedure. The single procedure considers

grounds for both Convention refugee status and

subsidiary protection in the examination of asylum

claims.

In addition, the legislative reforms resulted in the

following institutional changes:

• The Ofﬁ ce of the Commissioner General for

Refugees and Stateless Persons (CGRS)

became the central body responsible for the

adjudication of asylum claims

• The Aliens Litigation Council replaced the former

Permanent Refugee Appeals Commission as

the body responsible for hearing appeals of

decisions taken by the CGRS

2 Council Directive 2005/85/EC of 1 December 2005 on minimum

standards on procedures in Member States for granting and

withdrawing refugee status (Asylum Procedures Directive).

500

1,000

1,500

2,000

2,500

3,000

3,500

4,000

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Russia Iraq Afghanistan

* Applications made by accompanied minors under age 14 are not included

Figure 2:

Evolution of Applications* from Top Three Countries of Origin for 2008

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BEL

• The Council of State became a court of cassation

where appeals of decisions taken by the Aliens

Litigation Council can be heard.

Reception

A new Reception of Asylum-Seekers and Certain Other

Categories of Aliens Act (Reception Act) came into force

on 7 May 2007. The Act entitles asylum-seekers to material

support for the duration of the asylum procedure and to

accommodation. The new law also stipulates that asylum-

seekers must be informed of their rights and obligations.

3 Institutional Framework

3.1 Principal Institutions

The institutions involved in the asylum procedure are

as follows:

• The Immigration Department, Ministry of Interior,

eceives asylum claims inside the territory and

is responsible for enforcing returns

• The CGRS is the independent federal

administrative body with the competence to

grant or refuse claims for refugee status or

subsidiary protection

• The Aliens Litigation Council hears appeals of

decisions taken by the Immigration Department

or the CGRS

• The Council of State hears appeals by cassation

of decisions of the Aliens Litigation Council.

Fedasil, the Federal Agency for the Reception of

Asylum-Seekers, is responsible for the reception of

asylum-seekers.

3.2 Cooperation between

Government Authorities

The CGRS and the Immigration Department work closely

together on an organisational level. Since the Department

has certain competencies within the asylum procedure

(including the Dublin procedure and determining the

admissibility of subsequent applications), the two

organisations also cooperate on a practical level. However,

when it comes to decision-making, no consultation takes

place in order to uphold the independence of the CGRS.

Both the CGRS and the Immigration Department are

ﬁ nanced by the Ministry of the Interior.

The Aliens Litigation Council (ALC) works independently.

There is no structural cooperation with the other asylum

agencies, due to the independent position of the ALC as

an appeal court.

CGRS has no structural cooperation with police or

the justice department. When ad hoc cooperation

and information-sharing do take place between these

agencies, the basic principles of conﬁ dentiality and

privacy are guaranteed.

4 Pre-entry Measures

To enter Belgium, foreign nationals must have a valid

travel document, such as a passport, and in certain

cases, a visa issued by Belgium or one of the other

States parties to the Schengen Agreement.

4.1 Visa Requirements

The Immigration Department of the Ministry of Interior

is the competent authority for issuing visas to nationals

from a majority of countries that fall outside the

Schengen area. One may appeal a decision not to issue

a visa before the Aliens Litigation Council.

4.2 Carrier Sanctions

Carrier sanctions are applicable to airplanes and

ships. According to the Aliens Act, administrative

ﬁ nes may be imposed on private or public carriers if

it is found that they have transported passengers who

are not in possession of valid travel documents. The

administrative ﬁ ne amounts to 3,750 per passenger.

4.3 Interception

Memoranda of Understanding (MOUs) have been

concluded between the government and carriers in

an effort to collaborate on the prevention of illegal

migration. According to the MOUs, carriers that

cooperate with government authorities in combating

illegal migration may be subject to reduced carrier

sanctions if and when they should become applicable.

To be eligible for signing an MOU, carriers must meet

the following requirements:

• They must participate in activities against illegal

migration (for example, training airline check-in

staf

f on detecting fraudulent documents)

• They must pay all administrative ﬁ nes that may

have been imposed under the Aliens Act

• They must cooperate on the return of

inadmissible for

eign nationals.

Belgium does not carry out pre-departure clearance in

countries of origin or transit.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

Foreign nationals seeking asylum may apply for it at

airports and seaports. Applications inside the territory

must be made at the Immigration Department within

eight (8) days of arrival in Belgium. Applications may

also be introduced in detention centres, prisons and

closed centres.

Children of asylum-seekers may have their asylum

claims included with those of their parents. Persons

over the age of 18 must ﬁ le their own asylum claims.

Access to Information

Information leaflets on the asylum and reception

procedures exist in a number of different languages.

The leaﬂ ets may be obtained at the reception centres,

at offices of government agencies involved in the

asylum procedure, and through non-governmental

organisations (NGOs). An electronic version of the

leaﬂ et is available on the CGRS website.

There are also information leaﬂ ets geared speciﬁ cally

to women asylum-seekers and leaﬂ ets explaining the

asylum procedure for claims that are introduced in a

closed centre, at a border post or in prison. Staff at

closed centres and open reception centres are available

to provide asylum-seekers with additional information

on procedures.

5.1.1. Outside the Country

Applications at Diplomatic Missions

Belgium does not have a legal procedure in place

for persons to make an asylum claim at diplomatic

missions.

Resettlement/Quota Refugees

Belgium does not currently have an annual quota for

resettlement. In the past, Belgium has engaged in ad hoc

resettlement of refugees upon the request of the United

Nations High Commissioner for Refugees (UNHCR) and

with the approval of the federal cabinet. Applications

for resettlement were processed individually. In 1996,

for example, a group of refugees were resettled from

Zepa and Srebenica.

In response to the general request of the European

Union Justice and Home Affairs (JHA) Council of 27

November 2008 to intensify measures to resettle Iraqi

refugees in EU Member States, the Belgian Council of

Ministers decided on 13 February 2009 to undertake

a pilot project for the resettlement of 50 refugees

originating from Iraq.

5.1.2. At Ports of Entry

A person who has been refused entry to the Schengen

territory at a border post will be notiﬁ ed of a decision

to return. Such a decision may be based on the use

of false documents or on not having satisﬁ ed entry

conditions. According to the Aliens Act, this person

may be sent back to the place of departure.

Asylum applications may be made with the border

police, and if this is the case, return will be suspended,

and the application will be examined without triggering

a right to enter Belgian territory. Usually, the asylum-

seeker will be taken to a closed centre for the duration

of the procedure (up to a maximum of two months).

A first interview with an officer of the Immigration

Department takes place in order to obtain all the

necessary information for determining which EU Member

State is responsible for the asylum application. If Belgium

is responsible for examining the claim, a caseworker and

an interpreter of the CGRS will visit the closed centre

to interview the asylum-seeker. The asylum-seeker has

the right to free legal representation. The procedure in

the closed centre is similar to the normal procedure

described below, although determinations are made

within a shorter timeframe at the closed centre.

If the application is allowed, the asylum-seeker is given

permission to enter the country and is instructed to

pursue the asylum application at the Immigration

Department in Brussels.

5.1.3. Inside the Territory

Responsibility for Processing the Claim

The Dublin System

Application and Procedure

The Immigration Department determines whether

Belgium is responsible for processing an asylum

claim under Council Regulation (EC) No 343/2003.

If it determines that Belgium is not responsible for

processing the claim, the Department issues a refusal

along with an order for the person to leave the country.

3 Council Regulation (EC) No 343/2003 of 18 February 2003

establishing the criteria and mechanisms for determining the

Member State responsible for examining an asylum application

lodged in one of the Member States by a third-country national

(Dublin II Regulation).

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A laissez-passer is provided so the person can travel to

the country responsible for processing his or her claim.

Freedom of Movement/Detention

Persons whose claims are considered to be Dublin

cases may be detained for a maximum period of one

month while the Immigration Department determines

which country is responsible for the claim. In particularly

complex cases, detention may be extended for an

additional month. Persons may be detained for one of

the following reasons:

• They are holders of an expired residence permit

or an expir

ed visa for another Dublin country

• They do not have the necessary travel

documents and have r

esided in another Dublin

country

• They do not have the necessary travel

documents, and a ﬁ

ngerprint check shows that

they have stayed in another Dublin country.

Persons may also be detained for a maximum period

of one month after a decision has been made to return

the person to the country responsible for the asylum

application. Detention is applied to ensure removal from

Belgium.

Conduct of Transfers

Transfers are carried out either voluntarily or involuntarily.

Persons who are in detention may be escorted to the

border (or airport), while others may travel voluntarily

to the country responsible for their claim, either at their

own expense or with transportation expenses provided

by the Immigration Department.

Suspension of Dublin Transfers

Dublin II Regulation transfers may be suspended by

order of the Aliens Litigation Council. Under a special

procedure (the so-called “urgent necessity”), the counsel

for the asylum-seeker may request a suspension of

transfer when removal is imminent and would cause a

serious disadvantage if carried out. The counsel must

also show to the Council that an appeal for annulling

the Dublin decision would in all likelihood result in a

positive decision for the asylum-seeker. The Council

may grant a suspension of transfer if the asylum-seeker

can prove that, upon transfer to a Dublin country, he or

she would be subject to refoulement.

Transfers may also be suspended if the person is unable

to travel, for instance, for medical reasons.

Review/Appeal

Persons may appeal the Department’s decision to

transfer them under the Dublin II Regulation before the

Aliens Litigation Council within 30 days of the decision.

Application and Admissibility

Application

When ﬁ ling an asylum application with the Immigration

Department, asylum-seekers are required to do the

following:

• Complete a form indicating the reasons for their

claim

• Provide relevant information such as identity

documents and date of arrival

• Have their photographs and ﬁ ngerprints

taken

• Undergo a chest x-ray to detect tuberculosis

• Appear at an interview with immigration ofﬁ cials,

usually on the same day the asylum claim is

ﬁ led, and with the assistance of an interpreter,

if requested.

Admissibility

If the Immigration Department finds that, under

the Dublin II Regulation, Belgium is responsible for

processing an asylum claim, the asylum-seeker’s

complete ﬁ le is forwarded to the CGRS.

Inadmissibility and Appeal

According to Article 52 of the Aliens Act, an asylum claim

may be deemed inadmissible on a number of substantive

or technical grounds. Examples of substantive grounds

include a fraudulent application or a manifestly unfounded

claim. Technical grounds include failure to make an

asylum application within eight days of arrival in Belgium,

and the voluntary withdrawal of an asylum application.

The possibility for declaring an asylum application

inadmissible, however, is optional: the Commissioner

General is under no obligation to declare an application

inadmissible under the terms of Article 52, even where

all the conditions for making such a decision are fulﬁ lled.

Article 52 was applied during the admissibility phase

under the previous, two-phase asylum procedure but

is rarely used today.

Asylum applications may also be deemed inadmissible

if the asylum-seeker had previously made an identical

application.

4 See the section on Repeat Applications below.

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Applications made by citizens of an EU Member State

or a candidate state may be deemed inadmissible as

described below under Safe Country Concepts.

Determinations on inadmissibility are prioritised and

must be made within two months of the application.

In certain cases – such as asylum applications made

by persons who are in detention – the law provides

for a 15-day time limit for decisions on inadmissibility.

Appeals against admissibility decisions can be made

before the Aliens Litigation Council within 15 days. Such

appeals have suspensive effect.

An appeal in cassation against the decisions of the

Aliens Litigation Council can be made with the Council

of State within 30 days of the notiﬁ cation of the decision.

Such an appeal does not have suspensive effect.

Freedom of Movement

Asylum-seekers may be detained in a closed centre at

the border while awaiting a decision by the Immigration

Department if they do not have the necessary documents

to enter the territory. In cases where the protection of

public order or national security is concerned, the

detention may be extended but cannot exceed a

total of eight months. Detained persons may ﬁ le an

appeal against the decision with the Council Chamber

of Correctional Court in the area, and reintroduce the

appeal each month of his or her detention.

Accelerated Procedures

An accelerated procedure may apply in cases of

subsequent applications. The Immigration Department

ﬁ rst examines whether the application contains new

elements. If this is the case and the file has been

forwarded to the CGRS, a decision may be taken, within

the normal procedure, within two or three months.

There are also provisions in place to apply an

accelerated procedure in cases where the asylum-

seeker is being held in a closed centre, is subject to

a security measure or is detained in a penitentiary.

The Commissioner General must give priority to the

examination of these types of cases. Appeals made

before the Aliens Litigation Council against decisions

taken by the CGRS through an accelerated procedure

are also given priority by the Council.

An accelerated procedure may also apply to citizens of

EU Member States or candidate states who are making

a claim for asylum. However, if the asylum claim of an

EU citizen is not deemed inadmissible (that is, is taken

into consideration) the claim will proceed to the normal

procedure rather than to an accelerated procedure.

5 See the Section on Safe Country Concepts for more information.

Normal Procedure

Application Requirements

Under the normal procedure, asylum-seekers are

required to do the following:

• Submit all their identity documents and any

other documentation that may be r

elevant to

their claim

• Appear at an interview, which provides them

with an opportunity to explain the particulars

of their claim.

Interviews/Examination of Case

Interviews are conducted by a caseworker of the

CGRS from one of the ﬁ ve geographical desks (Africa,

The Balkans, Eastern Europe, Middle East/Asia, and

Democratic Republic of Congo). The caseworker

drafts an interview report, with the content treated

as conﬁ dential. The caseworker then examines the

individual asylum story against the objective situation

in the country of origin and submits to a supervisor a

proposal for a decision on the case. Under the single

asylum procedure, the CGRS ﬁ rst examines claims

within the framework of the 1951 Convention and then

considers grounds for subsidiary protection.

Review/Appeal of Asylum Decisions

Appealing CGRS Decisions

The Aliens Litigation Council has full competence to

conﬁ rm, annul or change a decision taken by the CGRS.

Appeals, which have suspensive effect, must be made

within 15 days of a CGRS decision. The asylum-seeker

is eligible to obtain free legal assistance for his or her

appeal.

Citizens of a member state or candidate member

state of the EU whose claims have been rejected by

the CGRS may only make an appeal for annulment

before the Aliens Litigation Council within 30 days of a

decision. In such cases, only the legality of the decision

made by the CGRS may be examined and the appeal

has no suspensive effect.

The procedure before the Aliens Litigation Council is a

paper process. In limited cases, the appellant and his or

her legal representatives may make an oral intervention

during the hearing.

Both parties – that is, the asylum-seeker and his or

her representatives and the CGRS – are present at the

hearing. Hearings at the Aliens Litigation Council are

open to the public, but a private hearing is possible if

requested.

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If the Aliens Litigation Council decides to annul a

decision of the CGRS for reasons of substantial

irregularities that cannot be repaired by the Council

or because there are essential elements lacking that

prevent the Council from reaching a decision without

additional research, the case is returned to the CGRS

for a new decision. The Aliens Litigation Council does

not dispose of a power of investigation of its own. The

judgment of the Aliens Litigation Council is based solely

on the elements submitted by the appellant and the

defendant for the purposes of the appeal.

The Minister for Immigration and Asylum Policy may

appeal a CGRS decision to grant Convention refugee

status or subsidiary protection within 15 days of

the decision. This appeal is made before the Aliens

Litigation Council.

Appealing Decisions of the Aliens Litigation

Council

Decisions of the Aliens Litigation Council may be

appealed only by cassation before the Council of

State. All appeals before the Council of State have

no suspensive effect and must be ﬁ led within 30 days

of the decision of the Aliens Litigation Council. All

cassation appeals undergo an admissibility procedure.

Cases are inadmissible if they are found to be without

cause, to be manifestly inadmissible or to be beyond

the competence or jurisdiction of the Council of State.

If the Council of State annuls the decision being appealed,

the case is returned to the Aliens Litigation Council for

a new hearing, and the Aliens Litigation Council must

observe the judgment that has been rendered.

Freedom of Movement during the

Asylum Procedure

Detention

In certain cases specified by the Aliens Act, the

Immigration Department may decide to hold an asylum-

seeker in a closed centre during the determination

procedure at the CGRS or pending return following a

negative decision on the asylum claim

. Decisions to

detain may be appealed before the Council Chamber

of the Correctional Court. Appellants have the right to

free legal assistance during their appeal.

Examples of cases that may lead to detention include

situations in which the person:

• Had been served a removal order by Ministerial

or Royal Edict in the last 10 years

• Resided in another country or several other

countries for thr

ee months or longer after leaving

the country of origin, and left the last country

of residence without fear of persecution as

described in the 1951 Convention, and without

a real risk of serious harm

• Introduced an asylum application more than

eight working days after entering Belgium,

without providing a valid reason for the delay

• Refused to disclose identity or nationality or

ovided false information or documents in this

regard

• Made an asylum application for the sole reason

of delaying r

emoval from Belgium.

Box 1:

Asylum Case Law: Suspensive Appeals

The decree of 5 February 2002 of the European Court of Human Rights in the case of Conka v. Belgium states that

it is a violation of Article 13 of the European Convention on Human Rights (ECHR) to remove a rejected asylum-

seeker without ﬁ rst hearing the result of an urgent request for suspension of removal before the Council of State.

The Court further ruled that the suspensive character of an appeal must be guaranteed and that this appeal cannot

be merely administrative.

The European Court had previously ruled that an urgent request for suspension of removal does not constitute

an “effective appeal” in accordance with Article 13 of the ECHR, since such an appeal does not offer sufﬁ cient

guarantees against erroneous and irreversible decisions.

As a result of the Conka decree, the Aliens Act was modiﬁ ed. Article 39/70 of the Act stipulates that, with regard

to appeals against the decisions of the CGRS, removal from Belgium cannot be forcibly executed in the period

following a decision on an asylum claim when an appeal may be lodged with the Aliens Litigation Council and

while the appeal is being heard.

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Reporting

Asylum-seekers do not have an obligation to report

their whereabouts (such as changes of address) to the

authorities during the asylum procedure.

Repeat/Subsequent Applications

Requirements and Procedure

In the case of a second or subsequent application

for asylum, the Immigration Department determines

whether new information has been provided to

indicate a well-founded fear of persecution or a real

risk of serious harm. If there is new information, the

Immigration Department will forward the claim to the

CGRS for examination. The procedure before the

CGRS is similar to the normal procedure, although the

procedure may be accelerated such that a decision

may be taken within two or three months.

The Aliens Act stipulates that new elements or

information being presented “have to relate to facts

or situations that have occurred after the last phase

in which the alien had been able to provide them.”

The interpretation of what constitutes new elements

is broad, and may include changing conditions in the

country of origin or new documentary evidence.

Detention

The Aliens Act provides for the possibility of detaining

asylum-seekers who have submitted a subsequent

claim, if the Immigration Department ﬁ nds that the sole

objective of the application is “to delay or thwart the

execution of a previous or upcoming decision leading

to removal.”

Appeal

If the Immigration Department issues a decision of non-

admissibility, the asylum-seeker has the right to appeal

within 30 days before the Aliens Litigation Council. This

appeal does not have suspensive effect and is usually

accelerated.

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

Belgium does not apply a safe country of origin policy.

Asylum Claims Filed by a Citizen of an EU

Member State

Declaration No. 56 relating to the Spanish Protocol,

which is contained in the annex to the Treaty of

Amsterdam,

states that, “Belgium declares that, in

accordance with its obligations under the 1951 Geneva

Convention and the 1967 New York Protocol, it shall

… carry out an individual examination of any asylum

request made by a national of another Member State.”

If a citizen of a member state or a candidate country

of the EU makes an asylum claim, the CGRS has ﬁ ve

days to decide whether to proceed with an examination

of the claim, after determining whether there is a well-

founded fear of persecution or a serious risk of harm

being invoked in the claim.

While the EU national is not entitled to a full jurisdictional

appeal, he or she may appeal for the annulment of a

decision by the CGRS not to examine his or her claim,

within 30 days of that decision, before the Aliens

Litigation Council. While this appeal has no suspensive

effect, it is possible for the asylum-seeker to make a

request for a suspension of removal together with his

or her appeal.

5.2.2. First Country of Asylum

Article 52 of the Aliens Act stipulates that if an asylum-

seeker, having left his or her country of origin, has

spent three months or more in another country or

several countries, and has then left without any fear

as described in Article 1A(2) of the 1951 Convention, or

any serious reasons for assuming a real risk of serious

harm, the Commissioner General may decide not to

grant refugee status or subsidiary protection.

As noted above, Article 52 is no longer in use. If a

person who has been granted international protection in

another state enters the asylum procedure in Belgium,

his or her fear of persecution or serious harm will be

examined vis-à-vis the country in which he or she

obtained this protection and to which he or she can

return. If the claim is found to be groundless, the person

will be returned to the country that had granted asylum.

5.2.3. Safe Third Country

Belgium does not have any safe third country policies

in place.

6 Protocol on Asylum for Nationals of Member States of the

European Union (Page 103 of the Treaty of Amsterdam), annexed

to the Treaty of Amsterdam, which was signed on 2 October 1997

and came into force on 1 May 1999. See the annexe to the Report

for the text of the Protocol.

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5.3 Special Procedures

5.3.1. Unaccompanied Minors

Competent Authority

Each geographical team of the CGRS has caseworkers

and supervisors competent in assessing the claims

of unaccompanied minors. Special training on

interviewing techniques as well as on the reception

of unaccompanied minors and the risks of trafﬁ cking

is provided to caseworkers. Belgium is also involved

in a joint project with European partner countries to

create a common training module for interviewers of

unaccompanied minor asylum-seekers.

Guardianship

In 2004, a guardianship service was created for

unaccompanied minors. The service appoints a

guardian to the minor to act as his or her legal

representative. Among other responsibilities, the

guardian ﬁ les the minor’s asylum application and any

subsequent appeals, and assists the minor at every

stage of the procedure

Interview

During the interview, the minor is accompanied by his

or her guardian and often by a lawyer. The caseworker

makes efforts to put him or her at ease and to ensure

that he or she understands the procedure. Questions

7 Unaccompanied minor asylum-seekers from EU Member States

do not beneﬁ t from the services of a guardian.

tend to be open-ended, and simple sentence structures

are used. The interview is usually shorter than other

interviews in the normal procedure, and it involves

regular breaks. Generally, minors under the age of

six are not interviewed unless doing so is considered

necessary.

Information

In 2008, a special booklet was introduced to address

the information needs of unaccompanied minor asylum-

seekers. The booklet, in the form of a comic strip, is

designed to help minors better understand the asylum

procedure.

5.3.2. Temporary Protection

The Aliens Act integrates Council Directive 2001/55/

with regard to minimum standards for granting

temporary protection in case of a large influx of

displaced persons. The law lays down, among other

things, the conditions for persons who have been

granted temporary protection to ﬁ le an application for

refugee status. The Act also stipulates that persons

granted temporary protection obtain a one-year

residence permit which is automatically renewable,

ﬁ rst for a term of six months, then for a second term

of one year.

8 Council Directive 2001/55/EC of 20 July 2001 on minimum

standards for giving temporary protection in the event of a mass

inﬂ ux of displaced persons and on measures promoting a balance

of efforts between Member States in receiving such persons

and bearing the consequences thereof (Temporary Protection

Directive).

Box 2:

Asylum Case Law: Unaccompanied Minors

On 12 October 2006, the European Court of Human Rights ruled in the case of Tabitha v. Belgium that by holding a

minor in a closed centre for a period of two months, Belgium had violated Articles 3, 5 and 8 of the ECHR. According

to the Court, Belgium had not made sufﬁ cient adjustments to the needs of the child inside the centre or provided

her with adequate support. In addition, the Court found that Belgium had not taken necessary steps to reunite the

child with her mother.

Beginning in 2002, Belgium adopted a series of legal measures to ensure proper care and support for unaccompanied

minors seeking asylum. The most signiﬁ cant changes were as follows:

• The Guardianship Law, introduced in 2002, stipulates that all unaccompanied minors must be provided with a

guardian. A guardianship ofﬁ ce was created in 2004 at the Federal Government Agency of Justice (FGA Justice).

The guardian, in cooperation with the Immigration Department, is responsible for seeking a permanent solution

for the minor on the basis of his or her best interests.

• The 2007 Reception of Asylum Seekers and Certain Other Categories of Aliens Act (“Reception Act” of 12 January

2007) stipulates that unaccompanied minors who arrive at the border will no longer be taken to a closed centre.

There is now a possibility for an unaccompanied minor to be accompanied by a trusted representative when being

returned to the country of origin.

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5.3.3. Stateless Persons

Stateless persons may apply for asylum at the

Immigration Department, where their claims will be

processed as normal. However, there are provisions

in the law for the regularisation of status of stateless

persons, as described below in the section Status and

Permits Granted outside the Asylum Procedure.

6 Decision-Making and

Status

6.1 Inclusion Criteria

When considering the merits of a claim, a CGRS

caseworker must ﬁ rst consider whether the criteria

for granting refugee status are met. If this is not the

case, the caseworker must then consider whether the

applicant meets the criteria for subsidiary protection.

6.1.1. Convention Refugee

Convention refugee status is granted to persons who

have a well-founded fear of persecution in the meaning

of the 1951 Convention and whose claim is found by

the CGRS to be credible.

6.1.2. Subsidiary Protection

Subsidiary protection is provided to persons whose

claims are credible and who do not meet the criteria for

Convention refugee status but run a real risk of serious

harm if returned to their country of origin.

6.2 The Decision

The CGRS caseworker submits a proposal for a

decision on an asylum claim to his or her supervisor,

who will then present it to the Commissioner General

or one of two deputy commissioners for their signature.

Decisions are made in writing and provided to the

asylum-seeker (by registered mail or by messenger

against receipt), the legal representative and the trusted

representative. Negative decisions must be justiﬁ ed

with motives provided for the refusal.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

The CGRS may take the following types of decisions:

• Granting of Convention refugee status

• Granting of subsidiary protection

• Refusal to grant Convention refugee status and

efusal to grant subsidiary protection

• Refusal to consider an asylum claim made by

a citizen of an EU member state or a candidate

state

• The Commissioner General closes the asylum

application if the asylum-seeker has voluntarily

withdrawn his or her claim, has r

eturned to

the country of origin, has had his or her status

regularised, has acquired Belgian nationality,

or has died before the completion of the

procedure.

The CGRS is also the competent authority for excluding

persons from protection, for applying cessation

clauses and for revoking Convention refugee status

or subsidiary protection. These types of decisions are

described below.

Beneﬁ ts

Recognised refugees are entitled to the following

beneﬁ ts:

• Permanent residence

• The right to work and to obtain social security

beneﬁ

ts equivalent to those available to Belgian

citizens

• A travel document in the form of a “blue

passport”

• Family reunification for spouses and minor

childr

en (in the case of unaccompanied minors

recognised as refugees, the mother and father

are eligible for family reuniﬁ cation)

• A proof of refugee status certiﬁ

cate issued by

the CGRS

• The possibility of naturalisation, after two years

of r

esidence in Belgium.

Beneﬁ ciaries of subsidiary protection are entitled to the

following:

• A residence permit valid for one year, which

can be r

enewed yearly by the commune, upon

instruction from the Immigration Department

• A permanent residence permit, after ﬁ ve

years

from the date of the asylum application

• The right to travel abroad; if the person does

not have a passport, the FGA For

eign Affairs

(FOD Buitenlandse Zaken) will issue an “aliens

passport” when he or she becomes eligible for

a permanent residence permit

• Other beneﬁ

ts, such as the right to work and to

obtain social assistance, and the possibility for

family reuniﬁ cation, identical to those available

to recognised refugees.

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6.4 Exclusion

6.4.1. Refugee Protection

The CGRS considers Article 1F of the 1951 Convention,

as well as any security-risk cases, when examining

a claim for asylum. All claims before the CGRS are

screened for exclusion. A special unit is in charge of

interviewing and examining the cases of persons likely

to be excluded.

An asylum-seeker who has been excluded may lodge

an appeal within 15 days of notiﬁ cation of the CGRS

decision. The Aliens Litigation Council has full legal

power in such appeals, meaning that it can conﬁ rm,

change or annul the decision of the CGRS. This appeal

has suspensive effect.

Excluded persons are not entitled to a status but

may be protected from refoulement. According to its

international obligations, as set out in the European

Convention on Human Rights and the Convention

against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (CAT), Belgium does not

forcibly return excluded persons. Over time, excluded

persons may become eligible for a residence permit,

for instance through family reuniﬁ cation or on the basis

of Article 9.3 of the Aliens Act.

The detention of persons deemed to be security risks is

possible on the basis of an evaluation of the risk posed

by the person. According to the Aliens Act, the length

of detention may not exceed eight months.

6.4.2. Subsidiary Protection

Persons may be excluded from subsidiary protection

on the basis of criteria set out in the Aliens Act. These

criteria are almost identical to those found in Article 1F

of the 1951 Convention. The ground of “serious crime,”

however, is further elaborated in the Aliens Act as a

serious crime that has been committed in Belgium or

abroad, either before or after the claim for asylum was

made.

The asylum-seeker may lodge an appeal with full legal

power with the Aliens Litigation Council within 15 days

of notiﬁ cation of the CGRS decision. This appeal has

suspensive effect.

The detention of persons deemed to be security risks is

possible on the basis of an evaluation of the risk posed

by the person, but may not exceed eight months.

6.5 Cessation

A Convention refugee may cease to beneﬁ t from this

status if he or she meets one of the criteria set out in

Article 1C of the 1951 Convention. The asylum-seeker

may lodge an appeal with full legal power with the

Aliens Litigation Council within 15 days of notiﬁ cation of

the CGRS decision. This appeal has suspensive effect.

The Commissioner General has the competence to

apply cessation clauses at his or her own initiative. The

Immigration Department can provide the Commissioner

General with information that may lead to cessation of

status. In principle, cessation does not have an impact

on the person’s right to remain in Belgium.

Subsidiary protection ceases to apply if the

circumstances that led to the provision of subsidiary

protection cease to exist or have evolved in such a

way as to render protection unnecessary. To safeguard

beneﬁ ciaries from a real risk of serious harm, the CGRS

examines the changes in country conditions very

closely before determining whether these changes are

signiﬁ cant and lasting.

Similar to cessation of Convention refugee status,

cessation of subsidiary protection status may be initiated

by the Commissioner General. During the ﬁ rst ﬁ ve years

of residence in the country (period of limited residence),

the Minister for Migration or his or her representative

(Immigration Department) may make a formal request

to the Commissioner General to abrogate the status of

subsidiary protection. In this case, the Commissioner

General must write a motivated decision within 60 days.

Cessation of subsidiary protection status during the

period of limited residence (the ﬁ rst ﬁ ve years) may lead

to an order to leave the country.

6.6 Revocation

According to the Aliens Act, the CGRS may withdraw

Convention refugee status or subsidiary protection from

its beneﬁ ciary for the following reasons:

• The person made false declarations, failed to

disclose information or pr

esented fraudulent

documents that had, or could have had, a

bearing on the outcome of the asylum claim

• The person’s behaviour would indicate that he

or she no longer had a well-founded fear of

persecution.

The Commissioner General can revoke status at his

or her own initiative. The Minister of Migration or her

representative (Immigration Department) may make a

formal request to the Commissioner General to do the

following:

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

• Revoke refugee status or subsidiary protection

status in the case of fraud. The Commissioner

General must then write a motivated decision

within 60 days. Revocation of status may lead

to an order to leave the territory. Revocation on

the basis of fraud is possible within the ﬁ rst 10

years of residence in the country

• Revoke subsidiary protection status from

persons who should have been excluded.

The law foresees that the decision of the

Commissioner General should be accompanied

by an opinion on whether return to the country

of origin would be in conformity with Article 3 of

the ECHR. Revocation on this basis is possible

within the ﬁ rst ﬁ ve years of residence.

The person may lodge an appeal with full legal power

with the Aliens Litigation Council.

6.7 Support and Tools for

Decision-Makers

6.7.1. Country of Origin Information

Cedoca (Centre de documentation en matière d’asile),

the documentation and research service of the CGRS, is

made up of a 46-member team providing research and

information support to caseworkers. Researchers are

divided into geographical desks, in the same manner

as the caseworkers, and are responsible for collecting

and analysing all information pertinent to the situation

in countries of origin.

In addition to writing thematic reports and answering

caseworkers’ questions, the research team undertakes

fact-ﬁ nding missions and may also undertake research

on individual asylum cases. Country of origin information

can also be found in the Cedoca library and on Glo.be,

the documentary intranet available to all caseworkers

and supervisors.

6.7.2. Language Analysis

The Language Analysis Desk, located within Cedoca,

may be requested to make recordings of asylum-

seekers’ speech. These are forwarded to language

analysts in order to determine the region of origin of

the applicant. The conclusions of the language analysts

are considered as one of many elements that may factor

into the ﬁ nal decision of the CGRS. Due to budgetary

constraints, the use of language analysis has declined

in recent years.

6.7.3. Psychological Support Unit

The main task of the psychological support unit is

to provide advice to caseworkers on the mental and

psychological capacities of asylum-seekers in cases

where this may have an important bearing on the claim.

These include situations in which asylum-seekers may

Box 3:

Creating Cedoca, One of Europe’s Largest Country Information Ofﬁ ces

In 1997, country information was being gathered by the documentation unit of the CGRS, which consisted of 12

researchers and ﬁ ve other staff. At the time, only researchers had access to the Internet, a relatively new tool, and

language analysis was in its infancy. Subsequently, asylum caseworkers at the CGRS obtained access to the World

Wide Web.

In 1999, the CGRS documentation unit conducted an internal audit and introduced a COI user’s survey in order to

improve user satisfaction of COI services and the interaction between the research unit and caseworkers.

The following year, a decision was taken to bring together the COI competencies of the three existing documentation

units (the CRGS, the Immigration Department and the Permanent Appeals Commission) into a single, specialised

ofﬁ ce. Thus, Cedoca came into being under the CGRS. At its inception, Cedoca had a total of 20 researchers and in

2000, it undertook its ﬁ rst fact-ﬁ nding mission (to Turkey and Northern Iraq).

By 2001, Cedoca had grown in size to become one of the largest COI units in Europe, with a high degree of regional

specialisation and expertise. Two years later, Cedoca participated in its ﬁ rst joint fact-ﬁ nding mission with two

European partner countries, marking the starting point for a sustained engagement in international cooperation

on COI with colleagues in Europe and abroad.

Since then, Cedoca has conducted a number of fact-ﬁ nding missions and continues to be active in international

cooperation. It is responsible for making some 175,000 documents available on the Intranet, Glo.be, and for answering

4,000 research requests and producing 250 subject-related brieﬁ ngs on an annual basis.

In recent years, Cedoca has focused its efforts on achieving better knowledge management, on training its researchers

and asylum caseworkers on advanced electronic research methods and on improving quality assurance of its COI

products and services.

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claim to be experiencing loss of memory, post-traumatic

stress disorder or depression. The unit conducts a

psychological evaluation of the asylum-seeker and

provides a report to the caseworker.

Although the report reﬂ ects only on the psychological

capacities of the asylum-seeker, it may play an important

role in the decision-making process, particularly

in cases in which the psychological capacity of the

person may form the basis of contradictions that would

otherwise undermine the credibility of the claim.

6.7.4. Gender Unit

The CGRS has a special gender unit made up of a

coordinator and points of contact at each of the ﬁ ve

geographical desks. The gender units respond to the

needs of caseworkers for information, guidance and

specialised training in assessing gender-based claims.

6.7.5. UNHCR Handbook

The UNHCR Handbook on Procedures and Criteria for

Determining Refugee Status does not hold any legally

enforceable provisions for the CGRS and is used as

a manual for the application of the 1951 Convention.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

All asylum-seekers are fingerprinted after making

a claim for asylum at the Immigration Department.

The ﬁ ngerprints are stored (for an indeﬁ nite time) in

the national PRINTRAC system. The data are sent to

EURODAC in order to check previous applications or

irregular entry in other EU Member States.

If the asylum-seeker is recognised as a refugee, the data

remains in the system, but access to the information

is blocked.

7.1.2. DNA Tests

The Immigration Department may request a DNA test

in cases where family members, including children,

who were not initially included in an asylum claim, are

subsequently added to the claim. While DNA tests

are used very rarely in the asylum procedure, they are

considered very useful as the results are nearly 100

per cent accurate.

7.1.3. Forensic Testing of Documents

The Immigration Department and the CGRS may make

a request to the police to verify identity documents

when there are doubts about their authenticity. The

documents are sent to the police department, which

specialises in fraudulent documents. Forensic testing

of documents is rarely undertaken in the asylum

procedure, as the majority of asylum-seekers claim to

not be in possession of identity documents.

7.1.4. Database of Asylum

Applications/Applicants

All asylum applicants are registered in a “holding

registry,” a subdivision of the national registry in which

all inhabitants of Belgium are registered. The holding

registry contains identity information, information on

places of residence and information on each stage of

the asylum procedure and the decisions taken. The

Immigration Department is responsible for the ﬁ rst

entry of an application into the registry and remains

responsible for later changes relating to identity

information. The local municipalities can introduce

changes to the place of residence.

If a person is granted refugee status, the data in the

holding registry are transferred to the aliens’ registry.

In the case of a negative decision on a claim and the

departure of the rejected asylum-seeker from Belgium,

the person’s data are removed from the holding registry.

Access to the holding registry is limited to a certain

number of governmental institutions.

7.2 Length of Procedures

Asylum applications must be made within eight working

days of the person’s arrival in Belgium or before a

valid permit to remain in Belgium expires. However, no

penalties are imposed on a person who does not meet

these requirements and applications made after these

deadlines will be processed.

7.3 Pending Cases

The signiﬁ cant backlog of cases at the CGRS, caused

by the great inﬂ ux of asylum application in the years

1999 and 2000 was to a large extent eliminated by

2007, mainly as a result of the declining number of

new asylum applications and addition of staff and

resources to deal with them. One method used to

prevent the backlog from getting bigger was the

so-called LIFO (Last In First Out) measure: new

cases were prioritised, while old cases were put on

hold. A large number of these old cases that had

been pending for many years were the subject of

regularisation.

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At the end of 2007, there were 4,966 pending cases,

meaning that there was a limited backlog of around 1,500

cases, taking into account a normal-sized caseload of

3,500 cases. Since then the backlog has slightly increased

again, with 5,248 cases pending at the end of 2008.

The Aliens Litigation Council has accumulated a backlog

of 2,259 new cases since it was established in June 2007.

It also inherited a backlog of 6,977 cases from the now

defunct Permanent Appeals Commission for Refugees.

The Council of State, a cassation court, has a backlog

of 14,755 cases, which is being eliminated at a rate of

about 8,000 cases per year. Expectations are that this

backlog will be eliminated by 2010-2011.

7.4 Information Sharing

The only information-sharing agreements to which

Belgium is party are the Dublin Regulation and the

agreements with Denmark, Norway, Iceland and

Switzerland, which extend the application of the Dublin

II Regulation to those States. Speciﬁ c information on

asylum-seekers can be released to other EU Member

States, in accordance with Article 21 of the Dublin II

Regulation. No information on an asylum-seeker can

be released to a third country, unless the asylum-seeker

consents to it.

7.5 Single Procedure

Since the introduction of subsidiary protection in

October 2006, Belgium has put in place a single asylum

procedure. In other words, asylum-seekers need make

only one application for international protection in order

to obtain either Convention refugee status or subsidiary

protection. The CGRS ﬁ rst determines whether the

applicant meets the criteria for refugee status, and if

this is not the case, it will determine whether grounds

exist for granting subsidiary protection.

Before the introduction of subsidiary protection,

no alternative form of protection besides the 1951

Convention existed in Belgium. By introducing subsidiary

protection, the level of international protection has

effectively risen in Belgium. Statistics show that the

introduction of subsidiary protection did not have a

negative inﬂ uence on refugee status recognition rates.

8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

At each stage of the asylum procedure following the

admissibility phase before the Immigration Department,

asylum-seekers are entitled to legal aid. Requests for

such assistance can be made at a legal aid ofﬁ ce.

Asylum-seekers appearing before the CGRS may

have their legal representatives present during the

interview. An asylum-seeker may also choose a person

with whom he or she has a special bond of trust for

assistance during the asylum procedure. This trusted

representative is personally assigned by the asylum-

seeker. Some categories of persons are excluded from

being a trusted representative.

Neither the legal representative nor the trusted

representative may make an intervention during the

Box 4:

Cooperation with UNHCR, NGOs

The UNHCR Representative in Belgium has the competence to intervene (either at his or her own initiative or upon

the request of Belgian authorities) in an advisory capacity at any stage of the asylum procedure. The Representative

or Deputy Representative may, with the consent of the asylum-seeker, consult the asylum-seeker’s ﬁ le any time

except when the case is before the Council of State. The UNHCR may, upon request, also be present at the asylum

interview. If the CGRS decides not to take account of UNHCR interventions into consideration, the Commissioner

General must disclose the reasons for this decision.

The Belgian Committee for Refugee Assistance (BCRA, BCHV) is an umbrella organisation of various associations that

provide assistance to asylum-seekers and recognised refugees. As the operational partner of the UNHCR, the BCRA

assists in selecting cases eligible for UNHCR support. On occasion, the BCRA intervenes in asylum applications, Dublin

cases, and forced returns, among other matters. This intervention may be limited to written comments in favor of the

asylum-seeker’s case, but may also consist of the presence of the BCRA representative during an asylum interview.

If it decides to reject an application for asylum, the CGRS must show in its written decision that UNHCR or BCRA

interventions – if provided – have been taken into consideration.

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BEL

interview. However, he or she may, at the end of the

interview, explain the reasons for which the asylum-

seeker might be entitled to refugee status or subsidiary

protection.

8.1.2. Interpreters

Upon registration of the asylum application, the asylum-

seeker is asked to choose the language he or she

wishes to use throughout the asylum procedure. During

interviews at all the different stages of the asylum

procedure, an interpreter is available free of charge.

The CGRS uses independent and impartial interpreters

for interpretation into Dutch, French or English during

asylum interviews. Translators are also available to the

CGRS for the translation of documents or declarations

submitted by the asylum-seeker. The Interpreters’

Service, a special unit within the CGRS, coordinates

the work of interpreters and translators.

8.2 Reception Beneﬁ ts

According to the new Reception Act, every asylum-

seeker has the right to reception conditions that would

allow him or her to lead a life of dignity. Asylum-seekers

and their dependants are entitled to reception beneﬁ ts

for the duration of the procedure, including any appeal

procedure.

The Reception Act also stipulates special reception

arrangements for minors and for vulnerable persons.

A complaint mechanism and possibilities for appeal

with regard to reception beneﬁ ts are available under

the law. Violations of the right to reception beneﬁ ts can

be brought before the labour tribunal.

Persons who apply for asylum at the Immigration

Department must register with the communal authorities

where they are residing within eight days of submitting

their application.

8.2.1. Accommodation

On the day that an asylum claim is filed with the

Immigration Department, the dispatching service of

the reception agency, Fedasil, will assign a reception

centre to the asylum-seeker. The asylum-seeker is then

provided with a brochure outlining his or her rights with

regard to reception during the asylum procedure. The

Woluwe-Saint-Pierre transit centre in Brussels can

accommodate asylum-seekers for short stays while

accommodation in a reception centre is being arranged.

After four months in a reception centre, asylum-seekers

may apply for a move to private accommodation.

Two specialised reception centres are geared

speciﬁ cally to unaccompanied minors.

Fedasil coordinates and oversees the different types

of accommodation to ensure a common standard

of living conditions. In addition to Fedasil, a number

of other organisations are involved in managing the

centres and private accommodation, among them the

Red Cross Society, Initiatives locales d’accueil (ILA,

Local Reception Initiatives), and NGO partners CIRE

and Vluchtelingenwerk Vlaanderen.

8.2.2. Social Assistance

Upon arrival at a reception centre, each asylum-seeker

is assigned a social worker who will assist him or

her with the asylum procedure in such ways as by

explaining the different parts of the procedure and

helping with psychological and other support. Access

to legal aid and to the services of an interpreter is

also ensured.

8.2.3. Health Care

Medical services are available to asylum-seekers

whether or not they are living in reception centres.

The services are provided by a resident doctor or a

consulting general practitioner. Recent legislation

outlines the general framework for medical services

guaranteeing human dignity.

8.2.4. Education

Schooling for minors between the ages of six and 18

years is mandatory. Special “transition” classes are

organised for children of asylum-seekers. Kindergarten

classes are offered to younger children.

Adults have the possibility of taking a range of classes

organised at the reception centres: there are classes,

for example, in language, information technology,

cooking and sewing. Asylum-seekers may also take

classes outside the reception centre. Similar education

possibilities are offered to asylum-seekers residing in

private accommodation.

Reception centres also organise activities such as

sports and cultural outings.

8.2.5. Access to Labour Market

Asylum-seekers may engage in maintenance and

cleaning work at the reception centers, for which they

may receive a small remuneration.

Currently, asylum-seekers do not have access to

the labour market. However, preparatory work on

new legislation is under way to provide access to

the labour market to asylum-seekers who have been

awaiting a decision on their claim for more than six

months.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

8.2.6. Family Reuniﬁ cation

No possibilities for family reuniﬁ cation exist for asylum-

seekers awaiting a ﬁ nal decision on their claim.

8.2.7. Access to Integration

Programmes

Each reception centre has a budget to organise

community activities, with the aim of integrating the

centres into the local communities. Activities such as

parties, sports and recreation take place inside or outside

the centre, and bring together residents of the centre

and members of the community. The reception centres

also engage in outreach to the community, providing

information on migration, asylum, and foreign cultures.

Asylum-seekers in Flanders and Brussels may take

part in an integration programme designed for new

immigrants (inburgering) four months into the asylum

procedure.

8.2.8. Access to Beneﬁ ts by Rejected

Asylum-Seekers

The following rejected asylum-seekers have the right to

an extension of their reception beneﬁ ts after receiving

a negative decision on their claim:

• Persons who have submitted an application

for a residence permit on the grounds of a

serious medical condition (under Article 9 of

the Aliens Act)

• Persons who, for reasons beyond their control,

cannot be returned to their country of origin or

of habitual residence

• Persons whose parent or guardian has the right

to material beneﬁ t

• Persons who have signed a voluntary return

agr

eement and are awaiting departure from

Belgium.

In some cases, minors with no legal status and their

families may be eligible for reception beneﬁ ts, irrespective

of what point they are at in the asylum procedure.

9 Status and Permits

Granted outside the

Asylum Procedure

9.1 Humanitarian Grounds

Under the humanitarian clause, the CGRS may include

in a negative decision a note to the Minister of Migration

and Asylum Policy to consider any humanitarian

grounds put forth by the asylum-seeker. Situations that

may warrant such a clause include the following:

• The person’s medical condition and age

• Pregnancy or child delivery

• The presence of relatives who are residents of

Belgium.

9.2 Withholding of Removal/Risk

Assessment

Before a person is removed from Belgium, the

Immigration Department will do a risk assessment

to determine whether or not removal will violate the

non-refoulement principle of the 1951 Convention,

the provisions contained in Article 3 of the ECHR, or

fundamental freedoms.

9.3 Obstacles to Return

If there are obstacles to return, the Immigration

Department will make a case-by-case determination

with regard to whether or not the person should be

granted a residence permit. See section on “Exceptional

Circumstances” below.

9.4 Regularisation of Status over

Time

The Immigration Department may regularise the status

of a rejected asylum-seeker on a case-by-case basis.

See section on “Exceptional Circumstances” below.

9.5 Regularisation of Status of

Stateless Persons

There is currently no regulation speciﬁ cally governing

the recognition of status of stateless persons (for

example, a specific right for stateless persons to

remain). Persons who claim to be stateless may turn

to the regular civil courts at the ﬁ rst instance to acquire

the status of stateless persons. However, the granting

of such a status does not automatically lead to the right

to remain in Belgium. In order to obtain a residence

permit, stateless persons must make an application at

the Immigration Department.

The Aliens Act also foresees an individual regularisation

of foreign nationals who cannot return to their country

of origin as a result of “exceptional circumstances,” as

described below.

9.6 Exceptional Circumstances

The Aliens Act sets out the procedure for granting a

residence permit to persons who, due to exceptional

circumstances, cannot return to their country of origin.

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The procedure for granting residence permits on these

grounds does not have suspensive effect for rejected

asylum-seekers who do not have a right to stay in

Belgium. The exceptional circumstances are examined on

a case-by-case basis. Situations that may be considered

to be “exceptional circumstances” include the following:

• Having a child who holds Belgian nationality

• Serious medical conditions and a lack of proper

medical car

e in the country of origin.

10 Return

The Immigration Department is the competent authority

for the formulation and implementation of return

policies.

10.1 Pre-departure Considerations

When an asylum-seeker is given a removal order, he

or she receives an information package outlining the

possibilities of voluntary return in cooperation with the

International Organization for Migration (IOM) and on

seeking assistance with return from a number of NGOs.

10.2 Procedure

Voluntary Return

Following the receipt of a return decision, a rejected

asylum-seeker has five days to leave Belgium

voluntarily. Fedasil coordinates an assisted voluntary

return scheme made up of two programmes:

• A basic voluntary return programme (REAB) run

by the IOM, wher

eby persons wishing to return

to their country of origin have their transportation

costs (e.g., an airline ticket) covered by the

government and receive a reintegration grant

of 250 each.

• A reintegration programme run by IOM,

the NGO Caritas and the r

efugee councils

Vluchtelingenwerk Vlaanderen and Coordination

et initiatives pour et avec les réfugiés et

étrangers (CIRE), which offers in-kind assistance

to returnees in their country of origin valued at

700 per person (or a maximum of 1,750 per

family). Vulnerable persons are entitled to an

additional 700 in assistance.

Enforced Return

Belgium also has the possibility of enforcing returns and

of detaining rejected asylum-seekers pending return.

10.3 Freedom of Movement/

Detention

Pending return, rejected asylum-seekers may be

detained for a period of two months. Detention may

be extended for an additional two months under the

following circumstances:

• If the necessary measures to remove the person

have been taken within seven working days of

the start of detention

• If these measures continue and return remains

a possibility within a r

easonable period of time.

Following the additional two-month detention period,

the Minister is the only authority who may decide to

extend the period of detention. Following ﬁ ve months

of detention, the person must be released.

If the person refuses to be removed from the territory,

a new two-month period of detention begins.

10.4 Readmission Agreements

The Ministry of Interior and the Ministry of Foreign

Affairs are the competent authorities for negotiating

and implementing readmission agreements.

11 Integration

The Federal Government Declaration of July 2003

sets out the main objective of integration policies, that

is, to create a multicultural and tolerant society. The

principal competencies for integration policies rest with

the communes.

In Flanders and Brussels, all adult recognised refugees

and beneﬁ ciaries of subsidiary protection are entitled to a

standard integration programme. The training component

of the programme incorporates Dutch language classes

and social and professional orientation. Persons who

participate in the training component receive a certiﬁ cate

of integration, which entitles them to take part in additional

integration activities, such as vocational training, and to

enroll in higher education institutions.

In Wallonia, there are no standard integration

programmes available but there are seven regional

integration centres which, in cooperation with local

organisations, provide services such as job orientation

to refugees.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

12 Annexe

12.1 Additional Statistical Information

1,000

2,000

3,000

4,000

5,000

6,000

7,000

1997 2002 2008

Armenia

Romania

Albania

Algeria

Turkey

FRY (Yugoslavia)

DR Congo

Iran

Guinea (Conakry)

Afghanistan

Iraq

Russia

* Applications made by accompanied minors under age 14 are not included

Figure 4:

Asylum Applications* from Top Five Countries of Origin for Belgium in 1997, 2002 and 2008

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

BEL

Geneva Convention

Status

Complementary

Protection and Other

Authorisations

to Remain**

Rejections*** Other Decisions****

Total

Decisions°

Year*

Count % of total Count % of total Count % of total Count % of total

2000

1,198 6% 0 0% 15,486 83% 2,073 11% 18,757

2001

897 4% 0 0% 22,095 89% 1,848 7% 24,840

2002

1,166 5% 0 0% 22,491 90% 1,468 6% 25,125

2003

1,201 6% 0 0% 18,533 89% 976 5% 20,710

2004

2,275 14% 0 0% 13,037 79% 1,175 7% 16,487

2005

3,059 15% 0 0% 13,732 68% 3,301 16% 20,092

2006

1,917 14% 8 0% 10,430 77% 1,248 9% 13,603

2007

1,839 18% 279 3% 7,851 76% 304 3% 10,273

2008

2,143 24% 394 4% 6,172 69% 231 3% 8,940

Figure 5:

Decisions Made at the First Instance, 2000-2008

* Data for 2006, 2007 and 2008 are based on CGRS annual reports

° Final asylum decisions: decisions to further investigate (admissibility phase, urgent appeal) are not included; decisions to

terminate the procedure are included (“Other Decisions”)

** Decisions of the CGRS to grant subsidiary protection

*** Rejection decisions taken by the CGRS include:

- Until 1 June 2007: conﬁ rmation of refusal of entry/stay (admissibility phase, urgent appeal against ID decision)

untimely appeal (admissibility, deadline for urgent appeal not met)

technical refusal (admissibility and eligibility phase, no response to convocation/request for

information)

refusal to grant refugee status (eligibility phase)

exclusion from refugee status

- Since 1 June 2007: refusal to grant refugee status and subsidiary protection status (eligibility phase)

refusal to take the application into consideration (EU citizens)

technical refusal (no response to convocation/request for information)

exclusion from refugee status/subsidiary protection

Revocation decisions have not been included in this table.

**** Discontinuation of procedure: withdrawal of the application (e.g., in case the applicant wishes to return voluntarily),

“application without subject” (before a ﬁ nal asylum decision has been taken, the applicant has received another status/

regularisation, has become a Belgian citizen or has died).

Canada

CAN

77 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

79 - NATIONAL LEGAL FRAMEWORK

80 - INSTITUTIONAL FRAMEWORK

80 - PRE-ENTRY MEASURES

80 - ASYLUM PROCEDURES

86 - DECISION-MAKING AND STATUS

89 - E

FFICIENCY AND INTEGRITY MEASURES

91 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

92 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

93 - R

ETURN

94 - INTEGRATION

95 - ANNEXE

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1 Background: Major Asylum

Trends and Developments

Asylum Applications

In the early 1980’s, Canada received between 5,000 and

8,000 asylum applications per year. Numbers increased

to 35,000 in 1985 and peaked in 1988 with 45,000, but

then dropped to 20,000 in 1989. Between 1990 and

2000, the number ﬂ uctuated between 37,000 and 21,000.

Applications peaked again in 2001, with some 44,000,

then decreased until 2005 to some 20,000, but rose to

more than 28,000 in 2007 and almost 37,000 in 2008.

Top Nationalities

In the early 1990’s, Sri Lanka, Somalia and Iran were

top source countries of asylum claimants. In the late

1990’s and until 2001, top source countries included

Sri Lanka, China, Pakistan and Hungary. From 2001 to

2007, Pakistan, Colombia and Mexico were the leading

countries of origin, although numbers of claimants

from Pakistan have decreased signiﬁ cantly in recent

years. The top ﬁ ve countries for refugee claimants for

2007 were Mexico, Haiti, Colombia, U.S. (mainly U.S.

born children of third nationality claimants), and China.

Currently, the number of claims by Mexican citizens

represents approximately 25% of total claims made

in Canada.

Important Reforms

In the late 1980’s, the Canadian refugee status

determination system became a quasi-judicial process

and remains so today. This change was undertaken,

in part, due to a Supreme Court of Canada decision

in 1985, which declared the lack of an oral hearing

in the refugee status determination process to be

in contravention of Canada’s Charter of Rights and

Freedoms.

The Immigration and Refugee Board (IRB) was created,

and an entirely new refugee status determination

system began work in January 1989. The IRB, a quasi-

judicial, independent and non-adversarial tribunal, was

given the responsibility for adjudicating refugee claims.

This task was delegated to the Convention Refugee

Determination Division (CRDD) at the IRB. The new

system also added to the process the requirement

for an oral hearing for refugee claimants. The system

was modiﬁ ed by legislation passed in 1992 and 1995,

and further modiﬁ ed by the Immigration and Refugee

Protection Act (IRPA) in 2002.

With the proclamation of IRPA in June 2002, the Refugee

Protection Division (RPD) replaced the CRDD. The

IRB remains an independent and impartial decision-

maker with respect to refugee protection claims in

Canada. The new law enshrined critical elements of

the Convention relating to the Status of Refugees (1951)

and its Protocol Relating to the Status of Refugees

(1967). This legislative framework, which remains in

effect today, also reﬂ ects Canada’s obligations under

the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (CAT).

1 Singh v. Minister of Employment and Immigration [1985] 1 S.C.R.

177. This case is further described in the Case Law text box

below.

5,000

10,000

15,000

20,000

25,000

30,000

35,000

40,000

45,000

50,000

198

199

1991

199

001

25,938

44,709

20,096

36,687

37,730

21,196

19,771

36,912

Figure 1:

Evolution of Asylum Applications in Canada, 1989-2008

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

IRPA introduced a number of other signiﬁ cant changes

to Canada’s system of refugee status determination,

as follows:

• The expansion of the grounds under which a

claimant could be granted Canada’

s protection,

to include consideration of the CAT and Articles

6 and 7 of the International Covenant on Civil

and Political Rights (ICCPR). The combination

of the Convention refugee deﬁ nition and these

additional grounds for protection has been

referred to as the “consolidated grounds”

• Under the former Act, refugee hearings were

conducted by a two-member panel. Under IRP

this was changed to a single member

• IRPA introduced a pre-removal risk assessment

(PRRA) that permits r

efused asylum-seekers

and other inadmissible individuals to apply for

protection before being removed from Canada

on the grounds that there is new evidence or

evidence that it was not possible or reasonable

to provide at the original hearing

• IRPA also modiﬁ ed the provisions governing

detention by r

equiring more frequent detention

reviews. Previous legislation required that a

review of the grounds for detention be held every

seven days. IRPA modiﬁ ed these provisions to

require an initial detention review by the IRB

within 48 hours or without delay after 48 hours,

at least once during the seven days following,

and at least once every 30 days thereafter. IRPA

also extended the authority to detain foreign

nationals who are already inside Canada if they

failed to establish their identity, may pose a

danger to the public or are a ﬂ ight risk.

IRPA provides a legislative refugee protection

framework. Along with this, the Canadian Charter of

Rights and Freedoms is an important overarching

element in Canadian refugee protection. The Supreme

Court of Canada ruled in 1985 that the Charter applies

to refugee claimants as well as to Canadian nationals,

and since that time there have been a number of

important Court decisions affecting both the substance

and procedures of law relating to refugee protection.

In November 2001, the Canadian federal government

made a commitment that all persons claiming refugee

protection would be required to undergo front-end

security screening to ensure that individuals who could

pose a risk to Canada would not be granted protection

and could not use the refugee status determination

process to gain admittance into Canada.

2 Some of these decisions are examined in the Case Law text boxes

throughout this chapter.

Finally, in December 2002, Canada and the United

States signed the Safe Third Country Agreement

(STCA), which came into force on 29 December 2004.

Recent Developments

In April 2008, Citizenship and Immigration Canada

(CIC) published amendments to the Protected

Persons Manual (PP1) to include age- and gender-

sensitive guidelines, which outline the procedures

to be followed by officers who conduct eligibility

interviews with minors and vulnerable persons. Their

purpose is “to support priority processing for refugee

protection claims made by vulnerable persons and to

ensure special accommodation during the front-end

examination process.” They include provisions for

ofﬁ cers to consider the particular vulnerability and

needs of these persons, and they provide direction on

how to identify unaccompanied or separated children

and victims of gender-based violence.

Bill C-3, An Act to Amend the Immigration and Refugee

Protection Act (Security Certiﬁ cates) received Royal

Assent on February 14, 2008. This legislation, introduced

as the result of a decision by the Supreme Court of

Canada (SCC), changed the provisions governing ex

parte in camera proceedings that use secret evidence,

by introducing an independent agent to represent the

interests of the individual subject to security certiﬁ cates,

during proceedings in which secret information is used.

This legislation, prompted by a decision of the SCC,

makes the security certiﬁ cate provisions of IRPA more

fully compliant with the Canadian Charter of Rights and

Freedoms and strikes a balance between the right of

the individual to know the Government’s case against

him and the continued maintenance of national security

and the safety of Canadians.

The SCC in its ruling found that detention under security

certificates does not violate the Charter provision

against cruel and unusual punishment, as IRPA allows

for a “robust and meaningful” review of the grounds for

detention. Nonetheless, the amendments introduced

by Bill C-3 also modiﬁ ed and extended the detention

review process. Previous legislation had provided that

permanent residents held under a security certiﬁ cate

had to be provided a detention review after 48 hours.

Bill C-3 extended to all foreign nationals the right to

have a detention review at the IRB within 48 hours and

at least once every six months thereafter. Prior to this

change, review of the detention of a foreign national

held under a security certiﬁ cate was not required until

after the certiﬁ cate had been reviewed by a Federal

Court judge and found reasonable.

3 See the section below on unaccompanied minors for more

information on the new guidelines.

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CAN

Figure 3:

Top Five Countries of Origin in 2008

1 Mexico 9 422,

2 Haiti 4 247,

3 Colombia 3 070,

4 USA 2 308,

5 China 1,470

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

Refugee Protection

The 2002 Immigration and Refugee Protection Act

(IRPA) is the primary legal document concerning

immigration to Canada and the granting of

refugee protection. The 1951 Convention relating

to the Status of Refugees, including the definition

of a Convention refugee, has been incorporated

into IRPA.

Complementary Protection

Under IRPA, the definition of torture as found in

the Convention against Torture (CAT) has been

incorporated into national law. Persons identiﬁ ed as

facing a danger of torture, a risk to life or a risk of cruel

or unusual treatment or punishment are recognised

as “persons in need of protection.” Such persons can

apply for permanent residence within 180 days of the

decision and are granted the same rights and status

as those found to be Convention refugees.

Under IRPA, persons may obtain permanent residence

on the basis of a positive pre-removal risk assessment

(PRRA). Those who would be at risk if returned to their

country of origin are granted protected person status and

may apply for permanent residence. A Temporary Resident

Permit (TRP) may also be issued under the provisions of

the Protected Temporary Resident Class designation to

individuals who were determined to be refugees outside of

Canada and who are in urgent need of protection. These

individuals may apply for permanent residence from within

Canada. Finally, outside of the asylum process, IRPA

also provides for the granting of permanent residence

on humanitarian and compassionate grounds. Such

applications may include risk as a ground of consideration.

Box 1:

Canadian Case Law: Obligations under

the Convention Against Torture

Suresh v. Canada (Minister of Citizenship and

Immigration), [2002] 1 SCC: This case clarified

Canada’s obligation under the CAT. The Supreme

Court of Canada afﬁ rmed that Canada can remove

those who pose a risk to Canadian society, even

refugees, following an administrative process that

balances the seriousness of their conduct against

the risk faced upon return. The substantive limit

the Court placed upon government is that removal

leading to torture would generally be a breach of

fundamental justice.

2.2 Recent Reforms

The Safe Third Country Agreement, implemented on

29 December 2004, initially reduced the number of

claims made at the land border between Canada and

the United States (U.S.).

2,000

4,000

6,000

8,000

10,000

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Mexico

Haiti Colombia

Figure 2:

Evolution of Applications from Top Three Countries of Origin for 2008

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

3 Institutional Framework

3.1 Principal Institutions

The Minister for Citizenship and Immigration Canada

(CIC) has overall responsibility for refugee policy

and programs, including those related to asylum.

CIC also makes specific determinations on which

foreign nationals may be referred to the Immigration

and Refugee Board to apply for refugee protection.

Those granted refugee protection may apply to CIC

for permanent residence. CIC also makes decisions on

pre-removal risk assessments (PRRA), which may result

in the granting of protected person status. Finally, CIC

decides on claims for refugee protection made outside

of Canada, such as for resettlement purposes.

The Refugee Protection Division (RPD) of the

Immigration and Refugee Board (IRB), an independent,

quasi-judicial, non-adversarial tribunal, is responsible

for processing inland claims for refugee protection.

The Canada Border Services Agency (CBSA) refers

refugee claims made at the border to the IRB. In

addition, CBSA is responsible for security screening

of refugee claimants, detention of foreign nationals in

accordance with provisions in IRPA, and the removal

of persons who are inadmissible to Canada.

For institutions’ handling of judicial review of refugee

claims, please see the section entitled “Review/Appeal

of IRB Decisions” below.

3.2 Cooperation between

Government Authorities

All three institutions involved in the area of asylum

work both individually and in concert with each other.

In addition to referring asylum claims to the IRB for

adjudication, CIC formulates refugee policy and grants

permanent residence to recognised refugees and other

protected persons. CIC is also the competent authority

for making pre-removal risk assessments (PRRA). While

the IRB reports to Parliament through the CIC Minister, it

retains its independence with respect to the consideration

of speciﬁ c cases. The CBSA is responsible for the return

of failed asylum-seekers and works together with CIC to

enforce immigration legislation.

4 Pre-entry Measures

To enter Canada, foreign nationals must be in

possession of a valid travel document and a valid visa,

if required, and must not otherwise be inadmissible to

Canada.

4.1 Visa Requirements

All foreign nationals must apply for a visa before travelling

to Canada, unless exempted from that requirement

under Canada’s Immigration and Refugee Protection

Regulations. Exemptions from the visa requirement are

based on a traveller’s nationality, travel document, a

combination of travel document and nationality, and/or

purpose of entry to Canada. The competent authority

for Canadian visa policy and issuance is CIC.

4.2 Carrier Sanctions

Any carrier transporting people into Canada is obligated

under the law to ensure that it does not transport

anyone lacking the prescribed documents for legal

entrance into the country. If a carrier contravenes this

law, inadvertently or otherwise, it is obligated to make

arrangements and cover all costs to effect the removal

of the person(s) back to the point of embarkation. If

a carrier fails to comply with its obligations, it may

face ﬁ nes, seizure of assets, or criminal charges, as

warranted.

4.3 Interception

Canadian law prescribes that any carrier seeking to

transport people into Canada comply with the Advance

Passenger Information (API)/Passenger Name Record

(PNR) regime. This information is used to pre-screen a

carrier’s manifest for any individuals inadmissible either

because they fail to comply with Canada’s immigration

regulations or because they pose a security threat.

4.4 Migration Integrity Ofﬁ cers

Canada has expanded its overseas presence of CBSA

personnel through the deployment of Migration Integrity

Officers who assist carriers and host government

ofﬁ cials in maintaining rigorous screening systems to

ensure that carriers comply with Canadian law.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

Claims for asylum may be made at any port of entry

(at a border crossing, an airport or a seaport), or inland

at a CIC ofﬁ ce. In addition, CIC has an administrative

process to select refugees overseas for resettlement.

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5.1.1. Outside the Country

Resettlement/Quota Refugees

CIC is responsible for managing Canada’s resettlement

program. Both Convention refugees and persons

in refugee-like situations, including members of the

Humanitarian-Protected Persons Abroad Classes

(HPC), are eligible for resettlement. Each year, a target

is allocated for resettlement through the government-

assisted programme. In addition, a private sponsorship

program enables organisations and private individuals

to participate in refugee identiﬁ cation and settlement.

Three streams are used for resettling refugees, as follows:

• Convention Refugees Abroad Class – the United

Nations High Commissioner for Refugees (UNHCR),

other referral organisations and private sponsorship

groups identify Convention refugees outside their

country of origin to be resettled in Canada

• Country of Asylum Class – persons outside

their country of origin who are not Convention

refugees but who are affected by conﬂ ict or are

victims of serious human rights violations are

usually identiﬁ ed for resettlement by private

sponsorship groups

• Source Country Class – this is a special class

for persons living in certain countries of origin

who ar

e in refugee-like situations as a result

of civil war or armed conﬂ ict or because their

fundamental human rights are not respected.

Applications are made at diplomatic missions.

In each of these streams, processing is completed at

Canadian diplomatic missions. A visa ofﬁ cer decides

whether the person identified meets eligibility and

admissibility requirements for resettlement. Although

decisions may be reviewed by the Federal Court of

Canada, there is no appeal process on resettlement

referral decisions.

The target for government-assisted resettled refugees

in 2009 is between 7,300 and 7,500, while it is between

3,300 and 4,500 for privately sponsored refugees.

5.1.2. At Ports of Entry

At a port of entry (airport, seaport or land border post),

a CBSA ofﬁ cer ﬁ rst examines the validity of the foreign

national’s travel documents, and examines whether his

or her circumstances have changed since a visa or

permit was ﬁ rst issued. The ofﬁ cer also determines

whether the person poses a security or health risk or has

committed a serious crime or human rights violation.

If the person wishes to make a claim for asylum,

an immigration ofﬁ cer will interview the claimant to

determine whether the claim is eligible to be referred

to the IRB.

Undocumented asylum-seekers may make claims

using the same procedure, without being differentiated

from other asylum-seekers, but may be detained for

reasons of identity.

Inadmissible Persons

Any person deemed inadmissible may be detained for

up to 48 hours on the authority of a CBSA ofﬁ cer if the

ofﬁ cer is not satisﬁ ed of the person’s identity, or if there

are reasonable grounds to believe the inadmissible

person is a danger to the public or unlikely to appear

for an immigration process. Within the ﬁ rst 48 hours,

the CBSA has authority to review the initial decision to

detain and may release the person or impose conditions.

Any detention deemed necessary to continue beyond

48 hours will be reviewed within this timeframe by the

Immigration Division of the IRB. If it is justiﬁ able to do

so, the Immigration Division may extend the detention

for seven days, and subsequently up to terms of 30 days

upon review if necessary. If the detention is deemed

unwarranted, the person will be released and the IRB

may impose any conditions it considers necessary.

5.1.3. Inside the Territory

Any person in Canada may make an asylum claim

inland at any point, provided it is done prior to the

issuance of a removal order. However, even once a

removal order is issued, the person may request a

PRRA prior to removal.

Responsibility for Processing the Claim

The Safe Third Country Agreement (STCA)

The Safe Third Country Agreement (STCA) between

Canada and the U.S. was signed on 5 December 2002 and

came into force on 29 December 2004. The Agreement

establishes rules for the sharing of responsibility by the

two countries for hearing refugee claims made by persons

at ports of entry along the Canada-U.S. land border. The

STCA also outlines procedures for processing refugee

claims made by individuals who, during removal, are in

transit by air through Canada or the U.S.

The general principle of the STCA requires that the country

in which the refugee claimant arrived ﬁ rst take responsibility

for adjudicating a refugee claim if the claimant does not

qualify for an exception under the Agreement.

4 For terms of ineligibility and the procedure for forwarding the

claim to the IRB, please see the section entitled “Application and

Eligibility” below.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

The STCA is based on the fact that both Canada and the

U.S. maintain refugee protection programmes that meet

international standards and that both have mature legal

systems that offer procedural safeguards. The STCA

acknowledges the international legal obligations of both

governments under the principle of non-refoulement

outlined in the 1951 Convention and the 1967 Protocol,

as well as the 1984 Convention against Torture.

Application and Procedure

The STCA applies to asylum-seekers entering Canada

from the U.S. at land-border crossings or airports, if the

person has been refused asylum in the U.S. and is in

transit through Canada after being removed from the U.S.

There are four categories of exceptions to the

application of the STCA, as follows:

• Family member exceptions – persons may be

exempted if they have a family member

who

is a Canadian citizen, a permanent resident, a

protected person, a holder of a valid work permit,

a holder of a study permit, a recipient of a stay

of removal on humanitarian and compassionate

grounds, or an asylum-seeker who is appearing

before the IRB

• Unaccompanied minors (UAMs) exception

– UAMs who are single and have no family

member or legal guardian residing in the U.S.

or Canada may be eligible to apply for asylum

• Document holder exceptions – persons may

apply for asylum if they hold a valid Canadian

(non-transit) visa, a work permit, a study permit,

or a travel document (for permanent r

esidents)

issued by Canada, or if they are not required to

have a temporary resident visa to enter Canada

but require a U.S.-issued visa to enter the U.S.

• Public interest exceptions – persons may be

exempted if they have committed a crime that

could subject them to the death penalty in the

U.S. or a thir

d country or if they are nationals

of countries benefiting from a temporary

suspension of removal.

5 The designation of the U.S. as a “safe third country” was challenged

in the Federal Court of Canada by three non-governmental

organisations (NGOs) and an anonymous asylum-seeker in the

U.S. While the Federal Court ruled that the designation was invalid,

the Federal Court of Appeal overturned that ruling, ﬁ nding that the

designation of the U.S. as a safe third country was not outside the

authority of the Government and that the STCA between Canada and

the U.S. was not illegal. On 5 February 2009 the Supreme Court of

Canada declined to grant leave to the NGO and individual challengers

to hear an appeal of the Federal Court of Appeal decision.

6 The STCA deﬁ nes a family member as a spouse or common-law

partner, legal guardian, parent, sibling, grandparent, uncle/aunt, or

nephew/niece.

The STCA does not apply to U.S. citizens or habitual

residents of the U.S. who are stateless.

If the immigration ofﬁ cer examining the asylum claim at

the Canada–U.S. land border port of entry determines

that the person does not ﬁ t any of the above-mentioned

exceptions, the person is returned to the U.S. forthwith.

Freedom of Movement/Detention

The grounds and procedures for detention of individuals

deemed inadmissible under the STCA are the same

as they are for other inadmissible claimants. However,

detention is usually not required since under the

agreement those deemed inadmissible do not have

recourse to a PRRA and are generally returned to the

U.S. the same day.

C onduct of Transfers

Transfers of inadmissible cases back to the U.S. involve

coordination on both sides of the border. The sending

party informs the receiving party that an individual is en

route, and they are provided with an ofﬁ cial explanation

of the claim and why it was denied prior to the release

of the person. Escorts are usually not required, and

individuals return to the U.S. via their own means.

UNHCR monitors the agreement and has access to

various points of entry for ﬁ rst-hand monitoring.

Suspension of STCA Transfers

There is no speciﬁ c mechanism that allows for the

suspension of transfer of persons deemed inadmissible

under the STCA, unless they are reclassiﬁ ed under one

of the allowed exceptions outlined above. In a more

general sense, either party can suspend the agreement

as a whole for a three-month period.

Review/Appeal

As outlined above, those not falling into the exception

categories have no recourse to appeal inadmissibility

determinations under the STCA.

Application and Eligibility

When a person makes an asylum claim at a port of

entry or a local CIC ofﬁ ce, he or she is interviewed by

an immigration ofﬁ cer. During the interview, the asylum-

seeker may be assisted by an interpreter. The asylum-

seeker is also asked to complete a questionnaire and

to have his or her photograph taken. Persons 14 years

of age or older are ﬁ ngerprinted.

If the immigration ofﬁ cer decides that the claim is eligible,

the claim is forwarded to the IRB for determination.

If the immigration ofﬁ cer does not make an eligibility

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CAN

determination within three working days, the claim is

deemed eligible and automatically sent to the IRB.

The asylum-seeker is given a Personal Information

Form (PIF), which must be completed and returned to

the IRB within 28 days. The asylum-seeker must then

complete a medical examination. The asylum-seeker

is also given a removal order, which is conditional on

the result of his or her asylum claim at the IRB. In other

words, should the asylum-seeker’s refugee claim be

refused, the removal order becomes enforceable. If the

IRB does not receive the PIF in the time indicated, the

claim may be declared abandoned.

A person’s claim may be found ineligible if he or she:

• Has already been granted asylum in Canada or

in another country to which he or she can be

returned

• Has previously been refused asylum in Canada

or withdr

ew or abandoned his or her previous

claim

• Came to Canada from, or through, a designated

safe thir

d country where a claim for asylum

could have been made, or

• Is a security risk, has violated international

human rights, has been convicted of a serious

crime or has been involved in or

ganised crime.

Asylum-seekers may choose to seek a Federal Court

judicial review of determinations of eligibility as well as

other decisions.

Asylum-Seeker Rights and Obligations

Refugee claimants receive a document of terms and

conditions, which outlines their obligations during the

refugee status determination process. Failing to abide

by these obligations may result in the issuance of a

warrant.

Box 2:

Canadian Case Law: Giving the Right to

an Oral Hearing

Singh v. Minister of Employment and Immigration

[1985] 1 S.C.R. 177: This Supreme Court ruling

held that refugee status determinations made

on the basis of a transcript of an interview were

inconsistent with the requirements of fundamental

justice. As a result, Canadian legislation was

revised so that asylum-seekers were afforded an

opportunity to make their case at an oral hearing.

This resulted in the creation of the Immigration

and Refugee Board in 1989.

Accelerated Procedures

The IRB has a Fast-Track Policy comprising two

instruments:

• The fast-track expedited process is used

to identify and handle claims that can be

determined without a hearing at a faster rate

than more complex cases. The asylum-seeker

is interviewed by a tribunal ofﬁ cer, who makes a

recommendation to either accept the claim or to

proceed with a hearing. If the recommendation

is to accept the claim, the claim is forwarded

to a decision-maker. The decision-maker can

either grant status or proceed with a full hearing

under the normal procedure. Claims that are not

recommended for acceptance without a hearing

proceed directly to the normal determination

procedure, that is, to a full hearing

• The fast-track hearings process is used to

identify and handle simple claims that r

equire a

hearing and that can be heard at a faster rate than

can complex claims. A simple claim is deﬁ ned

as a claim in which one or two issues, apart

from the asylum-seeker’s credibility, appear

to be determinative of the claim. Hearings are

usually concluded within two hours.

Certain countries of origin and claim types are

designated for processing under this policy, although

any claim can be streamed into the two processes

where the RPD and counsel consider this to be suitable.

Under the fast-track policy, an interview is generally

scheduled within eight weeks of referral or receipt of

the Personal Information Form (PIF), and a decision is

taken within seven days of the interview. The procedure

is non-adversarial.

Unaccompanied minor asylum-seekers, persons

requiring a designated representative by reason of a

mental disability, and cases remitted to the IRB for a

new hearing by the Federal Court after judicial review

are excluded from the fast-track policy.

Normal Procedure

When the IRB receives an asylum-seeker’s PIF, it

reviews the claim to determine the best way to proceed.

The claim can be put through the fast-track expedited

process, the fast-track hearings process (see above) or

the full-hearing process. Asylum-seekers are required

to provide the IRB with identity and travel documents,

including passport, birth certificate, any education

certiﬁ cates, police or medical reports, membership

cards for political or other groups, and any documentary

evidence on conditions in their country of origin.

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Full hearings follow the tribunal process and are non-

adversarial. The asylum-seeker has the right to be

assisted by a legal representative or counsel.

Hearings

are held in private. The Minister’s representative (a CBSA

ofﬁ cer) may participate in the hearing to intervene on

behalf of CIC. The CBSA reviews claims on the Minister’s

behalf and determines if an intervention is warranted

before the RPD decision is made. Dependants who are

included in their parents’ or guardians’ asylum claim

must appear at the hearing, although they are required

to be present only at the start of the hearing to establish

identity.

Cases are heard by Members, independent decision-

makers who assess each claim individually on its

merits. Members may be assisted by a tribunal ofﬁ cer

during the hearing.

If the asylum-seeker fails to appear at his or her

scheduled hearing, the claim may be considered to

be abandoned.

Review/Appeal of IRB Decisions

A sylum-seekers and the Minister of CIC may apply to

the Federal Court for a judicial review of an IRB decision.

This application must be ﬁ led within 15 days of the

IRB decision. First, the asylum-seeker or the Minister’s

representative must obtain the Court’s permission, or

leave, for a judicial review. The role of the Federal Court

is to ensure that the IRB has made a decision lawfully.

If the Court concludes that an error of law, of fact, or

of mixed law and fact was made, the judicial review

is allowed, and the claim is returned to the IRB for a

new hearing. New evidence may be presented at the

hearing. A request for judicial review has the effect of

suspending the person’s removal from Canada.

There are possibilities for further appeal before the

Federal Court of Appeal and the Supreme Court

of Canada, again on the condition that the court in

question grant leave.

Failed asylum-seekers who have a removal order

in effect may apply to CIC for a pre-removal risk

assessment (PRRA) or may apply to remain in

Canada as a permanent resident on humanitarian and

compassionate (H&C) grounds. Although a pending

application for H&C consideration, contrary to a PRRA

application, does not put into effect a stay of removal,

most applications for H&C consideration are examined

prior to the applicant’s removal.

7 A representative can be a lawyer, an immigration consultant, a

trusted advisor or a family member.

8 The PRRA and consideration of humanitarian and compassionate

grounds for a stay of removal are described later in the chapter,

under the section Status and Permits Granted outside the Asylum

Procedure.

Freedom of Movement during the

Asylum Procedure

Detention

Procedure

The CBSA has the legislative authority to arrest and

detain foreign nationals, including asylum-seekers

believed to be inadmissible to Canada. For all

detentions, an ofﬁ cer must have reasonable grounds

to believe the person is inadmissible to Canada and

is a danger to the public or is unlikely to appear for

an immigration proceeding. A person may also be

detained if an ofﬁ cer is not satisﬁ ed of the identity of

the person in the course of any procedure under IRPA.

The CBSA has jurisdiction over the detention for the

ﬁ rst 48 hours after an arrest. If a CBSA ofﬁ cer does

not release the person during this time, then the case

is referred to the Immigration Division of the IRB. Once

the case is before the IRB, the IRB Member reviews

the reasons for detention according to the following

schedule: within 48 hours of the arrest or without

delay afterwards; once in the following seven days;

and once every thirty days for as long as a person

remains detained. The IRB has the authority to order

continued detention or to release the person with or

without conditions.

Detention Facilities

The CBSA operates four immigration holding centres

(IHCs) located in Toronto, Ontario; Vancouver, British

Columbia; Laval, Quebec; and Kingston, Ontario. The

ﬁ rst three are for low-risk detainees while Kingston IHC

is solely for individuals subject to security certiﬁ cates.

The CBSA relies on provincial facilities to detain high-

risk detainees (such as criminals or persons suffering

serious medical or psychological problems) and low-risk

detainees in areas not served by a CBSA immigration

holding centre. A person detained in a provincial facility

for immigration reasons is bound by the rules of the

provincial correctional institution.

Safeguards

While there is no limit imposed on the length of

detention, detention is used only as a last resort.

Alternatives to detention, such as release on conditions

or ﬁ nancial guarantees, are always considered before

detaining someone.

Where safety or security is not an issue, the detention

of minors is avoided, regardless of whether a child is

unaccompanied or accompanied by a parent or legal

guardian. Alternatives to detention are considered. For

unaccompanied minor asylum-seekers, the preferred

option is to release with conditions to the care of

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CAN

child welfare agencies, if those organisations are able

to provide an adequate guarantee that the child will

report to the immigration authorities as requested. The

average length of detention of minors has declined by

40% due in part to increased use of such alternative

arrangements. The responsibility for child protection

rests with the provincial youth protection agencies.

Where safety or security is not an issue, detention is

avoided or considered a last resort for elderly persons,

pregnant women, persons who are ill, persons who are

handicapped, and persons with behavioural or mental

health problems. For persons falling under these

categories, Canada will always consider alternatives

to detention.

Persons detained under IRPA have a right to apply for

leave to the Federal Court of Canada for judicial review

of the decision to detain.

Reporting

Asylum-seekers are required to report changes of

address within 48 hours. RPD Rule 4(3) states that

changes to contact information must be reported to

the Division and the Minister “without delay” and to the

IRB no later than 10 days after the date they receive

the PIF. Any subsequent changes of address must be

reported within 48 hours.

Should asylum-seekers not report address changes,

they may not receive notice to appear for their hearing

at the IRB, which may result in non-attendance and

abandonment of their claim.

Repeat/Subsequent Applications

An asylum-seeker in Canada may make only one claim

for asylum. Thus, a re-application for asylum is ineligible

for referral to the IRB if an asylum claim by the person

had previously been rejected by the IRB, had been

deemed ineligible for referral to the IRB, or had been

withdrawn or abandoned.

However, IRPA allows rejected asylum-seekers awaiting

removal to apply for a PRRA. For most applicants,

a positive determination results in the granting of

protected person status.

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

Asylum Claims Filed by a Citizen of a European

Union Member State

Canada does not currently have a safe country of

origin policy. All cases before the RPD, regardless of

the country of alleged persecution, are decided in the

same manner. IRB decision-makers must consider the

totality of the evidence before them as well as the overall

credibility of an asylum-seeker when making a ﬁ nal

decision on a claim. This applies to all cases before the

RPD, regardless of the alleged country of persecution.

5.2.2. First Country of Asylum

There is no legal requirement for an asylum-seeker to have

applied for asylum in the ﬁ rst or earlier country of asylum.

However, failure to do so may have a negative impact on

the assessment of the person’s subjective fear or credibility.

5.2.3. Safe Third Country

According to IRPA, a country can be designated a safe

third country after consideration of the following criteria:

• Whether the country is party to the 1951

Convention and the CA

• The policies and practices of the country with

espect to the 1951 Convention and the CAT

• The human rights record of that country

• Whether the country is party to an agreement

with Canada on sharing r

esponsibility for asylum

claims.

To date, the United States is the only country that has

been designated a safe third country by Canada.

5.3 Special Procedures

5.3.1. Unaccompanied Minor

Asylum-Seekers

Eligibility Stage

As may adults, children may make a refugee claim in

Canada. Claims for refugee protection may be made

inland or at a Canadian port of entry. CBSA and CIC

ofﬁ cers assess admissibility and determine whether a

claim is eligible to be referred to the Refugee Protection

Division (RPD) of the IRB.

Measures are in place to ensure that the best interests

of children are taken into consideration throughout the

refugee claims process. For example, on 4 April 2008,

amendments to the Protected Persons Manual (PP1)

that include age- and gender-sensitive guidelines were

published. These outline the procedures to be followed by

ofﬁ cers who conduct eligibility interviews with minors and

vulnerable persons. The guidelines include instructions

for ofﬁ cers to consider the particular vulnerability and

9 See the Safe Third Country Agreement section above for further

detail.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

needs of children, and provide direction on how to identify

unaccompanied or separated children and children at risk.

The guidelines instruct officers that if a child is

unaccompanied or separated, or if, during the interview,

it becomes apparent that he or she is otherwise at risk,

the child is to be referred to the appropriate provincial

or territorial child protection agency. Jurisdictional

responsibility for child welfare protection matters rests with

the provinces and territories, and local child protection

agencies determine the level of care and treatment that

children who come within their jurisdiction require. This

jurisdictional responsibility includes the appointment of

a guardian when that is deemed appropriate.

At the IRB

IRPA provides for the designation of a representative

for minor children (persons under the age of 18) in

all proceedings before the IRB. In the case of an

unaccompanied minor asylum-seeker (UAM), the IRB

normally appoints employees of social service or other

non-governmental support agencies as designated

representatives. If none is available, a lawyer who is not

acting as the child’s counsel may be chosen for the role.

The role of the designated representative is to act in the

best interests of the child in all proceedings before the

IRB. The role of the designated representative includes

retaining and instructing counsel, making decisions about

the case or helping the child to understand and make

decisions about the proceedings, obtaining and providing

evidence, and being a witness at the hearing if necessary.

A pre-hearing conference is held with the designated

representative in order to discuss how best to elicit

the child’s testimony. Age, mental development and

capacity are considered in this process. The UAM

may be called upon at the hearing to provide evidence

about his or her claim and, as does an adult claimant,

an unaccompanied minor asylum-seeker has a right

to be heard in relation to his or her claim. Procedural

accommodation may be provided to ensure the UAM

feels more comfortable.

Best Interests of the Child

When determining the procedure to be followed while

considering the claim of a UAM, the best interests of the

child are given primary consideration. This principle is

articulated in the IRB Chairperson’s Guideline on Child

Refugee Claimants: Procedural and Evidentiary Issues

and in the Protected Persons Manual.

10 The guidelines can be found on the IRB website:

http://www.irb-cisr.gc.ca/en/references/policy/guidelines/child_e.htm.

5.3.2. Stateless Persons

Although Canada has not ratiﬁ ed the 1954 Convention

relating to the Status of Stateless Persons, it is a

signatory to the 1961 Convention on the Reduction

of Statelessness. All asylum-seekers, regardless of

whether they are stateless, have the same rights, and

their cases will be treated individually on their merits.

6 Decision-Making and

Status

The IRB considers both Convention refugee and other

claims for protection under the “consolidated grounds”

at the time of determination.

6.1 Inclusion Criteria

The RPD grants Convention refugee status to persons

who have a well-founded fear of persecution in the

meaning of Article 1A (2) of the 1951 Convention.

6.1.1. Convention Refugee

The RPD grants Convention refugee status to persons

who have a well-founded fear of persecution in the

meaning of Article 1A (2) of the 1951 Convention.

Box 3:

Canadian Case Law: Defining the

Grounds for Protection

Canada (Attorney General) v. Ward, [1993] 2 S.C.R.

689: This decision clariﬁ ed the meaning of “State

protection”, as well as the meaning of “political

opinion” as grounds for persecution. The Court

also provided a more comprehensive deﬁ nition of

“particular social group”.

6.1.2. Persons in Need of Protection

IRPA allows for complementary protection if an

individual has substantial grounds to believe that he

or she would be at risk of torture or that his or her life

or well-being would be at risk if he or she was returned

to the country of origin. Section 97 of IRPA affords such

protection to persons who on substantial grounds

would, if returned, incur the following risks:

• A danger of torture

• A risk to their life

• A risk of cruel and unusual treatment or

punishment.

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Such persons are referred to as “persons in need of

protection.”

6.2 The Decision

Under IRPA, members of the RPD assess whether

asylum-seekers are Convention refugees or persons

in need of protection. Decisions are made based on

the evidence provided and the law, following a full

hearing, a fast-track hearing or the fast-track expedited

process. Decisions and the reasons for the decisions,

whether positive or negative, can be given orally at the

end of the hearing or sent in writing by mail. Written

reasons must be provided in the case of negative

decisions and in certain other circumstances, such

as when the asylum-seeker or the Minister’s counsel

requests written reasons. If the decision is given orally,

a transcript is provided.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

The RPD of the IRB can either grant protection to

Convention refugees or persons in need of protection

or reject claims for protection.

If a negative decision on a claim for asylum is issued,

the removal order becomes effective and the asylum-

seeker must leave Canada within 30 days.

“Protected Person” Status and Beneﬁ ts

Convention refugees and persons in need of protection

both obtain the status of “protected persons.” Thus,

both groups are protected against refoulement and are

entitled to the same set of beneﬁ ts. Protected persons

have the right to apply to CIC for permanent residence

within 180 days of the decision and then for citizenship

after three years of residence in Canada.

As permanent residents, protected persons have

access to the following beneﬁ ts:

• Most of the social benefits that Canadian

citizens r

eceive, including health care coverage

• The right to live, work and study anywhere in

Canada

• Protection under Canadian law and the Canadian

Charter of Rights and Fr

eedoms.

Protected persons may include in their application for

permanent residence family members who are located

in Canada or overseas. If, for any reason, a family

member is inadmissible to Canada, the protected

person and any admissible family members will not be

affected. They will be granted permanent residence,

provided they meet all other statutory requirements.

6.4 Exclusion

The RPD of the IRB applies Article 1F and 1E of the 1951

Convention in the examination of protection claims. If the

RPD believes, before or during a hearing, that there is a

possibility that sections of the exclusion clauses apply to

the claim, the Division must notify the Minister in writing

and provide any relevant information. The Minister has

the right to intervene in such cases, and may do so either

by attending the hearing or by so indicating in writing.

Once a claim has been forwarded to the RPD

proceeding, and before a decision has been taken, the

CBSA reviews the claimant’s PIF and the supporting

evidence that was provided to the RPD. If a rigorous

examination of the claim reveals reasonable grounds

for opposing a refugee protection claim, the CBSA

may object to the claim on behalf of the Public Safety

Minister or the CIC Minister. Ministerial interventions in

the refugee status determination process aim to ensure

that individuals who are major criminals or who may

compromise national security do not enjoy the beneﬁ t

of Canada’s protection. They also aim to protect the

integrity of the refugee status determination system.

Persons excluded from refugee status (and thus

deemed inadmissible

) under the IRPA guidelines

outlined above have recourse through the PRRA

process, provided they ﬁ le their request within 15 days

of the issuance of the inadmissible ruling.

In the event that the individual’s circumstances fail to

meet the threshold for either a positive PRRA ruling

(which may grant the right to apply for permanent

residence) or a stay of the removal order, there is still

recourse to staying the removal under the principle of

non-refoulement.

The Supreme Court of Canada has ruled in Suresh

that “the Minister’s discretion to deport under s. 53 is

conﬁ ned to persons who pose a threat to the security of

Canada and have been engaged in violence or activities

directed at violence. Expression taking the form of

violence or terror, or directed towards violence or terror,

is unlikely to ﬁ nd shelter under the Charter. Provided

that the Minister exercises her discretion in accordance

with the Act, the guarantees of free expression and free

association are not violated.” In other words, Canada

can remove those who pose a risk to Canadian society,

11 A person who is excluded from refugee protection is also

inadmissible to Canada and his or her claim will not be referred

to the IRB. However, refugee claims of other inadmissible persons

may be referred to the IRB based on the type of inadmissibility. In

other words, an excluded person is also inadmissible to Canada

but an inadmissible person is not necessarily excluded from

refugee protection.

12 Suresh v. Canada (Minister of Citizenship and Immigration), 2002.

See the text box above on Case Law for a summary of the court’s

ruling.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

even refugees, following an administrative process that

balances the seriousness of their conduct against the

risk faced upon return.

The substantive limit the Court placed upon government

is that removal to torture would generally be a breach

of fundamental justice. However, Canada has never

invoked this exception to remove anyone when a

Canadian tribunal has found a substantial risk of torture.

Persons excluded from protected person status under

the IRPA guidelines outlined above have recourse to

appeal through the PRRA process, provided they ﬁ le

their request within 15 days of the issuance of the

inadmissibility ruling.

6.5 Cessation

There are two ways in which the cessation clauses of

the 1951 Convention are considered by the RPD of

the IRB:

• The RPD may decide, on the day of the hearing

(when, under Canadian law

, the well-founded

fear of persecution is assessed), to hear about

changes in circumstances

• The Minister may make an application to vacate

efugee protection or an application to cease

refugee protection, after the person has been

granted refugee status.

These clauses may be applied directly. The Minister

may make an application to cease refugee protection,

after the person has been granted refugee status. Such

applications are made relatively infrequently.

In assessing the objective basis of any claim for refugee

protection, the RPD will always consider the impact of

any changes in circumstances. If it concludes that as

a result of a change in circumstances, a person who

previously would have been found to be a refugee or a

person otherwise in need of protection no longer meets

the deﬁ nition, the RPD will also consider whether there

is evidence of compelling reasons sufﬁ cient to accept

the claim despite the change in circumstances.

The cessation clauses are used only in exceptional

cases. Persons who have been the subject of a

cessation of their refugee status may ask the Federal

Court for leave for judicial review of the IRB’s decision.

6.6 Revocation

IRPA also has provisions that allow for the revocation

of refugee status. An application to vacate refugee

protection may be brought by the Minister if the

decision was obtained as a result of directly or indirectly

misrepresenting or withholding material facts relating

to a relevant matter. However, the RPD may reject

the application if it is satisﬁ ed that other evidence

considered at the time of the ﬁ rst determination would

have justiﬁ ed conferring refugee protection.

If the Minister’s application is allowed, the previous

grant of refugee protection is nulliﬁ ed and the claim is

deemed rejected. A person whose status is vacated

may seek leave at the Federal Court for judicial review

of the RPD’s decision.

6.7 Support and Tools for

Decision-Makers

6.7.1. Country of Origin Information

The IRB Research Directorate gathers current, public

and reliable information on countries of origin for the

purposes of refugee status determination. The research

team produces responses to information request (RIRs)

made by RPD decision-makers. Published RIRs can

be viewed on the IRB’s internal and external websites

and at IRB Regional Documentation Centres. The

Research Directorate has created and published

National Documentation Packages (NDPs) containing

information on each country of origin in the IRB caseload

to provide decision-makers, claimants and counsel

across the country with a comprehensive overview

of country conditions. The Research Directorate also

gathers claimant-speciﬁ c information for RPD decision-

makers.

6.7.2. Language Analysis

The IRB is currently conducting a Language Analysis

Pilot Project (LAP) in order to determine refugee

claimants’ country of origin based on a language

analysis. The Pilot focuses on 60 claims from three

countries where there are identified difficulties in

obtaining reliable identity documents, and there are

signiﬁ cant populations of the target languages spoken

by people in neighbouring countries. The ﬁ nal report

is expected in the summer of 2009.

6.7.3. Chairperson’s Guidelines

Guidelines are developed to address speciﬁ c issues

that may arise in the adjudication or management of

asylum claims and to act as a source of guidance for

decision-makers. For example, guidelines have been

issued on unaccompanied minor asylum-seekers and

on women asylum-seekers. The use of Chairperson’s

Guidelines is not mandatory, but decision-makers must

provide a reasoned justiﬁ cation for not applying them.

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6.7.4. Jurisprudential Guidelines

These guidelines articulate policy on the application

of the law in cases that share essential similarities.

Jurisprudential guidelines must be applied by decision-

makers. Those who fail to apply them must provide a

reasoned decision for not doing so in a particular case.

6.7.5. Policies

Policies are formal statements that explain the

purpose and the mechanics of operational initiatives

at the IRB. For instance, a policy sets out speciﬁ c

responsibilities for action by decision-makers and

personnel supporting the adjudicative process. Policies

are ﬂ exible instruments, and the degree to which they

are mandatory varies with their content. They often

contain elements that are mandatory, but may also

provide general guidance or deﬁ ne areas in which the

exercise of discretion is required.

6.7.6. Chairperson’s Instructions

Instructions provide formal direction that obliges

speciﬁ c IRB personnel to take or to avoid speciﬁ c

actions. In contrast to policies, instructions are limited

to a speciﬁ c and narrow practice area and may also

include organisational concerns (e.g. relations between

decision-makers and Refugee Protection Ofﬁ cers) that

deﬁ ne roles and responsibilities consistent with the

principle of adjudicative independence and impartiality.

6.7.7. Persuasive Decisions

Persuasive decisions are identiﬁ ed by the RPD as being

of persuasive value in developing the jurisprudence of

the Division. Decision-makers are encouraged, but

not obliged, to apply them in the spirit of collegiality.

Persuasive decisions enable the RPD to move toward

a consistent application of questions of law and to

promote efﬁ ciency in the reasons-writing process.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

All asylum-seekers 14 years of age or older are

ﬁ ngerprinted at the time of application.

7.1.2. DNA Tests

DNA testing is not an element of Canada’s asylum

procedures. Successful claimants (protected persons)

may apply for permanent residence. They may include

in their application family members, including dependent

children. Alternatively, the protected person may sponsor

family members later, as may any other permanent resident

of Canada. If the applicant or sponsor is unable to

establish the relationship with a child, and the immigration

ofﬁ cer would otherwise refuse the application with respect

to the child, the applicants may be offered DNA testing,

at their own expense, as a means of preventing refusal of

the family member’s application for a visa.

7.1.3. Forensic Testing of Documents

Forensic testing may be done at the option of the RPD

decision-maker. From time to time, the IRB requests

that CIC or the Royal Canadian Mounted Police (RCMP)

conduct forensic testing of documents, usually passports.

However, for practical considerations, decision-makers

are encouraged to reserve such testing for evidence that

is crucial to determining the case.

Box 4:

Recent Developments in the Research Directorate’s COI Unit

The IRB adopted the Policy for Producing Country of Origin National Documentation Packages (NDPs) in 2003.

Since then, the number of NDPs published in electronic and paper formats has grown to more than 180, and the

production and maintenance of the NDPs has become a primary focus of the COI unit. NDPs include responses to

information requests (RIRs) and other Research Directorate products, as well as selected documents published by

third parties. The RIRs prepared for inclusion in an NDP tend to be longer and broader in scope than traditional

RIRs because they contain COI relevant to a range of cases from a given country.

In 2003, the COI unit began publishing most responses to information requests in Canada’s two ofﬁ cial languages,

French and English. Both versions are available on the IRB website.

To ensure effective workload management and improve knowledge and staff retention, two Senior Research Ofﬁ cer

positions were created in 2006. The Senior Research Ofﬁ cers lead geographically specialised teams of researchers.

Each team is collectively responsible for performing research on countries in their region and maintaining the

associated NDPs.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

7.1.4. Database of Asylum

Applications/Applicants

CIC maintains a database of all clients, including refugee

claimants. In the case of refugee claimants, all who are

14 years of age or older are ﬁ ngerprinted; this practice,

in use since 1993, enables authorities to identify repeat

claimants, and those who have been convicted of

criminal offences in Canada. These ﬁ ngerprint records

are retained until, in the case of a successful claimant,

a person acquires Canadian citizenship.

7.1.5. Video Conferencing of Asylum

Hearings

As the IRB must deal with cases in a timely manner, at

the Division’s discretion, a hearing may be conducted

by video conference with the asylum-seeker. Generally,

this workload management occurs as a ﬁ le transfer

between two regions. In 2004, the IRB issued the

Policy on the Transfer of Files for Hearings by Video

Conference. The policy outlines the circumstances

under which a ﬁ le can be administratively transferred.

7.2 Length of Procedures

There is no time limit placed on making refugee claims.

However, once a claim is made, claimants have 28

days to complete their PIF. There are no legislatively

mandated timeframes for the determination of a claim

at the Board. Shifting global migration and refugee

movements, among other factors, inﬂ uence the number

and type of cases the IRB receives. In addition, shortfalls

in the decision-maker complement have resulted in a

growing inventory of asylum cases.

There are time guidelines for processing of asylum

claims under the Fast-Track Policy. See the section on

Accelerated Procedures above for more information.

7.3 Pending Cases

As at 31 December 2008, there were 54,296 pending

asylum cases before the IRB. There are a number

of different initiatives currently being used to reduce

the number of pending cases, including the following

measures:

• Use of the streamlining process, which consists

of pr

operly streaming a case in order to allocate

the appropriate level of resources to each case,

improve consistency in decision-making, and

provide for greater scheduling efficiency. A

prompt review of all claims is undertaken to

ensure that claims are sent quickly to the most

appropriate stream

• Intensive decision-maker recruitment and

selection ef

forts

• Implementation of adjudicative support,

including early r

esolution of cases and case

readiness procedures

• Continued implementation of comprehensive

oss-divisional training programmes for

decision-makers and tribunal ofﬁ cers

• Development and implementation of adjudicative

strategies in all three divisions to promote quality

decision-making and improve consistency in

approaches to common issues, such as requests

for postponements and adjournments.

7.4 Information Sharing

Canada exchanges information on asylum-seekers with

other refugee-receiving countries, on a bilateral basis,

in accordance with legal and privacy considerations

of both states. The Canada-U.S. Statement of Mutual

Understanding on Information Sharing (SMU) allows for the

sharing of information on a case-by-case basis. The Asylum

Annex to the SMU allows for the systematic or case-by-

case sharing of information on asylum-seekers who attempt

to access the asylum system in Canada or the U.S.

Until the Asylum Annex is fully and systematically

implemented, requests for information are done on a

case-by-case basis. Requests from the U.S. are made

directly to CIC or CBSA, which request information on

individual asylum-seekers from the IRB.

In April 2007, Canada, the U.S., the U.K. and Australia

signed the Hunter Valley Declaration. Under this

agreement, CIC and CBSA agreed to work towards the

systematic exchange of biometric data with the three

cited countries. Canada, the U.S., the U.K., Australia and

New Zealand are engaged in discussions on multilateral

data sharing on asylum, visa and other programmes, with

the goal of improving programme integrity outcomes.

7.5 Single Procedure

Prior to the coming into force of IRPA, refugee status was

determined solely on the grounds outlined in the 1951

Convention. Since the coming into force of IRPA in June

2002, protection is allowed on the grounds of the 1951

Convention (s.96 of IRPA) and the Convention against

Torture (s.97 of IRPA). Asylum-seekers need make

only one application for protection in order to obtain

Convention protection or be determined to be a person

in need of protection. The combination of Convention

refugee and additional grounds for protection has been

referred to as the “consolidated grounds.” Both sets of

protection afford the same beneﬁ ts to those determined

to be in need of protection.

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8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

Asylum-seekers appearing before the IRB can represent

themselves at a hearing or have the assistance of

counsel throughout the process. Also, persons such

as family members, friends or volunteers who receive

no remuneration for doing so may act as counsel to the

asylum-seeker. However, a counsel who charges a fee

must be a lawyer or a licensed immigration consultant

with membership in good standing in the Canadian

Society of Immigration Consultants (CSIC).

Asylum-seekers may contact the legal aid ofﬁ ce in the

province where their claim is being heard for assistance

during the procedure at the IRB and further on at the

appeal stage. There are also local community groups

that offer counsel and other support services.

8.1.2. Interpreters

Asylum-seekers can indicate on their PIF whether they

require an interpreter for their hearing. Interpreters are

provided at the expense of the IRB.

8.1.3. NGOs

NGOs do not have a formal role in the asylum process.

They may, however, provide information and orientation

to individual asylum-seekers, on a voluntary basis or

according to the level of funding from non-federal sources.

8.2 Reception Beneﬁ ts

Persons determined to be eligible to make an asylum

claim are issued a Refugee Protection Claimant

Document, which identiﬁ es them as persons in the

asylum procedure. Refugee claimants are asked to

provide this document in order to be entitled to apply

for a variety of services such as the services detailed

in the sections below.

8.2.1. Accommodation

Accommodation for asylum-seekers is a provincial

responsibility and therefore programmes may vary

depending on the province in which the claim is made.

There is no federal programme in place to provide

accommodation to asylum-seekers in Canada.

While accommodation under provincial programmes is

not free of charge, the rental cost is heavily subsidised.

As well, asylum-seekers may apply for social assistance,

which could indirectly subsidise housing costs, as well

as cover other living costs.

8.2.2. Social Assistance

Provincial and municipal governments provide

social assistance to asylum-seekers to cover basic

necessities. Social assistance rates vary from province

to province.

8.2.3. Health Care

Asylum-seekers whose claims are being heard at the

IRB, who are unable to pay for essential and emergency

health care and who are not covered by a public or

private health insurance plan may apply to CIC for

interim federal health (IFH) care coverage. IFH covers

emergency health care services.

Box 5:

Cooperat ion with UNHCR

In accordance with IRPA, representatives of the UNHCR monitor the process relating to refugee protection in Canada,

and observe RPD hearings without limitation, consistent with the UNHCR’s duty and right to observe and monitor

the refugee status determination process. Also as part of its supervisory responsibility, the UNHCR consults with

CIC on legislative and procedural developments, comments on policy and practice, and makes demarches with the

government, when necessary and appropriate.

When Canada and the U.S. signed the Safe Third Country Agreement (STCA), the UNHCR was invited to monitor

implementation of the Agreement. The UNHCR accepted this invitation, submitting a written report on the ﬁ rst

year’s implementation to both Canada and the U.S., and subsequently undertaking regular visits to assess access

to territory and procedures. The UNHCR’s operations in relation to the STCA involve close cooperation with CBSA

ofﬁ cials who provide unhindered access to ports of entry and asylum-seekers.

The UNHCR conducts regular monitoring of detention facilities where persons of concern, including asylum-seekers,

are detained.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

8.2.4. Education

School-aged children are eligible to attend school.

Once they have been determined eligible to make a

refugee claim, and while awaiting the determination

of their claims, asylum-seekers may also beneﬁ t from

provincially funded language training programmes.

8.2.5. Access to Labour Market

Asylum-seekers may apply for authorisation to work.

Usually only persons who cannot live without public

assistance are eligible for employment authorisation.

Work permits are granted for a period of 24 months to

asylum-seekers whose identity has been established

and who have passed the medical exam.

8.2.6. Family Reuniﬁ cation

There is no availability of family reuniﬁ cation for asylum-

seekers. However, persons who have been determined

to be Convention refugees or protected persons may

apply for permanent residence. They may also include

family members who are located in Canada or overseas

in their application for permanent residence.

8.2.7. Access to Beneﬁ ts by Rejected

Asylum-Seekers

Pending removal, rejected asylum-seekers may

continue to have access to social assistance provided

by provincial governments until the date of departure

from Canada. Those with a work permit may also

continue to work. In addition, they remain eligible for

interim federal health care coverage, while school-aged

children are eligible to receive education. Those who

are subject to a temporary stay of removal (TSR) are

also eligible for the above-named beneﬁ ts.

9 Status and Permits

Granted outside the

Asylum Procedure

9.1 Humanitarian and

Compassionate Grounds

According to section 25 of IRPA, the Minister and

his delegates have the authority to grant exemptions

from requirements of the Immigration and Refugee

Protection Act or grant permanent resident status to

foreign nationals who are otherwise inadmissible, where

doing so is justiﬁ ed on humanitarian and compassionate

(H&C) grounds.

Any foreign national, including a rejected asylum-seeker,

who is inadmissible or does not meet the requirements

of the Act may apply for H&C consideration. IRPA

requires that all H&C requests made from within Canada

be considered. H&C is granted on a discretionary

basis, taking into consideration any relevant factors,

such as the individual’s establishment in Canada,

general family ties to Canada, the best interests of

any children involved, risk upon return, the hardship of

having to apply for permanent residence from abroad,

as well as any other issues raised by the applicant. An

application for permanent residence on H&C grounds

does not put into effect a stay of removal; however,

most applications for H&C consideration are examined

prior to the applicant’s removal.

A negative H&C decision cannot be appealed; however,

applicants may ask the Federal Court to review the

decision.

9.2 Pre-Removal Risk Assessment

(PRRA)

Anyone who has been given notice that his or her

removal order is being enforced, including failed asylum-

seekers, may ask for a pre-removal risk assessment

(PRRA) by CIC. This paper-based assessment is done

on the basis of the 1951 Convention and on the basis

of danger of torture or risk to life or of cruel and unusual

treatment or punishment. An application for PRRA

suspends the person’s removal.

When an application is made, a PRRA ofﬁ cer reviews

the documents provided by the applicant and any new

evidence that was not presented at the asylum hearing.

Only in some cases are applicants asked to appear at

an interview with the PRRA ofﬁ cer, generally for reasons

of credibility.

Persons who are not eligible for pre-removal risk

assessment include:

• Persons who are not eligible for a hearing at the

IRB for r

easons of having left a safe third country

• A repeat asylum-seeker who is being removed

om Canada less than six months after he or

she previously left the country

• A person who has been granted Convention

efugee status by a country to which he or she

can return.

When a claim for PRRA is accepted, the successful

applicant may receive the status of “protected person”

and apply for permanent residence. If the claim is

rejected, the removal order again comes into effect.

Rejected applicants may apply to the Federal Court for

a review of the decision.

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In the event that the individual’s circumstances fail to

meet the threshold either for a positive PRRA ruling or

for a stay of the removal order, there is still recourse

in IRPA to staying the removal under the principle of

non-refoulement.

The Supreme Court of Canada has ruled that under

exceptional circumstances the possibility exists

whereby an individual, if proven to pose an immediate

security threat to Canada, could be expelled even where

a substantial risk of torture exists. However, Canada

has never invoked this exception to remove anyone

where a Canadian tribunal has found a substantial risk

of torture.

9.3 Obstacles to Return

A removal order may be suspended if non-protection-

related circumstances in a particular case warrant

such a halt. Such a suspension may be ordered by

the Immigration Appeal Division of the IRB, any other

competent court, or the Minister, in light of civil unrest,

natural disaster or other such generalised threats in the

country of origin.

9.4 Temporary Protection

While Canada does not have a temporary protection

regime in place, the IRPA Regulations provide the

Minister of Public Safety with discretion to “impose a

stay on removal orders with respect to a country or a

place if the circumstances in that country or place pose

a generalised risk to the entire civilian population.” This

stay of removal is subject to exceptions for serious

criminals and security risk cases.

When a suspension of removal order is issued, affected

individuals are entitled to hold a work or student

permit; however, these documents do not confer any

status. The majority of individuals under a temporary

suspension of removal in Canada are or have been

refugee claimants.

Individuals under a temporary suspension of removal

may apply for reconsideration, based on humanitarian

and compassionate grounds, to remain in Canada

permanently.

9.5 Regularisation of Status over

Time

A removal may be suspended if a decision is made to

lay aside the inadmissibility ruling and grant individual

permanent residence status based on either a PRRA

ruling or an application for admission on H&C grounds.

However, there is no programme in Canada currently

that results in automatic regularisation over time.

9.6 Regularisation of Status of

Stateless Persons

Stateless persons whose application for refugee

protection has been rejected have access to

consideration, under Humanitarian and Compassionate

grounds (H&C), and to a pre-removal risk assessment

(PRRA), as do other unsuccessful claimants. All foreign

nationals, regardless of whether they are stateless, may

also be eligible for a Temporary Resident Permit (TRP),

which may eventually lead to permanent residence. See

below for more information on the TRP.

A stateless person on whom a removal order is in

effect may, under IRPA, be removed by the CBSA to

the country from which he or she came; the country in

which he or she last permanently resided; or the country

in which he or she was born. Provided that sufﬁ cient

travel documents are procured to facilitate removal,

the conditions for suspending a removal order would

be the same if the person were a citizen.

In the event that sufﬁ cient travel documents cannot

be procured, the removal is de facto suspended until

either such a time as they can be provided or as the

individual’s status is regularised in Canada.

9.7 Temporary Resident Permits

(TRP)

Under section 24(1) of IRPA, a CIC or CBSA ofﬁ cer

may issue a temporary resident permit (TRP) to an

inadmissible foreign national if the ofﬁ cer is of the

opinion that it is justiﬁ ed in the circumstances and if

there is little or no risk to Canadian society. A TRP,

however, can be cancelled at any time and does not

stay a removal order.

A TRP may also be issued under the Protected

Temporary Resident Class to individuals who have been

determined to be refugees outside Canada and who are

in urgent need of protection.

10 Return

Persons on whom a removal order is in effect are

required to leave the country within 30 days of its

issuance. The Canada Border Services Agency (CBSA)

has responsibility for the implementation of the removal

order.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

10.1 Pre-departure Considerations

When an individual has exhausted the appeals process,

he or she is informed of the decision to effect the

removal order. Measures may be taken at this time to

ensure that the individual complies with the order.

Where required, appropriate travel documents and

visa(s) are obtained to facilitate the return journey.

Where required, escorts are provided and ofﬁ cials in any

country through which the individual may be transiting

are informed accordingly.

Suitable arrangements, including the provision of

qualiﬁ ed escorts, are made in the case of minors or

medical cases.

10.2 Procedure

Canada does not have an assisted voluntary return

programme for persons returning to their country of

origin.

10.3 Freedom of Movement/

Detention

The degree of freedom of movement that an individual

has during the return process varies from case to case.

An individual assessed as voluntarily complying with

the removal order, who does not pose either a ﬂ ight

or a safety risk is not subject to signiﬁ cant movement

restrictions or provided with escorts. However, where

there are concerns regarding compliance, measures,

including detention and the provision of escorts to

the ﬁ nal destination, may be taken to ensure that the

individual is returned.

10.4 Readmission Agreements

As outlined above, Canada has a readmission

agreement with the U.S. as relates to third country

nationals.

11 Integration

Some provinces have assumed responsibility for the

design, administration and delivery of settlement (or

integration) programmes and services that have federal

funding. In the remainder of the provinces, settlement

programmes and services are administered by CIC and

delivered through a network of CIC ofﬁ ces, community

organisations, educational institutions and the private

sector. CIC remains committed to providing comparable

and accountable settlement services across Canada.

CIC funds Service Providing Organisations (SPOs) to

deliver integration or settlement programmes.

The same integration services are largely available to

protected persons and resettled refugees, although

resettled refugees have access to the Resettlement

Assistance Programme tailored speciﬁ cally to their

needs.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

CAN

12 Annexe

12.1 Selections from the Immigration and Refugee Protection Act 2002

PART 1

IMMIGRATION TO CANADA

DIVISION 3

ENTERING AND REMAINING IN CANADA

25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements

of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and

may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation

of this Act if the Minister is of the opinion that it is justiﬁ ed by humanitarian and compassionate considerations

relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.

(…)

PART 2

REFUGEE PROTECTION

DIVISION 1

SECTION 1 REFUGEE PROTECTION, CONVENTION REFUGEES AND PERSONS IN NEED OF PROTECTION

95. (1) Refugee protection is conferred on a person when

(a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa

application and becomes a permanent resident under the visa or a temporary resident under a temporary resident

permit for protection reasons;

(b) the Board determines the person to be a Convention refugee or a person in need of protection; or

(2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim

or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4).

96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race,

religion, nationality, membership in a particular social group or political opinion,

(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself

of the protection of each of those countries; or

(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by

reason of that fear, unwilling to return to that country.

97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality

or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally

(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention

Against Torture; or

13 Immigration and Refugee Protection Act, Bill C-11, 28 June 2002, available online on UNHCR Refworld at:

http://www.unhcr.org/refworld/docid/3d3ff708a.html [accessed 27 February 2009].

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if

(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,

(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals

in or from that country,

(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international

standards, and

(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of

protection is also a person in need of protection.

98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a

person in need of protection.

Cessation of Refugee Protection

108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in

need of protection, in any of the following circumstances:

(a) the person has voluntarily reavailed themself of the protection of their country of nationality;

(b) the person has voluntarily reacquired their nationality;

(d) the person has voluntarily become re-established in the country that the person left or remained outside of and

in respect of which the person claimed refugee protection in Canada; or

(e) the reasons for which the person sought refugee protection have ceased to exist.

(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred

to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

Principle of Non-refoulement

115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the

person may be returned shall not be removed from Canada to a country where they would be at risk of persecution

for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of

torture or cruel and unusual treatment or punishment.

(2) Subsection (1) does not apply in the case of a person

(a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger

to the public in Canada; or

(b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in

the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and

severity of acts committed or of danger to the security of Canada.

(3) A person, after a determination under paragraph 101(1)(e) that the person’s claim is ineligible, is to be sent to the

country from which the person came to Canada, but may be sent to another country if that country is designated

under subsection 102(1) or if the country from which the person came to Canada has rejected their claim for refugee

protection.

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

CAN

DIVISION 3 SECTION 3

PRE-REMOVAL RISK ASSESSMENT

Protection

112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the

regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named

in a certiﬁ cate described in subsection 77(1).

(2) Despite subsection (1), a person may not apply for protection if

(a) they are the subject of an authority to proceed issued under section 15 of the Extradition Act;

(b) they have made a claim to refugee protection that has been determined under paragraph 101(1)(e) to be ineligible;

period has not expired; or

(d) in the case of a person who has left Canada since the removal order came into force, less than six months have

passed since they left Canada after their claim to refugee protection was determined to be ineligible, abandoned,

withdrawn or rejected, or their application for protection was rejected.

(…)

113. Consideration of an application for protection shall be as follows:

(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose

after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected

in the circumstances to have presented, at the time of the rejection;

(b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;

96 to 98; (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the

factors set out in section 97 and

(i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are

a danger to the public in Canada, or

(ii) in the case of any other applicant, whether the application should be refused because of the nature and severity

of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada.

114. (1) A decision to allow the application for protection has

(a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and

(b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect

to a country or place in respect of which the applicant was determined to be in need of protection.

(…)

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

12.2 Additional Statistical Information

5,000

10,000

15,000

20,000

25,000

2008

20021997

Iran

India

Czech Republic

Sri Lanka

Pakistan

China

USA

Colombia

Haiti

Mexico

Figure 4:

Asylum Applications from Top Five Countries of Origin for Canada in 1997, 2002 and 2008

Convention Status*

Other

Authorisations

to Remain

Rejections Other Decisions**

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1992

17,605 60% 0 0% 9,915 34% 1,863 6% 29,383

1993

14,230 46% 0 0% 11,728 38% 4,936 16% 30,894

1994

15,286 60% 0 0% 6,538 26% 3,718 15% 25,542

1995

9,685 56% 0 0% 4,101 24% 3,369 20% 17,155

1996

9,625 44% 0 0% 7,074 32% 5,293 24% 21,992

1997

10,002 40% 0 0% 8,995 36% 5,713 23% 24,710

1998

12,930 44% 0 0% 10,254 35% 6,210 21% 29,394

1999

12,978 46% 0 0% 9,393 34% 5,608 20% 27,979

2000

13,999 48% 0 0% 10,205 35% 4,712 16% 28,916

2001

13,383 47% 0 0% 9,580 34% 5,473 19% 28,436

2002

15,459 46% 0 0% 11,509 34% 6,436 19% 33,404

2003

17,630 42% 0 0% 17,943 42% 6,826 16% 42,399

2004

15,948 40% 0 0% 19,056 47% 5,255 13% 40,259

2005

12,090 44% 0 0% 11,822 43% 3,328 12% 27,240

2006

9,296 47% 0 0% 8,132 41% 2,473 12% 19,901

2007

5,935 43% 0 0% 5,429 39% 2,486 18% 13,850

2008

7,575 42% 0 0% 6,797 38% 3,747 21% 18,119

*Starting in 2002, data reﬂ ect decisions to grant Convention refugee status and decisions to grant complementary protection,

both of which lead to a single status (“protected person”).

**Other decisions may include withdrawn claims, abandoned claims or claims otherwise resolved.

Figure 5:

Decisions Made at the First Instance, 1992-2008

Denmark

DEN

101 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

103 - NATIONAL LEGAL FRAMEWORK

103 - INSTITUTIONAL FRAMEWORK

103 - PRE-ENTRY MEASURES

104 - ASYLUM PROCEDURES

108 - DECISION-MAKING AND STATUS

111 - E

FFICIENCY AND INTEGRITY MEASURES

112 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

114 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

115 - R

ETURN

116 - INTEGRATION

117 - ANNEXE

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DEN

1 Background: Major Asylum

Trends and Developments

Asylum Applications

In the early 1980’s, Denmark was receiving fewer than one

thousand asylum claims per year. In 1984, however, there

was a signiﬁ cant increase, when over 4,000 claims were

received. The number of annual claims ﬂ uctuated between

4,000 and 9,000 between 1985 and 1991. Numbers

peaked in 1992 and 1993 at some 14,000 annual claims,

then decreased signiﬁ cantly to between 5,000 and 6,000

between 1994 and 1998, and peaked again in 1999 and

2001 with more than 12,000 claims. Since 2002, numbers

have decreased signiﬁ cantly and in 2008, some 2,000

claims were received.

Top Nationalities

From 1992 to 2001, the majority of asylum-seekers

arriving in Denmark hailed from Somalia, Iraq, the former

Yugoslavia, and Afghanistan. Stateless Palestinians also

arrived in large numbers. Since then, the top countries

of origin have not changed signiﬁ cantly, with increasing

numbers of claims received from Russia and Iran and

fewer claims from Somalia.

Important Reforms

On 17 January 2002, the Government presented its new

“Policy for Foreign Nationals” which, among other things,

rested on the fundamental consideration that the policy for

foreign nationals must honour Denmark’s treaty obligations.

Act No. 365 of 6 June 2002 (Bill No. L 152 of 28 February

2002) includes amendments to the Aliens Act and the

Marriage Act that were introduced in accordance with

the Government’s new policy for foreign nationals.

Under the Act, the “de facto refugee” concept was

abolished. Residence permits may now be issued only to

asylum-seekers who are eligible for protection according

to criteria set out in international legal instruments,

such as the 1951 Convention relating to the Status of

Refugees (1951 Convention), the United Nations (UN)

Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment (CAT), and the

European Convention on Human Rights (ECHR).

The Act also abolished the possibility to apply for asylum

in Denmark from a Danish diplomatic mission abroad.

Act No. 60 of 29 January 2003 (Bill No. L 23 of 2

October 2002 regarding the processing of claims made

by unaccompanied minors) includes an amendment

that puts into law the standard administrative practice

of granting residence permits to unaccompanied minor

asylum-seekers (UAMs). The amendment also provides

that all unaccompanied minors seeking asylum will be

appointed a personal representative to safeguard their

interests during the procedure as well as an attorney,

if the case is being dealt with under the manifestly

unfounded procedure. According to the amendment,

* Prior to 1998, data was gathered based on the number of persons whose applications were under active consideration.

From 1998, data includes all as

lum a

lications made in Denmark.

9,299

14,347

12,512

2,380

333

2,726

4,609

5,092

1,960

2,000

4,000

6,000

8,000

10,000

12,000

14,000

16,000

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Figure 1:

Evolution of Asylum Applications* in Denmark, 1983-2008

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

the Immigration Service must initiate a search for the

parents of unaccompanied minors seeking asylum.

Act No. 292 of 30 April 2003 (Bill No. L 157 of 29

January 2003 regarding a reform of the activation

and tuition efforts concerning adult asylum-seekers

etc. and the system of periodic cash payments to

asylum-seekers etc.) includes amendments that state

that asylum-seekers must carry out certain tasks at

the accommodation centre and take part in relevant

activities in order to maintain and strengthen the

asylum-seekers’ abilities. Furthermore, the amendment

introduced various levels of periodic support payments

to asylum-seekers depending on which stage of the

asylum process the applicant is at, the applicant’s

family relations, and the applicant’s fulﬁ lling of his or

her obligations at the accommodation centre.

Act No. 403 of 1 June 2005 (Bill No. L 79 B of 23 February

2005) changes the criteria for the selection of refugees

for resettlement (quota refugees), including both

refugees under the 1951 Convention and other persons

in need of protection. During the selection process,

greater emphasis is now placed on the potential of the

refugee to integrate into Danish society. Act No. 403

includes a requirement to provide additional information

on settling in Denmark and a pre-departure integration

course for resettled refugees.

More recently, reforms made to the reception of asylum-

seekers have been aimed at preparing rejected asylum-

seekers to return to, and reintegrate in, their countries

of origin. These changes were a consequence of the

evolution of the asylum situation in Denmark, namely

the decline in the number of applications received and

in the recognition rate.

Figure 3:

Top Five Countries of Origin in 2008

1 Iraq 563

2 Afghanistan 418

3 Iran 196

4 Russia 183

5 Syria 105

Regions of Origin Initiative

In 2003, the Regions of Origin Initiative was introduced

as part of Denmark’s international development

assistance policy.

The overall objective of this initiative is to help secure

access to protection and durable solutions for refugees

and internally displaced persons (IDPs) as close to their

country of origin as possible. Enhanced protection in

the regions of origin is believed to improve conditions

for refugees and IDPs, and thereby also diminish the

need for secondary movements.

The Regions of Origin Initiative was developed during the

same period that the United Nations High Commissioner

for Refugees (UNHCR) elaborated its “Framework for

Durable Solutions.” Thus, the initiative incorporates key

elements of the UNHCR approach. In addition, it draws on

aspects of cooperation within the European Union (EU).

The Regions of Origin Initiative is managed and

implemented by the Ministry of Foreign Affairs and includes

cooperation with the Ministry of Refugees, Immigration

and Integration Affairs on aspects of the programme

pertaining to Danish refugee and asylum policies.

500

1,000

1,500

2,000

2,500

3,000

3,500

4,000

4,500

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Iraq Afghanistan Iran

Figure 2:

Evolution of Applications from Top Three Countries of Origin for 2008

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

DEN

At the moment, the Regions of Origin Initiative supports

activities in nine countries: Kenya, Tanzania, Uganda,

and Zambia – which are all priority programme

countries for Danish bilateral assistance – as well as

in Afghanistan, Burundi, Iraq, Somalia and Sudan.

Furthermore, a number of regional programmes are

being implemented in partnership with the European

Commission and other EU Member States.

It is expected that by 2012, more than DKK two billion

(270

€ million) will have been committed to the Regions

of Origin Initiative.

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

The asylum procedure and the competencies of

asylum institutions are governed by the Aliens Act

(Consolidation Act No. 808 of 8 July 2008). The 1951

Convention has been transposed into Danish law

by reference. Relevant provisions of the European

Convention on Human Rights (ECHR) have also been

transposed into the Aliens Act by reference (Act on the

European Convention on Human Rights).

In accordance with the Protocol on the position of

Denmark, annexed to the Treaty of the European Union

and the Treaty establishing the European Community,

Denmark is not bound by the EU asylum acquis.

However, Denmark has a parallel agreement enabling

Denmark to take part in Council Regulation (EC) No

343/2003

and Council Regulation (EC) No 2725/2000.

2.2 Pending Reforms

In 2009, an expert group appointed by the government

will issue a report on asylum policy containing

recommendations primarily in the area of reception

of asylum-seekers. The group was created as part of

the Danish government programme following its re-

election in November 2007. The recommendations will

be based, in part, on a study of selected countries’

(Canada, Finland, Germany, the Netherlands, Norway,

Sweden, and UK) asylum policies drawn up by the

Ministry of Refugee, Immigration and Integration Affairs.

1 Council Regulation (EC) No 343/2003 of 18 February 2003

establishing the criteria and mechanisms for determining the

Member State responsible for examining an asylum application

lodged in one of the Member States by a third-country national

(Dublin II Regulation).

2 Council Regulation (EC) No 2725/2000 of 11 December 2000

concerning the establishment of “Eurodac” for the comparison of

ﬁ ngerprints for the effective application of the Dublin Convention

(Eurodac Regulation).

3 Institutional Framework

3.1 Principal Institutions

The Ministry of Refugee, Immigration and Integration

Affairs prepares and implements laws and administrative

regulations in the area of asylum, immigration, and

integration.

The Danish Immigration Service is a directorate under the

Ministry of Refugee, Immigration and Integration Affairs.

It processes applications for asylum at the ﬁ rst instance.

The Refugee Appeals Board is an independent body

responsible for hearing appeals of Immigration Service

decisions on asylum cases. It is the ﬁ nal avenue for appeal

in asylum cases where the decision of the Immigration

Service may be contested. Under the so-called manifestly

unfounded procedure, the Danish Refugee Council (a

non-governmental organisation (NGO)) cooperates with

the Immigration Service in helping to determine that a

case is indeed manifestly unfounded.

The National Commissioner for the Police is responsible

for registering new applicants and establishing their

identity and travel route. The National Commissioner of

the Police moreover has the responsibility of returning

rejected asylum-seekers.

The municipalities are responsible for ensuring the

integration of refugees and other persons granted

international protection in Denmark.

3.2 Cooperation between

Government Authorities

4 Pre-entry Measures

To enter Denmark, a foreign national must have a valid

travel document such as a passport and, if applicable,

a visa issued by Denmark or one of the other Schengen

States.

4.1 Visa Requirements

Denmark is a party to the Schengen Agreement and as

such is bound by the common list of countries laying

down the nationalities subject to visa requirements.

Danish diplomatic and consular posts have the

competence to issue “bona ﬁ de” visas in simple cases,

while more complicated cases, including all cases that

the diplomatic mission considers potential refusals,

are sent to the Immigration Service for its decision.

Negative decisions of the Immigration Service on a visa

application may be appealed to the Ministry.

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4.2 Carrier Sanctions

Carriers that bring to Denmark a foreign national who

upon his or her entry or transit at a Danish airport is not

in possession of the necessary travel documents and

visa are liable to a ﬁ ne; this provision does not apply

to entry from a Schengen country.

4.3 Interception

In addition to carrier sanctions, Denmark has at various

times posted immigration liaison officers abroad

who have assisted the local authorities with, among

other tasks, the authentication and control of travel

documents for persons travelling to Denmark.

Moreover, the police can ask for identity and proof of

legal residence of foreign nationals present in Denmark.

This is sometimes done as part of coordinated

interagency control activities carried out at business

premises (such as restaurants).

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

A foreign national may make a claim for asylum at one

of the following locations:

• In person at a police station, including the police

station located inside Copenhagen Airport

• In person at the Sandholm accommodation centre

• At the Sandholm Centre run by the Immigration

Service, or the Police, by submitting a written

application, either personally or with the

assistance of an attorney

• At the municipality, in which case the National

Commissioner for the Police will be contacted

in or

der for the application to be channeled into

the regular asylum procedure.

5.1.1. Outside the Country

Applications at Diplomatic Missions

Applications for asylum may not be made from outside

of Denmark.

Resettlement/Quota Refugees

Denmark has in place an annual resettlement

programme with a ﬂ exible quota of 1,500 places to be

met over a three-year period.

Criteria for Resettlement

Persons being resettled must fulﬁ ll the same conditions

asylum-seekers are obliged to meet in order to be

granted a residence permit in Denmark. For resettlement

purposes, a residence permit may be issued to a person

who is outside of his or her country of origin and who

meets the following criteria:

• The person falls within the provisions of the 1951

Convention

• The person risks being subjected to the death

penalty or to tortur

e or inhuman or degrading

treatment or punishment if returned to his or her

country of origin, or

• The person is in such a position that essential

considerations of a humanitarian natur

conclusively make it appropriate to grant the

application.

Linguistic abilities, educational background, work

experience, family situation, age and motivation are also

taken into consideration when selecting refugees for

resettlement. The Immigration Service has responsibility

for making ﬁ nal decisions on selection.

Procedures

At the beginning of each year, the Minister for

Refugee, Immigration and Integration Affairs,

upon recommendations made by the Immigration

Service, makes decisions on the overall allocation of

approximately 500 quota places within the different

categories (geographical, emergency and medical)

and on the destinations of selection missions for

that year.

Approximately 400 of the 500 persons are selected

by the Immigration Service following interviews on

resettlement missions among refugees identiﬁ ed by

the UNHCR. The remaining 100 persons are identiﬁ ed

among medical or urgent cases presented by the

UNHCR, usually on a dossier basis.

Family members of refugees are not generally included

in the resettlement quota but may instead apply for

family reuniﬁ cation, once the refugee has been resettled

in Denmark.

5.1.2. At Ports of Entry

There are no separate asylum procedures for persons

applying for asylum at ports of entry or inside the

territory. When a foreign national arrives in Denmark

and applies for asylum, the National Police will interview

the person and establish his or her travel route. An

assessment will then take place to determine whether

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DEN

Denmark is responsible for examining the claim under

the Dublin II Regulation. Thereafter, the asylum-seeker

is subject to the normal procedure.

5.1.3. Inside the Territory

Responsibility for Processing the Claim

The Dublin System

Application and Procedure

The National Police is responsible for determining the

travel route of the asylum-seeker when an asylum

claim is made. The Immigration Service will then make

a determination regarding Denmark’s responsibility for

examining the claim under the Dublin II Regulation.

If another State party to the Dublin II Regulation is

responsible for handling the application, the Immigration

Service will request that the country assume

responsibility for processing the asylum-seeker’s claim.

If the state in question agrees to do so, the asylum-

seeker is transferred to that country for processing.

The initial process of determining whether an application

for asylum should be processed in Denmark or another

EU country takes up to three months to complete,

although it may in some cases take as long as six months.

Freedom of Movement/Detention

The freedom of movement of asylum-seekers is not

restricted during the asylum procedure. However,

asylum-seekers may be detained if detention is

necessary to ensure the implementation of a transfer

under the Dublin II Regulation. Detention is used only

if measures such as the deposit of a passport or other

travel document is deemed to be insufﬁ cient.

Conduct of Transfers

Transfers are carried out either voluntarily or with police

escort.

Suspension of Dublin Transfers

The Immigration Service and the Ministry may make a

decision to suspend transfers to another State party to

the Dublin II Regulation. As at this writing, Denmark has

decided to implement a temporary suspension on the

transfer of unaccompanied minors to Greece.

Review/Appeal

A decision by the Immigration Service to transfer an

asylum-seeker under the Dublin II Regulation may be

appealed to the Ministry. The appeal does not have

suspensive effect.

Application and Admissibility

Application

Asylum-seekers who gain entry into Denmark are

interviewed and photographed and have their

ﬁ ngerprints taken by the police in order to determine

their identity, nationality and travel route. The asylum-

seeker will be asked by the Immigration Service to

complete an application form stating the reasons for his

or her asylum request. An interview with the Immigration

Service is then scheduled.

Applications for asylum under the 1951 Convention are

treated in the same way as applications for subsidiary

protection (protected status) and examined using the

same procedure.

Admissibility

If the Immigration Service decides, under the Dublin

II Regulation, that an asylum application may be

processed in Denmark, the Immigration Service will

interview the applicant and proceed with making a

determination on the claim.

In addition to applying the Dublin II Regulation, Denmark

maintains a regularly updated list of safe third countries.

Based on this list, the Immigration Service may decide

not to examine an asylum claim if the asylum-seeker

has travelled to Denmark directly from one of the

countries on the list. In such cases, the asylum-seeker

is required to return to the safe third country.

Accelerated Procedure

In certain cases asylum applications may be processed

according to an expedited version of the “manifestly

unfounded procedure,” which is described below. This

procedure may be applied to cases in which the asylum-

seeker is found to be from a country in which it is unlikely

that he or she would risk persecution if returned.

Under the expedited manifestly unfounded procedure,

the asylum-seeker will not be asked to fill out an

application form; instead, he or she is quickly referred

for an interview with the Immigration Service. The

Danish Refugee Council, a non-governmental

organisation (NGO) will then give a statement on the

case, and the Immigration Service will aim to come to

a decision within a few days. If the Danish Refugee

Council agrees with the Immigration Service that the

application is manifestly unfounded, the decision of the

Immigration Service to reject the claim for asylum may

not be appealed.

3 See the section below on Safe Country Concepts for more

information on the application of this policy.

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If the Refugee Council disagrees with the decision of the

Immigration Service, the Immigration Service may maintain

– as is most often the case – its rejection but will refer the

case to the Refugee Appeals Board for a ﬁ nal ruling.

Normal Procedure

Under the normal procedure, the Immigration Service

interviews the asylum-seeker with the assistance of

an interpreter. Following the interview, the Immigration

Service will make a decision on the claim, based on

the asylum-seeker’s statements and information on

conditions in the country of origin.

Manifestly Unfounded Procedure

In a small number of cases, the Immigration Service

may determine at the outset that an asylum claim is

manifestly unfounded and that the asylum-seeker is

therefore not eligible for asylum. According to Section

53 b (1) of the Aliens Act, the Immigration Service may

determine that a claim is manifestly unfounded in one

of the following cases:

• The identity claimed by the applicant is

manifestly incorr

ect

• It is manifest that the circumstances invoked by the

applicant cannot lead to the granting of a residence

permit under section 7 of the Aliens Act

• It is manifest that the circumstances invoked

by the applicant cannot lead to the granting of

a r

esidence permit under section 7 according

to the practice of the Refugee Appeals Board

• The circumstances invoked by the applicant

e in manifest disagreement with general

background information on the conditions in the

applicant’s country of origin or former country

of residence

• The circumstances invoked by the applicant

e in manifest disagreement with other speciﬁ c

information on the applicant’s situation

• The circumstances invoked by the applicant must

be deemed manifestly to lack credibility, including

as a consequence of the applicant’s changing,

contradictory or improbable statements.

Such cases are sent to the Danish Refugee Council,

which will provide a statement on the case following an

interview with the applicant by the Refugee Council. If it

agrees with the Immigration Service that the application

is manifestly unfounded, the application will be rejected

by the Immigration Service without a right of appeal.

If the Refugee Council does not agree that the claim

4 See the provisions contained in section 7 of the Aliens Act in the

annexe to this chapter.

is manifestly unfounded, the Immigration Service may

maintain – as is most often the case – its rejection but

will refer the case to the Refugee Appeals Board for a

ﬁ nal ruling.

Cases that, in the opinion of the Refugee Council, are

not manifestly unfounded, are examined using a written

procedure by only the chairman of the Refugee Appeals

Board or a deputy chairman, unless there is reason to

believe that the Board will change the decision made by

the Immigration Service. If there is a possibility that the

Board will reverse the decision, the case is examined by

a full three-member board with a personal appearance

by the applicant.

The Immigration Service will reject an application only

after a full ﬁ rst instance procedure has been completed,

including a normal asylum interview.

Review/Appeal of Asylum Decisions

Manifestly unfounded cases aside, a negative decision

on an asylum application at the first instance is

automatically subject to appeal before the independent

Refugee Appeals Board. The asylum-seeker will

normally be required to participate in a hearing. An

attorney will be appointed to represent the applicant’s

interests at the expense of the government. The

decisions of the Refugee Appeals Board are ﬁ nal.

If the Refugee Appeals Board agrees with the decision

of the Immigration Service, the asylum-seeker must

leave Denmark immediately.

If the Refugee Appeals Board does not agree with

the decision of the Immigration Service, the asylum-

seeker is normally granted a residence permit either as

a Convention refugee or as a person granted protected

status (subsidiary protection).

Freedom of Movement during the

Asylum Procedure

Detention

If imposing reporting obligations or other measures

is not enough to ensure efﬁ cient examination of the

asylum application or removal from Denmark, an

asylum-seeker may be detained during the procedure

if he or she, through his or her behaviour, essentially

obstructs the procuring of information for the case by:

• Without reasonable cause, repeatedly failing

to appear for interviews with the police or the

Danish Immigration Service, to which he or she

has been summoned

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• Failing to disclose information on his or her

identity, nationality or travel route

• Making obvious misrepresentations thereon or

• Otherwise not assisting with procuring

information for the case.

The decision to detain an asylum-seeker is taken by

the National Police whose decision must be approved

by the Courts. The Courts may decide to uphold the

detention for a maximum period of four weeks; however,

at the end of the four-week period, the police may ask

the courts to extend the detention for another four-week

period. There is no statutory maximum period in this

connection. The detention, including its duration, must

be considered to be proportional to the reasons for

detention in order to be upheld by the courts.

Reporting

Reporting obligations may be required of an asylum-seeker

if this is deemed necessary for ensuring the presence of the

asylum-seeker or his or her cooperation in the examination

of the claim. Decisions on reporting obligations may be

made by the Police in the following cases:

• The asylum-seeker is not cooperating on

providing information for the examination of

the claim

• Without reasonable cause, the asylum-seeker

fails to appear for an interview with the

Immigration Service or the Police to which the

person in question has been summoned

• The person has exhibited violent or threatening

behaviour towar

ds staff or other residents of

an accommodation centre where he or she is

residing.

Repeat/Subsequent Applications

An asylum-seeker who has received a ﬁ nal negative

decision on his or her claim is under the obligation

to leave Denmark. Prior to departure, however, an

asylum-seeker may make a request to have his or

her claim reopened for consideration. A claim will be

reopened if the applicant can show that reasons, such

as developments in the country of origin or sur place

considerations, exist to reopen the claim.

There is no limit to the number of times a rejected

asylum-seeker can request a reopening of his or her

claim.

A person who has previously received a ﬁ nal negative

decision on an asylum claim in Denmark and has

returned to his or her country of origin may, upon re-

entry in Denmark, ﬁ le a new application for asylum.

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

While Denmark does not have a safe country of origin

policy, the Immigration Service, the National Police and

the Danish Refugee Council together are responsible

for drawing up a list of countries, based upon which

the expedited version of the manifestly unfounded

procedure, described above (see Accelerated

Procedure), may be applied.

Asylum Claims Made by EU nationals

Asylum claims made by EU citizens are assessed

on their individual merits. The cases are generally

examined under the expedited version of the manifestly

unfounded procedure.

5.2.2. First Country of Asylum

A residence permit on the basis of refugee status or

protected status (subsidiary protection) can be refused

if the applicant has already obtained protection in

another country, or if the foreign national has close ties

with another country where he or she is deemed to be

able to obtain protection.

Such a decision may be taken by the Immigration

Service as part of its normal examination of an

application for asylum and may be appealed to the

Refugee Appeals Board like other asylum decisions of

the Immigration Service.

5.2.3. Safe Third Country

The Ministry, after a hearing with the Immigration

Service and the National Police, regularly updates a

list of safe third countries to which an asylum-seeker

may be removed (without consideration of his or her

application for asylum), if he or she has travelled to

Denmark directly from one of these countries.

The decision to return an asylum-seeker to a safe third

country is taken by the Immigration Service. In practice,

it is often the Police that will present the decision to the

asylum-seeker at the airport after having consulted the

Immigration Service.

If the decision is immediately enforceable, the

person may be detained at the airport pending the

implementation of return to the safe third country. If,

in an individual case, there are reasons to believe that

removal to a third country is not safe, the Immigration

Service will examine the application on its merits.

If deemed necessary and if other measures such as

deposit of travel documents are deemed insufﬁ cient,

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an asylum-seeker may be detained pending the

implementation of return to the safe third country. A

reporting requirement may also be imposed.

A decision by the Immigration Service to return an

asylum-seeker to a safe third country may be appealed to

the Ministry. The appeal does not have suspensive effect.

5.3 Special Procedures

5.3.1. Unaccompanied Minors

Procedures

Unaccompanied minors (UAMs) must meet the same

conditions as other asylum-seekers in order to have their

application processed. However, UAMs are considered

a particularly vulnerable group. They will be put through

the normal asylum procedure only if they are deemed

mature enough to understand the procedure. UAMs

over the age of 15 are generally considered to have the

required level of maturity, but the decision on maturity

is taken on a case-by-case basis.

Every UAM who makes an asylum claim is given a personal

representative. The representative offers support during

the procedure, for example, by being present at the

interview. Interviews are conducted by specially trained

staff. If a minor’s case is processed according to the

manifestly unfounded procedure, the Immigration Service

appoints an attorney to represent the minor.

Age Assessment

If there is any doubt about the age of the minor, a

voluntary medical examination may be carried out. This

may consist of dental x-rays, x-rays of the left hand

and a general medical examination. The information

gathered by medical experts is sent to the Medico-

Legal Council, which then provides a statement on the

minor’s age.

Decisions

If the Immigration Service assesses that a UAM does

not have the required level of maturity to undergo the

asylum procedure, he or she will be granted a residence

permit without his or her application being processed.

If the asylum claim is refused, the minor may be granted

a residence permit, if it is determined that the child

would in fact be placed in an emergency situation if

returned to the country of origin owing to the lack of

an adequate support network in the form of family or

public assistance.

If a UAM is granted asylum, he or she receives a

residence permit valid initially for a period of seven

years. The permit is renewable. If a UAM is granted

any other type of residence permit, the permit is initially

valid for a period of two years and is renewable.

Appeal

If the appeal against the decision to not grant a

residence permit under section 9 c (3) of the Aliens Act

is submitted less than seven days after the Immigration

Service’s decision, the UAM may stay in Denmark

during the appeal procedure. However, if the appeal is

submitted after this time period has elapsed, it will be

processed, but the date of removal will not be affected.

Figure 4:

Total Applications Made by Unaccompanied

Minors, 2001-2008

128

109

107

279

239

137

159

100

150

200

250

300

2001

2002

2003

2004

2005

2006

2007

2008

5.3.2. Temporary Protection

Denmark does not have in place a regime for granting

temporary protection.

5.3.3. Stateless Persons

The risk of persecution facing stateless asylum

applicants is determined by assessing the risk of

persecution in the applicant’s country of former habitual

residence. Stateless persons who are found not to be

in need of protection may be returned to the country

of former habitual residence.

6 Decision-Making and

Status

6.1 Inclusion Criteria

6.1.1. Convention Refugee

In order to be granted asylum in Denmark, an applicant

must qualify for refugee status under the 1951 Convention.

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6.1.2. Protected Status

In conformity with its international obligations under

ECHR and CAT, Denmark grants protected status to

persons who are at risk of the following if returned to

the country of origin:

• The death penalty

• Torture

• Inhuman or degrading treatment or punishment.

6.2 The Decision

Decisions taken at the ﬁ rst instance are reasoned and

given in writing. The decisions are translated into the

applicant’s mother tongue whenever possible. In certain

cases, including when a claim has been made by an

unaccompanied minor or when the applicant is illiterate,

the asylum-seeker is notiﬁ ed of the decision orally by

the police.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

The Immigration Service may take one of the following

decisions on an asylum claim:

• Grant Convention refugee status

• Grant protected status

• Refuse to grant Convention refugee status and/

or r

efuse to grant other types of protection

• Refuse to consider asylum claims made by a

person who can be r

efused entry and removed

to a safe third country

• Refuse to consider an application made by

a person who is to be transferr

ed to another

country responsible for examining his or her

application pursuant to the Dublin II Regulation.

Negative decisions are accompanied by a decision

on whether the applicant can – in line with Denmark’s

international obligations

– be returned by force to his

or her country of origin if he or she does not leave

Denmark voluntarily.

Convention refugees and persons granted protected status

obtain the same rights and beneﬁ ts, including assistance

pursuant to Danish social legislation, cash benefits,

housing subsidies, education, family reuniﬁ cation, and

the possibility to apply for a permanent residence permit.

These beneﬁ ts correspond to the beneﬁ ts available to

Danish citizens and permanent residents.

5 As per section 31 of the Aliens Act.

6.4 Exclusion

An asylum-seeker cannot be issued a residence permit

as a refugee or as a person with protected status under

any of the following circumstances:

• The person is deemed a danger to national

security

• The person is deemed a serious threat to public

der, safety or health

• The person is deemed to fall within Article 1F of

the 1951 Convention.

A for

eign national cannot, unless particular reasons

make it appropriate, including regard for family unity, be

issued a residence permit as a refugee or as a person

with protection status as a rule, if:

• The person has been convicted abroad of

an of

fence that could lead to expulsion (in

accordance with the provisions on expulsion

for crimes, etc.), if his or her case had been

heard in Denmark

• There are serious reasons for assuming that the

person has committed an of

fence abroad which

could lead to expulsion (in accordance with the

provisions on expulsion for crimes, etc.)

• Circumstances otherwise exist that could lead

to expulsion (in accor

dance with Part IV of the

Danish Aliens Act dealing with expulsion)

• The person is not a national of a Schengen

country or a Member State of the Eur

opean

Union, and an alert has been entered in the

Schengen Information System in respect of

the person for the purpose of refusal of entry

pursuant to the Schengen Agreement, or

• Because of a communicable disease or serious

mental disor

der the person must be deemed

potentially to represent a threat or cause

substantial inconvenience to those around him

or her.

A person prohibited from entering Denmark in

connection with expulsion cannot be issued a residence

permit as a refugee or as a person with protection

status unless particular reasons make it appropriate,

including regard for family unity.

Decisions to exclude a person from refugee or protected

status are taken by the Immigration Service and may

be appealed to the Refugee Appeals Board. While the

Immigration Service does not issue removal orders, the

excluded person must leave Denmark, unless there

are other grounds for allowing the person to remain

in Denmark.

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6.5 Cessation

A residence permit issued to a refugee or person with

protected status lapses only when the person has

settled in his or her country of origin or has, of his or

her own free will, obtained protection in a third country.

A residence permit may no longer be valid if the person

has resided outside of Denmark for six months, or for

12 months, if the person has lived for more than two

years in Denmark.

A person whose residence permit would lapse for one

of the reasons stated above may make an application

to the Immigration Service to retain his or her

residence permit. The Immigration Service may make

a determination in favour of the person, depending on

the individual circumstances.

Decisions regarding cessation are taken by the

Immigration Service and may be appealed to the

Refugee Appeals Board.

6.6 Revocation

The Immigration Service may revoke or refuse to extend

a residence permit granted to a recognised refugee or

person with protected status for one of the following

reasons:

• The basis on which the permit was granted is

no longer applicable. For example, ther

e is no

longer a risk of persecution in the applicant’s

country of origin

• Evidence of fraud committed at the time of

application has since been uncover

ed (in other

words, if the residence permit would not have

been issued except for the fraudulent reasons,

the permit may be revoked)

• The person is considered a threat to national

security

, public order, safety or health

• The person is a war criminal, or has committed

a serious non-political crime outside Denmark

• The person has been convicted of a crime that

would warrant r

emoval if committed in Denmark.

When assessing whether a residence permit should

be revoked, the Immigration Service must take the

following factors into consideration:

• The person’s ties to Danish society, including

the duration of r

esidence in Denmark

• The person’s age, health, and other personal

cir

cumstances

• The person’s connection to the country of origin.

A person whose r

esidence permit is the subject of

a decision to revoke may appeal the decision to the

Refugee Appeals Board.

6.7 Support and Tools for

Decision-Makers

A decision-maker at the Immigration Service is

supported in his or her task by a number of tools,

including the UNHCR Handbook on Procedures and

Criteria for Determining Refugee Status, country of

origin information (COI) services, the jurisprudence

of the Refugee Appeals Board, reports on human

rights produced jointly by the Refugee Appeals Board

and the Immigration Service, and language analysis,

age determination tests, and medical reports, where

required. COI support services and language analysis

tools are highlighted below.

6.7.1. Country of Origin Information

The Documentation and Project Division of the Danish

Immigration Service is responsible for the collection of

information on conditions in asylum-seekers’ countries

of origin or countries of habitual residence. The research

team consists of country experts specialised in various

geographical desks.

As part of its research methodology, the Documentation

and Project Division undertakes several fact-ﬁ nding

missions every year. The purpose of undertaking fact-

ﬁ nding missions is to obtain valid, detailed and up-

to-date information that is not available from existing

written sources. Fact-finding missions are usually

undertaken in cooperation with national partners such

as the Danish Refugee Council or sister organisations

in other countries.

Every effort is made to ensure that the information

gathered on fact-ﬁ nding missions is accurate, current and

obtained from reliable and well-informed sources on the

ground. Great care is taken to ensure that a varied range

of sources is consulted in order to provide balanced

country of origin information to decision-makers.

Reports drawn up on the basis of fact-ﬁ nding missions

are published on the joint website of the Danish

Immigration Service and the Ministry (www.nyidanmark.

dk). Most reports are available in English.

6.7.2. Language Analysis

Language analysis is a service provided by external

consultants to decision-makers at the National

Commissioner of the Police or at the Immigration Service

who may decide that it is necessary to use language

analysis in order to assist with the determination of an

asylum-seeker’s nationality or region of origin.

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7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

Asylum-seekers who are above the age of 14 are always

ﬁ ngerprinted.

The fingerprints are stored in a special database

under the responsibility of the National Police. The

primary purpose of taking ﬁ ngerprints is to enable the

authorities to check whether an applicant has lodged a

claim for asylum in another state bound by the Dublin II

and Eurodac Regulations. In addition, ﬁ ngerprints are

used to establish the identity of asylum-seekers or, if

necessary, are used in connection with applications

for travel documents (such as to facilitate the return

of an asylum-seeker who has received a ﬁ nal negative

decision on his or her claim).

7.1.2. DNA Tests

DNA tests may be carried out at the request of decision-

makers of the Immigration Service if such tests would

assist in establishing the identity of an asylum-seeker

or his or her family ties.

7.1.3. Forensic Testing of Documents

Documents may be sent to the Police for forensic

testing if Immigration Service decision-makers believe

doing so would assist in authenticating documents

submitted by asylum-seekers in support of their claims.

7.1.4. Database of Asylum

Applications/Applicants

The Danish immigration authorities have in place a

database (“Udlændingeregisteret”) containing information

on foreign nationals who either have a case or have had

a case considered under the Aliens Act.

7.1.5. Visa Information System

The National Commissioner of Police has access to the

visa case handling systems (visa cases are not stored in

the above mentioned “Udlændingeregister”) and through

those systems may be able to ﬁ nd out whether an applicant

has lodged a visa application at a Danish diplomatic post

beforehand. With the rollout of the Visa Information System

(VIS), this control mechanism will become more valuable,

as biometric data will be entered into the systems, and

the police will be able to search for visa dossiers from all

Schengen states through access to the C-VIS database.

7.2 Length of Procedures

There is no time limit imposed on persons to make an

application for asylum after their arrival in Denmark.

However, Danish authorities may reject a person at the

border only within the ﬁ rst three months of his or her arrival.

The length of the asylum procedure is not regulated

by law and often varies according to the number of

applicants and other factors. As at this writing, the

average length of the asylum procedure for all cases

(normal and expedited procedure) is 136 days.

7.3 Pending Cases

The decline in the number of asylum applications

made in Denmark in the last six years has reduced the

backlog considerably. Furthermore, the Immigration

Service since 2006 has put extra focus on efﬁ ciency

in case processing, which on a general scale has

improved efﬁ ciency to a large degree. However, recently

the numbers of applicants and pending cases have

increased. Efforts are being made at the Immigration

Service and the Ministry to reduce the backlog.

Each year, the Immigration Service enters into an

agreement with the Ministry of Refugee, Immigration and

Integration Affairs in which certain goals and objectives

are speciﬁ ed. The agreement includes speciﬁ c goals in

relation to the number of asylum cases to be processed

and the quality standard to be achieved.

Box 1:

Adopting “Lean” Production Principles

One measure that was taken by the Immigration Service to improve the efﬁ ciency of its asylum procedure was to

adopt “lean production” principles. The lean production practice considers the expenditure of resources to achieve

an objective other than the creation of value for the end customer to be wasteful, and thus a target for elimination.

In other words, lean production adheres to the notion of achieving “more value with less work”. Lean production

is a generic process management philosophy derived mostly from the Toyota Production System (TPS), which came

to prominence under the term “lean” in the 1990s. The adoption of this and other measures has assisted the

Immigration Service to meet its goal of processing asylum claims more efﬁ ciently.

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7.4 Information Sharing

The National Commissioner of the Police and the

Immigration Service engage in practical cooperation

and information sharing during the asylum procedure.

Cooperation with third countries such as EU Member

States occurs primarily in the context of determining

whether Denmark has responsibility for examining an

asylum claim under the Dublin II Regulation. Moreover,

speciﬁ c information may be requested from other third

States, including copies of the ﬁ le of an asylum-seeker

who has previously made an asylum application in a

third country.

Such sharing of information with other organisations or

authorities takes place within the rules on protection

of personal data set out in the Danish Act on Personal

Data and the Act on Administrative Affairs.

7.5 Single Procedure

Applications for asylum under the 1951 Convention are

also treated as applications for subsidiary protection

(protected status) and are examined in the same

procedure.

8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

An asylum-seeker may be represented by counsel at

the ﬁ rst instance and has the right to legal counsel at

the appeal stage.

While asylum-seekers are not entitled to legal aid at the

ﬁ rst instance, legal aid is provided to those appearing

before the Refugee Appeals Board. Legal aid is also

offered to unaccompanied minor asylum-seekers

as soon as the Immigration Service channels the

application into the manifestly unfounded procedure.

8.1.2. Interpreters

Interpreters are available for those asylum-seekers who

require interpretation services, both at the ﬁ rst instance

interviews and during hearings before the Refugee

Appeals Board.

8.1.3. UNHCR

The UNHCR Regional Ofﬁ ce in Stockholm, Sweden,

may respond to inquiries from asylum-seekers during

the procedure and may be of assistance by providing

information on the procedure, on legal counsel on

and any relevant organisations that may be of further

assistance.

Box 2:

Cooperation with the UNHCR, NGOs

The UNHCR Regional office, which is located in Stockholm, Sweden, plays no formal role in refugee status

determination in Denmark. However, upon the request of a party in the procedure, the UNHCR may provide updated

country of origin information (COI), legal advice or the UNHCR’s recommendations and guidelines. In exceptional

precedent-setting cases, the UNHCR may submit amicus curiae to the last instance body. The UNHCR regional ofﬁ ce

in Stockholm may request access to a particular asylum application, usually for advocacy purposes.

The Danish Refugee Council (implementing partner of the UNHCR in Denmark) is a private, independent humanitarian

organisation, to which decisions on applications considered to be “manifestly unfounded” are transmitted for

review by the Immigration Service. If the Danish Refugee Council disagrees with the Immigration Service regarding

whether a particular case should be treated as manifestly unfounded, the case will be handled through the normal

asylum procedure, that is, with automatic appeal to the Refugee Appeals Board.

The Refugee Council may also take on an advocacy role on behalf of asylum-seekers. For instance, in 2007 the

Refugee Council requested that the Refugee Board reopen a number of applications that had been subject to a

ﬁ nal negative decision. Some cases were eventually re-opened.

Cooperation also takes place between the Immigration Service and the Danish Red Cross, which is responsible for

running the majority of asylum reception centres on behalf of the government.

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8.1.4. NGOs

Upon making an application for asylum, a person will

be informed of his or her rights and obligations during

the procedure, including the possibility to contact

the implementing partner of the UNHCR in Denmark,

namely the Danish Refugee Council. This information is

provided in the context of an asylum-seeker “course”.

8.2 Reception Beneﬁ ts

8.2.1. Accommodation

Asylum-seekers in Denmark typically reside at an

accommodation centre while their claim is being

processed.

It is the responsibility of the Immigration Service to

provide accommodation. The day-to-day operation

of these accommodation centres is carried out with

several partners.

The Danish Red Cross operates and administers

most accommodation centres in Denmark, while

Thisted municipality and Jammerbugt municipality are

responsible for one centre each.

Asylum-seekers reside first at Sandholm Centre

outside of Copenhagen, and are then moved to another

accommodation centre after the interview, where they

reside until a decision has been taken. If the asylum-

seeker has family residing legally in Denmark, he or

she may be allowed to reside with his or her family. In

such cases, asylum-seekers are not eligible for ﬁ nancial

support from the State.

UAMs are placed in the Unaccompanied Minors Centre

run by the Danish Red Cross.

8.2.2. Social Assistance

Asylum-seekers receive a cash allowance from the

Immigration Service to cover their expenses. This does

not apply, however, to applicants married to a Danish

citizen or holders of a Danish residence permit or card.

In the case of the former, the spouse is expected to

support the applicant.

The basic allowance is DKK 45.92 per day per adult. If

an applicant is living with his or her spouse, registered

partner or cohabitating partner, both will receive DKK

36.36 per day per adult. The basic allowance is paid in

advance every other Thursday.

While an application is in its initial phase - when it

has yet to be determined whether the application

will be processed in Denmark or elsewhere - the

supplementary allowance is DKK 7.66 per day. If it

is decided that the application is to be processed in

Denmark, the supplementary allowance is increased

to DKK 26.79 per day. If the application is rejected

and the applicant is ordered to leave Denmark, the

supplementary allowance is decreased to DKK 7.66

per day. The supplementary allowance is paid every

other Thursday, at the end of each fourteen-day period.

The caregiver allowance for the ﬁ rst child and second

child, during the initial phase, is DKK 53.59 per child

per day. If it is decided that the application is to be

processed in Denmark, the supplementary allowance

will be increased to DKK 72.72 per child per day. For

asylum-seekers living at centres where free meals are

served, the caregiver allowance is DKK 26.79 per child

per day. The reduced caregiver allowance for the third

child and fourth child is DKK 38.27 per child per day. For

asylum-seekers living at centres where free meals are

served, there is no caregiver supplement for the third

or fourth child. Both types of caregiver allowance are

paid in advance every other Thursday.

Asylum-seekers whose cases are processed according

to the expedited version of the manifestly unfounded

procedure do not receive cash allowances.

8.2.3. Health Care

The State covers basic and emergency health care

services for asylum-seekers. With the exception of

minors claiming asylum, asylum-seekers are not entitled

to the same access to health care as are other persons

residing in Denmark.

If an asylum-seeker has sufﬁ cient means of his or her

own, the Immigration Service may decide that he or

she is not in need of health care support.

8.2.4. Education

Newly arrived asylum-seekers at the reception centre

take part in an introductory course on their rights and

obligations as well as on the beneﬁ ts to which they are

entitled. When the initial case review is completed and it

has been decided that the asylum-seeker’s application

is to be processed in Denmark, the applicant may

participate in English language courses, language

courses in their mother tongue, and vocational courses

designed to help him or her ﬁ nd future employment in

the country of origin.

Asylum-seekers below the age of 18 have access to

the same school system as nationals, until the ninth

grade. They are offered special courses either at, or in

afﬁ liation with, the accommodation centre. Depending

on their skills, they may be able to continue their primary

education in regular Danish schools.

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8.2.5. Access to Labour Market

Asylum-seekers do not have the right to work unless

they have a residence and work permit.

Asylum-seekers may apply for a residence and work

permit under the so-called Positive List, irrespective of

whether they entered Denmark through legal channels.

The Positive List is a list of professions and fields

currently experiencing a shortage of qualiﬁ ed workers.

Persons who have been offered a job in one of these

professions or ﬁ elds have particularly easy access to

the labour market.

Activities inside Reception Centres

All asylum-seekers over the age of 18 are obliged

to assist with daily tasks at their centre, such as

cleaning their own rooms and common areas. They

may also help personnel with routine ofﬁ ce work and

maintenance work inside the centre. Cash allowances

may be reduced if tasks have not been performed.

Activities outside Reception Centres

Applicants may also participate in unpaid job training

programmes at an organisation that is not afﬁ liated with

the accommodation centre. They may also participate

in unpaid humanitarian work or any other form of

volunteer work.

8.2.6. ‶Food Allowance″ Programme

for Asylum-Seekers

A food programme is available to asylum-seekers who

have received a ﬁ nal negative decision on their claim but

who do not cooperate on the implementation of their

return to the country of origin. While all other allowances

and beneﬁ ts are discontinued, these asylum-seekers

receive basic allowances for food.

A single adult without children on the food allowance

programme, who lives in a regular accommodation

centre with no free meals, receives DKK 642.88 every

14 days.

The Immigration Service may remove rejected asylum-

seekers from the food allowance programme if they

cooperate with police on return, if their return date is

postponed, or if the claim is re-opened. In such cases,

the asylum-seekers receive once again the beneﬁ ts

and allowances to which they were entitled during the

procedure, until the date of departure or resolution of

the re-opened claim.

9 Status and Permits

Granted outside the

Asylum Procedure

9.1 Humanitarian Grounds

Upon application to the Ministry of Refugee, Immigration

and Integration Affairs, a residence permit may be

issued to an asylum-seeker who has not been granted

refugee status or protected status, but who presents

signiﬁ cant humanitarian considerations that warrant

a residence permit. Possible situations include the

following:

• The asylum-seeker suffers from an illness of a

serious natur

e and cannot receive the necessary

treatment in his or her country of origin

• A family with children below the age of 18 faces

the possibility of r

eturning to a country in a state

of war.

Decisions on applications for humanitarian status are

ﬁ nal and cannot be appealed. Decisions are taken by

the Ministry of Refugee, Immigration and Integration

Affairs.

9.2 Obstacles to Return

In cases where a rejected asylum-seeker has not been

returned to the country of origin, the National Police

may forward the ﬁ le to the Immigration Service for the

possibility of issuing a temporary residence permit.

For such a permit to be issued, the following three

conditions must be met (Section 9 c (2) of the Aliens

Act):

• The police have attempted without success to

emove a rejected asylum-seeker for at least

18 months

• The asylum-seeker has been cooperative on the

eturn arrangements

• Return remains improbable.

The r

esidence permit is valid for an initial period of 12

months and can be renewed, provided that the removal

remains improbable.

9.3 Consequence Status

Where persons are not eligible for refugee status or

protected status (subsidiary protection), a residence

permit may be granted if close family ties exist with

a person who has been granted refugee status. The

Immigration Service may decide to grant such persons

“consequence status” and grant them the same type

of residence permit as the family member with refugee

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DEN

status. Spouses and minor children of a refugee are

usually eligible for this type of status.

If the persons did not enter the country at the same

time as the person who has obtained refugee status, the

question of whether or not to grant a residence permit

on the basis of “consequence status” is determined

after an examination of the individual application.

In order for a person to be granted consequence status,

the conditions in the country of origin that gave rise to

the grounds for granting protection to the person whose

family members are applying for consequence status

must still prevail.

In addition, the length of time between the applicants’

claims and the reasons behind the persons in question

not entering the country at the same time are also

factors that are considered in connection with the

examination of a case.

9.4 Stateless persons

While Denmark has ratiﬁ ed the 1961 UN Convention

on the Reduction of Statelessness and the 1989

Convention on the Rights of the Child (which contains

provisions regarding statelessness) there are no

procedures outside the asylum procedure to regularise

the status of stateless persons.

10 Return

10.1 Pre-departure Considerations

When an asylum-seeker receives a final negative

decision on a claim, he or she must leave Denmark

immediately. When the Immigration Service or the

Refugee Appeals Board hands down a ﬁ nal negative

decision, the Service or Board forwards all documents

to the National Police, which then determines the

practical arrangements for implementing return.

10.2 Procedure

The Danish Immigration Service has in place voluntary

return assistance programmes for asylum-seekers who

wish to leave Denmark either during the procedure or

following a negative decision on their claim.

Assistance with Return: Pending Applications

A person whose asylum application is being considered

in Denmark may, if he or she does not have sufﬁ cient

means himself or herself, be granted assistance to

travel to a third country where, after entry into Denmark

and before expiry of a time-limit for departure, the

person has been issued an entry and residence permit,

if the person has been refused a residence permit for

Denmark or waives an application for such a permit.

This assistance covers the following costs:

• Transportation tickets

• Expenses necessary for transportation of

personal belongings

• No more than DKK 5,000 (670€) per family for

transportation of equipment needed for the

trade of the person or family in the third country

in question

• Other expenses incidental to the journey.

Assistance with Return after a Final Decision

An asylum-seeker who has received a negative decision

on a claim from the Immigration Service or the Refugee

Appeals Board may be granted assistance to return

to his or her country of origin or former country of

residence if the person assists in departure without

undue delay.

The assistance amounts to DKK 3,000 (400€) per

person over the age of 18 and DKK 1,500 (200€) per

person under the age of 18.

Additional assisted voluntary return schemes have

been set up on a temporary basis for certain groups of

asylum-seekers, such as Iraqis and Afghans.

The current scheme for Iraqis who opt for voluntary

return to Central or Southern Iraq involves economic

support as well as reintegration assistance in Iraq. For

adults the economic support is as follows:

• Cash grant upon arrival: DKK 30,000 (4,000

€

)

• Supplementary cash grant after six months of

stay in Iraq: DKK 15,000 (2,000€).

Childr

en receive a cash grant upon arrival of DKK

15,000 (2,000€) as well as a supplementary cash grant

after six months’ stay in Iraq of DKK 7,500 (1,000€).

10.3 Freedom of Movement/

Detention

Asylum-seekers who have obtained a ﬁ nal negative

decision on their claim and who are uncooperative on

the implementation of their return are placed in one of

two departure centres run by the Danish Red Cross and

the Immigration Service.

A number of conditions apply at the departure centres:

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

• Residents on the food allowance programme

are given money only to buy food

• There are extra guards and police to ensure

der is maintained

• Adult residents do not have access to training

courses or work activities

• Residents may not relocate unless the

Immigration Service permits them to do so.

10.4 Readmission Agreements

Denmark has entered into bilateral readmission

agreements or arrangements with the following countries

or autonomous regions: Albania, Afghanistan, Armenia,

Bosnia and Herzegovina, Macedonia, (FYROM),

Montenegro, Russia, Serbia, Somaliland, and Sri Lanka.

A signed agreement with Ukraine awaits ﬁ nal Ukrainian

approval. Several of these agreements are drafted on the

basis of EU readmission agreements, as Denmark cannot

legally take part in EU readmission agreements as a result

of its opt-out of the Justice and Home Affairs acquis.

11 Integration

According to the Danish Integration Act, an introduction

programme planned by the responsible local

municipality and funded by the Danish government

must be offered to all newly arrived immigrants,

including refugees, persons granted protected status,

persons arriving on family reuniﬁ cation grounds and

resettled refugees. Persons eligible for this programme

must be 18 years of age or older.

The introduction programme lasts up to three years. The

programme aims at making the newcomers both active

members of society and self-reliant as soon as possible

upon arrival in Denmark. The programme includes a

course that incorporates Danish language instruction and

classes on Danish culture and society. The programme

also includes employment support such as job counselling

and training, individually tailored job-training schemes

and employment with a wage supplement. The duration

of a full programme is 37 hours per week, for up to three

years, preparation time included. The newcomer must

agree to an integration contract with the municipality and

must also sign an integration declaration.

Participation in the programme is a condition for

receiving the special monthly financial support for

newcomers and is also included as a condition if the

refugee or immigrant applies for a permanent residence

permit.

6 See the section above on reception beneﬁ ts for information on the

food allowance programme and the general conditions in regular

accommodation centres for asylum-seekers.

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12 Annexe

12.1 Selections from the Danish Aliens (Consolidation) Act (2005)

Part I- Aliens’ entry into and stay in Denmark

(1) Upon application, a residence permit will be issued to an alien if the alien falls within the provisions of the

Convention relating to the Status of Refugees (28 July 1951).

(2) Upon application, a residence permit will be issued to an alien if the alien risks the death penalty or being

subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin.

An application as referred to in the ﬁ rst sentence hereof is also considered an application for a residence permit

under subsection (1).

(3) A residence permit under subsections (1) and (2) can be refused if the alien has already obtained protection in

another country, or if the alien has close ties with another country where the alien must be deemed to be able to

obtain protection.

(1) Upon application, a residence permit will be issued to an alien who arrives in Denmark under an agreement made

with the United Nations High Commissioner for Refugees or similar international agreement, and who falls within

the provisions of the Convention relating to the Status of Refugees (28 July 1951), cf. Section 7(1).

(2) In addition to the cases mentioned in subsection (1), a residence permit will be issued, upon application, to an

alien who arrives in Denmark under an agreement as mentioned in subsection (1), and who risks the death penalty

or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of

origin, cf. section 7(2).

(3) In addition to the cases mentioned in subsections (1) and (2), a residence permit will be issued, upon application,

to an alien who arrives in Denmark under an agreement as mentioned in subsection (1), and who would presumably

have satisﬁ ed the fundamental conditions for obtaining a residence permit under one of the provisions of the Aliens

Act if he had entered Denmark as an asylum-seeker.

(...)

(3) A residence permit may be issued to: -

(i) an unaccompanied alien who has submitted an application for a residence permit pursuant to section 7 prior to

his 18th birthday if, from information available on the alien’s personal circumstances, there are particular reasons

to assume that the alien should not undergo asylum proceedings;

(ii) an unaccompanied alien who has submitted an application for a residence permit pursuant to section 7 prior to

his 18th birthday, if there is reason to assume that in cases other than those mentioned in section 7(1) and (2) the

alien will in fact be placed in an emergency situation upon a return to his country of origin.

(...)

7 Consolidation Act No. 1044 of 6 August 2007, with the amendments following from Act No. 264 of 23 April 2008, Act No. 431 of 1 June 2008,

Act No. 485 of 17 June 2008 and Act No. 486 of 17 June 2008, available online at

http://www.nyidanmark.dk/NR/rdonlyres/C2A9678D-73B3-41B0-A076-67C6660E482B/0/alens_consolidation_act_english.pdf

[accessed 27 February 2009].

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Part VI- Rules on residence permit, expulsion and refusal of entry

31.

(1) An alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or

inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country.

(2) An alien falling within section 7(1) may not be returned to a country where he will risk persecution on the grounds

set out in Article 1 A of the Convention relating to the Status of Refugees (28 July 1951), or where the alien will not

be protected against being sent on to such country. This does not apply if the alien must reasonably be deemed

a danger to national security or if, after ﬁ nal judgment in respect of a particularly dangerous crime, the alien must

be deemed a danger to society, but cf. subsection (1).

Part VIII- Competence, appeals, etc

48e.

(1) When the Danish Immigration Service has decided that an alien who claims to fall within section 7 may stay in

Denmark while his application for asylum is being examined, the Danish Immigration Service registers the person

as an applicant for asylum.

(2) For the purpose of the decision to be made by the Danish Immigration Service under section 48a(1), the police

carries out an investigation with a view to determining the alien’s identity, nationality and travel route and procuring

other necessary information.

(3) The Danish Immigration Service is otherwise in charge of bringing out all facts of the case. This includes the decision

of the Danish Immigration Service concerning the ﬁ lling-in of an application form and the interrogation of the alien.

53b.

(1) Upon submission to the Danish Refugee Council, the Danish Immigration Service may resolve that the decision

in a case of a residence permit under section 7 cannot be appealed to the Refugee Appeals Board if the application

must be considered manifestly unfounded, including if : -

(i) the identity claimed by the applicant is manifestly incorrect;

(ii) it is manifest that the circumstances invoked by the applicant cannot lead to the issue of a residence permit

under section 7;

(iii) it is manifest that the circumstances invoked by the applicant cannot lead to the issue of a residence permit

under section 7 according to the practice of the Refugee Appeals Board;

(iv) the circumstances invoked by the applicant are in manifest disagreement with general background information

on the conditions in the applicant’s country of origin or former country of residence;

(v) the circumstances invoked by the applicant are in manifest disagreement with other speciﬁ c information on the

applicant’s situation;

(vi) the circumstances invoked by the applicant must be deemed manifestly to lack credibility, including as a

consequence of the applicant’s changing, contradictory or improbable statements.

(2) Unless essential considerations make it inappropriate, the Danish Immigration Service may resolve that the Danish

Refugee Council must inform the Danish Immigration Service on the same day that the Danish Immigration Service submits

a case to the Danish Refugee Council under subsection (1) whether the Danish Refugee Council agrees with the assessment

by the Danish Immigration Service according to which the application must be considered manifestly unfounded. The

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DEN

Danish Immigration Service may further resolve that the interrogation of the applicant by the Danish Immigration Service

and the interview of the applicant by the Danish Refugee Council must take place on premises close to each other.

(3) The Danish Immigration Service informs the Refugee Appeals Board about the decisions which have not been

appealed to the Board because the Danish Immigration Service has so resolved under subsection (1). The Refugee

Appeals Board may resolve that it must be possible to appeal certain groups of cases to the Board.

12.2 Additional Statistical Information

500

1,000

1,500

2,000

2,500

3,000

3,500

4,000

4,500

2002 2008

Somalia

Serbia and Montenegro

Syria

Russia

Iran

Afghanistan

Iraq

Figure 5:

Asylum Applications from Top Five Countries of Origin for 2002 and 2008

Geneva Convention

Status

Complementary

Protection and Other

Authorisations

to Remain

Rejections Other Decisions

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1992

638 14% 1,696 37% 2,236 49% 0 0% 4,570

1993

681 14% 1,555 32% 2,650 54% 0 0% 4,886

1994

674 12% 1,166 21% 3,840 68% 0 0% 5,680

1995

4,810 22% 13,704 62% 3,496 16% 0 0% 22,010

1996

954 14% 3,777 54% 2,212 32% 0 0% 6,943

1997

883 12% 3,015 42% 3,210 45% 0 0% 7,108

1998

911 15% 2,638 43% 2,558 42% 0 0% 6,107

1999

932 17% 2,328 42% 2,254 41% 0 0% 5,514

2000

1,202 17% 2,265 32% 3,579 51% 0 0% 7,046

2001

1,857 21% 2,740 31% 4,142 47% 0 0% 8,739

2002

1,134 13% 1,389 16% 6,428 72% 0 0% 8,951

2003

500 14% 270 8% 2,683 78% 0 0% 3,453

2004

105 5% 105 5% 1,945 90% 0 0% 2,155

2005

93 7% 136 10% 1,098 83% 0 0% 1,327

2006

108 12% 62 7% 755 82% 0 0% 925

2007

70 8% 403 47% 376 44% 0 0% 849

2008

200 19% 315 30% 527 51% 0 0% 1,042

Figure 6:

Decisions Made at the First Instance, 1992-2008

Finland

FIN

123 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

124 - NATIONAL LEGAL FRAMEWORK

125 - INSTITUTIONAL FRAMEWORK

125 - PRE-ENTRY MEASURES

125 - ASYLUM PROCEDURES

132 - DECISION-MAKING AND STATUS

135 - E

FFICIENCY AND INTEGRITY MEASURES

137 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

139 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

140 - R

ETURN

140 - INTEGRATION

141 - ANNEXE

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1 Background: Major Asylum

Trends and Developments

Asylum Applications

Until the end of the 1980’s, Finland received only

a few asylum applications per year. However, the

numbers started to increase signiﬁ cantly in 1990,

when Finland received over 2,700 claims. In 1992

claims peaked at more than 3,600. In 1993 the

claims decreased to around 2,000 and decreased

even further between 1994 and 1997, when Finland

received fewer than 1,000 claims per year. In 1998

the number of claims increased again to over 1,000

and in 1999 and 2000 to over 3,000. In 2001, the

number of claims was around 1,500. Between 2002

and 2005, asylum applications numbered over

3,000. After that the annual inﬂ ow decreased to

around 2,000 in 2006 and around 1,500 in 2007.

The trend in 2008, however, was one of an upward

climb, with the number of claims reaching over

4,000 by the end of that year.

Top Nationalities

In the 1990’s, the majority of asylum claims were

made by nationals from Somalia, Russia and the

former Yugoslavia. Towards the end of the 1990’s, a

large number of asylum-seekers came to Finland from

such European Union (EU) candidate states as Poland,

the Slovak Republic and the Czech Republic. Since

2000, the majority of asylum-seekers have originated

from Russia, Iraq, Somalia, the former Yugoslavia and,

prior to their membership in the European Union, from

Bulgaria, Romania and the Slovak Republic.

Important Reforms

A number of important legislative and institutional

reforms were introduced after the 1980’s:

• The creation of the Directorate of Immigration

in 1995 as the competent authority for making

decisions on asylum claims at the ﬁ rst

instance

• The transfer of responsibility for the asylum appeal

ocedure from the Asylum Appeals Board to the

Helsinki Administrative Court in 1998

• The introduction of accelerated procedures for

certain types of claims in 2000

• The transfer of responsibility for asylum

interviews fr

om the Police to the Directorate of

Immigration in 2003

• The introduction in 2007 of a legislative provision

for tracing family members of unaccompanied

minor asylum-seekers, to be undertaken in

cooperation with the International Social Service.

While a new Aliens Act came into force in 2004, the

asylum procedure remained largely unchanged.

More recently, the Directorate of Immigration was

renamed the Finnish Immigration Service. An

Advisory Board for the Finnish Immigration Service

was established at the beginning of 2008. The Board

consists of invited members and includes immigrants’

representatives along with traditional interest groups.

3,634

3,861

4,035

2,743

2,137

711

1,650

3,221

1,505

500

1,000

1,500

2,000

2,500

3,000

3,500

4,000

4,500

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Figure 1:

Evolution of Asylum Applications in Finland, 1985-2008

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Figure 3:

Top Five Countries of Origin in 2008

1 Iraq 1 255,

2 Somalia 1 181,

3 Afghanistan 254

4 Russia 209

5 Iran 144

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

The asylum procedure and the competencies of asylum

institutions are governed by the Aliens Act (2004).

The Act provides grounds for granting international

protection as well as other, non-protection-related

grounds for a residence permit, which must be

considered during a single asylum procedure.

The 1951 Convention relating to the Status of Refugees

and the European Convention on Human Rights

(ECHR) have been transposed into Finnish law. The

government’s asylum policy is committed to the full

application of the 1951 Convention.

The requirements for granting asylum under the Aliens

Act are virtually identical to those in the 1951 Convention.

Council Directive 2004/83/EC

will be transposed into

this Act in the summer of 2009. In transposing the

Directive, the scope of the current national legal provision

for granting subsidiary protection will be narrowed to

meet the deﬁ nition of subsidiary protection contained

in the Directive. However, in order to retain the level of

protection granted in Finland, a new, third protection

category (“humanitarian protection”) is being introduced.

The reception of asylum-seekers is governed by the

Act on the Integration of Immigrants and Reception

of Asylum Seekers (1999). Council Directive 2003/9/

has been transposed into this Act. The Act entitles

asylum-seekers to the safeguarding of basic needs such

as accommodation, subsistence, social assistance,

health care and other basic services. The Act also

stipulates that asylum-seekers must be informed of

their rights and obligations.

2.2 Pending Reforms

A government proposal aimed at transposing the

Qualiﬁ cation Directive and Council Directive 2005/85/

is currently before Parliament.

Legislative amendments and practical arrangements

are also under way to hand over competence in and

responsibility for the steering of reception centres to

the Finnish Immigration Service.

1 Council Directive 2004/83/EC of 29 April 2004 on minimum

standards for the qualiﬁ cation and status of third country nationals

or stateless persons as refugees or as persons who otherwise

need international protection and the content of the protection

granted (Qualiﬁ cation Directive).

2 Council Directive 2003/9/EC of 27 January 2003 laying down

minimum standards for the reception of asylum seekers

(Reception Directive).

3 Council Directive 2005/85/EC of 1 December 2005 on minimum

standards on procedures in Member States for granting and

withdrawing refugee status (Asylum Procedures Directive).

200

400

600

800

1,000

1,200

1,400

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Iraq Somalia Afghanistan

Figure 2:

Evolution of Applications from Top Three Countries of Origin for 2008

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3 Institutional Framework

3.1 Principal Institutions

The Ministry of the Interior is responsible for Finland’s

migration policy, including issues of international protection,

and the drafting of relevant legislation. The Ministry also

oversees the integration of migrants in Finland.

The Finnish Immigration Service is the competent

authority for examining and making a determination on

asylum applications at the ﬁ rst instance. In the future,

responsibility for steering of reception centres and other

types of accommodation for asylum-seekers will be

transferred to the Service.

The District Police receive applications for international

protection in-country and establish the identity, travel

route and means of entry into the country of an asylum-

seeker. The Police also facilitate the transfer of asylum-

seekers under Council Regulation (EC) No. 343/2003

and implement the return of rejected asylum-seekers

and persons denied entry into Finland.

The Finnish Border Guard receives asylum applications

for international protection at points of entry and

establishes the identity, travel route and means of entry

into the country of asylum-seekers. The Border Guard is

also competent for implementing the return of rejected

asylum-seekers and decisions on refusal of entry.

The Helsinki Administrative Court hears appeals against

all negative decisions made by the Finnish Immigration

Service on asylum applications. The Court is also

competent for hearing appeals against decisions

concerning withdrawal and cancellation of refugee

status and related refugee travel documents.

The Supreme Administrative Court, provided it give

leave to appeal, hears appeals against decisions of

the Helsinki Administrative Court.

The Ombudsman for Minorities may provide an opinion

on an asylum case. The opinion of the Ombudsman is

non-binding on the decision-making authorities. The

Ombudsman must be notiﬁ ed when any decision is

made on an asylum claim under the Finnish Aliens Act,

when there is a refusal of entry into Finland, or when

a removal order is issued. The Ombudsman must also

be notiﬁ ed without delay of any decision to place a

foreign national in detention. The Ombudsman must be

notiﬁ ed, upon its request, of any other decision made

under the Finnish Aliens Act.

4 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing

the criteria and mechanisms for determining the Member State

responsible for examining an asylum application lodged in one of the

Member States by a third-country national (Dublin II Regulation).

4 Pre-entry Measures

4.1 Visa Requirements

Foreign nationals’ entry into Finland is subject to the

provisions of the Finnish Aliens Act and the Schengen

Acquis. As a rule, foreign nationals who need an entry

visa are requested to apply for one at the Finnish

mission that represents Finland in their home country. In

countries where Finland does not have a mission, another

Schengen country can represent Finland in visa matters.

4.2 Carrier Sanctions

Obligations and ﬁ nancial penalties on carriers are laid

down in Chapter 11 of the Aliens Act. Carriers violating

the obligations (obligation to report and obligation to

provide information) are subject to a ﬁ ne. The ﬁ nancial

penalty may be annulled if the foreign national is granted

permission to remain in Finland on protection grounds.

4.3 Interception

Finland does not carry out pre-departure clearance in

countries of origin or transit.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

All asylum-seekers have the right to enter the territory

and to remain in Finland for the duration of the asylum

procedure, and until an enforceable decision on refusal

of entry is made in the matter. Asylum-seekers have

the right to be heard during the procedure and to enjoy

the basic legal guarantees such as interpretation and

legal assistance.

Information on the procedures regarding international

protection available to asylum-seekers (and the public

at large) can be found on the website of the Finnish

Immigration Service (www.migri.ﬁ /r

efugees) in a number

of different languages.

5.1.1. Outside the Country

Applications at Diplomatic Missions

It is not possible to make an asylum application at or

through Finnish diplomatic missions abroad. Nor is it

possible to make an asylum application from abroad in

writing, by post or electronic mail.

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Resettlement/Quota Refugees

Finland has in place an annual resettlement programme

to admit persons recognised as refugees by the United

Nations High Commissioner for Refugees (UNHCR)

and other persons in need of international protection,

in accordance with section 90 of the Aliens Act. The

annual quota is conﬁ rmed each year in the State budget.

Since 2001, the resettlement programme has operated

with an annual quota of 750 refugees. The Ministry of

the Interior, in cooperation with the Ministry of Foreign

Affairs, prepares a proposal for the Government on the

allocation of the refugee quota.

The grounds for issuing a residence permit under the

Finnish refugee quota are as follows:

• The person is in need of international protection

om his or her country of origin

• The person is in need of resettlement from the

ﬁ

rst country of asylum

• The requirements for admitting and integrating

the person into Finland have been assessed

• There are no obstacles under section 36 of the

Aliens Act to issuing a r

esidence permit.

The selection of refugees for resettlement is usually

based on interviews conducted in refugee camps,

during which the grounds for granting a residence

permit are examined. A representative of the Security

Police participates in the interviews with the Finnish

Immigration Service, which grants residence permits to

refugees admitted to Finland under the refugee quota.

Of the refugee quota, 10 per cent is reserved annually

for urgent cases and for people whom the UNHCR

has assessed as being in urgent need of resettlement.

These refugees are selected on a UNHCR dossier basis.

5.1.2. At Ports of Entry

An application for international protection may be made

in person with the Police or with border control authorities

(Finnish Border Guard) upon entry into the country or at

police stations inside the territory immediately after entry.

After an asylum application has been made, the Police

or Border Guard establishes the person’s identity, travel

route and means of entry into Finland. To achieve this,

personal data on the applicant’s family members and

other relatives are collected. The asylum application

is then examined by the Finnish Immigration Service.

5.1.3. Inside the Territory

An application may be ﬁ led later than upon arrival in

Finland under the following circumstances:

• The circumstances in the foreign national’s home

country or country of permanent r

esidence have

changed during his or her stay in Finland

• The person was not able to present a statement

in support of his or her application any earlier

• Other reasonable grounds for making an

application at a later time ar

e applicable as per

section 95 of the Aliens Act.

Responsibility for Processing the Claim

The Dublin System

Application and Procedure

Under the Dublin system, an asylum application ﬁ led in

Finland may be transferred to be processed in another

State party to the Dublin II Regulation. Dublin cases

may arise under the following circumstances:

• The asylum-seeker previously applied for asylum

in another State party

• A member of the asylum-seeker’s family has

obtained r

efugee status in another State party

• The asylum-seeker holds a residence permit or

visa fr

om another State party

• The asylum-seeker has entered Finland illegally

thr

ough another State party or without passing

through a border check after travelling from

another State party.

Where one of these criteria has been fulﬁ lled, the Finnish

Immigration Service will issue a decision to refuse the

applicant’s entry into Finland and to transfer him or her

to another State party.

Freedom of Movement/Detention

The grounds for detention outlined in the Aliens Act are

applicable to all foreign nationals in Finland, including

those who may be subject to a transfer according to the

Dublin II Regulation. These grounds include reasons to

believe that the person may prevent the implementation

of transfer or removal.

If there are no grounds for detention, persons whose

claims are processed under the Dublin system enjoy

freedom of movement as do all other asylum-seekers.

Conduct of Transfers

The Police or the Border Guard is responsible for the

enforcement of the decisions on refusal of entry or

5 Further information on grounds for detention can be found in the

section “Freedom of Movement/Detention” below.

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deportation, including the implementation of the decisions

based on the application of the Dublin II Regulation.

Review/Appeal

Decisions on non-entry based on the Dublin II

Regulation may be appealed before the Helsinki

Administrative Court. A decision on refusal of entry

may be implemented regardless of whether an appeal

has been made, unless otherwise ordered by the

administrative court.

The administrative court can

prevent the implementation of the decision or order that

it be suspended.

Box 1:

Finnish and European Case Law:

Transferring Applicants under the Dublin

II Regulation

In summer 2008, the European Court of Human

Rights provided interim measures based on Article

39 of the Rules of the Court in eight cases in which

the Finnish Immigration Service had decided to

transfer an applicant to Greece under the Dublin

II Regulation. Two of the interim measures were

later lifted since these cases were pending, one in

the Helsinki Administrative Court and the other

in the Supreme Administrative Court. The latter

made a decision on 26 February 2009 according

to which ”despite it having become evident there

were serious deﬁ ciencies in Greece’s asylum system,

the Supreme Administrative Court considered, with

reference in particular to the decision K. R. S. v.

the United Kingdom made by the European Court

of Human Rights on 2 December 2008 in a similar

matter, that the return of an Iraqi asylum seeker to

Greece did not constitute an infringement of the

requirements contained in Article 3 of the Human

Rights Act.”

Application and Admissibility

According to section 103 of the Aliens Act, the Finnish

Immigration Service may deem an asylum application

to be inadmissible under one of the following

circumstances:

• The applicant has arrived from a safe country of

asylum wher

e he or she enjoyed or could have

enjoyed protection and where he or she may

be returned

• The applicant may be sent to another State which,

under the Dublin II Regulation, is responsible for

processing the asylum application.

6 The safe country of asylum principle is described below under the

section entitled Safe Country Concepts.

In such instances, the Finnish Immigration Service

issues a decision on refusal of entry. A decision made

on the basis of the application of the Dublin II Regulation

can be enforced as soon as the decision has been

served on the applicant. A decision made on the basis

of the application of the safe country of asylum concept

can be enforced eight days after serving the decision on

the applicant. In these cases, an appeal to the Helsinki

Administrative Court will not suspend the enforcement,

unless the Court decides otherwise.

Accelerated Procedures

Asylum applications may be processed under either

the normal procedure or an accelerated procedure. The

Finnish Immigration Service is competent for making

a decision on which procedure is applied in each

case. The Police or the Border Guard may inform the

Immigration Service if they have identiﬁ ed reasons for

handling the application urgently.

Applying an Accelerated Procedure

An asylum application may be examined under an

accelerated procedure in one of the following instances:

• The applicant comes from a safe country of

origin, as deﬁ

ned in section 100 of the Aliens

Act, where he or she is not at risk of treatment

referred to in section 87 or 88 and where he or

she may be returned

• The application is considered to be manifestly

unfounded

• The applicant has ﬁ

led a subsequent application

that does not contain any new grounds for

remaining in Finland that would inﬂ uence the

decision on the matter.

Where the safe country of origin or safe country of

asylum principle is applicable, the Finnish Immigration

Service must make a determination on the claim

within seven days of the date when the minutes of the

interview were completed and the information on their

completion was entered in the Register of Aliens.

While asylum-seekers whose applications are being

examined under an accelerated procedure have the

same rights and obligations as do other asylum-

seekers with regard to the procedure, in the case of

subsequent applications, a decision may be issued

without organising an asylum interview.

7 The safe country of origin principle is described below in the

section entitled Safe Country Concepts.

8 The procedure for examining subsequent applications is described

below.

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Manifestly Unfounded Applications

The Finnish Immigration Service may decide that an

application is manifestly unfounded if the application

does not raise grounds for protection related to serious

human rights violations or the application has been

made as an obvious misuse of the asylum application

process.

While manifestly unfounded cases are subject to

an accelerated procedure, there is no time limit for

the authorities to make a decision. In the guidelines

concerning asylum procedures, it is stated that, inter

alia, applications considered manifestly unfounded

must be processed urgently. Usually a decision to

reject an application on the basis that it is manifestly

unfounded is a decision of refusal of entry.

An application may be rejected as manifestly unfounded

in one of the following instances:

• No grounds for protection or against r

efoulement

have been presented

• The claims presented in the application are

clearly implausible

• The applicant clearly intends to abuse the

asylum pr

ocedure:

- by deliberately giving false or misleading

information on matters that are essential

to the decision on the application

- by presenting forged documents without

an acceptable reason

- by impeding the establishment of the

grounds for his or her application in

another fraudulent manner

- by ﬁ ling an application after a procedure

for removing him or her from the country

has begun, as a way of delaying the

implementation of the procedure

• The applicant comes from a safe country

of asylum or a safe country of origin wher

he or she may be returned, and the Finnish

Immigration Service has not been able to issue

a decision on the application within the time

limit (of seven days) laid down in section 104

of the Aliens Act.

Normal Procedure

After the Police or Border Guard has established the

identity, travel route and means of entry of the asylum-

seeker, the asylum application is examined by the

Finnish Immigration Service.

The Immigration Service conducts an interview with

the asylum-seeker

. The purpose of the interview is

to determine whether there are protection-related or

non-protection-related grounds for granting a residence

permit. Thereafter, a written report of the interview is

provided to the applicant.

The requirements for issuing a residence permit are

assessed individually for each applicant by taking

account of the applicant’s statements on his or her

circumstances and relevant country of origin information

(COI).

Upon request, the Ombudsman for Minorities has the

right to be heard in an individual matter concerning an

asylum applicant. The Finnish Immigration Service may,

on a case-by-case basis, set a reasonable deadline for the

issuing of an opinion by the Ombudsman for Minorities.

Review/Appeal of Finnish Immigration

Service Decisions

Helsinki Administrative Court

A decision of the Finnish Immigration Service to refuse

to grant a residence permit may be appealed before the

Helsinki Administrative Court if the decision falls under

one of the following categories:

• Rejection of an application for protection

• Rejection of an application for temporary

protection

• Removal from the country, prohibition of entry

or cancellation of a travel document issued in

Finland (in a decision taken under the asylum

procedure or the procedure concerning

temporary protection)

• Withdrawal of refugee status and cancellation

of a r

efugee travel document

• Cancellation of refugee status and cancellation

of a r

efugee travel document.

The time limit for making an appeal is 30 days following

the decision being served to the applicant.

9 At the request of the Finnish Immigration Service, the Police

may conduct asylum interviews if the number of applications

has increased dramatically or there are other compelling reasons

for delegating this task to the Police. In addition to the Finnish

Immigration Service, the Security Police may conduct a further

asylum interview, if Finland’s national security or international

relations require it.

10 Asylum-seekers whose application for protection was rejected but

who were granted a residence permit on other, non-protection-

related grounds, may appeal that decision.

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Supreme Administrative Court

The decision of the Administrative Court may be

appealed to the Supreme Administrative Court if the

latter gives leave to appeal. A leave to appeal may be

given if it is important for the application of the Act to

other similar cases, for the sake of consistency in legal

practice or if there is some other compelling reason for

granting leave.

Freedom of Movement during the

Normal Procedure

According to section 7 of the Constitution of Finland and

section 41 of the Aliens Act, foreign nationals residing

legally in Finland have the right to move freely within

the country and to choose their place of residence.

According to section 40 of the Aliens Act, an asylum-

seeker may reside legally in the country while his or her

application is being processed and until there is a ﬁ nal

decision on the claim or an enforceable decision on his

or her removal from the country.

If an asylum-seeker leaves Finland during the asylum

procedure and does not inform the authorities, the

application may be regarded as implicitly withdrawn.

Detention

Grounds for Detention

Alternatives to detention must be considered before a

decision is made on whether or not to detain an asylum-

seeker. Measures such as reporting requirements, handing

over travel documents to authorities and paying a ﬁ nancial

guarantee

equivalent to the cost of accommodation or

return may be considered valid alternatives.

The Police and Border Guard are competent for making

a decision on placing a foreign national in detention. The

ofﬁ cial responsible for a decision to place a foreign national

in detention or, exceptionally, in police detention facilities

must, without delay and no later than the day after the

person was placed in detention, notify the District Court of

the municipality where the person is being detained. The

District Court must hear a matter concerning the detention

of a foreign national without delay and no later than four

days following the date when the person was placed in

detention. In the case of a person being placed in a police

detention facility, the matter must be heard without delay

and no later than 24 hours after the Court has received

the notiﬁ cation of detention.

11 The ﬁ nancial guarantee is returned to the person when it is no longer

required to establish whether the person meets the requirements for

entering the country or to prepare for or ensure the implementation

of removal. In other cases, the ﬁ nancial guarantee may be used to

cover the expenses related to accommodation or return.

According to section 121 of the Aliens Act, a foreign

national may be detained under one of the following

circumstances:

• Taking into account the person’s personal and

other cir

cumstances, there are reasonable

grounds to believe that the person will prevent

or considerably hinder the implementation of

a decision to remove him or her from Finland

• Holding a person in detention is necessary for

establishing his or her identity

• Taking into account the person’s personal and

other circumstances, there are reasonable

grounds to believe that he or she will commit

an offence in Finland.

Asylum-seekers may be detained in detention units

or Police or Border Guard detention facilities, in

accordance with the Aliens Act. Persons are detained in

Police or Border Guard facilities

only if detention units

are at full capacity or there are practical impediments

to holding the person in a detention unit. A minor may

be placed in a Police or Border Guard detention facility

only if his or her legal guardian or other adult member

of the family is being held in the same detention facility.

The detained person or his or her legal representative

must be informed of the grounds for detention. In the

case of a minor under the age of 18, the representative

of social welfare authorities may be heard before a

decision on detention is made.

There is no maximum period of detention. Instead, the

Aliens Act requires that the authorities handling the matter

order the release of a detained asylum-seeker immediately

after the requirements for detention cease to exist.

Judicial Review

Judicial review of a decision to detain an asylum-seeker

is ensured in the Aliens Act. If the release of a person

who has been held in detention has not been ordered,

the District Court in the place of detention will, at its

own initiative, always rehear the matter concerning the

detention no later than two weeks after the decision of

the District Court to prolong detention.

12 Factors that may lead to detaining an asylum-seeker in order to

establish his or her identity include the asylum-seeker having

provided unreliable information or having refused to give the

required information regarding identity, or the presence of other

compelling reasons to believe the person’s identity has not been

ﬁ rmly established.

13 Detention inside Police and Border Guard detention facilities is

also governed by the Act on the Treatment of Persons in Police

Detention (841/2006).

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Reporting

General Reporting Requirements

The Aliens Act stipulates that a person whose case is

being processed by the authorities must provide them

with his or her contact information and any changes to

such information.

An asylum-seeker living in private accommodation must

inform the reception centre of his or her address and

any changes to this address. If the reception centre

does not know the correct address, payment of living

allowances cannot be effected.

Speciﬁ c Reporting Requirements

A foreign national may be required to report to Police

or border check authorities at regular intervals in one

of the following cases:

• Reporting is necessary in order to establish that

he or she meets the r

equirements for entry into

the country

• Reporting is necessary in order to prepare

or ensur

e the enforcement of a decision on

removing the person from the country, or for

otherwise supervising the foreign national’s

departure from the country.

The reporting requirement is in force until it has been

established that the person meets the requirements

for entry, a decision on removal from the country has

been enforced, or the processing of the matter has

ended otherwise. However, the reporting requirement

must come to an end when it is no longer necessary

for ensuring the issue or enforcement of a decision.

Subsequent Applications

A subsequent application is an application for

international protection made by a foreign national still

residing in Finland, after his or her previous application

was rejected by the Finnish Immigration Service or an

administrative court. A subsequent application can also

be ﬁ led by a foreign national who has left the country

for a short time following a negative decision on his or

her previous claim.

If a new application is ﬁ led while the matter is still being

processed, the information given by the applicant is

submitted to the authorities processing the matter and

is to be considered as a new statement in the matter.

According to the Aliens Act, a decision on a subsequent

application may be issued without an asylum interview. A

decision on a subsequent application may be processed

in an accelerated procedure. A decision on refusal of entry

may be enforced immediately after service on the applicant,

unless otherwise ordered by an administrative court.

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

When making a decision on an asylum application, the

Finnish Immigration Service may determine that the

asylum-seeker’s country of origin is a safe country of

origin as he or she is not at risk of persecution or serious

violations of human rights there.

When assessing whether a country may be considered

a safe country of origin, one should take the following

aspects into account:

• Whether the State has a stable and democratic

political system

• Whether the State has an independent and

impartial judicial system, and the administration

of justice meets the r

equirements for a fair trial

• Whether the State has signed and adheres to

the main international conventions on human

rights, and no serious violations of human rights

have taken place in the State.

No lists of safe countries of origin are used. The

assessment is always made individually for each

applicant. The grounds presented by the applicant and

all speciﬁ c factors implying that the country concerned

might not be safe for the applicant are taken into

consideration when deciding on the case.

When the decision on the application has been made

on the basis of the notion of a safe country of origin, the

decision on refusal of entry can be enforced eight days

after serving the decision on the applicant. An appeal to

the Administrative Court of Helsinki will not suspend the

enforcement, unless it is otherwise ordered by the Court.

Procedure

If the applicant is considered to come from a safe

country of origin, a decision on the application must be

made within seven days of the date when the minutes

of the interview were completed and the information on

their completion was entered in the Register of Aliens.

Asylum Applications Made by Citizens of

European Union Member States

Finland observes the Protocol on Asylum for Nationals

of Member States of the European Union annexed

to the Treaty of Amsterdam and therefore presumes

that, as the Protocol states, EU Member States are

considered to be safe countries of origin.

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Nevertheless, according to Finnish law, all applications

made by EU citizens are examined on their merits,

under an accelerated procedure.

The Finnish Immigration Service must notify the Ministry

of the Interior immediately of any application for asylum

made by a citizen of the European Union, if it does

not consider the State in question a safe country of

origin for the applicant and if it does not apply sections

103(2)(1) and 104 of the Aliens Act to a decision on the

application. The Ministry of the Interior then notiﬁ es the

Council of the European Union of the matter.

5.2.2. Safe Country of Asylum

The notions of “ﬁ rst country of asylum” and “safe third

country” are not found in the Aliens Act. However,

the notion of “safe country of asylum” covers both

situations since a reference is made in the deﬁ nition to

a country in which an asylum-seeker enjoyed or could

have enjoyed protection and where he or she may be

returned.

The criteria and procedure for the application of the

notion of “safe country of asylum” are laid down in the

Act. In recent years, no decisions on the basis of the

application of the notion of a safe country of asylum

have been made.

Procedure

An application for international protection may be

dismissed if the applicant has arrived from a safe

country of asylum. The Finnish Immigration Service

has to take a decision on the application within seven

days of the date when the minutes of the interview were

completed and the information on their completion was

entered in the Register of Aliens.

No lists of safe countries of asylum are used. The

assessment is always made individually for each

applicant. The grounds presented by the applicant and

all speciﬁ c factors implying that the country concerned

might not be safe for the applicant are taken into

consideration when deciding on the case.

When the decision on the application has been made on

the basis of the notion of a safe country of asylum, the

decision on refusal of entry can be enforced eight days

after serving the decision on the applicant. An appeal

to the Administrative Court of Helsinki will not suspend

the enforcement, unless otherwise ordered by the Court.

5.3 Special Procedures

5.3.1. Unaccompanied Minors

All unaccompanied minor asylum-seekers have access

to the asylum procedure.

In any decision issued under the Aliens Act that concerns

a minor under 18, special attention must be paid to

the best interest of the child and to circumstances

related to the child’s development and health. Before

a decision is made concerning a child who is at least 12

years old, the child may be heard unless such hearing

is manifestly unnecessary. The child’s views may be

taken into account in accordance with the child’s age

and level of development. A younger child may also be

heard if the child is sufﬁ ciently mature to have his or

her view taken into account. Matters related to minors

must be processed as a priority.

According to the Act on the Integration of Immigrants

and Reception of Asylum Seekers, a representative

must be assigned to an unaccompanied minor

asylum-seeker. The reception centre at which the

minor is registered applies for the appointment of a

representative at the District Court.

The representative’s task is to supervise the interests

of the child during the asylum procedure. It is not the

representative’s function to see to the daily or other

care or upbringing of the child.

In the transposition of the EU Asylum Procedures

Directive, a proposal has been made to add in the

Aliens Act an obligation to give a representative a

possibility to be present at the asylum interview of

an unaccompanied minor. This is the practice already

today since a representative is always present at the

interview of an unaccompanied minor asylum-seeker.

The Finnish Immigration Service has produced interview

guidelines for unaccompanied minor asylum-seekers.

Unaccompanied minor asylum-seekers are interviewed

and their applications are investigated by specially

trained personnel of the Finnish Immigration Service.

There is no requirement to undergo age assessment

tests. However, some tests can and have been done

but only with the approval of the applicant (and his or

her representative).

Since the legislative amendment of the Aliens Act in

2007, the Finnish Immigration Service aims at tracing

without delay an unaccompanied minor asylum-

seeker’s parents or legal guardians.

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Figure 4:

Total Applications Made by Unaccompanied

Minors, 2001-2008

126

220

108

706

106

100

200

300

400

500

600

700

800

2001

2002

2003

2004

2005

2006

2007

2008

5.3.2. Temporary Group-Based

Protection

The Aliens Act was amended in 2002 in order to

implement the essential provisions of Council Directive

2001/55/EC

. Temporary protection may be given to

persons who need international protection and who

cannot return safely to their home country or country

of permanent residence because there has been a

massive displacement of people in the country or its

neighbouring areas as a result of an armed conﬂ ict,

some other violent situation or an environmental

disaster. Providing temporary protection requires that

the need for protection be considered to be of short

duration.

Temporary protection lasts for a maximum of three

years in total. Foreign nationals in need of temporary

protection are issued a residence permit for a maximum

of one year at a time.

5.3.3. Stateless Persons

Stateless persons may make asylum applications in

Finland according to the same procedures as other

asylum-seekers.

Finland recently ratiﬁ ed the UN Convention on Reduction

of Statelessness and the European Convention on

Nationality. In the asylum procedure, statelessness is

taken duly into account when assessing whether the

applicant can receive protection in another country. If

no such country exists for this particular applicant, he

or she will be given the appropriate status in Finland.

According to the Aliens Act, an Alien’s passport may

be issued to those who have no citizenship. Stateless

Council Directive 2001/55/EC of 20 July 2001 on minimum

standards for giving temporary protection in the event of a mass

inﬂ ux of displaced persons and on measures promoting a balance

of efforts between Member States in receiving such persons and

bearing the consequences thereof (Temporary Protection Directive).

persons who are granted refugee status are issued a

refugee travel document.

6 Decision-Making and

Status

6.1 Inclusion Criteria

6.1.1. Convention Refugee

Section 87 of the Aliens Act sets out the criteria for

granting asylum in line with the criteria laid out in Article

1A (2) of the 1951 Convention.

Asylum is deﬁ ned in section 3 of the Aliens Act to mean

a residence permit issued to a refugee under the asylum

procedure. A person acknowledged as a refugee is

granted refugee status.

6.1.2. Complementary Forms of

Protection

If an asylum-seeker does not meet the criteria for refugee

status, he or she may be granted a complementary

form of protection, that is, subsidiary protection or

humanitarian protection.

Subsidiary protection may be granted where there

are substantial grounds to believe that the person

concerned, if returned, would face a real risk of suffering

serious harm, and is unable or owing to such risk

unwilling to avail himself or herself of the protection of

the State. Serious harm consists of:

• The death penalty or execution

• Torture of inhuman or degrading treatment or

punishment

• Serious and individual threat by reason

of indiscriminate violence in situations of

international or internal armed conﬂ ict.

An asylum-seeker may be granted humanitarian

protection if he or she is unable to return to the country

of origin because of an environmental disaster or a poor

security situation resulting from an international or internal

armed conﬂ ict or a serious human rights situation.

6.1.3. Non-Protection Related Status

As Finland applies a single procedure, all grounds – both

protection and non-protection-related – are examined

when determining whether an asylum-seeker may be

granted a residence permit. The non-protection-related

grounds that may form the basis for being granted a

residence permit are as follows:

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• Compassionate grounds. According to section

52 of the Aliens Act, foreign nationals residing in

Finland may be issued a continuous residence

permit if refusing a residence permit would be

manifestly unreasonable in view of their health,

their ties to Finland or on other compassionate

grounds, particularly in consideration of their

vulnerable position or the circumstances they

would face in their home country

• Cases where foreign nationals cannot be

emoved from the country. Persons residing in

Finland are issued with a temporary residence

permit if they cannot be returned to their home

country or country of permanent residence for

temporary reasons of health or if they cannot

actually be removed from the country (i.e. there

are practical impediments for the removal)

• Family ties in Finland

• Ongoing studies undertaken in Finland

• Ongoing employment or self-employment in

Finland.

6.2 The Decision

After considering the merits of the claim, the Finnish

Immigration Service caseworker submits a proposal

for a decision to his or her supervisor (the Head of

Section), who will make the ﬁ nal decision. The decision

is always made in writing. The reasons in fact and in

law are stated in the decision, and information on

how to challenge a negative decision is also given in

writing. The decision is sent to the Police in the asylum-

seeker’s place of residence. The Police are responsible

for serving the decision to the applicant.

The applicant is entitled to receive the decision

concerning his or her application in his or her native

language or in a language that the applicant can be

presumed to understand. The notiﬁ cation of a decision

will be made through interpretation or translation.

If the application is rejected, a decision on refusal of

entry or deportation is issued at the same time, unless

special reasons have arisen for not making a decision

on removing the applicant from the country.

The Ombudsman for Minorities is notiﬁ ed of any decision

under the Aliens Act on issuing a residence permit on

the basis of international or temporary protection or on

refusing an applicant entry or deporting the applicant.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

The Finnish Immigration Service may take one of the

following decisions:

• Grant Convention refugee status (Aliens Act,

section 87)

• Issue a residence permit on the basis of

subsidiary pr

otection or humanitarian protection

(Aliens Act, sections 88 and 88a)

• Grant a residence permit on other, non-

otection-related grounds

• Reject the application with a refusal of entry.

The Immigration Service may r

eject an application

for protection with a refusal of entry if the following is

applicable:

• The application does not present merits for

granting asylum or a complementary form of

protection

• The situation in the asylum-seeker’s country of

origin or country of permanent r

esidence does

not warrant the need of international protection

• The applicant cannot be granted a residence

permit on any non-pr

otection-related ground.

Beneﬁ ts

Recognised refugees and beneficiaries of

complementary protection are allowed to work and

have access to social assistance, health care and

accommodation. Their integration into Finnish society is

supported by local authorities. They have also a right to

family reuniﬁ cation for nuclear family members (spouse

and unmarried children under 18 years of age).

Recognised refugees and beneﬁ ciaries of subsidiary

protection are first issued a fixed-term continuous

residence permit (type A). The ﬁ rst ﬁ xed-term residence

permit is issued for one year and a new fixed-term

residence permit is issued if the requirements under which

the person was issued his or her previous ﬁ xed-term

residence permit are still valid. For the transposition into

national law of the EU Qualiﬁ cation Directive, a proposal

has been made to change the ﬁ rst ﬁ xed-term continuous

residence permit for both refugees and beneﬁ ciaries of

subsidiary protection to a four-year permit.

A refugee travel document is issued to a person who has

been granted refugee status. A person who has been

issued a residence permit on the basis of subsidiary

protection is issued an Alien’s passport.

15 A residence permit may be issued to other relatives of a refugee

or a beneﬁ ciary of subsidiary or temporary protection if refusing

the residence permit would be unreasonable because the persons

concerned intend to resume their close family life in Finland or

because the relative is fully dependent on the sponsor living in

Finland.

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Non-Protection-Related Grounds

The permit granted under section 52 of the Aliens Act is

continuous, and the ﬁ rst permit is issued for one year.

A new permit is issued for a maximum of four years.

Persons who meet grounds for stay under section 51

(obstacles to return) are granted a temporary residence

permit.

Foreign nationals, including refugees and beneﬁ ciaries

of other types of protection and non-protection-related

permits, may become eligible for a permanent residence

permit (type P) after having resided legally in Finland for

a continuous period of four years and if the requirements

for issuing a continuous residence permit remain valid

and there are no obstacles to issuing a permanent

residence permit under the Finnish Aliens Act.

6.4 Exclusion

The Finnish Immigration Service considers Article 1F

of the 1951 Convention when examining a claim for

both Convention refugee status and complementary

forms of protection (Aliens Act, section 89). Exclusion

clauses are included in section 87 (2) and Section 88

(2) of the Aliens Act.

Excluded persons are entitled to a temporary residence

permit for a period of one year. The residence permit

can be renewed and can become permanent. Excluded

persons are protected from refoulement.

According to the Aliens Act, foreign nationals residing

in Finland who are not granted asylum or a residence

permit on the basis of subsidiary protection or

humanitarian protection because they have committed,

or there are reasonable grounds to suspect that they

have committed, an act referred to in Article 1F of the

1951 Convention, are issued a temporary residence

permit for a maximum of one year at a time if they

cannot be removed from the country because they are

under the threat of death penalty, torture, persecution

or other treatment violating human dignity.

6.5 Cessation

Finland applies Article 1C of the 1951 Convention to both

Convention refugee status and complementary protection.

According to section 107 of the Aliens Act, a person’s

refugee status may be withdrawn if he or she meets one

of the criteria set out in Article 1C. Subsidiary protection

status may be withdrawn if circumstances which led to the

granting of subsidiary protection have ceased or changed

to such an extent that protection is no longer needed.

16 Residence permits issued in Finland are either ﬁ xed-term or

permanent. Fixed-term permits are further broken down into two

categories: temporary and continuous.

Every case is decided individually. Cessation occurs

in cases of significant and durable changes in the

country of origin, as well as changes in the particular

circumstances on the basis of which the person was

once granted refugee status.

When cessation of asylum is decided, the refugee or

beneﬁ ciary of subsidiary protection may defend his

or her case. The decision of the Finnish Immigration

Service may be appealed to the Administrative Court

of Helsinki and further to the Supreme Administrative

Court, if leave is granted.

6.6 Revocation

According to the Aliens Act (section 108), refugee

status and subsidiary protection status are cancelled

if the applicant has, when applying for international

protection, deliberately or knowingly given false

information that has affected the outcome of the

decision, or concealed a fact that would have affected

the outcome of the decision.

A ﬁ xed-term or permanent residence permit may be

cancelled if false information on the person’s identity

or other matters relevant to the decision was knowingly

given when the permit was applied for, or if information

that might have prevented the issue of the residence

permit was concealed. A ﬁ xed-term residence permit

may also be cancelled if the grounds on which the

permit was issued no longer exist.

In addition, a ﬁ xed-term or permanent residence permit

may be cancelled if the person has moved out of the

country permanently or has continuously resided

outside Finland for two years for permanent purposes.

There is no time limit for revocation to be applied.

6.7 Support and Tools for

Decision-Makers

6.7.1. Country of Origin Information

The Country Information Service is a sub-unit of

the Legal and Country Information Unit within the

Finnish Immigration Service. The Country Information

Service produces thematic reports and answers to

individual country information requests, primarily for

use by caseworkers but also by asylum policy-makers

and appeal bodies. Caseworkers can access these

reports and request responses directly on the country

information electronic database, TELLUS.

The Country Information Service manages the up-

to-date collection of the Migration Library, which is

accessible to all Immigration Service staff. The Country

Information Service is also involved in training decision-

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makers and new Finnish Immigration Service staff on

the use of country of origin information (COI).

6.7.2. Other Support Tools

If there is a special need for a common policy on how to

handle claims of certain refugee groups, the Legal Service

within the Finnish Immigration Service can provide such

guidance papers. These general recommendations (policy

guidelines) are guidelines for decision-makers, but they

need to be checked in every case to determine whether or

not this general guidance is applicable in a particular case.

Training of decision-makers takes place on a variety

of aspects of the work, including interview techniques,

intercultural dialogue and legal training.

Decision-makers have access to an electronic database,

Legis, where all key cases are stored. The UNHCR

Handbook on Procedures and Criteria for Determining

Refugee Status is made available to every decision-

maker while UNHCR’s Refworld website of all asylum-

and refugee-related documentation is also in general use.

Language analysis can be used if the local Police so

decide.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

According to the Aliens Act, for the purposes of

identiﬁ cation and registration, Police or border check

authorities take ﬁ ngerprints and a photograph and

record other personal descriptions of a person who has

applied for asylum.

7.1.2. DNA Tests

The Finnish Immigration Service may provide the

person with an opportunity to undergo DNA analysis,

if an asylum-seeker also applies for a residence permit

on the basis of family ties and if no other adequate

evidence of family ties is available. DNA testing is

suggested only where there are no reliable documents

to prove family ties. Usually, the applicant and the family

member are ﬁ rst heard from either in writing or in person

and orally. After the hearing, the Finnish Immigration

Service decides whether or not DNA analysis is needed.

7.1.3. Forensic Testing of Documents

If a document is suspected to be false or forged, it can

be sent to the Crime Laboratory of the National Bureau

of Investigation (Police). The Police will undertake an

analysis and provide a statement about the authenticity

of the documents.

Box 2:

Developments in the Provision of COI in Finland

The Country of Origin Information (COI) unit has operated as a separate section of the Directorate of Immigration

(and its successor, the Finnish Immigration Service) since 1998 and works independently of decision-making personnel.

Since 1997, the number of staff working in the COI unit has doubled – the section now consists of 10 persons. This

has allowed its researchers to develop a specialisation in speciﬁ c countries of origin.

In addition to the growth of the COI unit in terms of staff, one of the other major developments in the provision of

country information has been the creation of the electronic COI database known as TELLUS. TELLUS was introduced

in 2001 and has since been upgraded regularly to conform to developments in information technology. The TELLUS

database is available to all decision-makers at the Finnish Immigration Service as well as external agencies such as

the appeal bodies and the Police.

While the responsibilities of the Country Information Service have changed little in the last decade, the methodology

for gathering information has developed alongside the increasing use of electronic sources of information. The

Country Information Service has also undertaken a small number of fact-ﬁ nding missions in recent years and has

experimented with other efﬁ cient types of information gathering, such as cooperation with the ofﬁ ces of the

International Organization for Migration (IOM) in the ﬁ eld.

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7.1.4. Database of Asylum

Applications/Applicants

Personal distinguishing marks (such as ﬁ ngerprints)

taken by Police or border check authorities are

registered in the Police identiﬁ cation register.

The Finnish Immigration Service maintains the Register

of Aliens, which contains among other things data on

persons who have applied for asylum. The Register of

Aliens includes the following information:

• Identiﬁ

cation data regarding the person

• Data regarding the application, declaration or

inquiry

• Data collected while processing the application

• Decisions and grounds for the decisions

• Contact information for family members or

sponsors.

The Register of Aliens contains six sub-r

egisters, the

main controllers of which are the Finnish Immigration

Service and the Ministry for Foreign Affairs. The register

is also maintained and used by the Police, the Frontier

Guard, the Customs authority, the Employment and

Economic Development Centres, the Employment

Ofﬁ ces, the Prison Administration Authority and the

Ombudsman for Minorities.

7.1.5. Others

Finland makes use of pre-entry technology such

as systems to detect fraudulent documents and a

ﬁ ngerprint-check system, as well as registers to trace

stolen documents.

The Finnish Border Guard and the Crime Laboratory

of the National Bureau of Investigation (Police) have

in place a large reference system on fraudulent

documents.

7.2 Length of Procedures

There are no time limits for submitting an asylum

application. In principle, an application must be made upon

entry into the country or as soon after entry as possible.

Section 95(2) of the Aliens Act lays down situations in

which an application may be ﬁ led at a later date.

If the applicant is considered to come from a safe country

of asylum or origin, a decision on the application must

be made within seven days of the date when the minutes

of the interview are completed and the information on

their completion is entered in the Register of Aliens.

Otherwise, there are no time limits for processing asylum

applications laid down in the Aliens Act

The average time for processing asylum claims in 2008

was 127 days (under the normal procedure, the average

was 176 days while under the accelerated procedure,

the average was 57 days).

As described above, the Finnish Immigration Service

prioritises the examination of certain asylum applications

(such as those from unaccompanied minors and other

vulnerable persons) based on its internal instructions.

7.3 Pending Cases

As at 31 December 2008, there were 2,631 pending

asylum cases at the Finnish Immigration Service.

7.4 Information Sharing

According to the Act on the Openness of Government

Activities (621/1999), documents concerning a refugee

or an asylum-seeker are treated as conﬁ dential unless it

is obvious that access will not compromise the safety of

the refugee, the applicant or a person closely involved

with them. An authority may provide access to a secret

ofﬁ cial document if there is a speciﬁ c provision on such

access or on the right of such access, or if the person

whose interests are protected by the secrecy provision

consents to the access.

The Act on the Openness of Government Activities

contains provisions on the right of access to ofﬁ cial

documents in the public domain, ofﬁ cials’ duty of non-

disclosure, document secrecy, and any other restrictions

on access that are necessary for the protection of public

or private interests, as well as on the duties of the

authorities for the achievement of the objectives of this

Act. The Act does not include provisions concerning

information exchange on asylum-seekers. It sets the

general framework for activities of the authorities.

Information can be shared in accordance with the

Dublin Regulation.

UNHCR and legal counsellors are provided access to

the ﬁ le of an asylum-seeker provided that the applicant

has given consent.

7.5 Single Procedure

Finland applies a single asylum procedure, which means

that all grounds for a residence permit are examined at

the same time. According to section 94 of the Finnish

Aliens Act, granting the right of residence is also

17 For statistics on the length of procedures, please visit the website

of the Finnish Immigration Service, www.migri.ﬁ .

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FIN

investigated and decided on other emerging grounds

(complementary forms of protection or other residence

permit) in conjunction with the asylum procedure.

Box 3:

Cooperation with UNHCR, NGOs

The UNHCR Regional Ofﬁ ce for the Baltic-Nordic

Region, located in Stockholm, Sweden, has no

formal role in the asylum procedure. However, upon

the request of a party in the procedure, UNHCR

may provide updated country of origin information

(COI), legal advice or UNHCR’s recommendations

and guidelines. In exceptional precedent-setting

cases, the UNHCR may submit amicus curiae to the

last instance body.

In line with Article 35 of the 1951 Convention,

asylum-seekers have access to the UNHCR, which

is entitled to request and obtain information on

individual applications (based on the consent of

the asylum-seeker) and to present its views on

individual claims to the decision-making authorities.

7.6 Other measures

The Ministry of the Interior set up a review project for the

period 1 November 2007 to 30 April 2008 to develop the

operations of the Finnish Immigration Administration

and the Finnish Immigration Service. The main focus

of the review was developing the service, quality of

operations and structure of the Finnish Immigration

Service. Among the proposals of the report was giving

the competence and responsibility for the practical

steering of reception centres to the Finnish Immigration

Service. A government proposal on the subject will be

given to Parliament before the summer of 2009.

8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

Asylum-seekers are allowed to use legal counsel at the

asylum interview and in the appeal process. However,

there is no obligation in the national legislation to

provide legal counsel. In practice, authorities provide

asylum-seekers with assistance in contacting a legal

counsel. The reception centres inform asylum-seekers

regarding the possibility of using legal counsel and

having free legal aid. Asylum-seekers may also contact

the Ombudsman for Minorities for advice on legal

assistance.

An asylum-seeker’s right to legal aid is laid down in

the Legal Aid Act. Legal aid is provided by Legal Aid

Ofﬁ ces as well as other law ﬁ rms and attorneys that are

listed with the reception centre as providers of legal aid

services for asylum-seekers. A court may grant legal

aid to asylum-seekers without requiring a statement

on their ﬁ nancial situation. The legal aid is paid out of

State funds.

Applicants can use the services of a legal counsel

throughout the process, but there is no obligation,

according to Finnish laws, to provide a legal counsel.

According to the Legal Aid Act, applicants are eligible

for free legal aid only at the appeal stage. According

to the Act, legal aid may be given if the person has a

matter to be heard by a Finnish court of law.

8.1.2. Interpreters

The Aliens Act stipulates that interpretation or

translation may be provided if the foreign national does

not understand the Finnish or Swedish language or if he

or she, because of his or her disability or illness, cannot

be understood. Interpretation is provided at all stages

of the asylum procedure. The person concerned has

the right to be notiﬁ ed of a decision concerning him or

her in his or her mother tongue or in a language which,

on reasonable grounds, he or she can be expected to

understand. A decision is given through interpretation

or translation.

8.1.3. UNHCR

The UNHCR Regional Ofﬁ ce in Stockholm responds

to inquiries from asylum-seekers and provides general

information about the asylum procedure and the

contact details of legal counselors and relevant national

institutions.

8.1.4. NGOs

The main non-governmental organisation offering legal

aid and advice to asylum-seekers in Finland is the

Finnish Refugee Advice Centre. Lawyers of the Refugee

Advice Centre are available to provide legal advice and

assistance to asylum-seekers at different stages of

the asylum procedure. They also offer information to

asylum-seekers on the asylum procedure and the rights

of asylum-seekers in Finland. They often assist the

asylum-seekers at asylum interviews and represent the

applicants at the appeal stage. Similar to the UNHCR,

they are allowed to have access to asylum-seekers, to

have information on the individual applications (based

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on the consent of the asylum-seeker) and to present

their views on individual applications

8.2 Reception Beneﬁ ts

The following benefits apply during the asylum

application procedure, until the time of departure, as

the case may be.

8.2.1. Accommodation

An asylum-seeker may reside either in a reception centre

with basic facilities or in private accommodation. Private

accommodation may be arranged by the asylum-seeker

at his or her own cost. All reception centres are funded

by the government. There are two reception centres

that are run by the Finnish Red Cross. An additional 12

reception centres are run by the municipalities.

Some of the reception centres are transit centres, from

which, following the asylum interview, the asylum-

seeker is transferred to another reception centre where

he or she resides until a ﬁ nal decision is made on the

asylum application.

Unaccompanied minor asylum-seekers are always

initially placed in group homes established in connection

with the reception centres. The group homes are

located throughout Finland, each accommodating

between eight and 24 children. The group homes are

responsible for the accommodation, daily care and

upbringing of the children they house.

8.2.2. Social Assistance

According to section 19 of the Finnish Constitution,

persons who cannot obtain the means necessary

for a life of dignity have the right to receive ﬁ nancial

assistance and care.

An asylum-seeker is entitled to income support, if he or

she does not have any other income or ﬁ nancial means.

For adults, the amount of income support is 10%

less and for minors 15% less than the basic amount

ordained in the Law on Income Support (1412/1997).

The reason for the mentioned reductions is that adult

asylum-seekers are regarded as receiving from the

reception centre services worth approximately 10%

and minors approximately 15% of the basic amount of

the income support.

18 The Finnish Immigration Service may hear the views of UNHCR

and of legal counsel of the Finnish Refugee Advice Centre on

individual asylum applications and may choose to take these

views into consideration when examining the merits of the claim.

8.2.3. Health Care

According to the National Health Act (66/1972), an

asylum-seeker is entitled to fundamental health care,

that is, emergency health care. However, health care

services offered to minors (who have arrived either with

their families or unaccompanied) are broader than those

offered to adults.

Upon arrival at the reception centre, all asylum-

seekers may take voluntary medical tests (such as for

tuberculosis, HIV, hepatitis and cardiolipin). If there are

reasons to believe a person may carry tuberculosis, a

medical test is mandatory.

The reception centres buy the fundamental health care

services from the public or private health care sector.

A great majority of the reception centres are staffed

by a nurse who may refer asylum-seekers for medical

care. Medicines ordered by a doctor are compensated

for with the income support. Asylum-seekers with paid

employment may be required to pay for health services.

8.2.4. Education

According to the Finnish Constitution (section 16),

everyone has the right to basic education free of charge.

However, municipalities are not responsible by law for

providing education, although in practice, they do.

Children below the Age of 17

As do all children in Finland, minor asylum-seekers

between seven and 17 years old receive basic

compulsory education, which is given in primary

schools.

Minor asylum-seekers attend special classes for

immigrant children. There is a teaching period of

500 hours, during which children are taught mainly

the Finnish language. At this stage, children can be

integrated into classes of their own age in certain

subjects such as music, drawing, sports, etc. Children

can also be taught their native language for two hours

per week if there are at least four pupils in the same

group.

Also as is the case for all children in Finland, once a

minor asylum-seeker has completed compulsory basic

education, he or she may have access to secondary

school.

Persons over the Age of 17

Asylum-seekers who are over 17 years old can study

in special classes for adults, at secondary schools

for adults, at evening classes, at folk high schools, or

in classes organised by the reception centre. Study

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activities may

include courses in Finnish or Swedish,

familiarisation with Finnish society and customs, as

well as basic computer skills. The studies of asylum-

seekers may form part of an Activity Programme.

By signing the Activity Programme, asylum-seekers

commit themselves to their studies. However, there is

no obligation for asylum-seekers over the age of 17

to study. Studies can be replaced by work activities

assigned in the Activity Programme.

8.2.5. Access to Labour Market

An asylum-seeker may start work in Finland without

a residence permit three months after submitting an

asylum application. This right to work is granted to

asylum-seekers by law and is not subject to a separate

application. Asylum-seekers are entitled to work until a

ﬁ nal decision on the application has been made.

8.2.6. Family Reuniﬁ cation

Family reuniﬁ cation is not possible during the asylum

procedure. However, an applicant who is not in need

of international protection can be granted a residence

permit on the basis of his or her family ties to Finland. As

explained above, these grounds are also investigated

and decided in conjunction with the asylum procedure.

8.2.7. Access to Integration

Programmes

Access to integration programmes is not possible during

the asylum procedure. However, the asylum-seeker

may study (as noted above) and/or may start working

three months after submitting the asylum application.

Instead of studies and/or work, the asylum-seeker

may participate in, for example, cleaning, renovation,

repair, or yard work at the reception centre and this

work activity can be included in the Activity Programme.

It is mandatory for asylum-seekers to participate in

some kind of activity if an asylum-seeker is not ill or if

there is no other compelling reason not to participate.

The income support can be temporarily lowered by

20% if the asylum-seeker refuses to participate without

any acceptable reason.

8.2.8. Access to Beneﬁ ts by Rejected

Asylum-Seekers

Rejected asylum-seekers are provided with a daily

allowance, accommodation and basic health care until

their return or removal.

9 Status and Permits

Granted outside the

Asylum Procedure

Finland applies a single asylum procedure. This means

that all grounds for granting the right of residence are

investigated in conjunction with the asylum procedure.

Nevertheless, there are other types of status that may

be granted outside the asylum procedure, such as

temporary protection (Aliens Act, section 109) or other

humanitarian immigration (Aliens Act, section 93).

9.1 Humanitarian Grounds

Outside the asylum procedure, there is a system for

admitting foreign nationals into Finland on special

humanitarian grounds or to fulfil international

obligations. There is no application procedure. The

decision-making process begins with the Ministry of

the Interior and the Ministry for Foreign Affairs preparing

a joint proposal for a government decision on whether

to grant a permit on these grounds. The ﬁ nal decision

is made by the government in plenary sessions, and

the residence permit, if granted, is issued by the Finnish

Immigration Service. Witnesses who have appeared

at international criminal tribunals have been granted

residence permits on special humanitarian grounds.

9.2 Temporary Protection

As noted above, providing temporary protection on

the basis of the EU Temporary Protection Directive

requires that the need for protection be considered

to be of short duration. The Government decides in

a plenary session on population groups that may be

given temporary protection and on the period during

which residence permits may be issued on the basis

of temporary protection.

Persons found to be in need of temporary protection

are issued a residence permit for a maximum of one

year at a time.

9.3 Regularisation of Status of

Stateless Persons

There are no special procedures in place to regularise

the status of stateless persons in Finland.

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10 Return

10.1 Pre-departure Considerations

An asylum-seeker who has received a negative decision

on a claim before the Finnish Immigration Service

has a right of appeal and may ﬁ le a petition with the

Helsinki Administrative Court for the suspension of

the enforcement of a decision on refusal of entry.

The principle of non-refoulement is always taken into

account in the enforcement of decisions.

10.2 Procedure

The Police and the Border Guard are responsible for

the enforcement of the decisions on refusal of entry

or removal. The responsibility for coordination of the

decisions on refusal of entry enforced by the Police

has been given to the Immigration Police of Helsinki.

10.3 Freedom of Movement/

Detention

The same provisions regarding freedom of movement

and detention apply to asylum-seekers and rejected

asylum-seekers, as described in the section on Asylum

Procedures above.

10.4 Readmission Agreements

Finland has not concluded readmission agreements for

any speciﬁ c groups of rejected asylum-seekers. Finland

has bilateral readmission agreements with Estonia,

Lithuania, Latvia, Bulgaria and Romania. Finland has

negotiated an agreement with Switzerland. It will come

into force in 2010.

11 Integration

Right to an Integration Plan

Immigrants residing in Finland are entitled to an

integration plan in accordance with provisions in the

Act on Social Assistance. The right to an integration

plan applies to all immigrants who have a residence

permit and who register as unemployed jobseekers

or apply for social assistance. This applies to persons

who have acquired status within the asylum procedure

regardless of whether they have Convention refugee

status or a form of complementary protection status

or are resettled refugees.

An integration plan is drawn up in cooperation with

the local authority and the employment and economic

development centre. The duration and amendment of a

plan and extension of a suspended plan are subject to

agreement among the local authority, the employment

ofﬁ ce and the immigrant.

Integration Plan

An integration plan sets out the speciﬁ c activities that

may be undertaken to support the immigrant and the

immigrant’s family in acquiring the essential knowledge

and skills needed in society and working life.

The integration plan may be an agreement on providing

support in a variety of areas, such as language classes

(Finnish or Swedish), employment-related training,

education, vocational counselling and rehabilitation,

the integration of children and young people, and any

other activity that is considered important for integration

purposes.

Immigrants may also receive integration support

intended to promote and improve their ability to ﬁ nd

employment or further training and to improve their

ability to function in Finnish society by securing their

means of support while the integration plan is being

implemented. Provisions for integration support are laid

out in the Act on the Integration of Immigrants and

Reception of Asylum-seekers.

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12 Annexe

12.1 Processing Costs

The ﬁ gures listed below are indicative of costs incurred by the state for the decision-making process of the Finnish

Immigration Service and Police duties related to the asylum procedure. Several factors affect these costs, e.g. the

number of asylum-seekers per year and the total duration of the asylum procedure, and it is difﬁ cult to anticipate

and list these costs due to the nature of the asylum-seeking process.

The Finnish Immigration Service

According to the Finnish Immigration Service, the costs of decision-making on an asylum application during the

period from January to August 2008 were the following:

Decision on an asylum application

(the cost includes the working costs and a part of the general costs

regarding an asylum investigation and the qualitative assessment on an asylum claim)

1,490 

Decision on refusal of entry 1,516 

Primary costs on an average per capita basis:

Interpretation costs of an asylum interview

Translation of documents

263 

42 

Costs per asylum-seeker:

Asylum-seeker, positive decision on an asylum application

Asylum-seeker, negative decision on an application for international protection

and a residence permit based on other grounds

1,795 

2,656 

Asylum-seeker, negative decision and decision on refusal of entry

Readmission cases based on the Dublin II Regulation

3,311 

328 

The Police

The costs incurred by the Police during the different phases of the asylum procedure relate to the asylum investigation, the

removal from the country, and the guarding and transporting of persons in detention. Besides working costs, the asylum

procedure involves interpretation costs and costs related to concrete measures to remove a person from the country. The

estimation of costs is based on the costs of the required person years of the Police in relation to the above-mentioned tasks.

A rough estimation of the costs incurred by the police for the tasks related to the asylum procedure is the following:

Working costs (in 2006 for 2,324 asylum-seekers)

(costs include establishing the entry into the country, the travel route and

the identity of the asylum-seeker, tasks related to the enforcement of

removal from the country, and the guarding and transporting of persons

in detention)

645 /asylum-seeker

Interpretation costs on average (in 2007 for 1,505 asylum-seekers) 194 /asylum-seeker

Costs of escort on average (in 2007 for 1,505 asylum-seekers)

(costs include, inter alia, the ﬂ ight ticket costs of the person to be

removed from the country and his or her escorts)

1,143 /asylum-seeker

The costs incurred by the Police have been divided by the total number of asylum-seekers. The cost per asylum-

seeker depends, inter alia, on whether the decision is positive or negative. The costs do not include costs incurred

during the decision-making process for residence permits.

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12.2 Additional Statistical Information

500

1,000

1,500

2,000

2,500

3,000

3,500

1997 2002 2008

Tu rk e y

Yugoslavia (former)

Bulgaria

Bosnia and Herzegovina

Slovakia

Romania

Iran

Russia

Afghanistan

Somalia

Iraq

Figure 5:

Asylum Applications from Top Five Countries of Origin for Finland in 1997, 2002 and 2008

Geneva Convention

Status

Complementary

Protection and Other

Authorisations

to Remain

Rejections Other Decisions*

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1992

12 1% 467 20% 1,344 57% 529 22% 2,352

1993

9 0% 2,043 46% 1,435 32% 991 22% 4,478

1994

15 1% 277 25% 491 45% 319 29% 1,102

1995

4 1% 199 30% 269 40% 202 30% 674

1996

11 1% 321 43% 248 33% 164 22% 744

1997

4 1% 247 33% 278 37% 213 29% 742

1998

7 1% 356 41% 240 28% 263 30% 866

1999

29 1% 467 17% 114 4% 2,115 78% 2,725

2000

9 0% 458 13% 2,121 58% 1,049 29% 3,637

2001

4 0% 809 37% 1,045 48% 307 14% 2,165

2002

14 0% 581 17% 2,315 69% 431 13% 3,341

2003

7 0% 487 15% 2,443 74% 383 12% 3,320

2004

29 1% 771 16% 3,418 72% 546 11% 4,764

2005

12 0% 585 17% 2,472 72% 370 11% 3,439

2006

28 1% 460 21% 1,434 66% 264 12% 2,186

2007

68 3% 792 40% 961 49% 135 7% 1,956

2008

89 4% 696 35% 1,011 51% 199 10% 1,995

*Other decisions may include withdrawn claims, abandoned claims or claims otherwise resolved.

Figure 6:

Decisions Made at First and Second Instances, 1992-2008

France

FRA

145 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

146 - NATIONAL LEGAL FRAMEWORK

147 - INSTITUTIONAL FRAMEWORK

147 - PRE-ENTRY MEASURES

148 - ASYLUM PROCEDURES

152 - DECISION-MAKING AND STATUS

155 - E

FFICIENCY AND INTEGRITY MEASURES

156 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

159 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

160 - R

ETURN

161 - INTEGRATION

162 - ANNEXE

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FRA

1 Background: Major Asylum

Trends and Developments

Asylum Applications

In the early 1980’s, France was receiving approximately

20,000 asylum applications per year (minors excluded).

The numbers started to increase in the mid 1980’s,

however, reaching a peak of 61,000 in 1989. Annual

applications decreased considerably from 1990 to 1996,

when numbers reached a low of 21,122. In 1999 numbers

began to increase again and peaked in 2003 and 2004

at over 60,000 annual applications. Applications are

currently being made in slightly fewer numbers, with

42,500 applications received in 2008. This number,

however, represents an increase from 2007.

Top Nationalities

In 2008, the top countries of origin of asylum-seekers

were Russia, Mali and Sri Lanka. Signiﬁ cant numbers

of applications are also received from the Democratic

Republic of Congo and Turkey, which have been among

the top ten countries of origin since the mid-1990’s, as

well as from Serbia.

Figure 2:

Top Five Countries of Origin in 2008*

1 Russia 3,818

2 Mali 3,354

3 Sri Lanka 3,308

4 Turkey 2,945

5 DR Congo 2,920

* First applications only

Important Reforms

Act 98-349 of 11 May 1998 concerning entry and residence

as well as asylum in France created a form of alternative

protection called territorial asylum (asile territorial) for those

persons deemed to be not eligible for refugee status but

who could not be removed to their country of origin due to

a risk of treatment prohibited by Article 3 of the European

Convention on Human Rights (ECHR). Territorial asylum

claims were processed by the prefectures and decisions

were made by the Ministry of Interior, after consultation

with the Ministry of Foreign Affairs.

Under the Asylum Act 2003-1176 of 10 December 2003,

territorial asylum was replaced by subsidiary protection

* First applications only

28,925

42,599

22,350

61,422

21,122

65,614

35,520

10,000

20,000

30,000

40,000

50,000

60,000

70,000

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Figure 1:

Evolution of Asylum Applications* in France, 1983-2008

146

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

within the meaning of Council Directive 2004/83/EC

of 29 April 2004

, which was subsequently adopted.

Subsidiary protection, implemented by the Ofﬁ ce for the

Protection of Refugees and Stateless Persons (Ofﬁ ce

français pour la protection des réfugiés et apatrides,

OFPRA) in a single procedure, incorporated such new

concepts included in the Qualification Directive as

internal ﬂ ight alternative and safe countries of origin

as well as the concept of non-State agent persecution

within the scope of asylum. The introduction of

these new concepts reversed the well-established

jurisprudence of the competent Courts (the Refugee

Appeal Commission – Commission de recours des

réfugiés - and Council of State - Conseil d’Etat) that

had been in effect since 1952 (see below).

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

The procedure for examining asylum claims and the

granting of asylum are laid down in the Code on Entry

and Stay of Foreign Nationals and the Right to Asylum

of 24 November 2004 (Code de l’entrée et du séjour

des étrangers et du droit d’asile, CESEDA) modiﬁ ed by

Law 2007-1631 of 20 November 2007.

Council Directive 2004/83/EC of 29 April 2004 on minimum standards

for the qualiﬁ cation and status of third country nationals or stateless

persons as refugees or as persons who otherwise need international

protection and the content of the protection granted (Qualiﬁ cation

Directive).

2 The text of the CESEDA (consolidated version dated 1 February

2009) is available in French on the government legislation website:

http://www.legifrance.gouv.fr/.

Since the French legal system is a monist

one,

international treaties and conventions such as the 1951

Convention relating to the Status of Refugees (1951

Convention) and its 1967 Protocol, as well as other

relevant international instruments (e.g., the Convention

against Torture and other Cruel, Inhuman or Degrading

Treatment or Punishment (CAT), and the International

Covenant on Civil and Political Rights (ICCPR)) are

directly applicable.

All Council Directives have been transposed into

national legislation. The asylum-related directives were

incorporated into national legislation mainly through

the Asylum Act of 10 December 2003, the remaining

provisions having been transposed under other pieces

of legislation and by-laws.

2.2 Recent Reforms

The Law of 20 November 2007 (Loi Hortefeux) regulating

immigration, residence and naturalisation introduced

the following reforms to the asylum procedure:

• A new appeal procedure, with suspensive effect,

for negative decisions on asylum claims made

on entry at the bor

der

• A transfer of institutional responsibility for the

OFPRA, the agency in char

ge of examining

asylum claims, from the Ministry of Foreign

Affairs to the new Ministry of Immigration,

Integration, National Identity and Development

3 In other words, by ratifying an international legal instrument,

France immediately incorporates this document into national

law. International law can thus be directly applied by the national

courts and citizens may invoke international law just as they may

invoke national law.

* First applications only

500

1,000

1,500

2,000

2,500

3,000

3,500

4,000

4,500

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Russia Mali Sri Lanka

Figure 3:

Evolution of Applications* from Top Three Countries of Origin for 2008

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

FRA

• At the appeal level, the Refugee Appeal Commission

(Commission de Recours des Réfugiés) was

renamed the National Court of Asylum Law (Cour

Nationale du Droit d’Asile, CNDA). The time limit

for asylum-seekers who have received a negative

decision on their claim to make an appeal before

the CNDA remained unchanged at one month.

Under the Asylum Act of 10 December 2003, persons

claiming persecution or a serious threat from non-state

agents could be granted refugee status or subsidiary

protection (Article L.713-2 of CESEDA), while the

concepts of internal ﬂ ight alternative and safe countries

of origin were introduced into French legislation.

3 Institutional Framework

3.1 Principal Institutions

The Ministry of Immigration, Integration, National

Identity and Development (Ministère de l’immigration,

de l’intégration, de l’identité nationale et du

développement solidaire) has overall responsibility for

immigration policy and the integration of migrants.

The French Office for the Protection of Refugees

and Stateless Persons (Ofﬁ ce Français de Protection

des Réfugiés et Apatrides, OFPRA) is the competent

authority for the examination of asylum claims and the

granting of refugee status and subsidiary protection at

the ﬁ rst instance.

The National Court of Asylum (Cour Nationale du Droit

d’Asile, CNDA) hears appeals of decisions made by

the OFPRA.

The National Agency for the Reception of Foreign

Nationals and Migration (Agence Nationale de l’Accueil

des Etrangers et des Migrations, ANAEM) has, among

other tasks, the responsibility for coordinating the

reception of asylum-seekers, implementing returns, and

providing reintegration assistance to those returning

voluntarily to their country of origin.

The préfecture

is responsible, inter alia, for registering

asylum applications and making a decision on whether

an asylum-seeker may obtain a provisional stay

authorisation, in order to pursue his or her claim before

the OFPRA.

The Police and the Gendarmerie, both under the joint

authority of the Ministries of Interior and of Immigration

4 Regions in metropolitan France are subdivided into 96 administrative

departments (départements). The national government is represented

at the local level by a prefect (préfet) and its administration (préfecture).

are in charge of detention centres and of escorting

detainees to their interview at the OFPRA.

3.2 Cooperation between

Government Authorities

Given the above-mentioned distribution of tasks, the

responsibility for dealing with an asylum-seeker moves

back and forth between the prefecture and the OFPRA

depending on the status of the procedure. The OFPRA

informs the

préfecture

of any decision made. The OFPRA

also informs the ANAEM of its decisions, for the purpose

of managing reception, and informs the service in charge

of paying unemployment and other social benefits

(Association pour l’emploi dans l’industrie et le commerce,

ASSEDIC) for the purpose of managing the payment of

the Temporary Allowance (allocation temporaire d’attente,

ATA) granted to asylum-seekers who have not yet obtained

accommodation at a reception centre.

4 Pre-entry Measures

4.1 Visa Requirements

To enter France, foreign nationals must be in possession

of the necessary travel and identity documents and

visas, where applicable, as set out in international

conventions and relevant regulations. Foreign nationals

must also provide a proof of accommodation and proof

of medical insurance for the duration of their stay.

4.2 Carrier Sanctions

Carriers are liable to a maximum ﬁ ne of 5,000€ if they

are found to have brought onto French territory an

undocumented non-European Union (EU) national. This

sanction is applicable in cases where France is the ﬁ nal

destination as well as in instances of transit through the

national territory.

Sanctions do not apply in the following cases:

• The foreign national has been admitted into the

territory in or

der to make an asylum claim that is

not deemed to be manifestly unfounded

• The carrier is able to establish that the required

travel documents wer

e presented at the time of

embarkation and that these did not appear to

be fraudulent.

4.3 Interception

The Border Police (Police aux Frontières, PAF) are

responsible for undertaking checks on travellers at

ports of entry.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

4.4 Immigration Liaison Ofﬁ cers

France has immigration liaison ofﬁ cers posted in a

number of countries. These ofﬁ cers provide technical

support to local border authorities, through such

activities as document checks on passengers bound

for France at an international airport abroad.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

Foreign nationals arriving in France at airports, seaports

or international train terminals may indicate their wish to

enter the country in order to apply for asylum at border

control posts. Once a person has been allowed to enter

the territory, an asylum application may be made at a

local administrative ofﬁ ce (préfecture).

5.1.1. Outside the Country

Applications at Diplomatic Missions

There is an informal possibility to make a claim for

asylum at French diplomatic missions in countries of

origin or third countries. As at this writing, no provision

in French law governs this procedure, which means that

asylum applications at diplomatic missions are dealt

with on an exceptional basis.

hen a claim is made, the applicant may be asked

to provide further information, either by appearing for

an interview with a French diplomatic ofﬁ cial or by

mailing the information to the mission. The diplomatic

mission will then decide whether or not to allow the

application to proceed or to refer it to the United

Nations High Commissioner for Refugees (UNHCR) or

the local authorities. If the application proceeds further,

the diplomatic mission may forward the claim to the

Ministry of Foreign Affairs in France. The mission may

also decide to issue the applicant a visa so that the

person is able to enter France and proceed with his or

her asylum claim.

If the diplomatic mission decides to forward the claim

to the Ministry of Foreign Affairs (MFA), the latter will

do an initial assessment of the claim and ask for the

opinion of the OFPRA in order to determine whether

the claim meets general criteria for refugee status. If the

assessment is positive, the diplomatic mission may be

asked to issue the person an entry visa. The applicant

may then make a formal application for asylum once in

France and, from that point, enters the normal asylum

procedure for in-country applications.

If the decision is negative, an appeal may be made with the

Visa Appeal Commission. The appeal must be submitted

within two months of notiﬁ cation of the negative decision.

In addition to making an appeal with the Commission, the

applicant may also approach the head of the diplomatic

mission with a request for reconsidering the decision, or

address the Minister of Foreign Affairs in writing with a

request to change the decision.

Resettlement/Quota Refugees

France recently put in place a resettlement policy.

It made a commitment to resettling vulnerable Iraqi

refugees from countries of ﬁ rst asylum in the region

of origin and signed on 4 February 2008 a framework

agreement with the UNHCR whereby the UNHCR will

submit to the government dossiers of refugees from all

parts of the world.

5.1.2. At Ports of Entry

A foreign national arriving in France by air, sea or train

may indicate to customs or police ofﬁ cials at border

control his or her wish to enter the territory in order to

apply for asylum. The ofﬁ cials will make a decision to

either allow or deny entry. If entry is refused, the OFPRA

ofﬁ cials will interview the foreign national and provide

their opinion to the Ministry of Immigration. If permission

to enter is granted by the Ministry, the person will be

granted entry in order to make his or her asylum claim.

A negative decision on entry may be made only when

the claim is regarded as “manifestly unfounded.”

An application is deemed to be manifestly unfounded

when its motives fall outside the scope of asylum (e.g.,

issues of poverty, debts, etc.), when the story provided

by the applicant is inconsistent or contradictory or

cannot be reconciled with established facts, or when

there are obvious elements of bad faith regarding

identity, nationality or forged documents.

The foreign national may make a request before the

administrative tribunal to annul a negative decision on

entry within 48 hours of the decision. The tribunal is

required to make its decision within 72 hours of the

request. If the negative decision is annulled, the person

is granted an entry pass valid for eight days, during

which he or she may appear at a préfecture to make

an application for asylum.

Freedom of Movement

If border ofﬁ cials do not make an immediate decision

to allow entry, the foreign national may be placed in a

“waiting area” (zone d’attente) according to a decision

of the head of border control at the port of entry. The

person remains in this waiting area until a decision is

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

FRA

made on entry. Waiting areas are distinct from detention

zones and are located in the vicinity of disembarkation

points at airports and border posts.

A person may remain in the waiting area for a maximum

of four days under the administrative decision

mentioned above. If the stay in the waiting area exceeds

four days, the judge for liberties and detention must be

informed of the matter in order to determine whether the

stay should be prolonged for a maximum of eight days

or stopped. After the eight-day period has ended, the

stay may be extended only once more. Persons kept in

the waiting area are free to depart at any time for any

country outside of France to which they are admissible.

Box 1:

Asylum Case Law: Appeals at the Border

The European Court of Human Rights ruling in the

case of Gebremedhin (26 April 2007), in relation to

appeals at the border made by persons wishing to

claim asylum, led to a new system of appeal being

introduced under the Act of 20 November 2007,

on Immigration Control, Integration and Asylum.

Appeals of negative decisions on entry at the border

now have suspensive effect. Asylum-seekers may

appeal a negative decision before the administrative

tribunal within 48 hours. The tribunal must then

rule on the appeal within 72 hours.

5.1.3. Inside the Territory

Responsibility for Processing the Claim

The Dublin System

Application and Procedure

A stay authorisation may be denied if it is found

that, under Council Regulation (EC) No 343/2003,

another European Union Member State is responsible

for examining the asylum claim. The préfecture is

responsible for determining responsibility under the

Regulation when registering the application and before

issuing OFPRA’s application form to the applicant.

The asylum-seeker may indicate if a member of his or

her family is a refugee or has applied for asylum in one

of the EU Member States. He or she may join his or

her family member in that country under the conditions

laid down in the Dublin II Regulation. The préfecture

5 Council Regulation (EC) No 343/2003 of 18 February 2003

establishing the criteria and mechanisms for determining the

Member State responsible for examining an asylum application

lodged in one of the Member States by a third-country national

(Dublin II Regulation).

will then approach the country to ask whether it will

take responsibility for his or her case. The préfecture

will issue the asylum-seeker a document valid for the

duration of stay (convocation) while awaiting transfer.

Freedom of Movement/Detention

An asylum-seeker is not detained for the mere fact of

being subject to a transfer to another State under the

Dublin II Regulation.

Conduct of Transfers

Applicants may either travel voluntarily to the Member

State responsible or be transferred under escort.

Suspension of Dublin Transfers

The prefect (préfet) may decide to suspend the transfer

of an asylum-seeker to another State or to cancel the

decision to transfer the person on medical or other

humanitarian grounds.

Review/Appeal

A decision to make a transfer under the Dublin II

Regulation may be appealed to the administrative

tribunal. The appeal does not have suspensive effect.

Application and Admissibility

Provisional Stay Authorisation

Once entry onto the territory has been granted or if

the foreigner entered without proper authorisation, the

foreign national may apply for asylum at the préfecture.

Upon registering the application, the préfecture must

decide within 15 days whether or not a provisional stay

authorisation (autorisation provisoire de séjour, APS)

may be granted to the person. If the office grants

provisional stay, the person is entitled to proceed to

the OFPRA for the asylum procedure.

An APS, if granted, is valid for one month and entitles

the person to pursue an asylum claim before the

OFPRA. The préfecture will also provide the person

with an asylum application form, which he or she must

complete and submit to the OFPRA within 21 days.

The préfecture may decide to refuse to grant an APS

in the following cases:

• The asylum claim is found to be the responsibility

of another State under the Dublin system (see

above)

• The person holds citizenship of a country with

egard to which the OFPRA, in consultation with

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

UNHCR, has declared the applicability of Article

1C(5) of the 1951 Convention, following a lasting

change in circumstances

• The person is from a safe country of origin as

set out in the list of the Management Boar

d of

the OFPRA

• The person is considered to be a danger to the

public or a thr

eat to national security

• The claim is fraudulent or was made in order

to delay or thwart measur

es to remove the

person from France, or was made in an overseas

territory while a claim is also pending in another

EU Member State.

In each of these cases, except where the Dublin II

Regulation is applicable, the asylum claim may be routed

to the “priority procedure”, which is described below.

Accelerated Procedures: The Priority

Procedure

An asylum claim may be routed to an accelerated

procedure called the priority procedure if

the préfecture

refuses the application for a provisional stay authorisation

and the claim is not subject to the Dublin procedure. A

higher priority is given to processing applications from

asylum-seekers detained in administrative holding

centres. Unlike claims under the normal procedure,

the

préfecture

is responsible for forwarding to the OFPRA

the application forms for priority procedure claims and

other documents that the applicants have deposited in

a sealed envelope.

Under the priority procedure, the OFPRA is responsible

for making a determination on the claim within 15 days.

However, the OFPRA has 96 hours to make a decision

on claims in which the asylum-seeker is being held

in a closed centre (centre de rétention). The asylum-

seeker cannot be removed from France until the

OFPRA has made its decision. In the case of complex

asylum claims, the OFPRA may exceed the timeframe

stipulated under law in coming to a decision. Applicants

under the priority procedure are interviewed, except

under certain circumstances which are described below

(see the section on Normal Procedure).

The conditions for making an appeal following a negative

decision by the OFPRA under the priority procedure are

the same as those for appeals of decisions made under

the normal procedure, as described below. However,

under the priority procedure, appeals to the CNDA have

no suspensive effect.

Normal Procedure

If a foreign national is granted a provisional stay

authorisation, he or she may obtain an asylum

application form from the préfecture. The application

form must be completed and returned to the OFPRA

within 21 days, along with all relevant identity and

travel documents. The OFPRA will provide the asylum-

seeker an ofﬁ cial receipt (lettre d’enregistrement) as

proof that an asylum application has been made. This

receipt enables the holder to exchange his or her APS

for a so-called receipt of an application for a residence

permit (récépissé de demande de carte de séjour) valid

for three months and renewable until a ﬁ nal decision on

the claim has been made by the OFPRA or the CNDA.

The OFPRA will interview the asylum-seeker except

under the following circumstances:

• The claim will result in the granting of status

• The asylum-seeker hails from a country to which

Article 1C(5) of the 1951 Convention applies

• The medical or health condition of the asylum-

seeker pr

events the asylum-seeker from

appearing at the interview

• The claim is manifestly unfounded.

The OFPRA will then examine the claim ﬁ rst in r

elation

to the criteria for Convention refugee status and, if the

criteria are not met, in relation to subsidiary protection.

Review/Appeal of Asylum Decisions

Appeal

Appeals of negative decisions by the OFPRA may be

made before the National Court of Asylum Law (CNDA)

within 30 days of receipt of the decision. All appeals must

be made in writing, in French, and sent by registered mail.

Upon receipt of the appeal, the CNDA informs the

OFPRA, which has 15 days to send its own ﬁ les on

the claim to the CNDA. The asylum-seeker appears

at a hearing to present his or her case orally. The

CNDA will provide an interpreter if necessary, and the

asylum-seeker may be assisted by a lawyer. Hearings

are generally open to the public, unless the presiding

judge decides otherwise.

Except for appeals of decisions made under the priority

procedure, appeals before the CNDA have suspensive

effect.

If the decision of the OFPRA is annulled, the CNDA may

grant either refugee status or subsidiary protection to

the asylum-seeker. The asylum-seeker is granted an

ofﬁ cial receipt for a request for a renewable residence

permit initially valid for three months. The permit entitles

6 The decision-making process is described later in the chapter.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

FRA

the person to the same beneﬁ ts to which other refugees

or beneﬁ ciaries of subsidiary protection are entitled.

If the CNDA rejects the appeal, a refusal of stay will

generally be issued by the préfecture, along with a

request to leave the country within one month of the

decision.

Final Appeal

A rejected asylum-seeker may make a ﬁ nal appeal on

points of law (pourvoi en cassation) before the Council

of State within two months of the CNDA decision. The

ﬁ nal appeal does not have suspensive effect, unless

the préfecture decides otherwise.

Freedom of Movement during the

Asylum Procedure

Detention

Asylum-seekers are not detained during the normal

procedure. All detained asylum-seekers’ applications

are channelled into the priority procedure.

Reporting

Asylum-seekers have an obligation to apply within the

same department (département) in which they reside.

Any changes of address must be reported to the local

administration.

Repeat/Subsequent Applications

Re-examination

Persons whose asylum claims have been rejected in

a ﬁ nal decision may submit a request for a review by

the OFPRA and eventually the CNDA. To be eligible

for a re-examination, asylum-seekers must present

new facts that have emerged since the ﬁ nal negative

decision was given.

To begin a re-examination process, asylum-seekers

must make a request to the préfecture for a provisional

stay authorisation. Once this authorisation is obtained,

they may then make their request for a re-examination

at OFPRA within eight days.

A negative decision on the re-examination request may

be appealed before the CNDA within 30 days of the

decision.

Box 2:

Asylum Case Law: Re-examinations

In a decision dated 28 April 2000 (CE, 192701, M.T.

), the

Council of State ruled that when a repeat application

contains admissible and relevant new elements, the

application, including previously examined events

and allegations, must be re-examined.

1 All decisions made by the CNDA and the Council of

State mentioned in this chapter are available on the

CNDA website, http://www.commission-refugies.fr.

5.2 Safe Country Concepts

The concepts of ﬁ rst country of asylum and safe third

country are not applicable in the French system, as they

are not compatible with paragraph 4 of the Preamble to

the1946 French Constitution. The preamble states that,

“any man persecuted because of his action in favour of

liberty has the right to enjoy asylum on the territories

of the Republic.”

The only exceptions to this rule are the Dublin II

Regulation and Dublin-like agreements as provided for

in Article 53(1) of the Constitution of the Fifth Republic

(4 October 1958).

5.2.1. Safe Country of Origin

The Management Board of the OFPRA maintains a list

of safe countries of origin. In principle, any member of

the Board may take the initiative of adding or removing

a country. In practice, the initiative has been taken by

the MFA and/or the OFPRA. Both have jointly prepared

country dossiers for consideration by members of

the Board. The Board organises a vote following

deliberation.

Currently, the countries included in the list are as

follows: Benin, Bosnia-Herzegovina, Cape Verde,

Croatia, Georgia, Ghana, India, Former Yugoslav

Republic of Macedonia, Madagascar, Mali, Mauritius,

Mongolia, Senegal, Tanzania and Ukraine.

Asylum Claims Made by a Citizen of an EU

Member State

Since there is no admissibility procedure for asylum

applications, all applications made by EU citizens are

forwarded to the OFPRA by the préfecture, usually

under the priority procedure. The OFPRA will consider

the application as manifestly unfounded unless the

applicant is able to refute that assumption.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

5.3 Special Procedures

5.3.1. Unaccompanied Minors

Persons under the age of 18 may make an application

for asylum at the préfecture. However, no stay

authorisation is provided to them as they cannot be

returned from French territory. The préfecture notiﬁ es

the OFPRA and the state prosecutor of the asylum-

seeker’s claim, after which the state prosecutor will

assign an ad hoc administrator to assist the person

with his or her claim.

If a minor is granted refugee status or subsidiary

protection, he or she will obtain a residence permit upon

turning 18 (or 16, if the minor wishes to work). If the

asylum claim is rejected, the minor will not be subject

to removal before turning 18.

Figure 4:

Total Applications Made by Unaccompanied

Minors*, 2003-2008

735

571

459

410

949

200

400

600

800

1,000

1,200

1,400

1,221

2003 2004 2005 2006 2007 2008

* First applications only

5.3.2. Stateless Persons

There are no special procedures in place for examining

the asylum claims of stateless persons. All applications

are treated in the same way. There is a separate

procedure for the recognition of statelessness, which

is described below.

6 Decision-Making and

Status

In coming to a decision on an asylum claim, the OFPRA

will ﬁ rst consider whether the criteria for Convention

refugee status are met, and failing that, whether the

criteria for subsidiary protection are met.

6.1 Inclusion Criteria

6.1.1. Convention Refugee

OFPRA may grant Convention refugee status on the

basis of one of three sets of criteria:

• The applicant has been placed under the

mandate of the UNHCR (in accor

dance with

Articles 6 and 7 of the Statute of the Ofﬁ ce of

the UNHCR)

• Criteria set out in Article 1A(2) of the 1951

Convention

• Criteria set out in paragraph 4 of the 1946

ench Constitution, which states that “any man

persecuted because of his actions for liberty

has the right to enjoy asylum on the territories

of the Republic.”

6.1.2. Subsidiary Protection

Subsidiary protection may be granted to any person

who does not fulﬁ l the conditions for refugee status and

who has established that he or she would be exposed

to the following serious threats in the country of origin:

• Death penalty

• Torture or inhuman or degrading treatment

• Under Article 2.11(2) of the modiﬁ ed asylum

law of 25 July 1952, if someone is a civilian,

“a serious, direct and individual threat against

his or her life or person because of generalised

violence resulting from an internal or international

armed conﬂ ict.”

6.2 The Decision

All asylum-related decisions are made by the OFPRA

and the CNDA. Asylum-seekers are notified of the

decisions in writing by registered mail. Decisions

contain reasoning in fact and law.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

Types of Decisions and Status

The OFPRA may make one of the following decisions

on an asylum claim:

• Grant Convention refugee status or subsidiary

otection

• Reject a claim for asylum.

7 See the text of the articles of the Statute in the annexe at the end

of the report.

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A claim for asylum may be rejected by the OFPRA, inter

alia, if exclusion clauses apply and if it can be reasonably

expected that the asylum-seeker could return to the

country of origin and seek an internal ﬂ ight alternative.

Beneﬁ ts

Recognised refugees are entitled to the following

beneﬁ ts:

• A 10-year residence permit, renewable unless

the r

efugee leaves France for more than three

years or is found to have engaged in polygamy

• Right to work

• Travel documents valid for a period of two years,

issued by the OFPRA

• Family reuniﬁ

cation for spouses and children of

refugees who meet criteria set out in the Law of

20 November 2007

• Temporary accommodation in a Temporary

Accommodation Centr

e (Centre provisoire

d’hébergement, CPH) for a renewable period of

six months.

Spouses of recognised refugees are entitled to the

same residence permit if the marriage took place

before refugee status was granted and they have lived

together continuously. Dependants under the age of 18

may obtain the same residence permit upon turning 18

(or 16, if they wish to work).

Beneﬁ ciaries of subsidiary protection are entitled to the

following beneﬁ ts:

• A one-year residence permit (labelled “private

life and family”), which may be r

enewed on

a yearly basis, if the reasons that led to the

granting of subsidiary protection remain

• Right to work

• Family reuniﬁ

cation for spouses and children,

within the same rules which apply to families of

refugees (see above)

Box 3:

Asylum Case Law: Grounds for Granting Refugee Status

Deﬁ ning a Particular Social Group

In a number of rulings, the CNDA found that women refusing female genital mutilation (FGM) for themselves or

parents refusing this practice for their female children may be regarded as a social group in a number of countries

of origin, including Mali, Guinea (Conakry), Nigeria, Niger and Chad.

Women who refuse to enter into forced marriages may also be considered a social group in countries where their

behaviour is perceived by society at large to be a punishable transgression and when no effective state protection

is available (e.g., Pakistan and Turkey).

Mutatis mutandis, the CNDA also ruled that homosexuals may be considered members of a particular social group

in various countries (e.g., Algeria, Bangladesh, Senegal, Nigeria, Cameroon and Russia).

Principles of Family Unity

The granting of refugee status on the principle of family unity was introduced as a general principle in refugee

law by the Council of State (Council of State, Assembly, 2 December 1994, Mrs A.). The basis for the family unity

rule is in the protection granted to the refugee under the 1951 Convention, which, to be full and complete, must

encompass the protection of his or her family.

However, case law has limited the application of this rule to the refugee’s immediate family, that is, to his or her

spouse (Council of State, aforementioned Mrs A.) or his or her signiﬁ cant other (Refugee Appeals Board, Special

Combined Hearing, 21 July 1995, M.L. upheld by the Council of State, 21 May 1997, M.G. ) on the proviso that he or

she has the same nationality as the refugee and that marriage or the beginning of cohabitation occurred prior to

the date on which the asylum application was made. The refugee’s children under the age of majority also beneﬁ t

from the application of this family unity rule (Council of State, aforementioned Agyepong) on the proviso that they

are under the age of majority at the date of the entry into France (Council of State, 21 May 1997, M.S.).

Case law has thus not accepted that the family unity rule requires that the same status be granted to all the persons

who are or who were, in the country of origin, dependent upon the refugee (Council of State, aforementioned

M.S.; Council of State, 7 October 1998, Mrs K.), with a reservation for the case in which there is an allegation of a

special circumstance that could justify the application of this rule.

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• Travel documents issued upon request to the

préfecture, if it is not possible to request travel

documents from the authorities of the country

of origin.

6.4 Exclusion

Exclusion clauses apply to both Convention refugee status

and subsidiary protection. The criteria used are those,

respectively, of the 1951 Convention and the Qualiﬁ cation

Directive. Exclusion is applied only in cases in which the

applicant is found to have a well-founded fear as set out

in the relevant legal texts. Where this is not the case, the

claim is rejected on the basis of non-established facts.

Decisions to exclude a person from protection may be

appealed in the same manner as are other negative

asylum decisions.

Exclusion does not automatically

entail removal of the person from France.

6.5 Cessation

Refugee status may be terminated by the OFPRA if

it appears that the refugee who has legally received

refugee status no longer requires the protection of the

Convention for one of the reasons provided for in Article

1C of the 1951 Convention.

Subsidiary protection may be terminated under the

conditions provided in the Qualiﬁ cation Directive.

A decision to cease status may be appealed before

the CNDA in the same manner as are other negative

asylum decisions.

Box 4:

Asylum Case Law: Exclusion

Both in a 25 March 1998 Council of State ruling

(170172. M.M.) and in a ruling of the Refugee Appeal

Commission (SR, 9 January 2003, 362645, M.A.), it was

found that the personal participation of an applicant

in alleged crimes or acts, and not mere membership in

a political or government organisation, was necessary

to establish that the person has perpetrated crimes

which would exclude him or her from refugee status.

6.6 Revocation

When the circumstances of the case reveal that the

application on the basis of which the status was granted

was fraudulent, the OFPRA may withdraw the status or

request the CNDA to revise its ruling.

8 See the section above on Review/Appeal.

9 Ibid.

A decision to withdraw status may be appealed before

the CNDA in the same manner as are other negative

asylum decisions.

Box 5:

Asylum Case Law: Withdrawal of Status

In a ruling dated 21 May 1997 (CE,148997, M.P.), the

Council of State concluded that Article 33(2) of the

1951 Convention does not constitute a legal ground

for withdrawing refugee status. As a result, France

cannot apply the provisions found in Article 14(4)

of the Qualiﬁ cation Directive, which states that

persons for whom there are reasonable grounds

to consider a danger to national security or persons

who have committed a particularly serious crime,

may have their status revoked or terminated.

In another decision later the same year (CE, section, 5

December 1997, 159707, M.O.), the Council of State

ruled that the OFPRA may not withdraw refugee

status on the basis of information it has obtained

showing that that person was granted status as a

result of fraud or untrue declarations, if the decision

to grant status was made by the Appeals Board,

which has force of res judicata. This ruling led to the

creation of a new form of appeal before the CNDA,

whereby the OFPRA may apply for a review of the

Court’s decision within two months of evidence of

fraud coming to light (Act of 10 December 2003).

6.7 Support and Tools for

Decision-Makers

6.7.1. Country of Origin Information

The Division of Information, Documentation and

Research (Division de l’information, de la documentation

et des recherches, DIDR) provides country of origin

information (COI) services to decision-makers and the

legal and international affairs section of the OFPRA.

Slightly more than half of the requests for information

made by decision-makers are in relation to African

countries. In addition to answering these requests for

information, the DIDR also undertakes the publication

of major studies, documentation packages and

chronologies for speciﬁ c countries of origin. The DIDR

will in some cases participate in fact-ﬁ nding missions

in cooperation with other colleagues of the OFPRA.

In the past year, the DIDR has responded to a growing

number of research requests within shorter timeframes.

10 Ibid.

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Box 6:

Restructuring the Provision of COI at the

OFPRA

In 2008, OFPRA undertook a review of its operations

and a decision was made to restructure the former

Centre for Documentation and Research (Centre

d’étude de documentation et de recherche, CEDRE)

into the DIDR. This change came into effect in January

2009. One of the purposes of this restructuring was

to allow the DIDR to focus its attention on the

impact of the situation in the top ten countries of

origin on the asylum applications received by OFPRA,

to monitor the situation in safe countries of origin

and to better anticipate emerging crises.

The DIDR is made up of four sections, two of which

are responsible for research and for improving the

quality of research documents. In 2009, the DIDR

will be developing a new database to house its

country information.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

Fingerprints of all applicants over the age of 14 are

taken, as provided for in Council Regulation (EC) No

2725/2000.

7.1.2. DNA Tests

No DNA tests are carried out for the purposes of the

asylum procedure.

7.1.3. Forensic Testing of Documents

OFPRA does not have the capacity to undertake

forensic testing of documents.

7.1.4. Database of Asylum

Applications/Applicants

Applicants are registered in the overall database

of foreign nationals maintained by the Ministry of

Immigration and in the OFPRA database.

11 Council Regulation (EC) No 2725/2000 of 11 December 2000

concerning ‘Eurodac’ for the comparison of ﬁ ngerprints for the

effective application of the Dublin Convention (Eurodac Regulation).

7.2 Length of Procedures

Under the normal procedure, the application form is to

be sent to the OFPRA no later than 21 days after the

issuance of an APS.

Under the priority procedure, the OFPRA must make

a decision on an asylum claim within 15 days of

application. This time limit may be reduced to four days

(96 hours) when the applicant is in detention.

As at December 2008, the average length of the normal

procedure at ﬁ rst instance was 91 working days.

7.3 Pending Cases

Beginning in 2003, the OFPRA was granted additional

ﬁ nancial and human resources.

The OFPRA was thus

able to successfully implement reforms and reduce its

backlog from 22,900 applications (as at 31 December

2003) to a normal working reserve equivalent to three

months of activity by the end of 2008. At the same

time, the OFPRA shortened the average length of the

examination of applications from 184 working days in

2003 to 91 days in 2008.

7.4 Information Sharing

The exchange of information on individual asylum

applicants among EU Member States, Norway,

and Iceland is undertaken according to provisions

the conditions laid down in Article 21 of the Dublin

II Regulation. On the basis of a Memorandum of

Understanding (MOU) with its Swiss counterpart (Federal

Ofﬁ ce for Migration), the OFPRA checks ﬁ ngerprints

submitted by the Swiss party in order to determine

whether a previous application has been made in France.

7.5 Single Procedure

When making an asylum claim, asylum-seekers are

not required to specify which type of protection they

are requesting. Claims are processed within a single

procedure. The OFPRA will examine the application

ﬁ rst in relation to refugee status, and, if criteria are not

met, in relation to subsidiary protection.

7.6 Other Measures

As indicated above, the OFPRA and the CNDA obtained

additional staff in order to reduce their backlog and

improve the efficiency with which they examine

applications. An effort was also made to expand the

capacities of the COI unit at the OFPRA.

Applicants under the priority procedure are not entitled

to the benefits normally granted to asylum-seekers

in general (accommodation in a reception centre or

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temporary allocation). This stipulation may have had a

deterrent effect on asylum-seekers from those countries

listed as safe countries of origin who would make a claim

in France.

Box 7:

Cooperation with UNHCR

The UNHCR in France has a representative sitting

as an observer on the Management Board of the

OFPRA who may make observations on all subjects

under consideration or examination. At the CNDA,

a UNHCR representative sits, with voting rights, on

the board responsible for appointing adjudicators

to panels which hear asylum appeals at the Court.

The presence of the UNHCR representative on the

CNDA board is one of the innovative features of the

French asylum system. The CNDA is the only Court in

France where a representative of an international

organisation sits and is entitled to speak and vote.

The UNHCR has access to waiting zones (zones

d’attente) at airports where undocumented arrivals

are held. A UNHCR implementing partner ensures

that those who wish to seek asylum have access to

the procedure.

The UNHCR in France maintains contact with

the Ministry of Immigration and takes part in

consultations with the government on various

asylum-related matters.

8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

Legal Aid

Up until a change in law in 2007, persons appealing an

OFPRA decision were eligible for legal aid if they had

entered France through legal channels, had no means

of ﬁ nancial support exceeding a ceiling ﬁ xed by law

each year, and had made a claim for asylum that was

not deemed manifestly unfounded.

Beginning on 1 December 2008, the Law of 20 November

2007 provides for universal legal aid irrespective of the

conditions of entry or residence of the asylum-seeker.

To obtain legal aid, the asylum-seeker must make a

request in writing to the Ofﬁ ce of Legal Assistance

(Bureau d’Aide Juridictionnelle, BAJ), located within

the CNDA. The asylum-seeker must, as before, meet

a ﬁ xed ceiling for ﬁ nancial need.

Asylum-seekers may be assisted by a lawyer during

the procedure before the CNDA.

Asylum-seekers may choose to be assisted by a lawyer

at the ﬁ rst instance. The OFPRA, however, is under no

obligation to allow the lawyer to be at the interview,

since it is an administrative procedure and not a judicial

one. Observations by the counsel may be heard after

the individual interview.

8.1.2. Interpreters

Interpreters are provided by the administration for

interviews at the OFPRA and hearings of the CNDA.

During the procedure at OFPRA, the need for the

services of an interpreter is usually established when

planning the interview.

8.1.3. NGOs

Non-governmental organisations (NGOs) play a crucial

role in helping asylum-seekers throughout the asylum

procedure, such as by providing legal advice. However,

they do not have access to individual asylum case ﬁ les

during the procedure.

8.2 Reception Beneﬁ ts

The National Agency for the Reception of Foreigners

and Migration (Agence nationale de l’accueil des

étrangers et des migrations, ANAEM) is the government

agency responsible for coordinating the national plan

of action for the reception of asylum-seekers (Dispositif

national d’accueil des demandeurs d’asile, DNA).

The Department for Refugees and Reception of Asylum

Seekers within the Ministry of Immigration, Integration,

National Identity and Solidarity Development deals with,

among other things, questions related to social beneﬁ ts

and related measures for asylum-seekers. In this

regard, the Department is in charge of the formulation

and follow-up on standards concerning the reception of

asylum-seekers. The Department ensures the strategic

management of the DNA and the implementation of

regulations on the Temporary Allowance (ATA), and

works with the reception centres for asylum-seekers

(CADA), in close cooperation with ANAEM.

Asylum-seekers whose applications are examined

under the priority procedure (according to Article L.

741-4 of CESEDA) receive neither the APS nor a receipt

from the préfecture. They are, therefore, not entitled

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to specific social benefits (e.g., CADA, temporary

allowance, Universal Health Insurance Coverage, etc.).

8.2.1. Accommodation

Accommodation at a Reception Centre

The French reception system, which is made up of

centres scattered over the whole territory of France,

is accessible only to persons who have applied for

asylum. This system is ﬁ nanced by the French State

and generally managed by NGOs. There are two types

of accommodation centres where asylum-seekers

may be accommodated: transit centres and reception

centres for asylum-seekers.

Transit centres are intended for asylum-seekers at the

beginning of the procedure (who have at a minimum

been issued a summons by the préfecture). Asylum-

seekers may be accommodated there for a few weeks

while waiting for accommodation in a CADA.

In order to be eligible for accommodation at a Reception

Centre for Asylum-Seekers (CADA), an asylum-seeker

must be in possession of the one-month Provisional

Residence Authorisation (Autorisation Provisoire de

Séjour, APS) or the three-month receipt (récépissé).

Accommodation is provided for the duration of the

procedure, including any subsequent appeal before

the CNDA.

Usually, an admission commission will examine the

possibility for accommodating an asylum-seeker at a

CADA and will make determinations on accommodation

depending on the number of places available over the

whole French territory. Accommodation is not always

offered in the same department in which applicants

have made their asylum claims.

If, after having applied for accommodation, the asylum-

seeker refuses the place offered as part of the State

social aid, the ASSEDIC may suspend the payment of

the Temporary Allowance. Whatever accommodation

centre asylum-seekers are admitted to, they will beneﬁ t

from administrative support (asylum application, legal

advice), social services (health, schooling for children),

and ﬁ nancial aid for sustenance, which cannot be added

to the amount of the integration beneﬁ t (allocation

d’insertion).

Accommodation outside a Centre

The CADA’s reception capacity is far below the number

of requests for accommodation, so application for

12 Consequently, in the case of his or her asylum application

being rejected by either OFPRA or the CNDA, the asylum-

seeker must leave the centre.

accommodation may not be successful. Asylum-seekers

who are not accommodated as part of the State social

aid can receive ﬁ nancial aid (Temporary Allowance) only

if they have not declined an accommodation offer or

this offer was not possible.

Emergency Accommodation

Asylum-seekers, in particular those who have been

denied an APS, can obtain accommodation at various

centres for the homeless. These centres receive people

only on a nightly basis and do not, in principle, provide

meals. The accommodation period may vary according

to the centres but is fairly short.

8.2.2. Social Assistance

Asylum-seekers who are not accommodated at a

reception centre can receive ﬁ nancial assistance (the

Temporary Allowance, ATA) on the condition that they

have not refused an offer of accommodation or that

this is not possible.

To receive the ATA, asylum-seekers must be in

possession of the one-month APS or the three-

month receipt. They must then apply to the ASSEDIC

(Association pour l’emploi dans l’industrie et le

commerce) by providing a copy of the registration letter

issued by the OFPRA, as well as a document certifying

that they do not have any means of support or that they

cannot beneﬁ t from accommodation as part of the State

social aid. This temporary waiting allowance of about

300€ per month and per adult (there is no increase

for dependent children) is paid throughout the asylum

application procedure.

If asylum-seekers cannot be accommodated in a

reception centre and if they lack ﬁ nancial means, the

General Council (local executive assembly) of their

department of residence or the social services of their

municipality can grant them ﬁ nancial assistance on an

exceptional basis.

Unaccompanied Minors

Unaccompanied minors are not eligible for the

temporary social assistance allocation during the

asylum procedure. French law considers UAMs to be

a vulnerable group, and makes no distinction between

foreign and French children. The child welfare services

are legally responsible for assisting unaccompanied

foreign minors. Minors may be referred to the public

prosecutor’s ofﬁ ce by the child welfare services, the

police or specialised NGOs.

13 This stipulation is in accordance with Directive No 2006-

25 of 22 November 2006.

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8.2.3. Health Care

Universal Health Insurance Coverage

Asylum-seekers may beneﬁ t from Universal Health

Insurance Coverage (Couverture maladie universelle,

CMU). This coverage is offered to asylum applicants

as soon as they have ﬁ led their asylum claim, upon

the presentation of evidence of either an appointment

or a summons or the APS (or receipt), accompanied

by a proof of residence. The CMU covers all medical

and hospital expenses as well as those of his or her

spouse and minor children. If asylum-seekers have

no civil status documents certifying family ties, they

are required to ﬁ ll out a sworn declaration. The same

procedure must be followed if the asylum-seekers have

no documents proving their ﬁ nancial need.

o beneﬁ t from the CMU, asylum-seekers must contact

the Social Security ofﬁ ces of their place of residence

or certain NGOs. Once their application has been

registered, they will receive a certiﬁ cate of support.

Then applicants will be issued a one-year certiﬁ cate,

which entitles them to the mutual insurance (CMU

complémentaire) and a temporary registration number.

Emergency Healthcare

While waiting to beneﬁ t from the CMU, applicants have

access to hospitals where there is a Health Care Access

Service (Permanences d’Accès aux Soins de Santé,

PASS). Doctors will examine them, and medication will

be delivered free of charge.

In addition, there are certain NGOs which offer access to

dental care, ophthalmological care, and psychological care

to those who do not have health care insurance coverage.

The local authorities usually provide services to

follow up on medical treatment of children, such as

vaccinations, without requiring health care insurance

coverage. There are also Centres for Family Planning

and Education for women at the local level that provide

such services as information on maternity care.

As mentioned above, if an asylum-seeker’s application

is subject to the priority procedure, the asylum-seeker

will beneﬁ t from the State health care beneﬁ t on the

condition that he or she has been present in France

for three months. A request is to be made to the Social

Security services of his or her place of residence or

to a hospital PASS. The person then has access to

hospitals, city doctors and pharmacies.

8.2.4. Education

From the age of three years, asylum-seekers’ children

may be sent to nursery school, although the school

is under no obligation to receive them. However, in

France, schooling is free and compulsory for children

between six and 16 years of age.

To enroll their children in primary school, asylum-

seekers must show a document proving their family

ties. If they do not have any documents from their

homeland, they must show a document issued by the

French administration that states the relationship (for

instance, a CMU certiﬁ cate). They must also give a

proof of address and prove that their child has received

all the necessary vaccinations. Enrolment takes place

at the town hall closest to one’s place of residence.

For secondary schools, asylum-seekers must enroll

their children at the school corresponding to the area

of their place of residence.

8.2.5. Access to Labour Market

An asylum-seeker may not take up paid work during

the procedure. However, if the OFPRA has not rendered

a decision on his or her application within a one-year

period or if an appeal decision is still pending, an

asylum-seeker may make an application for a work

permit to the Directorate of Labour, Employment and

Professional Development (Direction départementale

du travail, de l’emploi et de la formation professionnelle)

in his or her place of residence.

8.2.6. Family Reuniﬁ cation

Asylum-seekers do not have a right to family

reuniﬁ cation. However, under the Dublin II Regulation,

asylum-seekers may be reunited with their family as

follows:

• When the asylum-seeker has a family member

who has been allowed to r

eside as a refugee

in a Member State, that Member State will be

responsible for examining the asylum application

• Where the asylum-seeker has a family member

whose asylum application is being examined

under a normal procedure in a Member State,

that Member State will be responsible for

examining the asylum application.

8.2.7. Access to Integration

Programmes

Asylum-seekers are not entitled to benefit from

integration programmes.

8.2.8. Access to Beneﬁ ts by Rejected

Asylum-Seekers

Rejected asylum-seekers are not entitled to any speciﬁ c

social beneﬁ ts.

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9 Status and Permits

Granted outside the

Asylum Procedure

9.1 Humanitarian Grounds

An asylum-seeker who has received a ﬁ nal negative

decision on his or her claim may make an application

for a temporary residence permit to the prefecture if,

in accordance with Article 313-14 of the CESEDA,

exceptional grounds of a humanitarian nature exist.

To be eligible for a residence permit on humanitarian

grounds, the applicant must not be in a polygamous

relationship or pose a threat to public order. If the

applicant has resided in France for more than 10 years,

the préfecture will seek the advice of the Departmental

Commission for Residence Permits (Commission

départementale du titre de séjour).

Persons who have received a ﬁ nal negative decision

on their asylum claim may also be eligible for an

exceptional residence permit if, in accordance with

Article 313-11-7 of the CESEDA, they present such

personal or family ties in France and levels of integration

and participation in French society that a refusal of a

residence permit would have a disproportionate effect

on the respect of family and private life of the person.

A residence permit granted on humanitarian grounds is

valid for a period of one year and is renewable. Holders

of this permit have access to the labour market.

9.2 Withholding of Removal/Risk

Assessment

The decision to return a person who has received a ﬁ nal

negative decision on an application for asylum is made

separately from the asylum decision. Before issuing a

removal order, the prefecture, under the oversight of

the administrative judge, must verify that there are no

obstacles to return arising from risks present in the

country of origin. This risk assessment is in line with

France’s obligations under Article 3 of the European

Convention on Human Rights (ECHR). The authorities

must also determine whether obstacles to return exist

in relation to Article 8 of the ECHR (respect of private

and family life) or there are any practical obstacles

preventing the implementation of return.

Persons who cannot be returned to the country of origin

or to another country may be granted a designation

of place of residence (assignation à residence). This

decision is a stay of removal with a restriction on

freedom of movement rather than a residence permit.

Beneﬁ ciaries must reside in a pre-determined location

and report periodically to the Police. The designation

of place of residence is valid until such time as return

to a third country or to the country of origin becomes

possible. It may entitle the holder to a work permit if

this is necessary for the person to support himself or

herself. A decision to grant a designation of place of

residence may be taken by the Minister of Interior or

by the prefecture, depending on the case.

Annulment of Removal Order

A person who has been served a removal order and is

not subject to detention or a designation of place of

residence may request an annulment of the removal

order within ﬁ ve years of the removal order being served.

The Law of 26 November 2003 allows a systematic re-

examination of removal orders every ﬁ ve years. The

Commission for Removal (Commission d’expulsion)

examines any changes in the applicant’s personal

and family situation and any possible professional or

social guarantees for integration into French society.

For that purpose, the applicant may submit written

observations.

9.3 Temporary Protection

Temporary protection may be granted to displaced

persons who are unable to return to their country of

origin in a case of mass inﬂ ux, as provided for in Council

Directive 2001/55/EC.

Following the designation

of a speciﬁ c group of persons in need of temporary

protection by the European Union, and internally by

the Minister of Immigration and the Minister of Foreign

Affairs, temporary permits valid for an initial period of

six months are issued. In some cases, the permit may

be accompanied by work authorisation. The permits are

renewable for a maximum period of three years and are

issued by the prefecture.

Persons who pose a threat to public order or who are

believed to have committed crimes against humanity,

war crimes or other serious crimes or acts contrary to the

principles of the United Nations (UN) may be excluded

from temporary protection. Temporary protection may

be withdrawn or refused if the beneﬁ ciary has obtained

temporary protection in another EU Member State or

has obtained refugee status or subsidiary protection

in France.

9.4 Regularisation of Status over

Time

There are no possibilities for regularising the status of

a person on the sole basis of that person’s length of

residence in France. The Law of 24 July 2006 abolished

14 Council Directive 2001/55/EC of 20 July 2001 on minimum

standards for giving temporary protection in the event of a mass

inﬂ ux of displaced persons and on measures promoting a balance

of efforts between Member States in receiving such persons and

bearing the consequences thereof (Temporary Protection Directive).

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the provision

that granted a temporary residence

permit to persons who were habitually resident in

France for more than 10 years.

As noted above, asylum-seekers who have received

a ﬁ nal negative decision on their application may be

granted a residence permit on the grounds of family or

personal ties to France.

9.5 Regularisation of Status of

Stateless Persons

Stateless persons may apply to the OFPRA to have their

stateless status recognised. Applications must be made

in writing and an ofﬁ cial form completed. An interview

is usually conducted with the applicants. Applicants

are not granted a stay authorisation for the duration

of this procedure, and may be returned before a ﬁ nal

decision is made.

Persons over the age of 18 whose stateless status is

recognised by the OFPRA will be issued a stateless

person’s card and a temporary residence permit

(labelled “private and family life”) valid for one year.

The permit is renewable and allows holders to access

the labour market. Children under the age of 18 are

entitled to the same permit upon reaching the age of

majority (or age 16, if they wish to work).

A refusal of an application for stateless status may be

appealed within two months of the decision before the

administrative tribunal where the person resides. The

appeal has no suspensive effect.

10 Return

10.1 Pre-departure Considerations

Following a negative decision by the OFPRA or the

CNDA, an asylum-seeker loses his or her right of stay

in France and must, in principle, leave the country. The

préfecture, after having checked that the person is not

entitled to residence on other grounds, and that there

are no obstacles to his or her return – and in particular

no breach of ECHR provisions – will issue an order to

leave French territory within one month. If the foreign

national is found to be in an irregular situation in France

after this one-month period has ended, the préfecture

may implement the order by detaining the person and

arranging for departure under escort.

All removal orders may be appealed at the local

Administrative Tribunal with suspensive effect.

15 Article L.313-11, 3° of the CESEDA.

France will not return a rejected asylum-seeker if an

administrative judge rules that return would be in

violation of Article 3 of the ECHR.

The Minister of Immigration may give instructions to the

prefecture in order to waive a removal order or grant a

residence permit.

10.2 Procedure

Return and Reintegration Assistance

Reintegration assistance for persons returning to their

country of origin is administered by the ANAEM.

Reintegration assistance consists of the following:

• Material aid for return, covering travel costs from

France to the country of origin for the asylum-

seeker and his or her family

• Administrative aid to prepare for departure

(such as obtaining any necessary documents

for returning to the country of origin)

• Financial assistance

• Assistance with reintegration, including advice

and support for seeking work.

Sanctions

A person who has received a removal order may face a

sentence of up to three years of imprisonment as well

as a ten-year ban on accessing the French territory if

he or she absconds and the removal order cannot be

enforced. The same penalties may apply if the person

does not present all necessary travel documents to

the administration or give the necessary information to

facilitate his or her removal.

10.3 Freedom of Movement/

Detention

In cases where an asylum-seeker has received a

ﬁ nal negative decision, is under a removal order but

cannot be returned to the country of origin or to a third

country, designation of place of residence (assignation à

residence) or other restrictions on freedom of movement

may apply.

Designation of Place of Residence

The prefecture or the Minister of Interior may decide to

designate a place of residence to a person awaiting the

enforcement of a removal order. Freedom of movement

is thus restricted.

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FRA

Administrative Detention

A decision to hold a person in administrative detention

pending removal may be made by the prefecture

and communicated to the Prosecutor General.

Administrative detention is initially valid for a period

of 48 hours or

for the time necessary for removal to be

implemented. Administrative detention may be extended

to ﬁ fteen days but cannot exceed 32 days. Extensions

of detention must be authorised by a judge treating

questions of freedom and detention (juge de la liberté

et de la détention).

11 Integration

Refugees and beneﬁ ciaries of subsidiary protection are

entitled to the beneﬁ t of the Reception and Integration

Contract (Contrat d’accueil et d’intégration). This

contract includes the following:

• A medical check- up

• An introduction to French institutions and the

cor

e values of the Republic as well as to the

political and administrative organisation of the

country

• An information session about daily life in France

and the public services

• Where necessary, French language lessons

enabling a pr

escribed level of ﬂ uency.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

12 Annexe

12.1 Processing Costs

The average cost per unit of a decision at OFPRA is estimated at 570€.

12.2 Additional Statistical Information

* First applications only

5,000

10,000

15,000

20,000

25,000

1997 2002 2008

Romania

Algeria

China

Mauritania

DR Congo

Tu rk e y

Sri Lanka

Mali

Russia

Figure 5:

Asylum Applications* from Top Five Countries of Origin in 1997, 2002 and 2008

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

FRA

Convention Status*

Humanitarian

Status and Other

Authorisations

to Remain

Rejections Other Decisions

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1992

5,272 28% 0 0% 9,075 72% 0 0% 14,347

1993

5,040 28% 0 0% 11,271 72% 0 0% 16,311

1994

4,808 24% 0 0% 13,467 76% 0 0% 18,275

1995

4,576 16% 0 0% 15,663 84% 0 0% 20,239

1996

4,344 20% 0 0% 17,859 80% 0 0% 22,203

1997

4,112 17% 0 0% 20,055 83% 0 0% 24,167

1998

4,342 19% 0 0% 18,063 81% 0 0% 22,405

1999

4,659 19% 0 0% 19,492 81% 0 0% 24,151

2000

5,185 17% 0 0% 25,093 83% 0 0% 30,278

2001

5,049 12% 0 0% 35,730 88% 0 0% 40,779

2002

6,326 13% 0 0% 43,880 87% 0 0% 50,206

2003

6,526 10% 0 0% 59,818 90% 0 0% 66,344

2004

6,358 9% 0 0% 61,760 91% 0 0% 68,118

2005

4,184 8% 0 0% 47,088 92% 0 0% 51,272

2006

2,929 8% 0 0% 34,786 92% 0 0% 37,715

2007

3,401 12% 0 0% 25,922 88% 0 0% 29,323

2008

5,153 16% 0 0% 26,648 84% 0 0% 31,801

*Beginning in 2004, data includes granting of subsidiary protection.

Figure 6:

Decisions Made at the First Instance, 1992-2008

Germany

GER

167 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

168 - NATIONAL LEGAL FRAMEWORK

169 - INSTITUTIONAL FRAMEWORK

169 - PRE-ENTRY MEASURES

169 - ASYLUM PROCEDURES

174 - DECISION-MAKING AND STATUS

178 - E

FFICIENCY AND INTEGRITY MEASURES

179 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

181 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

182 - R

ETURN

183 - INTEGRATION

184 - ANNEXE

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GER

1 Background: Major Asylum

Trends and Developments

Asylum Applications

In 1980 for the ﬁ rst time, Germany registered more

than 100,000 asylum-seekers in a single year. Although

ﬁ gures went down again in the following years, there

was a steady increase from the mid-1980’s onward,

which culminated in peak ﬁ gures of 438,000 asylum-

seekers in 1992. The fall of the Iron Curtain on one hand

and the relatively generous beneﬁ ts granted to asylum-

seekers on the other were the main factors accounting

for the signiﬁ cant increase in asylum-seekers. By late

1992 there was an accelerated increase of claims with

up to 50,000 applicants per month, the majority of whom

did not present a need for international protection.

At that point, the German parliament decided on a

comprehensive reform of the asylum system, which

impacted virtually all asylum-related laws including the

Constitution. The measures took effect in the course of

the ﬁ rst half of 1993 and had an almost instant impact.

They resulted in a signiﬁ cant and continuous decrease

of asylum-seekers in the following years. In 2008 a total

of 22,000 applications were lodged.

Top Nationalities

In the early 1990’s, most asylum-seekers came from

the former Yugoslavia, Romania, Bulgaria and Turkey. In

2008 by far the largest group of asylum-seekers came

from Iraq, followed by Turkey, Vietnam and Kosovo.

Figure 2:

Top Five Countries of Origin in 2008*

1 Iraq 6,836

2 Turkey 1,408

3 Viet Nam 1,042

4 Kosovo 879

5 Iran 815

* First applications only* First applications only

Important Reforms

The Asylum Procedure Act of 16 July 1982 introduced

provisions aimed at accelerating the asylum procedure

while safeguarding the right to asylum. Further

attempts at achieving more efﬁ cient procedures were

made in 1987, with the coming into force of the Act to

Amend the Regulations Governing Legal Questions of

Asylum Procedure, Work Permits and Foreigners Law.

Germany joined the Dublin system and the Schengen

area in 1990.

Throughout the 1990’s, legislation governing asylum

was the subject of important reforms, including

the implementation of provisions in the Act on the

Reorganisation of Asylum Procedures between 1992

and 1993, the so-called “asylum compromise” or

agreement of political parties on a Joint Concept

19,737

99,650

57,379

438,191

127,210

88,287

22,085

50,000

100,000

150,000

200,000

250,000

300,000

350,000

400,000

450,000

500,000

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

* From 1993 onward, data refers only to first applications

Figure 1:

Evolution of Asylum Applications* in Germany, 1983-2008

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Regarding Asylum and Migration in 1992, and changes

to the reception beneﬁ ts regime for asylum-seekers.

In 2005, a new Immigration Act, which included several

important amendments to the asylum law, came into

force, marking an overhaul of the German migration

system. The Act provided for, inter alia, improved status

rights for Convention refugees and for beneﬁ ciaries of

subsidiary protection. Under this Act, gender-related

persecution and persecution by non-state agents were

henceforth to be considered to constitute grounds for

granting refugee status.

More recently, the entry into force of the Act on the

Implementation of Residence and Asylum-Related

Directives of the European Union (19 August 2007)

marked the transposition into German law of all relevant

Council directives on asylum.

1 The Directives transposed are the Asylum Procedures Directive

(Council Directive 2005/85/EC of 1 December 2005 on minimum

standards on procedures in Member States for granting and

withdrawing refugee status, the Qualiﬁ cation Directive (Council

Directive 2004/83/EC of 29 April 2004 on minimum standards

for the qualiﬁ cation and status of third country nationals or

stateless persons as refugees or as persons who otherwise need

international protection and the content of the protection granted

and the Reception Conditions Directive (Council Directive 2003/9/

EC of 27 January 2003 laying down minimum standards for the

reception of asylum seekers).

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

German asylum law provides for two types of refugee

status:

• Asylum status granted in accordance with Article

16a para. 1 of the Constitution (known as the

Basic Law for the Federal Republic of Germany)

• Refugee status granted in accordance with

Section 3 para. 4 of the Asylum Pr

ocedure Act,

which reproduces the 1951 Convention relating

to the Status of Refugees (1951 Convention)

inclusion criteria.

Both asylum and refugee status are granted according

to a similar interpretation of the term “refugee.” However,

with the transposition of the Qualiﬁ cation Directive into

German law, these interpretation practices are likely

to change, in part because the Qualiﬁ cation Directive

applies only to Convention status but not to asylum

status, as understood in German asylum law.

German law also includes provisions for granting

complementary forms of protection (subsidiary

protection) on the basis of the Qualiﬁ cation Directive

(Section 60 para. 2, 3 and 7, sentence 2 of the Residence

Act), the European Convention on Human Rights

(ECHR; Section 60 para. 5 of the Residence Act), the

Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment (CAT; Section 60

para. 2 of the Residence Act), and on a national basis

2,000

4,000

6,000

8,000

10,000

12,000

14,000

16,000

18,000

20,000

1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Iraq Turkey Viet Nam

* First a

lications onl

Figure 3:

Evolution of Applications* from Top Three Countries of Origin for 2008

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

GER

(Section 60 para. 7, sentence 1 of the Residence Act

and Section 60a para. 2 of the Residence Act).

The granting of Convention refugee status and asylum is

governed by the Asylum Procedure Act. An application

for asylum is an application for both asylum status and

refugee status. Under the single procedure, a person

who does not meet criteria for asylum or refugee status

may be granted a complementary form of protection.

2.2 Pending Reforms

There are currently no signiﬁ cant reforms to asylum

procedures pending in Germany.

3 Institutional Framework

3.1 Principal Institutions

The Federal Office for Migration and Refugees

(Bundesamt für Migration und Flüchtlinge, BAMF) under

the Ministry of Interior is the competent authority for

assessing asylum claims. It decides on the granting

of refugee status and on the granting of subsidiary

protection within a single procedure.

The Aliens Ofﬁ ces, which fall under the responsibility of

each Federal State, determine applications for subsidiary

protection, if these applications are made separately

from applications for asylum. The Aliens Ofﬁ ces are also

responsible for examining and making determinations on

applications for subsidiary protection under the terms of

Section 60a para. 2 of the Residence Act.

The administrative courts are responsible for hearing

appeals of decisions made by the BAMF or the Aliens

Ofﬁ ces.

4 Pre-entry Measures

To gain entry into Germany, a foreign national must

have a valid passport or passport substitute, unless

he or she is exempt from this obligation by virtue of a

statutory instrument.

4.1 Visa Requirements

For a majority of foreign nationals, a visa is required in

order to enter and remain in Germany. The issuance of

visas rests with the Ministry of Foreign Affairs.

2 The granting of subsidiary protection under this provision is further

described in the section below on Status and Permits Granted

outside the Asylum Procedure.

4.2 Carrier Sanctions

A carrier may only transport foreign nationals into

Germany if they are in possession of a passport and

a residence title (i.e., a visa or a residence permit).

Violations of this obligation will subject the carrier to a

ﬁ ne. The ﬁ ne ranges between 1,000 € and 5,000 € for

each foreigner. Legal actions against the imposition of

the ﬁ ne have no suspensive effect.

If a foreign national is refused entry, the carrier who

transported him or her to the border will be required

to transport him or her from Germany. This obligation

applies for a period of three years with regard to foreign

nationals without a passport, passport substitute or a

residence permit. It does not apply to individuals who

were allowed entry because they cited grounds for

refugee status or subsidiary protection. The obligation

to remove the foreign national from German territory

expires if he or she has been granted a residence permit

pursuant to the Aliens Act.

4.3 Interception

The Federal Police is the competent authority for

border control. Its tasks include inter alia intercepting

undocumented migrants at the border, within a

30-kilometre area inside the German border and at

international airports. As a rule, the Federal Police will

return individuals who entered illegally to the state

where they came from. This does not apply, if the return

would amount to a violation of the non-refoulement

principle and, in the case of asylum-seekers, if Germany

is responsible for processing their claims.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

Foreign nationals may make a request for asylum with

border guards at the border or at an airport or seaport.

Asylum requests may be ﬁ led inside the territory with

any federal state or central government authority,

such as the Police or an Aliens Ofﬁ ce. The authorities

will refer the foreign national to a reception centre for

asylum-seekers.

The BAMF is the responsible authority for determining

asylum claims. It is composed of a central ofﬁ ce located

in Nuremberg and 21 branch ofﬁ ces nationwide. As a

rule, the branch ofﬁ ces are responsible for accepting

formal asylum applications and for processing the

claims. Reception centres are always located near a

branch ofﬁ ce of the BAMF.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Access to Information

The BAMF instructs all asylum applicants about the

course of the procedure and about their rights and

duties. In addition, the reception centres will provide

them with information on their rights and duties

regarding social assistance and medical care, as well

as on who could provide counselling on legal and other

issues.

5.1.1. Outside the Country

Applications at Diplomatic Missions

It is not possible to apply for asylum from abroad.

Resettlement/Quota Refugees

Germany does not have in place a regular resettlement

programme. However, it has engaged in ad hoc

resettlement of refugees. Germany is currently in the

process of resettling Iraqi nationals from Jordan and

Syria in cooperation with the United Nations High

Commissioner for Refugees (UNHCR) and as part of a

collective European Union (EU) initiative. The aim is to

resettle about 2,500 Iraqis in Germany.

Under the scheme, the UNHCR submits cases to

the BAMF for consideration. The BAMF conducts a

mission to Amman, Jordan, at which time interviews

and security checks take place. Decisions on eligibility

for resettlement are taken by the BAMF, and departures

are organised in cooperation with the International

Organization for Migration (IOM). Thereafter, the BAMF

determines the area of residence for the refugees. All

the resettled refugees are granted humanitarian status,

with beneﬁ ts similar to those given to persons who

obtain refugee status.

5.1.2. At Ports of Entry

At the Border

Asylum applications may be made at border guard

posts. These applications are then referred to the

competent or the nearest asylum-seeker reception

centre for examination under the normal procedure,

as described below.

At Airports

In certain cases, asylum applications at international

airports may be processed prior to the entry of the

applicant into Germany. The airport procedure is an

accelerated procedure, as there are deadlines for each

procedural step. In cases where the authorities are not

able to meet these deadlines, the asylum applicant is

entitled to enter Germany and to have his or her claim

processed inside the country.

The airport procedure applies in the following cases:

• When an asylum-seeker does not have valid

identity documents, or

• When an asylum-seeker hails from a safe

country of origin (Ghana or Senegal).

Asylum-seekers whose applications ar

e streamed

under the airport procedure are accommodated at a

reception centre at the airport. The branch ofﬁ ce of the

BAMF located inside or close to the airport will examine

his or her claim. Immediately after an interview, the

asylum-seeker will be given the opportunity to contact

a legal adviser of his or her choice.

If the BAMF makes a negative determination on the

claim on the basis that the application is manifestly

unfounded

, the asylum-seeker is not entitled to enter

Germany, and removal may be implemented. If the

BAMF is not able to arrive at a decision within two days

or if the claim is not deemed to be manifestly unfounded,

the applicant will be permitted to enter Germany.

If the asylum application and the application for entry are

being rejected, the applicant can ﬁ le an urgent motion

with the Administrative Court, in order to stave off his or

her removal. The motion must be ﬁ led within three days.

If it is ﬁ led in time, the applicant cannot be removed

prior to the Court’s decision. The Administrative Court

must decide on the application within two weeks. If

the Administrative Court does not come to a decision

within the two weeks, the applicant will be allowed to

enter Germany. The Court decision cannot be appealed.

Box 1:

Asylum Case Law: The Constitutionality

of the Airport Procedure

In a decision dated 14 May 1996, the Constitutional

Court ruled that the provisions on safe third

countries, safe countries of origin and the accelerated

airport procedure were all in line with the German

Constitution.

5.1.3. Inside the Territory

Requests for asylum inside the territory are usually

made with the police or an Aliens Ofﬁ ce. The authorities

3 See the sections below on the normal procedure and on decision-

making for information on grounds for rejecting an application as

manifestly unfounded.

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GER

will refer the foreign national to the nearest reception

centre for asylum-seekers. This reception centre will

either receive the person or refer him or her to the

competent reception centre. Reception centres are

always located near a branch ofﬁ ce of the BAMF where

a foreign national can formally apply for asylum. Prior

to making the formal application for asylum, the foreign

national is not considered an asylum applicant.

Responsibility for Processing the Claim

The Dublin System

Application and Procedure

The BAMF considers the application of Council

Regulation (EC) No 343/2003

once an asylum claim

has been registered. If the BAMF ﬁ nds that another

State is responsible for processing the claim, the

application for asylum is deemed inadmissible (Section

27a of the Asylum Procedure Act) and the asylum-

seeker will be ordered to leave Germany. He or she will

be issued a laissez-passer in order to be able to travel

to the destination state. An asylum application made

at a border guard post will not be referred to a BAMF

branch ofﬁ ce if it is found that another State party to

the Dublin II Regulation is responsible for the claim.

Freedom of Movement/Detention

Asylum-seekers are not usually detained during the

asylum procedure.

Conduct of Transfers

As a rule, transfers are carried out on the basis of a

mutual agreement between the states concerned. If an

asylum-seeker refuses to leave voluntarily, the Aliens

Ofﬁ ce will implement the transfer to the responsible

state.

Review/Appeal

Refusals under the Dublin II Regulation may be

appealed to the administrative courts. Appeals do not

have suspensive effect.

Application and Admissibility

Once an application for asylum has been registered with

the BAMF, the identity of the applicant will be established.

The applicant is obliged to submit identity documents,

if there are any. Fingerprints and photographs will be

4 Council Regulation (EC) No 343/2003 of 18 February 2003

establishing the criteria and mechanisms for determining the

Member State responsible for examining an asylum application

lodged in one of the Member States by a third-country national

(Dublin II Regulation).

taken. This information is then compared against data

contained in the Central Register of Aliens and identity

records stored by the Federal Criminal Police Ofﬁ ce.

The information will also be compared against the data

in the EURODAC database in order to ﬁ nd out whether

Germany is responsible for processing the claim under

the Dublin Regulation.

Before interviewing the claimant, the branch ofﬁ ce of

the BAMF will determine whether the application is

a ﬁ rst application, a repeat application or a multiple

application. First applicants will receive official

permission to reside in Germany for the duration of

the asylum procedure.

The German asylum system does not comprise an

admissibility procedure in the strict sense of the term.

Accelerated Procedures

Besides the airport procedure, which is described

above, there are no accelerated asylum procedures in

Germany.

Normal Procedure

A caseworker of the BAMF will interview the

asylum applicant either on the same day or within

a few days of the asylum-seeker having made the

application. Caseworkers are specialised according

to speciﬁ c countries of origin. Some caseworkers

are also specially-trained in handling claims from

speciﬁ c vulnerable groups, such as unaccompanied

minors or victims of gender-based persecution.

The interview is not open to the public. It may be

attended by representatives of the Federation, the

Federal States or the UNHCR. Other individuals may

attend, if permitted by the head of the BAMF or his

or her deputy.

It is up to the applicant to present the facts justifying his

or her fear of persecution and to provide the necessary

details.

The applicant will be provided with a copy of the

minutes of the interview.

The caseworker will clarify the facts of the case and

compile the necessary evidence. To this end, he or

she will use country of origin information (COI) from a

number of sources, including foreign-service reports,

and publications from non-governmental organisations

(NGOs) and UNHCR.

Claims that are considered to be unfounded or

manifestly unfounded are examined further by the

BAMF to determine whether there exist grounds for

granting complementary (subsidiary) protection.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

A claim may be deemed manifestly unfounded in one

of the following circumstances:

• The criteria for granting asylum status or refugee

status ar

e clearly not met

• It is clear that an asylum application has been

made in or

der to gain entry into Germany for

economic or other, non-protection-related

reasons

• The person meets the criteria for exclusion

as set out in Articles 1F and 33(2) of the 1951

Convention.

Review/Appeal of the Procedure

A negative decision on an asylum claim may be

appealed before an administrative court. There are three

stages of appeal, one before each of the Administrative

Court, the High Administrative Court and the Federal

Administrative Court.

The Administrative Court and the High Administrative

Court review decisions on points of fact and law, while

the Federal Administrative Court considers points of

law only.

The courts examine the claims without being bound

by evidence presented by the parties. The court

proceedings will normally comprise an oral hearing.

The court proceedings depend on whether a claim

has been rejected as “unfounded” or “manifestly

unfounded.”

Unfounded Claims

Where the BAMF has determined a claim to be

“unfounded,” an appeal may be lodged within two

weeks of the decision. In this case, the appeal has

suspensive effect.

If the court rules in favour of the asylum-seeker, the

BAMF decision will be annulled and the BAMF will be

requested to grant refugee status. If the court upholds

the decision of the BAMF, the asylum-seeker will be

required to leave Germany unless he or she has been

granted complementary (subsidiary) protection.

The asylum-seeker and the BAMF may, under certain

conditions, appeal the decision of the Administrative

Court before the High Administrative Court. As a

rule, appeals may be made with the leave of the

Administrative Court or – on special request – with the

leave of the High Administrative Court.

The decision of the High Administrative Court may

be appealed before the Federal Administrative Court,

provided that leave is granted either by the High

Administrative Court or by the Federal Administrative

Court. Usually, leave is granted in one of the following

circumstances:

• The appeal invokes a breach of federal law

• The decision of the High Administrative Court

is not compatible with the jurisprudence of the

Federal Administrative Court

• The decision of the High Administrative Court

is based on a legal issue of fundamental

importance.

Manifestly Unfounded Claims

A decision to reject an application on the basis that it

is “manifestly unfounded” may be appealed within one

week of the decision of the BAMF. The appeal has no

suspensive effect, and the applicant may be removed

from Germany before the Administrative Court has

decided on the appeal. However, the applicant may

ﬁ le an urgent motion, also within one week of the

decision of the BAMF, in order to stave off removal

proceedings.

If the Administrative Court rules in favour of the

applicant, the BAMF decision is annulled and the

BAMF will be requested to grant refugee status. If the

Court rejects the appeal as manifestly unfounded,

the applicant will be required to leave Germany. The

decision to reject an appeal as manifestly unfounded

cannot be appealed beyond the Administrative

Court.

Freedom of Movement during the

Procedure

Detention

Asylum-seekers are not detained for merely having

applied for asylum and have freedom of movement

during the procedure, although this movement is

geographically restricted to the district of the competent

Aliens Ofﬁ ce.

Reporting

Asylum-seekers must inform the authorities of any

change of address.

Repeat/Subsequent Applications

Repeat applications are subject to speciﬁ c procedures.

Applications are considered to be repeat applications if

the asylum-seeker makes an asylum claim after having

obtained a ﬁ nal negative decision on a previous claim

or after withdrawing a previous claim.

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An assessment of the merits of a repeat application will

take place only if the applicant presents new facts or

evidence, which through no fault of the applicant was

not presented during a previous asylum procedure. A

repeat application must be lodged within three months

of these new facts or evidence coming to light.

If an asylum-seeker fails to produce new facts or

evidence or fails to make a repeat application within the

time limit, no new asylum procedure will be conducted.

In such a case, removal is possible, once the BAMF

has informed the Aliens Ofﬁ ce that there will be no

assessment on the merits of the claim. Removal can

be effected even before a written decision on the claim

has been served on the applicant.

The applicant can appeal a negative decision on a

repeat application before the Administrative Court.

The appeal does not have suspensive effect. The

applicant may ﬁ le an urgent motion in order to stave

off the implementation of the removal order.

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

The legal basis for the safe country of origin principle is

Article 16a (3) of the Constitution, in line with Section 29a

of the Asylum Procedure Act. Safe countries of origin are

countries in which, on the basis of law, implementation

practices, and general political conditions, it can safely

be concluded that neither political persecution nor

inhuman or degrading punishment or treatment exists.

Safe countries of origin are speciﬁ ed by law. The current

list of safe countries of origin includes the EU Member

States, Senegal and Ghana. Claims made by persons

from a safe country of origin are examined on their

merits. However, there is a refutable presumption that an

asylum-seeker from such a country is not persecuted.

If the asylum-seeker can refute the presumption by

demonstrating that he or she is persecuted, refugee

status will be granted. Otherwise, claims made by

persons from a country considered to be a safe country

of origin will be deemed manifestly unfounded and

rejected on that basis.

5.2.2. First Country of Asylum

Section 27 of the Asylum Procedure Act stipulates

that an asylum-seeker who beneﬁ ted from protection

in another country will not be granted refugee status. If

an asylum-seeker holds a travel document issued by a

safe third country or by another third country pursuant

to Article 28 of the 1951 Convention, it is presumed

that he was safe from persecution in that country. The

same applies to asylum-seekers who lived for more

than three months in another country where they were

safe from persecution. However, the asylum-seeker

may rebut the presumption of safety by demonstrating

that refoulement to a country where he or she would

face a risk of persecution could not be ruled out with

reasonable certainty.

The decision regarding the first country of asylum

principle can be appealed before the Administrative

Court. The appeal does not have suspensive effect.

5.2.3. Safe Third Country

German law stipulates that any foreign national who

arrives at the border and claims asylum will not be

allowed to enter the territory if he or she is arriving

from a safe third country.

The safe third country rule does not apply under the

following circumstances:

• The foreign national held a residence title for

Germany at the time he or she enter

ed the safe

third country

Box 2:

Asylum Case Law: Repeat Applications

In a decision dated 18 December 2008, the Federal Administrative Court provided an interpretation of Article 5 (3)

of Council Directive 2004/83/EC (Qualiﬁ cation Directive.) The provision in the Directive stipulates that an asylum-

seeker “who ﬁ les a subsequent application will normally not be granted refugee status if the risk of persecution is

based on circumstances which the applicant has created by his own decision since leaving the country of origin.”

The Court stressed that the purpose of the provision is to prevent asylum-seekers from making subsequent applications

on the basis of participation in post-ﬂ ight activities. Thus, post-ﬂ ight activities presented for the ﬁ rst time in support

of a repeat application are presumed to be abusive. While previous activities of a similar kind may indicate that the

new activities are genuine, this is not sufﬁ cient to rebut the assumption of an abusive claim, if there is no coherence

between previous and later activities. For example, if an asylum-seeker has shunned public political activities in the

past, but, following an unsuccessful ﬁ rst asylum claim, engages in public activities, he or she must provide plausible

reasons for this sudden change.

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• Germany is responsible for processing claims

based on European Community law or an

international treaty with the safe third country

• The foreign national has been admitted by the

Federal Ministry of the Interior on humanitarian

ounds, for reasons of international law or in

the political interest of Germany.

The list of safe third countries includes the Member

States of the European Union, Norway and Switzerland.

Currently, the safe third country rule has little practical

effect, as the Dublin II Regulation supersedes it.

The decision to apply the safe third country rule can be

appealed to the Administrative Court. The appeal does

not have suspensive effect.

5.3 Special Procedures

5.3.1. Unaccompanied Minors

German asylum law distinguishes between minor

asylum-seekers below the age of 16 and minors aged

16 and 17 years.

Asylum-seekers aged 16 and above are considered

to have the full legal capacity to lodge an asylum

claim on their own and to undergo each step of the

procedure. During the asylum procedure, the minor will

be treated in the same manner as adult asylum-seekers.

However, for all other legal procedures, the minor will

be represented by a guardian.

Asylum-seekers under the age of 16 are considered

to lack the full legal capacity to undergo the asylum

procedure and are appointed a guardian. The guardian

assists minors in making their claim, and through each

step of the asylum procedure. The guardianship court is

responsible for appointing guardians to unaccompanied

minors. The guardian may be a family member or a

representative from the local Youth Ofﬁ ce, if the minor

does not have relatives in Germany.

The branch offices of the BAMF employ specially

trained caseworkers to deal with unaccompanied

asylum-seekers in order to ensure that the child’s

level of maturity and development will be taken into

account. The guardian will always be present during

the interview.

Some Federal States have in place special reception

arrangements for unaccompanied minors. Clearing

agencies look after the unaccompanied minors, provide

assistance with accommodation and try to obtain

information on the whereabouts of their parents or

legal guardians.

Figure 4:

Total Applications Made by Unaccompanied

Minors*, 2000-2008

636

331

186

180

324

955

873

200

400

600

800

1,000

1,200

1,068

1,327

1,400

2000

2001

2002

2003

2004

2005

2006

2007

2008

* Data refer to minors between 0 and 15 years of age.

(Germany began collecting data on unaccompanied minors

aged 16-17 years only in 2008, when 403 applications were

received by minors in this age group.)

5.3.2. Stateless Persons

The asylum application of a stateless person is treated

in the same manner as an application made by any

other asylum-seeker. The risk of persecution or risk to

life or to the person will be examined against conditions

in the country of former habitual residence. As a rule,

this is the last country of residence.

A stateless asylum-seeker who has received a negative

decision on a claim may be removed to the country of

former habitual residence or to a third country where

there is no risk of persecution.

6 Decision-Making and

Status

6.1 Inclusion Criteria

6.1.1. Convention Refugee

As noted above, there are two types of refugee status

granted in Germany:

• Asylum status granted in accordance with

Article 16a para. 1 of the Constitution

• Refugee status granted in accordance with

Section 3 para. 4 of the Asylum Pr

ocedure

Act, which reproduces the 1951 Convention

inclusion criteria.

The criteria that have to be met for either status are

similar, although the asylum status is more narrowly

construed. Asylum status cannot be granted in cases

where an asylum-seeker arrives in Germany via a safe

third country or where the claim is based on post-ﬂ ight

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events for which the asylum-seeker is responsible.

In contrast, refugee status on the basis of the 1951

Convention is not precluded where the safe third

country rule or post-ﬂ ight events are applicable.

The Qualiﬁ cation Directive (Council Directive 2004/83/

EC) is applicable only to refugee status granted under

the 1951 Convention and not to asylum status. Thus, it

is expected that with the transposition of the Directive

into German law, the differences in inclusion criteria

between the two types of status will widen. The Federal

Constitutional Court determines the criteria for granting

asylum status.

6.1.2. Subsidiary Protection

An asylum-seeker is granted complementary

(“subsidiary”) protection if he or she is not entitled

to asylum but cannot be removed to the country in

question for one of the following reasons:

Subsidiary protection based on Article 15 of the

“Qualiﬁ cation Directive”

• A risk of the death penalty or execution

• A risk of torture or inhuman or degrading

eatment or punishment, or

• A serious and individual threat to a civilian’s life

or person by r

easons of indiscriminate violence

in situations of international or internal armed

conﬂ ict.

Subsidiary protection based on other legal criteria

• A breach of rights under Article 3 of the ECHR,

• Other substantial and concrete dangers to

life, limb or liberty

, such as natural disasters or

risks arising from the particular situation of the

applicant.

6.2 The Decision

Both positive and negative decisions of the BAMF are

made in writing. Negative decisions are reasoned and are

accompanied by a fact sheet outlining the possibilities

for appealing the decision. Decisions are always served

on the asylum-seeker or his representative.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

The BAMF may make one of the following decisions

on an asylum claim:

• Grant asylum status in line with Article 16a para.

1 of the Constitution and r

efugee status in line

with the 1951 Convention

• Grant refugee status in line with the 1951

Convention

• Grant subsidiary protection

• Deny asylum status, refugee status and

subsidiary pr

otection

• Determine that the claim should not be

ocessed as the asylum-seeker entered

Germany via a safe third country – thus, the

claim is not examined on its merits.

Claims may be rejected on the basis that they are

unfounded, manifestly unfounded or that they are

irrelevant because it is obvious that the foreigner was

already safe from persecution in another country (ﬁ rst

country of asylum).

Claims that are considered to be unfounded may be

rejected as manifestly unfounded, inter alia, in the

following cases:

Box 3:

Asylum Case Law: Granting Subsidiary Protection

In a 24 June 2008 decision in the case of BVerwG 10 C 43.07

, the Federal Administrative Court set out criteria that

have to be met in order to grant subsidiary protection on the basis of Article 15(c) of Council Directive 2004/83/EC.

The Court ruled that the concept of international and internal armed conﬂ ict is to be construed taking international

humanitarian law into account, in particular the Geneva Conventions and the Additional Protocols of 1977. An

internal armed conﬂ ict need not extend through the entire territory of a country. However, its existence does not

in and of itself sufﬁ ce to make a person eligible for subsidiary protection. Instead, the conﬂ ict must be such that it

poses a danger to the entire population on the territory. This danger of a general nature can be made more serious

by individual circumstances, including circumstances arising from a person’s membership in a group.

1 The full text of the decision, in English, may be found on the website of the Federal Administrative Court:

www.bundesverwaltungsgericht.de.

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• Key aspects of the reasons invoked in the

application have not been substantiated, are

contradictory, do not correspond to the facts

or are based on fraudulent evidence

• The person has concealed or provided

misr

epresentations of his or her identity or

nationality

• The person has made another asylum application

using dif

ferent personal information

• The claim was made in order to avoid an

imminent termination of a r

esidence title and

had ample opportunity to make the claim at an

earlier date.

Applicants with claims deemed irrelevant will normally

be returned to the country where they had been safe

from persecution. If it is not possible to return the

individual within three months, the asylum procedure

will be resumed.

Convention Refugee or Asylum Status

Persons granted asylum status or refugee status are

entitled to the following beneﬁ ts:

• A residence permit which is valid for three years

and r

enewable

• The same (unrestricted) access to the labour

market as nationals

• The same social welfare beneﬁ ts

as nationals

(including housing)

• The same health care as nationals

• Integration measures, including language

training and cultural orientation.

Members of the nuclear family (spouse and unmarried

minor childr

en) of a refugee residing in Germany are

generally entitled to asylum status or refugee status as

well without the need to show persecution. Members of

the nuclear family (spouse, unmarried minor children,

parents who are legal guardians of minor children) who

are not residing in Germany are as a rule entitled to

family reuniﬁ cation.

As a rule, a refugee becomes eligible for a permanent

residence (“unlimited settlement”) permit after three years,

unless there are reasons for withdrawing his asylum or

refugee status. To this end, all positive decisions will be

re-examined by the BAMF no later than three years after

the decision became ﬁ nal and non-appealable.

If the prerequisites for granting refugee status are still

met, the refugee status will be upheld, and the refugee

5 Section 29 para. 2 of the Residence Act.

will be granted a permanent residence permit. If not,

refugee status will be withdrawn. Once this decision has

become ﬁ nal and non-appealable, the competent Aliens

Ofﬁ ce will decide whether to withdraw the residence

permit. The latter is a discretionary decision and will

depend on a number of factors, inter alia the degree of

integration of the individual into German society, the

length of stay in the territory, length of absence from the

country of origin, any criminal record, and family ties.

Beneﬁ ciaries of Subsidiary Protection

Beneﬁ ciaries of subsidiary protection are entitled to the

following beneﬁ ts:

• A residence permit valid for at least one year

and r

enewable

• Access to the labour market, subject to a labour

market test

• Access to the same core social welfare beneﬁ ts

as nationals (including housing)

• Access to the same core health care as nationals

• Integration measures (on a discretionary basis).

Close family members (spouse, unmarried minor

children, and parents who are legal guardians of minor

children) of beneﬁ ciaries of subsidiary protection are

granted family reuniﬁ cation under certain conditions

(e.g., secured livelihood and adequate accommodation

space).

Beneﬁ ciaries of subsidiary protection may obtain a

permanent residence permit after seven years, upon a

decision by the competent Aliens Ofﬁ ce.

Negative Decisions

An asylum-seeker whose claim is determined to be

“unfounded” is given a notiﬁ cation of return along with

the negative decision. The person must leave Germany

within one month of the decision, if he or she does not

appeal the decision. The appeal has suspensive effect.

An asylum-seeker whose claim is determined to be

“manifestly unfounded” is given a notiﬁ cation of return

along with the negative decision. The person must leave

Germany within one week of the decision. The appeal

against the decision does not have suspensive effect,

unless the asylum-seeker ﬁ les an urgent motion to this

end and the urgent motion is successful.

6 Access to the labour market is dependent on the following factors:

whether the employment of the person entitled to subsidiary

protection would have an adverse effect on the labour market; and

whether German citizens, EU citizens or other foreign nationals

with a work permit are qualiﬁ ed for the job.

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Asylum-seekers who are found to have arrived through

a safe third country are required to return to the safe

third country.

6.4 Exclusion

6.4.1. Refugee Protection

The Counter-Terrorism Act of 9 January 2002 introduced

grounds for excluding persons from refugee status in

line with Article 1F of the 1951 Convention. Prior to

that date, exclusion clauses were not applied during

the asylum procedure.

In addition to Article 1F cases, refugee status will not

be granted in cases where there are serious reasons for

considering that the asylum-seeker constitutes a risk

to national security or to the public because he or she

has been sentenced to a prison term of at least three

years for a criminal offence.

6.4.2. Complementary Protection

Exclusion clauses, as outlined below, are applicable

when considering the granting of complementary

protection. Complementary protection is construed

as an absolute right of protection against removal, as

there are no other protection provisions in German law.

Thus, while complementary protection as such cannot

be excluded, the relevant status rights can be denied.

If a person who meets the criteria for complementary

protection is also subject to the exclusion clauses, the

individual will be granted neither a residence permit nor

other rights and beneﬁ ts attached to complementary

protection status. The individual will be obliged to leave

Germany. If removal cannot be effected, he or she will

have the same status rights as an asylum-seeker.

The applicable exclusion clauses, based on Article 17

of the Qualiﬁ cation Directive, are as follows:

• There are serious reasons to believe the person

has committed a crime against peace, a war

crime or a crime against humanity in line with

Article 1F a of the 1951 Convention

• There are serious reasons to believe the person

has committed a serious non-political crime in

line with Article 1F(b) of the 1951 Convention

• There are serious reasons to believe the person

has been guilty of acts contrary to the purposes

and principles of the United Nations as set out in

the Preamble and Articles 1 and 2 of the Charter

of the United Nations (Article 1F(c) of the 1951

Convention)

• There are serious reasons to believe the person

constitutes a danger to the community or to

national security (Article 33 para. 2 of the 1951

Convention).

In addition to the exclusion clauses above, a person

who meets the criteria for complementary protection on

the basis of non-European Union law may be excluded

for the following additional reasons:

• It is possible and reasonable for the applicant

to r

eside in another state or

• The applicant has repeatedly or grossly breached

duties to cooperate with the authorities.

6.5 Cessation

Germany applies the cessation clauses of Article 1C of

the 1951 Convention.

In cases pursuant to Article 1C (5) and (6) of the 1951

Convention (ceased circumstances clauses), the BAMF

will inform the refugee in writing about the possibility of

his status being withdrawn. The refugee will be given

due process. The BAMF may request that the refugee

provide a written comment within one month. If the

refugee fails to do so, the decision will be taken on

the basis of the record as it stands. The decision will

be served upon the individual in writing. The individual

can appeal the decision. As a rule, the appeal has

suspensive effect.

Subsidiary protection status may be withdrawn if the

person no longer meets criteria for being granted

protection. The same procedural rules apply as in cases

pursuant to Article 1C (5) and (6). The decision can be

appealed. As a rule, the appeal has suspensive effect.

In all cessation cases, it is up to the competent Aliens

Ofﬁ ce to decide whether the residence permit should be

withdrawn as well. The decision is discretionary and will

be based on a number of criteria (inter alia integration

of the individual in Germany, length of stay, any criminal

record and family ties).

6.6 Revocation

Asylum status, refugee status or subsidiary protection

status may be revoked if the granting of protection

status was incorrect. This applies in cases where the

decision was based on false information provided

by the asylum-seeker (e.g., a false identity or a false

country of origin) or on the concealment of essential

facts. The same rules of procedure and legal remedies

apply as in cessation cases as described above.

The revocation of status will also normally lead to the

revocation of the residence permit (ex tunc).

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6.7 Support and Tools for

Decision-Makers

In addition to a country of origin information service

and a language analysis tool, the BAMF provides its

decision-makers with policy guidelines regarding the

situation in countries of origin and the interpretation

of the law.

6.7.1. Country of Origin Information

The Information Centre for Asylum and Migration

(Informationszentrum Asyl und Migration, IZAM) of the

BAMF is responsible for storing and producing country

of origin information (COI). The IZAM COI collection

comprises information from a wide range of sources,

such as foreign service reports published by Germany

and other countries, information from UNHCR, human

rights organisations, NGOs, academics, and from

liaison ofﬁ cers deployed in a number of EU Member

States. The information made available to asylum

decision-makers is regularly updated.

The IZAM conducts research and produces reports on

countries of origin as well as on speciﬁ c subjects such

as political organisations or the situation of particular

groups in countries of origin. The IZAM also compiles

legal information, in particular decisions by courts.

All the research produced and gathered by the IZAM

is made available on the database MILo (Migration-

Information-Logistics), which is fully accessible to BAMF

staff as well as to administrative judges at the second

instance. Parts of MILo are made available to the public

on the Internet. The IZAM also operates a central reference

desk, which responds to caseworkers’ queries for COI

when the requested information is not available on MILo.

6.7.2. Language Analysis

Language analysis may be used in cases where the

alleged country or region of origin is in doubt. To this

end, the asylum-seeker’s oral statements are recorded

on audio and data media. Such recordings may be

made only if the asylum-seeker is informed beforehand.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

The identity of any asylum-seeker will be established

by means of identiﬁ cation measures unless he or she is

under 14 years of age. Only photographs and prints of

all ten ﬁ ngers may be taken. Fingerprinting is crucial for

identifying asylum-seekers who have already applied for

asylum in other EU Member States, and for determining

whether the application is a ﬁ rst or repeat application.

7.1.1. Fingerprinting

Fingerprints are taken from all asylum-seekers aged

14 and above. Fingerprints are stored in a central

database with the Federal Criminal Police Ofﬁ ce. They

will be compared with ﬁ ngerprints of other asylum-

seekers included in the database in order to establish

whether an asylum-seeker is making a ﬁ rst or repeat or

a multiple application for asylum. The information will

also be compared against the data in the EURODAC

database and identity records stored by the Federal

Criminal Police Ofﬁ ce and obtained from such sources

as criminal investigations.

The ﬁ ngerprints taken are also stored in the Eurodac

database, which facilitates the comparison of

ﬁ ngerprints of asylum-seekers and persons without

permits in EU countries, in order to determine the EU

Member State responsible for processing a claim under

the Dublin Regulation.

7.1.2. DNA Tests

There are no possibilities for undertaking DNA tests

during the asylum procedure.

7.1.3. Forensic Testing of Documents

In order to check the authenticity of identity documents

or other documents, forensic tests are used.

7.1.4. Database of Asylum

Applications/Applicants

Data on the application of all asylum-seekers is stored

in a centralised database at the BAMF called the Maris

database.

In addition, the personal data on an asylum-seeker is

entered into the Central Aliens Register. The Central

Aliens Register is a centralised, national ﬁ le containing

personal data inter alia of foreign nationals who are

staying in the Federal territory for longer than three

months, and foreign nationals who are in Germany on

special residence grounds, such as asylum-seekers.

The Central Aliens Register is also maintained by the

BAMF.

7.1.5. Biometric Data Checks

In order to check the authenticity of an asylum-seeker’s

document or identity, biometric data and other data

stored electronically inor her or she passport or other

identity documents may be read, and the necessary

biometric data may be obtained from the asylum-

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seeker and compared with the biometric data from the

document. Biometric data may include only ﬁ ngerprints,

photographs and iris scans.

7.2 Length of Procedures

While there are no time limits for making a ﬁ rst asylum

application, a person who has delayed in making an

application for asylum after arriving in Germany may

ﬁ nd his or her credibility assessment affected. Repeat

applications must be made within three months of the day

the person learnt of the grounds for the new application.

Otherwise the repeat application will be rejected.

7.3 Pending Cases

As at 31 December 2008, there was a total of 18,278

pending cases at the BAMF (14,092 ﬁ rst applications

and 4,186 repeat applications).

7.4 Information Sharing

Information sharing agreements exist with states under

the Dublin II Regulation. UNHCR is provided with

anonymised copies of all asylum decisions.

7.5 Single Procedure

If an asylum-seeker asks for asylum and/or refugee

status, the BAMF will automatically also decide on the

granting of subsidiary protection in cases where asylum

and refugee status were denied. In that sense, there is

a single procedure.

However, if a foreign national applies for subsidiary

protection only, the decision rests with the Aliens Ofﬁ ce.

In order to ensure consistency in decision-making,

the Aliens Ofﬁ ce consults the BAMF before making a

decision on the application.

8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

There is no requirement for asylum-seekers to have legal

representation or assistance during the asylum procedure

at the BAMF. Nor is legal counsel required for appeals

before the Administrative Court. Legal representation is

obligatory for appeals before the High Administrative

Court and the Federal Administrative Court.

At the ﬁ rst instance, asylum-seekers have access to

free legal counselling but not free legal representation.

At the appeal stage, an asylum-seeker may be granted

free legal aid that includes legal representation,

provided that there are sufﬁ cient prospects for success

of the appeal and the appellant is lacking in ﬁ nancial

resources.

8.1.2. Interpreters

During the asylum procedure at the BAMF, an interpreter

is made available during the interview if the applicant

does not have sufficient command of the German

language.

8.1.3. UNHCR

According to Section 9 of the Asylum Procedure Act,

every asylum-seeker in Germany may contact the

UNHCR. The ofﬁ ce may present its views regarding

individual applications for asylum to the BAMF. The

UNHCR also has access to persons in detention and

in airport transit zones.

Box 4:

Cooperation with UNHCR, NGOs

While the UNHCR does not have a formal role in the asylum procedure, the BAMF will, upon request, provide the

UNHCR with information necessary for the Refugee Agency to fulﬁ ll its mandate under Article 35 of the 1951

Convention. This includes the provision of anonymised copies of all asylum decisions and reports of hearings.

A sub-ofﬁ ce of the UNHCR is located in the building of the BAMF in Nuremberg. Exchange takes place on all aspects of

the asylum procedure and on decisions taken, including several institutionalised exchange fora addressing questions

relating to the quality of procedures and decision-making. The UNHCR is also involved in providing training and

information to asylum authorities (including the BAMF and the border police) and to asylum law judges.

NGOs are not involved in the asylum procedure. However, there is a wide range of NGOs and private initiatives

engaged in counselling and support work for asylum-seekers and refugees.

In order to assess asylum claims, the BAMF inter alia draws upon information from UNHCR and NGOs.

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8.2 Reception Beneﬁ ts

The Federal States have overall responsibility for the

reception of asylum-seekers.

8.2.1. Accommodation

Asylum-seekers are accommodated in asylum reception

centres run by the Federal States during the ﬁ rst three

months of the procedure. Thereafter, asylum-seekers

will be transferred to local asylum centres, which are

also run by the Federal States or local authorities.

The obligation to reside in a reception centre may

be terminated for reasons of public health, for other

reasons of public security and order or for other

compelling reasons, including humanitarian reasons.

Unaccompanied minor asylum-seekers under the age

of 16 are provided accommodation in special reception

centres run or supervised by the Youth Welfare

Services. In a number of Federal States, this type of

accommodation is also available to unaccompanied

minors above the age of 16.

8.2.2. Social Assistance

Asylum-seekers are entitled to government aid if they

have no income or assets of their own. The Asylum

Seekers Beneﬁ ts Act deﬁ nes the scope and form of

assistance granted to asylum-seekers. As a rule, in-

kind beneﬁ ts have priority over ﬁ nancial aid. In-kind

beneﬁ ts comprise inter alia accommodation, heating,

electricity, furniture and appliances. Everyday items can

be purchased using coupons or credit cards loaded

with ﬁ xed credit amounts. Asylum-seekers receive the

following monthly ﬁ nancial aid for everyday items, such

as food, clothing, and health care products:

• For each head of the household: 184.07 €

• For each child under the age of eight: 112.48 €

• For all other family members: 158.50 €.

In addition, asylum-seekers r

eceive pocket money as

follows:

• Children under the age of 15: 20.45 € per month

• Individuals over 15 years of age: 40.90 € per

month.

Additional beneﬁ ts may be granted in special situations,

such as to accommodate the special needs of children

and infants, the cost of school materials or ﬁ eld trips or

the special needs of pregnant women.

If, after four years, an asylum application is still pending,

the asylum-seeker is entitled to increased ﬁ nancial

assistance based on the beneﬁ ts granted to German

nationals.

8.2.3. Health Care

Asylum-seekers are entitled to medical and dental

care if they suffer from an illness requiring treatment.

Unless there is an emergency, asylum-seekers must

receive approval from the Social Services Ofﬁ ce prior

to visiting a doctor. Medical treatment may be refused

if it is not absolutely necessary or it can be performed

at a later date.

Additional health care services may be granted if they

are necessary for the overall health of the asylum

seeker. Asylum-seekers are entitled to regular medical

examinations and essential vaccinations.

Children under the age of six can undergo special

pediatric medical exams, including dental examinations.

Pregnant women and mothers with infants may have

access to a wider range of health care services.

Asylum-seekers who have resided in Germany for more

than 48 months (four years) while awaiting a decision on

their claim will generally be granted health care based

on the beneﬁ ts granted to German nationals.

8.2.4. Education

Responsibility for granting access to education,

including language classes, rests with the Federal

States. Thus, there is no uniform policy regarding

education for asylum-seekers in Germany. In some

Federal States school attendance for minors is

compulsory, while in other States minors have the

possibility to attend school but are not obliged to do

so. Similarly, access to language classes varies across

Germany.

8.2.5. Access to Labour Market

After having resided in Germany for a year while

awaiting a decision on their claim, asylum-seekers may

take up employment. However, a person’s access to a

speciﬁ c job is subject to a labour market test. Asylum-

seekers will be considered for a position only if there are

no German citizens or other foreign nationals qualiﬁ ed

for the job.

8.2.6. Access to Integration

Programmes

Asylum-seekers are not entitled to participate in state-

run integration programmes pending a decision on

their claim. However, there are numerous programmes

designed to assist asylum-seekers in their everyday

life. These cover a wide range of issues, including legal

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counselling, joint activities with the local communities

or language classes.

8.2.7. Access to Beneﬁ ts by Rejected

Asylum-Seekers

Asylum-seekers who have obtained a negative decision

on their claim continue to be entitled to beneﬁ ts for

asylum-seekers until their departure from Germany.

9 Status and Permits

Granted outside the

Asylum Procedure

9.1 Subsidiary Protection

Applications for subsidiary protection claims are

examined by the Aliens Ofﬁ ce if the applicant does not

apply for asylum at the same time. These applications

are considered separately from the asylum procedure.

The Aliens Ofﬁ ce is also responsible for examining

applications for subsidiary protection if the application

raises issues related to the person’s situation, such

as health issues or lack of fitness to travel. Such

applications are usually made after a negative decision

on an asylum claim by the BAMF.

Any negative decision taken by the Aliens Ofﬁ ce on an

application for subsidiary protection may be appealed.

The appeal has suspensive effect.

All beneﬁ ciaries of subsidiary protection, regardless of

whether it was granted by the Aliens Ofﬁ ce outside the

asylum procedure or by the BAMF, are entitled to the

same beneﬁ ts described above.

9.2 Humanitarian Grounds

The Aliens Ofﬁ ce may grant on a discretionary basis

temporary residence for humanitarian reasons or for

reasons related to the public interest. The temporary

residence permit is valid for a maximum period of six

months.

Decisions by the “Commissions for Hardship

Cases” (“Härtefallkommission”)

Federal States may issue a residence permit to

a person who is subject to a removal order, if a

Commission for Hardship Cases determines that there

are compelling reasons for doing so. Commissions for

hardship cases exist in all Federal States. For example,

a person who has been integrated into German society

and has resided in the country for many years may

be eligible for a residence permit. Persons who have

been convicted of a serious crime are excluded from

consideration.

The Commission’s decisions are recommendations and

non-binding on authorities. Hence, an individual cannot

appeal the decision of the Commission.

If a residence permit is granted on the basis of the

Commission’s recommendation, the person is entitled

to the same rights as any other legally resident foreign

national.

9.3 Temporary Protection

Temporary protection is granted on a group basis

outside the asylum procedure, in accordance with

Section 24 of the Residence Act, which gives effect to

Council Directive 2001/55/EC.

Temporary protection

is limited to a maximum of two years. If beneﬁ ciaries

of temporary protection apply for asylum, the decision

on the asylum claim will be suspended until temporary

protection comes to an end.

Beneﬁ ciaries of temporary protection are entitled to

rights and beneﬁ ts similar to those of beneﬁ ciaries

of subsidiary protection. Beneﬁ ciaries of temporary

protection are settled in Germany on a voluntary basis.

Thus, it is not possible for foreign nationals to apply for

temporary protection or to make an appeal against a

decision not to grant temporary protection.

9.4 Group-Based Protection

While refugee status is granted within the asylum

procedure on an individual case-by-case basis, if mere

afﬁ liation with an ethnic, religious or other, well-deﬁ ned

group of persons is the basis for persecution (group-

based persecution), it is possible to grant refugee status

to members of the group collectively. Thus, individual

applicants do not need to prove they are speciﬁ cally

targeted for persecution but rather, that they are a

member of that particular group.

This form of group-based protection is granted by the

Interior Ministries of the Federal States outside the

asylum procedure for humanitarian or political reasons.

This is done on a discretionary basis, and it requires the

consent of the central Ministry of Interior.

In addition, the central Ministry of Interior in coordination

with the Federal States has the discretion to accept a

7 Council Directive 2001/55/EC of 20 July 2001 on minimum

standards for giving temporary protection in the event of a mass

inﬂ ux of displaced persons and on measures promoting a balance

of efforts between Member States in receiving such persons

and bearing the consequences thereof (Temporary Protection

Directive).

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group of persons from speciﬁ c countries, if this is in the

speciﬁ c political interest of Germany.

Decisions of the Supreme Land Authorities

Under German law, the supreme Land authorities

(Ministries of the Interior of the Länder) have the

possibility, in consultation with the central Ministry of the

Interior, to grant residence permits to foreign nationals

both inside and outside Germany who originate from

speciﬁ cally-designated countries or are members of

specifically-designated groups. The decisions are

based on international law or humanitarian or foreign

policy considerations.

9.5 Obstacles to Return

An asylum-seeker who has received a negative decision

on a claim, or any other foreign national who has an

obligation to leave Germany, may be eligible for a

residence permit on humanitarian grounds, if removal

cannot be implemented for reasons of fact or law and

the obstacle to removal is not likely to cease in the

foreseeable future.

If a suspension of removal (“toleration” or “Duldung”)

has lasted for 18 months, a residence permit will

generally be granted. This does not apply in cases

where the foreign national obstructed removal efforts.

The residence permit entails rights and benefits

similar to those granted to beneﬁ ciaries of subsidiary

protection.

9.6 Regularisation of Status over

Time

There have in the past been temporary, ad hoc

regularisation programmes to grant residence permits

to foreign nationals under tolerated status (Duldung).

The Act on the Implementation of Residence and

Asylum-Related Directives of the European Union

of 19 August 2007 includes a legal regularisation

programme for foreign nationals who inter alia have

been continuously resident in the Federal territory for a

minimum of eight years on 1 July 2007 and fulﬁ ll certain

integration requirements

In case of a suspension of a removal, an individual

may – if a number of requirements are met – receive

8 This discretion has been exercised, for example, in the case of the

Iraqi nationals currently being resettled from Jordan and Syria (see

section on Resettlement above). The resettled Iraqis are granted a

renewable residence permit valid for three years.

9 These requirements include adequate accommodation space,

knowledge of the spoken German language, secured livelihood,

and no convictions or suspicion of having participated in extremist

or terrorist activities or serious criminal offences.

a residence permit after a period of time has elapsed,

as described above.

9.7 Regularisation of Status of

Stateless Persons

Germany has ratiﬁ ed the 1954 Convention relating to the

Status of Stateless Persons and the 1961 Convention

on the Reduction of Statelessness. A stateless person

whose application for asylum has been rejected and

who cannot return to the country of habitual residence

may regularise his or her stay in Germany, provided

certain conditions are met.

9.8 Victims of Trafﬁ cking

The Aliens Ofﬁ ce may, on a discretionary basis, grant

a temporary residence permit to victims of human

trafﬁ cking, provided that a court or prosecutor has

requested them to give testimony in a court case. The

permit is valid for an initial period of six months and is

renewable. The beneﬁ ts and entitlements attached to

this temporary permit are similar to those available to

beneﬁ ciaries of subsidiary protection.

10 Return

10.1 Pre-departure Considerations

An unsuccessful asylum-seeker will be requested

to leave Germany within a speciﬁ c timeframe. The

decision regarding the removal will be served on the

asylum-seeker together with the negative decision on

the asylum claim.

Returnees are encouraged to return voluntarily. There

are a number of programmes that provide ﬁ nancial

support to those returnees without the ﬁ nancial means

to return on their own.

10.2 Procedure

Voluntary Return

The REAG (Reintegration and Emigration Programme for

Asylum Seekers in Germany) and GARP (Government

Assisted Repatriation Programme) are two combined

programmes to assist voluntary return and emigration.

They are organised by IOM on behalf of the Ministry

of the Interior and the competent Federal States

ministries, in coordination with the local authorities,

welfare organisations and UNHCR. The programmes

are conditional on returnees not having sufﬁ cient funds

to meet the cost of return and emigration.

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The BAMF has set up a database (Zentralstelle für

Informationsvermittlung zur Rückkehrförderung, ZIRF)

with relevant data related to voluntary return, such as

conditions in the country of origin, and promotional

programmes such as those mentioned above.

While REAG provides return assistance in the form

of transport costs and travel subsidies, GARP grants

reintegration assistance. The GARP assistance is

allocated to each person, with the amount adjusted

according to the person’s age and destination country.

Assisted returns also take place under programmes of

the European Refugee Fund (relating to information-

and advice-provision) and the European Return Fund.

Forced Return

Returns may be enforced if the person is not willing

to leave Germany after the deadline for departure has

passed.

10.3 Freedom of Movement/

Detention

Detention pending deportation may be ordered for up to six

months. A non-cooperative returnee may be detained for

a maximum duration of 18 months, if there are indications

that his or her removal would otherwise become difﬁ cult

or impossible. This may be the case, if, for example, the

returnee has obstructed removal efforts before, or if there

are indications that he or she would abscond.

A returnee will be released from detention if a removal

through no fault of his or her own cannot be implemented

(for example because the country of destination is not

accessible). Detention may be ordered only by a judge.

10.4 Readmission Agreements

Germany has in place readmission agreements with

a number of States, but none of them is dedicated to

speciﬁ c groups of asylum-seekers.

11 Integration

Beneﬁ ciaries of asylum status or refugee status are

entitled to participate in integration courses. Integration

courses comprise basic and advanced language

courses that provide an adequate knowledge of the

language and an orientation course to impart knowledge

of the legal system, culture and history of Germany. The

aim is to provide refugees with the knowledge and tools

necessary to live independently.

Integration courses are coordinated and implemented

by the BAMF. To this end, the BAMF enlists the services

of private or public organisations.

Beneﬁ ciaries of subsidiary protection are not entitled

to integration courses but may take part in them,

depending on the available resources.

Integration courses are complemented by additional

integration measures organised by the Federation and

the Federal States, in particular social education and

migration-speciﬁ c counselling services.

Finally, there are many NGO-based integration

programmes and private initiatives throughout

Germany, which support refugees and others in their

integration efforts.

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12 Annexe

12.1 Selection from the Basic Law for the Federal Republic of Germany

Article 16a

Right of asylum

(1) Persons persecuted on political grounds shall have the right of asylum.

(2) Paragraph (1) of this Article may not be invoked by a person who enters the federal territory from a member

state of the European Communities or from another third state in which application of the Convention Relating to

the Status of Refugees and of the Convention for the Protection of Human Rights and Fundamental Freedoms is

assured. The states outside the European Communities to which the criteria of the ﬁ rst sentence of this paragraph

apply shall be speciﬁ ed by a law requiring the consent of the Bundesrat. In the cases speciﬁ ed in the ﬁ rst sentence

of this paragraph, measures to terminate an applicant’s stay may be implemented without regard to any legal

challenge that may have been instituted against them.

(3) By a law requiring the consent of the Bundesrat, states may be speciﬁ ed in which, on the basis of their laws,

enforcement practices, and general political conditions, it can be safely concluded that neither political persecution

nor inhuman or degrading punishment or treatment exists. It shall be presumed that a foreigner from such a state

is not persecuted, unless he presents evidence justifying the conclusion that, contrary to this presumption, he is

persecuted on political grounds.

(4) In the cases speciﬁ ed by paragraph (3) of this Article and in other cases that are plainly unfounded or considered

to be plainly unfounded, the implementation of measures to terminate an applicant’s stay may be suspended by a

court only if serious doubts exist as to their legality; the scope of review may be limited, and tardy objections may

be disregarded. Details shall be determined by a law.

(5) Paragraphs (1) through (4) of this Article shall not preclude the conclusion of international agreements of member

states of the European Communities with each other or with those third states which, with due regard for the

obligations arising from the Convention Relating to the Status of Refugees and the Convention for the Protection of

Human Rights and Fundamental Freedoms, whose enforcement must be assured in the contracting states, adopt rules

conferring jurisdiction to decide on applications for asylum, including the reciprocal recognition of asylum decisions.

12.2 Selections from the Asylum Procedure Act

Section 3

Recognition of refugee status

(1) A foreigner is a refugee within the meaning of the Convention related to the status of refugees if in the country

of his citizenship or in which he habitually resided as a stateless person he faces the threats listed in Section 60

(1) of the Residence Act.

(2) A foreigner shall not be recognized as a refugee under (1) if there is good reason to believe that he

1. has committed a crime against peace, a war crime or a crime against humanity within the meaning of the

international instruments drawn up for the purpose of establishing provisions regarding such crimes,

2. committed a serious non-political crime outside the Federal territory before being admitted as a refugee, in

particular a brutal act, even if it was supposedly intended to pursue political aims, or

10 Basic Law for the Federal Republic of Germany, 23 May 1949 (as amended July 2002). Available online on UNHCR Refworld at:

http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=search&docid=3ae6b5a90&skip=0&query=Germany%20basic%20law

[Accessed 2 April 2009].

11 Asylum Procedure Act in the version promulgated on 27 July 1993, last amended by Article 3 of the Act to Implement Residence- and Asylum-

Related Directives of the European Union of 19 August 2007. Available online on UNHCR Refworld at:

http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=48e5d6582&page=search [accessed 2 April 2009].

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3. acted in violation of the aims and principles of the United Nations.

Sentence 1 shall apply also to foreigners who have incited others to commit the crimes or acts listed there or

otherwise been involved in such crimes or acts.

(3) Nor shall a foreigner be a refugee under (1) if he enjoys the protection or assistance of an organization or other

institution of the United Nations, with the exception of the United Nations High Commissioner for Refugees under

Article 1, section D of the Convention relating to the status of refugees. (1) and (2) shall apply if such protection or

assistance is no longer provided, without having ﬁ nally clariﬁ ed the situation of those affected in accordance with

the relevant resolutions of the General Assembly of the United Nations.

(4) A foreigner who is a refugee under (1) shall be recognized as having refugee status unless he fulﬁ ls the prerequisites

of Section 60 (8) ﬁ rst sentence of the Residence Act.

Section 27

Safety elsewhere from persecution

(1) A foreigner who was already safe from political persecution in another third country shall not be recognized as

a person entitled to asylum.

(2) If the foreigner holds a travel document issued by a safe third country (Section 26a) or by another third country

pursuant to the Convention related to the status of refugees, it shall be presumed that he was safe from political

persecution in that country.

(3) If before entering the Federal territory, a foreigner has lived for more than three months in another third country

where he is not threatened by political persecution, it shall be presumed that he was safe there from political

persecution. This shall not apply if the foreigner provides plausible evidence that deportation to another country

where he is threatened by political persecution could not be ruled out with reasonable certainty.

Section 29a

Safe country of origin

(1) The asylum application of any foreigner from a country within the meaning of Article 16a (3) ﬁ rst sentence of the

Basic Law (safe country of origin) shall be turned down as being manifestly unfounded, unless the facts or evidence

produced by the foreigner give reason to believe that he faces political persecution in his country of origin in spite

of the general situation there.

(2) In addition to the Member States of the European Union, safe countries of origin are those listed in Appendix II.

(3) The Federal Government shall resolve by statutory ordinance without the consent of the Bundesrat that a country

listed in Appendix II is no longer deemed a safe country of origin if changes in its legal or political situation give

reason to believe that the requirements mentioned in Article 16a (3) ﬁ rst sentence of the Basic Law have ceased to

exist. The ordinance shall expire no later than six months after it has entered into force.

Section 30

Manifestly unfounded applications for asylum

(1) An asylum application shall be manifestly unfounded if the prerequisites for recognition as a person entitled to

asylum and the prerequisites for granting refugee status are obviously not met.

(2) In particular, an asylum application shall be manifestly unfounded if it is obvious from the circumstances of the

individual case that the foreigner remains in the Federal territory only for economic reasons or in order to evade a

general emergency situation or an armed conﬂ ict.

(3) An unfounded asylum application shall be rejected as being manifestly unfounded if

1. key aspects of the foreigner’s statements are unsubstantiated or contradictory, obviously do not correspond the

facts or are based on forged or falsiﬁ ed evidence;

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2. the foreigner misrepresents his identity or nationality or refuses to state his identity or nationality in the asylum

procedure;

3. he has ﬁ led another asylum application or asylum request using different personal data;

4. he ﬁ led an asylum application in order to avert an imminent termination of residence although he had had sufﬁ cient

opportunity to ﬁ le an asylum application earlier;

5. he grossly violated his obligations to cooperate pursuant to Section 13 (3) second sentence, Section 15 (2) nos.

3 through 5, or Section 25 (1) above, unless he is not responsible for violating his obligations to cooperate or there

are important reasons why he was unable to comply with his obligations to cooperate;

6. he has enforceably been expelled pursuant to Sections 53 and 54 of the Residence Act; or

7. the asylum application has been ﬁ led on behalf of a foreigner without legal capacity under this Act, or is considered

under Section 14a to have been ﬁ led after asylum applications by the parent(s) with the right of custody has been

incontestably rejected.

(4) Furthermore, an asylum application shall be rejected as manifestly unfounded if the requirements of Section 60

(8) ﬁ rst sentence of the Residence Act or of Section 3 (2) apply.

(5) An application ﬁ led with the Federal Ofﬁ ce shall also be rejected as manifestly unfounded if, due to its content,

it does not constitute an asylum application in the sense of Section 13 (1).

12.3 Selections from the Residence Act

Section 24

Granting of residence for temporary protection

(1) A foreigner who is granted temporary protection on the basis of a resolution by the Council of the European Union

pursuant to directive 2001/55/EC and who declares his or her willingness to be admitted into the Federal territory

shall be granted a residence permit for the duration of his or her temporary protection as assessed in accordance

with Articles 4 and 6 of said directive.

(2) No temporary protection shall be granted if one of the conditions stipulated in Section 60 (8) applies; the residence

permit shall be refused.

(3) The persons admitted on the basis of a resolution pursuant to sub-section 1 shall be allocated to the various Länder.

The Länder may agree quotas for admission to grant temporary protection and for allocation. Allocation to the various

Länder shall be carried out by the Federal Ofﬁ ce for Migration and Refugees. In the absence of any divergent allocation

basis agreed between the Länder, the allocation basis stipulated for the allocation of asylum seekers shall apply.

(4) The supreme Land authority or the body appointed by the same shall pass an allocation ruling. The Land

governments are authorised to regulate allocation within the Länder via statutory instruments, and may assign

this authorisation to other bodies via statutory instruments; Section 50 (4) of the Asylum Procedure Act shall apply

mutatis mutandis. The allocation ruling shall not be contestable. Any legal actions shall have no suspensory effect.

(5) The foreigner shall have no entitlement to stay in a speciﬁ c Land or a speciﬁ c place. He or she shall take up

his or her accommodation and ordinary residence at the place to which he or she is allocated in accordance with

sub-sections 3 and 4.

(6) Self-employment must not be excluded. The pursuit of an economic activity with employee status shall be

subject to Section 4 (2). 2.

12 Residence Act, 30 June 2004, last amended by the Act amending the Residence Act and other acts of 14 March 2005. Available online on

UNHCR Refworld at:

http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=search&docid=455081074&skip=0&query=Germany%20

residence%20act [Accessed 2 April 2009].

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(7) The foreigner shall be provided with written notiﬁ cation of the rights and obligations pertaining to the temporary

protection in a language which he or she is able to understand.

Section 60

Prohibition of deportation

(1) In application of the Convention of 28 July 1951 relating to the Status of Refugees (Federal Law Gazette 1953 II, p.

559), a foreigner may not be deported to a state in which his or her life or liberty is under threat on account of his or her

race, religion, nationality, membership of a certain social group or political convictions. This shall also apply to foreigners

who enjoy the legal status of foreign refugees in the Federal territory or are recognised as foreign refugees outside

of the Federal territory within the meaning of the Convention relating to the Status of Refugees. When a person’s life,

freedom from bodily harm or liberty is threatened solely on account of their sex, this may also constitute persecution

due to membership of a certain social group. Persecution within the meaning of sentence 1 may emanate from

a) the state,

b) parties or organisation which control the state or substantial parts of the national territory, or

c) non-state parties, if the parties stated under letters a and b, including international organisations, are demonstrably

unable or unwilling to offer protection from the persecution, irrespective of whether a power exercising state rule

exists in the country, unless an alternative means of escape is available within the state concerned.

If the foreigner cites an obstacle to deportation pursuant to this sub-section, the Federal Ofﬁ ce for Migration and

Refugees shall establish whether the necessary conditions apply in an asylum procedure according to the provisions

of the Asylum Procedure Act, except in cases covered by sentence 2. The ruling of the Federal Ofﬁ ce shall only be

appealable subject to the provisions of the Asylum Procedure Act.

(2) A foreigner may not be deported to a state in which a concrete danger exists of the said foreigner being subjected

to torture.

(3) A foreigner may not be deported to a state in which he or she is wanted for an offence and a danger of the foreigner

receiving the death penalty applies. In such cases, the provisions on deportation shall be applied accordingly.

(...)

(5) A foreigner may not be deported if deportation is inadmissible under the terms of the Convention of 4 November

1950 for the Protection of Human Rights and Fundamental Freedoms (Federal Law Gazette 1952 II, p. 685).

(...)

(7) A foreigner should not be deported to another state in which a substantial concrete danger to his or her life and limb

or liberty applies. Dangers in this state to which the population or the segment of the population to which the foreigner

belongs are generally exposed shall receive due consideration in decisions pursuant to Section 60a (1), sentence 1.

(...)

Section 60a

Temporary suspension of deportation

(...)

(2) The deportation of a foreigner shall be suspended for as long as deportation is impossible in fact or in law and

no residence permit is granted.

(…).

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12.4 Additional Statistical Information

* First applications only

10,000

20,000

30,000

40,000

50,000

60,000

1997 2002 2008

Sri Lanka

Afghanistan

Russia

FRY (Yugoslavia)

Iran

Kosovo

Viet Nam

Turkey

Iraq

Figure 5:

Asylum Applications* from Top Five Countries of Origin in 1997, 2002 and 2008

Refugee and

Asylum Status

Complementary

Protection and Other

Authorisations

to Remain

Rejections Other Decisions*

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1992

9,189 4% 0 0% 163,637 76% 43,530 20% 216,356

1993

16,396 3% 0 0% 347,991 68% 149,174 29% 513,561

1994

35,564 10% 0 0% 238,386 68% 78,622 22% 352,572

1995

23,468 12% 3,631 2% 114,308 57% 58,781 29% 200,188

1996

24,000 12% 2,082 1% 124,570 64% 43,799 23% 194,451

1997

18,222 11% 2,768 2% 99,118 58% 50,693 30% 170,801

1998

11,320 8% 2,537 2% 89,163 60% 44,371 30% 147,391

1999

10,261 8% 2,100 2% 80,231 59% 42,912 32% 135,504

2000

11,446 11% 1,597 2% 61,840 59% 30,619 29% 105,502

2001

22,719 21% 3,383 3% 55,402 52% 25,689 24% 107,193

2002

6,509 5% 1,598 1% 78,845 61% 43,176 33% 130,128

2003

3,136 3% 1,567 2% 63,002 67% 26,180 28% 93,885

2004

2,067 3% 964 2% 38,599 62% 20,331 33% 61,961

2005

2,464 5% 647 1% 27,462 57% 17,529 36% 48,102

2006

1,348 4% 603 2% 17,781 58% 11,027 36% 30,759

2007

7,197 25% 673 2% 12,749 45% 7,953 28% 28,572

2008

7,291 35% 562 3% 6,761 32% 6,203 30% 20,817

*Other decisions may include withdrawn claims, abandoned claims or claims otherwise resolved.

Figure 6:

Decisions Made at All Instances of the Asylum Procedure, 1992-2008

Greece

GRE

191 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

191 - NATIONAL LEGAL FRAMEWORK

192 - INSTITUTIONAL FRAMEWORK

192 - PRE-ENTRY MEASURES

193 - ASYLUM PROCEDURES

197 - DECISION-MAKING AND STATUS

198 - E

FFICIENCY AND INTEGRITY MEASURES

198 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

200 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

200 - R

ETURN

200 - INTEGRATION

201 - ANNEXE

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GRE

1 Background: Major Asylum

Trends and Developments

As one of the main gateways to the European Union (EU),

Greece receives large numbers of asylum applicants from

various countries of origin. While in 2004 the number of

annual applications stood at 4,500, by 2006, Greece was

receiving over 12,000 claims. That number increased to

25,000 in 2007, but decreased slightly in 2008, when

Greece received close to 20,000 applications.

Taking account of the signiﬁ cant numbers of asylum-

seekers arriving at its borders, by 1999 Greece had put

in place a legislative framework for its national asylum

procedure. Efforts have been made and continue to be

made to mobilise administrative measures and policies

in order to meet the needs of asylum-seekers and other

migrants.

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

Refugee status is granted on the basis of the 1951

Convention relating to the Status of Refugees (1951

Convention) and its 1967 Protocol. The asylum

procedure and the competencies of asylum institutions

in Greece are governed by Law 2452/1996 concerning

Refugees and the relevant Presidential Decrees,

including Presidential Decree No. 61/1999 on Refugee

Status Recognition Procedure, Revocation of the

Status and Deportation of an Alien, Permission for the

Members of his Family and Mode of Cooperation with

the UNHCR (Ofﬁ cial Gazette No. 63(A) 6 April 1999).

The following Council Directives, which have a bearing

on asylum procedures, have been transposed into

Greek national law since 2007:

• Directive 2003/9/EC

• Directive 2005/85/EC

• Directive 2004/83/EC

• Directive 2003/86/EC.

Greece has ratiﬁ ed the European Convention on Human

Rights (ECHR) and the Convention against Torture

and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT).

Figure 2:

Top Five Countries of Origin in 2008

1 Pakistan 6,914

2 Afghanistan 2,287

3 Georgia 2,241

4 Bangladesh 1,778

5 Iraq 1,760

1 Council Directive 2003/9/EC of 27 January 2003 laying down

minimum standards for the reception of asylum-seekers

(Reception Directive).

2 Council Directive 2005/85/EC of 1 December 2005 on minimum

standards on procedures in Member States for granting and

withdrawing refugee status (Asylum Procedures Directive).

3 Council Directive 2004/83/EC of 29 April 2004 on minimum

standards for the qualiﬁ cation and status of third country nationals

or stateless persons as refugees or as persons who otherwise

need international protection and the content of the protection

granted (Qualiﬁ cation Directive).

4 Council Directive 2003/86/EC of 22 September 2003 on the right

to family reuniﬁ cation (Family Reuniﬁ cation Directive).

4,469

12,267

25,113

19,884

5,000

10,000

15,000

20,000

25,000

30,000

2004 2005 2006 2007 2008

Figure 1:

Evolution of Asylum Applications in Greece, 2004-2008

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2.2 Recent Reforms

Presidential Decree 96/2008, which transposed the

Qualiﬁ cation Directive into national law, introduced

the possibility of granting subsidiary protection to

persons who would face “serious harm” if returned to

the country of origin. The Decree stipulates the beneﬁ ts

that may be granted with subsidiary protection.

Presidential Decree 90/2008, enacted in July 2008,

introduces the possibility of obtaining legal aid for

appeals before the Council of State.

The Asylum Experts Committee was replaced in 2008

by the Appeals Committee, a six-member committee

including representatives from the Ministry of Interior,

the Ministry of Foreign Affairs, the United Nations High

Commissioner for Refugees (UNHCR) and the Athens

Bar Association. The Appeals Committee hears appeals

of negative decisions on asylum claims made by the

Ministry of Interior and, unlike the previous Committee,

has full decision-making power.

Presidential Decree 167/2008 reinforces the right to

family reuniﬁ cation as laid down in Presidential Decree

131/2006, which was introduced to transpose the

Family Reuniﬁ cation Directive into national law.

3 Institutional Framework

The Ministry of Interior (Aliens Division of the Hellenic

Police Headquarters) is responsible for examining and

making a determination on asylum applications. The

Ministry is also responsible for the following:

• Issuing documents to asylum-seekers and

esidence permits to persons who are granted

refugee status

• Detaining foreign nationals, where deemed

necessary

• Implementing the return of rejected asylum-

seekers.

The Ministry of For

eign Affairs is represented on the

asylum Appeals Committee by two ofﬁ cials, one from

the Diplomatic Branch and one from the Special Legal

Service.

The Appeals Committee is an independent body that

hears appeals of negative decisions on asylum claims

made by the Aliens Division of the Ministry of Interior

and has, under Article 26 of the Presidential Decree

09/2008, full decision-making authority.

The Council of State (highest administrative Court) is

an independent body that hears appeals in cassation

of negative decisions on asylum claims taken by the

Appeals Committee.

The Ministry of Health and Social Solidarity oversees

the reception of asylum-seekers.

4 Pre-entry Measures

The requirements for gaining entry into Greece are

governed by Law 3386/2005 and Article 5 of Regulation

562/2006 of the European Council.

Speciﬁ cally, third country nationals wishing to enter

Greece must meet the following criteria:

• Possess a valid travel document or documents

authorising them to cr

oss the border

• Possess a valid visa, if required

• Justify the purpose of their visit and have

sufﬁ cient

ﬁ nancial means for their stay in Greece

• Not be included on the National List of Undesired

Aliens or in the Schengen Information System

(SIS)

• Not be considered to be a threat to public policy,

inter

nal security, public health or the international

relations of any of the Member States.

A person may be refused entry into Greece if he or she

does not possess valid entry documents such as a visa.

The foreign national is provided with a standard form

for refusal of entry (Annex V of Regulation 562/2006).

All the necessary measures are taken to prevent his

or her entry into Greece. When a foreign national is

denied entry at a land border post, he or she must return

without any delay to the country of origin. If denied

entry takes place at an airport or a seaport, the carrier

is responsible for transporting him or her back.

4.1 Visa Requirements

Any person wishing to obtain a visa to enter Greece

may contact the competent consular authority at his

or her place of residence or in exceptional cases the

competent border authorities, if the conditions of

Council Regulation 415/2003 on the issue of visas at

the border apply.

4.2 Carrier Sanctions

Sanctions levied on carriers for allowing foreign

nationals who do not meet entry requirements (as

described above) to travel to Greece are governed by

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Law 3386/2005 as it was amended by Law 3536/07.

According to Article 88 of the Law, carriers are liable to

a ﬁ ne of between 5,000€ and 20,000€ per person and

a minimum prison term of one year. In the case of death

resulting from the transportation of the undocumented

passenger, life imprisonment and fines of up to

500,000€ per person may be levied on the carrier.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

A number of key pieces of immigration legislation

have

recently been passed to provide immigrants with the

opportunity to make a claim for asylum if they so wish.

The Greek Police (under the Ministry of Interior), which

has responsibility for implementing asylum procedures,

may not remove an asylum-seeker from the territory

until he or she has completed the asylum procedure.

Applications for asylum may be made at airports,

seaports, land border posts, and in-country at police

stations. The majority of asylum claims are made at

the Asylum Department of the Attica Immigration

Directorate (Police) in Petrou Ralli, Athens.

Information on the asylum procedure is provided to asylum-

seekers in a fact sheet, “Basic Information for Asylum-

Seekers,” which is available in ﬁ ve languages (Arabic,

Turkish, Persian, English and French). The leaﬂ et has been

provided to all competent Police services. In addition,

every foreign national under arrest or under a removal order

or who has been found to have entered Greece without

proper authorisation must be provided with a copy of the

fact sheet. Asylum-seekers are also given information on

their right to an interpreter, on legal representation and on

the United Nations High Commissioner for Refugees and

non-governmental organisations (NGOs).

The fact sheet on asylum procedures, which was issued

in cooperation with the UNHCR within the framework

of the European programme called Equal, is expected

to be revised and re-issued to reﬂ ect recent changes

to asylum legislation.

5.1.1. Outside the Country

Applications at Diplomatic Missions

Greece does not accept asylum applications from

abroad.

5 See in particular Presidential Decrees 220/2007, 90/2008, 96/2008

and 167/2008.

Resettlement/Quota Refugees

Greece has not in the past operated a quota refugee

programme or accepted quota refugees on an ad hoc

basis.

5.1.2. At Ports of Entry

Asylum applications made at airports, seaports and

land border posts are subject to an accelerated

procedure. The Aliens Division of the Ministry of Interior

receives the applications and conducts an interview

with the asylum-seeker. At this stage, asylum-seekers

have access to the services of an interpreter and may

request the assistance of legal counsel. A decision on

the application is taken by the Aliens Division of the

Ministry of Interior to either grant refugee status, deny

refugee status, or move the application to the normal

procedure for further consideration.

For further information, see the section on Accelerated

Procedures below.

5.1.3. Inside the Territory

Responsibility for Processing the Claim

The Dublin System

Application and Procedure

The Hellenic Dublin Unit, part of the Asylum Section of

the Aliens Division of the Hellenic Police Headquarters

within the Ministry of Interior, is the responsible

authority for the application of Council Regulation (EC)

No 343/2003.

It determines whether an asylum claim

should be examined in Greece or in another State party

to the Regulation, and receives requests from other

States parties to the Regulation for the transfer of an

asylum-seeker back to Greece. Its personnel conduct

all the necessary arrangements with the other Dublin

Units in order to transfer an applicant and to handle

information requests made within the framework of the

Regulation.

The Ministry of Interior has an obligation to examine the

asylum claims of persons returned to Greece under the

Dublin II Regulation, including claims that were made in

Greece and interrupted by the departure of the asylum-

seeker for another European Union Member State.

In recent years, Greece has received high numbers of

requests from other EU Member States for transfers

6 Council Regulation (EC) No 343/2003 of 18 February 2003

establishing the criteria and mechanisms for determining the

Member State responsible for examining an asylum application

lodged in one of the Member States by a third-country national

(Dublin II Regulation).

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of asylum-seekers to its territory under the Dublin II

Regulation.

Freedom of Movement/Detention

An asylum-seeker may be detained under certain

circumstances, in accordance with Article 13 of

Presidential Decree 90/2008. This is described below.

Conduct of Transfers

The Dublin Unit is also responsible for the transfers.

All the necessary arrangements are made with the

cooperation of the other Dublin Units, the Greek

Asylum Authorities and the Police Authorities at Athens

International Airport. The majority of persons subject to

a Dublin transfer arrive and leave through this airport.

Review/Appeal

A decision by the Ministry of Interior to transfer an

asylum-seeker under the Dublin II Regulation may be

appealed to the Appeals Committee.

Application

To make an application for asylum, an asylum-seeker

must appear in person before Police authorities and

submit a written application form. Fingerprints and

photographs are taken. In some cases, the asylum-

seeker is required to undergo a medical examination.

The asylum-seeker is required to submit all relevant

identity documents. Family members who are

accompanying the asylum-seeker may also be included

in the asylum application.

Once an asylum application has been made, asylum-

seekers are issued a “pink card” (Special Card of an

Asylum-Seeker), an identity card that is valid for six

months and renewable with Police authorities until a

decision on the claim is made. The Greek government

is currently considering the introduction of an electronic

“pink card” similar to the new identity card for Greek

citizens. This card would provide asylum-seekers direct

access to all material reception beneﬁ ts (for example,

health care and accommodation) and would entitle them

to legal status in Greece while they await a decision on

their asylum claim.

Screening then takes place to determine the reasons for

ﬂ ight from the country of origin. Priority in processing

is given to minors and persons belonging to vulnerable

groups (e.g. the elderly and women) and families.

Asylum claims are subject either to an accelerated

procedure or to the normal procedure.

Accelerated Procedures

According to Greek legislation, an asylum claim is

subject to the accelerated procedure under one of the

following circumstances:

• The asylum claim was made at the border, a

seaport or airport

• The asylum-seeker entered the country without

oper authorisation or delayed in making

an asylum application following his or her

unauthorised entry into the country

• The asylum claim is manifestly unfounded

• The asylum-seeker arrived in Greece from a safe

thir

d country or a safe country of origin.

A claim may be deemed manifestly unfounded, inter

alia, in one of the following cases:

• The applicant has presented false information

or fraudulent documents in support of the claim,

or has withheld information or documents

concerning his or her identity or nationality,

and this information could have an impact on

the decision

• The applicant has made another asylum

application using personal data dif

ferent from

what is presented in the current application

• The applicant has made a subsequent claim

for asylum which does not raise any r

elevant

new elements with regard to his or her particular

circumstances or circumstances in the country

of origin

• The applicant is a danger to national security or

public or

der or has been forcibly removed from

Greece on serious public security grounds under

national law.

Under the accelerated procedure as under the normal

procedure, the Police conduct a ﬁ rst interview with the

asylum-seeker to determine the reasons for which the

person is seeking asylum. At the end of the interview,

the asylum-seeker’s statements are read out and he

or she is asked to sign the interview notes, if he or she

agrees that the content is accurate. The interview notes

are then transferred to the Aliens Division of the Ministry

of Interior for a decision. The Aliens Division of the

Ministry of Interior may decide to grant refugee status,

to deny refugee status or to move the application to the

normal procedure for further consideration.

7 See the annexe to this chapter for the text of Article 17(3) of

Presidential Decree 90/2008, which outlines all the circumstances

that may give rise to a claim being deemed manifestly unfounded.

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According to Presidential Decree 90/2008, claims

may be deemed inadmissible under the following

circumstances:

• Another Member State of the EU has previously

granted r

efugee status to the applicant

• The applicant has obtained protection or a

esidence permit from a safe third country or

a ﬁ rst country of asylum and faces no risk of

refoulement if returned to that country

• The applicant is transferred to another State

party to the Dublin II Regulation for examination

of his or her claim

• The applicant has made an identical application

for asylum following a final decision of the

Hellenic Police or the Appeals Committee

• A dependant of an applicant has made a

separate claim after having consented to having

his or her claim considered together with the

applicant’s, and there are no facts relating to

the dependant’s situation that justify a separate

application.

Claims under the accelerated procedure should as a

rule be decided within one month of the application

being made. Appeals on negative decisions may be

made within thirty days of the decision for manifestly

unfounded decisions, ten days for inadmissibility

decisions and eight days for applications made at

the borders. Appeals are made by application to the

Appeals Committee. The appeal is heard by the Appeals

Committee, which can either uphold the ﬁ rst instance

decision or overrule it. A further appeal in cassation can

be made before the Council of State.

Normal Procedure

Following the ﬁ rst interview, which is conducted by the

Police to determine the reasons for which the person is

seeking asylum, the interview notes are transferred to

the Central Authority (Asylum Department of the Aliens

Division) of the Ministry of Interior for consideration. The

Ministry of Interior must make a decision on the claim

within 60 days of the date of application.

The asylum requests are examined substantially and on

an individual basis according to the domestic legislation

regarding asylum procedures, without the requirement

that pieces of evidence be ﬁ led.

Review/Appeal of the Normal Procedure

A negative decision on an asylum claim made under the

normal procedure may be appealed within 30 days of

the date the decision is issued. The Appeals Committee

invites the asylum-seeker to an interview, at which point

any new information that was not previously disclosed

or that has since emerged may be presented.

The Appeals Committee, which has full decision-

making power and may either uphold or overrule the

ﬁ rst instance decision, is composed of the following

representatives:

• Two ofﬁ

cials from the Ministry of Interior: one

ofﬁ cial from the State Legal Council of the Legal

Counsel’s Ofﬁ ce in the General Secretariat of

Public Order, who acts as chairperson of the

Committee; and one official from the Aliens

Division of the Asylum Department of the

Hellenic Police Headquarters

• An ofﬁ

cial from the Special Legal Service and

an ofﬁ cial from the diplomatic section of the

Ministry of Foreign Affairs

• A representative from the Athens Bar Association

• A representative from the UNHCR.

The Committee meets thr

ee times a week to examine

the appeals and works in accordance with the Rules of

the Administrative Procedure Code. The proceedings

are recorded in writing. The fully justiﬁ ed decision of

the Committee, which is issued by majority, is notiﬁ ed

to the applicant shortly after it is made.

If the Committee upholds the negative decision of the

Ministry of Interior, the asylum-seeker may appeal the

Committee’s decision before the Council of State. Such

appeals are made in cassation to review whether there

has been an error in law.

The appeals before the Council of State have suspensive

effect.

Freedom of Movement during the

Asylum Procedure

Under the law, an asylum-seeker whose claim is

pending may not leave Greece before a decision has

been made on the claim.

Detention

Asylum-seekers are not usually held in detention for

entering Greece without proper authorisation. Persons

already in detention for entering Greece without proper

authorisation remain in custody after making an asylum

application and pending a decision on the claim. The

Hellenic Police are responsible for supervising the

detention centres. The asylum claims of detained

persons are prioritised.

Decisions to detain an asylum-seeker are taken by the

Police Commissioner, in cooperation with the Service of

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the Ministry of Health and Social Solidarity. According to

Article 13 of Presidential Decree 90/2008, an applicant

may be detained in order to determine the conditions

of the person’s entry into Greece, his or her identity, his

or her origin (if the person arrived as part of a group

of undocumented migrants) or in the interest of public

order or to accelerate the procedure.

The detention of an asylum-seeker is subject to both

a judicial review before the District Court and an

administrative review by the Ministry of Interior, to

determine whether the person should be released or

whether the reasons for detention remain valid. The

maximum period of detention after which the person

must be released is 60 days.

Detention centres are often visited by representatives

and lawyers of the UNHCR and NGOs.

An asylum-seeker who has obtained a ﬁ nal negative

decision on a claim and has exhausted all appeal

rights may be detained for a maximum period of

three months. Detention may be deemed necessary

in order to implement removal. If, after three months,

the person has not been removed from Greece, the

person is released from detention but given a deadline

for leaving the territory.

Reporting

Asylum-seekers have an obligation to report any

change of address to the Police authorities. Asylum-

seekers who are accommodated at reception centres

must receive permission to leave the centre.

If an asylum-seeker leaves the reception centre without

permission or fails to inform the authorities of a change

of address, the asylum claim may be either rejected or

suspended. In such cases, the asylum-seeker may make

an appeal within 30 days of the date of the decision.

Repeat/Subsequent Applications

Asylum-seekers whose have received a ﬁ nal negative

decision on their claim are able to make a new claim

for asylum, according to Presidential Decree 90/2008,

provided there is new evidence to present. Thus, when

a subsequent application is made, the authorities must

ﬁ rst determine whether substantial new elements are

being presented by the applicant. If this is the case and

it appears that these new elements may lead to the

granting of refugee status, the person’s application will

be examined under the normal procedure.

A person who has made a subsequent application for

asylum may remain in Greece while the authorities

determine whether to proceed with the application.

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

According to Presidential Decree 90/2008, asylum

authorities may determine whether a country can be

designated as a safe country of origin, following an

assessment of whether, inter alia, persons in the country

are not generally subject to persecution as deﬁ ned in

Article 9 of the Qualiﬁ cation Directive, to torture or

inhuman or degrading treatment or punishment, or to

a threat resulting from generalised violence in situations

of armed conﬂ ict.

Applications made by persons from a safe country of

origin are processed under the accelerated procedure.

5.2.2. First Country of Asylum

The concept of ﬁ rst country of asylum is laid down in

Presidential Decree 90/2008, which states that a country

may be considered a ﬁ rst country of asylum if the asylum-

seeker has previously been granted refugee status there

and he or she enjoys the protection of that country.

5.2.3. Safe Third Country

Greece applies the safe third country concept in

accordance with Presidential Decree 90/2008 and

Article 27 of the Asylum Procedures Directive.

Applications made by persons from a safe third country

are processed under the accelerated procedure. If

an asylum-seeker cannot be returned to a safe third

country, Greece will undertake the examination of the

person’s asylum application.

5.3 Special Procedures

5.3.1. Unaccompanied Minors

When an unaccompanied minor makes a claim for

asylum, the Police must inform the Minors’ Public

Prosecutor and, where applicable, the local District

Court Prosecutor, so that they may appoint a guardian

for the minor. Efforts to locate relatives of the minor are

undertaken. In order to protect the minor and his or her

relatives, all efforts to collect information regarding the

minor are made in strict conﬁ dentiality.

The asylum claims of unaccompanied minors are dealt

with on a priority basis by specially trained staff. The

minors are informed of their rights and are given the

assistance of an interpreter. Minors also have access

to assistance from competent NGOs for such support

as legal aid and psychosocial counselling. Various

departments of the Ministry of Interior, the Ministry of

Health and Social Solidarity, the Ministry of Education

and NGOs and other organisations cooperate on

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matters related to the minor’s asylum claim throughout

the procedure.

6 Decision-Making and

Status

6.1 Inclusion Criteria

6.1.1. Convention Refugee

Refugee status is granted to persons who meet the

criteria as deﬁ ned in the 1951 Convention and the 1967

Protocol relating to the Status of Refugees.

6.1.2. Complementary Forms of

Protection

Subsidiary Protection

In 2008, subsidiary protection was introduced in line

with the Qualiﬁ cation Directive. A residence permit

may be granted on subsidiary protection grounds if

the person does not meet the criteria for refugee status

but would be subjected to “serious harm” if returned

to the country of origin. “Serious harm” includes the

threat of the death penalty, torture or other inhumane or

degrading treatment, as well as serious threats to life or

physical integrity as a result of indiscriminate violence

during an armed conﬂ ict.

Humanitarian Status

According to Presidential Decree 61/1999, an asylum-

seeker who does not qualify for refugee status may, in

exceptional cases, be granted a residence permit on

humanitarian grounds, if returning the person to his

or her country of origin would be in contravention of

Article 3 of the ECHR or Article 3 of the CAT or if return

is impossible due to force majeure (for example, serious

health problems of the applicant or a situation of civil

conﬂ ict and violations of human rights in the country

of origin).

6.2 The Decision

The Ministry of Interior is the competent authority

for making a decision on an asylum claim at the ﬁ rst

instance. Decisions are given in writing to the asylum-

seeker, in a language that he or she understands. They

may be given in person by a police ofﬁ cer or sent to the

applicant by registered post or fax. Negative decisions

contain information on rights of appeal and the right to

make a subsequent application.

Efforts are currently being undertaken to provide the

Ministry of Interior with the capacity to translate key

sections of a decision in one of several languages.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

Types of Decisions

After examining an asylum claim, the Ministry of Interior

may take one of the following decisions:

• Grant refugee status

• Grant subsidiary protection

• Grant humanitarian status

• Reject the asylum claim.

Asylum-seekers whose claims ar

e rejected are required

to leave Greece within 90 days.

Beneﬁ ts

Beneﬁ ciaries of subsidiary protection and Convention

refugees are entitled to the following beneﬁ ts, which

are equivalent to those enjoyed by Greek nationals:

• Access to the labour market

• Access to education

• Social welfare assistance

• Health care beneﬁ ts.

Convention refugees are granted a residence permit

valid for ﬁ ve years while beneﬁ ciaries of subsidiary

protection receive a renewable residence permit valid for

two years. The ﬁ ve-year residence permit for refugees

may be renewed for an additional period of ﬁ ve years.

Refugees are also granted a “Refugee Identity Card.”

Recognised refugees have the right to request, at any

given time, for reasons of family reuniﬁ cation, the entry

and residence of their family members, under terms set

out in national legislation.

Persons who are granted humanitarian status receive a

one-year residence permit, which is renewable if return

remains impossible. Humanitarian status holders do

not have automatic work rights but may apply for a

work permit.

6.4 Exclusion

Asylum authorities consider Article 1F of the 1951

Convention when examining applications. The Director

of the Aliens Division of the Hellenic Police is competent

for making decisions on exclusion. Such decisions may

be appealed.

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6.5 Cessation

Asylum authorities will give consideration to the

cessation clauses of the 1951 Convention if and when

appropriate. The Director of the Aliens Division of the

Hellenic Police is competent for making decisions on

cessation. Such decisions may be appealed.

6.6 Revocation

Refugee status may be revoked if it comes to light

that the person provided false information during the

asylum procedure or if cessation or exclusion clauses

are applicable. According to Presidential Decree

90/2008, the authorities may also withdraw refugee

status if the refugee is considered a danger to national

security or to public safety or has been convicted of

a crime punishable by a three-month prison term or

more. A decision to withdraw status may be appealed

in cassation before the Council of State.

6.7 Support and Tools for

Decision-Makers

6.7.1. Country of Origin Information

A Documentation Ofﬁ ce was established in 2007 at

the Hellenic Police Headquarters of the Aliens Division

of the Ministry of Interior to collect information on

conditions in the countries of origin of asylum-seekers.

The information is intended for use by asylum ofﬁ cers in

the Department of Asylum of the Immigration Directorate

of the Ministry. The country of origin information (COI)

collected is stored on the Greek Police intranet for

internal use. There are four persons who work in the

Documentation Ofﬁ ce and they produce reports based

on Internet research from ofﬁ cial sites.

6.7.2. Training

Staff involved in the asylum procedure at the Attica

Asylum Department and in all of Greece receive training

on refugee status determination through programmes

designed in cooperation with the UNHCR and NGOs.

7 Efﬁ ciency and Integrity

Measures

Asylum procedure services have been improved with

the establishment of separate Asylum Departments in

the Attica Immigration Directorate and the Salonica

Immigration Directorate of the Ministry of Interior.

The infrastructure of the departments has also been

upgraded.

7.1 Technological Tools

7.1.1. Fingerprinting

Asylum-seekers are fingerprinted by Police upon

making an asylum claim. Fingerprints are taken for

identiﬁ cation purposes. Minor asylum-seekers over

the age of 14 are ﬁ ngerprinted.

7.1.2. Database of Asylum

Applications/Applicants

A nationwide electronic data processing application

system was created to record all asylum applications

and their progress through each stage of the procedure.

7.2 Length of Procedures

According to Presidential Decree 90/2008, decisions on

asylum applications must be made within six months

of application. If this time frame is not met, the asylum

authorities must, upon request, inform the applicant

of a new time frame for a decision on his or her claim.

7.3 Pending Cases

The large increase in the number of asylum applications

received in the last four years has led to a signiﬁ cantly

longer average processing period for claims.

In order to deal with the large number of pending cases,

the Appeals Committee will be meeting six times a week

to examine appeals, which represents an increase from

the previous practice of three sessions per week.

8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

According to national legislation, asylum-seekers may

use the assistance of a lawyer for the duration of the

asylum procedure. Since 2008, following the coming

into force of Law 3226/2004, legal aid is available

for appeals in cassation before the Council of State,

provided the appeal is not manifestly inadmissible or

groundless, in the judge’s estimation.

Representatives or lawyers of the UNHCR or NGOs

often visit asylum-seekers at detention centres.

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8.1.2. Interpreters

The services of interpreters are mandated by law and

efforts are being made to cover the needs for interpretation

at all stages of the procedure, in cooperation with non-

governmental organisations (NGOs).

8.1.3. UNHCR

The UNHCR provides assistance to asylum-seekers

in Greece primarily through funding of implementing

partners such as the Hellenic Council for Refugees

and cooperation with operational partners. The

UNHCR is also engaged in EU-funded projects aimed

at addressing the reception of migrants at the border

and facilitating access to asylum procedures.

8.1.4. NGOs

As indicated above, NGOs such as the Hellenic Council

for Refugees have access to detention centres and

usually provide legal assistance to asylum-seekers

during the procedure.

8.2 Reception Beneﬁ ts

The Ministry of Health and Social Solidarity is the

competent authority for overseeing reception beneﬁ ts,

including accommodation, for asylum-seekers.

As long as an asylum-seeker has made his or her

application, there is a list of rights and obligations to

which he or she is entitled, such as protection from

deportation until the ﬁ nalisation of the examination

procedure, free access to labour, accommodation,

public education, health care, etc.

8.2.1. Accommodation

Asylum-seekers may be accommodated in Refugee

Reception Centres (open centres) staffed by specially

trained personnel, including doctors and social workers,

who must ensure that the needs of asylum-seekers are

met.

Unaccompanied minors may ﬁ nd accommodation with

adult relatives in Greece, a foster family, or a reception

centre or guest house specially geared toward minors.

Siblings are generally accommodated in the same

location.

8.2.2. Social Assistance

According to Article 12 of Presidential Decree 220/2007,

asylum-seekers may be granted material reception

beneﬁ ts to ensure a standard of living that covers health

care and other necessities. Persons are eligible for such

beneﬁ ts if they do not have sufﬁ cient means to ensure

subsistence.

8.2.3. Health Care

Asylum-seekers have access to public health care,

including medical, pharmaceutical and hospital care,

if they do not have the means to cover their own health

care costs.

Vulnerable persons, such as victims of trauma, may

seek the assistance of medical experts and specialised

organisations for treatment.

Box 1:

Cooperation with UNHCR, NGOs

According to an agreement with asylum authorities, the UNHCR and its implementing partner, the Hellenic

Council for Refugees, undertakes a partial monitoring of asylum interviews conducted at the Central Police Asylum

Department in Athens. The UNHCR fulﬁ ls this monitoring role in an observer capacity and addresses its ﬁ ndings

and recommendations to the authorities.

Since 2005, the UNHCR has taken part in a joint Ministry of Interior/UNHCR Informal Working Group, which meets

three or four times a year at the Secretary-General level in order to discuss issues pertaining to asylum procedures.

In 2008, in cooperation with the Ministry of Interior, the UNHCR completed a joint analysis of Greek asylum procedures

and contributed to a ﬁ nal joint report containing recommendations for improvements. Subsequent to that effort,

a Plan of Action for the implementation of these recommendations was discussed.

The UNHCR is a voting member of the Appeals Committee which makes decisions on asylum at the second instance.

The Greek asylum authorities also engage in cooperation efforts aimed at improving asylum procedures with NGOs,

such as the Hellenic Council for Refugees and the Ecumenical Programme of Refugees. Both the UNHCR and NGOs

have access to detention and accommodation centres in order to provide information to asylum applicants and to

offer them legal assistance.

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8.2.4. Education

Children have access to the public education system

until the age of 18.

Adults have the right to take free language classes and

vocational training courses.

8.2.5. Access to Labour Market

Asylum-seekers have the right to work during the

procedure and may be granted a temporary work

permission in accordance with Presidential Decree

189/2008 (Article 4(2)). Asylum-seekers may retain their

work permission until a ﬁ nal decision on their claim is

taken.

8.2.6. Access to Beneﬁ ts by Rejected

Asylum-Seekers

Asylum-seekers who have obtained a negative decision

continue to receive reception beneﬁ ts during the appeal

procedure.

9 Status and Permits

Granted outside the

Asylum Procedure

9.1 Humanitarian Grounds

A person who has obtained a ﬁ nal negative decision on

an asylum claim may make an application to obtain a

permit on humanitarian grounds. The General Secretary

of the Ministry of Interior is the competent authority for

making decisions on such applications. The grounds for

granting a humanitarian residence permit, as outlined in

Article 8 of Presidential Decree 61/1999, include force

majeure (such as serious health considerations and civil

conﬂ ict and violations of human rights in the country of

origin), Article 3 of the ECHR and Article 3 of the CAT.

The permit granted is valid for one year and is renewable

upon application, if conditions in the country of origin

or with respect to the applicant and his or her family

continue to make return impossible.

10 Return

10.1 Pre-departure Considerations

An asylum-seeker may not be removed from Greece

if the asylum procedure has not been completed. In

accordance with Article 33 (1) of the 1951 Convention,

Article 3 of the European Convention on Human Rights,

and other relevant international obligations, Greece

cannot return a person to a country where it is found

that his or her life or freedom would be at risk.

10.2 Procedure

A decision to remove a third country national must

be issued according to Article 76 of Immigration Law

3386/05.

10.3 Freedom of Movement/

Detention

A decision may or may not involve detention.

10.4 Readmission Agreements

Practically speaking, readmission agreements may not

be applied to rejected asylum-seekers, since by the

examination of an asylum application at the second

instance a long period of time will have passed, and

the readmission deadline will have expired.

11 Integration

Persons who are granted refugee status in Greece

have access to a range of integration services and

programmes developed by Greek authorities under

the multi-annual programme of the European Refugee

Fund (ERF). The EQUAL Community Initiative, for

example, aims to improve access to the job market by

vulnerable groups of the population, such as refugees.

Other programmes have been geared toward promoting

equality and combating discrimination in a number of

sectors, including employment, education and health

care.

In the coming years, Greek authorities plan to expand

the reach of existing integration programmes, including

in the area of promoting access to schools for refugee

children, offering advice and support services for

gaining employment, introducing cultural orientation

classes and providing broader access to vocational

training and language classes.

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12 Annexe

12.1 Selections from Presidential Decree 90/2008

CHAPTER B

BASIC PRINCIPLES AND GUARANTEES

Article 4

(Article 6 of the Directive)

Access to the procedure

1. Any third-country national or stateless person shall be entitled to make an application for asylum. Authorities

responsible for receiving and examining the application shall ensure that each adult shall be entitled to make an

application, provided that such adult makes the application in person before the said authorities.

(...)

3. Minors, unaccompanied or not, being over 14 years of age can make an application on their own behalf, provided

that the said competent authorities consider that they are mature enough to understand the meaning of their actions.

(...)

Article 10

(Articles 12, 13 and 14 of the Directive)

Personal interview

1. Before a decision is taken by the determining authority, the applicant for asylum shall be given the opportunity

of a personal interview on his/her application for asylum with an employee of the competent service. The interview

shall always be conducted with the assistance of an interpreter, competent to ensure proper communication, in

order for the applicant to conﬁ rm the contents of his/her application and provide explanations, especially relating to

his/her identity or non possesion of passport or other ofﬁ cial travel document, the exact itinerary followed to enter

into Greek territory and the reasons that forced him/her to abandon their country of origin and seek protection.

Before the interview, the applicant may be granted a reasonable period of time to prepare and consult the lawyer

who shall assist him/her throughout the procedure. Such reasonable period shall be determined by the Department

that examines the applicant and cannot be more than three months, including any extensions. The Department

shall provide the applicant with a note stating, apart from the applicant’s identity, the exact date of the interview

and the full name of the person who will conduct the interview. When a woman will be interviewed who, due to her

experience or for cultural reasons, ﬁ nds it difﬁ cult to show the reasons for her application, the interview shall be

conducted by a female employee, in the presence of a female interpreter. A separate personal interview shall be

conducted with each adult dependant. A personal shall be conducted with minors, taking into consideration their

maturity and the psychological effects of their traumatic experiences.

(...)

Article 11

(Articles 15 and 16 of the Directive)

Right to legal assistance and representation

1. Applicants for asylum shall be entitled, at their own cost, to consult in an effective manner a legal adviser or other

counsellor, on matters relating to their asylum applications.

8 Harmonisation of Greek legislation to the provisions of Council Directive 2005/85/EC on minimum standards on procedures in Member States

for granting and withdrawing refugee status (L 326/13.12.2005). Ofﬁ cial translation, Ministry of Foreign Affairs of the Hellenic Republic.

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2. In the event of appeal against a negative decision under article 29, free legal assistance shall be granted to the

applicant, pursuant to the procedure stipulated by Law 3226 2004 (A-24), if the judge ﬁ nds that the appeal is not

evidently inadmissible or invalid.

(...)

Article 13

(Article 18 of the Directive)

Detention of applicants

1. Third-country nationals or stateless persons who have applied for asylum shall not be held in detention for the

sole reason that they have illegally entered and remain in the country. During the period held in detention pending

the deportation procedure, applicants for asylum shall remain in detention and their application shall be examined

by priority. They shall not be deported before the completion of the administrative procedure for asylum.

2. The competent Police Commissioner and, in case of the General Police Directorates of Attica and Thessaloniki,

the Police Commissioner responsible for foreign nations or a higher-ranking ofﬁ cer appointed by the competent

General Police Commissioner may decide, in collaboration with the competent Service of the Ministry of Health

and Social Solidarity, conﬁ ne applicants in appropriate facilities when and for the period required to determine the

conditions of entry, the identity and the origin of massively and illegally entered applicants or on grounds of public

interest or public order or when deemed necessary for the speedy completion of this procedure. The period of

conﬁ nement cannot be over sixty (60) days.

3. Applicants detained or conﬁ ned in appropriate facilities pursuant to the previous paragraphs shall be entitled to

appeal and ﬁ le objections, as provided for by article 76, para.3, of Law 3386/2005.

(...)

CHAPTER C

PROCEDURES AT FIRST INSTANCE

Article 17

(Article 23 of the Directive)

Examination procedure

The examination of applications for asylum shall be accelerated when they are manifestly unfounded or because

the applicant is from a safe country of origin within the meaning of Article 22 or because the country which is

not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 20. An

application shall be considered to be manifestly unfounded when:

(a) the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not

relevant or of minimal relevance to the examination of whether he/she qualiﬁ es as a refugee; or

(b) the applicant clearly does not qualify as a refugee or for refugee status under Council Directive 2004/83/EC; or

information or documents with respect to his/her identity and/or nationality that could have had a negative impact

on the decision; or

(d) the applicant has ﬁ led another application for asylum stating other personal data; or

(e) the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or

nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that

would have helped establish his/her identity or nationality; or

(f) the applicant has made inconsistent, contradictory, improbable or insufﬁ cient representations which make his/

her claim clearly unconvincing in relation to his/her having been the object of persecution; or

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GRE

(g) the applicant has submitted a subsequent application which does not raise any relevant new elements with

respect to his/her particular circumstances or to the situation in his/her country of origin; or

(h) the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity

to do so; or

(i) the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent

decision which would result in his/her removal; or

(j) the applicant has failed without good reason to submit as soon as possible all information required to document

the application or to comply with obligations referred to in Article 9, para. 1, items (a) and (b) or article 14, para.2; or

(k) the applicant entered the country unlawfully or prolonged his/her stay unlawfully and, without good reason, has

either not presented himself/herself to the authorities andlor ﬁ led an application for asylum as soon as possible,

given the circumstances of his/her entry; or

(l) the applicant is a danger to the national security or public order of the country, or the applicant has been forcibly

expelled for serious reasons of public security and public order under national law; or

(m) the applicant refuses to comply with an obligation to have his/her ﬁ ngerprints taken in accordance with relevant

Community and/or national legislation; or

(n) the application was made by an unmarried minor, after the application, under article 4, para.2, of the parents or

parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/

her particular circumstances or to the situation in his/her country of origin.

Article 18

(Article 25 of the Directive)

Inadmissible applications

An application for asylum shall be inadmissible if:

(a) another Member State has granted refugee status;

(b) international protection status or residence permit has been granted to the applicant who beneﬁ ted, inter alia, by

the principle of non-refoulement from a country which is not a Member State is considered as a safe third country

for the applicant, pursuant to Article 20 or as a ﬁ rst country of asylum for the applicant pursuant to Article 19;

(d) the applicant has lodged an identical application after a ﬁ nal decision of the determining authority or the appeals

committee;

(e) a dependant of the applicant lodges an application, after he/she has in accordance with Article 4 consented to

have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s

situation, which justify a separate application.

CHAPTER D

PROCEDURES AT SECOND INSTANCE

Article 25

Right to appeal

The applicant shall be entitled to lodge an appeal before the Appeals Committee referred to in article 26 as follows:

(a) against the decision rejecting the application for asylum or a subsequent application as unfounded or revoking

the asylum status, within thirty (30) days of the date of service;

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(b) against the decision ﬁ nding the application inadmissible, within ten (10) days of the date of service;

(...)

12.2 Selections from Presidential Decree 220/2007

Article 6

(Article 7 of the Directive 2003/9/EC)

Residence and freedom of movement

1. Subject to paragraph 5, the asylum-seekers may move freely within the territory or within an area assigned to them

by the Central Authority and choose the place of their residence. The assigned area shall not affect the unalienable

sphere of the applicants’ private life and must give them the possibility of exercise of all the rights provided for

in the present Decree. In any case the applicants are obliged to inform immediately the competent authorities of

collection and examination about any change of the address of their residence.

No previous approval for the change of the place of residence is required.

2. To an applicant who does not have a shelter or sufﬁ cient means to cover the needs of his accommodation,

accommodation is offered in an Accommodation Centre or another place, according to the provisions of paragraph

3, upon his request, which is lodged with the competent authorities of collection and examination.

(...).

Article 12

(Article 13 of the Directive 2003/9/BC of the Council)

Material reception conditions and health care

1.The competent authorities of reception and accommodation shall ensure that material reception conditions are

available to asylum-seekers. Such conditions grant the applicants a standard of living ensuring the health, the cover

of living necessities and the protection of their fundamental rights. The above mentioned standard of living is also

ensured in the special case of persons with special needs according to article 17 of these presents, as well as in

the case of persons who are in detention.

2. In case of persons with disability of 67% and more, certiﬁ ed by an expert opinion of the relevant Health Committee,

the Ministry of Health and Social Solidarity grants a disability allowance as long as the examination of the application

lasts, since the residence of the applicants in Accommodation Centres is not feasible. Such allowance is paid by

the competent agency of the Prefectural Local Government of the place of the applicant’s residence.

3. The provision of all or some of the material reception conditions and health care is subject to the condition that

applicants do not have sufﬁ cient means to have a standard of living adequate for their health and to enable their

subsistence. This condition is examined by the competent authorities of reception and accommodation. If it transpires

that the applicant has sufﬁ cient means according to the above, the above mentioned authorities may interrupt the

allowances granted to the extent to which the living conditions of the applicants are covered by their own resources.

4. The applicants cover, depending on the means they have, totally or partially the cost of the material reception

conditions and their health care.

9 Adjustment of Hellenic Legislation to the provisions of the Council Directive 2003/9/EC of 27 January 2003, in relation to the minimum

requirements for the reception of asylum-seekers in the Member States (EEL 31/6.2.2003). Ofﬁ cial translation, Ministry of Foreign Affairs of the

Hellenic Republic.

Ireland

IRE

207 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

208 - NATIONAL LEGAL FRAMEWORK

209 - INSTITUTIONAL FRAMEWORK

209 - PRE-ENTRY MEASURES

210 - ASYLUM PROCEDURES

216 - DECISION-MAKING AND STATUS

219 - EFFICIENCY AND INTEGRITY MEASURES

220 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

221 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

223 - R

ETURN

224 - INTEGRATION

226 - ANNEXE

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IRE

1 Background: Major Asylum

Trends and Developments

Asylum Applications

Ireland started to receive asylum applications only in

the early 1990’s. Annual inﬂ ows increased dramatically

in the late 1990’s, reaching a peak of over 11,600 in

2002. Numbers have decreased signiﬁ cantly since 2003

and have been running at some 4,000 new applications

annually in recent years.

Top Nationalities

In the early 1990’s, the majority of asylum-seekers

originated from Romania, Cuba and the former

Yugoslavia. Since the late 1990’s, the top countries of

origin have been Nigeria, Romania and the Democratic

Republic of Congo. The top ﬁ ve stated countries of origin

in 2008 were Nigeria, Pakistan, Iraq, Georgia and China.

Important Reforms

Since the late 1990’s, the procedural and institutional

framework for refugee status determination has

undergone signiﬁ cant reforms. Chief among these was the

establishment of two independent ofﬁ ces responsible for the

examination of claims: the Ofﬁ ce of the Refugee Applications

Commissioner (ORAC), set up to consider applications at

the ﬁ rst instance, and the Refugee Appeals Tribunal (RAT),

which hears appeals of ORAC recommendations.

Other institutions with a role in asylum procedures

were also created. The Reception and Integration

Agency (RIA) was established in 2001 to coordinate

accommodation and other support needs of asylum-

seekers. In 2005, the Irish Naturalisation and

Immigration Service was set up within the Department

of Justice, Equality and Law Reform and has, among

other things, responsibility for making decisions on

subsidiary protection claims and for determining

whether any other grounds exist for granting a

residence permission.

As a consequence of these developments, there has

been an exponential increase in the number of staff

working in the asylum area.

As well as the measures introduced to improve the

processing and support of asylum applications, initiatives

were also undertaken to tackle abuses in the asylum

system. Among the latter, two were targeted at reforming

reception conditions. A system of direct provision was

introduced, whereby asylum-seekers became entitled to

beneﬁ ts in-kind rather than in cash for the duration of the

asylum procedure. In addition, the Habitual Residence

Condition (HRC), which came into effect in 2004, introduced

requirements that asylum-seekers must meet in order to

be eligible for social assistance or child beneﬁ t payments.

The Immigration Act 2003 brought into effect a regime of

carrier liability in respect of the transportation to Ireland

of foreign nationals who did not meet entry requirements.

10,938

11,634

3,866

4,626

2,000

4,000

6,000

8,000

10,000

12,000

14,000

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

* First applications only

Figure 1:

Evolution of Asylum Applications* in Ireland, 1992-2008

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Prior to 2005, the foreign-national parents of Irish-born

children were granted permission to remain in the State

on the basis of their child’s Irish citizenship. Ireland’s

laws in relation to citizenship were changed following an

amendment to the Irish Constitution and the enactment

of the Irish Nationality and Citizenship Act 2004. As a

result of this change to the law, citizenship is no longer

an automatic entitlement for all children born in Ireland.

Beginning in 2005, foreign-national parents of Irish-born

children have had to follow new procedures to apply for

permission to remain in the State.

Figure 3:

Top Five Countries of Origin* in 2008

1 Nigeria 1,009

2 Pakistan 237

3 Iraq 203

4 Georgia 181

5 China 180

* First applications only

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

The principal domestic legislation dealing with refugees

and asylum-seekers is the Refugee Act 1996 (as

amended), which entered into force in 2000. The Act

incorporates the 1951 Convention Relating to the Status

of Refugees (1951 Convention). It provided for the

establishment of the Ofﬁ ce of the Refugee Applications

Commissioner as well as the Refugee Appeals Tribunal,

and sets out a framework for the determination of asylum

applications and family reuniﬁ cation applications. The

1996 Act has been amended by the Immigration Act

1999, the Illegal Immigrants (Trafﬁ cking) Act 2000 and

the Immigration Act 2003.

The European Communities (Eligibility for Protection)

Regulations, 2006 (Statutory Instrument No. 518 of 2006)

came into force on 10 October 2006. These Regulations

gave effect to Council Directive 2004/83/EC of 29 April

2004 on minimum standards for the qualiﬁ cation and

status of third country nationals or stateless persons as

refugees or as persons who otherwise need international

protection (commonly known as the Qualification

Directive). These Regulations set out, inter alia, the

eligibility criteria for subsidiary protection, the means

by which applications for subsidiary protection are made

and investigated, the exclusion provisions that apply, as

well as the rights and entitlements accompanying such

status, and the circumstances under which a subsidiary

protection decision can be revoked or not renewed.

2.2 Pending Reforms

The Immigration, Residence and Protection Bill

2008, published in January 2008, is currently before

the National Parliament. The Bill will introduce

comprehensive reforms that will simplify the asylum

procedure. The Bill envisages a single procedure to

investigate all grounds for protection put forward by

applicants. The investigation of such applications will

also include the consideration of whether, when not

being entitled to protection, an applicant should be

otherwise permitted to remain in the State.

500

1,000

1,500

2,000

2,500

3,000

3,500

4,000

4,500

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Nigeria Pakistan Iraq

* First applications only

Figure 2:

Evolution of Applications* from Top Three Countries of Origin for 2008

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IRE

Under the Bill, the functions currently carried out by

the ORAC to examine claims for refugee status will be

subsumed into the Irish Naturalisation and Immigration

Service (INIS). Under the reforms, the single procedure

will allow an applicant to obtain a ﬁ nal decision on his

or her application, in a more timely and efﬁ cient manner.

The introduction of a single procedure will also result in

procedural changes to the asylum appeals process. The

existing Refugee Appeals Tribunal will be replaced by a

Protection Review Tribunal. The new tribunal will have

an expanded remit to consider appeals against both

decisions not to grant refugee status and decisions

not to grant subsidiary protection as deﬁ ned in the

Qualiﬁ cation Directive.

It is expected that the Bill will be enacted and

implemented in 2009.

3 Institutional Framework

3.1 Principal Institutions

The Ofﬁ ce of the Refugee Applications Commissioner

(ORAC) is the ﬁ rst instance decision-making body. The

ORAC is required to investigate each asylum application

ﬁ led in Ireland and to make recommendations to the

Minister of Justice, Equality and Law Reform in relation

to whether a person should be granted refugee status.

It is also responsible for investigating applications made

by refugees for family reuniﬁ cation.

The Refugee Appeals Tribunal (RAT) hears appeals

against negative ﬁ rst-instance recommendations.

Upon the recommendation of the ORAC or the RAT, the

Minister of Justice, Equality and Law Reform makes the

decision to either grant or refuse an asylum claim. The

Minister does not make a ﬁ nal decision until the time

period for lodging an appeal has elapsed or until the

RAT makes its recommendation.

The Reception and Integration Agency (RIA) is

responsible for coordinating the reception services

provided to asylum-seekers.

Under current arrangements, the Irish Naturalisation

and Immigration Service (INIS) assesses applications for

subsidiary protection and the validity of any other reasons

to remain in the State.

The INIS is part of the Department

of Justice, Equality and Law Reform.

1 Other grounds for obtaining a residence permit are found under

section 3 of the Immigration Act 1999.

The Garda National Immigration Bureau (GNIB) is

responsible for the enforcement of immigration policies,

including the enforcement of Deportation Orders,

Dublin II Transfer Orders and Removal Orders

issued

by the Minister.

3.2 Cooperation between

Government Authorities

In accordance with its obligations under the 1951

Convention, Ireland places a high priority on maintaining

an asylum process that is both fair and transparent and

that is geared towards providing protection to those

in genuine need of such protection, as quickly as

possible. A key element of this work involves ongoing

and essential liaison among all the various agencies

and ofﬁ ces listed above. This interaction is essential

to maintain communication on European Union

(EU) developments, to have an accelerated asylum

processing system, to process Dublin II transfers in a

timely manner and to coordinate issues as they arise.

4 Pre-entry Measures

To enter Ireland, all foreign nationals (with the exception of

United Kingdom citizens travelling from within the Common

Travel Area) must have a valid travel document, such as

a passport, and in certain cases, a visa issued by Ireland.

4.1 Visa Requirements

The Irish Naturalisation and Immigration Service is

responsible for Irish visa policy.

All foreign nationals who

are visa required must have a valid visa to travel to Ireland.

A visa is merely a pre-entry clearance to seek permission

to enter the State – no automatic right of entry or residence

is conferred. Whether the person is permitted to enter and

the exact period for which he or she is allowed to remain

are matters for the Immigration Ofﬁ cer at the port of entry.

4.2 Carrier Sanctions

Carrier liability was introduced in the Immigration Act

2003.

Carriers are required to check that individuals

have appropriate documentation before allowing them

2 Removal Orders pertain to European Union citizens subject to

Article 20 of the European Communities (Free Movement of

Persons) Regulation 2006.

3 Visas are issued through cooperation between INIS Visa Ofﬁ ces,

located in Dublin and at the Irish Embassies in Cairo, Moscow,

Abuja, London, New Delhi and Beijing as well as at Irish Missions

overseas, which are run by the Department of Foreign Affairs.

The Department issues short stay visas (90 days or less) under

delegated sanction from INIS. Decisions not to issue a visa may be

appealed in almost all circumstances. Appeals are not entertained

where there has been fraud or deception in the visa application.

4 See the provisions on carrier liability contained in the Immigration

Act 2003 in the annexe to this chapter.

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to board a vehicle. They are required to check that

all persons on board disembark in compliance with

directions given by Immigration Officers, and that

all persons are presented to Immigration Officers.

Any carrier in breach of these requirements may be

ﬁ ned 3,000€ for each foreign national found to be in

contravention of these provisions.

4.3 Interception

If a person who is not entitled to enter the State is

intercepted at a border control point or is encountered

within the State having illegally entered in the preceding

three months, that person may be refused leave to land by

an Immigration Ofﬁ cer under Section 5 of the Immigration

Act 2003. Unless a person seeks to make an application

for asylum, he or she will be refused leave to land and may

be detained and removed from the State.

When the Garda National Immigration Bureau becomes

aware of or encounters a person who is illegally present

within the State, it will make an application for a Deportation

Order under Section 3(4) of the Immigration Act 1999.

In disseminating information on those persons who are

refused leave to land, the Garda National Immigration

Bureau identifies routes being used by persons

attempting to enter the State illegally.

Airline Liaison Ofﬁ cers

The Garda National Immigration Bureau has trained

members to be Airline Liaison Ofﬁ cers (ALOs). ALOs

are engaged to counteract attempts made to enter the

State illegally. These ofﬁ cers work in conjunction with

airline carriers and with immigration authorities of other

jurisdictions.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

An individual who arrives at the border and seeks

asylum is legally entitled to be given leave to enter and

make an asylum application with an Immigration Ofﬁ cer.

Inside the territory, asylum applications may be made

at the Ofﬁ ce of the Refugee Applications Commissioner

(ORAC) in Dublin. Applications may also be accepted

from persons in detention.

Children of asylum-seekers may have their asylum

claims included with those of their parents. Persons

over the age of 18 must ﬁ le their own asylum claims.

Access to Information

Applicants are given a number of documents as well as

advice when they make their initial application, as follows:

• An information leaﬂ et on the asylum procedure

and refugee status in Ireland (available in 25

languages)

• A questionnaire in connection with their

application for a declaration

• A Refugee Legal Service information leaﬂ et

• A Change of Address form

• Advice on their right to consult legal counsel

and the United Nations High Commissioner for

Refugees (UNHCR).

Box 1:

Asylum Case Law: Applications of Dependants

In 2002, the Minister of Justice, Equality and Law Reform issued a mother and children with deportation orders as

failed asylum-seekers pursuant to Section 3(2)(f) of the Immigration Act 1999.

The applications for asylum were in the mother’s name but not in the children’s names. The children had not been

issued with refugee status determinations. The applicants challenged the children’s deportation orders on the basis

that their designation as failed asylum-seekers was wrong in law.

The Supreme Court, in a decision on the case,

quashed the children’s deportation orders, ﬁ nding that there was

no record of any decision refusing asylum applications on behalf of the children. The Court held that such a refusal

was a fundamental prerequisite to using the Minister’s power under Section 3(2)(f) of the Immigration Act 1999.

In response to this judgement, a new process has been put in place to ensure that dependants receive a refugee

status determination. In this regard, when an application is made, guardians decide if they want their dependants

to be assessed as part of their application or if the dependants’ claim is to be determined on its own merits.

1 See the provisions contained in Section 3 of the Immigration Act in the annexe to this chapter.

2 A.N. & Ors v The Minister for Justice & Anor [2007] IESC 44 Supreme Court, 18/10/2007.

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5.1.1. Outside the Country

Applications at Diplomatic Missions

Section 8 of the Refugee Act 1996 provides that any

person who arrives at the frontiers of the State or any

person who at any time is in the State seeking the status

of a refugee may apply to the Minister for a declaration

of refugee status. On this basis, applications for asylum

may not be made from outside the State.

Resettlement/Quota Refugees

Ireland joined the UNHCR-led Resettlement Programme

following a government decision in November 1998,

through which it was decided to admit 10 applicants

plus their immediate families for resettlement each

year (usually about 40 persons per year). Following

a decrease in the number of people seeking asylum

in Ireland, the quota was increased to 200 persons

per year in June 2005. The resettlement programme is

coordinated by the Ofﬁ ce of the Minister for Integration.

The resettlement programme is a humanitarian programme.

Persons must have a resettlement need but are not

required to undergo a full refugee status determination.

According to the Refugee Act 1996 (as amended), details

of a person admitted under the resettlement programme

must be entered on a register, and such a person is given

the status of “programme refugee.”

The country of origin and country of refuge of those

to be resettled are determined following consultations

between the Office of the Minister for Integration,

the Irish Naturalisation and Immigration Service, the

Minister for Foreign Affairs and the UNHCR.

Face-to-face interviews are carried out by a team that

includes a member of the Garda National Immigration

Bureau and resettlement and integration experts from

the Ofﬁ ce of the Minister for Integration.

The resettlement programme is managed using a

partnership approach involving various national and

international organisations. The International Organization

for Migration (IOM) conducts pre-departure health

screening prescribed by the Irish Health Service Executive

and also makes travel arrangements and organises

pre-departure training to prepare the refugee for travel.

UNHCR supports the selection and transfer process.

5.1.2. At Ports of Entry

A person who arrives at the frontiers of Ireland seeking

asylum may make an application for refugee status. The

Immigration Ofﬁ cer will interview the applicant as soon

as practicable and will take the initial details of his or her

asylum application and will ﬁ ngerprint the applicant. A

copy of this interview is provided to the applicant and

another copy is forwarded to the ORAC. The applicant

will also be informed that he or she is entitled to consult

a legal counsel and the UNHCR.

Ireland does not have an application determination

process in operation at ports of entry. Applicants are

provided with information in relation to the asylum

application process, and arrangements are made for

their transfer to the Ofﬁ ce of the Refugee Applications

Commissioner. Persons approaching an Immigration

Officer outside of office hours will be guided to a

reception centre for overnight accommodation before

being transferred to the ORAC on the next working day.

5.1.3. Inside the Territory

Responsibility for Processing the Claim

The Dublin System

Application and Procedure

A decision on the responsibility of another State party

to Council Regulation (EC) No 343/2003

may be made

at any time during the asylum procedure.

The operation of the Dublin II system is governed by the

Refugee Act 1996 (as amended) and Statutory Instrument

No. 423 of 2003 (known as the (section 22) Order). Under

the Order, if it appears that the claim should be dealt with

in another State, the ORAC will attempt to establish the

movements of the applicant, will inform the applicant of

the consequences of the Dublin II process, and will refer

the applicant to the Refugee Legal Service. The applicant

has an opportunity to submit reasons as to why his or

her case should be dealt with in Ireland.

ORAC makes a determination on the case, which is

issued to the applicant and his or her legal representative.

The determination contains the following information:

• A summary of the legal position in relation to the

Dublin Regulation

• A summary of the proof that the person has

been in another Member State

• A brief outline of the applicant’s case as presented

at r

eception and in any representations

• An outline of the decision referencing the Article

and pr

oofs required and supplied

• The statement of the determination.

Council Regulation (EC) No 343/2003 of 18 February 2003

establishing the criteria and mechanisms for determining the

Member State responsible for examining an asylum application

lodged in one of the Member States by a third-country national

(Dublin II Regulation).

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The ﬁ le is then forwarded to INIS and a Transfer Order

is drawn up in line with national legislation in order to

effect the transfer of the applicant from the jurisdiction.

Freedom of Movement/Detention

If it is suspected that a person who has been served

with a Transfer Order intends to avoid removal from the

State, he or she may be arrested and detained without

further notice for the purposes of his or her removal.

Conduct of Transfers

The transfer of the asylum application is arranged by

the Department of Justice, Equality and Law Reform.

The transfer takes place as soon as is practicably

possible and at the latest within six months of the date

of acceptance by the other Regulation State.

Suspension of Dublin Transfers

Article 19(2) of the Dublin II Regulation states that the

decision to transfer an applicant “may be subject to

an appeal or a review. Appeal or review concerning

this decision does not suspend the implementation

of the transfer unless the courts or competent bodies

so decide on a case by case basis.” According to the

Illegal Immigrants (Trafficking) Act 2000, “a person

shall not question the validity of a determination of the

Commissioner or a decision of the Refugee Appeals

Tribunal under section 22 (as amended by section 11(1)

(p) of the Immigration Act 1999) of the Refugee Act, 1996,

otherwise than by way of an application for judicial review

under Order 84 of the Rules of the Supreme Courts (S.I.

No. 15 of 1986).” Such an application must be made

within a period of 14 days from the date of the decision.

Review/Appeal

The asylum-seeker may make an appeal before the

Refugee Appeals Tribunal (RAT) within 15 working days

of the date of ORAC’s determination. Any appeal to the

RAT will not suspend the transfer of the asylum-seeker

to the other country.

If the RAT overturns the determination of the ORAC,

the application will be returned to the ORAC for

examination. If the asylum-seeker has already been

transferred to another country, arrangements will be

made for his or her return to Ireland.

Application and Admissibility

There are no formal admissibility arrangements in place

in respect of asylum applications. All applications

for asylum made in Ireland are examined on their

merits, with some applications prioritised accordingly.

Exceptions to this rule include the following:

• Asylum applications made by nationals of

Member States of the Eur

opean Union. Under

the EU Treaty Protocol, Ireland does not accept

asylum applications from nationals of EU

Member States

• Accompanied minors whose application is

consider

ed to be part of the application of

their parent or guardian unless they make an

application in their own right.

Accelerated Procedures

Prioritisation of Applications

Section 12 of the Refugee Act 1996 (as amended)

allows the Minister of Justice, Equality and Law Reform

to prioritise certain classes of applications based on

one or more of the following criteria:

• The grounds of the application

• The country of origin or habitual residence of

applicants

• Any family relationship between applicants

• The ages of applicants

• The dates on which applications were made

• Considerations of national security or public

policy

• The likelihood that the applications are well-

founded

• Special circumstances regarding the welfare of

applicants or the welfar

e of family members of

applicants

• Lack of grounds for contention that the applicant

is a r

efugee

• False or misleading representations in relation

to a person’

s application

• Prior applications for asylum in another country

• The making of an application at the earliest

opportunity after arrival in the State

• Being a national of or having a right of residence

in a country of origin designated as safe

• Being someone to whom paragraph (a), (b) or

amended) applies.

In addition, under section 12(4) of the Refugee Act 1996,

the Minister may, after consultation with the Minister for

Foreign Affairs, designate a country as a safe country of

6 See the provisions contained in Section 12 of the Refugee Act in

the annexe to this chapter.

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origin.

Asylum-seekers from designated safe countries

of origin may have their applications prioritised.

Certain speciﬁ c categories of applications are also

given priority. For example, applications from asylum-

seekers in detention are given priority.

Prioritised applications are generally examined and

processed within 17 to 20 working days of the date of

application, except where medical or other compelling

reasons may prevent this. This time limit aside, the

examination process follows the normal procedure.

Normal Procedure

Preliminary Interview

When an asylum claim is made, a preliminary interview

with the applicant is conducted. The purpose of this

interview is to establish whether the person wishes to

make an application for a declaration for refugee status

and if so, the general grounds upon which the application

is based, the person’s identity and nationality and the

route taken to the State. The interview is conducted

in the presence of an interpreter when necessary and

possible.

If the asylum-seeker made the application at a port of

entry, he or she will be required to proceed to the ORAC

ofﬁ ce to complete the initial asylum process.

Application Form

Following the preliminary interview, the applicant

completes and signs a standard form (ASY1 form). The

application must be accompanied by original travel and

identity documents in the asylum-seeker’s possession,

and if appropriate, those of his or her children who are

under 18 years old.

Questionnaire

The asylum-seeker is then given a detailed questionnaire

on which he or she is to provide biographical details and the

reasons for seeking asylum. The completed questionnaire

must be returned to the ORAC within seven days of the

preliminary interview (within six days for prioritised cases).

All applicants are photographed and those over 14 years

are also ﬁ ngerprinted in the ORAC. They are then issued

with a Temporary Residence Certiﬁ cate/Card as evidence

that they have applied for asylum.

Asylum-seekers are then referred to the Reception and

Integration Agency (RIA) where arrangements will be

made for them to be taken to a Reception Centre in

7 See the section on Safe Country Concepts below for more

information on the safe country of origin policy.

the Dublin Area. Applicants can also make their own

accommodation arrangements.

Substantive Interview

The asylum-seeker is invited to an interview carried

out by an ORAC caseworker, with the assistance of an

interpreter where required. Applicants may also have

their legal representative present at the interview.

Recommendation

On the basis of the ﬁ ndings of the preliminary interview,

the completed questionnaire, the substantive interview

and any relevant information, including country of origin

information, the caseworker prepares a report on the

application which will incorporate a recommendation

of whether or not refugee status should be granted as

well as the reasons for this recommendation. A copy

of the report is given to the applicant and his or her

legal representative at the end of the procedure if the

recommendation is to refuse refugee status.

Review/Appeal of the Procedure

Refugee Status

Applicants who receive a negative recommendation

following their interview with the ORAC may appeal the

recommendation before the Refugee Appeals Tribunal

(RAT) within 15 working days of the sending of the

notice. The appeal has suspensive effect. The RAT has

the power to afﬁ rm the ORAC recommendation or to set

it aside and grant refugee status. The Minister does not

make a ﬁ nal decision until the time period for making

an appeal has elapsed or until such time as the RAT

makes a recommendation.

Asylum-seekers are entitled to request an oral hearing

for this appeal.

The timeframe to make an appeal on a negative

recommendation is 10 working days if the ORAC’s

recommendation includes in its ﬁ ndings one of the

following elements:

• The applicant showed either no basis or a

minimal basis for the contention that he or she

is a r

efugee

• The applicant made statements or provided

information in support of the application of such

a false, contradictory, misleading or incomplete

nature as to lead to the conclusion that the

application is manifestly unfounded

• The applicant, without reasonable cause, failed

to make an application as soon as r

easonably

practicable after arrival in the State

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• The applicant had made a prior application

for asylum in another state party to the 1951

Convention (whether or not that application had

been determined, granted or rejected)

• The applicant is a national of, or has a right of

esidence in, a safe country of origin for the time

being so designated by the Minister.

Any such appeal will be dealt with by the Tribunal

without an oral hearing.

The Minister also has the power to direct that certain

categories of applications be dealt with in accordance

with procedures set out in section 13(8) of the Refugee

Act.

If the Minister issues such a direction and an

application is to be dealt with in this way the applicant

and his or her legal counsel (if known) will be notiﬁ ed

in writing in advance by the Commissioner.

Under these procedures, should a negative

recommendation be made by the Commissioner and

should any one of the additional elements listed above

apply, the applicant will have four working days to

appeal from the sending of the notice. Any such appeal

will be dealt with by the Tribunal without an oral hearing.

In all instances the Tribunal furnishes the applicant with

the reasons for its recommendation including the material

which was relied upon in coming to that recommendation.

When an application is withdrawn or deemed withdrawn,

there is no possibility of an appeal.

Freedom of Movement during the

Procedure

Detention

There is no systematic detention of asylum applicants

for the purpose of processing applications. However,

under section 9(8) of the Refugee Act (as amended)

applicants may be detained if it is suspected that they:

• Pose a threat to national security or public order

in the State

• Have committed a serious non-political crime

outside the State

• Have not made reasonable efforts to establish

their true identity

• Intend to avoid removal from the State in the

event of their application for asylum being

transferred under the Dublin II Regulation

8 These elements are contained in section 13(6) of the 1996 Refugee

Act.

9 As at this writing, these procedures have not yet been invoked in

Ireland. See the terms of Section 13(8) of the Refugee Act in the

annexe.

• Intend to leave the State and enter another state

without lawful authority, or

• Without reasonable cause have destroyed their

identity or travel documents or ar

e in possession

of forged identity documents.

A person detained under these provisions must be

brought before a judge of the district court as soon as

practicable. The judge may:

• Commit the person concerned to be detained

for up to 21 days

• Release the person

• Release the person subject to certain reporting

equirements.

A person failing to comply with any imposed reporting

conditions may also be detained. Any persons detained

may have their period of detention extended for further

periods, each period not exceeding 21 days, pending

the determination of their application. These provisions

are not applicable to minors.

Under Section 10 of the Refugee Act, the Commissioner

or the Tribunal shall ensure that the application for

asylum of a person detained in relation to speciﬁ c

matters shall be dealt with as soon as may be and,

if necessary, before any other application of a person

who is not detained.

Reporting

According to the Refugee Act, an applicant shall not

attempt to leave the State without the consent of

the Minister. He or she is also obliged to inform the

Commissioner of his or her address and of any change

of address as soon as possible. An asylum-seeker may

make arrangements for his or her own accommodation

at the start of the asylum procedure and must provide

the address within ﬁ ve working days of making an

asylum application. If the address is not reported to the

authorities within the time limit, the asylum application

will be deemed to be withdrawn.

An applicant may be required to reside or remain in

particular districts or places in the State, or report at

speciﬁ ed intervals to an Immigration Ofﬁ cer or persons

authorised by the Minister or a member of the Garda

Síochána.

Repeat/Subsequent Applications

Under section 17(7) of the Refugee Act, it is not possible

for a person who has been refused refugee status to

make a further application under the Refugee Act without

the consent of the Minister. A reapplication will be

accepted only if the applicant submits new information

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that was not previously submitted or available to the

ORAC and if there are genuine reasons for the applicant

not to have been able to submit that information at

an earlier stage. If accepted, reapplications follow the

same procedure as ﬁ rst instance applications.

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

Under section 12(4) of the Refugee Act (as amended),

the Minister may, by order, designate certain countries

as safe countries of origin. If it appears to the ORAC

that the asylum-seeker is a national of, or has a right

of residence in a country designated by the Minister

as a safe country of origin, then the asylum-seeker is

presumed not to be a refugee, unless he or she can

provide evidence to the contrary.

In deciding whether to designate a country as a safe

country of origin, the following considerations must be

taken into account:

• Whether the country is a party to, and generally

complies with, obligations under the Convention

Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (CAT), the

International Covenant on Civil and Political

Rights, and, where appropriate, the European

Convention on Human Rights (ECHR)

• Whether the country has a democratic political

system and an independent judiciary

• Whether the country is governed by the rule of

law

Croatia and South Africa are considered safe countries

of origin and therefore applications made by persons

from these countries are prioritised.

Asylum Claims Made by Citizens of the EU

As Ireland applies the EU Protocol on asylum, annexed

to the Treaty of Amsterdam, the ORAC does not

process asylum claims from EU nationals. Under the

EU Treaty Protocol, Member States are regarded as

safe countries of origin in respect of each other in

relation to asylum matters. Therefore, applications

for refugee status from EU nationals are inadmissible

for processing in Ireland except in very exceptional

circumstances.

5.2.2. First Country of Asylum

Where an applicant is found to have resided in another

country (without making an application for asylum) prior

to travelling to Ireland to claim asylum, the application

is processed following the normal procedure. However,

the applicant is given 10 working days to appeal to the

Refugee Appeals Tribunal if a negative recommendation

includes one of the following elements:

• A ﬁ

nding that the applicant, without reasonable

cause, failed to make an application as soon as

reasonably practicable after arrival in the State

• A ﬁ nding that the applicant had made a prior

application for asylum in another State party to

the 1951 convention.

Such an appeal is determined without an oral hearing.

5.2.3. Safe Third Country

Ireland does not apply any safe third country policy in

the context of asylum procedures.

5.3 Special Procedures

5.3.1. Unaccompanied Minors

Under section 8(5) of the Refugee Act 1996 (as

amended), where an unaccompanied child under the

age of 18 (a minor) arrives at a port of entry or at the

ORAC, the Health Service Executive (HSE) must be

informed and the child placed in its care. The HSE will

decide if and when it is in the best interests of the minor

to make an application on his or her behalf.

In the event that an application is made, the HSE then

assists the minor throughout the procedure, including

accompanying the child to the interview.

The following features are speciﬁ c to the examination of

asylum applications made by unaccompanied minors

(UAMs):

• All UAMs are interviewed by experienced ORAC

caseworkers who r

eceive additional specialised

training

• UAMs’ applications are prioritised

• There is greater emphasis on certain objective

factors such as country of origin information in

determining the application of the UAM

• HSE and legal representatives are always in

attendance at interviews.

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Figure 4:

Total Applications by Unaccompanied Minors*,

2000-2008

271

128

131

302

600

288

100

200

300

400

500

600

700

2000

2001

2002

2003

2004

2005

2006

2007

2008

* First applications only

5.3.2. Temporary Protection

Ireland has exercised its option, under the EU Treaty

Protocol relating to the position of the United Kingdom

(UK) and Ireland, to take part in Council Directive

2001/55 of 20 July 2001 on minimum standards for

giving temporary protection in the event of a mass inﬂ ux

of displaced persons, and on measures promoting a

balance of efforts between Member States in receiving

such persons and bearing the consequences thereof

(Temporary Protection Directive). This Directive was

transposed into Irish Law under the Refugee Act 1996

(as amended).

The existence of a mass inﬂ ux of displaced persons

must be established by a Council Decision. No such

decision has been taken to date. Ireland will afford such

displaced persons permission to enter and remain in

the State on a temporary basis.

5.3.3. Stateless Persons

Where the ORAC is satisfied that an individual is

stateless, it will accept an asylum application from

the person and process it according to the normal

determination procedure.

6 Decision-Making and

Status

At present, the ORAC determines asylum applications

at ﬁ rst instance, the RAT hears appeals against negative

ﬁ rst instance recommendations and the INIS considers

applications for subsidiary protection and any other

reasons to remain in the State.

6.1 Inclusion Criteria

Refugee status is granted if an applicant meets the

requirements set out in section 2 of the Refugee Act,

which incorporates criteria set out in Article 1(A) 2 of

the 1951 Convention.

Section 1 of the Refugee Act 1996 (as amended)

explicitly states that “social group” can include

membership in a trade union or a group of persons

whose defining characteristic is their gender or

particular sexual orientation.

6.2 The Decision

The Minister for Justice, Equality and Law Reform

is responsible for granting an asylum-seeker a

determination of refugee status.

Where a recommendation to grant refugee status is

made by the ORAC or where the RAT overturns a

negative recommendation of the ORAC, the Minister

shall grant refugee status. However, under section

17(2)(a) of the Refugee Act 1996 (as amended), if the

Minister considers that issues of national security

or public policy arise, he or she may refuse to grant

refugee status.

Where a recommendation to refuse refugee status has

been made by the ORAC and where the RAT does not

overturn that recommendation, the Minister may refuse

to give a determination of refugee status.

The Minister’s decision is issued by mail to the applicant.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

The ORAC may make the following recommendations:

• Grant refugee status

• Refuse on the basis of the application having

been withdrawn, or deemed to be withdrawn

• Refuse (substantive)

• Refuse with additional section 13(6) ﬁ ndings.

An applicant granted refugee status receives a statement

in writing declaring that he or she is a refugee. Refugee

status is granted on an indeﬁ nite basis, subject to the

power of the Minister to revoke a declaration under

section 21 of the Refugee Act (as amended). Refugees

are required to register with the immigration authorities

and are issued a residence permit. An applicant may

apply for a 1951 Geneva Convention Travel Document.

10 See the section on Review/Appeal above for section 13(6)

additional ﬁ ndings.

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Under section 3 of the Refugee Act 1996 (as amended),

persons granted refugee status are entitled to the

following beneﬁ ts, on the same basis as Irish citizens:

• Right to travel

• Access to the Courts

• Access to the labour market

• Right to form or be a member of a trade union

• Access to medical care

• Social welfare beneﬁ ts

• Access to education and training.

A r

ecognised refugee may apply for Irish citizenship

three years after having made an application for refugee

status. A refugee is also entitled, upon application to

the Minister, to family reuniﬁ cation.

6.4 Exclusion

The deﬁ nition of a refugee does not apply if Article 1F

of the 1951 Convention is applicable, as follows:

• The person has committed a crime against

peace, a war crime, or a crime against humanity

as deﬁ ned in the international instruments drawn

up to make provision in respect of such crimes

• The person has committed a serious non-

political crime outside the State prior to his or

her arrival in the State

• The person has been guilty of acts contrary

to the purposes and principles of the United

Nations.

In addition, under section 17(2)(a) of the Refugee Act

1996 (as amended), the Minister may provide that

the right to be granted leave to enter the State for

the purposes of making an asylum application, to be

entitled to the rights afforded to a recognised refugee

or to be entitled to family reuniﬁ cation may be withheld

if it is considered that issues of national security or

public policy arise. Furthermore, such a person may

be required to leave the State and may be temporarily

detained for this purpose.

According to the Refugee Act, a person who is the

subject of such a removal cannot be removed until at

11 A person granted refugee status in Ireland may apply for family

reuniﬁ cation under section 18 of the Refugee Act 1996 (as

amended). The Act deﬁ nes “family members” for the purposes of

family reuniﬁ cation as follows: spouse; parents of the refugee if, on

the date of the application, is under 18 years of age and not married;

and children of the refugee, who, on the date of the application

are under 18 years and unmarried. The Act also speciﬁ es that the

Minister may also, at his or her discretion, grant permission to a

“dependent family member” to enter and reside in the State.

least 30 days after the making of such an order and

the Minister is required to notify the UNHCR and the

individual’s legal counsel. An applicant can appeal this

decision to the High Court.

6.5 Cessation

Under sections 21(e) and (f) of the Refugee Act 1996

(as amended),

if the circumstances giving rise to an

applicant being recognised as a refugee cease to exist,

his or her declaration (refugee status) may be revoked.

The terms applicable to cessation are covered together

with other grounds for revocation of refugee status,

which are described below.

6.6 Revocation

Under section 21 of the Refugee Act 1996 (as amended),

the Minister may revoke a person’s refugee status if the

person:

a) has voluntarily re-availed himself or herself

of the protection of the country of his or her

nationality

b) having lost his or her nationality, has voluntarily

re-acquired it

c) has acquired a new nationality (other than

the nationality of the State) and enjoys the

protection of the country of his or her new

nationality

d) has voluntarily re-established himself or

herself in the country which he or she left or

outside which he or she remained owing to

fear of persecution

e) can no longer, because the circumstances in

connection with which he or she has been

recognised as a refugee have ceased to exist,

continue to refuse to avail himself or herself

of the protection of the country of his or her

nationality

f) being a person who has no nationality is,

because the circumstances in connection

with which he or she has been recognised as

a refugee have ceased to exist, able to return

to the country of his or her former habitual

residence

g) is a person whose presence in the State poses

a threat to national security or public policy

12 See the provisions of section 21 of the Refugee Act in the annexe

to this chapter.

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h) is a person to whom a declaration has been

given on the basis of information furnished

to the Commissioner or, as the case may be,

the Tribunal which was false or misleading in

a material particular.

A revocation order will not be made in respect of

grounds (e) and (f) above if the refugee can demonstrate

that there are compelling reasons arising from previous

persecution for refusing to avail oneself of protection

of his or her nationality or for refusing to return to the

country of former habitual residence.

Where the revocation of refugee status is being considered,

the applicant, his or her legal representative and the

UNHCR are notiﬁ ed and are invited to submit written

representations within 15 working days. Documentation

received is considered and a submission outlining the

case is made to the Minister. The decision to revoke rests

with the Minister. A revocation order detailing the reasons

for the revocation is issued in writing to the person.

If a person seeks to contest the revocation, he or

she may make an appeal to the High Court within 15

working days of the decision of the Minister. The appeal

has suspensive effect.

6.7 Support and Tools for

Decision-Makers

6.7.1. Country of Origin Information

ORAC caseworkers rely on a number of support tools

to assist in the refugee status determination process.

Within the ORAC, a team of country of origin information

(COI) researchers assist caseworkers in retrieving

and collecting information on countries of origin that

may be relevant in speciﬁ c asylum cases. ORAC also

encourages its caseworkers to utilise the facilities of

the Refugee Documentation Centre.

The Refugee Documentation Centre (RDC) was

established in 2000 as an independent service operating

under the Legal Aid Board.

The role of the Centre is as follows:

• Provide a research and query service for key

ganisations involved in the asylum process

• Build and maintain a collection of objective and

up-to-date COI, asylum, immigration, legal and

human rights documentation for general access

• Provide training on country of origin information

esearch

Box 2:

The Refugee Documentation Centre: Building on Best Practices

Prior to the creation of the Refugee Documentation Centre, there was no centralised COI service available to all

asylum authorities, as COI research was being conducted within each individual organisation.

The RDC established early contacts with other COI ofﬁ ces in partner countries to identify best practices as well as

with other relevant organisations and agencies both in Ireland and abroad. A formal ‘Query Service’ was introduced

in 2001, and this has been expanded considerably since then and is now managed electronically.

A strategic review and analysis of the RDC, completed in 2004, resulted in a number of recommendations relating

to the future development of the Documentation Centre. Involvement in international COI meetings and networks

was strongly encouraged as a way to build on best practices. In recent years, the training activities of the RDC have

expanded from short courses developed in-house to intensive COI training programmes based on best practice

models. For example, the RDC was involved with the COI Network in developing the Researching COI Training

manual and its online equivalent. The RDC was also involved in the development and delivery of courses based on

this manual both in Ireland and internationally. The RDC trainer is a member of the COI Network trainer pool and

is also currently involved at the expert level in the COI module of the European Asylum Curriculum (EAC) and in the

development of the training programme for the EAC.

A comprehensive COI document management system (E-Library) was launched in September 2007. This system gave

end-users access to the RDC online collections of journals, COI documents and anonymised query responses. This new

system will enable the RDC to maintain a richer, more up-to-date and more accurate knowledge base for country of

origin information and permit the addition of new collections as required. Planned upgrades of the E-Library COI

system will incorporate federated searching where possible.

The RDC has also recently developed Country Information Packs (reference documents for high priority countries on

a broad range of COI topic areas, including subsidiary protection), which are available to all end-users.

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• Undertake other research activities and provide

a lending and research library service

• Cooperate with similar agencies elsewhere to

enhance knowledge of the country of origin

research area.

The RDC publishes a comprehensive COI newsletter

(“The Researcher”), which is posted on the Legal Aid

Board website. Contributors include asylum agencies,

UNHCR, non-governmental organisations (NGOs),

academics and COI researchers.

Members of the public and other agencies may also

use the Documentation Centre to conduct their own

research.

6.7.2. Language Analysis

Following an ORAC pilot project on the use of language

analysis in the asylum procedure, language analysis is

now utilised to assist in the assessment of complex

cases.

6.7.3. Other Support Tools

All caseworkers are provided with speciﬁ c training that

has been developed in conjunction with the UNHCR.

Formal policies and procedures on speciﬁ c asylum-

related matters are also available to caseworkers, while

the ofﬁ ce of the Attorney General is available to advise

in respect of matters of a legal nature.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

Currently all asylum-seekers over 14 years of age are

ﬁ ngerprinted when making a claim for asylum at the

ORAC.

An integrated Automated Fingerprint Identification

System (AFIS), introduced in late 2007, changed the

capture of ﬁ ngerprints from a manual to an electronic

system and provided an enhanced ﬁ ngerprint capacity

for the ORAC with better capability for exchange of

information with EURODAC.

7.1.2. DNA Tests

While DNA tests are not routinely used by the ORAC,

they have been used in the context of child protection

procedures in the determination of applications for

family reuniﬁ cation.

7.1.3. Forensic Testing of Documents

The ORAC and the INIS may make a request to the

police to verify identity documents when there are

doubts about their authenticity. The need for forensic

testing rarely arises in the case of asylum applications,

as the majority of asylum-seekers claim not to have

identity documents.

7.1.4. Database of Asylum

Applications/Applicants

All asylum applications and the subsequent decisions

are registered in a database that is maintained by the

ORAC.

7.2 Length of Procedures

Prioritised applications are normally processed within

17 to 20 working days of their initial application, except

where medical or other compelling reasons may prevent

this. All other applications are normally processed within

approximately 20 to 22 weeks of the initial application.

7.3 Pending Cases

The backlog of cases at ﬁ rst instance is small. At the

end of 2008, there were 1,196 pending cases before

the ORAC.

7.4 Information Sharing

Apart from the information sharing arrangements under

the Dublin II Regulation, no information on an asylum-

seeker may be released to a third country, unless the

asylum-seeker consents to it.

7.5 Single Procedure

Ireland does not currently operate a single procedure.

Under the Immigration, Residence and Protection

Bill 2008, the functions currently carried out by the

ORAC will be subsumed under the functions of the

INIS. Thereafter, the consideration of refugee status,

subsidiary protection and all other grounds for remaining

in the State advanced by the applicant will be assessed

in a uniﬁ ed application process or single procedure.

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8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

The Refugee Legal Service (RLS) is an ofﬁ ce established by

the Legal Aid Board to provide low-cost, independent and

conﬁ dential legal services to asylum-seekers and refugees.

The RLS can provide assistance to applicants before

submission of the questionnaire or prior to appearing at

the interview, and can make written submissions to the

ORAC in support of an application. The RLS can also

provide legal representation before the RAT.

The RLS staff comprises legal counsel and caseworkers

who have been trained in refugee status determination.

Asylum-seekers are also free to arrange for legal advice

at their own expense.

8.1.2. Interpreters

The ORAC and the RAT use independent and impartial

interpreters for interpretation into English during asylum

interviews. Translators are also available to translate

documents or declarations submitted by the asylum-

seeker.

8.1.3. UNHCR

At the beginning of the procedure, asylum applicants

are advised of their right to consult with the UNHCR. As

stated above, the UNHCR may be present at the asylum

interview and may make representations on behalf of

an applicant, and on request will be informed of the

recommendation of the ORAC. The UNHCR may also

attend appeal hearings before the Refugee Appeals

Tribunal and may make submissions on behalf of the

asylum-seeker.

8.2 Reception Beneﬁ ts

The Reception and Integration Agency (RIA) is a non-

statutory agency of the Department of Justice, Equality

and Law Reform, which is responsible for overseeing

the reception of asylum-seekers in Ireland.

8.2.1. Accommodation

After an asylum-seeker makes his or her application for

asylum in the ORAC, the RIA offers accommodation in

a reception centre in Dublin for a period of between ten

and fourteen days. During this period, asylum-seekers

are given access to health, legal and welfare services.

Asylum-seekers whose applications are not prioritised

are then relocated to an accommodation centre outside

the Dublin area.

The RIA is responsible for the accommodation of asylum-

seekers in Ireland in accordance with the Government

Box 3:

Cooperation with UNHCR, NGOs

The UNHCR is notiﬁ ed of developments affecting applicants throughout the refugee determination process and is

afforded the opportunity to make submissions at various stages. However, the UNHCR does not play an active role

in the determination of individual asylum applications.

According to current legislation, the UNHCR must be notiﬁ ed in writing of the making of an asylum application.

This notice includes the applicant’s name and his or her country of origin. The UNHCR may make a request to attend

an interview being conducted by the ORAC or receive a copy of the interview record and any other documents

relied on. In addition, UNHCR can make representations on behalf of an applicant, and on request is informed of

the recommendation of the ORAC on the claim.

Similarly, the RAT is required to notify the UNHCR of any appeals lodged and on request is obliged to furnish the

UNHCR with all documents relating to the application. The UNHCR may, upon request, be present at appeal hearings

and make submissions on behalf of the appellant. The UNHCR is also informed of the decision reached by the RAT.

The UNHCR is also notiﬁ ed of applications for family reuniﬁ cation, revocation of status, decisions to detain, changes

of location of detention and detention for the purposes of removal from the State.

The UNHCR offers training to decision-makers at both the ﬁ rst and second instance on both legal and procedural matters.

The ORAC also liaises with other non-governmental organisations directly and via its Customer Liaison Panel. This

panel provides a forum for consulting on a wide range of issues and for providing information to relevant NGOs

on developments in the asylum process in Ireland.

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policy of “direct provision” and “dispersal”. Direct

provision is a policy whereby asylum-seekers can avail

themselves of full board accommodation and certain

ancillary services free of any cost while their asylum

application is being processed. The policy of dispersal

ensures that there is a distribution of the demand on

State services accessed by asylum-seekers.

8.2.2. Social Assistance

Asylum-seekers are provided with State support

through the system of direct provision. This is a largely

cashless system based on the benefit-in-kind of free

accommodation, health, education and other supports.

Asylum-seekers in direct provision receive a nominal

weekly payment of 19.10€ per week for adults and

9.60€ for children. In addition, asylum-seekers receive

Exceptional Needs Payments and Urgent Needs Payments

to cover the costs of essential and urgent needs.

These payments are administered by the Community

Welfare Service on behalf of the Department of Social

and Family Affairs (DSFA). The DSFA introduced a

Habitual Residence Condition (HRC) with effect from

1 May 2004. Under the HRC, applicants for social

assistance or child benefit payments must satisfy

certain conditions before they are entitled to any

payments.

8.2.3. Health Care

Health care in Ireland is provided through the Health

Services Executive (HSE). All asylum-seekers can access

the public health service in the same way as do Irish

citizens. In addition, asylum-seekers generally qualify for

a medical card that entitles them to free medical services

offered by a general practitioner and free medication.

Asylum-seekers in need of psychological treatment

can access a dedicated asylum-seekers’ psychological

service through the HSE in Dublin.

8.2.4. Education

Asylum-seekers can access free primary and secondary

level education up to age 18. In addition, English

language supports are provided to adult asylum-seekers.

8.2.5. Access to Labour Market

Asylum-seekers are not able to access the labour

market in Ireland for the duration of the procedure.

13 These conditions include the requirement for the applicant to have

a proven close link to Ireland or other parts of the Common Travel

Area. Asylum-seekers who have arrived in the State since 1 May

2004 do not satisfy the HRC and are thus excluded from receipt of

social assistance payments and child beneﬁ t payments.

8.2.6. Family Reuniﬁ cation

No possibilities for family reuniﬁ cation exist for asylum-

seekers awaiting a ﬁ nal decision on their claim.

8.2.7. Access to Integration

Programmes

Asylum-seekers have access to local services such

as primary and secondary education, primary health

care, and sports organisations in the same way as do

Irish citizens. Asylum-seekers may become involved in

voluntary activities at a local level. These opportunities

allow for interaction and integration at some level.

8.2.8. Access to Beneﬁ ts by Rejected

Asylum-Seekers

Asylum-seekers retain access to direct provision

support, as described above, until a ﬁ nal determination

is made in respect of their asylum application and any

other grounds on which permission to remain in the

State are sought, including subsidiary protection.

9 Status and Permits

Granted outside the

Asylum Procedure

9.1 Subsidiary Protection

Procedure

The decision-making authority for the determination

of applications for subsidiary protection is the Irish

Naturalisation and Immigration Service (INIS) of the

Department of Justice, Equality and Law Reform. Where

an application for subsidiary protection is received, a case

processor (or caseworker) in the Repatriation Division of

the INIS will examine the application. The case processor

has access to the applicant’s entire asylum ﬁ le.

The application is considered on the basis of the facts

and circumstances, including the grounds for serious

harm claimed by the applicant, all relevant facts relating

to the country of origin, all documentation submitted

by and on behalf of the applicant, whether internal

protection would appear to be available to the applicant

and the applicant’s overall credibility. Following the

examination of the application, the case processor

(or caseworker) compiles a written submission, which

includes a recommendation as to whether or not the

applicant is eligible for subsidiary protection in the State.

The submission and recommendation are reviewed by

a more senior ofﬁ cial in the Repatriation Division of the

INIS who makes the ﬁ nal decision on the application.

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Decision

The European Communities (Eligibility for Protection)

Regulations 2006 govern applications for subsidiary

protection. Under the Regulations, a person is eligible

to apply for subsidiary protection if he or she:

• Has applied for and failed to be granted refugee

status or has applied in writing to speciﬁ cally

seek subsidiary protection

• Demonstrates a credible, real risk of suffering

serious harm, as deﬁ

ned in Article 15 of the

Qualiﬁ cation Directive, and do not meet the

criteria for exclusion, as deﬁ ned by Article 17

of the Qualiﬁ cation Directive.

Decisions on subsidiary protection applications are

conveyed in writing to the applicant and are copied

to the applicant’s legal representative, if known. The

decision along with a copy of the submission and a

copy of any country of origin information relied upon

in arriving at the decision are conveyed in writing to the

applicant and to the legal representative.

Beneﬁ ts

A person eligible for subsidiary protection is entitled

to the same rights as Convention refugees except that

the permission to remain in the State granted is for a

renewable three-year period and he or she is not entitled

to a 1951 Geneva Convention Travel Document.

Appeal

There is no statutory appeal procedure in respect of

negative subsidiary protection decisions. However, any

person refused subsidiary protection in the State would

previously have been the subject of a negative asylum

decision, in most cases following an appeal of a ﬁ rst

instance determination.

Exclusion

Under sections 13(1) and (2) of the European

Communities (Eligibility for Protection) Regulations

2006, a person is excluded from being eligible for

subsidiary protection where there are serious grounds

for considering that one of the following is applicable:

• The person has committed a crime against

peace, a war crime, or crime against humanity

as deﬁ ned in the international instruments drawn

up to make provision in respect of such crimes

• The person has committed a serious crime

14 See the section above on Decision-Making within the asylum

procedure for information on beneﬁ ts conferred on recognised

refugees.

• The person has been guilty of acts contrary

to the purposes and principles of the United

Nations as set out in the Preamble and Articles

1 and 2 of the Charter of the United Nations

• The person constitutes a danger to the

community or to the security of the State.

An applicant is also excluded if he or she instigates

or otherwise participates in the commission of the

aforementioned crimes or acts.

In addition, under section 13(3) of that Regulation,

a person may be excluded from being eligible for

subsidiary protection if he or she has, prior to his or

her entry into Ireland, committed one or more crimes,

outside the scope of the aforementioned crimes or acts,

which would be punishable by imprisonment had they

been committed in the State, and left his or her country

of origin solely in order to avoid sanctions resulting

from these crimes.

There is no statutory appeal procedure in respect of

subsidiary protection decisions where an applicant is

‘excluded’ from being eligible for subsidiary protection

in the State.

Cessation

Section 14(1)(a) of the European Communities

(Eligibility for Protection) Regulation 2006

provides

for the cessation of subsidiary protection where the

circumstances that led to the granting of the permission

have ceased to exist or have changed to such a degree

that protection is no longer required. The terms for

revocation of subsidiary protection on cessation

grounds are described below.

Revocation

Subsidiary protection may be revoked if the person

should have been or is excluded from being a person

eligible for subsidiary protection under section 13(1)

and (2) of the European Communities (Eligibility for

Protection) Regulations 2006, as outlined above,

or where the misrepresentation or omission of facts

resulted in the granting of subsidiary protection status.

In addition, subsidiary protection may be revoked

where the circumstances which led to the granting of

the permission have ceased to exist or have changed

to such a degree that protection is no longer required;

so long as the change of circumstances referred to is

of such a signiﬁ cant and non-temporary nature that the

person granted subsidiary protection no longer faces a

real risk of serious harm.

15 See the provisions of section 14 of the European Communities

Regulations in the annexe to this chapter.

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Subsidiary protection may also be revoked if the person

should have been excluded from being a person

eligible for subsidiary protection under section 13(3)

of the European Communities (Eligibility for Protection)

Regulations 2006, as outlined above.

9.2 Temporary Leave to Remain

Leave to remain is a status granted at the discretion of the

Minister for Justice, Equality and Law Reform to, inter alia,

persons whose claims for asylum or subsidiary protection

have been rejected but who cannot be returned for

humanitarian or other compelling reasons. This provision

is set out in section 3 of the Immigration Act 1999 (as

amended). The key considerations are set out as follows:

• The age of the person

• The duration of residence in the State

• The person’s family and domestic circumstances

• The nature of the person’s connection with the

State, if any

• The employment (including self-employment)

ecord of the person

• The employment (including self-employment)

ospects of the person

• The character and conduct of the person both

within and (wher

e relevant and ascertainable)

outside the State (including any criminal

convictions)

• Humanitarian considerations

• Any representations duly made by or on behalf

of the person

• The common good

• Considerations of national security and public

policy

Persons granted temporary leave to remain in the State

are entitled to the following beneﬁ ts:

• A residence permit (normally for one or two

years, r

enewable at the end of the stated period)

• The right to work

• Access to social security on the same level as

Irish citizens.

9.3 Risk Assessment

Before a person is issued with a deportation order,

a risk assessment is conducted to take account of

refoulement or any ECHR considerations.

16 A person who has been served a deportation order must leave

Ireland and remain outside of Ireland.

The risk assessment consists of a detailed consideration

of the applicant’s case under section 3(6) of the

Immigration Act 1999 (as amended) (described above)

and section 5 of the Refugee Act 1996 (as amended) on

the prohibition of refoulement. The competent authority

is the Irish Naturalisation and Immigration Service (INIS)

of the Department of Justice, Equality and Law Reform.

Any perceived risk to the applicant would be identiﬁ ed

through an objective examination of the security, political

and human rights conditions prevailing in the country of

origin at the time the decision is made. Where such a risk is

identiﬁ ed, no steps would be taken to deport the applicant

at that time and, instead, the applicant may be granted

temporary leave to remain in the State for a deﬁ ned period.

9.4 Obstacles to Return

If after a detailed consideration of a case prior to removal,

it has been determined that there are no refoulement

issues arising, but where obstacles to effecting return

exist, such cases are kept under ongoing review. Such

obstacles may include a difﬁ culty in obtaining travel

documents to facilitate the removal of the individual.

9.5 Regularisation of Status over

Time

INIS may regularise the status of a rejected asylum-

seeker by, where deemed appropriate, granting

temporary leave to remain in the State on a case-by-

case basis, as described above.

9.6 Regularisation of Status of

Stateless Persons

Ireland is a signatory to the Convention Relating to

the Status of Stateless Persons 1954 and the 1961

Convention on the Reduction of Statelessness. Every

rejected asylum applicant, whether stateless or not,

is afforded the opportunity to apply to the Minister

for leave to remain in the State, and each case is

considered on its individual merits.

10 Return

The INIS and Garda National Immigration Bureau (the

Immigration Police) are responsible for the formulation

and implementation of return procedures.

10.1 Pre-departure Considerations

When an asylum-seeker has been given a negative

decision, he or she receives a written notification

advising him or her of the option of voluntary return

and is advised that assistance, if required, may be

provided by IOM.

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10.2 Procedure

Voluntary Return

Following the receipt of a negative decision, a rejected

asylum-seeker is given a period of 15 days in which

to notify the Minister of his or her decision to either

voluntarily return to his or her country of origin or avail

himself or herself of one of the other options open to

him or her, that is, consent to deportation or make

representations to remain temporarily in the State.

Once the person has given notiﬁ cation that he or she

will make a voluntary return, he or she is allowed a

reasonable timeframe in which to make the practical

arrangements for his or her departure. In most cases

a period of up to one month is considered reasonable.

The INIS and GNIB coordinate assisted voluntary return

schemes with IOM.

Enforced Return

The Immigration Act 1999 (as amended) provides for

a system of voluntary compliance in relation to the

removal of persons served with a Deportation Order

following the rejection of their asylum claims or after

they become otherwise illegally present in the State.

Where such persons are served with a Deportation

Order, they are legally obliged to comply with that

Order, which essentially means that they must leave the

State and thereafter remain out of the State. However,

where persons served with such an Order fail to comply

with the Order, they are liable to arrest and detention

pending their removal from the State. Where a person

is subject to a Transfer Order in accordance with the

Dublin II Regulation, arrangements are made by the

INIS and GNIB for his or her transfer to the relevant

Member State.

10.3 Freedom of Movement/

Detention

Where an Immigration Officer or a member of An

Garda Síochána, with reasonable cause, suspects that

a person against whom a Deportation Order (section

5(6)(a) of the Immigration Act 1999) is in force has

failed to comply with a requirement put on him or her,

or suspects that the person may abscond to avoid

removal, he or she may arrest and detain that person.

The person may be detained for a period not exceeding

eight weeks pending his or her removal from the State.

This eight-week period of detention applies for any one

removal or attempted removal.

Under Article 40 of the Irish Constitution, any person

detained may challenge the validity of his or her

detention.

10.4 Readmission Agreements

Ireland and Nigeria have operated a readmission

agreement since 2001 in respect of both failed asylum-

seekers and persons found to be illegally present in

the State.

11 Integration

While there are no formalised orientation programmes

for persons granted refugee status or complementary

forms of protection, a range of both statutory and

non-statutory bodies are involved in initiatives to

provide social support, information and English

language training. Ireland adopts a mainstream policy

of service provision in the integration area while

recognising the need for targeted initiatives to meet

speciﬁ c short-term needs. In general, the delivery of

integration services is the responsibility of mainstream

Government departments, which respond to the needs

of newcomers by developing responses appropriate to

their areas of responsibility.

The responsibility for the promotion and coordination of

integration measures for all legally resident immigrants

rests with the Ofﬁ ce of the Minister for Integration.

This Ofﬁ ce is also the responsible authority for the

management of the European Refugee Fund (ERF), and

is also a Public Beneﬁ ciary Body of the European Social

Fund (ESF). Speciﬁ c funding streams have been made

available by the Ofﬁ ce of the Minister for Integration to

sporting bodies and local authorities to further increase

the participation of migrants in all aspects of Irish life.

Box 4:

Ministerial Statement on Integration

Policy

In May 2008, the Minister for Integration launched

“Migration Nation – Statement on Integration

Strategy and Diversity Management”. This

document is a Ministerial statement on integration

policy in Ireland and sets out the key principles that

inform and underpin State policy. These include a

partnership approach between the Government

and other stakeholders, a strong link between

integration policy and social inclusion, a clear public

policy focus that avoids the creation of parallel

societies and adopts a mainstream approach to

service delivery, as well as effective local delivery

mechanisms that align services to migrants with

those of indigenous communities.

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Resettled Refugees

Following arrival, resettled refugees are accommodated

in the National Orientation and Training Centre (NOTC)

where they undertake a 12-week orientation training

programme provided by mainstream service providers

to prepare the refugees for independent living before

being transferred to a permanent resettlement location.

The Office of the Minister for Integration works in

partnership with local authorities and the Voluntary and

Community Sector to develop actions at a local level

to promote the integration of refugees admitted under

the resettlement programme. Local programmes are

coordinated by the local authority and are generally

implemented by the Community and Voluntary Sector.

Receiving communities receive training to ensure that

they are aware of any special needs of the group being

resettled. Services are provided using a mainstream

model, while taking account of the need for targeted

services in exceptional circumstances.

Extensive language training is provided for resettled

refugees for a period of up to one year following arrival.

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12 Annexe

12.1 Selections from the Refugee Act 1996

“Refugee”

2.—In this Act “a refugee” means a person who, owing to a well founded fear of being persecuted for reasons of

race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his

or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that

country; or who, not having a nationality and being outside the country of his or her former habitual residence, is

unable or, owing to such fear, is unwilling to return to it, but does not include a person who—

(a) is receiving from organs or agencies of the United Nations (other than the High Commissioner) protection or assistance,

(b) is recognised by the competent authorities of the country in which he or she has taken residence as having the

rights and obligations which are attached to the possession of the nationality of that country,

(i) has committed a crime against peace, a war crime, or a crime against humanity, as deﬁ ned in the international

instruments drawn up to make provision in respect of such crimes,

(ii) has committed a serious non-political crime outside the State prior to his or her arrival in the State, or

(iii) has been guilty of acts contrary to the purposes and principles of the United Nations.

(…)

Application for declaration

8.—(1) (a) A person who arrives at the frontiers of the State seeking asylum in the State or seeking the protection

of the State against persecution or requesting not to be returned or removed to a particular country or otherwise

indicating an unwillingness to leave the State for fear of persecution—

(i) shall be interviewed by an immigration ofﬁ cer as soon as practicable after such arrival, and

(ii) may apply to the Minister for a declaration.

(...)

Provisions relating to detained persons

10.—(1) The immigration ofﬁ cer or, as the case may be, the member of the Garda Síochána concerned shall, without

delay, inform a person detained pursuant to subsection (8) or (13)(a) of section 9 or cause him or her to be informed,

where possible in a language that the person understands—

(a) that he or she is being detained pursuant to section 9,

(b) that he or she shall, as soon as practicable, be brought before a court which shall determine whether or not he

or she should be committed to a place of detention or released pending consideration of that person’s application

for a declaration under section 8,

(d) that he or she is entitled to have notiﬁ cation of his or her detention, the place of detention concerned and every

change of such place sent to the High Commissioner and to another person reasonably named by him or her,

(e) that he or she is entitled to leave the State in accordance with the provisions of this paragraph at any time during

the period of his or her detention and if he or she indicates a desire to do so, he or she shall, as soon as practicable, be

brought before a court and the court may make such orders as may be necessary for his or her removal from the State, and

(f) that he or she is entitled to the assistance of an interpreter for the purpose of consultation with a solicitor pursuant

to paragraph (c) and for the purpose of any appearance before a court pursuant to section 9.

(2) The immigration ofﬁ cer or, as the case may be, the member of the Garda Síochána concerned shall also explain

to a person detained pursuant to subsection (8) or (13)(a) of section 9, where possible in a language that the person

17 Refugee Act 1996, as amended by section 11(1) of the Immigration Act 1999, section 9 of the Illegal Immigrants (Trafﬁ cking) Act 2000 and

Section 7 of the Immigration Act 2003, available on the Irish Immigration and Naturalisation Service website at:

http://acts.oireachtas.ie/zza17y1996.1.html.

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IRE

understands, that, if he or she does not wish to exercise a right speciﬁ ed in subsection (1) immediately, he or she

will not be precluded thereby from doing so later.

(3) The immigration ofﬁ cer or, as the case may be, the member of the Garda Síochána concerned shall notify the

Commissioner and the Tribunal of the detention or release of a person pursuant to the provisions of section 9.

(4) The Commissioner or, as the case may be, the Tribunal shall ensure that the application for a declaration of

a person detained pursuant to subsection (8) or (13)(a) of section 9 shall be dealt with as soon as may be and, if

necessary, before any other application for a declaration of a person not so detained.

(…)

Prioritisation of applications

12.—(1) Subject to the need for fairness and efﬁ ciency in dealing with applications for a declaration under this Act,

the Minister may, where he or she considers it necessary or expedient to do so, give a direction in writing to the

Commissioner or the Tribunal or to both requiring either or both of them, as the case may be, to accord priority to

certain classes of applications determined by reference to one or more of the following matters:

(a) the grounds of applications under section 8,

(b) the country of origin or habitual residence of applicants,

(d) the ages of applicants and, in particular, of persons under the age of 18 years in respect of whom applications

are made,

(e) the dates on which applications were made,

(f) considerations of national security or public policy,

(g) the likelihood that the applications are well-founded,

(h) if there are special circumstances regarding the welfare of applicants or the welfare of family members of

applicants,

(i) whether applications do not show on their face grounds for the contention that the applicant is a refugee,

(j) whether applicants have made false or misleading representations in relation to their applications,

(k) whether applicants had lodged prior applications for asylum in another country,

(l) whether applications under section 8 were made at the earliest opportunity after arrival in the State,

(m) whether applicants are nationals of or have a right of residence in a country of origin designated as safe under

this section,

(n) if an applicant is a person to whom paragraph (a), (b) or (c) of section 2 applies.

(2) The Commissioner or the Tribunal shall comply with a direction given to him, her or it under this section.

(3) The Minister may by a direction revoke or alter a direction given by him or her under subsection (1).

(4)(a) The Minister may, after consultation with the Minister for Foreign Affairs, by order designate a country as a

safe country of origin.

(b) In deciding whether to make an order under paragraph (a), the Minister shall have regard to the following matters:

(i) whether the country is a party to and generally complies with obligations under the Convention Against Torture, the

International Covenant on Civil and Political Rights, and, where appropriate, the European Convention on Human Rights,

(ii) whether the country has a democratic political system and an independent judiciary,

(iii) whether the country is governed by the rule of law.

(...)

Recommendations and Reports of Commissioner

13.—

(...)

(5) Where a report under subsection (1) includes a recommendation that the applicant should not be declared to

be a refugee and includes among the ﬁ ndings of the Commissioner any of the ﬁ ndings speciﬁ ed in subsection (6),

then the following shall, subject to subsection (8), apply:

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

(a) the notice under paragraph (b) of subsection (4) shall, notwithstanding that subsection, state that the applicant

may appeal to the Tribunal under section 16 against the recommendation within 10 working days from the sending

of the notice, and that any such appeal will be determined without an oral hearing;

(b) notwithstanding paragraph (c) of subsection (4), where the applicant has not appealed against the recommendation

within 10 working days after the sending of a notice under paragraph (b) of that subsection, the Commissioner shall,

as soon as may be, furnish the report under subsection (1) to the Minister.

(6) The ﬁ ndings referred to in subsection (5) are—

(a) that the application showed either no basis or a minimal basis for the contention that the applicant is a refugee;

(b) that the applicant made statements or provided information in support of the application of such a false,

contradictory, misleading or incomplete nature as to lead to the conclusion that the application is manifestly unfounded;

after arrival in the State;

(d) the applicant had lodged a prior application for asylum in another state party to the Geneva Convention (whether

or not that application had been determined, granted or rejected); or

(e) the applicant is a national of, or has a right of residence in, a safe country of origin for the time being so designated

by order under section 12(4).

(...)

(8) Where an application referred to in subsection (7) has been investigated under section 11 and the relevant report

under subsection

(1) includes a recommendation that the applicant should not be declared to be a refugee and contains among the

ﬁ ndings of the Commissioner any of the ﬁ ndings speciﬁ ed in subsection (6), then the following shall, subject to

subsection (9), apply:

(a) the notice under paragraph (b) of subsection (4) shall, notwithstanding that subsection, state that the applicant

may appeal to the Tribunal under section 16 against the recommendation within 4 working days from the sending

of the notice, and that any such appeal will be determined without an oral hearing,

(b) notwithstanding paragraph (c) of subsection (4), where the applicant has not appealed against the recommendation

within 4 working days after the sending of a notice under paragraph (b) of that subsection, the Commissioner shall,

as soon as may be, furnish the report under subsection (1) to the Minister.

(...)

Revocation of declaration

21.—(1) Subject to subsection (2), if the Minister is satisﬁ ed that a person to whom a declaration has been given—

(a) has voluntarily re-availed himself or herself of the protection of the country of his or her nationality,

(b) having lost his or her nationality, has voluntarily re-acquired it,

of his or her new nationality,

(d) has voluntarily re-established himself or herself in the country which he or she left or outside which he or she

remained owing to fear of persecution,

(e) can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have

ceased to exist, continue to refuse to avail himself or herself of the protection of the country of his or her nationality,

(f) being a person who has no nationality is, because the circumstances in connection with which he or she has been

recognised as a refugee have ceased to exist, able to return to the country of his or her former habitual residence,

(g) is a person whose presence in the State poses a threat to national security or public policy (“ordre public”), or

(h) is a person to whom a declaration has been given on the basis of information furnished to the Commissioner

or, as the case may be, the Tribunal which was false or misleading in a material particular, the Minister may, if he

or she considers it appropriate to do so, revoke the declaration.

(2) The Minister shall not revoke a declaration on the grounds speciﬁ ed in paragraph (e) or (f) where the Minister

is satisﬁ ed that the person concerned is able to invoke compelling reasons arising out of previous persecution for

refusing to avail himself or herself of the protection of his or her nationality or for refusing to return to the country

of his or her former habitual residence, as the case may be.

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(3)(a) Where the Minister proposes to revoke a declaration under subsection (1), he or she shall send a notice in

writing to the person concerned of his or her proposal and of the reasons for it and shall at the same time send a

copy thereof to the person’s solicitor (if known) and to the High Commissioner.

(b) A person who has been notiﬁ ed of a proposal under paragraph (a) may, within 15 working days of the issue of

the notiﬁ cation, make representations in writing to the

Minister and the Minister shall—

(i) before deciding the matter, take into consideration any representations duly made to him or her under

this paragraph in relation to the proposal, and

(ii) send a notice in writing to the person of his or her decision and of the reasons for it.

(4)(a) A notice under subsection (3)(a) shall include a statement that the person concerned may make representations

in writing to the Minister within 15 working days of the issue by the Minister of the notice.

(b) A notice under subsection (3) (b) (ii) shall include a statement that the person concerned may appeal to the High

Court under subsection (5) against the decision of the Minister to revoke a declaration under subsection (1) within

15 working days from the date of the notice.

(5) A person concerned may appeal to the High Court against a decision of the Minister under this section and

that Court may, as it thinks proper, on the hearing of the appeal, conﬁ rm the decision of the Minister or direct the

Minister to withdraw the revocation of the declaration.

(6) A person concerned shall not be required to leave the State before the expiry of 15 working days from the date

of notice of a proposal under subsection (3) and, if an appeal is brought against the decision of the Minister, before

the ﬁ nal determination or, as the case may be, the withdrawal of the appeal.

(7) The Minister may, at his or her discretion, grant permission in writing to a person in respect of whom a declaration

has been revoked under subsection (1) to remain in the State for such period and subject to such conditions as

the Minister may specify in writing.

12.2 Selection from the Immigration Act 2003

Liability carrier

2.—(1) Where a vehicle arrives in the State from a place other than Great Britain, Northern Ireland, the Channel Isles

or the Isle of Man the carrier concerned shall ensure—

(a) that all persons on board the vehicle seeking to land in the State or to pass through a port in the State in

order to travel to another state disembark in compliance with any directions given by immigration ofﬁ cers,

(b) that all persons on board the vehicle seeking to land in the State are presented to an immigration ofﬁ cer

for examination in respect of leave to land,

State in order to travel to another state has with him or her a valid passport or other equivalent document which

establishes his or her identity and nationality and, if required by law, a valid Irish transit visa or a valid Irish visa.

(2) A person who contravenes paragraph (a), (b) or (c) of subsection (1) shall be guilty of an offence and, where

a contravention by the person relates to more than one non-national, each such contravention shall constitute a

separate offence.

(3) Where a vehicle arrives in the State from a place outside the State the carrier concerned shall, if so requested

by an immigration ofﬁ cer, furnish him or her with—

(a) a list specifying the name and nationality of each person carried on board the vehicle in such form, and

containing such other information relating to the identity of the person, as may be prescribed,

(b) details of the members of the crew of the vehicle.

18 Immigration Act 2003 (as amended to date: ofﬁ cial restatement) available online at:

http://www.inis.gov.ie/en/INIS/Immmigration_Act_1999_amended.pdf/Files/Immmigration_Act_1999_amended.pdf.

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(4) A person who contravenes paragraph (a) or (b) of subsection (3) shall be guilty of an offence.

(5) It shall be a defence for a person charged with an offence under this section to show that he or she took all such

steps as were reasonably open to him or her to ensure compliance with the provision of this Act.

(6) It shall be a defence for a person charged with an offence under this section consisting of a contravention of

paragraph (c) of subsection (1) to show—

(a) that the non-national concerned had with him or her the relevant document before embarking on the

vehicle concerned, or

(b) that he or she did not know and had no reasonable grounds for suspecting that the document was invalid.

(7) A person guilty of an offence under this section shall be liable on summary conviction to a ﬁ ne of €3,000.

( 8) The Minister may from time to time draw up and publish guidelines concerning steps to be taken by carriers to

ensure compliance by them with this Act.

( 9) This section is without prejudice to the provisions of sections 8, 9 and 24 of the Refugee Act 1996 and to the discretion

of the Minister to admit to the State a person whom the Minister considers to be in need of the protection of the State.

12.3 Selections from the Immigration Act 1999

Deportation orders

3.—(1) Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996, and the subsequent

provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any

non-national speciﬁ ed in the order to leave the State within such period as may be speciﬁ ed in the order and to

remain thereafter out of the State.

( 2) An order under subsection (1) may be made in respect of—

(...)

(f) a person whose application for asylum has been refused by the Minister,

(...)

(4) A notiﬁ cation of a proposal of the Minister under subsection (3) shall include—

( a) a statement that the person concerned may make representations in writing to the Minister within 15 working

days of the sending to him or her of the notiﬁ cation,

( b) a statement that the person may leave the State before the Minister decides the matter and shall require the person to

so inform the Minister in writing and to furnish the Minister with information concerning his or her arrangements for leaving,

( c) a statement that the person may consent to the making of the deporation order within 15 working days of the

sending to him or her of the notiﬁ cation and that the Minister shall thereupon arrange for the removal of the person

from the State as soon as practicable, and

( d) any other information which the Minister considers appropriate in the circumstances.

(...)

Arrest, detention, and removal of non-nationals

5.— Where a person detained under this section institutes court proceedings challenging the validity of the

deportation order concerned, the court hearing those proceedings or any appeal therefrom may, on application

to it, determine whether the person shall continue to be detained or shall be released, and may make any such

release subject to such conditions as it considers appropriate, including, but without prejudice to the generality of

the foregoing, any one or more of the following conditions:

(...)

19 Immigration Act 1999, available online at: http://acts.oireachtas.ie/en.act.1999.0022.1.html.

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IRE

(6) (a) A person shall not be detained under this section for a period or periods exceeding 8 weeks in aggregate.

(...).

12.4 Selections from European Communities Regulations 2006

Exclusion from subsidiary protection

13. (1) A person is excluded from being eligible for subsidiary protection where there are serious reasons for

considering that he or she—

(a) has committed a crime against peace, a war crime, or a crime against humanity, as deﬁ ned in the international

instruments drawn up to make provision in respect of such crimes;

(b) has committed a serious crime;

and Articles 1 and 2 of the Charter of the United Nations; or

(d) constitutes a danger to the community or to the security of the State.

(2) Paragraph (1) applies also to persons who instigate or otherwise participate in the commission of the crimes or

acts mentioned therein.

(3) A person may be excluded from being eligible for subsidiary protection if he or she has, prior to his or her admission

to the State, committed one or more crimes, outside the scope of paragraph (1), which would be punishable by

imprisonment had they been committed in the State, and left his or her country of origin solely in order to avoid

sanctions resulting from these crimes.

Revocation of or refusal to renew subsidiary protection

14. (1) The Minister shall revoke or refuse to renew a permission granted to a person under Regulation 4 where—

subject to paragraph (2), the circumstances which led to the granting of the permission have ceased to exist or

have changed to such a degree that protection is no longer required;

(...)

(2) In determining whether paragraph (1)(a) applies, the Minister shall have regard to whether the change of

circumstances referred to in that provision is of such a signiﬁ cant and non-temporary nature that the person granted

subsidiary protection no longer faces a real risk of serious harm.

(...)

12.5 Processing Costs

The average annual cost of maintaining an asylum-seeker in Ireland is estimated at approximately 20,000€ per

annum. This ﬁ gure comprises the following costs: INIS services, Refugee Legal Services; asylum accommodation

costs; social welfare payments; GP (doctor) services and drugs; educational services; and costs associated with

dealing with asylum-seeker legal challenges.

This costing does not include expenditure in areas such as maternity services, medical screening, funding provided

under State sponsored programmes, or to NGO s dealing with asylum applicants. These costings are not currently

readily available. The cost of maintaining asylum-seekers who entered the State before direct provision (i.e., bed

and board for asylum-seekers in designated accommodation centres) was introduced will also be higher.

20 European Communities (Eligibility for Protection) Regulations 2006, available online at:

http://www.inis.gov.ie/en/INIS/AsylumQual.pdf/Files/AsylumQual.pdf.

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12.6 Additional Statistical Information

* First applications only

1,000

2,000

3,000

4,000

5,000

6,000

7,000

8,000

1997 2002 2008

Somalia

Algeria

Democratic Republic of the Congo

Ukraine

Zimbabwe

Moldova

Romania

China

Georgia

Iraq

Pakistan

Nigeria

Figure 5:

Asylum Applications* from Top Five Countries of Origin for 1997, 2002 and 2008

Convention Status

Humanitarian

Status and Other

Authorisations

to Remain

Rejections Other Decisions*

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1999

166 3% 0 0% 3,173 64% 1,623 33% 4,962

2000

211 3% 0 0% 4,783 74% 1,508 23% 6,502

2001

459 7% 0 0% 4,575 66% 1,930 28% 6,964

2002

894 11% 0 0% 5,965 71% 1,501 18% 8,360

2003

345 4% 0 0% 5,461 67% 2,386 29% 8,192

2004

430 6% 0 0% 4,906 71% 1,554 23% 6,890

2005

455 9% 0 0% 3,952 75% 835 16% 5,242

2006

397 9% 0 0% 3,249 77% 598 14% 4,244

2007

376 10% 0 0% 2,621 69% 811 21% 3,808

2008

295 7% 0 0% 2,942 70% 964 23% 4,201

*Other decisions ma

include withdrawn claims, abandoned claims or claims otherwise resolved.

Figure 6:

Decisions Made at the First Instance, 1999-2008

Netherlands

NET

235 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

236 - NATIONAL LEGAL FRAMEWORK

237 - INSTITUTIONAL FRAMEWORK

237 - PRE-ENTRY MEASURES

238 - ASYLUM PROCEDURES

244 - DECISION-MAKING AND STATUS

248 - E

FFICIENCY AND INTEGRITY MEASURES

249 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

250 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

250 - R

ETURN

251 - INTEGRATION

252 - ANNEXE

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NET

1 Background: Major Asylum

Trends and Developments

Asylum Applications

In the late 1980’s, the number of new asylum applications

began to increase signiﬁ cantly, reaching a peak of over

52,500 in 1994. Between 1995 and 2001, annual receipt

of applications ﬂ uctuated between 23,000 and 45,000.

Since 2000, the number of applications has decreased

signiﬁ cantly, reaching a level of 13,000 in 2008.

Top Nationalities

In the 1990’s, the majority of asylum-seekers originated

from the former Yugoslavia, Bosnia Herzegovina,

Somalia, Iraq, Iran and, beginning in 1995, Afghanistan.

In the period between 2000 and 2003 Angola,

Afghanistan and Sierra Leone were the top three

countries of origin. Since 2003, the majority of asylum-

seekers are arriving from Iraq, Somalia and Afghanistan.

Figure 2:

Top Five Countries of Origin in 2008*

1 Iraq 5,027

2 Somalia 3,842

3 China

557

4 Afghanistan

395

5 Iran

322

* First applications only

Important Reforms

Prior to the creation of the Immigration and Naturalisation

Service (IND) in 1994, the processing of asylum

applications fell under the responsibility of the Ministry of

Justice. The same year the principles of safe country of

origin and safe third country were included in the Aliens

Act, along with other grounds upon which an application

could be declared inadmissible or manifestly unfounded.

At the time, persons seeking protection needed to ﬁ le

separate applications for Convention refugee status and

a residence permit based on humanitarian grounds.

Twice since the beginning of the 1990’s, the legal

framework for asylum procedures in the Netherlands

has undergone signiﬁ cant reforms, with amendments to

the Aliens Act taking effect in 1994 and 2001. Measures

taken during that period were aimed at streamlining

asylum procedures and reducing processing times. Part

of the streamlining effort included the introduction of

a single procedure whereby asylum-seekers needed

to make only one application for Convention refugee

status or a residence permit based on humanitarian

grounds. As well, during this time dedicated application

centres were created.

Since 2005, major reforms have been introduced. Under

these reforms, a residence permit may be granted using

the accelerated procedure. Also, application centres

are closed during evening hours and on weekends

(except for the application centre at Schiphol airport),

and a third application centre (in Zevenaar) has been

(re)introduced.

* Beginning in 2007, data refers to first applications only

2,000

13,456

20,343

52,576

22,858

45,217

39,301

14,465

13,399

10,000

20,000

30,000

40,000

50,000

60,000

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Figure 1:

Evolution of Asylum Applications in the Netherlands, 1983-2008*

236

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

Admission to the Netherlands and the granting

of asylum are regulated by the Aliens Act 2000

(Vreemdelingenwet), which entered into force on 1

April 2001.

Council Directives relating to temporary protection

(2001/55/EC)

and reception conditions (2003/9/EC)

were transposed into Dutch law in 2005 while the

Directives on qualiﬁ cation (2004/83/EC)

and asylum

procedures (2005/85/EC)

gained force of law in the

Netherlands in 2008 and 2007, respectively.

The European Convention on Human Rights (ECHR)

and the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (CAT)

are given effect in Dutch law.

1 Council Directive 2001/55/EC of 20 July 2001 on minimum

standards for giving temporary protection in the event of a mass

inﬂ ux of displaced persons and on measures promoting a balance

of efforts between Member States in receiving such persons

and bearing the consequences thereof (Temporary Protection

Directive).

2 Council Directive 2003/9/EC of 27 January 2003 laying down

minimum standards for the reception of asylum-seekers

(Reception Directive).

3 Council Directive 2004/83/EC of 29 April 2004 on minimum

standards for the qualiﬁ cation and status of third country nationals

or stateless persons as refugees or as persons who otherwise

need international protection and the content of the protection

granted (Qualiﬁ cation Directive).

4 Council Directive 2005/85/EC of 1 December 2005 on minimum

standards on procedures in Member States for granting and

withdrawing refugee status (Asylum Procedures Directive).

2.2 Recent/Pending Reforms

In an agreement reached between the State Secretary

of Justice and the Netherlands Association of

Municipalities (Vereniging van Nederlandse Gemeenten,

VNG) in May 2007, a regulation came into force to

regularise the situation of persons who had lodged

asylum applications under the previous Aliens Act and

who had not received residence permits. Under the

so-called “amnesty regulation,” persons who met the

following criteria were eligible for permanent residence

permits:

• They had made an asylum application under

the pr

evious Aliens Act (prior to 1 April 2001) or

had reported themselves before that date for an

asylum application

• They had resided in the Netherlands continuously

since 1 April 2001, and

• They had chosen to withdraw their application

om pending asylum procedures.

The regularisation schedule has been terminated as of

1 January 2009.

Pending Reforms

Further changes to asylum procedures are expected

to take effect beginning in July 2010. The Ministry of

Justice is planning the following changes with the aim

of increasing both the efﬁ ciency and the integrity of

procedures:

• The accelerated asylum procedure will be

extended fr

om 48 working hours (the equivalent

* First applications only

2,000

4,000

6,000

8,000

10,000

12,000

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Iraq Somalia China

Figure 3:

Evolution of Applications from Top Three Countries of Origin for 2008*

237

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

NET

of three to six working days) to eight working

days

• The extended (normal) procedure will be

shortened by eight weeks

• The courts will have more possibilities to

consider new cir

cumstances and policy changes

at the appeal stage

• Once the departure period has ended, rejected

asylum-seekers will r

eceive additional support

with their return at a location where their freedom

of movement is restricted for a maximum period

of twelve weeks

• Financial assistance will be provided to rejected

asylum-seekers to encourage their r

eintegration

in the country of origin.

3 Institutional Framework

3.1 Principal Institutions

The Immigration and Naturalisation Service (Immigratie-

en Naturalisatiedienst, IND), an autonomous agency

under the political responsibility of the Minister

of Justice, is responsible for processing asylum

applications and implementing the Aliens Act.

The Central Agency for the Reception of Asylum

Seekers (Centraal Orgaan opvang asielzoekers, COA),

an independent administrative body funded by the

Ministry of Justice, provides reception facilities to

asylum-seekers.

The Repatriation and Departure Service (Dienst

Terugkeer en Vertrek, DT&V) supervises the return of

rejected asylum-seekers to their country of origin.

3.2 Cooperation between

Government Authorities

Throughout the asylum procedure, the IND collaborates

with a number of other partner agencies and

organisations, as follows:

• The Royal Marechaussee (KMar), which is

esponsible for border control activities and

examines the validity of travel documents

• The Aliens Police, which is in charge of

egistration of personal data and checks of

places of residence

• The Legal Aid Foundation (Raden voor

Rechtsbijstand, RvR), which pr

ovides legal

assistance to the asylum-seeker

• The Ministry of Foreign Affairs, which provides

information on conditions in countries of origin

for use by asylum decision-makers and policy-

makers

• The Dutch Council for Refugees

(VluchtelingenW

erk Nederland, VWN), an NGO

that provides assistance to asylum-seekers

during the procedure.

4 Pre-entry Measures

To enter the Netherlands, foreign nationals must meet

the following requirements:

• Be in possession of valid travel documents or

documents authorising entry

• Be in possession of a valid visa pursuant to

Regulation 539/2001/EC, Annex I, or a valid

residence permit, issued by a State Party to the

Schengen Agreement

• Justify the purpose and conditions for their

intended stay and show sufﬁ

cient means of

subsistence for the duration of the stay

• Not be included in the Schengen Information

System alert system for the purposes of being

efused entry, and

• Not be a threat to public safety, internal security,

public health or inter

national relations of a

Member State of the European Union.

A person who does not fulﬁ l these conditions is refused

entry into the Netherlands unless it is considered

necessary to derogate from that principle on

humanitarian grounds, on grounds of national interest,

or because of international obligations.

4.1 Visa Requirements

Holders of a Schengen visa are allowed to enter the

Netherlands. The visa is valid for travel throughout the

Schengen area for a maximum period of three months

within a six-month timeframe.

The Netherlands provides for exceptions to the

requirement for a Schengen visa in certain cases,

such as for holders of diplomatic passports, within the

Benelux framework. Persons who are subject to the

visa requirement may apply for a visa at a diplomatic

mission of the Ministry of Foreign Affairs.

5 When in exceptional cases a visa is issued at the border (pursuant

to Council Regulation EC 415/2003) by a border guard, the visa is

also issued on behalf of the Minister of Foreign Affairs.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

4.2 Carrier Sanctions

Sanctions may be imposed on carriers transporting

into the Netherlands foreign nationals who are not in

possession of valid travel documents. Carriers may

be charged with costs related to the removal of the

foreign national from, or their stay in, the Netherlands.

Fines may also be imposed when carriers do not act

according to other legal obligations, such as making

copies of travel documents if so required or taking back

a foreign national on a ﬂ ight.

4.3 Interception

The Netherlands undertakes a variety of interception

activities, in accordance with the Schengen Borders

Code and the Dutch policy of identifying unauthorised

movements of persons and goods before they reach

Dutch borders.

Border controls are carried out at border

crossing points in the Netherlands to determine whether

persons, vehicles and the goods they are carrying may

enter or leave the Netherlands. Border patrols also take

place away from the border crossing points in order to

prevent persons from evading border checks.

Border control activities are carried out by various

agencies, as follows:

• At the Coast Guard Centre in Den Helder, the

Coast Guar

d gathers information from the

various services with regard to enforcement in

the North Sea and border surveillance

• The Royal Marechaussee (KMar) carries out

bor

der control activities at the airports, seaports,

and land border crossings and undertakes

internal surveillance within the Netherlands

• The Seaport Police (Zeehavenpolitie, ZHP) of

the r

egional Rotterdam-Rijnmond police force

supervise adherence to and carrying out of

the legal provisions regarding border control in

this region. ZHP ofﬁ cers patrol (mobile) border

crossing points at the port of Rotterdam,

including designated mooring sites (at sea),

and carry out other border control activities in

coastal and internal waters within this area

• The Customs authority carries out border

contr

ol at all border crossings and along the

maritime coastline by gathering a variety of data,

including pre-arrival information and biometric

6 This policy ﬁ ts in with the European obligations on the forwarding of

details on goods consignments and passengers to the responsible

authorities in good time before crossing European borders. This

method of checking persons also ﬁ ts in with the already existing

position in the Netherlands that the term “border” is understood to

mean a series of theoretical, successive concentric circles around

the Netherlands.

7 The Royal Marechaussee does not, however, carry out border

control at Rotterdam. This is done by the Seaport Police.

data. This practice is aimed at the heightened

inﬂ ux of (single minor) foreign nationals who may

fall victim to human trafﬁ cking and is intended

to prevent human trafﬁ cking.

4.4 Immigration Liaison Ofﬁ cers

The Netherlands has Immigration Liaison Officers

(ILOs) stationed around the world

to provide advice

to carriers and local authorities as to whether or not

to take passengers. ILOs also act as advisors to visa

departments at Dutch missions abroad in the case

of dubious applications. They provide training, upon

request of local border authorities or carrier staff, on

documentation and Schengen-related legislation and

regulations. They also exchange information with liaison

ofﬁ cers from other countries.

In addition to their advisory and trainer role, ILOs

collect information on travel routes, illegal immigration

and people trafﬁ cking trends, and help to develop risk

proﬁ les. ILOs investigate the possibilities of repatriation

to the country of origin and transit countries using their

network, by monitoring the involvement of particular

organisations, investigating the repatriation policies

of other Western nations and identifying reception

facilities.

Liaison ofﬁ cers of the Royal Marechaussee seconded

abroad are deployed mainly for the purpose of achieving

a better position regarding migration-related crime. The

Royal Marechaussee liaison ofﬁ cers report, analyse and

advise on developments in (illegal) migration to and

via the Netherlands and map out the illegal migration

patterns and their relation to terrorism.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

Persons may apply for asylum at Schiphol airport

in Amsterdam and in-country at Immigration and

Nationality Service (IND) application centres. There are

three IND application centres: one at Schiphol Airport

(for people who are refused admission at the border

and for unaccompanied minors), one in Ter Apel and

one in Zevenaar. Applications for asylum may also be

made by persons in detention.

8 ILOs are posted in the following cities: Accra, Amman, Bangkok,

Dubai, Guangzhou, Istanbul, Moscow, Nairobi, Beijing, Pretoria

and Yaoundé.

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Information on the asylum procedure is provided in

the form of a brochure issued by the IND and may be

provided orally to asylum-seekers by the IND during the

asylum interviews. The non-governmental organisation,

the Dutch Council for Refugees, is also available to

asylum-seekers for the provision of information on the

procedure.

5.1.1. Outside the Country

Applications at Diplomatic Missions

It is not possible to lodge a formal application for

asylum from outside the Netherlands. Since 11

September 2003, it is also no longer possible to submit

an application for provisional sojourn (Machtiging tot

voorlopig verblijf, MVV) at diplomatic missions in the

country of origin or in a third country, for the purpose

of making an asylum claim in the Netherlands.

Any Dutch diplomatic mission, however, can still offer

protection on a temporary basis to a person who,

according to the Dutch diplomatic authorities, is facing

an acute emergency (diplomatic asylum). In exceptional

cases, when the protection offered will not be sufﬁ cient,

the Minister of Foreign Affairs can make a proposal to

the Minister of Justice to allow the foreign national to

come to the Netherlands.

Resettlement/Quota Refugees

The Netherlands has in place a resettlement programme

that currently accepts 2,000 refugees over a four-year

period. Refugees are selected during a maximum of

four selection missions each year, as well as on the

basis of dossiers prepared by the United Nations

High Commissioner for Refugees (UNHCR). Selection

missions are usually carried out by the IND, the

Central Agency for the Reception of Asylum-seekers

and Refugees (COA) of the Ministry of Justice, and a

representative from the Ministry of Foreign Affairs (MFA).

The IND organises interviews with the refugees and

makes a ﬁ nal decision on selection, with the input of

the MFA. The Netherlands places particular importance

on the strategic use of resettlement. Together with other

European resettlement countries, the Netherlands

promotes resettlement in order to increase the number

of resettlement places offered within the EU.

5.1.2. At Ports of Entry

A person who does not fulﬁ l the conditions to enter the

Netherlands will be refused entry into the territory. If this

person states that he or she wants to apply for asylum,

he or she will be brought to the Application Centre at

Schiphol Airport (AC Schiphol). In order to prevent the

person from entering the Netherlands, he or she must

stay in a room or a place secured against unauthorised

departure. The procedure at AC Schiphol is the same

as in the other application centres.

5.1.3. Inside the Territory

Responsibility for Processing the Claim

The Dublin System

Application and Procedure

After an interview with the asylum-seeker, during

which the asylum-seeker may give reasons why he

or she thinks the Netherlands should process his or

her application, the IND assesses which country is

responsible for this application. If the IND is of the

opinion that another country is responsible, a referral

(application processing) or return request is made to the

other country. The asylum-seeker receives an intended

decision for refusal. Together with his or she legal

representative, the asylum-seeker can respond to the

intended decision. Thereafter, the IND decides whether

or not it will change the intended decision. The asylum-

seeker can appeal the decision of the IND to a judge.

Freedom of Movement/Detention

Dutch authorities are entitled to detain a foreign

national, if necessary in the interests of public order

or national security, in order to implement removal.

Asylum-seekers who are subject to a decision of

transfer under Council Regulation (EC) No 343/2003

are usually detained prior to the transfer. The order

imposing the detention measure or the continuation of

detention is submitted to a periodic judicial review by

the District Court. If the court holds that too little has

been done to have the foreign national transferred, or

that the foreign national has been kept in detention for

too long, he or she will be released. These assessments

are made on a case-by-case basis.

Conduct of Transfers

If the country agrees with the referral or return request

of the IND, the asylum-seeker is transferred within six

months.

Suspension of Dublin Transfers

Dublin transfers might be suspended for some time for

medical reasons or due to a pending procedure at the

higher or lower court.

9 The procedure at application centres is described below.

10 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing

the criteria and mechanisms for determining the Member State

responsible for examining an asylum application lodged in one of the

Member States by a third-country national (Dublin II Regulation).

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Review/Appeal

The asylum-seeker may appeal the decision of the IND

before the District Court.The court must decide whether

the IND’s decision was correct or incorrect. Upon the

judgment, the unsuccessful party may lodge a further

appeal to the Council of State. The latter will verify

whether or not the formalities in the proceedings have

been correctly observed, and whether the court has

correctly applied the law.

Application and Admissibility

Making an Asylum Application

All asylum applications are lodged in an Application

Centre and examined by the Immigration and

Naturalisation Service (IND). The asylum-seeker’s

identity and personal details are established during

an initial interview. He or she is also ﬁ ngerprinted and

photographed.

There are two types of procedures in place for examining

an asylum claim: the 48-hour (accelerated) procedure

at the application centre, and the extended procedure.

Regardless of the type of procedure being applied, all

asylum claims are subject to an initial interview and

a detailed interview. The main difference between the

procedure at the application centre and the extended

procedure relates to the timeframes for arriving at a

decision.

Procedures

Procedure at the Application Centre

Legally speaking, there is no accelerated procedure.

The IND adheres to a policy of coming to a decision

on an asylum claim within 48 processing hours if

this decision can be made following a meticulous

examination of the application. In practice, this is an

accelerated procedure during which full consideration

is given to the obligations of the Netherlands under the

1951 Convention relating to the Status of Refugees

(1951 Convention) and other legal instruments.

After an initial interview is conducted with the asylum-

seeker to establish identity, nationality and travel route,

the IND may decide that a decision may be made within

48 processing hours or the equivalent of three to six

working days. Thus, the entire procedure, including the

detailed interview, takes place at the application centre.

The timeframes under the accelerated procedure are

as follows:

• The asylum-seeker is allowed two hours to

consult with the legal r

epresentative for the

purpose of preparing the detailed interview

(under the extended procedure, six days are

provided for consultation and preparation)

• The asylum-seeker is allowed three hours to

espond to both the interview report and to the

intended decision (under the extended procedure,

the asylum-seeker has two days to respond and

four weeks to react to the intended decision).

Detailed Interview

A more extensive interview is conducted with the

assistance of an interpreter (if necessary) and in the

presence of the legal representative. The detailed

interview focuses on the reasons for departure from

the country of origin and, if necessary, on the outcome

of the investigations into the identity, nationality and

travel route of the asylum-seeker.

Following the detailed interview, the IND determines

whether the application requires further examination.

If it does, the application is forwarded to a processing

ofﬁ ce of the IND and enters the extended procedure. If

the application does not require further examination and

a decision can be reached within 48 processing hours,

the IND issues a written report of the interview to the

asylum-seeker and the legal representative. The report

is sent along with the Intended Decision. The asylum-

seeker then has three hours to submit corrections and

additions and his or her view on the Intended Decision.

The IND may, after receiving the response of the asylum-

seeker to the Intended Decision, decide to forward the

application to the extended procedure.

Pending Reforms

The Netherlands plans to introduce reforms to the asylum

procedure at application centres. According to these

reforms, there will be a general procedure that may last a

maximum of eight working days, with certain exceptions.

Before the procedure begins, the asylum-seeker will

have a rest and preparation time of six days. During

this period, the asylum-seeker may consult with

the Dutch Council for Refugees and his or her legal

representative on the preparations for the procedure.

The IND, meanwhile, will work on identity issues, by

examining documents, and will determine the existence

of any medical problems.

The eight working days of the general procedure are

set out as follows:

• Day 1: Initial interview

• Day 2: Preparation for detailed interview

• Day 3: Detailed interview

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• Day 4: Corrections and additions to detailed

interview

• Day 5: Intended Decision

• Day 6: View of the asylum-seeker on the

intended decision

• Day 7: Drafting of decision

• Day 8: Issuing of decision.

This new pr

ocedure would provide more time to the

asylum-seeker and his or her legal representative than

is currently available for preparation: in all, three of the

eight days will be set aside for their use.

In contrast to the current situation, in all cases under the

new general asylum procedure, the detailed interview

relating to the reasons for asylum will be conducted.

Some exceptions apply to this general rule, such as cases

in which doing so is not possible or desirable for medical

reasons, or in cases concerning an unaccompanied

minor foreign national who is younger than 12 years old.

The corrections and additions to the report of the detailed

interview shall be handled at the application centre in all

cases within the general procedure as well. This means

that all stages of the process that are necessary to make

a decision with regard to the application for asylum can

be completed within eight days after which it can be

determined whether a thorough decision can be made

within eight days.

In contrast to the current procedure, not only the asylum-

seeker’s time but also that of the IND will be regulated.

This means that if the IND exceeds the deadlines (as far

as possible after submitting corrections and additions

in the general asylum procedure), the asylum-seeker

will be sent on to the reception centre, and the decision

with regard to the application for asylum will be taken

in the extended asylum procedure.

In the proposed procedure, the IND can decide to

proceed to the extended procedure after receiving the

corrections and additions to the detailed interview and

after receiving the view of the person in question on the

Intended Decision.

In the extended procedure, it will still be possible to

hold an additional interview as part of the extended

asylum procedure if necessary, to introduce additions

and corrections or to produce further documents to

support the asylum-seeker’s account.

Extended Procedure at a Processing Ofﬁ ce

The IND may decide to forward an asylum application to

the extended procedure after the initial interview or the

detailed interview or following receipt and consideration

of the asylum-seeker’s view on the Intended Decision

made at the application centre. A decision to apply the

extended procedure is usually made if the IND believes

further examination of the claim is required.

If the extended procedure is applicable, the asylum

claim is forwarded to a processing ofﬁ ce of the IND, and

the asylum-seeker is moved from the application centre

and accommodated at a reception centre. Asylum-

seekers whose applications are being examined in

the extended procedure at Schiphol continue to be

accommodated at the detention centre near Schiphol.

If a detailed interview has not yet been conducted,

this will take place at the processing ofﬁ ce. A further

detailed interview may also be conducted if necessary.

The asylum-seeker then has four weeks to submit his

or her corrections and additions to the interview report.

Then the Intended Decision is made. The asylum-

seeker has an additional four weeks to submit his or her

view on the Intended Decision. These last four weeks

are reduced to two weeks if the asylum-seeker is in a

detention centre.

The pending reform to the procedure at application

centres will result in there being only one detailed

interview, which will be conducted at the application

centre. The asylum-seeker will have one day to submit

his or her corrections and additions to the interview

report. Then, after the Intended Decision is made, the

asylum-seeker has an additional day to present his or

her view.

Review/Appeal of Asylum Decisions

The competent authority for appeal is the District Court

(Rechtbank) and for further appeal, the Council of State

(Raad van State).

Appeals may be made against decisions of the IND

following either the accelerated procedure at the

application centre or the extended procedure. Following

the accelerated procedure, appeals may be made within

24 hours of the decision, while under the extended

procedure appeals may be made within four weeks of

the decision.

Appeals in the extended procedure have suspensive

effect, while appeals under the accelerated procedure

do not. However, the asylum-seeker can ask the Court

for a provisional ruling.

Both the person and the State Secretary can lodge

a higher appeal to the Council of State against the

verdict of the Court. The higher appeal does not have

suspensive effect.

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Freedom of Movement during the

Asylum Procedure

Detention

Procedure at Schiphol Airport

Asylum-seekers who are refused entry to the

Netherlands are transferred to a closed application

centre at Schiphol airport. If the application is rejected,

the asylum-seeker remains in (border) detention. The

(border) detention of families with children can last a

maximum of four weeks after the ﬁ nal rejection of the

asylum application (including the appeal before the

Administration Court).

In-Country Procedure

There is no restriction on freedom of movement during

the asylum procedure at the application centre or the

processing ofﬁ ce. Detention occurs if it is expected

that the application will be rejected and public order

or national security is at risk. In that case, the asylum-

seeker is placed in a detention centre.

Procedure in Detention

Foreign nationals may also make an application for

asylum while they are already in detention. In that

case, detention of an asylum-seeker who is allowed

to await the outcome of an asylum application in the

Netherlands cannot last longer than six weeks. The

detention of families with children who apply for asylum

can last for a maximum of two weeks.

Appeal

Decisions to detain may be appealed before the

Administrative Court. The IND has to inform the

Administrative Court of the detention measure within 28

days, unless the decision to detain has been appealed

by the foreign national.

Reporting

Asylum-seekers are required to report weekly to the

Aliens Police during the asylum procedure, by means

of a ﬁ ngerprint recognition system. If they do not report

for two consecutive weeks without having a good

reason, the asylum procedure is ended, along with any

reception beneﬁ ts.

During the procedure in the application centre, the

asylum-seeker is given an instruction based on Article

55 of the Aliens Act to stay at the application centre

from 7:30 a.m. till 10 p.m. After 10 p.m. he or she may

leave the centre, but he or she has to report back at

7:30 a.m. the following morning. He or she also has

the option of spending the night at the application

centre, in which case he or she has to keep to the

centre’s house rules. In case the IND or the Legal Aid

Foundation (RvR) decides that his or her presence is

no longer required that day for the assessment of his

or her asylum application, he or she is also allowed to

leave the application centre during the daytime.

Repeat/Subsequent Applications

Asylum-seekers who have received a negative decision

on their original claim may make a subsequent

application. An appointment must first be made by

Box 1:

Dutch Case Law: Freedom of Movement during the Procedure

In October 2002, the Civil Court in The Hague published its judgment in a case brought forward by the Association of

Asylum Lawyers in the Netherlands (Vereniging Asieladvocaten en juristen Nederland, VAJN) and the Dutch Lawyers’

Committee for Human Rights (Nederlands Juristen Comité voor de Mensenrechten, NJCM) against the Dutch State.

The VAJN and NJCM argued that the policy of limiting the movement of asylum-seekers to the application centre

for the duration of the asylum procedure amounted to unlawful detention, in violation of Article 5, paragraph 1,

of the ECHR.

The Court ruled that an asylum-seeker who is accommodated at an application centre during the procedure is in

fact the subject of detention in the sense of Article 5, paragraph 1, of the ECHR. At the time, asylum-seekers had

a limited amount of freedom of movement during their stay at application centres inside the Netherlands. If an

asylum-seeker left the application centre, the procedure was terminated and the application was rejected. There

is no legal basis for limiting asylum-seekers’ movement to in-country application centres under Article 55 of the

Dutch Aliens Act 2000, whereas the legal basis for limiting asylum-seekers’ movement within the application centre

at Schiphol Airport is contained in the Aliens Act 2000.

Because of this ruling the then Minister of Aliens Affairs and Integration changed the regime in the application

centres. On the basis of Article 55 of the Aliens Act 2000, asylum-seekers are now entitled to leave the application

centre under speciﬁ c conditions, as described below.

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telephone for the asylum-seeker to deposit his or her

subsequent application at an IND application centre. The

alien is required to submit all new documents, translated

into Dutch, which will be entered in the application.

The procedure that applies to subsequent applications

is the same 48-hour procedure that normally unfolds at

the application centre. However, only new evidence or

information will be considered in the examination of a

subsequent claim.

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

The concept of safe country of origin is laid down in

the Aliens Act 2000. While the Netherlands does not

maintain a list of safe countries, the State Secretary of

Justice is responsible for determining which countries

may be considered safe on the basis of a set of criteria,

namely the ratiﬁ cation of the following instruments:

• The 1951 Convention, and

• The ECHR, and/or

• The Convention against Torture (CAT).

If the alien originates fr

om a country of origin considered

to be safe and cannot demonstrate that this country does

not comply with the obligations of these instruments, it

is presumed that the alien will not be persecuted or run

a real risk of being subjected to treatment described

in Article 3 of the ECHR. The burden of proof rests

with the asylum-seeker. However, if there is common

knowledge that a country does not comply with the

obligations of the aforementioned conventions, it will

not be presumed to be a safe country of origin.

Asylum Claims Made by Citizens of an EU

Member State

The Netherlands considers itself party to the Protocol

annexed to the Treaty of Amsterdam and enforces the

provisions of the Protocol. European Union (EU) Member

States are considered safe countries of origin.

5.2.2. First Country of Asylum

The Netherlands does not have a policy of ﬁ rst country

of asylum, but instead has a policy of country of former

residence. This principle is laid down in the Aliens Act 2000.

An asylum application can be rejected on the basis of

the country of former residence principle if the asylum-

seeker meets the following criteria:

• The asylum-seeker has not travelled to the

Netherlands directly from his or her country of

origin and, before coming to the Netherlands,

received sufﬁ cient protection against refoulement

• The asylum-seeker has resided, or could have

resided, in that country in conditions that are

not uncommon in that country, and

• It is clear that this country will readmit the person

until he or she has found enduring pr

otection

elsewhere.

5.2.3. Safe Third Country

The concept of safe third countries is laid down in the

Aliens Act 2000. Similar to the principle of safe countries

of origin, the Netherlands does not maintain a list of safe

third countries. Instead, the State Secretary of Justice

is responsible for determining which countries may be

considered safe on the basis of a set of criteria, namely,

the ratiﬁ cation of the following instruments:

• The 1951 Convention, and

• The ECHR, and/or

• The Convention against Torture (CAT).

If the alien has r

esided in a safe third country and

cannot demonstrate that this country does not comply

with the obligations laid down in these instruments, it

is presumed that the alien will not be persecuted or run

a real risk of being subjected to treatment described

in Article 3 of the ECHR. The burden of proof rests

with the asylum-seeker. However, if there is common

knowledge that a country does not comply with the

obligations from the aforementioned conventions, it will

not be presumed a safe third country.

The concept of safe third country is applicable only

if the asylum-seeker has resided in the third country

and not merely travelled through it. As a guideline, it is

presumed the person has resided in a country if he or

she has stayed there for two weeks or longer, unless

it is clear from facts and circumstances that he or she

had intended to travel to the Netherlands. If the person

stayed for less than two weeks in the third country, it is

presumed that he or she had the intention of travelling

to the Netherlands, unless facts and circumstances

make clear that there was no such intention.

5.3 Special Procedures

5.3.1. Unaccompanied Minors

Procedures

When an unaccompanied minor (UAM) applies for asylum

in the Netherlands, the authorities will ﬁ rst assess whether

he or she qualiﬁ es for a residence permit according to

the normal (in-country) asylum procedure. UAMs are

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

interviewed by specially trained staff and are assigned a

guardian, who will assist them throughout the procedure.

If the UAM does not meet the criteria for obtaining

international protection in the Netherlands, the authorities

will determine whether it is possible to return the child

to familiar surroundings, i.e., to his or her parents and

family or to a reception centre in the country of origin. If

return to the country of origin is not possible, then the

IND may issue a residence permit for a year, which can

be extended twice, each time for a period of one year.

As soon as the child turns 18 or no longer satisﬁ es all

conditions, the UAM residence permit ends and will not

be extended further.

An asylum-seeker who has not reached the age of 18 after

three years with a UAM permit may, in principle, remain in

the Netherlands, if there is no adequate reception found

in the country of origin. When a child turns 18 and has

at that point been in the Netherlands for less than three

years on a residence permit, he or she must return to the

country of origin. Only in exceptional cases will the minor

be issued a permit for continued residence.

Age Assessment

If a UAM has no documents proving his or her age,

an age test may be necessary. X-rays are taken of the

collarbone and the joint between the hand and the wrist.

The X-rays are assessed by independent radiologists.

Results of the age test may be as follows:

• The age given by the minor is plausible

• The person is a minor, but the result of the

examination of the joint between the hand and

the wrist shows the examined person is older than

he or she has declared himself or herself to be

• It appears from the exam that the collarbone is

fully gr

own and the person is of age (that is, 18

years old or older).

Figure 4:

Total Applications Made by Unaccompanied

Minors, 2000-2008

594

515

410

433

726

5,000

4,000

3,000

2,000

1,000

6,000

6,705

5,951

3,232

1,216

7,000

8,000

2000

2001

2002

2003

2004

2005

2006

2007

2008

5.3.2. Temporary Protection

The Aliens Act stipulates that a temporary residence

permit for asylum can be granted to a foreign national

for whom, in the opinion of the State Secretary of

Justice, return to the country of origin would pose a

particular hardship as a result of the overall situation in

that country. Grounds for granting asylum under Article

29 of the Aliens Act 2000 must be met.

Unlike the granting of protection under the asylum

procedure, however, the decision to grant temporary

protection is made according to whether the person

belongs to a category or group of persons to whom the

policy of temporary protection is being applied.

In determining whether a group of persons may be

designated as being in need of temporary protection, the

following aspects of the country situation are examined:

• The nature of the violence in the country of

origin, in particular the seriousness of the

violations of human rights and the law of war,

the extent of the arbitrariness of the violations,

the extent of the violence and the geographical

spread of the violence

• The activities of international organisations, as

far as they ar

e a measure of the position of the

international community with respect to the

situation in the country

• The policy in other countries of the European

Community with r

egard to the country.

5.3.3. Stateless Persons

The same asylum procedures and policies are

applicable to all asylum-seekers, including those who

are stateless. In the case of a stateless person making

an asylum claim, the IND will usually examine the claim

against conditions in the country of former habitual

residence. In determining the country of former habitual

residence, the IND will assess the length and nature of

the person’s stay in that country and the ties he or she

has to the country. One determining factor is whether

the person has had close ties (work, residence and

family) in the country.

6 Decision-Making and

Status

6.1 Inclusion Criteria

There is a single procedure in place for the examination

of asylum claims. The IND ﬁ rst determines whether

the asylum-seeker is a Convention refugee and if not,

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whether other protection-related grounds exist for

granting a permit. A single residence permit for asylum

is granted on the basis of Convention refugee and other

protection grounds.

6.1.1. Convention Refugee

Article 29, section 1 of the Aliens Act provides that

a person will be granted Convention refugee status

if he or she meets the criteria outlined in the 1951

Convention (and the 1967 New York Protocol).

6.1.2. Complementary Forms of

Protection

Article 29, section 1 of the Aliens act also provides the

grounds for granting a residence permit to persons who

do not meet the criteria for Convention refugee status

but who are in need of protection. These grounds are

as follows:

• The person faces a real risk of being subjected

to tortur

e or to inhuman or degrading treatment

or punishment

• There are compelling grounds of a humanitarian

natur

e connected to the reasons for the person’s

ﬂ ight from the country of origin that make return

unreasonable

• Return to the country of origin would, in the

opinion of the Minister of Justice, constitute an

exceptional hardship for the person in connection

with the overall situation there (this ground must

be met in the case of temporary protection)

• The person is the spouse or minor child of a

Convention r

efugee or a person who meets one

of the three grounds described above, has the

same nationality as the spouse or parent, and

has entered the Netherlands either at the same

time as the person or within three months of the

date on which the spouse or parent was granted

a residence permit

• The person is a dependant (partner or adult

child) of the holder of a r

esidence permit for

asylum, is considered a member of that person’s

family, has the same nationality as the permit

holder and has entered the Netherlands at the

same time as the person or within three months

of the date on which the partner or parent was

granted a residence permit.

Humanitarian Grounds

As noted above, there may be compelling grounds of a

humanitarian nature that may make return unreasonable

and lead to the granting of an asylum residence permit.

There are three categories of humanitarian grounds that

may form the basis for the asylum residence permit:

• The alien displays (mental) trauma as a result of

events that took place in the country of origin

• There are humanitarian reasons beyond those

elated to the advanced age of the person, his or

her health or the overall situation in the country

of origin that come to light following a case-by-

case assessment

• The person belongs to a speciﬁ c group that,

accor

ding to a decision of the Minister, can be

granted residence on this ground.

6.1.3. Non-Protection-Related

Permits

Within the asylum procedure, it is also possible to

grant a regular residence permit to persons who do

not need international protection. As described above,

unaccompanied minor asylum-seekers may in certain

cases obtain a regular residence permit if return to the

country of origin is not possible.

In addition, persons whose return cannot be implemented

for reasons beyond their control may be granted a

regular residence permit. It is presumed that all persons

can return to their country of origin. Nevertheless, in

extraordinary situations when a person cannot leave the

Netherlands, for example because he or she is not able

to obtain the necessary documents for this, and there

is no doubt about his or her identity and nationality, a

residence permit for this reason can be granted. This can

be the case if the person is stateless and he or she cannot

return to his or her country of former habitual residence.

6.2 The Decision

The decision-making authority is the Immigration and

Naturalisation Service (IND). The IND makes a written

decision on whether to grant a residence permit or to

refuse the application for asylum. All negative decisions

are reasoned.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

There are four types of decisions that can be taken by

the IND following an assessment of an asylum claim:

• The asylum-seeker meets the criteria set out

in Article 29, section 1 of the Aliens Act and is

granted a r

esidence permit for asylum

• The asylum-seeker does not meet the criteria

set out in Article 29, section 1 of the Aliens Act

and is r

efused a residence permit for asylum

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

• The asylum-seeker is refused a residence

permit for asylum but is granted a regular

residence permit, because he or she satisﬁ es

the conditions as an unaccompanied minor, or

because evidence is provided that he or she

cannot be held accountable for not being able

to leave the Netherlands

• The asylum-seeker does not satisfy the

conditions and is r

efused a residence permit for

asylum and refused a regular residence permit.

Beneﬁ ts

There is a single type of residence permit – the residence

permit for asylum – that is granted to persons who

are Convention refugees and to persons who meet

the other grounds for protection outlined in Article 29,

section 1 of the Aliens Act.

Beneficiaries of a residence permit for asylum are

entitled to the following beneﬁ ts:

• A travel document for refugees

• Social beneﬁ ts

• Health care beneﬁ ts

• Access to the labour market

• Access to family reuniﬁ cation.

The r

esidence permit for asylum is valid for ﬁ ve years.

After ﬁ ve years, the person can apply for a permanent

residence permit for asylum, if the grounds for granting

the residence permit for asylum remain valid.

Holders of a regular residence permit who cannot

obtain a passport from their own authorities can apply

for a travel document for aliens. They are entitled to

social beneﬁ ts according to their residence permit and

to health care. The regular resident permit is valid for

ﬁ ve years. After this time, the person can apply for a

permanent residence permit, if the grounds for granting

the residence permit for asylum still exist.

6.4 Exclusion

The grounds for exclusion are prescribed in the

Qualiﬁ cation Directive.

A person who meets the criteria set out in Article

1F of the 1951 Convention will not be granted a

residence permit. The State Secretary must be able

to demonstrate, but not “prove” in the sense of the

evidence standard applied within the context of criminal

law, that there are “serious grounds” upon which to

presume the person meets the exclusion criteria. If

a foreign national was aware, or ought to have been

aware, of having committed the offence or offences

in question (“knowing participation”) and he or she

personally took part in these offences (“personal

participation”), it is possible to invoke Article 1F of the

Convention.

Where it has been established that Article 3 of the

ECHR constitutes an obstacle to the individual’s

repatriation to his or her country of origin, a residence

permit can in exceptional circumstances be granted if

the excluded person has resided in the Netherlands for

a period of ten years and cannot return to his or her

country of origin or to a third country. This residence

permit is valid for one year and may be renewed.

Family Members

Family members of persons excluded from the 1951

Convention can be granted a residence permit for

asylum if one of the grounds set out in Article 29,

paragraph 1(a), (b) and (c) of the Aliens Act 2000 applies

to them personally.

A residence permit may not be granted to family

members if considerations of public order override other

concerns. However, if the ties between a family member

and a person excluded from the 1951 Convention have

been broken (for instance as a result of divorce or in

the case of a child who has reached the age of maturity

and moved out of his or her family home), the family

member may be granted a residence permit subject to

certain conditions.

Furthermore, if after having resided in the Netherlands

for a period of ten years or more without a residence

permit, family members of a person from the 1951

Convention make an application for a residence permit,

the person’s exclusion from the 1951 Convention will

have no bearing on the examination of the application

of those family members. The attitude of the family

members towards their own departure process will also

be taken into account.

6.5 Cessation

The IND may apply the cessation clauses of the

1951 Convention to both Convention refugees and

beneﬁ ciaries of complementary protection if changes

in the country of origin warrant it. However, the IND will

not apply the cessation clauses to persons who have

obtained a permanent residence permit after ﬁ ve years

of holding a permit for asylum.

A change in circumstances in the country of origin may

be said to have occurred if the situation in the country

of origin improves in such a manner that the fear of

persecution, such as the removal of a repressive regime

and the establishment of a new one based on respect

for basic human rights, is no longer present.

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If the IND makes a decision to invoke the cessation

clauses, the person has the right to appeal the decision

to the District Court and further on to the Council of State.

6.6 Revocation

The IND may revoke the status granted to a Convention

refugee or to a beneﬁ ciary of complementary protection

in one of the following circumstances:

• On cessation grounds

• On exclusion grounds

• On evidence of fraud

• If the person is found to pose a danger to

security and community

Where cessation and exclusion clauses apply, the IND

cannot revoke the person’s status if he or she has

obtained a permanent residence permit.

To revoke a residence permit because of breaches of

public order and criminal offences, the Netherlands has

a policy of “the sliding scale”: the longer the person has

resided in the Netherlands, the graver the breach has

to be to constitute a ground for revoking the residence

permit.

The IND sends an Intended Decision to the person.

The person then has six weeks to present his or her

view. After this, the person will be interviewed about

his or her opinion.

The possibilities for appeal are the same as they are for

the asylum procedure.

As long as no ﬁ nal decision has been made to revoke

a residence permit, the holder of the permit retains his

or her right to work.

11 Possibilities for appeal are described above in the section on

Review/Appeal of Asylum Decisions.

6.7 Support and Tools for

Decision-Makers

6.7.1. Country of Origin Information

There are two ofﬁ ces within the Dutch administration

that are responsible for producing country of origin

information (COI) used by decision-makers in the

asylum procedure. One is located within the Ministry

of Foreign Affairs and one within the IND.

The Asylum and Migration Affairs Division, part of the

Department of Movement of People and Aliens Affairs

within the Ministry of Foreign Affairs, publishes around

35 reports each year on the human rights, security and

political situation in countries of origin for use by asylum

decision-makers and policy-makers. The Asylum and

Migration Division may be requested by the COI ofﬁ ce

at the IND (OCILA) to produce more speciﬁ c reports

on countries of origin, and may undertake fact-ﬁ nding

missions for information-collection purposes. OCILA

plays a role in the production of the country reports by

coordinating the input for the Terms of Reference (ToR)

for each report.

OCILA is part of the Centre for Knowledge, Advice and

Development within the IND. OCILA itself is divided in

two subdivisions: the Country Subdivision (which itself

is divided into a front ofﬁ ce made up of four regional

ofﬁ ces and a back ofﬁ ce at headquarters) and the

Language Analysis Subdivision.

The Country Subdivision produces country-speciﬁ c

and thematic reports and country analysis reports for

use by asylum decision-makers and other officials

of the IND. The Country subdivision produces about

45 reports each year. Apart from writing reports, the

Country Subdivision organises workshops for decision-

12 The content of the ToRs is not determined by the IND alone.

Relevant NGOs such as Amnesty International are also requested

to contribute to the ToRs for fact-ﬁ nding missions.

Box 2:

Developments in the Provision of COI by OCILA

Over the years, OCILA has made important adjustments to its research approach, becoming more proactive in its

work. While OCILA continues to gather and deliver country information at the request of decision-makers, country

experts keep abreast of developments in countries of origin, which allows them to produce topical reports that

will be of interest to decision-makers. By anticipating the research needs of asylum decision-makers and producing

reports before they are requested, OCILA is able to contribute to an efﬁ cient asylum procedure.

As the importance of engagement on COI at an international and European level has increased, OCILA has become

more active in information-sharing and cooperative activities with partner countries and organisations. A recent

example of cooperation is the agreement between the IND and the UNHCR on the use of the UNHCR database,

Refworld. OCILA participates actively in a number of projects, such as the European COI Sponsorship (ECS) project,

and the development of a European training programme for decision-makers (European Asylum Curriculum).

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

makers on relevant topics or countries of origin. Another

activity is answering speciﬁ c COI questions of decision-

makers. Each year there are about 1,700 of these.

6.7.2. Language Analysis

The Language Analysis Subdivision of OCILA records

and analyses the speech of asylum-seekers, ﬁ rst to be

able to conﬁ rm or deny the country or region from which

the asylum-seeker claims to originate. If the results of a

language analysis test indicate that the country of origin

is not the one claimed by the asylum-seeker, further

analysis may be carried out to determine the actual

country or region of origin of the person.

Language-analysis plays an important role in

determining the identity and origin of asylum-seekers.

It has proved to be a useful instrument for decision-

makers. Language analysis can prove to be an efﬁ cient

way of assisting the IND in determining the identity of

large numbers of asylum-seekers claiming to originate

from a country or region for which the IND applies

a policy of subsidiary protection. This tool has also

been found by the high court to be a professional and

reliable means of assisting decision-makers in their

work. For these reasons, language analysis has gained

in importance in recent years. OCILA produces about

1,300 language analysis reports annually.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

Rolled ﬁ ngerprints of all asylum-seekers aged four

years and older are taken and stored. The ﬁ ngerprints

are taken for identity veriﬁ cation purposes.

In the near future, scanned ﬁ ngerprints of all foreign

nationals who come into contact with the Dutch

authorities will be taken and stored for identity

veriﬁ cation purposes.

7.1.2. DNA Tests

DNA tests are used for veriﬁ cation purposes in the

identiﬁ cation process for foreign nationals. Several

laboratories carry out the DNA tests.

7.1.3. Forensic Testing of Documents

All source documents that are submitted by asylum-

seekers at the start or during the course of the procedure

undergo technical as well as tactical examination. This

may involve the use of the online database, DISCS

(Document Information System of Civil Status). Any

ﬁ ndings arising from the examination of the document

may be taken into consideration when making a ﬁ nal

decision on the request for asylum.

7.1.4. Database of Asylum

Applications/Applicants

All asylum applications and subsequent decisions are

registered in an IND database (Indis), which is linked

to a Central Shared Database with basic information

on applicants. The Central Shared Database is the

central system used by government agencies involved

in immigration processes.

7.2 Length of Procedures

There is no time limit for ﬁ ling an application for asylum.

However, the asylum-seeker has a maximum of 24

hours to make an appeal in the case of a rejected

claim in the accelerated procedure and four weeks

in the extended procedure. There are also time limits

for authorities to examine and make a determination

on an asylum application: six months in the extended

procedure and 48 hours in the accelerated procedure.

7.3 Pending Cases

The number of pending cases at the end of December

2008 was 8,023. The backlog of cases is largely

the result of the increasing number of (new) asylum

applications received since 2007.

A number of measures have been taken by the IND to

clear the backlog:

• Temporary (jurist) staff have been employed

to work mainly as interviewers and decision-

makers

• There is a greater focus on efﬁ

ciency in order to

reduce the processing time for each asylum claim

• Plans are under way to increase the human

esource capacity of the organisation dedicated

to the asylum procedure.

7.4 Information Sharing

The only information-sharing agreements to which the

Netherlands is party are those that take effect under

the Dublin II Regulation, including an agreement with

Switzerland for this purpose. Thus, speciﬁ c information

on asylum-seekers can be released to other EU Member

States, in accordance with Article 21 of the Dublin II

Regulation. No information on asylum-seekers can be

released to a third country, unless the asylum-seeker

gives permission.

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8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

Legal aid is available to asylum-seekers at the ﬁ rst

instance and at the appeal stage of the procedure. The

role of the legal representative at ﬁ rst instance is to

assist the asylum-seeker in preparing for the detailed

interview and to be present at the interview. The legal

representative may also write, on behalf of the asylum-

seeker, his or her view on an Intended Decision to refuse

an asylum claim.

8.1.2. Interpreters

Interviews at the IND take place in Dutch and therefore

an independent and impartial interpreter is also

present to assist the asylum-seeker. Translators are

also available to translate documents or declarations

submitted by the asylum-seeker.

8.1.3. UNHCR

The UNHCR in the Netherlands has a general

monitoring function, and does not have a direct role

in the determination of individual cases. The Regional

Ofﬁ ce of the UNHCR for the Benelux countries at times

provides advice and information to NGOs and lawyers

who have direct contact with asylum-seekers.

8.1.4. NGOs

The Council for Legal Aid and the Dutch Council for

Refugees provide assistance to asylum-seekers during

the procedure. The Council for Legal Aid is responsible

for ﬁ nding a lawyer to assist asylum-seekers during the

procedure. The Dutch Council for Refugees provides

advice on a variety of legal and practical questions.

8.2 Reception Beneﬁ ts

Reception beneﬁ ts are available to asylum-seekers

awaiting a decision on their claim. Once a removal

order is given, asylum-seekers are no longer entitled

to beneﬁ ts, with the exception of facilities in a location

where the rejected asylum-seeker is placed under

supervision (consisting of daily reporting duties).

8.2.1. Accommodation

With the exception of persons who have made an

asylum application at the border, following registration,

asylum-seekers are accommodated at a temporary

reception centre with basic facilities before making

their application at an application centre.

Persons who make an asylum application at Schiphol

airport are placed in a closed centre if entry into the

country has been refused and the application is being

examined at the Schiphol application centre.

In case the decision on the asylum application cannot

be made within the so-called accelerated procedure

at the application centre, the asylum-seeker is placed

in a normal reception centre. Before the ﬁ rst decision,

the asylum-seeker is placed in an integration and

orientation centre. After the ﬁ rst negative decision, the

asylum-seeker is transferred to a return centre.

Special accommodation arrangements are made

for unaccompanied minors. Children under the age

of 12 years are generally placed with foster parents;

children between the ages of 12 and 15 are usually

placed in a small unit with 24-hour supervision. The

reception of UAMs consists in the majority of cases

of regular houses. The houses are ﬁ nanced by the

central government. Children over the age of 15 years

are placed in special reception centres that offer

specialised care or in small units (houses).

8.2.2. Social Assistance

The Central Organisation for the Reception of Asylum-

Seekers (COA) provides the asylum-seeker with

ﬁ nancial assistance for food and pocket-money. The

Dutch Council for Refugee helps the asylum-seeker

socially and in the asylum procedure throughout his or

her stay in the reception centre.

If necessary, an asylum-seeker may consult a social

worker.

8.2.3. Health Care

The asylum-seeker has the right to the same health

care package that Dutch residents have, with the

exception of a few medical procedures. Children get

their regular dental expenses covered as well, until

the age of 22.

8.2.4. Education

Asylum-seekers below the age of 18 receive education in

regular schools, pursuant to the Compulsory Education

Law. Adults receive some training as well. They learn

Dutch language and acquire some background

information on Dutch society in the Orientation and

Integration centre prior to the ﬁ rst decision on the

procedure. Adults can pursue any education, provided

they pay for it.

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8.2.5. Access to Labour Market

Work is permitted six months after the application for

asylum. Asylum-seekers have the right to work during

24 weeks in a year. A work permit must be obtained ﬁ rst.

Asylum-seekers may also take part voluntarily in

activities, such as garden work and minor maintenance

jobs at the reception centres. They receive a small

amount of money in return.

Reception centre house rules state that the asylum-seeker

has to perform tasks that are mandatory and unpaid,

such as cleaning of common rooms, showers, etc. If

the asylum-seeker does not comply with any obligation

to perform work tasks at the reception centre, the COA

invokes house rules, which contain sanctions varying

from a warning to the withholding of pocket money.

8.2.6. Access to Integration

Programmes

If no final decision has been taken on the asylum

application, the integration principally consists of

learning Dutch and acquiring knowledge of Dutch

society. After receiving a positive decision, the asylum-

seeker can start an integration course which is usually

ﬁ nanced by the Dutch government.

8.2.7. Access to Beneﬁ ts by Rejected

Asylum-Seekers

Free legal aid, social assistance and reception are

available during appeal at the return stage. After the

ﬁ rst negative decision the asylum-seeker is transferred

to a return centre and is no longer eligible for Dutch

language training.

After a ﬁ rst negative decision, asylum-seekers receive

training activities that are meant to contribute to skills

they need after their return to the country of origin.

Rejected asylum-seekers can also apply for assistance

from the International Organization for Migration (IOM)

in arranging the return to the country of origin including

through (in some cases) a ﬁ nancial contribution.

9 Status and Permits

Granted outside the

Asylum Procedure

9.1 Humanitarian Grounds

The State Secretary of Justice may, at his or her

discretion and in exceptional cases, grant a residence

permit to a foreign national, such as a rejected asylum-

seeker, who does not otherwise meet the criteria for

a permit. Such a decision may be taken in instances

where not granting a residence permit would cause

undue hardship to the person. The type of permit

granted and the attendant beneﬁ ts are determined on

a case-by-case basis.

9.2 Obstacles to Return

A regular residence permit, valid for one year (with the

possibility of renewal) may be issued to rejected asylum-

seekers when objective evidence is provided that they

cannot be held accountable in any way for being unable

to return to their country of origin (for example, if there

is a lack of cooperation of country of origin authorities

in providing the required documentation for return).

9.3 Regularisation of Status over

Time

As described above, between May 2007 and 1 January

2009, a regulation was in force to regularise the situation

of persons who had lodged asylum applications under

the previous Aliens Act and who had not received

residence permits. Persons who had made an asylum

application before 1 April 2001, had withdrawn their

application, and had resided in the Netherlands since

then were eligible for a residence permit.

Regularisation of Status of Stateless

Persons

The Netherlands is a party to the 1954 Convention

relating to the Status of Stateless Persons. This,

however, does not constitute a right for stateless

persons to reside in the Netherlands, inside or outside

the asylum procedure. Stateless persons can obtain a

travel document for stateless persons.

10 Return

10.1 Pre-departure Considerations

Return is implemented by the Repatriation and Departure

Service of the Ministry of Justice together with the Royal

Marechaussee and the Aliens Police. The time limit for a

person who has received a ﬁ nal negative decision on an

asylum application to voluntarily leave the Netherlands is

within 28 days of the decision. For asylum-seekers who

have not ﬁ nalised their departure within these 28 days,

this period may be extended by a maximum of 12 weeks.

10.2 Procedure

IOM in the Netherlands provides voluntary return

assistance to asylum-seekers who are subject to a removal

decision. There are several return programs available,

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NET

including post-arrival and reintegration assistance, e.g.

medical care, housing, schooling, on the job training, etc.

The Netherlands may also enforce returns and detain

rejected asylum-seekers pending the return procedure.

The Netherlands also finances a few post-arrival-

assistance programmes for persons who are subject

to enforced return.

10.3 Freedom of Movement/

Detention

Pending return, rejected asylum-seekers may be detained

for a certain period, mainly awaiting the necessary travel

documents and ﬁ nal departure. While there is no speciﬁ c

detention period laid out in the law, detention must be as

short as possible. Two special pre-removal centres have

been set up at the airports of Amsterdam and Rotterdam

for persons who are expected to be removed within the

short term and who are not willing or able to leave the

Netherlands on their own.

10.4 Readmission Agreements

The Ministry of Justice and the Ministry of Foreign

Affairs are responsible for negotiating readmission

agreements. These are implemented by the Repatriation

and Departure Service of the Ministry of Justice.

The Netherlands observes readmission agreements

concluded between the European Union and countries

such as Russia, Ukraine, Pakistan and Moldova. Benelux

(Belgium, the Netherlands and Luxembourg) plans to sign

a readmission agreement with Armenia in the short term

and is currently conducting negotiations with Georgia.

11 Integration

Persons who are granted a residence permit for asylum

are obliged to follow a programme of civic integration in

accordance with the Civic Integration Act. During their

(continued) stay in a reception centre, and prior to being

assigned to a municipality for accommodation, holders

of a residence permit for asylum may participate in civic

integration activities on a voluntary basis.

The Central Agency for the Reception of Asylum Seekers

(COA) runs a number of programmes as a preparation for

civic integration in a municipality. These are as follows:

• Dutch language training and courses on

Dutch society

, intended as preparation for the

civic integration programme provided in the

municipalities

• A person-specific budget (Persoonvolgend

Budget – PVB) that may be used by individuals

who hold a residence permit for asylum in order

to purchase a civic integration package for

themselves on the basis of the scheme known

as the Amnesty Regulation (Pardonregeling); on

settlement in a municipality, any remaining funds

from the budget may be used to complete the

programme of civic integration. This programme

runs until 2010, on the assumption that this

speciﬁ c group will be assigned to a municipality

by the end of 2009

• A more advanced language programme

(above the A1 minimum level pr

ovided in the

initial language training described above).

Participants may follow a course of advanced

language lessons at their own level of learning

on a voluntary basis while awaiting assignment

to a municipality. The COA is responsible for

managing this programme. On the basis of an

evaluation to be carried out in 2010, a decision

will be made as to the form that the extended

provision of language courses will take in 2011

and in subsequent years.

Any individuals who hold a residence permit for asylum

and leave the reception centre for asylum-seekers to

reside in a municipality will be offered a programme of

civic integration by the relevant municipality.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

12 Annexe

12.1 Additional Statistical Information

5,000

10,000

15,000

20,000

25,000

2008

20021997

Sri Lanka

FRY (Yugoslavia)

Bosnia and Herzegovina

Sierra leone

Angola

Iran

Afghanistan

China

Somalia

Iraq

* First applications only

Figure 5:

Asylum Applications* from Top Five Countries of Origin for the Netherlands in 1997, 2002 and 2008

Convention Status

Complementary

Protection and Other

Authorisations

to Remain

Rejections Other Decisions*

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1992

4,828 9% 6,892 13% 20,296 39% 19,429 38% 51,445

1993

10,338 24% 4,674 11% 15,758 37% 11,935 28% 42,705

1994

6,134 13% 7,792 16% 30,206 63% 4,094 8% 48,226

1995

4,882 12% 6,679 17% 25,320 64% 2,605 7% 39,486

1996

3,133 10% 6,642 21% 19,297 62% 2,165 7% 31,237

1997

3,441 13% 6,323 24% 15,152 58% 1,284 5% 26,200

1998

1,067 3% 10,245 33% 17,513 56% 2,205 7% 31,030

1999

628 2% 6,022 15% 27,611 67% 6,942 17% 41,194

2000

896 2% 5,968 11% 42,304 79% 4,300 8% 53,468

2001

244 1% 5,161 14% 26,037 70% 5,610 15% 37,052

2002

198 1% 3,359 10% 26,478 77% 4,220 12% 34,255

2003

393 2% 4,228 19% 14,560 67% 2,583 12% 21,764

2004

480 3% 4,057 26% 8,178 52% 2,939 19% 15,654

2005

964 5% 7,854 40% 8,084 41% 2,848 14% 19,750

2006

358 3% 3,986 28% 7,519 53% 2,318 16% 14,181

2007

487 4% 3,963 31% 3,979 32% 4,173 33% 12,602

2008

515 5% 5,161 47% 5,247 48% 0 0% 10,923

*Other decisions may include withdrawn claims, abandoned claims or claims otherwise resolved.

Starting in 2008, the Netherlands no longer reports data on Other Decisions.

Figure 6:

Decisions Made at the First Instance, 1992-2008

New Zealand

NZL

255 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

256 - NATIONAL LEGAL FRAMEWORK

257 - INSTITUTIONAL FRAMEWORK

257 - PRE-ENTRY MEASURES

258 - ASYLUM PROCEDURES

262 - DECISION-MAKING AND STATUS

265 - E

FFICIENCY AND INTEGRITY MEASURES

266 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

268 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

269 - R

ETURN

269 - INTEGRATION

270 - ANNEXE

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1 Background: Major Asylum

Trends and Developments

Asylum Applications

In the late 1990’s, the number of asylum applications

made in New Zealand began to increase signiﬁ cantly

compared to previous years. In 1997, for example, over

1,500 claims were received. Numbers peaked in 1998

at over 1,900. However, the number of new applications

decreased signiﬁ cantly from 2002 onwards, and in

2008, annual inflows were running at some 250 (a

tenfold decrease compared to the peak).

Top Nationalities

In the late 1990’s, most claimants came from China,

Indonesia, Thailand and India. From 2000 to 2004,

the majority of claimants originated in Thailand, Iran,

India and China. From 2004 to date, the top claiming

nationalities have been Iran, Iraq, China and Sri Lanka.

Important Reforms

During the early 1980’s, asylum claims were decided

by the Interdepartmental Committee on Refugees

(ICOR). In 1991, non-statutory terms of reference were

issued by the Cabinet to set in place a “two-tiered”

determination system. First instance decisions were

made by Immigration Ofﬁ cers, and de novo appeals

made to the independent tribunal, the Refugee Status

Appeals Authority (RSAA).

The current legislation governing refugee status

determination in New Zealand came into effect in 1999.

The Immigration Amendment Act 1999 incorporated

into the Immigration Act 1987 the 1951 Convention

Relating to the Status of Refugees (1951 Convention)

and its 1967 Protocol. It also gave statutory recognition

to the RSAA and created the Refugee Status Ofﬁ cer

(RSO) position to decide refugee claims made in New

Zealand at the ﬁ rst instance. RSOs report to a single

national branch, the Refugee Status Branch (RSB), of

the Department of Labour.

Also in 1999, the current policy of granting recognised

refugees the right to apply for Permanent Residence

permits was introduced.

In 2001, detention ofﬁ cials began using the Mangere

Refugee Resettlement Centre in part as the Mangere

Accommodation Centre. The Mangere Accommodation

Centre provides low-security detention facilities for

those refugee claimants who are detained.

Beginning in 2004, RSOs have undertaken a caseload

of refugee status cancellation cases.

Additional legislative reforms to the asylum procedure

are foreseen in a new Immigration Bill, which is expected

to be implemented in the coming years.

1,972

1,791

254

1,495

1,528

500

1,000

1,500

2,000

2,500

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

884

Figure 1:

Evolution of Asylum Applications in New Zealand, 1997-2008

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Figure 3:

Top Five Countries of Origin in 2008

1 Iraq 33

2 Iran 28

3 Sri Lanka 25

4 China 24

5 India 14

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

The asylum procedures and the competencies of

asylum institutions are governed by the Immigration

Act 1987, which was amended by the Immigration

Amendment Act 1999. The 1951 Convention and its

1967 Protocol Relating to the Status of Refugees are

attached as a schedule to the Immigration Act 1987.

New Zealand is party to the 1987 Convention Against

Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (CAT) and the 1976

International Covenant on Civil and Political Rights

(ICCPR). However, these treaties have not been

incorporated into domestic law. Nevertheless, that New

Zealand must take into consideration the rights these

treaties declare when making removal decisions has

been noted by the Supreme Court in Attorney-General

v Zaoui-[2005] 1 NZLR 577.

2.2 Pending Reforms

On 16 August 2007, an Immigration Bill had its ﬁ rst

reading in the New Zealand House of Representatives

(Parliament). In March 2009 the new Immigration Bill

had its second reading by the new government (which

came to power in November 2008). If the Bill continues

to progress, there will be a third and ﬁ nal reading in

Parliament before referral to the Governor General

for assent. At this stage, the Bill would become law,

although there will be a passage of time before the

commencement of the Act having force of law.

The new Bill introduces a number of changes to immigration

matters in New Zealand. With regard to asylum and refugee

protection, the main proposals are as follows:

• In deciding whether claimants are to be recognised

as r

efugees on the basis of the 1951 Convention

and 1967 Protocol, designated case ofﬁ cers will

also, in a single procedure, determine whether

grounds for preventing removal exist under Article

3 of the CAT and Article 7 of the ICCPR. The Bill

does not apply the 1951 Convention exclusion

clauses to CAT and ICCPR protection

• A single immigration appeal tribunal will hear

all immigration appeals, including refugee and

protection appeals

• Classiﬁ

ed security information could be relied on

in certain circumstances, including in refugee or

protection claims.

The Bill does not address the level of economic and social

rights that refugees and other protected persons will enjoy.

There is currently no intention to alter the existing policy

of granting permanent residence to a high majority of

refugees and protected persons. It is likely that persons

100

150

200

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Iraq Iran Sri Lanka

Figure 2:

Evolution of Applications from Top Three Countries of Origin for 2008

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protected from removal by CAT or ICCPR, but excluded

from refugee status under Article 1F of the 1951 Convention,

will be granted temporary leave to remain in New Zealand,

although this will be subject to a case-by-case decision.

3 Institutional Framework

3.1 Principal Institutions

Immigration New Zealand (INZ)

Immigration New Zealand (INZ) is a service of the

Department of Labour. The Refugee Division of INZ

contains the Refugee Status Branch (RSB), the

Refugee Research and Information Branch (RRIB) and

the Refugee Quota Branch (RQB). Also within INZ are

the Settlement Division, and the Service Delivery and

Border Security groups.

The Refugee Status Ofﬁ cers (RSOs) who staff the RSB

decide refugee claims against the 1951 Convention

only. RSOs are legislatively prevented from carrying

out any other function, including decisions on removal,

visa and permit matters, or any other decision of a

humanitarian nature.

The Refugee Quota Branch facilitates entry of United

Nations High Commissioner for Refugees (UNHCR)

mandated “quota” refugees for resettlement in New

Zealand and operates New Zealand’s low-security

detention facilities for detained refugee claimants.

Service Delivery, staffed by Immigration Officers,

decides applications for temporary and permanent

visas and permits, including applications by recognised

refugees for permanent residence permits.

The INZ Border Security Group has responsibility for

the detention of refugee claimants, where appropriate,

and the removal of failed refugee claimants.

The Refugee Status Appeals Authority (RSAA)

The RSAA is an independent body that determines

appeals against negative decisions made on asylum

claims by an RSO. In some cases, RSOs appear before

the RSAA to provide evidence.

3.2 Cooperation between

Government Authorities

All INZ branches fully cooperate in the provision of

relevant information, while decision-making is delegated

and isolated to speciﬁ c areas.

The Border Security Group works closely with other

border security agencies, including the Customs

Service and the Ministry of Agriculture and Forestry.

In relation to detention in penal institutions, the Border

Security Group liaises with New Zealand Police and the

Department of Corrections.

INZ works with the Child, Youth and Family service

of the Ministry of Social Development in relation to

issues of child welfare, particularly with regard to

unaccompanied minors.

4 Pre-entry Measures

4.1 Visa Requirements

INZ manages New Zealand’s visa system. Non-citizens

require visas to enter the country, unless they are

nationals of a state that New Zealand has declared “visa

free.” On arrival, visitors are issued a permit providing

temporary permission to remain in New Zealand. All

non-citizens, however, must present a valid passport,

and may be required to provide proof of onward travel

tickets, funds for maintenance or sponsorship.

Box 1:

New Zealand Case Law: Conﬁ dentiality of Information

Conﬁ dentiality in the refugee determination process was tested at the Supreme Court (Attorney General v. X and

Refugee Status Appeals Authority [2008] NZSC 48) to determine whether information provided in the course of

refugee determination could be provided to other government agencies working on the refugee or claimant’s

prosecution or extradition for serious crimes.

While conﬁ dentiality is to be carefully protected, the requirement is not absolute and provision to agencies

undertaking other functions is permissible where their function requires it and there is no reason to consider

that the release of information would endanger any person. As the High Court and Court of Appeal held that the

requirement of refugee conﬁ dentiality was absolute, it was the case that no information from refugee claims was

released to other government agencies. However, it is now permissible, according to certain criteria, to release this

information (due to a recent decision of the Supreme Court).

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4.2 Carrier Sanctions

It is an offence, according to sections 125 and 126(1)

of the Immigration Act 1987, for a carrier or person in

charge of a craft to fail to ensure all persons on board a

craft have the appropriate immigration documentation,

as follows:

• A valid passport or certiﬁ

cate of identity

• A visa (if required)

• Evidence of onward travel arrangements

• Evidence of sufﬁ

cient funds (if required).

Penalties for infringing these requirements include a

ﬁ ne of up to NZD 20,000 to the carrier, or up to NZD

10,000 or up to three months in prison for the person

in charge of a craft.

4.3 Interception

Airline Liaison Ofﬁ cers

New Zealand has an Airline Liaison Officer (ALO)

programme to assist airlines in meeting carrier

requirements under immigration legislation, prior to

aircraft departure for New Zealand. ALOs are stationed

in ports in the Asia-Paciﬁ c area.

Advanced Passenger Processing System

New Zealand also has an Advanced Passenger Processing

(APP) system, which assesses travel permission

electronically. That is, travel permission, including

requirements and authenticity, are checked upon boarding

a carrier. If there is a problem with boarding permission,

then the passenger and INZ staff may speak by telephone,

and the passenger may be denied boarding.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

Asylum claims can be made to a Police Ofﬁ cer or ofﬁ cial

of the Department of Labour, either at ports of entry after

landing, or immediately prior to removal. Departmental

ofﬁ cials include Immigration Ofﬁ cers and RSOs, and

also ofﬁ cers of New Zealand Customs Service at ports

of entry. There is no time limit for making a claim.

Every individual, including children, must make a

separate claim. However, adults may provide evidence

in support of their children’s claims.

Access to Information on Procedures

When a claim is made, the RSB provides the claimant

with information, predominantly in English, concerning

his or her rights and obligations. This information is

tailored for persons detained and for those living in the

community. An interpreter is available to communicate

this information to asylum-seekers in detention.

5.1.1. Outside the Country

Applications at Diplomatic Missions

It is not possible to make a claim for asylum in New

Zealand at a diplomatic mission abroad.

Resettlement/Quota Refugees

New Zealand has in place a resettlement programme,

which is operated by the RQB, a branch of INZ. All

Box 2:

Regional Movement Alert System

New Zealand is part of an APEC (Asia-Paciﬁ c Economic Cooperation) initiative known as the Regional Movement

Alert System (RMAS). The objective of RMAS is to strengthen the collective capacity of participating APEC economies

to detect lost, stolen and otherwis e invalid travel documents and to prevent them from being used illegally. USA,

Australia and New Zealand have been participating in this initiative since March 2006.

A key component of RMAS is the RMAS Broker. It acts like a switchboard for routing queries and answers to and

from border systems and the passport databases of participating economies.

No data is stored in the RMAS Broker, which means that data is accessed and not exchanged, and each economy

controls how much information is made available to another economy. This approach also ensures that only the

most up-to-date data is accessed.

A vital part of RMAS is the contact between each economy’s operational centres (which are open 24 hours a day,

seven days a week) in order to clarify details and ensure lawful travellers are not inconvenienced when a participating

economy receives a RMAS notiﬁ cation.

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submissions for resettlement are made by the UNHCR

for consideration by the RQB. The RQB may consider

submissions on a dossier basis, but only where a selection

mission is not possible or practicable. All other cases are

scheduled for interview during an RQB selection mission.

Individual refugees submitted by the UNHCR for

resettlement to New Zealand must meet the following

criteria:

• They must be recognized by the UNHCR as

efugees

• They must be referred for resettlement by

the UNHCR in accor

dance with UNHCR

resettlement guidelines and priorities

• They must fall within the regional and global priorities

of the Government of New Zealand (with exceptions

for emergency and family reuniﬁ cation cases) as set

out in the Quota Composition established each year

• They must be assessed as admissible under

RQB policy and procedures

• They must be otherwise admissible under New

Zealand law

The reasons an individual may be inadmissible for

resettlement to New Zealand include past criminal

activity or security grounds.

The quota programme year runs from 1 July to 30

June. In 2007-2008, the quota amounted to 750 places,

broken down into three categories:

• Women-at-Risk

• Medical/Disabled

• UNHCR Priority Protection.

5.1.2. At Ports of Entry

The same application procedure applies at airports as

at other ports of entry.

As noted above, refugee claims may be made at

New Zealand borders to the Police or ofﬁ cials of the

Department of Labour. Persons presenting claims to

Customs or Police will be referred to INZ Immigration

Ofﬁ cers at the border.

Immigration Ofﬁ cers, with the assistance of an interpreter,

will interview claimants to determine their means of arrival

and identity. The Immigration Ofﬁ cer will also make a

decision whether or not to issue a permit or whether it is

necessary to place the claimant in detention.

1 Please see section below on Freedom of Movement/Detention for

information on when detention would be considered appropriate.

An RSO will usually travel to the border location and

assist the claimant with the process, including helping

to complete a claim form, providing basic information

on the asylum process, and arranging access to legal

representation for the claimant, if requested.

From that point, the standard (normal) refugee

determination procedure is applicable.

5.1.3. Inside the Territory

Responsibility for Processing the Claim

New Zealand does not have in place a process for

determining which State may be responsible for

examining an asylum claim. New Zealand does

not observe any safe third country policy and will

consider an application for asylum from a national of

any country, except New Zealand and Australia,

on a

case-by-case basis. Under New Zealand law, and as

required under the 1951 Convention, whether a refugee

claimant already has protection in another State must

be considered.

Application and Eligibility

A refugee claim is made as soon as a person expresses

a wish to seek asylum in New Zealand, either orally or in

writing, to a representative of the Department of Labour

or to a member of the Police.

Eligibility

Any person in New Zealand is entitled to make a

claim for asylum except under one of the following

circumstances:

• The asylum-seeker is the holder of a residence

permit for New Zealand

• He or she is a New Zealand citizen

• He or she is exempt from having to hold a

permit. Pr

esent regulations place citizens of

Australia in this category.

Accelerated Procedures

Procedure for Detained Asylum-Seekers

The Refugee Status Branch prioritises claims made by

refugee claimants in detention. Refugee Status Ofﬁ cers

(RSOs) operate to stricter time limits. Otherwise, the

processing and determination of these cases do not

differ from claims in the normal procedure.

2 Australian citizens receive Permanent Residence permits upon

arrival in New Zealand.

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Detained refugee claimants must conﬁ rm their claim

in writing within ﬁ ve calendar days of signalling their

intention to claim. This period of time may be shorter

if the claim is a subsequent claim. Although the RSO

is not obliged to give a detained refugee claimant an

interview, the ofﬁ cer will always endeavour to conduct

one. The interview, almost always carried out with

the assistance of an interpreter, takes place 20 days

after the completed application form is received. The

RSO prepares an interview report, and the claimant

is given ten working days in which to comment on

the report.

If a refugee claim is rejected by the RSO, the decision

may be appealed to the RSAA within ﬁ ve working days

of notiﬁ cation of the decision.

Normal Procedure

In making a claim for asylum, all applicants must

conﬁ rm their claim in writing by completing the form,

“Confirmation of Claim to Refugee Status in New

Zealand.” Refugee claimants must also provide evidence

of their identity (including a recent photograph), such

as travel documents and a birth certiﬁ cate, and of their

country of origin. If such documents are not available,

they must provide a statutory declaration outlining their

personal details to the Refugee Status Branch (RSB) of

Immigration New Zealand.

The refugee claimant must provide the RSO with all

information relevant to his or her claim, including a

written statement, ideally at least ﬁ ve working days

before the interview. The written statement must include

the following elements:

• Any evidence supporting the fact or likelihood

of persecution

• If available, documents indicating the alleged

agent of persecution or potential persecution

and the reason for that persecution

• Details of persons who may be contacted to

support or verify the claim.

The RSO conducts an interview with the asylum-seeker

in the presence of his or her legal representative and an

independent interpreter. A record of the interview is made in

writing and / or by digital audio recording. The RSO usually

completes a summary report of the interview. This report

is sent to the claimant or his or her legal representative.

The report may also contain prejudicial information or other

questions for the claimant to comment on. This report is

not a requirement of the process, but is usually used as it

assists the claim process by conﬁ rming understanding of

the claim and ensuring fairness.

Following receipt of ﬁ nal submissions from the claimant

and his or her counsel, the RSO will make a decision

whether or not to grant Convention refugee status.

The RSO prepares an interview report and the claimant

is given ﬁ fteen working days in which to comment on

the report.

Review/Appeal of Asylum Decisions

A rejection of an asylum claim, including a subsequent

claim, may be appealed to the RSAA. The RSAA accepts

appeals made within 10 working days (ﬁ ve days for

detainees) of the decision, but may also at its discretion

allow an appeal after the deadline has elapsed.

The RSAA conducts a de novo enquiry into the merits

of the claim, usually having held a hearing with the

appellant and the appellant’s legal representative, and

having been assisted by an interpreter. Appeals to

the RSAA have suspensive effect on removal of the

appellant. The RSAA process, like that at ﬁ rst instance,

is inquisitorial, not adversarial.

Appeals against RSAA decisions may be made to

the Courts by way of judicial review. Judicial review

is made to the High Court, and decisions may be

further appealed to the Court of Appeal and Supreme

Court. Appeals to the courts do not automatically have

suspensive effect on removal, but a request to that

effect may be made by the appellant. Courts have the

power to return cases to decision-makers, RSOs or

RSAA when a reviewable fault has been found.

Freedom of Movement during the

Asylum Procedure

Asylum-seekers, including those who make post-border

claims, are usually granted a permit to allow them to

remain in New Zealand while their claim is being assessed.

Detention

Refugee status claimants who have not been issued a

permit to be in New Zealand may be placed in detention if

concerns exist regarding their identity, whether or not their

refugee claim is assessed as being made in good faith, and

whether or not any risk to national security or public order

is identiﬁ ed. These concerns must be balanced against the

person’s right to freedom of movement, and any issues

of well-being related to their individual circumstances (for

example, a person’s status as a minor).

Persons detained pending removal from New Zealand

may also claim refugee status. This detention is brought

about in the course of proceedings to effect their removal.

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Safeguards

In any detention situation, the refugee claimant’s

detention is reviewed on a weekly basis by a District

Court Judge. As noted above, the courts have upheld

detention in certain situations but have also placed limits

on detention and the time of detention, especially in a

penal institution. The court, on a case-by-case basis,

balances the purposes of detention, especially danger

to the community and the risk of claimant absconding,

against the rights of all people to freedom of movement.

In practice, the risk of absconding is unlikely to lead

to a person being detained for more than six months.

Those in detention will be detained in a penal institution,

a low-security area in which detainees may apply for

day release, or in an accommodation centre, at which

the claimant is not detained as such but remains on

reporting conditions. Most frequent is detention in the

low security centre, with the possibility to move to the

open accommodation centre if the refugee claimant is

detained for a signiﬁ cant period and is deemed low risk.

If the detained asylum-seeker is granted refugee status

by the RSO or RSAA, INZ-BSG are notiﬁ ed, and they

arrange for the refugee to be released from custody.

Reporting

All refugee status claimants have an obligation to inform

the RSO of their up-to-date address. Those residing in

the accommodation centre must report on a daily basis

to the accommodation centre staff.

Repeat/Subsequent Applications

Subsequent claims for refugee status may be made by

any failed refugee claimant and will be considered at

ﬁ rst instance by an RSO.

Refusal to accept a subsequent claim may be appealed

to the RSAA. If the subsequent claim is accepted for

substantive consideration either at ﬁ rst instance or on

appeal, then it will be determined whether or not the

claimant is a refugee.

To have a subsequent claim accepted for substantive

consideration, the claimant must demonstrate that

since the determination of his or her previous claim,

circumstances have changed in his or her home country

to such an extent that the claim is based on signiﬁ cantly

different circumstances. In establishing that there has

been such a change, the claimant may not challenge

any ﬁ nding of credibility or fact previously made by a

RSO or RSAA Member in the decision on the initial

claim, and the decision-maker is entitled to rely on any

such previous ﬁ nding.

The subsequent refugee claimant must be given the

opportunity to attend an interview either at ﬁ rst instance

or on appeal. Interviews are usually offered at ﬁ rst instance.

Legal aid may be available on subsequent claims,

provided the claim is not considered to be without

prospects of success by the agency that administers

legal aid payments.

Subsequent claims may be made by persons already

in detention or living in the community.

5.2 Safe Country Concepts

New Zealand does not observe any safe country policy

and will consider an application for asylum that is made

in New Zealand by a national of any country except New

Zealand and Australia.

Asylum Claims Made by European Union (EU)

Nationals

All claims are dealt with on a case-by-case basis, with

no claims to refugee status rejected outright based on

country of origin. Membership of all new Member States

in the EU is considered to have improved the general

Box 3:

New Zealand Case Law: Detention

Detention of some refugee claimants has been found lawful in prescribed circumstances, based primarily on uncertainty

of identity or concern as to criminality or security-related risks upon arrival, or in order to effect removal of a failed

refugee claimant. The case of note in this regard is Attorney General v. Refugee Council of NZ Inc (CA) [2003] 2 NZLR 577.

However, limits have been placed on the amount of time a claimant may be kept in penal detention. Detention

will be arbitrary if it is capricious, unreasoned, and without reasonable cause. According to the ruling in the case of

Neilsen v. Attorney-General [2001] 3 NZLR-433 (CA) and Zaoui v. Attorney-General [2005] 1 NZLR 577 (CA), detention

which is initially lawful becomes arbitrary and unlawful if the purpose of detention under the Immigration Act

could not be fulﬁ lled, and the detention was therefore otherwise indeﬁ nite or permanent. Accordingly, there will

be limits on the length of time a person may be detained even if he or she has failed in a refugee claim and will

not cooperate with his or her removal from New Zealand.

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human rights situation. In addition, the availability of EU-

level protection mechanisms is considered to bolster

the level of state protection available to claimants from

EU states. However, this has not led to all claims by

these nationals being considered unfounded.

5.3 Special Procedures

5.3.1. Unaccompanied Minors

Representative

An Immigration Ofﬁ cer or RSO designates a responsible

adult to act in the best interest of the unaccompanied

minor (UAM) claiming refugee status. If no suitable person

is available to act as the responsible adult, a guardian is

designated by a Child, Youth and Family (CYF) social worker.

Procedures

UAMs claiming refugee status beneﬁ t from the following

safeguards during the asylum procedure:

• The designation of a CYF representative and

a legal r

epresentative who are present during

the interview

• A ﬂ

exible approach to interviews: interviews are

scheduled for UAMs who have been assessed

by an ofﬁ cer to be sufﬁ ciently mature to undergo

the interview

• If the minor is under the age of 14, the interview

lasts no longer than two hours; for UAMs between

14 and 17 years old, the time limit is three hours.

Age Assessment

If there is doubt as to the age of the UAM, the responsible

adult is informed that the UAM may need to undergo

formal medical age assessment, through either a dental

examination or an x-ray. The consent of the UAM and his

or her responsible adult is required for any medical test.

Family Unity

New Zealand engages the assistance of the International

Committee of the Red Cross (ICRC) and any other

relevant agency to assist in locating the UAM’s family.

Removal

If the UAM’s refugee claim fails, then an assessment is

made as to whether or not to remove him or her. Efforts

will be made to have the child removed in a sensitive

manner, making attempts to locate his or her guardian(s)

in the home country. Any decisions would need to be

made taking account of obligations under the United

Nations (UN) Convention on the Rights of the Child.

5.3.2. Temporary Protection

While it is not New Zealand’s policy to provide temporary

protection to recognised refugees, a small number of

cases have occurred in which identity or criminality

issues were not found sufﬁ cient to withhold recognition

of refugee status but were sufﬁ cient to deny Permanent

Residence under New Zealand’s Immigration Policy.

These persons were issued temporary (usually three-

year) work permits.

5.3.3. Stateless Persons

New Zealand is not a signatory to the 1954 Convention

relating to the Status of Stateless Persons. However,

New Zealand refugee jurisprudence recognises that

stateless persons may also be refugees. All other

elements of the refugee deﬁ nition being satisﬁ ed, a key

consideration is the nexus between the persecution the

stateless refugee claimant might suffer and the reasons

for that persecution. It is recognised that some, but

not all, situations of statelessness occur because of

grounds outlined in Article 1(A) of the 1951 Convention.

6 Decision-Making and

Status

6.1 Inclusion Criteria

6.1.1. Convention Refugee

Convention refugee status is granted on the basis of the

1951 Convention and its 1967 Protocol, with reference

made to the relevant case law, where appropriate.

6.2 The Decision

Following receipt of ﬁ nal submissions from the claimant

and his or her counsel, the Refugee Status Branch

(RSB) provides a reasoned decision to the claimant

along with relevant information on either appeal rights

or settlement in New Zealand.

All decisions by RSOs at the RSB or the RSAA,

including negative decisions, are made in writing and

are fully reasoned.

A decision to reject a claim includes information on the

refugee claimant’s right to appeal.

If the RSO recognises the claimant as a refugee, the

written decision includes information on applying for

3 See the annexe to this chapter for a summary of New Zealand

case law on determination practices.

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residence in New Zealand and other settlement-related

information.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

Decisions

Decision outcomes for refugee claims can only be to

recognise, approve or decline refugee status. The RSO

and RSAA have no power other than to confer or remove

refugee status. The matter is separate from questions

of permits, which they are barred from considering.

Beneﬁ ts

Refugee status recognition allows the refugee to apply

for a Permanent Residence permit. This is usually

granted, unless concerns arise as to criminality in

New Zealand or serious identity-related concerns. If

the Permanent Residence application is refused, the

refugee will be issued temporary permits to remain and

work in New Zealand.

Permanent Residence allows a person to access a range

of rights near equal to those of a citizen. Refugees may

apply for a refugee travel document. After ﬁ ve years in

New Zealand as a Permanent Resident, the person may

apply for citizenship.

Recognised refugees may apply for accommodation

assistance on the same basis as all New Zealanders.

Refugees can access health care on the same basis

as New Zealand citizens. On application for permanent

residence, refugees must undertake medical tests.

However, a satisfactory health standard is waived for

refugee permanent-residence applicants.

Recognised refugees may sponsor their spouse and

dependant children to come to New Zealand during

the course of their Permanent Residence Application.

Unaccompanied minor refugees may sponsor their

parents. Refugees without any immediate family

may sponsor more distant family members under the

Refugee Family Support Category. This policy uses a

ballot system that provides 300 places a year for family

members of refugees who are without family other than

dependent children in New Zealand.

6.4 Exclusion

6.4.1. Refugee Protection

The exclusion clause is applied in refugee claims and may

lead to a claim being declined. RSOs and Members of

the RSAA consider grounds for exclusion provided for in

Article 1F of the 1951 Convention in every case in which

they are relevant. If a claim is declined by an RSO on the

grounds of Article 1F, the appeal to RSAA is considered

afresh, regarding questions of inclusion and exclusion.

New Zealand refugee jurisprudence follows Canadian

approaches to exclusion, in cases such as Ramirez,

Sivakimar and Mugasera.

Persons subject to exclusion will not be issued a

permit and will usually be denied permission to remain.

However, effecting removal of such persons can be

prevented by New Zealand’s obligations under Article

3 of CAT, or more commonly by operational difﬁ culties

effecting removals to particular countries.

6.4.2. Complementary Protection

As noted, there is no formal process for consideration

of complementary forms of protection in asylum

processes in the current Immigration Act. The intention

of the new Bill, once it is passed, is that the exclusion

clause (Article 1F of the 1951 Convention) will not apply

to complementary protection under ICCPR or CAT.

6.5 Cessation

Cessation of refugee status is only rarely utilised in

New Zealand. The policy of providing refugees access

to permanent residence and citizenship to promote

settlement in New Zealand precludes the effectiveness

of application of cessation in all but exceptional cases.

However, cessation provisions exist in New Zealand

law and have been applied in a small number of cases.

In order to determine refugee status cessation, an RSO must

determine that the refugee no longer requires international

protection because of the reasons given in Article 1C of the

1951 Convention. Before reaching such a decision, the RSO

must notify the person concerned that the matter is to be

considered and provide to him or her information on which

he or she intends to base this decision. An interview may

be requested by the subject. If cessation is applied, then

the decision may be appealed to the RSAA.

6.6 Cancellation

Refugee status may be cancelled by an RSO if the

original decision to grant status was made by an RSO.

However, if refugee status was recognised by the RSAA,

then an RSO may make an application to the RSAA

only to reconsider its decision.

Refugee status cancellation may apply in one of the

following cases:

• Refugee status may have been obtained by

fraud, for

gery, false or misleading representation,

or by concealment of relevant information

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• I

n any case where the matters dealt with in

Articles 1E or 1F of the 1951 Convention were

not properly considered for any reason, including

fraud, forgery, false or misleading representation,

or by concealment of relevant information.

On receipt of new information to indicate fraud or such

events, a RSO conducts a brief investigation and issues

one of the following recommendations:

• Status quo: the evidence is irrelevant, insubstantial

or insufﬁ

cient to cancel refugee status

• Further investigation required: the evidence is

compelling but cannot stand alone to cancel

refugee status

• Proceed to cancellation: the evidence is strong

enough to cancel r

efugee status.

If the decision is to proceed, the RSO sends a Notice

of Intended Determination concerning loss of refugee

status, outlining the reasons why the refugee is being

investigated for cancellation. The Notice includes

copies of the evidence that the RSB holds relevant to

the intended cancellation. The respondent has the right

to request an interview within 20 days of being notiﬁ ed.

The enquiry into cancellation is a two-stage process, in

which it is ﬁ rst determined whether refugee status was

procured by fraud, and secondly whether there is any

”fresh” reason to consider the subject a refugee; that

is, whether despite the fraud there is reason to consider

the person a refugee. Thus, the outcome of the case

will be one of the following decisions:

• The determination of refugee status was properly

made, and is r

etained

• The determination of refugee status was

impr

operly made, but the respondent is a

refugee, so refugee status is retained

• Refugee status was improperly made and the

espondent is not a refugee, so refugee status

is cancelled.

In the last of these outcomes, the decision may be

appealed to the RSAA.

s noted above, in the case of refugees recognised as

such by the RSAA, the RSO can apply to the RSAA to

reconsider its decision. In such a case, an RSO serves

documentation concerning the matter on the RSAA who,

provided he or she believes there is a case to answer,

will then notify the ”refugee” of the cancellation enquiry.

From that stage, the RSAA will follow a process, in

considering whether cancellation is appropriate, similar

to that outlined for RSOs. Thus, whether on appeal or by

way of application to the RSAA, the case is then dealt

with in the same two-stage manner as outlined above.

When refugee status is cancelled by the RSAA, the

person may be subject to removal, or may face

revocation of permits, including the Permanent

Residence permit, and thus be subject to removal. If

the person is a New Zealand citizen, it is possible to

remove citizenship if it is established that the citizenship

was procured based on fraudulent information.

6.7 Support and Tools for

Decision-Makers

6.7.1. Country of Origin Information

The Refugee Research and Information Branch (RRIB),

located within Immigration New Zealand, provides

open-source country of origin information (COI) to

refugee decision-makers at the RSB and the RSAA,

as well as to other ofﬁ cials of INZ.

The RRIB undertakes in-depth research on the history,

traditions, culture, languages, social groups, human

Box 4:

Recent Major Developments in INZ’s COI Service

The Refugee Research and Information Branch (RRIB) was established in 1996 in Auckland as the Nicholson Library to

serve the information needs of ofﬁ cials making decisions on asylum claims. In 2005, the Wellington Research Unit was

created to provide parallel information services to the Immigration Proﬁ ling Group, which processes applications from

“high-risk” applications. Between 1997 and 2008, the stafﬁ ng level of the RRIB was increased from one to close to eight

full-time employees, all of whom are qualiﬁ ed librarians.

Over the last decade, the research requests made by decision-makers to the RRIB have become increasingly complex in nature.

RRIB has responded to demand for its services by creating more advanced electronic databases, including an online catalogue

introduced in 2008, and a database for tracking requests and searching for documents. The RRIB has also enhanced its presence

on the Department of Labour Intranet site, which allows ofﬁ cials to have more efﬁ cient access to RRIB country information.

Increasingly, the RRIB is providing country information to other areas of Immigration New Zealand, including the Refugee

Quota Branch and offshore branches of INZ.

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rights, politics, war crimes and counter-proliferation

efforts in countries of origin. This information is presented

in country background packs, situation reports, thematic

papers as well as bi-weekly bulletins. The RRIB also

has resources to translate documents from a number

of languages and is available to provide seminars to

decision-makers and other ofﬁ cials on selected countries

or themes as well as on the use of COI resources.

The RRIB makes available its thematic resource guides,

fact sheets and major COI reports on the Department

of Labour Intranet so ofﬁ cials may have easy access

to the material.

6.7.2. Contacts Abroad

RSOs have access to verification services by a

contracted agency in foreign countries, and, where

applicable, they may ask New Zealand government staff

in diplomatic embassies or consulates or Immigration

branches to provide veriﬁ cation assistance.

In cases where refugees have a travel or immigration

history in a third country, RSOs may request that the

country provide information on the refugee claimant,

particularly in relation to travel, refugee claim information,

immigration status or serious criminal information.

6.7.3. Contacts inside New Zealand

If the claimant has been in New Zealand for a signiﬁ cant

period of time, the RSO may request information from

third parties or other government departments that may

be relevant to deciding the claim.

As noted above, in cases where age is at issue, the

RSO may request that the claimant undergo a medical

age assessment. Consent is required.

6.7.4. Language Analysis

Language analysis has been carried out under contract with

a Swedish company, but is very rarely used. The reliability of

language analysis has been criticised by the RSAA.

6.7.5. Quality Check

All decisions on asylum claims made by the RSO

must pass through a second-person check, and this

can involve assistance to an RSO by a peer or a more

experienced RSO on the individual case.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

RSOs may request that refugee claimants provide copies

of their ﬁ ngerprints to assist in establishing their identity

or nationality. Fingerprinting requires the cooperation of

the Police, as at present INZ does not have resources to

take or match ﬁ ngerprints. Fingerprints may be checked

against the New Zealand Police ﬁ ngerprint database or

that of foreign jurisdictions.

7.1.2. DNA Tests

DNA tests are not routinely undertaken, but have been

carried out to determine family links with the refugee

claimant’s consent. These tests may be requested, but

it is not mandatory for asylum-seekers to comply. The

testing is carried out by a contracted medical company.

7.1.3. Forensic Testing of Documents

RSOs have access to forensic document examination

experts within INZ, who will examine documents as

required. This service is rarely used as documentation in

refugee-producing countries is usually considered to be

of limited value given the ease with which fraudulently

issued genuine documents may be obtained.

7.1.4. Database of Asylum

Applications/Applicants

The RSB has an Access database of refugee claimants

for case management rather than decision-making.

The RSB Access database records procedural and

other information related to the refugee claimant or

possible cancellation subject. The database supports

the RSB information needs of the centralised INZ case

management database, known as the Application

Management System.

7.2 Length of Procedures

As noted above, there are no time limits for applications

for refugee status at ﬁ rst instance. The appeal timeframe

is within 10 days of decline or ﬁ ve days in the case of

a detained refugee claimant. However, the RSAA may

allow an out-of-time appeal if it sees ﬁ t to do so.

There is no time limit in law for deciding cases. However,

the Department of Labour expects claims to be decided

within 20 weeks. The average time from application to

decision is 13 weeks at ﬁ rst instance and four months

on appeal.

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7.3 Pending Cases

New Zealand does not have a backlog of cases at

present. At the end of 2008, there were 80 claims on

hand at ﬁ rst instance.

Around the year 2000, there was a signiﬁ cant backlog of

cases, such that decision times were approaching three

years at ﬁ rst instance. In response to this, claims made

before a speciﬁ ed date were backlogged and allocated

to a specific team, while newly incoming cases were

immediately allocated for determination. Since the backlog

has been cleared, claim numbers have remained low.

7.4 Information Sharing

New Zealand does not currently have information-

sharing agreements in place with third parties.

Third parties outside New Zealand requesting

information must comply with section 141AA of the

Immigration Act 1987, and if the information concerns a

refugee, they must comply with the Act’s section 129T.

Section 129T allows conﬁ dential information regarding

a refugee claim to be disclosed to the following persons:

• A person necessarily involved in the

determination of the r

elevant refugee claim

• An officer or employee of a New Zealand

gover

nment department, or Crown agency

whose function requires knowledge of the

particulars of a refugee claim

• A representative of the UNHCR.

Information concer

ning a refugee claim may also be

disclosed to other persons only if there is no serious

possibility that the safety of the person would be

endangered.

7.5 Single Procedure

New Zealand is considering establishing a single

procedure system in its Immigration Bill. The purpose

of the single procedure would be to ensure all of New

Zealand’s immigration-related humanitarian obligations

are addressed as fully and efﬁ ciently as possible.

8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance and

Interpretation Services

Asylum-seekers are entitled to the advice of legal

counsel as well as to an independent interpreter during

the interview with the RSO and on appeal to the RSAA.

The services of interpreters are provided by the INZ.

Box 6:

Immigration Advisor’s Authority

An Immigration Advisors Act, introduced in 2007,

requires immigration advisors who work on behalf

of would-be immigrants and refugee claimants to be

registered with a regulatory body. The Act also sets out

criteria for anyone wishing to practise as an immigration

advisor, and stipulates a code of conduct for advisors.

An oversight body, the Immigration Advisor’s Authority,

has been established to investigate and take action on

breaches of the advisor’s conduct provisions, including

banning persons from working as advisors.

Box 5:

Cooperation with UNHCR, Non-governmental Organisations (NGOs)

While claims to refugee status are reported to the UNHCR regional ofﬁ ce in Canberra, Australia, the UNHCR does

not have a direct role in the determination procedure. In accordance with its supervisory role, UNHCR engages the

government by, for example, making representations, often on special invitation, on legal matters, policy changes

or practices as they relate to asylum. Recommendations made by UNHCR on ensuring consistency with the 1951

Convention, UNHCR positions, country of origin information and best practices are well received by the government.

Additionally, UNHCR provides non-binding feedback to RSB on decisions made on an annual basis.

The RSAA has one ex ofﬁ cio Member, who is a representative of the UNHCR. However, this position has not been

exercised in at least ten years.

NGOs, particularly the New Zealand Refugee Council, Auckland Refugee Council, and Amnesty International, have

an advocacy function primarily, and no formal role in refugee claim decision-making.

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Legal aid is available for making refugee claims and

appeals, and is provided on the basis of the asylum-

seeker’s income (it must be below NZD 42,000 annually)

and the claim’s prospects of success. If the claim is

considered by the Legal Services Agency (LSA) to be

unfounded, then legal aid will be denied. This decision

is made by the LSA after receipt of an application for

a grant of legal aid by the refugee claimant’s counsel,

usually at the beginning of the asylum procedure.

Decisions to deny legal aid may be appealed to LSA

peer review and to the independent Legal Aid Review

Board.

Legal aid is also available in matters of cancellation

of refugee status, subject to the requirements of a

prospect of success for the subject, and the ﬁ nancial

circumstances test.

Box 7:

New Zealand Case Law: Access to Legal

Aid

In the case of Legal Services Agency v. Hosseini

(CIV 2005-404-743, NZHS 21 February 2006), it

was found that legal aid must be made available

in refugee status matters. To be eligible for legal

aid, the refugee claimant must satisfy national

requirements that there be a reasonable prospect

of success for his or her case and that he or she has

a low annual income.

8.1.2. UNHCR

While an asylum applicant has the right to contact the

UNHCR, UNHCR submissions to the authorities are in

practice limited to those subjects reﬂ ecting signiﬁ cant

differences in interpretation of the Refugee Convention

or any problems that may be viewed as systemic.

8.1.3. NGOs

While NGOs in New Zealand are involved mainly in

policy advocacy, some provide day-to-day support to

asylum-seekers. For example, the Auckland Refugee

Council runs an accommodation hostel for asylum-

seekers while the Shakti Asian Women’s Safe House

Inc. provides shelter and support to asylum-seekers

and other persons without permanent residence who

are victims of domestic violence.

8.2 Reception Beneﬁ ts

Asylum-seekers who have been placed in a low-security

detention (accommodation) centre are not issued

permits to remain in New Zealand, and therefore cannot

legally work in New Zealand, but have their basic needs

met by the accommodation centre and are provided a

small weekly allowance (see below).

8.2.1. Accommodation

Asylum-seekers who are not subject to detention for

the duration of the procedure may make their own

arrangements for accommodation. However, the hostel run

by the Auckland Refugee Council provides accommodation

to refugee claimants and failed asylum-seekers.

8.2.2. Social Assistance

Asylum-seekers may apply for unemployment beneﬁ ts

(“income assistance”) on the same basis as Permanent

Residents or citizens, if they are not being held in detention.

Refugee claimants detained in the low-security

Mangere Accommodation Centre have their basic

needs provided for and receive a weekly stipend

depending on their age, as follows:

• 20 years and older: NZD 21

• 16-20 years: NZD 15

• 0-15 years: NZD 5.

Refugee claimants who have been r

efused permits but

who are not subject to detention measures are provided

NZD 85 per week to cover food and other necessities

other than accommodation, which is provided.

8.2.3. Health Care

Refugee claimants have access to New Zealand’s full

range of health care on the same basis as citizens.

Refugee claimants are encouraged to undertake free

health screening. The screening covers a range of

health tests, including tests for general health and

tests for communicable diseases. All claimants are

encouraged to take the test at the beginning of the

asylum procedure.

8.2.4. Education

Schooling for any child aged ﬁ ve to 16 is mandatory,

regardless of immigration or other status. Child refugee

claimants are thus issued student permits to allow them

to attend school.

8.2.5. Access to Labour Market

Refugee claimants may apply for a work permit

while waiting for a decision. If they are unable to ﬁ nd

employment, and are otherwise unable to support

themselves, they may claim the “income assistance”

beneﬁ t, as may all New Zealanders who are unemployed.

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In many cases, especially for families, a work permit

will be issued to allow the claimant(s) to either work or

access welfare provisions.

8.2.6. Access to Integration

Programmes

Asylum-seekers detained in low-security centres have

access to integration or settlement information, English

lessons and recreational activities. Once recognised

as such, refugees have access to a range of settlement

assistance as detailed below under Integration.

8.2.7. Access to Beneﬁ ts by Rejected

Asylum-Seekers

There is no provision in the Immigration Act 1987 for

support to failed refugee claimants, whether a barrier

to departure exists or not. In some cases, based on

humanitarian grounds, consideration may be given to

grant failed asylum-seekers temporary work permits

until such time as the barrier to departure no longer

exists. This is based on a case-by-case approach, and

failed asylum-seekers have no entitlement or right to a

permit under section 35A (Minister’s intervention).

Failed refugee claimants may have access to

government funding for emergency health care

services. Their children are issued student permits in

order to attend school.

9 Status and Permits

Granted outside the

Asylum Procedure

9.1 Humanitarian Grounds

Humanitarian grounds are considered separately from

the refugee determination procedure. Leave to remain

on humanitarian grounds is granted when there are

exceptional circumstances of a humanitarian nature that

would make it unjust or unduly harsh for the person to be

returned to his or her country of origin. His or her stay in

New Zealand may not be contrary to the public interest.

Determining whether or not allowing a person to remain is

in the public interest generally requires an assessment of

the person’s criminal history, and as a result, of whether

he or she poses a threat to public safety.

Compliance Ofﬁ cers within INZ’s Border Security Group

will consider these grounds. In addition, the Minister of

Immigration may consider these factors when deciding

whether or not to prevent a removal.

If a Compliance Officer considers that there are

no “exceptional circumstances of a humanitarian

nature,” this matter may be raised in an appeal to the

independent Removal Review Authority.

9.2 Policy Grounds (Bona Fide

Migrants)

While Immigration Officers, including Compliance

Officers, may issue a permit to a rejected asylum-

seeker, it is not possible for rejected asylum-seekers

to apply for a permit. Persons who have not been

granted refugee status but who would otherwise

qualify for a work or residence permit under current

immigration policy (based on qualiﬁ cations, skills and

work experience) may be issued a permit to remain

in New Zealand by INZ provided they meet the policy

criteria, including character and health requirements.

9.3 Temporary Withholding of

Removal/Risk Assessment

As noted, the assessment of humanitarian leave to

remain is a risk-based assessment for both the failed

refugee claimant and New Zealand society (public

interest test). There may be a stay on removal of

nationals from particular states because of generalised

violence in those states. The Minister of Immigration

and INZ, Compliance Ofﬁ cers are guided by UNHCR

return advisories in this regard, and a case-by-case

decision-making process is applied.

9.4 Obstacles to Return

If there are obstacles to return, there will be a case-by-

case assessment of whether the person’s status should

be regularised in New Zealand. There is no policy

regarding stateless persons outside of the refugee

process. However, as removal may be impossible,

regularisation on a case-by-case basis may be

considered. The general principle is that a person not

entitled to remain in New Zealand has a responsibility

to effect his or her own departure.

9.5 Temporary Protection

As noted above, temporary protection may be provided

by INZ by way of long-term permits issued to a failed

refugee claimant whose removal from New Zealand was

stopped by obligations under the CAT.

4 Health and character requirements are described in the INZ

operational policy manual: applicants must be found to not pose

a risk to public health (such as by carrying infectious diseases)

and to not be a signiﬁ cant ﬁ nancial burden (over NZD 25,000) on

the public health care system. Regarding character, applicants

must show they have not been convicted of a serious criminal

offence (subject to more than ﬁ ve years’ imprisonment at any

time in the past or to more than one year’s imprisonment in the

previous ten years). Permanent residence will not be issued to a

person deemed by the Minister of Immigration to be a security

risk, a member of a criminal organisation or someone who has

supported terrorist activities.

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9.6 Group-based Protection

There is no group-based protection procedure in place,

as every case is individually assessed. However, as

noted, removal decisions will take into account UNHCR

advisories. Temporary protection (stay of removal) may

also be extended to groups in cases of natural disasters

or other regional catastrophes.

9.7 Regularisation of Status over

Time

While there is no speciﬁ c policy regarding regularisation

over time, circumstances of being “well settled” may

be considered by Compliance Ofﬁ cers or the Minister

of Immigration on a case-by-case basis provided doing

so is not contrary to the public interest.

10 Return

The section of INZ’s Border Security Group called

Compliance Operations is responsible for the return

and removal of failed asylum-seekers.

10.1 Pre-departure Considerations

New Zealand’s immigration laws provide for the removal

of both failed refugee claimants and refugees on

grounds of national security.

10.2 Procedure

The New Zealand procedure for removal includes a

humanitarian interview that is conducted to establish

whether there are any special circumstances that might

affect a person’s removal.

As noted above, from time to time, New Zealand will

designate certain states as ones to which removal

should be temporarily suspended, and this is generally

in accordance with UNHCR return advisories.

10.3 Freedom of Movement/

Detention

Those whose claims have been ﬁ nally rejected are

required to leave New Zealand. In general, voluntary

departure is promoted and is achieved with the

cooperation of the person. If a person refuses to

cooperate, or absconds and is later located, that

person may be detained. The courts have determined

that indeﬁ nite detention is not consistent with New

Zealand law. Thus, after a period of some months, a

failed claimant who is detained and cannot be removed

may be released.

10.4 Readmission Agreements

New Zealand has not signed any readmission

agreements with countries of origin or third countries.

11 Integration

With approximately one third of New Zealand citizens

born abroad, the New Zealand settlement strategy aims

at integrating all newcomers, including refugees, with

mainstream services. Immigration New Zealand has a

dedicated integration section, called the Settlement

Division, the role of which is to assist all newcomers

to integrate or settle in New Zealand. Newcomers are

deﬁ ned as those who have been in New Zealand for

less than two years. The INZ’s Settlement Division

funds organisations, both government and private, to

assist newcomers to ﬁ nd work, housing, education

opportunities, health services and language courses,

and to develop their own communities.

UNHCR mandated refugees brought to New Zealand

under its quota programme (resettled refugees) start

the integration process earlier. Such refugees apply for

and receive a residence permit before they arrive in New

Zealand. They initially undergo a six-week orientation

course at the Mangere Refugee Resettlement Centre,

following which they have access to work, education,

health, beneﬁ ts and welfare on the same basis as all

New Zealanders. They can also access all services

offered through the Settlement Division.

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12 Annexe

12.1 Selections from the Immigration Act (1987)

129B Deﬁ nitions

(1) In this Part, unless the context otherwise requires:

authority means the Refugee Status Appeals Authority referred to in section 129N

claim means a claim in New Zealand to be recognised as a refugee in New Zealand

claimant, or refugee status claimant, means a person who has made a claim in New Zealand to be recognised as

a refugee in New Zealand and whose claim has not been ﬁ nally determined under this Act

129C Refugee status to be determined under this Part

(1) Every person in New Zealand who seeks to be recognised as a refugee in New Zealand under the Refugee

Convention is to have that claim determined in accordance with this Part.

(2) Every question as to whether a person in New Zealand should continue to be recognised as a refugee in New

Zealand under the Refugee Convention is to be determined in accordance with this Part.

Section 129C: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129J Limitation on subsequent claims for refugee status

(1) A refugee status ofﬁ cer may not consider a claim for refugee status by a person who has already had a claim

for refugee status ﬁ nally determined in

New Zealand unless the ofﬁ cer is satisﬁ ed that, since that determination, circumstances in the claimant’s home

country have changed to such an extent that the further claim is based on signiﬁ cantly different grounds to the

previous claim.

(2) In any such subsequent claim, the claimant may not challenge any ﬁ nding of credibility or fact made in relation

to a previous claim, and the ofﬁ cer may rely on any such ﬁ nding.

129K Claim not to be accepted from holder of residence permit or New Zealand citizen

(1) A refugee status ofﬁ cer may not consider a claim for refugee status by a person who is

(a) the holder of a residence permit; or

(b) a New Zealand citizen; or

(2) This section does not affect the power of an ofﬁ cer to determine the question of such a person’s continued

refugee status arising under section 129L.

Section 129K: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129U Special provision relating to refugee status claimants granted temporary permits

5 Immigration Act 1987 (last amended 1999), 21 April 1987, available online on UNHCR Refworld at: http://www.unhcr.org/cgi-bin/texis/vtx/

refworld/rwmain?page=search&docid=3ae6b5e50&skip=0&query=New%20zealand [accessed 27 February 2009].

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(1) This section applies to any person who

(a) is a refugee status claimant to whom a temporary permit has been granted on or after 1 October 1999 (whether

before or after the person became a claimant); or

(b) having been a person to whom paragraph (a) applies, ceases to be a refugee status claimant by virtue of having

his or her claim under this Part to be recognised as a refugee declined.

(2) A person to whom this section applies may not, whether before or after the expiry of the temporary permit,

(a) apply for a further temporary permit or for a permit of a different type while in New Zealand; or

(b) while in New Zealand, request a special direction, or a permit under section 35A; or

(3) Despite subsection (2)(a), a claimant may apply for a further temporary permit for such period as may be required

to maintain the claimant’s lawful status in New Zealand while the claim is determined.

(4) Nothing in this section prevents a person from bringing an appeal to the Removal Review Authority under Part 2.

(5) This section ceases to apply to a person if and when his or her claim under this Part to be recognised as a

refugee is successful.

12.2 New Zealand Case Law: Determination Practices

New Zealand’s refugee determination case law is most developed at the Refugee Status Appeals Authority (RSAA),

with courts having mainly upheld RSAA judgments.

Cases from the late 1980’s saw the RSAA and the New Zealand courts interpreting the 1951 Convention seeking

assistance from UNHCR publications, especially the Handbook on Procedures and Criteria for Determining Refugee

Status, Australian and Canadian jurisprudence, and academic work.

With regard to credibility, New Zealand courts have maintained that only the highest standards of fairness sufﬁ ce in

refugee matters.

Courts have also directed that while a person claiming refugee status has the burden of establishing

the elements of the claim, that rule should not be applied mechanically.

A “well-founded fear of being persecuted” is considered to require a “real chance” of serious harm and a failure of

state protection. New Zealand has followed the test, as formulated by the High Court of Australia in Chan v. Minister

for Immigration and Ethnic Affairs (1989) 169 CLR 379.

Core norms of international human rights law are used to

deﬁ ne the forms of serious harm amounting to persecution.

State protection analysis has drawn on the Canadian case of Ward

and required that the protection be effective

protection that is sufﬁ cient to reduce the risk of being persecuted to below that of a real chance.

“Being persecuted” is read as focusing on the consequences to the victim, rather than the state of mind of the agent

of persecution. Moreover, that agent need not be a state.

Importantly, there is no requirement for the refugee to

avoid the risk of harm where doing so is an exercise of a protected right.

6 Particularly Hathaway J., The Law of Refugee Status (1991) Toronto and Vancouver: Butterworths.

7 Khalon v. Attorney General (Minister of Immigration) [1996] 1 NZLR 458. The decision concerned whether notice of a proposed adverse

credibility ﬁ nding must be given, and found that while there needed to be notice, this notice needed to be reasonably clear.

8 Butler v. Attorney General [1999] NZLR 205.

9 This test was adopted in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991).

10 Refugee Appeal No 74665/03 [2005] NZLR 60; [2005] INLR 68 at [36] - [125]).

11 Canada (Attorney General) v. Ward [1993] 2 SCR 689, 709 (SC:Can).

12 Refugee Appeal Nos. 1/91 and 2/91 Re TLY and LAB (11 July 1991).

13 Refugee Appeal No. 1312/93 (30 August 1995).

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The reasons for a person being persecuted need not be solely or mainly Convention grounds (for example, religion)

to qualify as Convention-related. The persecution will be “for reasons of” a Convention ground if Convention-related

factors are found by the decision-maker to be a “contributing cause” to the claimant’s well-founded fear of being

persecuted.

New Zealand has interpreted “particular social group” using a eusem generis approach.

The meaning assigned to

“particular social group” takes into account the underlying themes of respect for human rights and anti-discrimination

that underpin international refugee protection.

Three possible categories can be identiﬁ ed:

• Groups deﬁ

ned by an innate or unchangeable characteristic

• Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they

should not be for

ced to forsake the association

• Groups associated by a former voluntary status, unalterable due to its historical permanence.

The ﬁ

rst category includes persons fearing persecution on the basis of gender, linguistic background and sexual

orientation, while the second encompasses, for example, human rights activists. The third branch is included more

because of historical intentions, although it is also relevant to the anti-discrimination inﬂ uences, in that one’s past

is an immutable part of the person.

Claims concerning “generalised violence” or civil war were addressed by the RSAA in Refugee Appeal No. 71462/99

(27 September 1999) , where it was noted that equality of risk of harm must not be confused with the equality of

reason for that harm. The well-foundedness element (i.e., the risk of persecution) is a separate inquiry to that of

the ‘for reason of’ element (i.e., the nexus issue). Assessing the well-foundedness of claims originating in civil war

situations involves consideration of two fundamental issues:

• Whether the anticipated state-tolerated harm is of sufﬁ

cient gravity to constitute persecution

• Whether there is a connection between the risk faced and a Convention reason for the imposition of that harm.

Inter

nal Protection / Flight / Relocation has recently been re-examined by the RSAA. The Canadian approach based

in protection was reafﬁ rmed as the preferred New Zealand approach, rather than those of the UK, Australia and the

European Union, which were characterised as looking to the question of risk rather than the existence of protection.

Regarding claims to refugee status by stateless persons the New Zealand approach has been that stateless

persons may be refugees if they face a well-founded fear of being persecuted for a Convention reason, but are not

automatically per se refugees.

Turning from the Convention’s inclusion clauses, the New Zealand approach to exclusion under Article 1F has been

to predominantly follow Canadian approaches, including Sivakumar, Ramirez, and Mugasera. However, there is no

balancing exercise undertaken between the acts committed by the claimant and the threat to their life and security

should they return to their home country.

14 Refugee Appeal No.73635 (8 September 2001).

15 Op cit note 1.

16 Refugee Appeal No. 71427/99 (16 August 2000). See also Refugee Appeal No. 1312/93 Re GJ (30 August 1995).

17 Refugee Appeal No. 71427/99 (16 August 2000) at [98]. See also Refugee Appeal No. 1312/93 Re GJ (30 August 1995) at ‘Particular Social Group’.

18 Refugee Appeal No. 76044 (11 September 2008). The RSAA addressed and rejected Januzi v. Secretary of State for the Home Department

[2006] 2 AC 426 and AH (Sudan) v. Secretary of State for the Home Department [2007] 3 WLR 832. It also declined to follow SZATV v. Minister

for Immigration and Citizenship (2007) 237 ALR 634 and SZFDV v. Minister for Immigration and Citizenship (2007) 237 ALR 660.

19 Refugee Appeal No. 72635/01 (6 September 2002)

20 Refugee Appeal No. 71398/99 (10 February 2000).

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

NZL

12.3 Additional Statistical Information

200

400

600

800

1,000

1,200

1,400

1,600

1,800

1997 2002 2008

South Korea

Fiji

Hungary

Zimbabwe

Thailand

India

China

Sri Lanka

Iran

Iraq

Figure 4:

Asylum Applications from Top Five Countries of Origin for 1997, 2002 and 2008

Geneva Convention

Status

Humanitarian

Status and Other

Authorisations

to Remain

Rejections Other Decisions

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1998

260 23% 0 0% 890 77% 0 0% 1,150

1999

536 22% 0 0% 1,932 78% 0 0% 2,468

2000

467 21% 0 0% 1,708 79% 0 0% 2,175

2001

311 13% 0 0% 2,091 87% 0 0% 2,402

2002

627 24% 0 0% 2,002 76% 0 0% 2,629

2003

247 19% 0 0% 1,042 81% 0 0% 1,289

2004

115 14% 0 0% 686 86% 0 0% 801

2005

81 16% 0 0% 418 84% 0 0% 499

2006

68 20% 0 0% 272 80% 0 0% 340

2007

66 25% 0 0% 199 75% 0 0% 265

2008

91 36% 0 0% 164 64% 0 0% 255

Figure 5:

Decisions Made at the First Instance, 1998-2008

Norway

NOR

277 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

278 - NATIONAL LEGAL FRAMEWORK

279 - INSTITUTIONAL FRAMEWORK

279 - PRE-ENTRY MEASURES

280 - ASYLUM PROCEDURES

285 - DECISION-MAKING AND STATUS

288 - E

FFICIENCY AND INTEGRITY MEASURES

289 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

291 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

292 - R

ETURN

293 - INTEGRATION

294 - ANNEXE

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

NOR

1 Background: Major Asylum

Trends and Developments

Asylum Applications

In the early 1980’s, asylum applications made in

Norway were in the hundreds per year. The numbers

started to increase in 1986, reaching a ﬁ rst peak of

12,800 in 1993. Numbers decreased signiﬁ cantly from

1994 to 1997 and increased again in the late 1990’s to

reach a second peak of 17,500 in 2002. The intake of

asylum applications began to decline in 2003, reaching

a low of some 5,300 in 2005 and 2006. In the second

half of 2007, the number started to increase, reaching

more than 6,500 that year. In 2008 there were 14,431

applications.

Top Nationalities

In the 1990’s, the highest number of applicants came

from the former Yugoslavia, Somalia, Sri Lanka, Iran,

and Iraq. Since 2000, countries of origin accounting for

the greatest number of applicants have included the

former Yugoslavia, Iraq, Eritrea, Afghanistan, Somalia,

and Russia.

Important Reforms

The Act concerning the Entry of Foreign Nationals into

the Kingdom of Norway and their Presence in the Realm

(Immigration Act of 1988) replaced the Immigration Act

of 1956 and established the Norwegian Directorate of

Immigration (Ultendingsdirektoratet, UDI) on 1 January

1988. This new body represented a reorganisation of

responsibility for immigration policy and immigration-

related activities.

Prior to the creation of the UDI, responsibility for

migration policy had been spread among several

ministries. Since then, the UDI has grown considerably,

both in the range of its responsibilities and in the level of

human resources. The Directorate took over responsibility

for interviewing asylum-seekers in 2000, a task previously

performed by the police. In January 2006, the responsibility

for integration and inclusion was assigned to a separate

directorate, the Directorate of Integration and Diversity

(Integrerings- og mangfoldsdirektoratet, IMDi).

The Norwegian Immigration Appeals Board (Dette er

Utlendingsnemnda, UNE), an independent, quasi-

judicial body, was established in 2001 to hear appeals

against decisions made by UDI. Prior to the creation

of the Board, the Ministry of Justice was responsible

for hearing appeals.

A revised Immigration and Asylum Act will come into

force on 1 January 2010.

Figure 2:

Top Five Countries of Origin in 2008

1 Iraq 3,137

2 Eritrea 1 799,

3 Afghanistan 1 363,

4 Somalia 1 293,

5 Russia 1,078

1 Both the UDI and the Directorate of Integration and Diversity

report to the Ministry of Labour and Social Inclusion.

2 For more information on the new Act, please see the section

below on Pending Reforms.

200

8,613

3,962

12,876

1,460

17,480

5,320

14,431

2,000

4,000

6,000

8,000

10,000

12,000

14,000

16,000

18,000

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Figure 1:

Evolution of Asylum Applications in Norway

278

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

The asylum procedure and the competencies of asylum

institutions are governed by the Norwegian Immigration

Act of 1988 (and the Immigration Regulations based on

the Act). The 1951 Convention relating to the Status

of Refugees (section 16, para.1) and the European

Convention on Human Rights (ECHR) (section 3) are

incorporated in the Immigration Act by reference.

According to section 4 of the Immigration Act, the Act

shall be applied in accordance with the international

rules by which Norway is bound, when these are

intended to strengthen the position of a foreign national.

2.2 Pending Reforms

A revised Immigration and Asylum Act was passed by

the Norwegian Parliament in April 2008, and will enter

into force on 1 January 2010.

In the revised Act, the term “refugee” will comprise both

persons falling within the deﬁ nition of the 1951Convention

and other persons in need of international protection.

Every person who has the right to international protection

in accordance with Norway’s international obligations

will be granted refugee status and given the rights and

beneﬁ ts corresponding to this status.

The revised Act includes new clauses directly

incorporating the 1951 Convention criteria for Convention

refugee status, exclusion from Convention refugee status,

and a clause referring to Article 35 of the Convention,

thereby formalising the requirement to cooperate with

the United Nations High Commissioner for Refugees

(UNHCR). The Regulations that will accompany the new

Act will include a clause emphasising the normative

weight of UNHCR recommendations on protection. The

Regulations will stipulate that, where Norwegian practice

is found to conﬂ ict with such recommendations, the case

will, as a rule, be referred to the Immigration Appeals

Board for a hearing before the Grand Board.

An important goal for the Norwegian government is to

reinforce the legal protection of minors. The revised act will,

inter alia, strengthen children’s right to family reuniﬁ cation.

The revised Immigration and Asylum Act includes

a new and stronger provision concerning pro forma

marriages, and the government has presented several

new initiatives to combat forced marriages, which will

be implemented in the Regulations. In addition, there

will be changes regarding removal and expulsion. This

will enhance the possibility for authorities to react to

breaches of the Immigration and Asylum Act.

Under the current Immigration Act, a foreign national

who does not have a permit to reside in Norway may

be removed when he or she has been sentenced in

Norway for a criminal offence that is punishable by

imprisonment for a term of three months or more.

Foreign nationals with a residence permit have greater

protection against removal as the criminal offence must

be punishable by a term of imprisonment for one year

or more.

A distinction is made between an expulsion decision and a removal

decision. Expulsion entails that a foreign national must leave Norway

and may only re-enter if special conditions are met. The person will

normally also be entered into the Schengen Information System (SIS).

A decision for removal entails that the person must leave Norway, but

he or she will not be denied subsequent re-entry. A person who has

received a removal decision will not be entered into SIS.

500

1,000

1,500

2,000

2,500

3,000

3,500

4,000

4,500

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Iraq Eritrea Afghanistan

Figure 3:

Evolution of Applications from Top Three Countries of Origin for 2008

279

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

NOR

According to the new Immigration and Asylum Act,

a foreign national should not be able to invoke the

extended protection against removal, even if he or she

was granted a residence permit at the time the sentence

was imposed, if the criminal offence was committed

before the permit was granted.

According to the current Immigration Act, a foreign

national who satisﬁ es the conditions for a settlement

permit may, as a rule, be removed only if the criminal

offence is punishable by imprisonment for a term of

two years or more. According to the new Immigration

and Asylum Act, only a person who has been granted

a permanent residence permit will be able to invoke

extended protection against removal. Further, if the

criminal offence was committed before the permit

was granted, the foreign national would not be able

to invoke such protection even if he or she had been

granted a permanent residence permit at the time the

sentence was imposed.

3 Institutional Framework

3.1 Principal Institutions

The Ministry of Labour and Social Inclusion

(AID)

The Ministry of Labour and Social Inclusion (Arbeids-

og inkluderingsdepartementet, AID) has overall

responsibility for refugee, immigration, and integration

policies. The Ministry supervises the Directorate of

Immigration (UDI), the Directorate of Integration and

Diversity (IMDi), and the Norwegian Immigration Appeals

Board (UNE) through Acts, regulations, budgets and

letters of budgetary allocation. Although the Ministry

may instruct the Board through legislation, regulations,

budget, and general priorities, it may not instruct the

Board on interpretations of the law, the exercise of

discretion or decision of individual cases.

The Directorate of Immigration (UDI)

The UDI implements provisions in the Immigration Act by

processing applications for various types of residence

and work permits, and ensuring that refugees receive

protection through the asylum application consideration

process. The UDI also gives professional input into the

development of policies and regulations.

The Norwegian Immigration Appeals Board

(UNE)

The Norwegian Immigration Appeals Board (UNE) is an

independent, quasi-judicial appeals board that handles

appeals of rejections by the Directorate of Immigration

(UDI), pursuant to the Immigration Act. A special body

within UNE, a Grand Board, reviews cases on issues

of principle, cases with wide-ranging economic and

social consequences, as well as cases in which the

board’s practice varies. Decisions of the Grand Board

are precedent-setting for other cases.

Police

The National Police Immigration Service and the 27

Police districts are responsible for a range of tasks in

the ﬁ eld of immigration, both in asylum cases and in

other cases. This includes border control, registration,

and identity checks in asylum cases. The Police also

handle the removal of asylum-seekers who have

had their applications rejected. The Police report

to the Ministry of Justice and the Police (Justis- og

politidepartementet, JD).

The Directorate of Integration and Diversity

(IMDi)

The IMDi was established on 1 January 2006 to act as

a centre of excellence and a driving force for integration

and diversity. The directorate cooperates with immigrant

organisations or groups, municipalities, government

agencies, and the private sector. It provides advice and

implements government policy. The IMDi’s goal is to

contribute to equality in living conditions and diversity

through employment, integration, and participation.

A Single Asylum Procedure

Both the UDI and UNE have full authority to deal

with every aspect of a particular case. Refugee

protection and complementary forms of protection

are assessed within a single asylum procedure. The

UDI and UNE will, if asylum or subsidiary protection

is not granted, also take into account and examine

the case for the existence of other “humanitarian”

reasons (such as serious health problems) or other

(immigration) grounds (such as a particular connection

or ties that the person may have with Norway) for

granting a residence permit. All of these grounds will

be considered during the procedure, if raised by the

applicant or considered relevant to the case by the

decision-makers.

4 Pre-entry Measures

In order to enter Norway, foreign nationals must have a

valid travel document, such as a passport. In addition,

some foreign nationals must have a visa issued

by Norway or one of the other States parties to the

Schengen Agreement.

280

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

4.1 Visa Requirements

The Directorate of Immigration (UDI) is the competent

authority for issuing visas. However, this authority has been

delegated to a majority of Norwegian diplomatic missions.

Where there is no Norwegian diplomatic presence in a

host country, the authority for issuing visas is delegated to

the diplomatic mission of another country. If a diplomatic

mission has rejected an application for a visa, the applicant

is entitled to appeal the decision to UDI. If UDI has rejected

the application in the ﬁ rst instance, the decision may be

appealed to the Immigration Appeals Board (UNE).

4.2 Carrier Sanctions

Carrier sanctions are applicable to airplanes and ships.

According to the Immigration Act, administrative ﬁ nes

may be imposed on private or public carriers if it is found

that they have transported into Norway passengers who

are not in possession of a valid travel document.

4.3 Interception

Norway does not engage in interception activities.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

Applications for asylum may be made at airports, at

seaports, at the border and in-country at a police station.

Applicants at these locations are sent to the National

Police Immigration Service in Oslo for registration, and

are accommodated at a transit centre. Persons over

the age of 18 must ﬁ le their own asylum claims, while

a parent or an appointed guardian may make a claim

for children under the age of 18. A separate claim may

be made for a child born to a mother who is awaiting a

decision on her own claim for asylum in Norway.

Not all diplomatic missions accept applications for

asylum claims. Norway also runs an annual resettlement

programme.

Access to Information

Information for asylum-seekers on the application

process, privileges and obligations is provided by a

non-governmental organisation (NGO).

The police will inform the applicant about his or her

rights and duties, the asylum process, and his or her

obligation to cooperate with the Norwegian immigration

authorities during the procedure.

Applicants are also informed that forced marriages are

illegal in Norway, while asylum-seekers from certain

nationalities are also informed that female genital

mutilation (FGM) is illegal and punishable under

Norwegian law.

UDI is responsible for providing additional

information while the applicants are accommodated

in transit reception centres. The applicants are given

information on the asylum process in Norway, their

rights and obligations, and the importance of giving

complete and correct information to UDI on their

reason(s) for applying for asylum. Furthermore, the

applicants are informed of the consequences of the

different outcomes, including the right to appeal if

the application is rejected and their duty to leave the

country after a ﬁ nal rejection. They are also informed

of the possibility of beneﬁ ting from assisted voluntary

return through the International Organization for

Migration (IOM), and given information on involuntary

(forced) return conducted by the police.

UDI has published leaﬂ ets in a number of different

languages regarding the normal asylum procedure

and the accelerated procedures. UDI has also

produced two informational videos in up to 15

different languages: one on the general asylum

procedure and another on the accelerated 48-hour

procedure. Furthermore, leaflets on the Dublin

procedure are available in 17 languages, while

those on unaccompanied minor asylum-seekers

(UMAs) have been produced in 13 languages. The

Norwegian Organisation for Asylum-Seekers (Norsk

Organisasjon for Asylsøkere, NOAS), an NGO, is

responsible for distributing this information on

behalf of UDI. Representatives from NOAS organise

viewings of the ﬁ lms and are available for one-on-

one conversations with each applicant in order to

provide information tailored to each person, answer

any questions he or she may have, and prepare him

or her for the interview with UDI.

Representatives of IOM are also present at the transit

centre and provide information on assisted return to

rejected asylum-seekers who wish to return voluntarily

to the country of origin.

5.1.1. Outside the Country

Applications at Diplomatic Missions

Asylum applications cannot be processed at diplomatic

missions. However, a person may apply for asylum in

Norway at a diplomatic mission abroad. The application

is forwarded to the UDI for consideration, although in

the past applications made at diplomatic missions have

been denied on the basis that the asylum-seeker was

not physically at the Norwegian border or in Norway.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

NOR

Resettlement/Quota Refugees

Norway has in place an annual resettlement programme.

The Ministry of Labour and Social Inclusion establishes

the composition of the quota based on an assessment

of resettlement needs by UNHCR, as well as on

consultations with other Ministries, UDI and the

Directorate of Integration and Diversity (IMDi). The UDI is

responsible for the selection of refugees for resettlement.

The decision is not subject to appeal. IMDi is responsible

for the placement and integration of resettled refugees.

In 2008, the resettlement quota was 1,200 places. The

size of the quota has varied between 1,000 and 1,500

during the last few years.

Resettlement selection is made on a dossier basis and

through selection missions. An entry visa and a residence

or work permit are issued prior to departure for Norway.

In dossier cases, status determination is made following

entry. In the case of selections made following a selection

mission, determination is made prior to arrival.

The following considerations are applied to the decisions:

• The need for international protection

• The need for resettlement.

The possibility of ﬁ

nding other durable solutions is also

considered in the short as well as in the longer term.

At least 55 per cent of the total number of persons

resettled under the quota system are women, including

“women at risk.”

Norway has a medical sub-quota. When refugees with

medical needs and victims of violence and torture

require special treatment, the availability of appropriate

medical services in Norway is considered before

decisions are made.

There is also an emergency sub-quota. Norway offers

accelerated processing in situations where a refugee’s

life or freedom depends on emergency resettlement.

Exclusion

Persons who come under the exclusion clauses of

the 1951 Convention shall, as a rule, not be offered

resettlement in Norway.

Persons known to be criminals or heavy drug users are

also, as a rule, not to be offered resettlement in Norway.

5.1.2. At Ports of Entry

Persons arriving at a border post who wish to make a

claim for asylum are usually directed to the National

Police Immigration Service (PU) in Oslo. When an asylum

application is submitted to the PU, the PU registers

the application and conducts a short interview with the

applicant. The aim of the interview is to establish the

person’s family background, including whether he or

she has any relatives or friends in Norway, the travel

route to Norway and the reasons for seeking asylum. If

the applicant is judged to be 14 years of age or older,

the police take the applicant’s ﬁ ngerprints, which are

registered and checked in EURODAC, and try to obtain

any other information regarding ties to States party to

the Dublin II Regulation.

5.1.3. Inside the Territory

Responsibility for Processing the Claim

The Dublin System

Application and Procedure

Norway applies Council Regulation (EC) No 343/2003

in cases where asylum-seekers ﬁ rst submitted their

application or were granted a residence permit

or a Schengen visa by a State party to the Dublin

II Regulation. However, an exception is made for

unaccompanied minor asylum-seekers (UAMs).

When an asylum application is submitted to the National

Police Immigration Service (PU), the PU registers the

application, carries out a short interview with the

applicant, takes the applicant’s ﬁ ngerprints, which are

registered and checked in EURODAC, and obtains any

other information regarding any ties the asylum-seeker

may have to States party to the Dublin II Regulation.

The case is then sent to the Directorate of Immigration

(UDI), which decides whether Norway or another

State is responsible for the processing of the asylum

application, pursuant to the Dublin II Regulation and

national legislation.

If the UDI determines that another State is responsible

for the application, it rejects the asylum application

and the applicant must leave Norway. When the

application is rejected, legal counsel is appointed for

the applicant if he or she is not already represented. The

applicant may appeal the decision within three weeks of

notiﬁ cation, and may submit a petition for suspensive

effect within 48 hours of the decision being served. PU

gives the applicant a laissez-passer travel document

and arranges for the applicant to be transferred to the

responsible State.

4 Council Regulation (EC) No 343/2003 of 18 February 2003

establishing the criteria and mechanisms for determining the

Member State responsible for examining an asylum application

lodged in one of the Member States by a third-country national

(Dublin II Regulation).

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Freedom of Movement/Detention

Asylum-seekers whose applications fall under the

Dublin II Regulation may, as a rule, decide whether

they wish to stay at an asylum reception centre or at

a private address while the UDI processes their case.

It is the applicant’s duty to be available at the registered

address. If the applicants are staying at an asylum

reception centre, they must give notice of where they

will be staying, if they are to be away for more than three

days. There are otherwise no limitations on applicants’

freedom of movement.

Detention may be implemented in the following cases:

• The applicant refuses to state his or her identity

or ther

e are reasonable grounds for suspecting

that the person has given a false identity. This

applies to applicants who, for example, present

a false passport or if, during registration,

applicants are found to have tampered with

their ﬁ ngerprints. The detention period cannot

exceed 12 weeks, except on special grounds

• The person has evaded the implementation of

the Dublin II Regulation decision, and detention

is necessary in or

der to secure implementation.

In such cases, the detention period may last up

to two weeks. Detention may be extended only

twice, which means a maximum period of six

weeks’ detention.

As a rule, persons detained on these grounds are

placed in an immigrant detention centre.

Suspension of Dublin Transfers

The Directorate receives and processes petitions for

suspensive effect. The main rule for Dublin cases is

that suspensive effect is not granted. A petition for

suspensive effect may be granted by the Appeals Board

(UNE) in special cases, particularly when the applicant

is able to show that he or she is unﬁ t for travel.

At times, Norway has refrained from transferring certain

vulnerable groups from individual countries, on the

basis of a concrete evaluation of the circumstances.

Furthermore, transfers may be postponed or stopped

if there is information that suggests that the applicant

will be subject to refoulement if he or she is returned

to the responsible State.

Review/Appeal

When the UDI has decided to transfer an applicant

to the responsible State, the applicant has the right

to appeal within three weeks of the decision. The

UDI prepares the appeal before it is forwarded to the

Immigration Appeals Board.

Application and Admissibility

When registering an application for asylum, the police

must determine whether the application fulﬁ ls the criteria

for the normal procedure, the Dublin procedure or the

accelerated procedures (the three-week procedure and

the 48-hour procedure).

All applications, with the exception of those which

are processed under the accelerated procedures, are

then considered by the Directorate’s Dublin unit. The

remaining applications are sent to the coordination

unit for determining whether the application will be

processed under the three-week procedure, before

being distributed to the responsible country unit.

Applications made by persons with a criminal record,

repeat applications made within a year of a final

rejection, and applications presented in order to delay

the enforcement of an earlier or pending decision that

would result in removal are transferred to an accelerated

procedure. During this procedure, the UDI considers

information given to the police during an extended

registration process.

Accelerated Procedures

Forty-Eight-Hour Procedure

On 1 January 2004, Norway introduced the 48-hour

procedure.

The Directorate has developed a list of countries

for

which the Directorate has sufﬁ cient information on the

general security and human rights situation and from

which the majority of applications have often been found

to be manifestly unfounded. An asylum-seeker from one

of these countries will initially have his or her application

processed on its individual merits under the 48-hour

procedure. Following an examination of the claim,

those applications that are not found to be manifestly

unfounded will be removed from the 48-hour procedure.

The list of countries to which the 48-hour procedure

applies is reviewed and updated on a regular basis.

5 As at February 2009, the list included the following countries

and territories: Argentina, Australia, Austria, Barbados, Belgium,

Bulgaria, Canada, Chile, Costa Rica, Croatia, the Czech Republic,

Denmark, Estonia, the Faeroes, the Falklands, Finland, France,

Germany, Gibraltar, Greece, Greenland, Hungary, Iceland, Ireland,

Israel, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg,

Malta, Moldova, Monaco, Mongolia, the Netherlands, New

Zealand, Poland, Portugal, Romania, Slovakia, Slovenia, South

Africa, Spain, Sweden, Switzerland, the UK, the Ukraine, the USA,

the Vatican City State. Applications from nationals of Cyprus are

also considered according to this procedure.

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Applicants in this procedure are accommodated at a transit

reception centre in the Oslo area while awaiting removal.

Three-Week Procedure

The three-week procedure was introduced in June 2005.

Under this procedure, the UDI processes the applications

within three weeks of their registration by the police.

Asylum applications are processed under the three-

week procedure if the applicant hails from one of

the following countries: Albania, Belarus, Bosnia-

Herzegovina, Georgia, Kosovo (minorities excepted),

Macedonia (FYROM), Montenegro, Serbia and Russia

(ethnic Russians). Information on the security and

human rights situation in these countries of origin

is considered to be thorough, and little or no further

investigation or veriﬁ cation is required following the

interview.

There is also an accelerated procedure for asylum-seekers

with a criminal record, who are not in need of protection

and who can be returned to the country of origin.

Appeals

Asylum-seekers whose claims are rejected under the

accelerated procedure may make an appeal before

the Immigration Appeals Board (UNE). A petition for

suspensive effect may be granted, except where the claim

for protection was considered by the UDI to be manifestly

unfounded. When a case is processed within the 48-hour

procedure, the asylum-seeker must submit a petition for

suspensive effect within three hours of notiﬁ cation of the

UDI decision.

Cases processed within the three-week procedure are

given priority in appeal. The Appeals Board makes a

determination on the appeal within three weeks.

Normal Procedure

After the asylum-seeker has been registered with the

police, he or she is sent to a transit reception centre and,

while there, is asked to complete a personal declaration

form (available in 33 languages). The personal

declaration form contains information on the applicant,

any family members, and the basis for seeking asylum.

The application is then forwarded to UDI, which will

conduct an interview with the asylum-seeker.

Interviews are held on Directorate of Immigration

premises or at the transit reception centre by specially

trained UDI asylum caseworkers. The information is

recorded in writing and the transcript of the interview

is read to the applicant. After the interview has been

conducted, the asylum-seeker is moved to a reception

centre while the case is being processed.

Following the interview, caseworkers assess the merits

of the claim in order to come to a decision. The following

aspects of the case are examined in particular:

• Information obtained during the interview, from

the r

egistration form completed with the police

and from the personal declaration form

• Any language tests and other checks (such as

enquiries made to diplomatic missions abr

oad)

• Any other information provided by an organisation,

the applicant or a representative of the applicant

(including a legal representative, if appointed).

Review/Appeal of Asylum Decisions

Immigration Appeals Board

An asylum-seeker whose claim is rejected by the Directorate

of Immigration is assigned a legal representative and given

the option of appealing the decision before the Immigration

Appeals Board (UNE) within three weeks of notiﬁ cation

of the decision. The asylum-seeker may apply for an

extension on the time limit for making an appeal by stating

the reasons for such an extension. The asylum-seeker also

has the option of making a request to reopen the claim if

the deadline for appeal has passed.

The appeal is ﬁ rst processed by the UDI to determine

whether there are any new elements in the case. If

UDI does not amend its original decision, the appeal

is forwarded to the UNE. The appeal has suspensive

effect unless the case was found by the UDI to be

manifestly unfounded.

Appeals may be decided according to a paper-based

process, following a hearing held with the appellant and

his or her legal representative, or following an ad hoc

hearing without the appellant present.

The UNE hearings are chaired by a board leader who is

assisted by two lay board members. The Board leaders

are usually qualiﬁ ed magistrates. Cases submitted to

the hearing process are decided by a majority vote.

Decisions made in individual cases cannot be

reversed by the Ministry, the Government or UNE’s

administration, but may be appealed through the

regular judicial system.

The Grand Board

A Grand Board located within the UNE may review

cases that involve issues of principle, cases with wide-

ranging economic and social consequences, and cases

in which the UNE’s practice has been found to vary.

Three board leaders and four lay board members sit

on the Grand Board.

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Decisions of the Grand Board are precedent setting.

Freedom of Movement during the

Asylum Procedure

Detention

Section 37 (6) of the Aliens Act provides that an asylum-

seeker may be detained by police at the border if, upon

arrival, he or she refuses to state his or her identity or if

there are reasonable grounds to suspect that he or she

has given a false identity. The detention period cannot

exceed 12 weeks except on special grounds. Detained

asylum-seekers are held in an immigration detention

centre or regular prisons. According to Section 41 of

the Immigration Act, detention may also be enforced if

deemed necessary to ensure implementation of a ﬁ nal

negative decision on an asylum claim.

Reporting

Asylum-seekers are obliged to report their whereabouts

to the police, who will register a new address in the

immigration authorities’ data system. If an asylum-

seeker is absent from the reception centre for more than

three days without notice, he or she will be registered

as having moved to an unknown address.

The police may also, as a substitute to detention, decide

that an asylum-seeker must report on a regular basis.

Repeat/Subsequent Applications

A repeat asylum application may be made if the asylum-

seeker provides the authorities with new information

that he or she believes may affect the outcome of the

asylum claim. The UNE decides whether the applicant

will be allowed to remain in the country while his or her

application is being processed.

If a person reapplies after receiving a ﬁ nal rejection on

an initial claim, the UNE is responsible for processing

the claim. However, if the applicant has been in the

country of origin or outside Norway before reapplying,

the UDI will process the application. The applicant has

the right to appeal the UDI’s decision to the UNE.

5.2 Safe Country Concepts

Apart from implementing the Dublin II Regulation and

applying accelerated procedures for asylum claims

from speciﬁ c countries of origin

, Norway does not

have in place any safe country policies.

6 See the section above on Accelerated Procedures for a list of the

countries of origin subject to an accelerated procedure.

5.3 Special Procedures

5.3.1. Unaccompanied Minors

A special unit at the UDI handles applications made

by unaccompanied minor asylum-seekers (UAMs).

The caseworkers in this unit are specially trained to

interview and assess their applications.

There is no minimum age for a person to seek asylum in

Norway. Those claiming to be unaccompanied minors

are registered by the police and placed under the care of

the State Child Welfare programme if they are under 15

years old. Minors of that age group are accommodated

in a centre run by specially trained staff. Those aged

between 15 and 18 are offered accommodation in

separate reception centres while the asylum claim is

processed.

All minors are provided with a guardian who provides

assistance during the asylum procedure. The minor

applicant is also given the assistance of a lawyer free

of charge.

Figure 4:

Unaccompanied Minors: Total Applications per

ear, 2000-2008

916

425

291

349

403

556

561

894

1,374

200

400

600

800

1,000

1,200

1,400

1,600

2000

2001

2002

2003

2004

2005

2006

2007

2008

Age Assessment

Age assessment in the form of dental X-rays is carried

out if there is doubt about the stated age of a minor.

Staff at reception centres, guardians, a lawyer and

teachers may also be asked to provide an opinion on

the age of the minor. The UDI is exploring possibilities

for using X-rays of the hand and medical examinations

by pediatricians as alternative methods of age

assessment.

Age assessment is voluntary and will not be carried out

unless the asylum-seeker conﬁ rms in writing that he or

she agrees to take the test. Consent for age testing is

obtained during the interview.

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5.3.2. Group-based Protection

Group-based protection may be granted in cases of

mass inﬂ ux of displaced persons as a result of conﬂ ict.

According to provisions in the law, the Government may

decide if and when to grant protection to a speciﬁ c

group and when this protection will cease to apply.

A foreign national who is already in Norway may make

an application to be granted protection on a group

basis if he or she is affected by the group designation.

Persons granted protection on this basis are entitled

to a residence or work permit, which does not lead to

permanent residence.

The permit may be renewed or extended for a period

not exceeding three years from the date the applicant

received a permit for the ﬁ rst time. Thereafter, a new

permit may be granted that may constitute a basis for

permanent residence (a settlement permit). A settlement

permit may be granted one year following the renewal of

the protection-based permit, provided that the conditions

that led to the grant of the permit remain applicable.

Any application for asylum made by a person

subsequently granted a permit under group-based

protection may be suspended for a period not exceeding

three years from the date the applicant received a

permit for the ﬁ rst time. When the power to grant group

protection has ceased, or a period of three years has

elapsed since the applicant received a permit the ﬁ rst

time, the person must inform the authorities whether he

or she wishes to pursue the asylum claim. Any decision

to grant a permit and to suspend an application for

asylum is made by the Directorate of Immigration, which

may also delegate these tasks to the Police.

5.3.3. Temporary Protection

Under the single asylum procedure, the UDI may

grant temporary protection to persons who do not

meet the criteria for Convention status or subsidiary

protection but who have other compelling reasons to

be granted a permit. Depending on the circumstances

of the case, the permit granted may be issued with or

without possibilities of renewal, family reuniﬁ cation or

permanent residence (settlement).

Persons who are granted temporary protection are

entitled to the same rights and beneﬁ ts as those who

are granted ordinary permits, but they are not eligible

for the integration programme. The length of stay will

correspond to the period of need, the minimum length

usually being six months.

5.3.4. Stateless Persons

Asylum applications made by stateless persons are

considered in the same manner as are all other asylum

applications. The only unique consideration made is an

assessment of whether the status of statelessness gives

rise to humanitarian considerations if the person is found

to not be in need of international protection. Persons

who have no rights of residence in their host country

and therefore are stateless in the true meaning of the

word, and who cannot be returned to the host country

will be given a residence permit in Norway based on

humanitarian grounds. Such a permit on humanitarian

grounds is granted to stateless persons by the UDI.

6 Decision-Making and

Status

6.1 Inclusion Criteria

Under the single procedure, the UDI will ﬁ rst consider

whether a person meets criteria for Convention refugee

status, then for subsidiary protection, and ﬁ nally for a

permit on humanitarian grounds.

6.1.1. Convention Refugee

Convention refugee status is granted if the following

conditions are met:

• The cause of persecution is connected to one of

the gr

ounds set out in Article 1A(2) of the 1951

Convention

• The persecution is of an individual nature

• Fear of persecution is the reason the applicant

does not wish to r

eturn to his or her country of

origin.

Gender-based persecution and persecution due to

sexual orientation may also provide grounds for asylum.

7 The granting of a residence permit to stateless persons on

humanitarian grounds is different and separate from the granting

of a residence permit to rejected asylum-seekers on humanitarian

grounds, which is a competence of the UNE (see Status and

Permits Granted outside the Asylum Procedure, below).

8 As described below, UDI may also make a decision as follows:

application of the 15-month rule, suspension of removal, grant

of a temporary permit to persons whose identity has not been

established, and determination of a manifestly unfounded claim.

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Box 1:

Asylum Case Law: Defining Who is a

Refugee

A precedent-setting ruling by the Norwegian

Supreme Court in the Abdi case

in 1991 provided

an interpretation of the refugee deﬁ nition found

in the 1951 Convention. According to the Court,

the refugee deﬁ nition has a core area deﬁ ned by

public international law, while outside this core

area, States are allowed a margin of interpretation.

The Court’s decision also raised issues concerning

whether the rejected asylum-seeker, Abdi, could

be considered a refugee “sur place,” and what

constituted a “burden of proof” and “real risk.”

1 Abdi v. Norwegian Ministry of Justice and Police (RT.

1991 s. 586).

6.1.2. Subsidiary Protection

A residence permit may be granted on protection

grounds if a person does not meet the inclusion criteria

for Convention refugee status but runs a risk of torture or

other inhuman or degrading treatment or a situation of

general unrest that may lead to life-threatening danger if

he or she is returned to the country of origin. The grant of

subsidiary protection fulﬁ ls Norway’s obligations under the

ECHR and the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (CAT).

6.1.3. Humanitarian Status

If a person does not meet the criteria for Convention

refugee status or subsidiary protection, decision-

makers must determine whether the asylum-seeker may

be granted a permit on humanitarian grounds. Grounds

such as serious health problems, a situation of armed

conﬂ ict in the country of origin, or child- or gender-

sensitive considerations may lead to the granting of a

permit on humanitarian grounds.

Victims of human trafﬁ cking may also be granted a

residence permit on humanitarian grounds if they do

not qualify for protection.

6.2 The Decision

The UDI caseworker, after having considered all

information pertinent to the asylum claim, presents a

proposal for a decision to a senior caseworker. Both

caseworkers then sign the decision.

Decisions (positive or negative) are always given in writing.

Negative decisions are sent to an appointed lawyer who

will inform the applicant. If the decision is positive, the

UDI sends the decision to the police, who will inform the

applicant in writing. Negative decisions are reasoned.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

UDI may make the following types of decisions:

• Grant of Convention refugee status

• Grant of subsidiary protection

• Grant of humanitarian status

• Grant of a residence permit according to the

15-month rule. This applies when the asylum

claim has been in the procedure for more than

15 months, the applicant is not to blame for

the delay, and the identity of the applicant was

established at an early stage in the procedure

• Suspension of removal – removal may be

suspended as a r

esult of developments in the

country of origin

• Grant of a temporary permit for medical reasons

or on humanitarian gr

ounds in the absence of

an established identity

• Determination of a manifestly unfounded claim.

Beneﬁ ts

Beneﬁ ciaries of Convention refugee status, subsidiary

protection, humanitarian status, and the 15-month rule

are entitled to the following:

• A provisional residence permit, usually valid

for one year

, and with the right of renewal. The

person is entitled to apply for a permanent

residence permit after three years

• Right to work

• Right to family reuniﬁ cation, usually for a spouse

or cohabitant (over the age of 18) and/or children

under the age of 18 without a spouse or cohabitant

• Social beneﬁ ts – beneﬁ ciaries are subject to Act

No. 19 of 28 February 1997 concerning National

Insurance, and are entitled to health care, child

beneﬁ ts, and education.

Beneﬁ ciaries of group-based protection are entitled to

the following:

• A provisional residence permit

• Right to work

• Some social beneﬁ ts.

Beneﬁ

ciaries of suspension of removal have the right

to work during the period of suspension.

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6.4 Exclusion

Exclusion applies to both refugees and beneﬁ ciaries of

subsidiary protection. It does not apply to suspension

of removal. The grounds for exclusion are Article 1F of

the 1951 Convention and security-risk cases. Excluded

persons may be granted a one-year renewable

residence permit if they cannot be returned to the

country of origin.

The UDI considers Article 1F of the 1951 Convention

when examining an asylum claim and has a special unit

responsible for assessing exclusion cases.

If a person has been excluded, he or she has the right

to lodge an appeal within three weeks of notiﬁ cation of

the decision. If the UDI does not amend the decision

before the case proceeds to appeal, the UNE has the

authority to conﬁ rm, change or annul the decision. A

person who has been excluded also has the right to ask

the determining body to review its decision if the right to

appeal is no longer possible. However, the determining

body is not required to consider the request.

According to its obligations under the ECHR and CAT,

Norway does not forcibly return excluded persons. An

excluded person is not entitled to a residence permit

on refugee or subsidiary protection grounds, but

may be granted a residence permit on humanitarian

grounds with or without restrictions depending on the

circumstances of the case. The permit may be renewed

as long as international obligations under ECHR and

CAT pose an obstacle to return. In addition, the permit

may not lead to the possibility of family reuniﬁ cation

and/or obtaining a permanent residence permit.

Application for an immigration passport may also be

rejected in cases of exclusion.

6.5 Cessation

The cessation clauses of the 1951 Convention are

applied in individual cases of expulsion and revocation

of status, as well as when changes have occurred

before asylum applications have been decided. Article

1C of the Convention is incorporated in section 16 of

the Immigration Act.

The cessation clauses do not apply to subsidiary

protection under current Norwegian legislation.

Cessation considerations may be triggered in such

instances as when the Police forward to the UDI

information concerning trips taken by refugees to their

country of origin or when information comes to light

during applications for permit renewals.

9 See the annexe to the chapter for the content of section 16 of the Act.

Each case is considered individually and no concept of

automatic cessation is applied. The main rule, however,

is that return to the country of origin is seen as grounds

for cessation and the refugee must provide a credible

explanation for requiring international protection. Prior

consent from authorities, such as participation in a

voluntary return programme, would normally not lead

to cessation considerations. Because of the relatively

strict practice in relation to Article 1C(1), Article 1C(4)

is rarely invoked.

With regard to changed circumstances, the main

requirement for cessation is whether the claim of

persecution as outlined in Article 1A(2) of the 1951

Convention remains valid. The country situation is

therefore closely monitored and assessed to determine

whether the changed circumstances are lasting.

According to Norwegian Law, the refugee claimant in

question will be notiﬁ ed in advance that the Directorate

of Immigration is considering cancellation of status on

the basis of cessation, and will have the opportunity to

object before a decision is made.

Cessation of refugee status does not automatically lead

to loss of the legal right to stay. According to section

64 of the Immigration Regulation, the Directorate of

Immigration is obliged to consider the granting of other

types of permits in such cases.

6.6 Revocation

In addition to the application of the cessation clauses

of the 1951 Convention (described above), according

to Norwegian law, the UDI may revoke or withdraw

status if it comes to light that the refugee provided

false information or concealed information that had or

would have had an important effect on the decision on

the asylum claim.

The UDI will notify the person in advance if the

Directorate is considering revocation of a person’s

residence permit, and he or she will have the opportunity

to object before a decision is made.

Refugees who receive a decision to revoke status may

appeal within three weeks of notiﬁ cation of the UDI’s

decision. If the UDI does not amend the decision before

it proceeds to appeal, UNE has the authority to conﬁ rm,

change or annul the decision. An asylum-seeker also

has the right to ask the determining body to review its

decision if the right of appeal is no longer possible.

10 The person’s appeal rights are described under the section on

Revocation.

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6.7 Support and Tools for

Decision-Makers

6.7.1. Country of Origin Information

Landinfo is an independent body within the Directorate

of Immigration (UDI) responsible for providing up-to-date

information on asylum-seekers’ countries of origin to

the Directorate of Immigration, the Immigration Appeals

Board and the Ministry of Labour and Social Inclusion.

Landinfo employs regional advisors who collect and

analyse information and produce reports on the political,

human rights, and security situation in countries of origin.

Part of their methodology involves undertaking fact-

ﬁ nding missions to key countries and regions.

All COI reports are accessible to asylum decision-

makers via an internal database. Some COI reports

are also made available to the public on the Landinfo

website (www.landinfo.no/).

6.7.2. Exclusion Unit

On 1 January 2009, the UDI unit handling cases

involving exclusion and security risks was established.

6.7.3. Language Analysis

The police or UDI may conduct a language test by

recording its conversations with asylum-seekers, upon the

asylum-seekers’ consent. The recordings are sent to the

Swedish language analysis ﬁ rm (Språkanalys AB), which

will make a determination on the country or the region of

origin of the applicant. The conclusions of the language

analysis are considered among the many elements that

may determine the ﬁ nal decision of the UDI.

6.7.4. Special Training Unit

The UDI has established its own education unit with the

aim of enhancing the competence of its staff through

tailored training courses.

The Asylum Department also has a speciﬁ c team of

staff members who are responsible for refugee law,

international development and work in this area, and

the law more generally. The team acts as a support unit

for the entire department.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

All foreign nationals, including asylum-seekers, arriving in

Norway have an obligation to provide information on their

identity. To assist with establishing the identity of asylum-

seekers and to determine whether the Dublin II Regulation

is applicable, the National Police Immigration Service in

Oslo takes ﬁ ngerprints at the time of registration. Only

asylum-seekers over the age of 14 are ﬁ ngerprinted.

7.1.2. DNA Tests

While doing so is rare, the UDI may request a DNA test in

asylum cases. Such tests may be used to establish family

ties if doing so is important in making a determination

regarding humanitarian status. DNA tests are much more

frequently used in cases concerning family reuniﬁ cation.

Box 2:

Country of Origin Information (COI) Research as a Specialised Profession in Norway

In the last decade, the provision of COI has undergone important developments, chief among them the increased

professionalisation of the service. In the 1990s, country of origin information was collected in-house by senior

caseworkers at the UDI and the Ministry of Justice, in what was largely a paper-based process. With the creation of

the Immigration Appeals Board in 2001, COI analysts at the Ministry of Justice were transferred to the new appeals

body while a COI documentation unit was established at the UDI. The new documentation unit set out to introduce

an electronic database from which asylum decision-makers could easily have access to all relevant COI.

The creation of Landinfo in 2005 marked a further step in the professionalisation of COI research. Landinfo brought

together COI expertise from the UDI and UNE, consolidating COI services for the ﬁ rst instance (UDI), the Immigration

Appeals Board, and the Ministry of Labour and Social Inclusion within a single, independent entity. Landinfo is staffed

by regional advisors (COI analysts) who, in addition to undertaking fact-ﬁ nding missions, may be called on to provide

expert testimony in asylum court proceedings, and to engage in COI training activities for immigration and asylum

authorities. Increasingly, Landinfo is asked to provide country information not only for asylum decision-makers,

but for a wider range of immigration authorities. The outlook for COI in Norway is one of continued development

towards improving the quality and transparency of Landinfo’s service.

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7.1.3. Forensic Testing of Documents

The UDI may make a request to the police to verify

identity documents when there are doubts about

their authenticity. The documents are sent to the

police department that specialises in fraudulent

documents. Forensic testing of documents is rarely

undertaken in the asylum procedure as most asylum-

seekers claim not to be in possession of identity

documents.

7.1.4. Database of Asylum

Applications/Applicants

All foreign applicants and their applications for asylum

or residence permits in Norway are registered in

a dedicated database. All concerned government

agencies, such as the Police, UDI, and UNE, regularly

update and use the information in the database.

7.2 Length of Procedures

As noted above, there are time limits for turnaround of

decisions in the 48-hour procedure and the three-week

procedure. The claims of unaccompanied minors are

handled on a priority basis.

There are no time limits for asylum-seekers to turn in

their applications or for the turnaround of decisions

under the normal procedure.

7.3 Pending Cases

At the end of 2008, there were 9,314 pending cases.

In order to reduce the backlog, the Directorate

of Immigration has hired additional caseworkers,

reorganised the Asylum Department and introduced

pilot projects.

One of the projects is the application of a fast-track

procedure for particular groups for which a large

proportion of the applications are expected to be

rejected, based on experience with similar applications.

The Directorate of Immigration (UDI) and the Police

established the fast-track pilot in a transit reception

centre in Oslo, to process asylum applications from

Iraqis that can be decided quickly. The objective of the

project is to ensure that the entire procedure, including

registration, interview, processing and decision-making,

becomes more efficient. Having every step of the

process take place at the reception centre is the main

mechanism used to achieve this.

7.4 Information Sharing

Norway is a party to the Dublin II Regulation. Speciﬁ c

information on asylum-seekers may therefore be

released to other States party to the Regulation in

accordance with Article 21 of the Dublin II Regulation.

Information on an asylum-seeker cannot be released

unless the asylum-seeker consents to it.

7.5 Single Procedure

Asylum-seekers need to make only one application for

international protection for the Norwegian authorities

to assess whether they will be granted Convention

refugee status, subsidiary protection or a permit on

humanitarian grounds.

Box 3:

Cooperation with UNHCR

The UNHCR Regional Ofﬁ ce for the Baltic-Nordic

Region, located in Stockholm, Sweden, has no

formal role in the Norwegian asylum procedure.

However, upon the request of a party in the

procedure, UNHCR may provide updated country

of origin information (COI), legal advice or UNHCR’s

recommendations and guidelines. In exceptional

precedent-setting cases, the UNHCR may submit

amicus curiae to the last instance body.

As noted above, the new Immigration and Asylum

Act, which will come into effect in 2010, contains

a reference to cooperating with UNHCR, in

accordance with Article 35 of the 1951 Convention.

8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

Access to legal counsel is regulated through the Legal

Assistance Act, which applies to every person in

Norway, regardless of residence status. Asylum-seekers

are given additional rights through the Immigration Act

and the Administrative Regulation on Fee Rates for

Legal Advisors.

Legal counsel is available to asylum-seekers at the

applicant’s expense. Legal aid is provided by the

authorities in the first instance to unaccompanied

minor asylum-seekers and to applicants who are

found to pose a threat to national security, to whom

exclusion clauses may apply or whose claims may

affect diplomatic relations. In addition, asylum-seekers

11 See the annexe on Selected Regional Instruments for the content

of this provision.

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who have received a negative decision on their claim

are provided the services of a legal counsel for a period

of ﬁ ve hours at the UDI’s expense.

Legal counsel in other matters is available to asylum-

seekers at the applicant’s expense. General free legal aid

regulations may apply and are available to asylum-seekers.

8.1.2. Interpreters

Asylum-seekers have access to the services of an

interpreter and may have any necessary documents

translated throughout the process and at appeal.

The UDI Asylum Department has a separate unit that

provides interpretation, translation, and other language

services. Interpreters, language analysts and translators

are hired from outside the UDI Asylum Department.

The UNE has access to the same pool of interpreters.

8.1.3. UNHCR

The UNHCR Regional Ofﬁ ce in Stockholm responds to

inquiries from asylum-seekers and refugees and provides

general information about the asylum procedure, contact

details of legal counselors as well as contact details of

relevant national institutions. The UNHCR ofﬁ ce also

provides training, advice and information to NGOs and

lawyers who have direct contact with asylum-seekers.

8.1.4. NGOs

The Norwegian Organisation for Asylum-Seekers

(NOAS) aims to advance the interests of asylum-

seekers in Norway. According to NOAS’ principle, the

organisation provides legal aid or general welfare to

persons who seek and/or have been granted asylum

status and protection in Norway.

The services of NOAS, including legal aid, information

provision, academic and political efforts, aim at ensuring

that asylum-seekers have the appropriate judicial and

welfare assistance during the procedure. NOAS may

also act as legal counsel for some asylum-seekers.

8.2 Reception Beneﬁ ts

The Ministry of Labour and Social Inclusion has overall

responsibility for the reception of asylum-seekers.

8.2.1. Accommodation

Transit Centres

Asylum-seekers are initially accommodated in

transit centres where they undergo medical exams

and an interview. Asylum-seekers whose cases are

being handled within the accelerated procedure

(48-hour or three-week) or who are subject to the

Dublin II Regulation are accommodated in transit

centres for the duration of the procedure. Families

with children are offered accommodation in regular

asylum centres.

As a consequence of the large increase in the number

of asylum-seekers since the autumn of 2007, the transit

centres are at full capacity. Therefore, persons with

cases being considered under the Dublin II Regulation

are being temporarily placed at regular asylum centres.

Asylum Centres (Reception Centres)

When the applicant has concluded an asylum interview,

he or she is transferred to an asylum centre, where he or

she is accommodated until a ﬁ nal decision is reached.

Asylum-seekers must take up residence in asylum

centres in order to receive ﬁ nancial support. Alternative

accommodation arrangements may be made in special

cases, such as for those suffering from an illness. They

may stay with family members or be temporarily settled

while their case is being processed.

Asylum-seekers must participate in activities such as

cleaning their own rooms and shared facilities, as well

as in outdoor tasks while they are being accommodated

at asylum centres.

8.2.2. Social Assistance

Asylum-seekers residing at a reception centre receive

a cash allowance from the UDI. The amount of this

allowance varies according to the type of reception

centre (transit or regular) and whether these centres

include canteens.

8.2.3. Health Care

Asylum-seekers have access to the same health care

beneﬁ ts as do other residents of Norway.

8.2.4. Education

Asylum-Seekers Aged Six to 16

Asylum-seeking children, whether accompanied or not,

have the right and obligation to attend primary and

secondary school until the age of 16.

Asylum-Seekers Aged 16 to 18

The municipalities are responsible for vocational

education for asylum-seekers between 16 and 18 years

of age. Persons in this age group may have access to

vocational education, which is necessary for pursuing

further education. The State is responsible for providing

secondary education, to which asylum-seekers have

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access. Asylum-seekers may also apply for ﬁ nancial

support to pursue this education.

Adult Asylum-Seekers

Adult asylum-seekers are entitled to receive Norwegian

language training once they are transferred to regular

reception centres.

8.2.5. Access to Labour Market

Asylum-seekers may be granted a temporary work

permit until their case has been decided. The following

conditions must be met:

• The asylum interview has taken place

• There is no doubt about the identity of the

asylum-seeker

• He or she is above the age of 15. The legal

guar

dian’s consent is necessary if the asylum-

seeker is between 15 and 18 years old.

The permit is valid until a ﬁ nal decision is issued and

if the appeal following the ﬁ rst rejection from the ﬁ rst

instance is given suspensive effect. The temporary

work permit is not granted to persons who may return

voluntarily. The decision to not grant a temporary work

permit cannot be appealed.

8.2.6. Family Reuniﬁ cation

No possibilities for family reuniﬁ cation exist for asylum-

seekers awaiting a ﬁ nal decision on their claim.

8.2.7. Access to Integration

Programmes

As noted above, asylum-seekers are offered Norwegian

language classes at reception centres while they await

a ﬁ nal decision on their claim.

All asylum-seekers must take part in an information

programme about Norwegian society upon their arrival

in reception centres. They can also participate in sports

and cultural activities. The costs of these activities for

children may be covered by the UDI.

8.2.8. Access to Beneﬁ ts by Rejected

Asylum-Seekers

Asylum-seekers who have received a final negative

decision on their claim may no longer be accommodated in

a regular reception centre but are offered accommodation

in a return centre. Rejected asylum-seekers have access

to emergency health care but are required to cover all

medical expenses. They are also provided with a cash

allowance. Children may continue to attend school.

Rejected asylum-seekers may make an application to

work until return is implemented. They are also eligible

for emergency social assistance.

9 Status and Permits

Granted outside the

Asylum Procedure

9.1 Humanitarian Grounds

According to Article 21(C) of the Immigration

Regulations, the Immigration Appeals Board (UNE) may

grant a permit on humanitarian grounds to an asylum-

seeker who has received a ﬁ nal negative decision,

under the following conditions:

• More than three years have passed since his or

her application for asylum was made and it is

not likely that r

emoval will be possible

• There is no doubt about the identity of the

applicant; as a rule, the applicant must have

cooperated to prove his or her identity

• The applicant must have cooperated on return

forts

• There must be no reasons for expulsion, such

as on the gr

ounds of having committed criminal

offences.

A residence permit on humanitarian grounds may

be granted one year after the ﬁ nal negative decision

or later, and not before all asylum procedures are

completed. The permit is renewable, and after three

years a permanent residence permit may be granted.

9.2 Withholding of Removal/Risk

Assessment

Once a negative decision on an appeal has been reached

by the UNE, a rejected asylum-seeker may be removed

from Norway. However, in special cases and on a case-

by-case determination, the UNE may be contacted by the

Police before removal, for a reconsideration of the case.

This may be warranted if the situation in the country of

return has changed since the rejection of the application.

9.3 Temporary Protection

Temporary permits on humanitarian grounds may be

granted in cases in which the person requires speciﬁ c

medical treatment or attention in Norway.

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9.4 Group-based Protection

As described above, the Government may grant group-

based protection in situations of mass influx. The

residence or work permit is temporary (Article 8a of

the Immigration Act and Article 21a of the Immigration

Regulations).

10 Return

10.1 Pre-departure Considerations

Rejected asylum-seekers who are accommodated in

reception centres are given information on the voluntary

return programme (VARP), which is implemented by the

IOM. In addition, obligatory individual counselling is part

of the return preparatory activities in the centres. IOM

is also implementing an outreach information campaign

as part of the VARP information activities. This outreach

information campaign is directed at persons without

a residence permit who are staying outside of the

reception centres.

For Afghan and Iraqi nationals, Norway offers a special

return and reintegration programme that includes

specific information and career planning prior to

departure to their home countries. Beneﬁ ciaries of

these programmes receive reintegration support in cash

as well as in kind after return.

UDI is now in the process of reviewing and looking

into return information routines, procedures and

methodologies in order to improve the provision of

return information.

10.2 Procedure

If the Norwegian authorities reject an application

for asylum, and there are no grounds for granting

a residence permit on protection or humanitarian

grounds, the asylum-seeker must leave the country (as

per Article 41 of the Immigration Act). He or she must

contact the police for an agreement on voluntary return.

Alternatively, the asylum-seeker may apply to the IOM

for assistance with his or her return. If the person does

not leave the country voluntarily, the police may escort

him or her to the country of origin.

12 The content of Article 8a of the Immigration Act can be found in

the annexe to the chapter.

10.3 Freedom of Movement/

Detention

Detention may be implemented if the applicant refuses

to state his or her identity or if there are reasonable

grounds for suspecting that the person has given a false

identity. This condition applies to applicants who, for

example, present a false passport or are found during

registration to have tampered with their ﬁ ngerprints.

The detention period cannot exceed 12 weeks, except

on special grounds.

Detention may also be implemented if it is necessary

in order to secure implementation of a ﬁ nal rejection. In

such cases, the detention period is a maximum of two

weeks. Detention may be extended only twice, which

means a maximum period of detention of six weeks.

The National Police Immigration Service makes the

decision to detain someone pending removal.

10.4 Readmission Agreements

Norway has completed readmission agreements

with the following countries of origin: Afghanistan

(tripartite agreement), Bosnia, Croatia, Moldova,

Romania, Slovakia, Switzerland, Sweden and Vietnam.

A readmission agreement with Russia has been

signed and is now being implemented. Readmission

agreements have also been signed with Hong Kong,

Macedonia (FYROM) and Ukraine. The government

has given high priority to establishing a readmission

agreement with Iraq.

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11 Integration

Established by the Introductory Act of 2005, the

right and obligation to take part in the introductory

programme and Norwegian language classes are

important measures in the Norwegian integration

policy. Refugees, persons granted humanitarian status,

persons who have obtained group-based protection

and their family members between 18 and 55 years of

age have a statutory right and obligation to take part

in the programme.

The purpose of the programme is to provide basic

Norwegian language skills, basic insight into Norwegian

society, and preparation for participation in work life

and/or education. Participants receive an introduction

beneﬁ t that is equivalent to twice the basic amount from

the National Insurance Scheme. The annual beneﬁ t is

now NOK 133,624. The duration of the programme may

be up to two years, with an extension in the case of an

approved absence. Municipalities provide programmes

for immigrant residents as soon as possible after arrival

and no later than three months after a person’s arrival.

Monitoring and evaluation conducted in 2007 indicate

that the effects of the programmes are positive and that

the main elements in the Introductory Act have been

implemented in the municipalities to a large extent.

Since 2005, it is compulsory for certain newly arrived

adult immigrants to take 300 lessons in Norwegian

language and social studies. Beyond the compulsory

instruction, those who have further need for instruction

will have the opportunity to take additional classes

(up to 3,000 lessons, depending on the needs of

the individual). This system applies to those who

are refugees, persons granted humanitarian status,

persons granted group-based protection and their

family members. Persons who come from outside of

the European Economic Area/European Free Trade Area

(EEA/EFTA) and have a work permit are entitled to take

part in 300 lessons of instruction, but have no legal

right to take the courses free of charge. People from

the EEA/EFTA have no legal obligation to take part in

language courses.

Box 4:

The Government’s Commitment to

Integration

The Norwegian Government wishes to pursue

an active integration and social inclusion policy.

As part of the government’s budget for 2009, a

comprehensive Plan of Action for integration

and social inclusion of the immigrant population

was presented. The objectives of the Plan are to

prevent lower participation rates and poorer living

conditions among immigrants than those found

within the population in general; to facilitate

immigrants’ contribution to the Norwegian labour

market and society as quickly as possible; and to

ensure equal opportunities for migrants and their

offspring. Additional labour market measures,

Norwegian language classes, and targeted

assistance for immigrants are also central elements

of the plan.

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12 Annexe

12.1 Selections from the Immigration Act (1988)

CHAPTER 3 PROTECTION AGAINST PERSECUTION (REFUGEES, ETC.)

§ 8 a. Collective protection in a situation of mass outﬂ ow

(...) Any foreign national who is included in the situation of mass outﬂ ow and who comes to the realm or is here

when this section comes into effect, may on application be given protection on the basis of a group assessment

(collective protection). This means that the foreign national is granted a work permit or a residence permit pursuant

to § 8 second paragraph. Such a permit does not constitute a basis for a settlement permit (...)

§ 15. Protection against persecution

Any foreign national must not pursuant to the Act be sent to any area where the foreign national may fear persecution

of such a kind as may justify recognition as a refugee, or where the foreign national will not feel secure against

being sent on to such an area. Corresponding protection shall apply to any foreign national who for reasons similar

to those given in the deﬁ nition of a refugee is in considerable danger of losing his life or of being made to suffer

inhuman treatment.

When the authority with the power of decision in a matter under the Act concludes that any foreign national does

not come under the provisions of the ﬁ rst paragraph of this section, it shall on its own initiative consider whether

the provisions of § 8 second paragraph should be applied.

Protection in accordance with the ﬁ rst paragraph does not apply in the case of any foreign national whom there

are reasonable grounds for regarding as a danger to national security or who, having been convicted by a legally

enforceable judgement of a particularly serious crime, constitutes a danger to the community. Nor does protection

apply when there are circumstances of the kind mentioned in the Convention relating to the Status of Refugees,

Article 1 F.

Protection in accordance with the ﬁ rst paragraph applies in the case of all forms of decision under the Act.

§ 16. Refugee

A refugee within the meaning of the Act is any foreign national who falls under Article 1 A of the Convention relating

to the Status of Refugees of 28 July 1951, cf. the Protocol of 31 January 1967.

Any refugee who falls under Article 1 C - F of the Convention relating to the Status of Refugees may be totally

or partly denied the rights and the protection which are laid down in this Chapter and which do not apply to

administrative procedure.

Nevertheless any refugee who falls under Article 1 C - E cannot be denied protection against persecution pursuant

to § 15.

§ 17. The right to asylum (refuge), etc.

Any refugee who is in the realm or at the Norwegian border has on application the right to asylum (refuge) in the

realm. This does not, however, apply to any refugee who

a) falls under the exceptions to the provisions concerning protection in § 15 third paragraph or § 16 second paragraph,

b) has been granted asylum in another country,

13 Act Concerning the Entry of Foreign Nationals into the Kingdom of Norway and Their Presence in the Realm (Immigration Act) (last amended

28 July 2002), 24 June 1988. Available online on UNHCR Refworld at:

http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=search&docid=3ae6b4fd14&skip=0&query=Norway%20immigration%20act

[accessed 27 February 2009].

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NOR

c) has travelled to Norway on his or her own initiative after having acquired protection in another country, or after

having stayed in a state or area where the refugee was not persecuted nor had any reason to fear repatriation,

d) at the demand of the Norwegian authorities must be accepted by another Nordic state in accordance with the

rules contained in the Nordic Passport Control Convention,

e) must be denied asylum on the grounds of compelling social considerations.

The power to return a refugee to another state pursuant to sub-paragraphs c and d in the ﬁ rst paragraph of this

section shall not be used if the refugee has any connection with the realm which makes Norway the most appropriate

country to give the refugee protection.

The refugee’s spouse or cohabitant and children under the age of 18 years without spouse or cohabitant also have

the right to asylum unless there are particular reasons to the contrary.

Any passport or other travel document of which the applicant is in possession must be submitted together with

the application for asylum.

The King may by regulations lay down that any foreign national who applies for asylum must reside in the municipality

in which the foreign national is placed until the application has been ﬁ nally decided.

Any asylum-seeker may be granted a temporary work permit or residence permit until the application for asylum has

been decided. An asylum-seeker who has received ﬁ nal rejection which for the time being is not being implemented

may on request be granted temporary leave until the rejection is implemented. The King may lay down further rules

by regulations. Such leave is granted by the Directorate of Immigration, which may also empower the police to

grant such leave. Chapters IV to VI of the Public Administration Act concerning preparation of cases, decisions and

appeals do not apply to any decision concerning temporary leave.

Amended by Act No. 5 of 10 Jan. 1997 (commencement 15 June 1997 pursuant to Decree No. 489 of 23 May 1997)

and by Act No. 22 of 30 April 1999 (immediate commencement pursuant to Decree No. 427 of 30 April 1999). To

be amended by Act No. 67 of 16 July 1999 (commencement from such date as the King decides).

§ 18. The effect of asylum

The granting of asylum means that the foreign national has the status of a refugee and is granted a work permit or a

residence permit. The foreign national has the juridical status that follows from Norwegian law and the Convention

relating to the Status of Refugees or any other agreement with a foreign state on refugees.

Asylum granted may be revoked when the refugee no longer falls under the deﬁ nition of a refugee, cf. § 16, or if this

otherwise follows from general rules in public administrative law. Any decision to revoke is made by the Directorate

of Immigration.

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12.2 Statistical information

1,000

2,000

3,000

4,000

5,000

6,000

7,000

8,000

9,000

10,000

1997 2002 2008

Iran

Sri Lanka

Bosnia and Herzegovina

FRY (Yugoslavia)

Russia

Somalia

Afghanistan

Eritrea

Iraq

Figure 5:

Asylum Applications from Top Five Countries of Origin for 1997, 2002 and 2008

Convention Status

Complementary

Protection and Other

Authorisations

to Remain

Rejections Other Decisions*

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1992

63 2% 1,044 26% 2,884 72% 0 0% 3,991

1993

54 1% 471 9% 4,685 90% 0 0% 5,210

1994

22 0% 1,353 28% 2,963 62% 424 9% 4,762

1995

29 1% 913 34% 1,414 53% 320 12% 2,676

1996

6 0% 610 29% 1,410 66% 111 5% 2,137

1997

83 4% 550 23% 1,531 65% 199 8% 2,363

1998

86 2% 1,594 38% 2,260 54% 218 5% 4,158

1999

198 2% 2,609 33% 3,301 41% 1,872 23% 7,980

2000

90 1% 2,864 26% 5,227 47% 2,937 26% 11,118

2001

292 2% 4,036 28% 8,976 61% 1,357 9% 14,661

2002

332 2% 2,958 17% 12,829 72% 1,734 10% 17,853

2003

585 4% 2,972 18% 11,834 72% 1,016 6% 16,407

2004

457 4% 3,023 24% 8,289 66% 752 6% 12,521

2005

579 8% 1,935 26% 4,289 57% 685 9% 7,488

2006

461 11% 1,225 29% 2,025 48% 505 12% 4,216

2007

1,013 16% 1,921 30% 2,945 46% 573 9% 6,451

2008

1,077 11% 1,975 20% 5,963 61% 685 7% 9,700

*Other decisions may include withdrawn claims, abandoned claims or claims otherwise resolved.

Figure 6:

Decisions Made at the First Instance, 1992-2008

Spain

SPA

299 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

300 - NATIONAL LEGAL FRAMEWORK

301 - INSTITUTIONAL FRAMEWORK

301 - PRE-ENTRY MEASURES

301 - ASYLUM PROCEDURES

305 - DECISION-MAKING AND STATUS

307 - E

FFICIENCY AND INTEGRITY MEASURES

308 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

310 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

310 - R

ETURN

311 - INTEGRATION

312 - ANNEXE

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SPA

1 Background: Major Asylum

Trends and Developments

Asylum Applications

From the early to mid-1980’s, Spain was receiving

between 1,000 and 2,500 asylum applications per year.

The numbers increased signiﬁ cantly to 4,500 in 1988

and peaked at over 12,600 in 1993. From 1993 to 1996,

numbers decreased signiﬁ cantly. Annual inﬂ ows in more

recent years have been between 5,000 and 9,000. In

2008, Spain received a total of 4,476 asylum claims,

an important drop from the previous year.

Top Nationalities

In the 1990’s, the majority of asylum-seekers originated

from Romania, Nigeria, Algeria and Cuba. Since 2000,

the top countries of origin have been Colombia, Nigeria,

Algeria, Mali, Guinea (Conakry), Ivory Coast and Cuba.

Figure 2:

Top Five Countries of Origin in 2008*

1 Nigeria

801

2 Colombia

753

3 Ivory Coast

496

4 Somalia

195

5 Algeria

151

First applications only

Important Developments

Law 5/1984 regulating the Right to Asylum and Refugee

Status underwent significant reforms in 1994,

reﬂ ection of Spain’s preoccupation with safeguarding

the integrity of the asylum system against abuse

while also ensuring better protection for refugees.

Key changes included the elimination of dual status

(refugee status and asylum status), the introduction

of an admissibility procedure (screening phase) for

all asylum claims made in-country or at the border,

and the possibility of obtaining a residence permit on

humanitarian grounds.

In addition, the border procedure became an

accelerated procedure, whereby the Ministry of Interior

had four days from the time of application to decide

whether the claim was admissible, and rejected asylum-

seekers had a right of appeal within 24 hours, that

was to be solved in two days. Manifestly unfounded

claims or claims made by persons subject to a transfer

under Council Regulation (EC) No 343/2003

could be

deemed inadmissible. Under Law 1/1996 (10 January),

asylum-seekers became entitled to free legal assistance

if they lacked ﬁ nancial resources.

1 Reforms in 1994 were a result of amendments contained in Law

9/1994.

2 Council Regulation (EC) No 343/2003 of 18 February 2003

establishing the criteria and mechanisms for determining the

Member State responsible for examining an asylum application

lodged in one of the Member States by a third-country national

(Dublin II Regulation).

4,516

8,647

12,615

7,664

1,100

4,730

9,490

5,257

4,476

2,000

4,000

6,000

8,000

0,000

2,000

4,000

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

First applications only

Figure 1:

Evolution of Asylum Applications in Spain, 1983-2008*

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Between 2003 and 2007, further reforms to the asylum

procedure were introduced and included the following:

• The transposition into national law of Council

Dir

ective 2001/55/EC on temporary protection

and Council Directive 2003/9/EC on reception

conditions

• The introduction of grounds for granting

complementary protection to persons who do

not meet the criteria for Convention refugee

status but who run a serious risk to life or physical

integrity if returned to the country of origin

• The granting of a work permit to asylum-seekers

who are awaiting a decision on their claim at the

ﬁ rst instance six months after having made the

application for asylum

• Organic law 3/2007, introduced to regulate

gender equality

, such that persons claiming

gender-based persecution could be recognised

as Convention refugees.

Reforms to the existing Asylum Law are currently being

drafted for consideration by the national Parliament.

Any changes to asylum procedures ﬂ owing from these

reforms would therefore be introduced in the second

half of 2009, at the earliest.

3 Council Directive 2001/55/EC of 20 July 2001 on minimum

standards for giving temporary protection in the event of a mass

inﬂ ux of displaced persons and on measures promoting a balance

of efforts between Member States in receiving such persons and

bearing the consequences thereof (Temporary Protection Directive).

4 Council Directive 2003/9/EC of 27 January 2003 laying down

minimum standards for the reception of asylum-seekers

(Reception Directive).

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

The granting of asylum and refugee status in Spain

is governed by Law 5/1984 regulating the Right to

Asylum and Refugee Status (Asylum Law), amended

by Law 9/1994. A series of regulations, such as those

concerning temporary protection, the rights and

freedoms of foreign nationals and the social integration

of foreign nationals in Spain, also have a bearing on the

asylum procedure.

The European Convention on Human Rights (ECHR)

and the Convention against Torture and other Cruel,

Inhuman or Degrading Treatment or Punishment (CAT)

have been included in national law governing asylum.

2.2 Pending Reforms

As noted above, proposals for reforms to the asylum

procedure are currently being drafted and will be

presented to Parliament. The proposals for reforms

include, inter alia, the transposition into Spanish law

of Council Directive 2004/83/EC

and Council Directive

2005/85/EC

. It is expected that, upon the approval of

Parliament, the reforms will be introduced later in 2009.

5 Council Directive 2004/83/EC of 29 April 2004 on minimum

standards for the qualiﬁ cation and status of third country nationals

or stateless persons as refugees or as persons who otherwise

need international protection and the content of the protection

granted (Qualiﬁ cation Directive).

6 Council Directive 2005/85/EC of 1 December 2005 on minimum

standards on procedures in Member States for granting and

withdrawing refugee status (Asylum Procedures Directive).

500

1,000

1,500

,000

,500

,000

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Nigeria Colombia Ivory coast

First applications only

Figure 3:

Evolution of Applications* from Top Three Countries of Origin for 2008

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SPA

3 Institutional Framework

3.1 Principal Institutions

The Asylum and Refuge Office (Oficina de Asilo y

Refugio, OAR), which falls under the responsibility of the

General Direction for Internal Policy (Ministry of Interior),

receives asylum applications and examines all asylum

claims made with the Spanish authorities.

The Interministerial Commission on Asylum and Refuge

(Comisión Interministerial de Asilo y Refugio, CIAR)

comprises one representative from each of the Ministry

of Interior, the Ministry of Foreign Affairs, the Ministry

of Justice and the Ministry of Labour and Immigration.

In addition, the United Nations High Commissioner

for Refugees (UNHCR) has a representative who acts

in a consultative capacity. The CIAR has the task of

drawing up proposals for ﬁ rst instance decisions on

asylum claims, and submitting them to the Ministry of

Interior for a formal decision.

The Ministry of Interior makes formal decisions

on asylum applications at the first instance and is

responsible for undertaking administrative review of

negative decisions on asylum claims upon request.

The General Commissariat of Aliens and Borders

(Police) is responsible for issuing documents to asylum-

seekers for the duration of the asylum procedure and for

carrying out transfers under the Dublin II Regulation and

returns of rejected asylum-seekers to their countries

of origin.

The Ministry of Labour and Immigration is responsible

for the reception of asylum-seekers and the integration

of immigrants in Spain.

For information on the institutions responsible for

hearing requests for review of negative decisions on

asylum, please see sections below on Review/Appeal.

3.2 Cooperation between

Government Authorities

The various ministries cooperate at a practical level

throughout the asylum procedure. For example, the OAR

in Madrid houses ofﬁ cials from the Ministry of Interior,

the Police, and the Ministry of Labour and Immigration,

all of whom carry out distinct but interrelated tasks

during the asylum procedure.

4 Pre-entry Measures

4.1 Visa Requirements

To enter Spain, foreign nationals must be in possession

of a valid travel document such as a passport and/or a

visa issued by Spain or one of the other States parties

to the Schengen Agreement.

4.2 Carrier Sanctions

According to the Aliens Law, carrier sanctions are

applicable to sea and air carriers that are found to have

transported onto Spanish territory foreign nationals who

are not in possession of valid travel documents. Fines

range from 3,000€ to 6,000€ for each unauthorised

arrival, and up to a maximum of 500,000€ per person.

4.3 Interception

In accordance with the Law of the Sea, the Spanish Civil

Guard, an organ of the Ministry of Interior, undertakes

rescue operations at sea for migrants attempting to access

Spanish territory without proper authorisation. The purpose

of the Integrated System for Patrolling in the Channels and

at Sea (Sistema Integrado de Vigilancia Exterior, SIVE),

which is implemented around the southern coast of Spain

and the Canary Islands, is to detect activities relating to

both unauthorised migration and drug trafﬁ cking.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

Applications for asylum may be made at border posts

(airports and seaports), in-country and at Spanish

diplomatic missions abroad. In-country applications

may be made as follows:

• At the Asylum and Refuge Ofﬁ

ce (OAR) in Madrid

• At any Immigration ofﬁ ce

• At police stations.

An application for asylum may be made at any time

during a person’s authorised stay in Spain. Persons

who enter Spain without proper authorisation of stay

may apply for asylum within one month of their arrival.

However, persons who wish to make a claim for asylum

on the basis of facts that arose after their leaving the

country of origin may apply for asylum within one month

of the time that these facts arose.

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Access to Information on Procedures

Information on the asylum procedure is made available

in the form of a leaﬂ et published in eleven different

languages. The leaﬂ et provides an overview of the

application and determination process, as well as the

types of status and beneﬁ ts conferred on persons in

need of protection. Upon making an asylum claim, such

as at the OAR in Madrid, asylum-seekers have access

to the assistance of a social worker of the Ministry of

Labour and Immigration, who will provide information

on reception beneﬁ ts.

5.1.1. Outside the Country

Applications at Diplomatic Missions

A person may make a claim for asylum at any Spanish

diplomatic mission in a third country. The asylum-

seeker ﬁ lls out an application form and participates

in an initial interview with an embassy ofﬁ cial. The

information gathered is then forwarded through the

Ministry of Foreign Affairs to the OAR in Madrid, which

examines the claim according to the normal procedure,

which is described below. The decision of the Ministry

of Interior (based on the recommendation of the CIAR)

is sent to the mission, which will communicate it to the

asylum-seeker.

If the decision is to grant asylum, a visa is issued so the

person may travel to Spain, where he or she will obtain

a residence permit. A decision to not grant asylum may

be appealed in the same manner as are in-country

asylum claims.

Resettlement/Quota Refugees

Spain does not currently have a regular resettlement

programme in place but has in the past engaged in

ad hoc resettlement of refugees. For example in 1999,

following a UNHCR appeal, Spain resettled 1,426

Kosovar Albanians under UNHCR’s Humanitarian

Evacuation Programme. In February 2000, Spain

resettled 17 Afghans from Uzbekistan.

According to Law 5/1984 regulating the Right to

Asylum and Refugee Status (Royal Decree 203/1995),

the UNHCR representative in Spain may approach

the Spanish authorities with an urgent request for

admission of a refugee. Arrangements are made by the

Ministry of Foreign Affairs to consider the application

for asylum and issue the travel documents necessary

for the refugee to enter Spain.

7 The review and appeal procedures are described below in

the section Review/Appeal.

5.1.2. At Ports of Entry

The Border Procedure

The same procedure is applied at both airports and

seaports.

Persons arriving at ports of entry (in particular at airports)

without the required documentation to enter Spain may

approach the National Police and express their wish

to apply for asylum. Upon doing so, the persons are

informed of their rights as asylum-seekers, including

access to free legal assistance and the services of an

interpreter to facilitate their application.

Asylum-seekers are required to complete and sign an

asylum application form which is then forwarded to

the OAR. The application is shared with the UNHCR,

which can provide its opinion on the claim. The

OAR must make a recommendation, on the basis

of an examination of the content of the application,

whether or not to admit the applicant to the normal

(protection) procedure, which is described below. This

recommendation is sent to the Ministry of interior, which

will make a formal decision on the admissibility of the

claim.

A decision by the Ministry of Interior to either allow the

application to proceed or to deny the application must

be sent to the port of entry where the application was

made within four days of the time of application.

A negative decision on admissibility at the border

may arise, inter alia, when the claim is considered

manifestly unfounded or when the Dublin II Regulation

is applicable to the claim. An applicant may, within 24

hours of notiﬁ cation of the decision, make a request for

a re-examination (administrative appeal). The request

will be examined by the Minister of Interior, which is

required to make a decision on the appeal within two

days of the request. The request for a re-examination

has suspensive effect.

During the border procedure, the applicant remains at

the port of entry. To this end, adequate accommodation

at the port of entry is provided.

If the decision of the administrative appeal is negative,

the asylum-seeker is required to leave Spain, although

he or she may make a further appeal to the Tribunal.

Any appeals further to the re-examination do not have

suspensive effect.

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5.1.3. Inside the Territory

Responsibility for Processing the Claim

The Dublin System

Application and Procedure

During the admissibility phase of the asylum procedure,

the Dublin Unit of the OAR will determine which European

Union (EU) Member State is responsible for the claim,

according to the terms of the Dublin II Regulation. If it is

found that the asylum-seeker travelled through another

State party to the Regulation before arriving in Spain,

a request for readmission will be made. Otherwise, the

asylum claim proceeds to the normal procedure.

Freedom of Movement/Detention

Asylum-seekers are not detained while awaiting a

transfer under the Dublin procedure.

Conduct of Transfers

Once a request for readmission has been granted, the

Police are responsible for ensuring the transfer of the

asylum-seeker.

Review/Appeal

A decision to transfer an asylum-seeker under the Dublin

II Regulation is a negative decision on the admissibility of

the claim. It can therefore be appealed in the same manner

as other negative decisions on admissibility made in-

country. The Tribunal may suspend the transfer upon the

request of the asylum-seeker, on a case-by-case basis.

Application and Admissibility

In-Country Asylum Claims

Similar to applications made at the border, asylum

applications made in-country are subject to a two-phase

procedure: the admissibility procedure (administrative

go-ahead) and the normal procedure (determining the

eligibility for protection). Applications for asylum must

be made in person and consist of the following:

• A completed application form containing all

equired information

• All relevant identity documents

• Any piece of evidence relevant to the claim.

8 See the section below on Application and Admissibility for more

information on review of negative admissibility decisions.

The ﬁ ngerprints of the asylum-seeker are taken and

the asylum-seeker is issued with an initial document

(“white document”) which identifies the person as

having applied for asylum in Spain.

On the day the application is made, the asylum-seeker

is interviewed. The OAR must make a decision on the

admissibility of the claim – the so-called administrative

go-ahead – for the next phase of the procedure within

60 days of the application.

If the go-ahead is given, the asylum-seeker is issued a

six-month stay permit, which is renewable until a ﬁ nal

decision on the claim is made. If a negative decision

on admissibility is issued, the asylum-seeker has an

obligation to leave Spain.

If the OAR does not meet the 60-day timeframe for

a decision on admissibility, the asylum-seeker’s claim

is automatically granted the administrative go-ahead.

All proposals for a negative decision on admissibility are

communicated to the UNHCR ofﬁ ce in Spain which has

10 days to deliver an opinion on the case to the OAR.

The formal decision on admissibility is then taken by

the Ministry of Interior.

Administrative Go-Ahead

If the application is declared admissible by the OAR

or the Ministry of Interior (the latter in the case of a

re-examination of a claim made at a port of entry),

the application proceeds to the normal (protection)

procedure, which is described below.

Review/Appeal

Any decision on admissibility may be the subject of an

administrative appeal before the Ministry of Interior. The

appeal must be made within one month of the decision.

The Ministry may either conﬁ rm the decision taken or

declare the application admissible.

The Ministry must make its decision within one month

of the request for review. If the Ministry of Interior does

not make a decision within this timeframe, the asylum-

seeker may seek a review before the Central Judges

of the Contencioso Administrativo (Administrative-

Contentious Courts).

The asylum-seeker may also make an appeal of the

decision on inadmissibility or a negative decision

following the administrative appeal, before the Central

Judges of the Contencioso Administrativo within two

months of the negative decision.

The decisions of the Central Judges may be appealed

before the National High Court.

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All appeals, with the exception of the so-called re-

examination (administrative appeal) during the border

procedure, do not have suspensive effect. However,

the asylum-seeker may include in the appeal a request

to remain in Spain until a ﬁ nal decision on the claim is

made. This request is examined on a case-by-case

basis by the relevant appeal body.

Accelerated Procedures

Spain does not have any speciﬁ c accelerated procedures

in place. That said, the admissibility procedure at the

border must be completed within seven days of the

application. This timeframe includes any decision on

a re-examination (administrative appeal) request. By

contrast, the admissibility procedure in-country must

be completed within a 60-day timeframe.

If a decision on admissibility is not made within these

timeframes, the asylum-seeker proceeds automatically

to the normal procedure.

Normal Procedure: The Protection

Procedure

In-country and border asylum applications that are

deemed admissible, along with applications made

at Spanish diplomatic missions, are subject to a

protection (normal) procedure for determining eligibility

for protection.

The claims are examined by a caseworker of the

Protection Procedure Unit of the OAR. The case workers

are divided into geographical desks. Caseworkers

may call asylum-seekers for an interview if doing so is

deemed necessary. Following an examination of all the

information provided and conditions in the country of

origin, the OAR makes a recommendation for a decision

on the claim.

The OAR’s recommendation is forwarded to the CIAR

for its consideration. The CIAR will then send its own

recommendation to the Ministry of Interior for a ﬁ nal

decision.

If the Ministry of Interior disagrees with the

recommendation of the CIAR, the ﬁ nal decision is taken

by the Council of Ministers.

Review/Appeal of Asylum Decisions

Administrative Review

Any decision taken by the Ministry of Interior on an

asylum claim at the ﬁ rst instance may be appealed

9 It should be noted, however, that as at this writing, this procedure

has not been exercised.

to the Ministry of Interior. This administrative appeal

may be made within one month of the decision. The

Ministry can either conﬁ rm the decision taken or annul

the decision and grant the asylum-seeker Convention

refugee status or subsidiary protection. The Ministry

must make its decision within one month of the request

for review. If the Ministry does not make a decision on

the appeal within this timeframe, the asylum-seeker

may appeal directly to the Courts.

If the Ministry of Interior rejects the appeal, the applicant

may pursue a request for judicial review before the

Courts.

Judicial Review

A rejected asylum-seeker may request judicial review

before the National High Court (Audiencia Nacional).

Upon receiving the request, the High Court must notify

the OAR. The OAR will then provide the Court with the

asylum-seeker’s ﬁ le. The National High Court may take

the following decisions:

• Annul the decision and grant asylum (refugee

status) or subsidiary pr

otection

• Uphold the decision

• Return the case to the OAR when there has been

a pr

ocedural error.

A negative decision by the High Court may be appealed

in “cassation” before the Supreme Court (Tribunal

Supremo), which examines the legality of the High

Court’s decision but not the facts of the case. The Court

may uphold or overrule the judgement of the National

High Court in part or in whole.

Reviews and appeals do not have suspensive effect.

However, at each stage of the review or appeal process,

the asylum-seeker may make a request to remain in

Spain until a ﬁ nal decision is made. A decision to allow

an asylum-seeker to remain in Spain during an appeal

is made on a case-by-case basis.

A person may appeal the decision to grant subsidiary

protection in order to obtain Convention refugee status.

Appellants maintain subsidiary protection status during

the judicial procedure. A rejection of the appeal has no

consequences on the appellant’s status.

Freedom of Movement during the

Asylum Procedure

Detention

Asylum-seekers are not detained for the fact of having

applied for asylum.

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Reporting

During the asylum procedure, asylum-seekers have

an obligation to communicate their exact place of

residence and any changes of address to the OAR.

Repeat/Subsequent Applications

Repeat applications are not entered into the

admissibility phase of the asylum procedure, unless

new information pertaining to changed circumstances

in the country of origin is being put forward, and this

new information represents a signiﬁ cant change from

the original application.

An asylum-seeker who has obtained a negative decision

on his or her original claim may also make a request

for a reconsideration of his or her original application if

there is new evidence presented supporting the original

claim.

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

Spain does not have a list of safe countries of origin.

All asylum applications are examined on their individual

merits on a case by case basis, taking into account

conditions in the country of origin.

Asylum claims Made by a Citizen of an EU

Member State

Spain applies the Protocol on Asylum for Nationals of

Member States of the European Union annexed to the

Treaty of Amsterdam. Thus, asylum applications made

by nationals of Member States of the European Union

have been deemed unfounded and have not been

processed.

5.2.2. First Country of Asylum

According to the Asylum Law, if an asylum-seeker has

already obtained asylum or has the right to reside or

to obtain asylum, in a third country, and no danger

to the person’s life or a threat of torture or degrading

treatment exists in that country (that is, there is no

risk of refoulement), the Ministry of Interior may issue

a negative decision on the asylum claim or ﬁ nd the

claim to be inadmissible. In such cases, the person is

required to leave Spain.

5.2.3. Safe Third Country

Spain does not have a list of safe third countries for

use in the asylum procedure. However, the Asylum Law

foresees the possibility of declaring a claim inadmissible

to the normal procedure if the asylum-seeker comes

from a country where he or she can seek protection

and no danger to the person’s life or a threat of torture

or degrading treatment exists in that country (that is,

there is no risk of refoulement.)

5.3 Special Procedures

5.3.1. Unaccompanied Minors

The OAR will prioritise asylum claims made by

unaccompanied minor asylum-seekers (UAMs). In

addition, speciﬁ c procedural standards apply to the

examination of minors’ claims. For example, UAMs are

usually interviewed a second time and are assigned

a legal guardian who is always invited to attend the

interview. Psychologists, social workers and relatives

may also be present at the interview(s). In addition, the

OAR may request that the minors undergo a medical

test to assist in the determination of the person’s age.

5.3.2. Stateless Persons

Stateless persons may apply for asylum and have their

claims processed in the same manner as are other

asylum claims.

6 Decision-Making and

Status

6.1 Inclusion Criteria

When considering the merits of a claim, the OAR must

ﬁ rst consider whether the criteria for granting refugee

status are met. If this is not the case, the OAR will then

consider whether the asylum-seeker meets the criteria

for subsidiary protection.

6.1.1. Convention Refugee

Persons with a well-founded fear of persecution as set

out in the Convention relating to the Status of Refugees

1951 (1951 Convention) and its 1967 Protocol are

granted refugee status.

6.1.2. Subsidiary Protection

According to Article 17(2) of the Law regulating the

Right to Asylum and Refugee Status, a residence permit

may be granted to asylum-seekers who do not meet

the criteria for Convention refugee status but for whom

return to the country of origin may pose a serious risk

to life or a risk to physical integrity.

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6.2 The Decision

Following a thorough examination of the asylum claim,

the caseworker at the Asylum and Refuge Ofﬁ ce (OAR)

is responsible for making a recommendation for a

decision on the claim. The dossier is submitted to the

Interministerial Commission on Asylum and Refuge

(CIAR). The CIAR meets on a regular basis to consider

the proposals of the OAR.

The CIAR is made up of one representative each from the

Ministries of Interior (President and Secretary), Foreign

Affairs and Cooperation, Labour and Immigration, and

Justice. A representative from the UNHCR sits on

the Commission and while he or she does not have a

right of vote, the representative may provide his or her

opinion on the claim.

Following its deliberation, the CIAR forwards its proposal

on a decision to the Ministry of Interior. The Minister

of Interior signs the ﬁ nal decision. If the Minister of

Interior disagrees with the CIAR’s proposal, the Ministry

will submit the claim to the Council of Ministers for a

decision.

Decisions on asylum claims are provided in writing, and

negative decisions are reasoned. Negative decisions

contain information on options for review or appeal as

well as a notiﬁ cation that the asylum-seeker must leave

Spanish territory.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

Upon the recommendation of the CIAR, the Ministry

of Interior may make one of the following decisions on

an asylum claim:

• Grant Convention refugee status

• Grant subsidiary protection

• Grant humanitarian protection

• Reject the application for asylum.

Status and Beneﬁ ts

Convention refugees are eligible for the following

beneﬁ ts:

• Authorisation of residence, with possibility of

applying for citizenship after ﬁ ve

years

• Authorisation to take part in professional and

commer

cial activities

This form of protection is granted by the Ministry of Interior to

persons who do not meet the criteria for Convention refugee status

or subsidiary protection but who present certain humanitarian

grounds for remaining in Spain. See the section below on Status and

Permits Granted outside the Asylum Procedure for more information.

• The necessary travel and identity documents

• Family reuniﬁ cation

• Social assistance beneﬁ ts.

Beneﬁ

ciaries of complementary protection are eligible

for the following beneﬁ ts:

• A temporary residence permit, valid for one year

and r

enewable each year

• Work permit

• The necessary travel and identity documents

• Family reuniﬁ

cation as set out in the Aliens Law

• Social assistance beneﬁ ts.

6.4 Exclusion

The caseworkers at the OAR must consider Article 1F

of the 1951 Convention when examining asylum claims

under the normal procedure. Article 1F is applicable to

both Convention refugee status and complementary

protection. If the exclusion clauses are found to apply

to a claim, the OAR will recommend to the CIAR that

the claim for asylum be denied.

Persons excluded from protection have an obligation to

leave Spanish territory. They may appeal the decision in

the same manner that all other ﬁ nal negative decisions

on asylum claims would be appealed.

Excluded persons who cannot be returned to their

country of origin may remain in Spain. However, no

ofﬁ cial status is granted.

6.5 Cessation

According to the Asylum Law, refugee status ceases

automatically in one of the following circumstances:

• The refugee has obtained Spanish citizenship

• The refugee voluntarily accepts the protection

of his or her country of origin

• The refugee has settled voluntarily in another

country

When there has been a significant change in

circumstances in the country of origin, cessation may

be applied by the asylum authorities, in consultation

with the UNHCR ofﬁ ce in Spain.

The OAR may start a procedure for cessation of status

after a ﬁ nal decision on an asylum claim has been

11 See the section above on Review/Appeal of Asylum Decisions.

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taken at the ﬁ rst instance. The refugee or beneﬁ ciary

of subsidiary protection is informed of the decision

to pursue cessation and will be given an opportunity

to provide evidence or reasons for which his or her

status should not be cancelled. The OAR takes into

account any evidence provided by the person before

making a recommendation to the CIAR on whether or

not to cancel status. The UNHCR is informed of that

recommendation and the CIAR will make the decision.

Under the terms of the Aliens Law, a person whose

status has been ceased may remain in Spain. He or

she may appeal the decision of the CIAR by following

the same procedure followed for negative decisions on

asylum claims at the ﬁ rst instance, as described above.

6.6 Revocation

According to Law 5/1984, refugee status or subsidiary

protection, along with all attendant beneﬁ ts, may be

cancelled if it emerges that the asylum application was

based on falsiﬁ ed information that had a bearing on the

granting of asylum. Cases of serious criminality may

also lead to cancellation of status in accordance with

Articles 1F and 33(2) of the 1951 Convention.

The same procedure is applied for cancellation of status

as for cessation of status, which is described above.

The UNHCR is always informed of decisions to cancel

status.

The decision to revoke status is taken by the Council

of Ministers.

6.7 Support and Tools for

Decision-Makers

6.7.1. Country of Origin Information

The Documentation Unit at the OAR provides

information on countries of origin of asylum-seekers to

caseworkers. The main products offered include proﬁ les

of the top countries of origin and reports focusing on

areas and countries affected by armed conﬂ ict.

The Documentation Unit also maintains a database that

stores links to the most important Internet resources

on country information.

In addition to gathering country of origin information

(COI), the Documentation Unit is responsible for

organising all training activities – both on COI and

on other practical asylum-related matters – for

caseworkers and other staff of the OAR involved in

the asylum procedure. The Documentation Unit takes

active part in international training activities.

6.7.2. Language Analysis

The OAR does not use language analysis for the

purposes of examining asylum claims.

6.7.3. Other Support Tools

In addition to the country information provided by the

COI Unit, decision-makers also have access to reports

produced by Spanish diplomatic missions on speciﬁ c

countries of origin or in response to a request for

information on a speciﬁ c asylum case.

Caseworkers have the UNHCR Handbook on

Procedures and Criteria for Determining Refugee Status

as well as guidelines on gender-based claims at their

disposal.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

Fingerprints of asylum-seekers aged 14 years and

older are taken by the Police at the time the asylum

application is made. One of the purposes of taking

ﬁ ngerprints is to assist the OAR in determining the

State responsible for examining the asylum claim, in

accordance with the Dublin II Regulation and Council

Regulation (EC) No 2725/2000.

7.1.2. DNA Tests

DNA tests are rarely required and may be requested

in cases in which a family member was not initially

included on an asylum application, and alleged family

links need to be veriﬁ ed.

7.1.3. Forensic Testing of Documents

The OAR may make a request to the Police for

authentication of identity documents, in such cases

when there are doubts about the authenticity of these

documents.

7.1.4. Database of Asylum

Applications/Applicants

The Police authorities involved in the asylum procedure

have access to the Central Aliens Registry, which

12 Council Regulation (EC) No 2725/2000 of 11 December 2000

concerning the establishment of EURODAC for the comparaison

of ﬁ ngerprints for the effective application of the Dublin Convention

(Eurodac Regulation).

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contains data on all foreign nationals who have come

into contact with government authorities.

7.2 Length of Procedures

An application for asylum may be made at any time

during a person’s authorised stay in Spain. Persons

who enter Spain without proper authorisation of stay

may apply for asylum within one month of their arrival

in the country.

As stated above, decisions on admissibility at the

border – including decisions on a request for a re-

examination to the Ministry of Interior – must be taken

within seven days of the application. Admissibility

decisions on asylum claims made in-country must be

taken within 60 days. The normal procedure occurs

within a six-month timeframe.

7.3 Pending Cases

At the end of 2008, the number of pending cases before

the OAR stood at 4,270.

7.4 Information Sharing

Under Spanish law, the OAR is required to share

information on individual asylum claims with the

UNHCR ofﬁ ce in Spain. This procedure is described

in the section below on cooperation with the UNHCR.

Within the government, information on asylum matters

may be shared by the OAR with other Ministries and

administrative units that deal with asylum matters.

The only information-sharing agreements to which

Spain is party are the Dublin II Regulation and the

agreements with Denmark, Norway, Iceland and

Switzerland that extend the application of the Dublin

II Regulation to those States. Speciﬁ c information on

asylum-seekers may be released to other EU Member

States, in accordance with Article 21 of the Dublin II

Regulation.

7.5 Single Procedure

A single procedure for considering whether an asylum-

seeker meets the criteria for Convention refugee status

or subsidiary protection is in place. The OAR must

consider both sets of criteria when making a proposal

for a decision to the CIAR.

Box 1:

Cooperation with UNHCR

The UNHCR plays a key role in various aspects of

the asylum procedure.

Asylum applications are forwarded to the UNHCR

upon request and the UNHCR can be present at

the interviews and share its reports on individual

claims with the OAR.

As described above, the UNHCR office in Spain is

involved in providing an opinion on the admissibility

of asylum claims made at the border. With regard

to in-country asylum claims, the UNHCR must be

informed of all negative proposals on admissibility and

is given 10 days to provide an opinion on the matter.

A representative of the UNHCR takes part in the

Interministerial Commission on Asylum and Refuge

(CIAR), which makes proposals for decisions on

asylum claims at the ﬁ rst instance. In this context,

while the UNHCR does not have a right of vote,

it analyses all cases sent to the Commission and

makes recommendations and provides its opinion

as appropriate.

8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance and

Interpretation

Article 4 of the Asylum Law and Article 8.4 of the

regulation adopted by Royal Decree 203/1995 (10

February) state that asylum-seekers are entitled to

interpretation services and legal assistance during the

asylum procedure.

The OAR has full-time interpreters for certain languages

at the disposal of asylum-seekers at the time of

application. Asylum-seekers may have legal counsel

present during the interviews and may continue to

beneﬁ t from legal aid during the appeal procedure. If

they lack the ﬁ nancial means to afford legal counsel,

this is provided free of charge.

Asylum-seekers also have access to social workers,

who will advise them on their rights as well as any social

assistance available to them.

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8.1.2. UNHCR

Asylum-seekers are free to contact the UNHCR for

assistance during the procedure.

8.1.3. NGOs

There are a number of non-governmental organisations

(NGOs) in Spain that are involved in the provision of

support and assistance to asylum-seekers and refugees.

When a person makes a claim for asylum in Spain, he

or she is advised on where to obtain information, such

as the contact information of relevant NGOs which may

be able to assist them during the procedure. The NGOs

provide assistance in a variety of areas, including social

support, training programmes and legal advice.

8.2 Reception Beneﬁ ts

The Ministry of Labour and Immigration is responsible

for the reception of asylum-seekers in Spain. Upon

making an asylum claim, asylum-seekers have access

to a social worker, who may provide advice and

information on reception and beneﬁ ts during the asylum

procedure.

8.2.1. Accommodation

Persons who make asylum claims at the airport are

required to remain at airport accommodation facilities,

where their basic needs are met. Asylum-seekers are

accommodated in this facility for a maximum of seven

days, during which time a decision on the admissibility

of their claim must be made.

If their claims obtain the administrative go-ahead, the

asylum-seekers may seek accommodation at one of

the Refugee Reception Centres (Centros de Acogida

a Refugiados, CAR) if they lack the means to provide

their own accommodation. Asylum-seekers may also

choose to reside in private accommodation.

There are four Refugee Reception Centres (CARs) run

by the Ministry of Labour and Immigration. Two are

located in Madrid, one in Valencia and one in Sevilla.

There are additional CARs across the country, run by

the Spanish Red Cross and the NGOs, the Catholic

Commission’s Association for Migration (ACCEM)

and the Spanish Commission for Refugee Assistance

(CEAR). All reception centres are co-funded by the

Ministry and the European Commission European

Refugee Fund (ERF).

There is a temporary reception centre (Centro de

Estancia Temporal de Inmigrantes, CETI) run by the

Ministry of Labour and Immigration in each of the

Spanish enclaves of Ceuta and Melilla.

Asylum-seekers who are being held at a foreign

nationals detention centre (Centro de Internamiento de

Extranjeros, CIE) on the Canary Islands are transferred

to a CAR in Spain if their claims obtain the administrative

go-ahead.

Unaccompanied minor asylum-seekers are placed in

regular children’s homes or residential units until the

age of 18, depending on the Regional Governments.

They have access to free schooling, medical care and

any other assistance they may need.

8.2.2. Social Assistance

Asylum-seekers who are not being accommodated in

a refugee reception centre may be eligible for ﬁ nancial

assistance if they are in an exceptionally difficult

ﬁ nancial situation.

8.2.3. Health Care

Before being accommodated at one of the CARs,

asylum-seekers must undergo a medical exam

performed by the Spanish Red Cross.

Asylum-seekers are entitled to the same health care

beneﬁ ts available to citizens.

8.2.4. Education

Asylum-seekers have access to a range of courses,

including Spanish language classes and professional

training in the reception centres. Some municipalities

also provide additional training programmes in

partnership with NGOs and with funding from the

Ministry of Labour and Immigration. The reception

centres also organise various leisure activities.

Children under the age of 16 have access to the regular

school system.

8.2.5. Access to Labour Market

Asylum-seekers are entitled to a work permit six months

after making their asylum application, if their asylum

claims have been given the administrative go-ahead.

The permit is valid until a decision on their claim has

been made at the ﬁ rst instance. Asylum-seekers do

not have access to the labour market during an appeal

that does not have suspensive effect or following a ﬁ nal

negative decision on their claim.

8.2.6. Access to Integration

Programmes

The reception centres are mandated to engage

in activities that help local communities to better

understand their role. In addition, some municipalities

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and NGOs have set up programmes and activities that

allow local communities to welcome and integrate

asylum-seekers.

8.2.7. Access to Beneﬁ ts by Rejected

Asylum-Seekers

Rejected asylum-seekers may seek primary and

emergency health care assistance and shelter by

making a request to the municipality in which they are

residing. Rejected asylum-seekers are not entitled to

a work permit.

9 Status and Permits

Granted outside the

Asylum Procedure

9.1 Humanitarian Grounds

A temporary residence permit may be granted on

the basis of exceptional circumstances. These

circumstances may include humanitarian grounds as

follows:

• The person is the victim of certain crimes

deﬁ

ned in the Spanish Penal Code

• The person suffers from a serious medical

condition r

equiring care that cannot be provided

in the country of origin

• The person would be placed in danger if he

or she wer

e to return to the country of origin.

These grounds apply if other requirements for

obtaining a temporary residence permit are met.

Persons who meet these humanitarian grounds are

granted a one-year renewable residence permit, under

the Aliens Law.

9.2 Withholding of Removal/Risk

Assessment

The Police may decide to withhold removal on a case-

by-case basis in order for an assessment to be made

regarding Spain’s non-refoulement obligations.

9.3 Temporary Protection

The Regulation adopted by the Royal Decree 1325/2003

of 24 October 2003 incorporates the Temporary

Protection Directive for situations of mass inﬂ ux.

In each case of mass inﬂ ux, the Council of Ministers

deliberates on which speciﬁ c groups of persons may

be accepted under the temporary protection scheme

and sets the date from which temporary protection

becomes valid. Beneﬁ ciaries of temporary protection

are granted a residence permit valid for one year,

which is automatically renewable for an additional

year. Thereafter, the Council of Ministers may decide

to renew temporary protection for a maximum of one

additional year.

9.4 Regularisation of Status over

Time

As noted above, a temporary residence permit may be

granted in exceptional circumstances. In addition to the

humanitarian grounds described earlier, there are other

grounds that may lead to the granting of temporary

residence under the Aliens Law.

9.5 Regularisation of Status of

Stateless Persons

Spain is a State party to the 1954 Convention on the

Status of Stateless Persons. According to the Organic

Law 4/2000 (11 January), and the Regulation adopted

by the Royal Decree 865/2001 (20 July), the Ministry

of Interior is the competent authority for determining

whether a person meets the criteria for recognition of

statelessness as set out in the Convention. The OAR

undertakes an examination of person’s situation, after

which the General Director of Internal Policy makes

a recommendation for a decision to the Ministry of

Interior.

Recognition of statelessness entitles the person to a

residence permit, family reuniﬁ cation beneﬁ ts and work

rights in Spain. The person is issued a Statelessness

Status card as well as travel documents.

10 Return

10.1 Pre-departure Considerations

The Police are the competent authority for implementing

returns. Asylum-seekers who receive a negative decision

on their claim have an obligation to leave Spanish

territory within 15 days of the decision, although they

may be given up to 90 days for the implementation of

return. However, the Ministry of Interior may decide, for

reasons of national security, that the person has less

than 15 days to leave Spain. Likewise, the Ministry may

decide that a person whose removal is pending meets

criteria set out in the Aliens Law to obtain a permit to

remain in Spain.

10.2 Procedure

Expulsion orders are usually implemented by the Police.

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SPA

The Ministry of Labour and Immigration provides funds

for a voluntary return assistance programme to persons

- including rejected asylum-seekers, refugees and other

persons who have obtained protection - who wish to

return to their country of origin. The funds are disbursed

yearly to NGOs such as ACCEM and the Spanish Red

Cross and to the International Organization for Migration

(IOM) to implement the programme.

10.3 Freedom of Movement/

Detention

Persons who do not have authorisation to remain in

Spain are not detained pending their return to the

country of origin. They may, however, be required to

report to the Police on a regular basis.

10.4 Readmission Agreements

Spain has signed bilateral readmission agreements

with EU Member States for the return of third-country

nationals. Spain has also concluded readmission

agreements with Morocco, Mauritania, Guinea, Algeria

and Nigeria.

11 Integration

The Ministry of Labour and Immigration oversees the

implementation of integration programmes offered to

refugees and beneﬁ ciaries of complementary protection

in Spain. The Ministry provides funds to a number of

NGOs that offer a variety of integration assistance

activities. For example, they receive funds in order to

offer ﬁ nancial assistance with rental accommodation for

a three-month period, run a programme to assist those

who wish to become self-employed through ﬁ nancial

assistance, provide guidance and legal advice and run

a family reuniﬁ cation programme that offers advice and

information on the procedure for reuniting refugees and

other protected persons with family members in the

country of origin. Assistance with the journey to Spain

and basic needs is also provided upon arrival.

The European Refugee Fund (ERF) also provides

funding on a yearly basis to NGOs running integration

programmes.

More broadly, persons who have obtained protection

in Spain have access to training courses, Spanish-

language classes, and advice on gaining employment.

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12 Annexe

12.1 Selections from Law 5/1984

TITLE 1. CONCERNING ASYLUM. (THE DIVISION IN TITLES WAS ELIMINATED BY LAW 9/1994, DATED 19TH

OF MAY)

CHAPTER I: GENERAL PROVISIONS

Article 1. Right to apply for asylum. (This article has been modiﬁ ed by Law 9/1994, dated 19th of May)

Spanish territory will be an inviolable refuge for every person to whom the asylum will be granted under this Law.

The right to apply for asylum is acknowledged to aliens.

Article 2. Asylum contents

1. The Right to Asylum acknowledged under the article 13.4 of the Spanish Constitution means the protection

provided to aliens to whom the Refugee Status is acknowledged. It consists on the principle of non devolution and

non expulsion based on the article 33 of the Convention relating to the Status of Refugees, signed in Geneva on the

28th of July, 1951, and on the application of the following measures during the period in which the circumstances

that were the reason for application for the right of asylum subsist:

a) Authorisation of residence in Spain.

b) Issuing of the necessary travel and identity documents.

c) Authorisation to develop working, professional and commercial activities.

d) Whatsoever is exposed in the International Conventions, and related to the refugees subscribed by Spain (This

paragraph has been modiﬁ ed by Law 9/1994, dated 19th of May).

2. Likewise, the refugees may be granted, in the case that corresponds, social and economic beneﬁ ts that are

determined by the legislation.

Article 3. Reasons which justify the asylum grant or refusal. (This article has been modiﬁ ed by Law 9/1994, dated

19th of May)

1. The Refugee Status shall be recognised and, therefore, granted to every alien who fulﬁ ls the requirements

established in the International Instruments ratiﬁ ed by Spain, especially those established in the Convention relating

to the Status of Refugees, signed in Geneva on the 28th July, 1951, and in the Protocol relating to the Status of

Refugees, signed in New York on the 31st of January 1967.

2. Asylum shall not be granted to those whose situation is described in any of the cases from articles 1.F and 33.2

of the aforementioned Geneva Convention.

CHAPTER II: CONCERNING THE ASYLUM GRANT (THIS PART HAS BEEN MODIFIED BY LAW 9/1994)

Article 9. Refusal re-examination

The alien to whom the asylum has been refused shall be able to urge the Ministry of Interior to re-examine the ﬁ le,

at any time, if the person possesses new evidence elements of his statements or deems that the circumstances

that justiﬁ ed the refusal have disappeared.

Article 17. Effects of refusal resolution. (This article has been modiﬁ ed by Law 9/1994, dated 19th of May)

13 Law 5/1984 (dated 26 March) regulating the Right to Asylum and Refugee Status, amended by Law 9/1994 (dated 19 May). Selections from Law

5/1984 and the other laws cited in the annexe can be found in Ministry of Interior, Normativa de Asilo y Apátridas, 3rd edition (unofﬁ cial translation).

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SPA

(...)

2. Nevertheless, despite the case contemplated in the previous number, for humanitarian or public interest reasons,

the stay in Spain of the interested person whose application has not been admitted to a regular procedure or

refused, may be authorised, in the general immigration framework, particularly if the aliens are persons who, as a

consequence of conﬂ icts or serious political, ethnical or religious riots, have been obliged to abandon their country

and do not fulﬁ l the requirements exposed in article 3, number 1 of the Law.

Article 20. Asylum cancellation. (This article has been modiﬁ ed by Law 9/1994, dated 19th of May)

1. The Government may agree upon a cancellation of asylum or of any or all beneﬁ ts contemplated in article 2 of

this Law in the following cases:

a) When the asylum has been granted through data, documents or declarations which are false and at the same

time determinant in the grant received.

b) When any of the cases contemplated in the International Conventions ratiﬁ ed by Spain occur concerning the

cessation of refugee’s status or their non-enforcement.

2. However, without prejudice to what is contemplated in the previous number, for humanitarian reasons or for public

interest, the stay of the interested person in Spain may be authorised, within the framework of the general Aliens Law.

12.2 Selection from Organic Law 4/2000

CHAPTER II: SITUATION OF ALIENS

(…)

Article 34. Residence of stateless persons, persons without identity documents and refugees (Drafted in accordance

with Organic Laws 8/2000 and 14/2003)

1. The Minister of the Interior may acknowledge the status of stateless persons to aliens, who having manifested

their lack of nationality, fulﬁ ll the requirements established by the Convention relating to the Status of the Stateless

Persons, made in New York, dated 28th of September 1954. The Minister may as well issue the documents mentioned

in article 27 of the aforesaid Convention. The status of the stateless persons will be governed by speciﬁ c regulations.

2. In any case, aliens who address themselves to the premises of the Ministry of the Interior who may show proof

that no authority from any country has issued their identity documents and that they wish their documents to be

issued in Spain. Once the pertinent information has been veriﬁ ed and if there are exceptional reasons of humanitarian

nature, public interest or fulﬁ llment of requirements speciﬁ ed in the commitments undertaken by Spain, the alien

may obtain an identity document in accordance with the established regulations, which acknowledges his inscription

in the Ministry. Nevertheless, the request will be dismissed if the petitioner falls in any of the categories listed in

article 26, or expulsion order has been issued against him.

3. Favorable resolution to the request of asylum in Spain is to be interpreted as the acknowledgement of Refugee

Status for the applicant, who is granted the right to reside in Spain and to develop labour, professional or mercantile

activities in accordance with Law 5/1984, dated 26th of March, regulating the Right to Asylum and the Refugee

Status amended by Law 9/1994, dated 19th of May, and its developing regulations. The aforementioned status

ensures that the interested person will be neither expulsed nor deported as stated in article 33 of the Convention

relating to the Status of Refugees, made in Geneva on the 28th of July 1951.

(...)

14 Organic Law 4/2000 dated 11 January, concerning the rights and freedoms of aliens in Spain and their social integration. Articles 22, 25.3, 34,

54.3, 58.3, 64.4 and 64.5.

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12.3 Selection from Regulation for enforcement of Law 5/1984

CHAPTER I: ASYLUM APPLICATION AND ITS EFFECTS

SECTION I: ASYLUM APPLICATION FILING

Article 8. Form of asylum application ﬁ ling

(...)

4. Asylum seekers who are already on the national territory will have the right to an interpreter and legal assistance

in order to ﬁ le their application and during all the proceedings.

12.4 Selection from Regulation on the temporary protection provision in

case of massive inﬂ ux of displaced persons

CHAPTER III: PROCEDURE OF INDIVIDUAL ACKNOWLEDGEMENT

Article 11. Order of the Minister of the Interior

1. Once the general declaration of temporary protection has been approved by the Council of the European Union or

by the Spanish Government, the Minister of the Interior, upon request of the interested persons, that will be carried

out by the Asylum and Refuge Ofﬁ ce, at the suggestion of the Interministerial Commission of Asylum and Refuge,

will decide upon the concession of the beneﬁ ts of the set of rules of temporary protection stating the reasons on

which the decision is based within the terms and delays established by Organic Law 4/2000, dated 11th of January,

amended by Organic Law 8/2000, dated 22nd of December.

2. The Minister of the Interior may broaden the application of this set of rules of temporary protection to other

persons who are displaced for the same reasons or who come from the same country or region covered by the

general declaration of protection in accordance with the previous paragraph.

15 Regulation for enforcement of Law 5/1984 dated 26 March, regulating the Right to Asylum and the Refugee Status, passed by Royal Decree

203/1995, dated 10 February.

16 Regulation on the temporary protection provision in case of massive inﬂ ux of displaced persons, passed by Royal Decree 1325/2003, dated 24

October.

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SPA

12.5 Additional Statistical Information

500

1,000

1,500

2,000

2,500

3,000

3,500

4,000

4,500

5,000

1997 2002 2008

Liberia

Romania

Sierra Leone

Cuba

Algeria

Somalia

Ivory Coast

Colombia

Nigeria

* First applications only

Figure 4:

Asylum Applications* from Top Five Countries of Origin for Spain in 1997, 2002 and 2008

Convention Status

Complementary

Protection and Other

Authorisations

to Remain

Rejections Other Decisions

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1992

549 6% 0 0% 7,991 94% 0 0% 8,540

1993

1,287 7% 0 0% 16,250 93% 0 0% 17,537

1994

627 5% 0 0% 12,291 95% 0 0% 12,918

1995

464 7% 241 4% 5,830 89% 0 0% 6,535

1996

258 6% 193 4% 3,970 90% 0 0% 4,421

1997

176 3% 241 5% 4,815 92% 0 0% 5,232

1998

224 4% 1,206 20% 4,680 77% 0 0% 6,110

1999

310 4% 738 10% 6,023 85% 0 0% 7,071

2000

381 5% 501 7% 6,781 88% 0 0% 7,663

2001

314 3% 432 5% 8,524 92% 0 0% 9,270

2002

185 3% 226 4% 5,962 94% 0 0% 6,373

2003

247 3% 243 3% 6,579 93% 0 0% 7,069

2004

192 3% 204 3% 6,301 94% 0 0% 6,697

2005

242 5% 148 3% 4,531 92% 0 0% 4,921

2006

212 5% 204 5% 3,892 90% 0 0% 4,308

2007

233 3% 357 5% 6,070 91% 0 0% 6,660

2008

139 3% 107 2% 4,856 95% 0 0% 5,102

Figure 5:

Decisions Made at the First Instance, 1992-2008

Sweden

SWE

319 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

320 - NATIONAL LEGAL FRAMEWORK

321 - INSTITUTIONAL FRAMEWORK

321 - PRE-ENTRY MEASURES

322 - ASYLUM PROCEDURES

326 - DECISION-MAKING AND STATUS

328 - E

FFICIENCY AND INTEGRITY MEASURES

329 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

331 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

332 - R

ETURN

332 - INTEGRATION

333 - ANNEXE

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

SWE

1 Background: Major Asylum

Trends and Developments

Asylum Applications

The number of annual asylum applications in Sweden

increased significantly in the late 1980’s, reaching

a peak of 84,000 in 1992. However, the number of

applications decreased considerably over the rest of

the decade, then started to increase again in 2000-

2001, reaching a peak in 2007 at 36,000 applications.

That year, Sweden was the top country of destination

for asylum-seekers among IGC Participating States and

in the European Union.

Top Nationalities

In the 1990’s, Sweden received asylum claims mainly

from the former Yugoslavia, Iraq, Somalia and Iran.

Since 2000, there has been only a minor shift in the

top countries of origin, with asylum-seekers originating

mostly from Iraq, Serbia, Russia and Somalia.

Important Reforms

Up until major legislative reforms in 2006, asylum

procedures were governed by the Aliens Act (1989:529).

In 1992, the Aliens Appeals Board was created to

replace the government as the second instance

decision-making authority. However, the Aliens Appeals

Board and the Swedish Migration Board (the first

instance decision-making body) could refer individual

cases to the government for a guiding decision taken

collectively by the ministers.

In 1997, the Aliens Act was the subject of important

amendments, including the following:

• The concepts of de facto r

efugee and war resister

were replaced by speciﬁ c rules regarding which

categories of persons, in addition to Convention

refugees, might receive protection. These

categories included persons who faced a risk

of being subjected to the death penalty, corporal

punishment or torture, persons ﬂ eeing armed

conﬂ icts and persons who risk being subjected

to persecution on gender-related grounds or on

the ground of sexual orientation.

• The possibility for family reuniﬁ

cation for persons

granted protection was restricted to the nuclear

family (spouse, children).

A new Aliens Act was introduced in 2006 with the

objective of improving the transparency and efﬁ ciency

of the asylum procedure. The Act established a new

appeal procedure designed to extend possibilities that

an asylum-seeker would obtain an oral hearing on his

or her case. The Aliens Appeals Board was abolished

and replaced by three Migration Courts and a Migration

Court of Appeal. The Government lost the ability to make

precedent-setting decisions. Precedent-setting decisions

are now made by the Migration Court of Appeal.

Moreover, the 2006 reforms made a clear distinction

between grounds for international protection and all

other, non-protection-related grounds for granting a

residence permit. The article regarding humanitarian

grounds in the previous Aliens Act was not transferred

to the new Act. If a residence permit cannot be awarded

84,018

3,300

27,351

5,753

33,016

17,530

36,207

24,353

10,000

20,000

30,000

40,000

50,000

60,000

70,000

80,000

90,000

* First applications only

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Figure 1:

Evolution of Asylum Applications* in Sweden, 1983-2008

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

on other grounds, a permit may now be granted on the

basis of exceptionally distressing circumstances. The

grounds for obtaining refugee status were broadened

to include gender-related persecution, including

persecution based on sexual orientation

An independent inquiry was set up by the government

to study and evaluate the results of the 2006 reforms

on asylum procedures, with a ﬁ nal report expected in

June 2009.

Figure 3:

Top Five Countries of Origin* in 2008

1 Iraq 6,083

2 Somalia 3,361

3 Stateless 1,051

4 Kosovo 1,031

5 Serbia 958

* First applications only

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

The asylum procedure is governed by the Aliens

Act (2005:716), the Aliens Ordinance (2006:97),

the Reception of Asylum-Seekers and Others Act

(1994:137) and the Reception of Asylum-Seekers and

1 In the previous Act, persons claiming gender-related persecution

were determined to be persons “otherwise in need of protection.”

Others Ordinance (1994:361). The 1951 Convention

Relating to the Status of Refugees (along with Council

Directive 2004/83/EC

) is included in Chapter 4, Section

1 and Chapter 12, Section 2 in the Aliens Act. The

Convention Against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment (CAT), the

European Convention on Human Rights (ECHR) and

Council Directive 2004/83/EC are included in Chapter 4,

Section 2 and Chapter 12, Section 1 of the Aliens Act.

On the basis of this legal framework, Sweden grants

Convention refugee status to persons meeting the

criteria set out in the 1951 Convention and subsidiary

protection to persons otherwise in need of protection.

2.2 Pending Reforms

In December 2007, the Government established an

inquiry to examine the reception of asylum-seekers. The

inquiry was guided by a set of starting points, namely,

that the reception of asylum-seekers should be designed

to support an efﬁ cient asylum procedure and to facilitate

the efﬁ cient return of rejected asylum-seekers.

The inquiry was requested to examine the following

reception conditions:

• Accommodation facilities at reception centres

run by the Migration Boar

• The financial benefits available to asylum-

seekers during the pr

ocedure

2 Council Directive 2004/83/EC on minimum standards for the

qualiﬁ cation and status of third country nationals or stateless

persons as refugees or as persons who otherwise need

international protection and the content of the protection granted

(Qualiﬁ cation Directive).

5,000

10,000

15,000

20,000

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Iraq Somalia Stateless

* First a

lications onl

Figure 2:

Evolution of Applications* from Top 3 Countries of Origin for 2008

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

SWE

• The integration of persons who are granted

permits

• The return of rejected asylum-seekers

• Services provided to asylum-seekers with

special needs

• Possibilities for improving cooperation

between the Migration Boar

d and local

councils, municipalities, government agencies,

non-governmental organisations and other

stakeholders involved in reception in order to

improve asylum-seekers’ possibilities to support

themselves.

The inquiry presented its report in February 2009. As

at this writing, the report is being circulated for formal

consultation. The government plans to present a bill to

parliament in 2010.

3 Institutional Framework

3.1 Principal Institutions

The Swedish Migration Board is an independent body

responsible for examining all asylum applications made

in Sweden and for the reception of asylum-seekers.

The Migration Board assesses questions concerning

refugee protection and complementary forms of

protection within a single asylum procedure. The Board

also provides return assistance to persons returning to

the country of origin and is involved in the resettlement

of refugees to Sweden.

The Migration Courts hear appeals of the Migration

Board’s decisions on asylum claims. There are

three Migration Courts, located within the County

Administrative Courts in Stockholm, Göteborg and

Malmö.

The Migration Court of Appeal, which is situated at the

Administrative Court of Appeal in Stockholm, processes

appeals of the Migration Courts’ decisions when a leave

to appeal has been granted.

The Ministry of Justice hears appeals in security cases

where issues of national security or public security

are at stake. Such cases reach the Ministry when the

Swedish Security Service recommends that a person

be refused entry or removed, that a person’s application

for a residence permit be rejected or that a person’s

residence permit be withdrawn.

The Migration Board can hand over to the Police cases

concerning the enforcement of returns.

3.2 Cooperation between

Government Authorities

The Migration Courts and the Migration Court of Appeal

work independently. When it comes to decision-making,

in order to uphold the independence of the Migration

Board, there is no consultation between the Migration

Board and the Ministry of Justice.

4 Pre-entry Measures

4.1 Visa Requirements

To enter Sweden, foreign nationals must be in

possession of a valid passport and a visa valid for

the Schengen area. The Migration Board in Sweden

and diplomatic missions abroad are responsible for

receiving applications for visas.

4.2 Carrier Sanctions

Carrier sanctions are applicable to airplanes and ships.

According to the Aliens Act, a carrier must check that

passengers travelling to Sweden directly from a state that

is not covered by the Schengen acquis are in possession

of a passport and the permits required to enter the

country. A carrier in breach of these provisions is subject

to a maximum ﬁ ne of SEK 46,000 (4,300). The carrier is

exempted from the sanction if it is reasonable to assume

that the foreign national is entitled to enter Sweden or it

appears clearly unreasonable to levy the charge.

Furthermore, according to the Aliens Act, a carrier

transporting passengers by air to Sweden from a

state that is not covered by the Schengen acquis is

obliged, at the request of a Swedish Police ofﬁ cial, to

transmit data on passengers, such as travel documents

and nationality, by the end of check-in. A carrier in

breach of this provision is subject to a maximum ﬁ ne

of SEK 46,000 (4,300). The carrier is exempted from

the sanction if it can show that the breach was not

the result of an error or omission or it appears clearly

unreasonable to levy the charge.

4.3 Interception

Sweden does not carry out pre-departure clearance

in countries of origin or transit. However, Immigration

Liaison Ofﬁ cers or Liaison Ofﬁ cers posted abroad may

assist local border authorities or airline staff in verifying

documents and may upon request organise training on

detecting fraudulent documents.

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5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

Asylum applications can be made at the border and

in-country at Migration Board application units in

Malmö, Göteborg and Stockholm. There is no time

limit for applying. Information leaﬂ ets on asylum rules in

Sweden, on the Dublin II Regulation

and on detention

and reporting requirements are available in various

languages.

5.1.1. Outside the Country

Applications at Diplomatic Missions

Application for asylum cannot be made at diplomatic

missions.

Resettlement/Quota Refugees

Sweden has a longstanding tradition of accepting quota

refugees and has had a regular, yearly resettlement

program in place since the 1950’s. The programme is

carried out in close cooperation with the UNHCR. In

recent years, the annual resettlement quota has been

between 1,200 and 1,900 persons. A part of the quota

is allocated for so-called emergency cases, which are

referred to Sweden by the UNHCR. The annual quota

is determined by the government, while the Migration

Board examines cases and grants residence permits

to persons in need of protection within the programme.

Decisions are made on the basis of interviews conducted

by the Migration Board abroad or on a dossier basis,

in the case of refugees referred by the UNHCR. The

persons in greatest need of protection are accepted

as quota refugees. Those who are granted residence

permits within the resettlement programme receive

status either as refugees or as persons otherwise in

need of protection according to the Aliens Act. All those

selected receive permanent residence permits. The

permit allows a person to live, work and travel freely

in Sweden.

5.1.2. At Ports of Entry

The Police are responsible for regulating the entry

of persons at airports, seaports and border posts.

foreign national arriving in Sweden may make an asylum

3 Council Regulation (EC) No 343/2003 of 18 February 2003

establishing the criteria and mechanisms for determining the

Member State responsible for examining an asylum application

lodged in one of the Member States by a third-country national

(Dublin II Regulation).

application with the Police either at border control or upon

being refused entry. The application is transferred to the

Migration Board. From there, the same determination

and review procedure (described below) applies to

applications made at the border as to applications made

at the Migration Board application units.

5.1.3. Inside the Territory

Responsibility for Processing the Claim

The Dublin System

Application and Procedure

Before an asylum claim can be examined on its merits,

the Migration Board must first determine whether

Sweden is responsible for processing the claim under

the Dublin II Regulation. If another State party to the

Regulation is responsible for processing the application,

the Migration Board issues a decision for transferring

the asylum-seeker to that country. In this instance,

the applicant does not have a right to public counsel.

However, the Migration Board must conduct an oral

interview with the applicant.

Freedom of Movement/Detention

The Migration Board may decide to detain asylum-

seekers subject to the Dublin procedure, in accordance

with provisions in the Aliens Act that are applicable to

all stages of the asylum procedure

Suspension of Dublin Transfers

If the asylum-seeker has appealed a transfer decision,

the Migration Courts or the Migration Court of Appeal

may order that the transfer be suspended.

Review/Appeal

The asylum-seeker can appeal the Migration Board’s

decision to transfer the application for processing in

another State party to the Dublin II Regulation. The

appeal must be made within three weeks of notiﬁ cation

of the decision. The grounds for asylum are not

examined during the appeal and the asylum-seeker

must leave Sweden during the appeal procedure, unless

a suspension of transfer has been ordered by the Court

Application and Admissibility

When ﬁ ling an asylum application, asylum-seekers

must meet the following requirements:

4 These provisions are outlined in the section below on freedom of

movement during the asylum procedure.

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• Provide relevant information, such as identity

documents and date of arrival

• Have their photographs and ﬁ ngerprints

taken

• Appear at an interview with the Migration Board,

if possible on the same day as the asylum claim

is ﬁ

led or else as early as possible thereafter.

In addition to determining whether the person is subject

to the Dublin II Regulation, as described above, the

Migration Board must also determine whether the

application is subject to the principle of ﬁ rst country

of asylum

. In both cases, the asylum-seeker may be

transferred to the applicable State for an examination

of his or her claim.

The Migration Board undertakes an initial examination

of the claim. At this stage, the Migration Board may

decide that the claim falls under one of the following

categories:

• The claim meets criteria for an accelerated

ocedure

• The claim is likely to meet criteria for protection;

no public counsel is appointed

• The claim does not appear to meet criteria for

otection; public counsel is appointed in order

to assist the asylum-seeker with the procedure.

Accelerated Procedures

According to the Aliens Act

, an asylum claim may be

assessed under an accelerated procedure if it is deemed

by the Migration Board to be manifestly unfounded.

Under the accelerated procedure, the Board aims to

reach a decision on the claim within three months.

The Board may also remove the person from Sweden

regardless of whether the decision has gained force of

law if no grounds – protection- or non-protection-related

– exist for granting the person a residence permit.

The asylum-seeker may appeal the decision before one

of the Migration Courts and further to the Migration

Court of Appeal, if leave to appeal is granted. If refugee

or protection reasons are put forward as an impediment

to the implementation of removal, the Migration Board

or the Migration Courts can suspend the removal and

re-examine the case. The appeal has suspensive effect

if it is highly likely that the appeal will be granted, for

example, if the asylum-seeker demonstrates that removal

would lead to a risk of the death penalty, torture or other

cruel treatment.

5 See the section on Safe Country Concepts below for information

on the application of the ﬁ rst country of asylum principle.

6 Chapter 8, Section 6 – see the annexe for further information on

the content of this provision.

Normal Procedure

If, during the initial examination, the Migration Board

determines that an asylum-seeker will be granted a

permit, the case is examined without the appointment

of public counsel. For the other asylum-seekers, public

counsel is appointed to assist applicants with their claim.

Every asylum-seeker can contact the Migration Board

case ofﬁ cer handling his or her case whenever necessary.

One or several interviews with the applicant and

counsel are conducted by the case ofﬁ cer, who after

thoroughly examining the application and the situation

in the country of origin, makes a recommendation to

the decision-making ofﬁ cer for a decision.

Review/Appeal of Asylum Decisions

Asylum-seekers who receive a negative decision

on their claim may lodge an appeal at one of three

Migration Courts. Before an appeal is sent to the Court,

the Migration Board reviews the case. If the Migration

Board stands by its decision, the appeal moves forward

to the Migration Court.

The appeal before the Migration Court is a two-party

process in which the Migration Board is represented

by Litigation Ofﬁ cers and the asylum-seeker by a legal

representative. An oral hearing can be conducted when

deemed necessary.

There is a possibility of appealing the decision of the

Migration Court before the Migration Court of Appeal

after leave (permission) has been granted. A leave

to appeal will be granted if the case is determined

to contain elements that may benefit from court

guidance on the application of the law or if there are

other compelling grounds on which to grant the appeal.

However, detention cases do not require leave to

proceed to appeal before the Migration Court of Appeal.

Freedom of Movement during the

Asylum Procedure

Detention

At any stage of the asylum procedure and in accordance

with the Aliens Act, the authority handling an asylum

case – that is, the Police, the Migration Board, the

Ministry of Justice, or the Courts – may decide to detain

a person or place a person under supervision.

Adults (persons aged 18 and over) can be detained in

the following circumstances:

• If detention is necessary in order for the

esponsible authority to fully consider an asylum

application. In that case, the person may not

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be detained for more than 48 hours without the

possibility of an extension

• If the person’s identity is unclear, either

upon arrival in Sweden or when he or she

subsequently applies for a residence permit. If

the person cannot provide probable proof of his

or her identity, the person may be taken into

detention for up to two weeks

• If it is likely that the person will not be granted a

esidence permit and/or will be required to leave

Sweden, and there is reason to believe that he or

she will go into hiding or pursue illegal activities

in Sweden. If it is likely that the person will not be

allowed to stay in Sweden, the detention period

may not exceed two weeks. If a decision has

already been issued that the person must leave

Sweden, he or she may be detained for up to

two months.

Detention periods in the last two cases described above

can be extended if there are exceptional grounds for

doing so. A decision on detention may be appealed to a

Migration Court at any time. The responsible authorities

are further obliged to re-examine at regular intervals the

decision to detain.

Minors and Families

Neither children nor their parents or guardians may

be taken into detention if this would result in family

separation. However, children and their parents or

guardians can be detained together only if legal

provisions for detention are met. The maximum

detention period of 72 hours can be extended by an

additional 72 hours if exceptional grounds exist.

An unaccompanied minor can be taken into detention

only in exceptional circumstances, if he or she has been

served a removal decision or a negative decision on an

application for a residence permit.

Conditions in Detention

Detention facilities run by the Migration Board have

been designed to provide surroundings and services

similar to those provided in regular reception centres.

For example, activities, outdoor exercise and

visiting privileges are available at detention facilities.

The Migration Board cooperates with volunteer

organisations, churches and community groups to offer

support to detained asylum-seekers.

Reporting

Instead of detaining a foreign national, the case-

handling authority may decide that placing the person

under supervision is sufficient. Children can also

be placed under supervision in certain cases. If the

person is under supervision, he or she must report to

the responsible authority at speciﬁ ed times and at a

speciﬁ ed location. The authorities may impose other

reporting conditions as required.

Repeat/Subsequent Applications

There is no possibility to ﬁ le repeat applications for a

review of the grounds for asylum. However, in a case

concerning the enforcement of a refusal-of-entry

or expulsion order that has become final and non-

appealable, the Migration Board can decide to examine

whether new circumstances that have arisen would result

in an impediment to the implementation of removal.

If the foreign national invokes new circumstances that

can be assumed to constitute a lasting impediment

to enforcement and these circumstances could not

previously have been invoked by the person, or the

person shows a valid reason for not having invoked

these circumstances previously, the Migration Board

may, if a residence permit cannot be granted without an

examination, re-examine the matter of a residence permit

and issue an order staying the enforcement case. If the

conditions described have not been fulﬁ lled, the Migration

Board may decide not to grant a re-examination.

The Migration Board’s decision not to grant a re-

examination, or not to grant a permanent residence

permit after a re-examination, may be appealed to a

Migration Court.

If the Migration Board decides to issue a stay of

enforcement order, public counsel may be appointed

if the need is identiﬁ ed.

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

Sweden does not apply the principle of safe country

of origin.

Asylum Claims Made by EU Nationals

Sweden considers that the Spanish Protocol, which

is annexed to the Treaty of Amsterdam, does not limit

European Union (EU) Member States’ obligations under

the 1951 Convention. When an EU national applies for

asylum, the Migration Board must immediately inform the

Ministry for Foreign Affairs, which will then immediately

inform the Council of the European Union.

When

examining an asylum claim made by an EU national, the

Migration Board starts with the assumption that there are

no grounds for asylum. The Board may issue a decision to

refuse entry and request that the decision be implemented

before the decision becomes ﬁ nal and non-appealable.

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5.2.2. First Country of Asylum

According to Chapter 5, Section 1 of the Aliens Act,

a residence permit may be refused to an asylum-

seeker who, before coming to Sweden, remained in a

country other than the country of origin and has in that

country protection from refoulement. In practice, for this

provision to apply, the Migration Board must determine

that the asylum-seeker resided in a safe country before

arriving in Sweden. The question of whether the person

has been granted or requested asylum in that country is

irrelevant. In practice, that the asylum-seeker travelled

through a safe country on his or her journey to Sweden

(the en route rule) is not sufﬁ cient to establish a ﬁ rst

country of asylum.

Exception to the principle of ﬁ rst country of asylum

can be made in cases of sudden illness or other

circumstances outside the asylum-seeker’s control. In

the Aliens Ordinance (2006:97), the Government has

provided that the principle of ﬁ rst country of asylum

does not apply if the alien has certain family ties to

Sweden, or if he or she, under certain conditions, has

acquired special ties to Sweden.

Following a decision to refuse a residence permit on

the principle of ﬁ rst country of asylum, the asylum-

seeker receives a special document stating that his

or her grounds for asylum have not been examined in

substance in Sweden. A refusal to grant a residence

permit on this ground can be appealed to a Migration

Court in the same manner as are applications for

asylum in general.

5.2.3. Safe Third Country

Sweden does not apply any safe third country policies.

5.3 Special Procedures

5.3.1. Unaccompanied Minors

Procedures

Applications made by unaccompanied minors (UAMs)

are prioritised by the Migration Board. Special

procedural arrangements are made as follows:

• The application is processed within a three-

month period at most, compar

ed to a six-month

period for adults

• A trustee is appointed by the municipality’s

chief guar

dian’s ofﬁ ce to represent the UAM

and protect his or her interests

• Asylum interviews are conducted by specially

trained staf

f, who use a special interview guide

and adjust the questions to the UAM’s age and

maturity level

• If a residence permit cannot be awarded on other

ounds, a permit may be granted if there are

“exceptionally distressing circumstances.” Such

circumstances may include health, integration

in Sweden and the person’s circumstances in

the country of origin. Children may be granted

residence permits under this section even if

the circumstances that come to light do not

have the same seriousness and weight that are

required for a permit to be granted to adults

under the same provision.

A minor is not returned to the country of origin if no

suitable guardian has been located to receive the child.

Age Assessment

The Migration Board makes an initial assessment of the

minor’s age based on an interview, travel documents

and supplementary information (such as information

obtained from the municipality where the minor lives.)

The minor may request that a complementary medical

examination be used when assessing his or her age.

Figure 4:

Unaccompanied Minors: Total Applications per Year,

2000-2008

564

388

384

822

1,264

325

504

550

1,510

200

400

600

800

1,000

1,200

1,400

1,600

2000

2001

2002

2003

2004

2005

2006

2007

2008

5.3.2. Temporary Protection

Chapter 21 in the Aliens Act

provides protection

according to Council Directive 2001/55/EC regarding

minimum standards for granting protection in the case

of a mass influx of displaced persons (Temporary

Protection Directive). The Swedish Migration Board is

responsible for making decisions under this provision.

The granting of a temporary residence permit does not

exempt a person from the examination of his or her

asylum application or an application for declaration

of refugee status or travel document for refugees.

Asylum-seekers already in the asylum procedure may

7 See the annexe for the content of the provision.

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be granted temporary protection according to this

provision if a residence permit is not granted on other

grounds.

5.3.3. Stateless Persons

Under the Aliens Act, stateless persons are treated

the same as persons with citizenship, and stateless

persons may apply for asylum in the same manner as

do other asylum-seekers. The deﬁ nition of a refugee

in the Aliens Act explains that a stateless person shall

be considered a refugee if he or she is outside the

country where he or she had a previous habitual place

of residence. The same applies for the granting of

subsidiary protection. Thus, the application is assessed

according to conditions prevalent in the last country of

habitual residence.

After a refusal-of-entry or expulsion order has been

served, difﬁ culties in returning a stateless person to the

country of former habitual residence may eventually result

in a temporary or permanent residence permit being

granted (under impediment to enforcement provisions).

6 Decision-Making and

Status

6.1 Inclusion Criteria

When making a determination on an asylum claim,

the Migration Board must ﬁ rst consider whether the

person meets criteria for refugee status and, failing

that, whether grounds for subsidiary protection are

met. The Migration Board is also competent to grant

permits, where no protection-related grounds for a

residence permit exist, that is, in cases of exceptionally

distressing circumstances or as a result of impediments

to the implementation of a removal order.

6.1.1. Convention Refugee

The deﬁ nition of a refugee is laid down in Chapter 4,

Section 1 of the Aliens Act. The deﬁ nition follows the

criteria in the 1951 Convention relating to the Status of

Refugees. Gender or sexual orientation may determine

membership in a particular social group. The application

for a declaration of refugee status can be made at the

same time as the application for asylum.

6.1.2. Subsidiary Protection

Persons who do not qualify for Convention refugee

status but meet the criteria for subsidiary protection

are granted protection as “persons in need of

protection.”

Box 1:

Case law: Internal Armed Conﬂ ict in Iraq

In a February 2007 ruling in the case of an Iraqi asylum-seeker, the Migration Court of Appeal provided guidance

on the application of Chapter 4, Section 2 (subsidiary protection provisions) of the Aliens Act

. An internal armed

conﬂ ict was deﬁ ned by the Court as a conﬂ ict that takes place inside the territory of a state between its armed

forces and other organised armed groups that exercise such control over a part of its territory as to enable them to

carry out military operations. The Court ruled that there was no internal armed conﬂ ict ongoing in Iraq at the time.

As a result of the judgment, subsidiary protection was granted to Iraqi asylum-seekers on the basis of a well-founded

fear of being subjected to serious abuses because of other severe conﬂ icts in Iraq. According to the Court, an internal

ﬂ ight alternative in northern Iraq for Iraqis with connections to this part of the country was reasonable.

The provision of protection owing to a well-founded fear of being subjected to serious abuses because of other

severe conﬂ icts contained in the Act stipulates that there should be a causal connection between the risk of abuse

and the severe conﬂ icts in the country of origin. In the travaux préparatoires

of this provision, it is stated that the

term “well-founded fear” should be interpreted in the same way as is the parallel provision for refugees. Against

this background, the assessment of whether the causal connection is satisﬁ ed is individual and aimed at establishing

whether the applicant is personally at risk of abuse because of the severe conﬂ icts. The general situation in the

country or city of origin and the general risk conditions there alone are not sufﬁ cient for the causal connection to

be deemed to have been established.

1 See the decision from 26 February 2007 in Swedish: http://www.migrationsverket.se/include/lifos/dokument/www/070227202.pdf.

The provision contained in Chapter 4, Section 2 of the Act can be found in the annexe to this chapter.

2 Travaux préparatoires are considered a legal source in Swedish legislation.

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Subsidiary protection, as covered in Chapter 4,

Section 2 of the Aliens Act, is granted in the following

circumstances:

• The asylum-seeker has a well-founded fear

of being subjected to the death penalty or

corporal punishment, torture or other inhuman

or degrading treatment or punishment

• The asylum-seeker has a well-founded fear of

being subjected to serious abuses because

of external or internal armed conﬂ ict or other

severe conﬂ icts in the country of origin

• The asylum-seeker is unable to return to

his or her country of origin because of an

environmental disaster.

6.1.3. Non-Protection Related Status

Exceptionally Distressing Circumstances

According to the Aliens Act, a residence permit may

be granted in the case of exceptionally distressing

circumstances. Under this provision, the state of

health, the level of integration, and the situation in the

country of origin of the asylum-seeker are taken into

consideration.

Impediment to Implementation of a Refusal-of-

Entry or Expulsion Order

A temporary residence permit may be granted if there

is a temporary impediment to the implementation of a

refusal-of-entry or expulsion order. Such a determination

may be made following a re-examination of the asylum

application after the asylum-seeker has raised issues

regarding impediments to removal.

If the impediment is permanent in nature, a residence

permit may be granted on Convention grounds,

on subsidiary protection grounds or because of

exceptionally distressing circumstances.

6.2 The Decision

Decisions are made by the decision-making ofﬁ cers

of the Migration Board who examine the merits of

the claim. The Legal Affairs unit within the Migration

Board supervises the decision-making process in the

ﬁ rst instance.

The applicants are notiﬁ ed of the decision in writing only.

A decision on a residence permit or long-term residence

status in Sweden for a third-country national must

contain the reasons on which the decision is based.

8 See the section on Repeat/Subsequent Applications above for

more information on re-examination of asylum claims.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

Beneﬁ ts

Recognised refugees and persons in need of protection

e entitled to the same rights and obligations as are all

inhabitants of Sweden. Refugees and persons in need

of protection obtain the following beneﬁ ts:

• Permanent residence (PUT)

• The right to work

• Support to ﬁ

nd housing in a municipality.

Furthermore, refugees can apply for a travel document

valid for all countries except the country of origin, and

for a maximum and non-renewable period of ﬁ ve years.

Persons beneﬁ ting from subsidiary protection may

apply for an alien’s passport according to Chapter 2,

Sections 12-16 of the Aliens Ordinance (2006:97).

Convention refugees and persons in need of protection

may apply for citizenship after having resided in Sweden

for four years.

6.4 Exclusion

Article 1F of the 1951 Convention is applicable to

refugees and to persons in need of protection. However,

persons – including those who have been excluded

from protection – who have a well-founded fear of

being subjected to the death penalty or other cruel

punishment if returned to the country of origin, will not

be removed from Sweden.

6.4.1. Refugee Protection

According to the Aliens Act, a residence permit may

be refused to a person who meets the criteria for

Convention refugee status but who is found to have

previously engaged in terrorist-related activities,

genocide and war-crimes, or to raise concerns of

national security. If the person excluded from refugee

status has a well-founded fear of being subjected to the

death penalty or other cruel punishment if returned to

the country of origin, then he or she may be granted a

temporary residence permit. Provisions in the Aliens Act

on impediments to enforcement of removal (Chapter 12,

Section 1) are also applicable in this instance.

9 Refugees may apply to the Migration Board for a travel document

that satisﬁ es EU passport requirements: a computer chip includes

the holder’s personal details and photograph. A person under 18

must have the consent of his or her parents or legal guardian in

order to acquire this document.

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6.4.2. Complementary Protection

A person in need of protection as outlined in Chapter 4,

Section 2 of the Aliens Act may be subject to exclusion if

he or she is found to have engaged in criminal activities,

terrorist-related activities, genocide and war crimes, or

to raise concerns of national security. However, if the

person has a well-founded fear of being subjected to

the death penalty or other cruel punishment if returned

to the country of origin, then he or she may be granted

a temporary residence permit. Return would not be

implemented if provisions relating to impediments to

implementation of removal were applicable.

The Migration Board is responsible for making a

decision on exclusion at the ﬁ rst instance. The decision

may be appealed to the Migration Courts and to the

Migration Court of Appeal.

6.5 Cessation

The Migration Board may make a decision to apply

cessation clauses of the 1951 Convention if one of the

conditions set out in Chapter 4, Section 5 of the Aliens

Act

is met. Only clear, profound and lasting changes in

the country of origin or former residence may be taken

into consideration. Cessation may arise when a refugee

is applying for travel documents or has committed a

criminal offence that has resulted in a removal order.

6.6 Revocation

The rules for withdrawal of permits are laid out in

Chapter 7 of the Aliens Act. Decisions on withdrawals

of residence permits are made by the Migration Board.

Residence permits may be withdrawn from a person

who has knowingly supplied incorrect information

or knowingly suppressed information when such

information was key to obtaining a permit. If the permit

holder has resided in Sweden for more than four years

when the question of withdrawal is examined, the

residence permit may be withdrawn only if there are

exceptional grounds for such an action as outlined in

Chapter 7, Section 1 of the Aliens Act.

A permanent residence permit may be withdrawn from

a person who is no longer resident in Sweden. In the

case of a refugee or a person otherwise in need of

protection in this country, however, the residence permit

may be withdrawn at the earliest two years following

the person’s departure from Sweden for a country in

which he or she previously resided and in which political

conditions have changed.

10 See the annexe for the cessation terms set out in the Aliens Act.

6.7 Support and Tools for

Decision-Makers

6.7.1. Country of Origin Information

The COI unit of the Swedish Migration Board is made

up of 12 persons providing research and information

support to caseworkers. The COI unit consists of

different geographical teams staffed by information

and country specialists.

The COI unit primarily receives information on countries

of origin, which is scrutinised and analysed. The COI

unit also seeks open information actively in cooperation

with asylum decision-makers, among others. One of

the elements of the legal reform introduced by the new

Aliens Act in 2006 was increased transparency of the

asylum process. In order to achieve this, it was decided

that the country information gathered by the Swedish

Migration Board should, to the greatest possible extent,

be publicly accessible. Thus, information from LIFOS,

the COI database, is publicly available through the

Migration Board’s website (www.migrationsverket.se).

6.7.2. Language Analysis

The Swedish Migration Board may use language

analysis as an investigation tool in cases in which

the asylum-seeker cannot prove his or her identity.

A language analysis is not the sole instrument for

determining the origin of an asylum-seeker: questions

regarding personal circumstances and tests of

knowledge about the region of origin are used together

with language analysis.

The asylum-seeker’s speech is recorded anonymously

by an ofﬁ cial at the Migration Board. The recording is

sent to an independent analyst. The analyst includes

in his or her report of the outcomes of the analysis a

summary of his or her knowledge of the language or

dialect in question. The use of language analysis is

not regularised by the Aliens Act or Aliens Ordinance.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

The Swedish Migration Board or the police authority

may, if the person has attained the age of 14, take his

or her ﬁ ngerprints under the following circumstances:

• The person cannot prove his or her identity upon

arrival in Sweden

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• The person has applied for a residence permit

as a refugee

• There are grounds for ordering detention of the

person.

7.1.2. DNA Tests

In cases concerning residence permits on grounds of

family ties, the Migration Board may grant the applicant

and the person to whom ties are cited an opportunity to

have a DNA analysis performed to conﬁ rm the biological

relationship cited in their application. A DNA analysis

may be performed only if the person to be examined

has been informed of the purpose of the DNA analysis

and has given his or her written consent. While DNA

tests are used rarely in the asylum procedure, they are

considered very useful as they are accurate.

7.1.3. Forensic Testing of Documents

The Migration Board may make a request to the

Swedish National Laboratory of Forensic Science

(SKL) to verify identity documents when there are

doubts about their authenticity. The SKL specialises in

fraudulent documents. Forensic testing of documents

is rarely undertaken, as the majority of asylum-seekers

do not present any identity documents.

7.1.4. Database of Asylum

Applications/Applicants

All asylum applications and decisions are registered

in a database, a registry in which all foreign nationals

in Sweden are registered. The Migration Board also

maintains a speciﬁ c statistical database.

7.2 Length of Procedures

Generally, asylum claims must be processed within a

six-month period (three months for unaccompanied

minors), although the length of the procedure depends

on factors such as the number of asylum-seekers who

have arrived in Sweden in the months preceding the

application and the complexity of the claims.

7.3 Pending Cases

At the end of 2008, there were 13,977 pending cases.

The Migration Courts have accumulated a backlog of

4,690 new cases since they were established in 2006.

Expectations are that the backlogs will be eliminated

by next year if the inﬂ ux of asylum-seekers to Sweden

remains at current levels.

7.4 Information Sharing

Sweden is party to the Dublin II Regulation and

agreements with Denmark, Norway, Iceland and

Switzerland, extending the application of the Dublin

Regulation to those states. Speciﬁ c information on

asylum-seekers can be released to other EU Member

States, in accordance with Article 21 of the Dublin

Regulation. No information on an asylum-seeker may

be released to a third country unless the asylum-seeker

consents to it.

7.5 Single Procedure

Sweden has a single asylum procedure. Consequently,

an asylum-seeker need only make one application

for international protection in order to obtain either

Convention refugee status or subsidiary protection. The

Migration Board ﬁ rst determines whether the applicant

meets the criteria for refugee status and, if this is not

the case, it will then determine whether grounds exist

for granting subsidiary protection.

Box 2:

Cooperation with UNHCR

The UNHCR Regional Ofﬁ ce for the Baltic-Nordic

Region, located in Stockholm, has no formal role in

the asylum procedure. However, upon the request

of a party in the procedure, UNHCR may provide

updated country of origin information (COI),

legal advice or UNHCR’s recommendations and

guidelines. In exceptional precedent-setting cases,

the UNHCR may submit amicus curiae to the last

instance body.

Due to provisions in the Swedish Secrecy Act, which

aim to protect sensitive information regarding

asylum-seekers, the UNHCR and NGOs must have

a power of attorney in order to have access to

information regarding a specific asylum-seeker

and his or her case.

8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

At the ﬁ rst instance, legal assistance is provided in

all cases except when it is obvious to the Migration

Board after a preliminary review of the case that the

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applicant will be allowed to remain in Sweden or when

the applicant may be sent to a third country for an

examination of the alleged grounds for asylum.

Legal assistance is available during an appeal only if

the decision that is being appealed has been combined

with a removal order. A public counsel will then be

appointed unless it is assumed that legal counsel is

not needed.

8.1.2. Interpreters

If necessary, asylum-seekers are provided with the

services of an interpreter during the asylum procedure.

8.1.3. UNHCR

The UNHCR,along with non-governmental

organisations, is entitled to provide legal counsel with

speciﬁ c country expertise to intervene on behalf of

an asylum-seeker during the asylum procedure. The

Regional Ofﬁ ce of the UNHCR for the Baltic-Nordic

Region provides training, advice and information

to NGOs and lawyers who have direct contact with

asylum-seekers.

8.1.4. NGOs

The Swedish Refugee Advice Centre is an NGO that

aims to provide refugees and asylum-seekers with

professional legal assistance. Advisors at the Centre can

act as legal counsel in asylum cases. Current members

supporting the Centre include Amnesty International

(Swedish section), Caritas, the Swedish Trade Union

Confederation, Save the Children, the Swedish Free

Church Council, and the Church of Sweden.

8.2 Reception Beneﬁ ts

The Swedish Migration Board is responsible for

overseeing the reception of asylum-seekers. During the

asylum procedure, applicants receive a document – the

so-called LMA

card – identifying them as asylum-

seekers.

8.2.1. Accommodation

Asylum-seekers awaiting a decision on their claim may

choose whether they wish to arrange their own private

accommodation or stay at one of the Migration Board’s

reception centres. Over half of the asylum-seekers

choose to arrange their own accommodation. The

Migration Board rents apartments to asylum-seekers.

These apartments are found throughout Sweden.

11 The acronym LMA stands for the Swedish name of the Act

governing the reception of asylum-seekers: Lagen om mottagning

av asylsökande.

Unaccompanied minors (UAMs) are accommodated in

group housing with specially-trained staff.

8.2.2. Social Assistance

The Migration Board provides asylum-seekers in need

of ﬁ nancial assistance with a daily cash allowance to

cover expenses such as food, clothing and personal

hygiene. The rate of the daily cash allowance is as

follows:

• SEK 71 (ca. 7) for adults; this is r

educed to

SEK 24 if the asylum-seeker is provided with

food by the Migration Board, and to SEK 61 /

SEK 19 for adults who co-habitate

• Between SEK 37 and 50 for children, adjusted

accor

ding to age.

Financial assistance is also provided for some separate

expenses, such as prescription eyeglasses or provisions

for infant care.

Persons who fail to cooperate with authorities during the

asylum procedure, such as by missing appointments for

scheduled interviews, may have their daily allowance

cut as a result.

8.2.3. Health Care

The municipal administrative board, with funding

from the Migration Board, is responsible for covering

most of the health care costs of asylum-seekers. For

health care services that cost a greater amount than

what is provided by the Board’s funds, the municipal

administrative board may apply to the Migration Board

for payment of this cost.

Asylum-seekers are entitled to a voluntary medical

examination

free of charge. They are charged a fee

for emergency medical care, dental treatment, and

medication. Minors are entitled to medical and dental

care on the same terms and conditions as are other

children in Sweden.

8.2.4. Education

The municipality is responsible for offering education.

While education is not mandatory, asylum-seeking

children up to the age of 18 who wish to attend school

may do so according to the same rules governing

Swedish citizens.

All asylum-seekers aged between 16 and 65 years –

regardless of their accommodation arrangements –

have an obligation to take part in activities organised

12 The medical examination is not mandatory for the completion of

the asylum application.

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SWE

by the Migration Board. Examples of activities include

Swedish language classes and maintenance tasks in

the reception centres. The Migration Board may reduce

the amount of the daily allowance if the asylum-seeker

does not take part in these activities.

8.2.5. Access to Labour Market

If the Migration Board estimates that it will take more

than four months to process a case, the asylum-seeker

will be exempt from the requirement of a work permit

and will be able to work without a work permit (the

Migration Board issues a document that indicates that

the asylum-seeker is exempt from the requirement). The

asylum-seeker is entitled to work up to the time he or

she leaves Sweden.

The exemption from the requirement of having a work

permit is subject to the asylum-seeker cooperating in the

establishment of his or her identity (in situations where

an asylum-seeker cannot prove his or her identity with

identity documents). Moreover, once a negative decision

on the asylum case has gained legal force (that is, all

appeal possibilities have been exhausted), the rejected

asylum-seeker has an obligation to cooperate with the

authorities for implementation of the removal order. If

this requirement is not met, the exemption from the

requirement of having a work permit may be revoked.

If the asylum-seeker obtains a job for a period of longer

than three months in a town where the Migration Board

does not provide accommodation, he or she will be

provided with a housing allowance.

8.2.6. Access to Beneﬁ ts by Rejected

Asylum-Seekers

Asylum-seekers are entitled to social assistance, health

care, accommodation and education beneﬁ ts throughout

the asylum procedure. Persons who receive a negative

decision on their asylum claim continue to have access

to these beneﬁ ts (described above) until their departure

from Sweden. Rejected asylum-seekers, however,

have an obligation to cooperate with authorities on the

implementation of their return to the country of origin, in

order to have access to these reception beneﬁ ts.

9 Status and Permits

Granted outside the

Asylum Procedure

9.1 Obstacles to Return

A removal order that is ﬁ nal and non-appealable may

not be implemented if new information comes to light

indicating there may be obstacles to return. Pursuant to

Chapter 12, Section 18 of the Aliens Act, the Migration

Board may consider the following circumstances in that

case:

• The asylum-seeker risks persecution in the

country of origin, or he or she is not likely to

be protected in that country from being sent to

a country where there is a risk of persecution

• There is a fair reason to assume that he or she

may face a danger of being subjected to the

death penalty or corporal punishment, torture

or inhuman or degrading treatment

• There is reason to assume that the intended

country of r

eturn will not be willing to accept

the person

• There are medical or other special grounds for

the r

emoval order not to be implemented.

If there are permanent obstacles to return, the person

will be granted a residence permit. If the person risks

being subjected to persecution in the country of origin,

he or she will be granted asylum.

9.2 Regularisation of Status of

Stateless Persons

While Sweden has ratified the 1954 Convention

relating to the Status of Stateless Persons and the

1961 Convention on the Reduction of Statelessness,

there is no possibility of obtaining a legal recognition

of stateless status. Travel documents may be issued to

a stateless person, as well as to refugees.

9.3 Temporary Law on Granting

a Residence Permit

In the period between 15 November 2005 and 30 March

2006, a temporary law was in force that introduced

additional legal grounds for granting a residence permit to

foreign nationals who had received a ﬁ nal expulsion order.

The temporary law stipulated that if new circumstances

came to light in a case concerning enforcement of a

refusal-of-entry or expulsion order that had gained

legal force, the Swedish Migration Board could grant a

residence permit in the following circumstances:

• If there was reason to assume that the intended

country of return would not be willing to accept

the foreign national

• if there were medical obstacles to implementing

the or

der, or

• if it was there was a compelling humanitarian

eason for granting a permit.

In all, 17,000 residence permits were granted during

this temporary arrangement.

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10 Return

10.1 Pre-departure Considerations

The Migration Board provides assistance and information

to facilitate voluntary returns. In addition to covering the

cost of the return journey, the Migration Board may also

provide a reintegration allowance to certain groups of

returnees. In general, persons whose asylum applications

have been rejected, who opt for voluntary return and who

are returning to countries with very limited preconditions

for reintegration, are generally eligible for the voluntary

return allowance. The allowance amounts to SEK 30,000

(ca. 2,800



) per adult, SEK 15,000 per child, and a

maximum of SEK 75,000 per family.

The police authorities are responsible for enforcing

returns.

10.2 Procedure

An asylum-seeker who is refused entry into Sweden has

an obligation to leave the country within two weeks of

the decision of non-entry while a person who has been

served a removal order must leave the country within

four weeks of the date when the order becomes ﬁ nal and

non-appealable, unless otherwise provided in the order.

10.3 Freedom of Movement/

Detention

Persons who have obtained a ﬁ nal negative decision on

their asylum claim may be detained prior to removal, in

accordance with the Aliens Act

. The detention period

may not exceed two months. The period may however be

extended if there are exceptional grounds for doing so.

The vast majority of rejected asylum-seekers are not

detained prior to removal.

10.4 Readmission Agreements

As at October 2008, Sweden had 22 readmission

agreements in force.

A protocol agreement with Russia

is in place regarding cooperation in order to establish

identity and citizenship and for the issuing of travel

documentation. An agreement on readmission with the

United Nations Mission in Kosovo (UNMIK) is in force,

as is a tripartite memorandum of understanding on

readmission among Sweden, Afghanistan and UNHCR.

13 See the section above on Freedom of Movement during the

Asylum Procedure.

14 Sweden has signed bilateral readmission agreements with the

following countries: Armenia, Bosnia and Herzegovina, Bulgaria,

Croatia, Cyprus, Estonia, France, Germany, Latvia, Lithuania,

Macedonia (FYROM), Montenegro, Poland, Romania, Serbia,

Slovakia, Switzerland and Vietnam.

Furthermore, in February 2008, Sweden and Iraq

concluded a memorandum of understanding regarding

the return of Iraqi asylum-seekers. The Nordic passport

exemption agreement for travel in the Nordic region

(Denmark, Finland, Iceland, Norway and Sweden)

regulates the readmission obligation in force among

the Nordic countries.

Negotiations for new readmission agreements are

ongoing with a small number of other countries.

11 Integration

The Swedish government provides funds to

municipalities for the implementation of refugee

reception and integration programs.

The refugee reception programs are ﬁ nanced through a

system of one-time standard grants to the municipalities,

calculated on a ﬁ xed amount per person settled in the

municipality, with different sums for persons between

the ages of 16 and 65, minors under 16, and adults

over 65 years of age. The standard grant is meant to

cover costs incurred by the municipality in providing

such support services as living expenses, Swedish-

language courses, and special schooling arrangements

for children. The grant covers costs incurred in the ﬁ rst

two-year period of settlement.

The municipality, in consultation with the refugee or

other protected person, draws up individual plans

for participating in integration activities, such as

learning the Swedish language, attending school or

university, ﬁ nding employment and arranging private

accommodation. These plans are tailored to the

person’s needs and may change according to the

person’s newly acquired experiences and insights.

All work by the municipalities and the employment

services aims at assisting each individual to ﬁ nd his or

her own way to an independent life in Sweden in terms

of housing, employment, education, social networks

and participation in society.

Access to these beneﬁ ts does not depend on whether

the person has Convention refugee status or a form

of complementary protection status or is a resettled

refugee. It is also possible for the municipalities to offer

integration programs to other persons with a residence

permit who are not covered by the government grant.

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SWE

12 Annexe

12.1 Selections from the Swedish Aliens Act

Chapter 4 - Refugees and persons otherwise in need of protection

Deﬁ nitions

Section 1

In this Act ‘refugee’ means an alien who

- is outside the country of the alien’s nationality, because he or she feels a well-founded fear of persecution on grounds

of race, nationality, religious or political belief, or on grounds of gender, sexual orientation or other membership of

a particular social group and

- is unable, or because of his or her fear is unwilling, to avail himself or herself of the protection of that country.

This applies irrespective of whether it is the authorities of the country that are responsible for the alien being subjected

to persecution or these authorities cannot be assumed to offer protection against persecution by private individuals.

A stateless alien shall also be considered a refugee if he or she

- is, for the same reasons that are speciﬁ ed in the ﬁ rst paragraph, outside the country in which he or she has

previously had his or her usual place of residence and

- is unable or, because of fear, unwilling to return there.

Section 2

In this Act a ‘person otherwise in need of protection’ is an alien who in cases other than those referred to in Section

1 is outside the country of the alien’s nationality, because he or she

1. feels a well-founded fear of suffering the death penalty or being subjected to corporal punishment, torture or

other inhuman or degrading treatment or punishment,

2. needs protection because of external or internal armed conﬂ ict or, because of other severe conﬂ icts in the country

of origin, feels a well-founded fear of being subjected to serious abuses or

3. is unable to return to the country of origin because of an environmental disaster.

The corresponding applies to a stateless alien who is outside the country in which he or she has previously had

his or her usual place of residence.

Declaration of refugee status

Section 3

If a refugee requests this, the alien shall be declared a refugee (declaration of refugee status) either in connection

with the granting of a residence permit or subsequently.

A declaration of refugee status shall be withdrawn if it comes to light that the alien can no longer be regarded as

a refugee.

(…)

Termination of refugee status

Section 5

15 Aliens Act (2005: 716) (with amendments up to and including Swedish Code of Statuses 2006: 220), entered into force 31 March 2006, available

online at: http://www.sweden.gov.se/content/1/c6/06/61/22/fd7b123d.pdf [accessed 27 February 2009].

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

A refugee ceases to be a refugee if he or she

1. voluntarily re-avails himself or herself of the protection of the country of his or her nationality,

2. voluntarily reacquires the citizenship that he or she has previously lost,

3. acquires citizenship in a new country and obtains the protection of that country,

4. voluntarily returns to settle in the country of his or her nationality or the country where, if stateless, he or she

previously had his or her usual place of residence or

5. is no longer in such a situation that he or she can be regarded as a refugee and therefore cannot continue to

refuse to avail himself or herself of the protection of the country of his or her nationality or the country where, if

stateless, he or she previously had his or her place of residence.

(…)

Chapter 5 - Residence permits

Persons who are entitled to a residence permit as being in need of protection

Section 1

Refugees and persons otherwise in need of protection who are in Sweden are entitled to a residence permit.

A residence permit may, however, be refused to

1. a refugee under Chapter 4, Section 1 if there are exceptional grounds for not granting a residence permit in view

of what is known about the alien’s previous activities or with regard to national security,

2. a person otherwise in need of protection under Chapter 4, Section 2, ﬁ rst paragraph, points 2 and 3, if in view

of his or her criminal activities there are special grounds for not granting the alien a residence permit or if there are

exceptional grounds for not granting such a permit in view of what is known about the alien’s previous activities or

with regard to national security,

3. an asylum seeker who has entered Sweden from Denmark, Finland, Iceland or Norway and can be returned to

any of these countries in accordance with an agreement between Sweden and that country, unless it is obvious

that the alien will not be granted a residence permit there,

4. an asylum seeker who has otherwise, before coming to Sweden, stayed in a country other than the country

of origin and is protected there against persecution and against being sent to the country of origin or to another

country where he or she does not have corresponding protection,

5. an asylum seeker who has special ties to another country and is protected there as speciﬁ ed in point 4 or

6. an asylum seeker who can be sent to Denmark under the Convention of 15 June 1990 determining the State

responsible for examining applications for asylum lodged in one of the Member States of the European Communities

(the Dublin Convention) and is protected as speciﬁ ed in point 4.

The Dublin Regulation contains provisions that are applicable in relation to the Member States of the European

Union and in relation to Iceland and Norway.

(…)

Residence permits on grounds of exceptionally distressing circumstances

Section 6

If a residence permit cannot be awarded on other grounds, a permit may be granted to an alien if on an overall

assessment of the alien’s situation there are found to be such exceptionally distressing circumstances that he or

she should be allowed to stay in Sweden. In making this assessment, particular attention shall be paid to the alien’s

state of health, his or her adaptation to Sweden and his or her situation in the country of origin.

Children may be granted residence permits under this Section even if the circumstances that come to light do not

have the same seriousness and weight that is required for a permit to be granted to adults.

(…)

Section 11

A temporary residence permit may be granted if there is an impediment, which is not of a lasting nature, to

enforcement of a refusal-of-entry or expulsion order.

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SWE

Chapter 7 - Withdrawal of permits

Section 1

Visas, residence permits and work permits may be withdrawn from an alien who has knowingly supplied incorrect

information or knowingly suppressed circumstances that have been important for obtaining the permit.

If the alien has been in this country for more than four years on a residence permit when the question of withdrawal

is examined by the authority that makes the ﬁ rst decision in the matter, the residence permit may only be withdrawn

under the ﬁ rst paragraph if there are exceptional grounds for this.

(…)

Section 7

A permanent residence permit shall be withdrawn from an alien who is no longer resident in Sweden.

In the case of an alien who has been a refugee or a person otherwise in need of protection in this country, however,

the residence permit may be withdrawn at the earliest when two years have elapsed since residence in this country

ended, if the alien has returned to a country where he or she was previously resident because political conditions

in that country have changed.

Chapter 8 - Refusal of entry and expulsion

(…)

Section 6

The Swedish Migration Board may direct that the Board’s order to refuse entry under Section 4, ﬁ rst paragraph may

be enforced even if it has not become ﬁ nal and non-appealable (refusal of entry with immediate enforcement), if it is

obvious that there are no grounds for asylum and that a residence permit is not to be granted on any other grounds.

Chapter 12, Section 7 contains more detailed provisions on the enforcement of refusal-of-entry orders with immediate

enforcement.

(…)

Chapter 12 - Enforcement of refusal-of-entry and expulsion orders

Impediments to the enforcement of refusal of entry and expulsion

Section 1

The refusal of entry and expulsion of an alien may never be enforced to a country where there is fair reason to

assume that

- the alien would be in danger there of suffering the death penalty or being subjected to corporal punishment, torture

or other inhuman or degrading treatment or punishment or

- the alien is not protected in the country from being sent on to a country in which the alien would be in such danger.

Section 2

The refusal of entry and expulsion of an alien may not be enforced to a country

- if the alien risks being subjected to persecution in that country or

- if the alien is not protected in the country from being sent on to a country in which the alien would be at such risk.

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An alien may, however, be sent to such a country, if it is not possible to enforce the refusal of entry or expulsion

to any other country and the alien has shown by committing an exceptionally gross offence that public order and

security would be seriously endangered by allowing him or her to remain in Sweden. This is, however, not applicable

if the persecution threatening the alien in the other country entails danger for the life of the alien or is otherwise of

a particularly severe nature.

An alien may also be sent to such a country if the alien has conducted activities that have endangered national

security and there is reason to assume that the alien would continue to conduct these activities in the country and

it is not possible to send the alien to any other country.

(…)

Section 18

If, in a case concerning the enforcement of a refusal-of-entry or expulsion order that has become ﬁ nal and non-

appealable, new circumstances come to light that mean that

1. there is an impediment to enforcement under Section 1, 2 or 3,

2. there is reason to assume that the intended country of return will not be willing to accept the alien or

3. there are medical or other special grounds why the order should not be enforced,

the Swedish Migration Board may grant a permanent residence permit if the impediment is of a lasting nature.

If there is only a temporary impediment to enforcement, the Board may grant a temporary residence permit.

The Swedish Migration Board may also order a stay of enforcement.

Section 19

If, in a case concerning the enforcement of a refusal-of-entry or expulsion order that has become ﬁ nal and non-

appealable, an alien invokes new circumstances

1. that can be assumed to constitute a lasting impediment to enforcement referred to in Section 1, 2 or 3 and

2. these circumstances could not previously have been invoked by the alien or the alien shows a valid excuse

for not previously having invoked these circumstances, the Swedish Migration Board shall, if a residence permit

cannot be granted under Section 18, reexamine the matter of a residence permit and issue an order staying the

enforcement case.

If the conditions set out in the ﬁ rst paragraph have not been fulﬁ lled, the Swedish Migration Board shall decide not

to grant a re-examination.

Chapter 21- Temporary protection

(…)

Section 2

An alien who is covered by a decision on temporary protection under Directive 2001/55/EC and who is transferred

to or received in Sweden in accordance with the Directive shall be given a temporary residence permit, a residence

permit with temporary protection.

An alien may only be refused a residence permit with temporary protection when there are circumstances under

which a refugee can be refused a residence permit under Chapter 5, Section1.

12.2 Processing Costs

The average cost of the Swedish Migration Board’s processing of an asylum claim was SEK 19,267 (ca. 1,800) in

the year 2007. The average cost of the Migration Courts’ processing of an appeal to the Migration Board’s decision

was SEK 31,881 (ca. 3,000) in the year 2007.

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12.3 Additional Statistical Information

2,000

4,000

6,000

8,000

10,000

12,000

14,000

16,000

18,000

1997 2002 2008

Iran

Cuba

Russia

Bosnia and Herzegovina

FRY (Yugoslavia)

Serbia

Kosovo

Stateless

Somalia

Iraq

Figure 5:

Asylum Applications from Top Five Countries of Origin for 1997, 2002 and 2008

Convention Status

Complementary

Protection and Other

Authorisations

to Remain

Rejections Other Decisions*

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1992

275 1% 6,715 26% 14,670 57% 3,952 15% 25,612

1993

761 1% 33,237 40% 43,402 52% 6,122 7% 83,522

1994

538 1% 19,368 52% 14,920 40% 2,468 7% 37,294

1995

35 0% 2,098 24% 5,684 65% 869 10% 8,686

1996

102 2% 2,424 37% 2,933 45% 1,057 16% 6,516

1997

1,022 10% 3,658 35% 4,932 47% 805 8% 10,417

1998

801 7% 3,518 30% 6,503 56% 836 7% 11,658

1999

326 4% 2,610 30% 5,585 64% 260 3% 8,781

2000

321 2% 6,717 39% 8,970 52% 1,223 7% 17,231

2001

160 1% 4,495 27% 10,638 63% 1,562 9% 16,855

2002

261 1% 5,239 19% 18,479 68% 3,143 12% 27,122

2003

430 1% 3,889 13% 22,650 73% 4,036 13% 31,005

2004

372 1% 3,024 9% 27,870 79% 3,993 11% 35,259

2005

337 1% 5,021 21% 15,923 67% 2,638 11% 23,919

2006

682 2% 22,073 55% 12,675 32% 4,790 12% 40,220

2007

856 3% 14,784 46% 12,184 38% 4,648 14% 32,472

2008

1,696 5% 6,580 19% 21,742 64% 3,827 11% 33,845

*Other decisions may include withdrawn claims, abandoned claims or claims otherwise resolved.

Figure 6:

Decisions Made at the First Instance, 1992-2008

Switzerland

SWI

341 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

342 - NATIONAL LEGAL FRAMEWORK

343 - INSTITUTIONAL FRAMEWORK

343 - PRE-ENTRY MEASURES

344 - ASYLUM PROCEDURES

350 - DECISION-MAKING AND STATUS

352 - E

FFICIENCY AND INTEGRITY MEASURES

353 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

355 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

356 - R

ETURN

357 - INTEGRATION

358 - ANNEXE

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SWI

1 Background: Major Asylum

Trends and Developments

Asylum Applications

In the mid-1980’s, the number of asylum applications

made in Switzerland stood at less than 10,000 each

year. This began to change in the late 1980’s, with

signiﬁ cant increases in number reaching a peak of

41,600 applications in 1991. This was followed by

a sharp drop in applications until 1998 and 1999,

when numbers peaked again at 43,000 and 47,000,

respectively. Asylum applications have been made in

much smaller numbers since 2001, reaching the level

of 10,800 in 2007 and 16,600 in 2008.

Top Nationalities

In the 1990’s, Switzerland received asylum claims

mainly from the former Yugoslavia, Sri Lanka, Turkey,

and Somalia. Since 2000, the majority of asylum-

seekers have continued to originate from the former

Yugoslavia, Sri Lanka and Turkey, but also from Eritrea,

Nigeria, Iraq, Somalia and China (Tibet).

Important Reforms

A number of developments between the 1980’s and

2005 have helped to shape the current framework for

asylum procedures. In 1990, Switzerland introduced

a policy of dismissing an application without entering

into the substance (DAWES) of the case, based on a

set of criteria that included the “safe country of origin”

principle. The same year, the government began to

impose certain restrictions on asylum-seekers’ access

to the labour market.

By the end of the millennium, Swiss asylum legislation

had been signiﬁ cantly reformed. The new law of 1999

allowed for the granting of temporary, group-based

protection to persons affected by war, but the law also

aimed at addressing claims that were clearly abusive of

the system by, for example, expanding the criteria for

applying the policy of DAWES to include applications

made without the submission of required documents.

There were further developments to the DAWES policy

in 2003 and 2004. Asylum-seekers whose applications

were subject to a dismissal without entering into the

substance of the claim were no longer entitled to state

welfare benefits, although emergency assistance

remained available to them. Meanwhile, the time limit

for making an appeal against a decision to not enter

into the substance of the claim was reduced.

Further reforms to the asylum legislation came into

force in 2007 and 2008 (see the section below on

recent reforms). In January 2007, the new Federal

Administrative Tribunal (FAT) replaced the Asylum

Appeal Commission (AAC) as the second instance

decision-making body.

25,827

7,900

41,629

16,872

47,513

19,750

26,987

10,795

16,606

5,000

10,000

15,000

20,000

25,000

30,000

35,000

40,000

45,000

50,000

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Figure 1:

Evolution of Asylum Applications in Switzerland, 1983-2008

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Figure 3:

Top Five Countries of Origin in 2008

1 Eritrea 2 848,

2 Somalia 2 014,

3 Iraq 1 440,

4 Sri Lanka 1 262,

5 Serbia 1,186

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

The asylum procedure and the granting of international

protection are governed by the Asylum Act of 26 June

1998 and the Aliens Act of 16 December 2005. The

Asylum Act

contains the inclusion, cessation and

exclusion clauses of the 1951 Convention relating

to the Status of Refugees (1951 Convention), and

deﬁ nes asylum procedures and procedural guarantees.

The Aliens Act covers matters related to temporary

admission and administrative detention measures.

Articles 3 and 8 of the European Convention on Human

Rights (ECHR) are given effect in Swiss legislation.

1 The text of the Asylum Act of 26 June 1998 is available in French

and German on the website of the Federal Ofﬁ ce for Migration

at the following links: http://www.admin.ch/ch/f/rs/1/142.31.fr.pdf

(French) and http://www.admin.ch/ch/d/sr/14.html (German).

2.2 Recent/Pending Reforms

Recent reforms to the Asylum Act and to the Aliens Act

entered into force in 2007 and 2008. Some of the key

changes were as follows:

• An expansion of the criteria for applying the

WES policy to asylum-seekers who do not

provide valid identity and travel documents to

asylum authorities within 48 hours of application

• The interruption of state welfare beneﬁ ts for

asylum-seekers who have r

eceived a negative

decision on their claim

• The granting of access to the labour market

and to family r

euniﬁ cation beneﬁ ts to persons

granted temporary admission

• The introduction of fees for making a second

asylum application or for r

equesting a review

of an initial asylum claim

• The introduction of the safe third country

principle, including an agr

eement with the

European Union (EU) to apply Council Regulation

(EC) No 343/2003

• The transfer of responsibility for all asylum

interviews to the Federal Ofﬁ

ce for Migration

(FOM) from the cantons

• The introduction of a residence permit in cases

of har

dship.

Council Regulation (EC) No 343/2003 of 18 February 2003 establishing

the criteria and mechanisms for determining the Member State

responsible for examining an asylum application lodged in one of the

Member States by a third-country national (Dublin II Regulation).

500

1,000

1,500

2,000

2,500

3,000

1997

1998

1999

2000

2001 2002 2003 2004 2005 2006 2007 2008

Eritrea Somalia Iraq

Figure 2:

Evolution of Applications from Top Three Countries of Origin for 2008

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SWI

Pending Reforms

A draft revision of the Asylum Act and Aliens Act was

presented in January 2009 by the Federal Council, with

a view to improving and accelerating the procedure.

The key proposals for changes to the asylum procedure

are as follows:

• The exclusion of military deserters from refugee

status, unless they have a well-founded fear

of persecution in the meaning of the 1951

Convention

• The removal of the asylum application process

om Swiss diplomatic missions abroad

• The introduction of a new regulation on repeat

applications and r

equests for review in order to

simplify and accelerate these procedures.

As at this writing, the process of national consultation

on these proposals has just begun. The proposals will

then be presented to Parliament. If these proposals are

accepted, the reforms envisaged will likely come into

force in 2011, at the earliest.

Box 1:

Swiss Asylum Case Law: Defining

Grounds for Persecution

Two important rulings in 2006 by the former second-

instance decision-making body, the Asylum Appeal

Commission (AAC), deﬁ ned further the grounds for

persecution that may lead to Convention refugee

status.

In the decision of the AAC of 8 June 2006 in the case

of I.L., Somalia, the Commission ruled that victims

of persecution perpetrated by non-state agents

may be eligible for Convention refugee status.

A ruling recognising gender-related persecution

in the case of forced marriages as a ground for

refugee status was also handed down by the AAC

in 2006 (Decision of the AAC of 9 October 2006 in

re: W.H., Ethiopia).

3 Institutional Framework

3.1 Principal Institutions

The Federal Ofﬁ ce for Migration (FOM), which falls within

the Department of Justice and Police, is responsible

for examining and making determinations on asylum

claims, and may issue removal orders or a grant of

temporary admission if asylum is not granted. The

FOM is also responsible for overseeing the reception

of asylum-seekers. The FOM was created in 2005

to bring together the functions of the Federal Ofﬁ ce

for Refugees and the Federal Ofﬁ ce for Immigration,

Emigration and Integration.

The Federal Council (Swiss Government) determines

the safe countries of origin and the safe third countries.

The Cantonal Migration Ofﬁ ces, often in consultation

with the competent federal authority, are responsible

for the removal of rejected asylum-seekers. In certain

cases, they may also be responsible for receiving

asylum applications. The Cantonal Migration Ofﬁ ces

have responsibility for the Aliens Police.

The Federal Administrative Tribunal (FAT) hears appeals

of decisions made by the Federal Ofﬁ ce for Migration.

4 Pre-entry Measures

To enter Switzerland, foreign nationals must be in

possession of a valid travel and/or an identity document

and of ﬁ nancial means to support their stay. In addition,

some foreign nationals may require an entry visa.

4.1 Visa Requirements

In 2004, Switzerland signed an agreement with

the European Union to take part in the Schengen

Agreement. Switzerland began to apply Schengen

rules on 12 December 2008. Thus, foreign nationals

who require an entry visa may enter Switzerland on a

Schengen visa.

4.2 Carrier Sanctions

With the coming into force of the agreement to apply

the Schengen Agreement, the Aliens Act has introduced

requirements for carriers transporting passengers

to Switzerland. Carriers must “take all reasonable

measures to ensure that only persons possessing the

required travel documents to travel through, enter or

exit the country are transported.” Companies failing

to respect these conditions are obliged to remove the

inadmissible passenger and to take care of uncovered

costs for maintenance and care. They may be subject

to a maximum ﬁ ne of one million CHF. The carrier may

be exempted from sanctions if grounds for refusal of

entry are not related to a travel document or if a travel

document falsiﬁ cation was not detectable.

4.3 Interception

Border control authorities at land border posts and airports

carry out interception activities. Interception measures

include refusal of entry, removal or removal detention

order, if removals cannot be carried out immediately. Entry

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

or access to the territory may be granted in connection

with an asylum request at the border following the airport

procedure. Referral to a reception centre may take place

following an asylum request at the land border. Entry may

also be granted as a consequence of a successful appeal

against a refusal-of-entry decision.

The FOM does not currently have immigration liaison

ofﬁ cers abroad.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

Asylum applications may be made at border posts, at

the airport, and at Swiss diplomatic missions abroad.

Inside the territory, asylum applications may be made at

one of four reception and procedure centres of the FOM

and, for some cases, at the Aliens Police ofﬁ ces. Asylum

applications can be made either orally or in writing.

The majority of asylum claims in Switzerland are made

at one of the reception centres.

An information leaflet on the asylum procedure is

available in a number of different languages in the

reception centres.

5.1.1. Outside the Country

Applications at Diplomatic Missions

An asylum-seeker may apply for asylum at a Swiss

diplomatic mission in his or her country of origin or in

a third country. When an asylum claim is made, the

asylum-seeker provides all documents in support of his

or her claim, and is interviewed by diplomatic mission

ofﬁ cials on the motives of the claim.

The information collected, along with the mission’s

preliminary assessment, is forwarded to the Federal

Ofﬁ ce for Migration, which will then assess whether

there are grounds for the asylum-seeker to enter

Switzerland to pursue an asylum application. If the

FOM ﬁ nds that it would be unreasonable to expect

the person to remain in his or her country of origin or to

make an asylum claim in a third country, an entry visa

will be issued. Once the person arrives in Switzerland,

he or she is directed to the closest reception centre

of the FOM to pursue his or her asylum claim further.

The issuing of an entry visa does not guarantee that the

person’s asylum claim will result in a positive decision.

Entry is authorised to allow the asylum-seeker to make

his or her case fully before the FOM.

A decision by the FOM to not issue an entry visa may

be appealed before the Federal Administrative Tribunal

(FAT) within 30 days of the decision. The FAT can decide

to conﬁ rm the FOM decision or to order the FOM to

issue an entry visa.

As noted above, a proposal has been made to remove

the possibility of making asylum applications at Swiss

diplomatic missions. As at this writing, the proposal

was before the Federal Council.

Resettlement/Quota Refugees

Switzerland does not have in place an annual

resettlement program. However, Article 56 of the

Asylum Act provides for an engagement in resettlement

activities on an ad hoc basis. In recent years, the

Department of Justice and Police coordinated the

resettlement of two groups of refugees on the basis

of United Nations High Commissioner for Refugees

(UNHCR) appeals. In 2005, Switzerland resettled 10

Uzbeks from Romania, and in 2008 it resettled 24 Iraqis

and Palestinians from Syria, Iran and Jordan.

5.1.2. At Ports of Entry

At the Land Border

Since the entry into force of the Dublin II Regulation in

December 2008, asylum-seekers at land border posts

are automatically authorised to enter the country to

make an asylum claim in-country. They are given a

laissez-passer to travel to the nearest reception centre,

where they may make their application.

At Airports

An asylum-seeker making a claim at an airport in Zurich

or Geneva is initially refused entry into Switzerland. The

person is held in the international zone of the airport

for a maximum of 60 days, while the Federal Ofﬁ ce

for Migration examines the asylum claim. The Ofﬁ ce

must make a decision on the claim within 20 days of

the application.

If the Ofﬁ ce rejects the application within the 20-day

period, the asylum-seeker may make an appeal to

the Federal Administrative Tribunal within ﬁ ve days of

the decision. The Tribunal must in principle make a

decision on the appeal within ﬁ ve days. If the Court’s

decision is negative and a return to the country of

origin or a third country is judged to be reasonable

3 See the section on Application and Admissibility below for

information on the procedure at the reception centres.

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SWI

and technically possible, the asylum-seeker then has to

leave the international zone of the airport. The remaining

time between the decision at second instance and the

expiration of the 60-day timeframe is used for return

measures.

If the claim cannot be processed within 20 days or if it

is determined that the claim has a reasonable chance

of success, the asylum-seeker will be admitted to Swiss

territory for further examination of the application.

Upon entry, the asylum-seeker is assigned to one of

the cantons, where he or she will be accommodated.

Under the Dublin system, Switzerland may send a

person who has made an asylum application at the

airport to another state party to the Dublin II Regulation,

if that person had ﬁ rst arrived in the Schengen area

through that state before travelling to Switzerland.

5.1.3. Inside the Territory

Responsibility for Processing the Claim

The Dublin System

In 2004, Switzerland concluded an agreement with the

European Union to take part in the Dublin system. The

Dublin rules came into force on 12 December 2008.

Application and Procedure

The Federal Office for Migration is the competent

authority for determining whether Switzerland is

responsible for processing an asylum claim under

the Dublin II Regulation. If the Federal Office for

Migration determines that, based on the provisions

of the Regulation, Switzerland is not responsible for

examining the asylum claim, it will reject the application

and issue the asylum-seeker an obligation to leave the

country. The removal order is effective immediately. The

asylum-seeker will be notiﬁ ed of the decision at the

reception centre and from there will usually be escorted

to the airport.

Freedom of Movement/Detention

Dublin-speciﬁ c provisions concerning the detention

of asylum-seekers whose claims are considered to

be Dublin cases have yet to be enacted. For the time

being, asylum-seekers whose claims are considered

to be Dublin cases may be detained under the same

provisions applicable to the normal asylum procedure.

These provisions are covered later in the chapter.

However, arrangements for transfer to the competent

Dublin state are usually made immediately once the

asylum-seeker is notified that his or her claim is a

conﬁ rmed Dublin case.

Conduct of Transfers

Switzerland plans to carry out transfers principally by

air transportation. The person will be escorted to the

airplane or at least over the border into the international

area in order to be issued a certiﬁ cate of departure. The

transportation expenses are paid by the Federal Ofﬁ ce

for Migration.

Suspension of Dublin Transfers

Because appeals against Dublin transfer decisions do

not have suspensive effect and Dublin decisions take

immediate effect, appeals must be made from outside

Switzerland. However, the transfer to a Dublin country

may be suspended, for instance in cases where the

person is unable to travel for medical reasons.

Review/Appeal

Since the asylum-seeker must leave the country

immediately upon rejection under the Dublin procedure,

he or she is not given leave to appeal before leaving the

country. Appeal forms are to be submitted in writing,

in one of the three ofﬁ cial languages of Switzerland

within ﬁ ve days of notiﬁ cation of the decision. Forms

must be mailed from a Member State to the Federal

Court of Administration.

Application and Admissibility

Application with the Aliens Police

Foreign nationals who are inside Switzerland on a valid

permit may apply for asylum at an ofﬁ ce of the Aliens

Police in the canton where they are residing. Once their

application has been made, they do not need to report

to a FOM reception centre; rather, they can reside in

their canton for the duration of the procedure.

The Aliens Police record the personal data and

fingerprints of the asylum-seeker. The Police will

then transfer the claim to the FOM, and thereafter the

normal asylum procedure

is applicable. The FOM will

conduct an interview with the asylum-seeker at FOM

headquarters in Bern and will be responsible for making

a determination on the claim.

In case of rejection of the asylum claim, the FOM may

not order the removal. The Aliens Police (cantons) are

responsible for deciding whether the residence permit

has to be revoked.

4 The ofﬁ cial languages are French, German and Italian.

5 The normal procedure is described below.

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Application at the Reception Centre

Applications by persons who do not hold a valid

residence permit for Switzerland and by those who

have been granted entry into the country in order to

make an asylum claim may be made at a reception

centre. At the reception centre, asylum-seekers are

asked to ﬁ ll out a written questionnaire and are invited

to provide the authorities with valid travel and identity

documents within 48 hours of making their application.

Asylum-seekers are required to have their ﬁ ngerprints

taken and undergo a medical examination. The Federal

Ofﬁ ce for Migration (FOM) is responsible for examining

claims made at reception centres. The maximum period

of stay in a reception centre is 60 days.

An initial interview is conducted by the FOM to establish

personal data such as identity and nationality as well as

travel route. The asylum-seeker may also brieﬂ y explain

his or her motives for the application. The asylum-seeker

may be assisted by an interpreter and is provided

with a copy of the minutes of the interview once the

examination process is completed by the FOM.

Usually, the FOM will conduct a second, more in-

depth interview with the applicant to gather additional

information on the claim. A second interview takes

place for the majority of asylum claims, including those

that are subject to safe country of origin and safe third

country policies. The second interview is held in the

reception centre or at the FOM headquarters in Bern,

if the asylum-seeker has been assigned to a canton.

The second interview is conducted with the asylum-

seeker in the presence of a non-governmental

organisation (NGO) representative whose role is to

monitor the proceedings. The asylum-seeker may

request that an ofﬁ cial interpreter be present as well.

Minutes of the hearing are recorded. The report is

translated for the asylum-seeker who has to sign it

to conﬁ rm that all of his or her statements have been

recorded completely and correctly.

With the information gathered, the FOM must determine

whether to proceed according to an accelerated

procedure (DAWES) or the normal procedure. The claim

will be streamed through one of these two procedures

if the claim is not subject to a Dublin transfer.

Applicants whose claims cannot be heard and/or

decided within 60 days in the reception centre are

assigned to a canton. In these cases, most claims

continue to be processed by the FOM headquarters.

Accelerated Procedures

Dismissal of a Claim without Entering into the

Substance (DAWES)

Following the initial interview and often, the second

interview, the authorities may decide to dismiss the

claim without entering into the substance of the claim

(DAWES). In such cases, the application is examined

on a priority basis under an accelerated procedure.

6 A decision to dismiss the claim without entering into the substance

of the application (DAWES) and stream the application into an

accelerated procedure may be taken either by the FOM reception

centre or the FOM headquarters, after either the initial interview or

the second interview. In the majority of cases, a DAWES decision

is made after the second interview.

Box 2:

Obligations of the Asylum-Seeker

Asylum-seekers are required to abide by a set of obligations that are communicated to them upon making an

application. The main obligations are as follows:

• Remain available to the authorities for any communication

• Notify the competent authorities of any change of address

• Submit all necessary travel and identity documents

• Prove or at least show probable cause that one is a refugee. Provide a complete and true statement of

all facts supporting the application for asylum. Answer all questions submitted by the FOM

• Hand in all evidence and provide information on all necessary documents for the assessment of the

application for asylum

• Have the documents translated into one of the ofﬁ cial languages (German, French or Italian), if the

FOM so requests

• Indicate one’s correct personal data to the competent asylum authorities and disclose one’s true identity.

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SWI

A dismissal without entering into the substance of the

claim is applicable in the following cases:

• The asylum-seeker fails to indicate that he

or she has come to Switzerland in sear

ch of

protection against persecution (after in-depth

interview)

• The asylum-seeker fails to provide the necessary

identity and travel documents within 48 hours

(after in-depth interview)

• The asylum-seeker has made misrepresentations

about his or her identity (right to be hear

d without

in-depth interview)

• The asylum-seeker has committed a serious

each of his or her duty to cooperate with

authorities on the asylum claim (right to be heard

without in-depth interview)

• The asylum-seeker is able to travel to a safe

thir

d country where he or she can ﬁ nd protection

(after in-depth interview)

• The asylum-seeker has obtained a negative

decision on a pr

evious asylum claim in

Switzerland or in one of the Member States of

the European Union or the European Economic

Area, and no new information has emerged

since about the risk of persecution (usually after

in-depth interview)

• The asylum-seeker is residing illegally in

Switzerland and is making an asylum claim in

der to defer his or her removal (after in-depth

interview)

• The asylum-seeker is from a country designated

by the Federal Council to be a safe country of

origin (after in-depth interview)

• The temporary protection status granted to

the asylum-seeker has been withdrawn and

no evidence of risk of persecution has been

presented.

With regard to the requirement to provide identity and

travel documents within 48 hours, the authorities will

not issue a DAWES if the asylum-seeker provides a

credible explanation for not producing the required

documents or if, based on the interview, refugee status

under the provisions of Articles 3 and 7 of the Asylum

Act is established. Applicants can also avoid a DAWES

if they submit the required documents after the 48-hour

deadline but before the Federal Ofﬁ ce for Migration

has reached a decision on their case. Furthermore,

a DAWES is not issued if further clarifications are

needed regarding the examination of the asylum claim

or regarding any obstacle to the removal.

According to the Aliens Act and Asylum Act, once a

decision has been reached to dismiss the claim without

entering into the substance, the FOM must examine

whether there are any obstacles to the removal of the

asylum-seekers to their country of origin or to a third

country. If there is an obstacle to return, an asylum-

seeker who is the subject of a DAWES decision may

be granted temporary admission.

A decision to dismiss the claim without entering into

the substance is usually made while the asylum-seekers

are at the reception centres (that is, within the 60-day

period of stay), but may in certain cases be made by the

FOM headquarters. As a rule, decision-making under

the accelerated procedure is made within a shorter

timeframe than the normal procedure. In addition, the

timeframe for making an appeal on a DAWES decision

is shorter.

Normal Procedure

Following the second interview, asylum claims may be

streamed through the normal procedure at the Federal

Ofﬁ ce for Migration headquarters (and sometimes at

the reception centres). The claims are examined on

their merits.

There are three main distinctions between the normal

procedure and the accelerated procedure: the type of

decision that can be made on the application; the way

in which information is taken into consideration; and

the timeframe for making an appeal.

If after the second (in-depth) interview, it is obvious to

the FOM decision-maker (collaborateur scientiﬁ que)

that the asylum-seeker has not provided credible

evidence that he or she meets criteria for refugee

status, the FOM may reject the claim without further

investigation (Article 40 of the Asylum Act).

However, if the facts presented are incomplete, the

FOM must carry out a further examination as far as is

relevant, possible and reasonable, including conducting

an additional (third) interview with the asylum-seeker or

seeking expert opinion on the claim (Article 41 Asylum Act).

If the decision-maker determines that the person does

not meet the criteria for asylum, the FOM must proceed

to an examination of whether the asylum-seeker can

be removed from Switzerland. This stage of the normal

procedure of an examination has three steps:

7 In other words, an examination of obstacles to return is always

undertaken during the asylum procedure, following a negative

decision on the claim. The criteria for granting temporary

admission are described under the section entitled Decision-

Making, below.

8 See the section on Appeal of Asylum Decisions below.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

• First, whether the removal of a person is

admissible (that is, whether it is in accordance

with Switzerland’s international obligations)

• Second, whether it is reasonable to remove a

person to his or her country of origin or a thir

country considering the general situation in the

country in question

• Third, whether removal of the person is

practicable.

If any one of these thr

ee conditions is not fulﬁ lled, the

Federal Ofﬁ ce for Migration may grant that person

temporary admission to Switzerland.

Appeal of Asylum Decisions

An appeal before the Federal Administrative Tribunal

may be made against any negative decision or decision

to not enter into the substance of a claim (DAWES)

made by the FOM.

Appeals may be made within 30 days of a negative

decision made by the FOM under the normal

procedure, while decisions made to not enter into the

substance of the claim (DAWES) may be appealed

within ﬁ ve working days.

The appeal is a paper process and will take account

of errors of both law and fact. New evidence may

be presented. Appeals of decisions made under the

accelerated procedure, the normal procedure and at

airports have suspensive effect.

Freedom of Movement during the

Procedure

Detention

As a rule, asylum-seekers whose claims are being

examined under the accelerated procedure or the

normal procedure will not be detained. The Aliens

Police have the authority to detain persons who have

entered Switzerland without proper authorisation. Such

persons may make an application for asylum while in

detention.

Reporting

The competent authorities must be notified of any

change of address.

9 See the section on Decision-Making below for further information

on criteria for obtaining refugee status and temporary admission.

10 The only appeals that do not have suspensive effect are those

appeals made against decisions to apply the Dublin II Regulation

and transfer a person to another State party for the examination

of the asylum claim, and appeals against negative decisions on a

request for review.

Repeat Applications and Requests for

Review of Applications

Under Swiss law, there is a distinction made between

repeat applications and requests for review of initial

asylum applications.

Repeat Applications

A foreign national whose original asylum application

was rejected may make a subsequent application for

asylum. If the person provides credible information

that new facts that may lead to refugee protection

have emerged since the original asylum application

procedure was completed, the application will be

examined on its merits. If no new facts are presented

in a credible manner, the application may be dismissed

without entering into the substance of the claim

(DAWES).

Requests for Review of Applications

A request for review of original asylum applications may

be made in the following instances:

• New information concerning the content of

the original claim has come to light after the

completion of the original asylum procedure

• New information concerning obstacles to return

has come to light.

o be accepted for review, such requests must meet

certain additional criteria related to timeframes, the

presentation of sufﬁ ciently substantiated information,

and the presentation of new information (rather than a

new appreciation of already-known facts).

According to the revised Asylum Act, the Federal

Ofﬁ ce for Migration may impose a fee in the form of

an advance payment for repeat applications and all

requests for review. If the fee is not paid, the application

or request for review may be rejected. Exceptions for

payment of the fee may be made if the applicant does

not have the ﬁ nancial means to pay the fee and if it is

clear at the outset that the application or request for

review will be successful.

Persons whose repeat applications and request for

review have been rejected by the FOM may make

an appeal before the Federal Administrative Tribunal.

Appeals of decisions to reject a request for review do

not have suspensive effect while appeals of negative

decisions on repeat applications do.

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SWI

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

According to Article 34(1) of the Asylum Act, the Federal

Ofﬁ ce for Migration may dismiss a claim without entering

into the substance (DAWES) if the applicant is from a

safe country of origin and there are no indications that

the claim is not manifestly unfounded. The Federal

Council establishes a list of safe countries according

to a speciﬁ c set of criteria.

The Federal Council must,

when considering whether or not to include a country

on the safe country list, take the following criteria into

account:

• The political and human rights situation in the

country

• The application of human rights standards

accor

ding to the International Covenant on Civil

and Political Rights of 16 December 1966

• The stability of the political situation

• Progress with regard to the human rights

situation and admission of monitoring by

independent organisations

• Assessment of other States and the UNHCR

• A large number of asylum claims from applicants

of this country being manifestly unfounded.

5.2.2. First Country of Asylum

Swiss asylum law does not deﬁ ne or use the term “ﬁ rst

country of asylum”. The safe third country policy, as

described below, incorporates the principle of ﬁ rst

country of asylum.

5.2.3. Safe Third Country

Switzerland has in place a safe third country policy

in relation to asylum claims. The Federal Council

is responsible for issuing an ofﬁ cial list of safe third

countries and did so most recently in 2008. The list

is limited to Member States of the European Union,

Norway, Iceland and Liechtenstein. These countries are

subject to a general presumption of safety. As a rule,

once Switzerland has completed a formal readmission

agreement with another country, asylum-seekers

may be returned to that country if they had taken up

residence there before entering Switzerland. Usually,

the application of the safe third country policy results

in a decision to dismiss the claim without entering into

the substance (DAWES).

11 The list of safe countries (dated 1 March 2007) can be found in the

annexe.

The safe third country policy may also be applied to

countries that are not included on the Federal Council

list. The determination of whether a third country can

be considered safe is done on a case-by-case basis. In

order for the policy to take effect, the following criteria

must be met:

• Either the third country must agree to receive

the asylum-seeker if he or she is r

eturned or the

asylum-seeker must be in possession of a valid

visa to enter the third country

• The third country respects the non-r

efoulement

principle and the asylum-seeker is able to ﬁ nd

protection there.

If these prerequisites are met, a DAWES decision

may be issued, unless the asylum claim is manifestly

founded or members of the applicant’s family live in

Switzerland (Article 34(3) of the Asylum Act).

5.3 Special Procedures

5.3.1. Unaccompanied Minors

The FOM makes special arrangements for

unaccompanied minors seeking asylum in relation to

the asylum procedure, reception, and ﬁ nal decisions.

An unaccompanied minor asylum-seeker (UAM) is

assigned a representative who will be responsible for

looking after the minor’s interests during the asylum

procedure. When interviewing the minor, the FOM takes

account of the child’s age and mental development

and may adjust the interview method accordingly.

The officers conducting the interview may request

the assistance of staff within the FOM, such as

psychologists and lawyers, who have been specially

trained to cater to the needs of minors.

If an UAM does not meet the criteria for refugee status,

the FOM assesses whether it is reasonably justiﬁ ed for

the UAM to return to the country of origin. In deciding

whether to return minors, the authorities must take

into account the situation in the country of origin, the

minor’s age, and what solution will be in the child’s best

interests. This includes an assessment of the minor’s

level of maturity and independence; the extent of his

or her relationships in both the country of origin and in

Switzerland; the degree of integration in Switzerland;

and the possibilities for a full reintegration in the country

of origin.

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Figure 4:

Total Applications Made by Unaccompanied

Minors, 2000-2008

886

412

267

231

606

552

1,416

1,802

1,643

200

400

600

800

1,000

1,200

1,400

1,600

1,800

2,000

2000

2001

2002

2003

2004

2005

2006

2007

2008

5.3.2. Stateless Persons

Applications for asylum made by stateless persons are

examined by the FOM in the same manner as are all

other asylum applications.

6 Decision-Making and

Status

The asylum procedure at the ﬁ rst instance is a single

procedure. Thus, the Federal Office for Migration

considers whether the asylum-seeker meets criteria

for refugee status or for temporary admission (a

complementary form of protection) and whether it is

admissible, reasonable and practicable for persons not

in need of protection to be removed from Switzerland

(that is, that a removal order may be issued with a

negative decision).

6.1 Inclusion Criteria

6.1.1. Convention Refugee

An asylum-seeker is granted refugee status if the FOM

determines that he or she meets the criteria set out

in Article 3 of the Asylum Act, which reproduces the

deﬁ nition set out in Article 1A (2) of the 1951 Convention.

The asylum-seeker’s claim must be found to be credible

and must not meet criteria for exclusion contained in

Articles 53 and 54 of the Asylum Act.

6.1.2. Temporary Admission

An asylum-seeker may be granted temporary admission

(a complementary form of protection) if he or she

does not meet criteria for refugee status and return

to the country of origin or to a third country cannot be

implemented for one of the following reasons:

• Return is inadmissible as it would be in breach

of Switzerland’

s obligations under international

law, including Article 3 of the ECHR

• Return is not reasonable because it poses a real

risk to the person (including risks associated

with civil war or international conﬂ ict)

• Return is not practicable (e.g., the country of

origin r

efuses to take back its national). As a

rule, at the earliest opportunity 12 months after a

ﬁ nal decision on the claim was taken, temporary

admission is granted.

The grounds for the impossibility of the execution of

removal do not, however, include the uncooperative

behaviour of the person subject to a return order.

6.2 The Decision

The decision of the Federal Ofﬁ ce for Migration on an

asylum claim is made in writing and provided to the

applicant or to his or her legal representative via registered

mail, except for decisions issued in the reception centres,

which may be given directly to the applicant when he or

she has no legal representative. If negative (either with

a removal order or with a temporary admission), the

decision includes reasons for the rejection.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

The FOM may take one of the following decisions on

an asylum claim:

• Grant refugee status with asylum status

• Grant temporary admission with refugee status

(usually, in cases where the asylum-seeker meets

criteria for refugee status but is subject to exclusion

as per Articles 53 and 54 of the Asylum Act)

• Grant temporary admission without refugee

status (usually, in cases where the asylum-

seeker does not meet criteria for refugee status

but cannot be removed for one of the reasons

outlined above)

• Reject the claim for asylum

• Dismiss the claim without entering into the

substance (DA

WES)

• Close the asylum claim (such as after the

asylum-seeker has withdrawn his or her claim).

As described above, the Federal Ofﬁ

ce for Migration

must also consider whether removal is admissible,

reasonable and practicable if a claim for asylum has

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SWI

been rejected. Thus, the FOM may make decisions

at the end of the asylum procedure to either issue a

removal order or grant temporary admission, if removal

is not possible or practicable.

The Federal Ofﬁ ce for Migration is also the competent

authority for making decisions on exclusion, termination

and revocation of refugee status and temporary

admission, as described below.

Beneﬁ ts for Refugees with Asylum Status

Persons who are granted asylum are entitled to a

one-year residence permit, which is renewed yearly.

After ﬁ ve years, refugees are eligible for a permanent

residence permit. Refugees also have access to the

labour market and to social benefits equivalent to

beneﬁ ts available to Swiss citizens. There is a legal

right to family reuniﬁ cation.

Temporary Admission

Benefits offered to persons granted temporary

admission are determined by the cantonal authorities.

Generally, all persons granted temporary admission

are eligible for the same beneﬁ ts to which asylum-

seekers have access during the asylum procedure.

The cantonal authorities may decide which additional

beneﬁ ts to offer. These include the right to obtain a

work permit and issue one-year renewable residence

permits. After ﬁ ve years, an annual residence permit

can be granted by the canton in accordance with the

provisions of Article 84 (5) of the Aliens Act.

In accordance with the 1951 Convention, persons

granted temporary admission with refugee status

are entitled to a travel document. However, other

beneﬁ ciaries of temporary admission cannot travel

outside of Switzerland. Family reuniﬁ cation is possible

after three years on certain conditions.

Asylum-seekers who are not eligible for refugee status

and whose removal from Switzerland is admissible,

reasonable and practicable, are set a deadline by which

they must leave Switzerland.

6.4 Exclusion

6.4.1. Refugee Protection

Switzerland applies the exclusion clauses of Article 1F

of the 1951 Convention. Persons who meet the criteria

for refugee status but who are subject to the exclusion

clauses will not be granted asylum. Such decisions may

12 These beneﬁ ts are outlined below, under the section Assistance

and Beneﬁ ts to Asylum-Seekers.

be appealed before the Federal Administrative Tribunal

within 30 days of the decision.

When Article 1F of the 1951 Convention is applicable

to a refugee, the Federal Office for Migration will

consider whether Article 3 of the ECHR would prevent

the implementation of removal.

In addition to Article 1F of the 1951 Convention,

persons who meet the criteria for refugee status may

be excluded under one of the following conditions:

• They constitute a risk to the security of the

country or a danger to the community as a r

esult

of a criminal offence committed in Switzerland

(Article 53 of the Asylum Act)

• They became refugees in the sense of Article 3

of the Asylum Act after having left the country

of origin (Article 54 of the Asylum Act).

In these cases, the person may be granted temporary

admission (application of the non-r

efoulement principle

of the 1951 Convention).

6.4.2. Temporary Admission

Persons who meet the criteria for temporary admission

may be excluded from this type of complementary

protection if there are grounds to believe the person

constitutes a threat to, or has committed a serious

violation of, national security and public order.

However, the Federal Ofﬁ ce for Migration must consider

Switzerland’s obligations under Article 3 of the ECHR

before deciding whether or not to issue a removal order

to persons excluded from temporary protection.

6.5 Cessation

Asylum in Switzerland expires if a refugee has lived

abroad longer than three years, if he or she has been

granted asylum or permission to stay permanently

in another country, if the refugee renounces asylum,

or if an expulsion or a judicial banishment has been

executed (Article 64 of the Asylum Act). Furthermore,

the refugee status expires, as a rule, if the person

concerned has obtained Swiss citizenship.

6.6 Revocation

According to Article 63 of the Asylum Act refugee status

granted in accordance with the 1951 Convention can

be revoked under one of the following circumstances:

• If the alien has surreptitiously obtained asylum

or r

efugee status by false information or by the

concealment of essential facts

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• For reasons falling under section 1C

subparagraphs 1-6 of the 1951 Convention.

However

, revocation does not automatically mean that

the person concerned is forced to leave Switzerland

since the right to stay in Switzerland is regulated in the

Swiss Aliens Act. It is the responsibility of the cantonal

authorities to decide whether the residence permit must

also be revoked.

6.7 Support and Tools for

Decision-Makers

6.7.1. Country of Origin Information

The Country Desk of the Country and Migration Analysis

section (MILA) of the Federal Ofﬁ ce for Migration (FOM)

collects, analyses, prepares and circulates information

on the situation in countries of origin. MILA produces COI

products, such as reports on human rights conditions

in countries of origin, depending on the speciﬁ c needs

of the organisation and its decision-makers.

Any FOM ofﬁ cial, including asylum decision-makers,

may make an information request to the Country Desk.

Decision-makers may also search for COI and migration-

related documents on the internal database, Artis. COI

specialists carry out fact-ﬁ nding missions in order to

improve their knowledge of countries of origin as well

as of countries of transit. In case of incompleteness

of information MILA reverts to the services of Swiss

embassies in countries of origin.

6.7.2. Language Analysis

The LINGUA section of the FOM provides language

analysis services to asylum authorities at all stages

of the procedure, including the pre-entry (airport

procedure) and appeal stages. The aim of the service

is to help decision-makers to establish the primary

socio-cultural background of the asylum-seeker, where

this is otherwise difﬁ cult to determine. By employing

independent experts, the linguistic features in the

asylum-seeker’s speech, as well as his or her knowledge

of the region or country of origin are analysed. The

ﬁ ndings of LINGUA are presented in a report and may

be used as evidence in the decision-making process.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

When a person makes a claim for asylum, he or she

must provide ﬁ ngerprints, which are then submitted to

the Automated Fingerprint Identiﬁ cation System (AFIS).

The AFIS allows the FOM to compare the data against

other ﬁ ngerprints gathered by the FOM, the federal

police and the Border Guard Corps.

7.1.2. DNA Tests

DNA tests may be conducted in the case of family

reuniﬁ cation and only with the consent of the applicants

who qualify for family reuniﬁ cation. Otherwise, DNA

tests are not utilised during the asylum procedure.

7.1.3. Forensic Testing of Documents

The Country and Migration Analysis section (MILA) of

the Federal Ofﬁ ce for Migration conducts testing of

identiﬁ cation documents and to a lesser extent juridical

and civil status documents of countries of origin as

well as countries of transit, as far as knowledge and

infrastructure allow. MILA specialists have been given

a basic technical training comparable to the one taught

to the border control agents. In order to adequately fulﬁ l

Box 3:

The Evolution of the Provision of Country of Origin Information

With the fusion of the former Federal Ofﬁ ce for Refugees (FOR) and the Federal Ofﬁ ce of Immigration, Integration

and Emigration (IMES) in 2005, both the type of COI customers and the range of COI products changed. In addition

to requests for information on asylum cases, COI specialists at the Country and Migration Analysis Section (MILA)

began working on other migration-speciﬁ c subjects such as questions on visa demands and illegal immigration.

MILA also began to receive research requests from cantonal migration authorities, mainly regarding medical issues.

With the further development of the internal database Artis, the accessibility and user-friendliness of COI services

for decision-makers was improved.

In recent years, MILA has intensiﬁ ed information-exchange partnerships with a large number of European states. These

partnerships will be strengthened in the near future with the development of the Common European Asylum System,

the introduction of common guidelines concerning the collection and handling of country of origin information, as

well as the development of the European Asylum Curriculum and the common electronic European Portal on COI.

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SWI

its tasks, MILA resorts to basic professional instruments

at its disposal (e.g. Docutest) and a broad specimen

database for comparison of checked documents.

The analysis of juridical and police documents

presupposes the knowledge and evaluation of a COI

specialist. Nevertheless if the genuineness of any

document is in doubt due to the lack of proof, the

document in question is analysed in a special forensic

cantonal laboratory for criminal investigation.

7.1.4. Database of Asylum

Applications/Applicants

Following the initial interview at the registration centre, the

FOM veriﬁ es whether the asylum-seeker is registered in

the Central Aliens Register or the RIPOL (the automated

central police search system). The asylum-seeker’s

personal data is also entered and stored in the Central

Information System on Migration (SYMIC).

7.2 Length of Procedures

There is no time limit for making an asylum application

in Switzerland. The length of the procedure at the ﬁ rst

instance varies from a few days for DAWES to about three

months on average for cases in the normal procedure.

7.3 Pending Cases

At the end of October 2008, there were 10,663 pending

cases at ﬁ rst instance. Following the increase in the

number of asylum claims (a rise of 30%) in 2008, the FOM

has decided to handle the cases according to the order

of priority, with a focus on decisions without entering into

the substance and on other decisions accompanied by a

removal order, and according to the rule “last in, ﬁ rst out.”

In addition, asylum claims made at Swiss diplomatic

missions are also being managed according to a sequence

of priority, based on the degree of urgency of the claim.

7.4 Information Sharing

Switzerland does not currently have any information-

sharing agreement in place with third countries outside

of the Dublin system. With the coming into force of the

Dublin II Regulation in December 2008, Switzerland

now shares relevant data with other States parties.

Article 98 of the Asylum Act provides for the disclosure

of specific personal data on asylum-seekers only

to third countries and international organisations

guaranteeing data protection equivalent to that

provided for in Swiss law.

Box 4:

Cooperation with UNHCR, NGOs

The UNHCR Liaison Service for Switzerland has no

direct role in the determination procedure. However,

upon the request of the FOM or another party

involved in the procedure, the UNHCR may provide

up-to-date country of origin information or UNHCR

recommendations and positions. The Liaison Service

meets with representatives of the FOM on a regular

basis and may issue its opinion on legislative or policy

changes. UNHCR also visits reception facilities and

shares its ﬁ ndings and recommendations with the

relevant government agency.

NGOs which form part of the umbrella organisation,

the Swiss Refugee Council, may obtain authorisation

from the Federal Department of Justice and Police,

to access asylum-seekers and to be present at the

in-depth asylum interviews, although they do not

have a role in the decision-making process.

8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

In principle, there is no free legal aid ex ofﬁ cio.

The applicant has the right to retain a legal representative

during the entire procedure. The legal representative’s

role is to act on behalf of the asylum-seeker when

necessary. This includes accompanying the person

to an interview. However, only the asylum-seeker is

entitled to answer questions on his or her claim before

the FOM. The applicant will have to issue a written

power of attorney to a representative, in order to

enable him or her to represent the applicant. If a legal

representative demands money for his or her work, the

applicant will have to pay it himself or herself.

The legal representative may not be an asylum-seeker

who has made a claim in Switzerland.

8.1.2. Interpreters

The FOM uses interpreters for German, French and

Italian when necessary for interviews. As a rule, the

appeal procedure is paper-based and the appeal must

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be made in one of the three ofﬁ cial languages of the

Swiss Confederation.

8.1.3. UNHCR

If approached by asylum-seekers directly, which

happens on a daily basis, the UNHCR Liaison Service

assesses their situation and takes action according to

their individual protection needs.

The Liaison Service responds to written and telephone

inquiries by providing asylum-seekers and refugees

with general information about the asylum procedure

and the contact addresses of legal counsellors and

social institutions.

8.1.4. NGOs

When a person has made a claim for asylum at an

airport or a reception centre, the Federal Ofﬁ ce for

Migration provides information on, and facilitates

contact with, non-governmental organisations that may

act as advisors and consultants to the asylum-seeker.

NGO representatives acting as advisors have access

to reception centres during visiting hours.

As noted above, an NGO representative is usually

present at the second, in-depth interview to monitor

the proceedings. However, the representative may not

act as an advisor or a consultant during the interview.

Some NGOs in Switzerland offer integration activities

to asylum-seekers.

8.2 Reception Beneﬁ ts

According to Article 115 of the Swiss Federal

Constitution, the cantons have responsibility for

providing social welfare, which must be accorded to

any person in need. The legal basis for providing social

assistance to asylum-seekers in particular is contained

in the following texts:

• Articles 80 - 95 of the Asylum Act

• The laws on social welfare of the cantons

• The recommendations of the Swiss Conference

on Social W

elfare (SKOS).

The provision of social assistance granted to asylum-

seekers is overseen by the cantons and may be

delegated to communities, welfare organisations and

private businesses. The cantons are reimbursed for

social assistance payments to asylum-seekers by the

Confederation (central government).

Article 12 of the Swiss Federal Constitution guarantees

that a minimum level of social assistance be

provided to any person in need. This minimum level

of assistance must cover necessities such as food,

shelter, clothing and basic medical care. Any reduction

in social assistance granted to a person must be made

according to the law, and must be justiﬁ ed as being

in the public interest and as meeting principles of

reasonableness.

8.2.1. Accommodation

The majority of asylum-seekers who make an asylum

claim at a registration centre will also be accommodated

there. If an asylum claim cannot be decided at the

centre within a reasonable time, the asylum-seeker

will be attributed to one of the cantons according to

a distribution key and will be accommodated there.

Most cantons initially accommodate asylum-seekers

in reception centres. Further on in the procedure,

the asylum-seekers may be moved to private

accommodation. The members of the same family are

attributed to the same canton whenever possible.

8.2.2. Social Assistance

As noted above, asylum-seekers are entitled to social

assistance benefits to cover basic needs. These

beneﬁ ts, however, are provided at a level lower than that

accorded to Swiss citizens, refugees, or persons with a

residence permit. Asylum-seekers may also be entitled

to speciﬁ c types of social insurance (such as old age

pension, disability pension, unemployment pension,

and health insurance) if they meet certain criteria. Social

assistance may be provided in cash or in kind.

8.2.3. Health Care

According to Article 3 paragraph 3 of the Swiss law on

health insurance, every person residing in Switzerland

must be covered by health insurance. The basic health

care insurance is the same for every person living in

Switzerland. No difference is made between asylum-

seekers, refugees and Swiss residents.

The compulsory basic health insurance scheme covers

illness, accidents and maternity, although it covers

accidents only when the insured person has no other

compulsory or optional coverage. It also covers certain

preventive measures. All insurers offering compulsory

health insurance must provide the same beneﬁ ts, which

are deﬁ ned by law.

8.2.4. Education

According to Article 19 of the Swiss federal Constitution,

every child living in Switzerland is, regardless of his or her

status according to the law concerning foreign nationals,

entitled to free primary education. Thus, children up to

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SWI

the age of 16 claiming asylum in Switzerland have the

right to be enrolled in school.

According to Article 62 of the Swiss federal Constitution,

the cantons are responsible for the school system and

for education. They provide primary education that

open to all children. The education is compulsory and is

under public direction and control. Each canton has laws

and regulations concerning the details of education.

8.2.5. Access to Labour Market

Asylum-seekers do not have permission to work in

the ﬁ rst three months after an asylum application is

made. If the claim is not rejected within those ﬁ rst three

months, the responsible cantonal authorities may issue

a work permit. The future employer must apply for the

permit which is valid only for this speciﬁ c position. It

is issued only if the conditions of the labour market do

not impose limitations on the hiring and if no Swiss

citizen or person with a residence permit applies for

the same position.

Asylum-seekers who take up paid employment will have

part of their wages (10%) deducted, either to cover the

cost of any previous allocation of social assistance, or

for any eventual return journey to the country of origin.

8.2.6. Family Reuniﬁ cation

Asylum-seekers are not entitled to family reuniﬁ cation

for the duration of the asylum procedure.

8.2.7. Access to Integration

Programmes

According to Swiss law, asylum-seekers are not entitled

to integration programmes offered or paid for by the

cantons or the Confederation. As noted above, some

Swiss NGOs provide integration activities to asylum-

seekers.

8.2.8. Access to Beneﬁ ts by Rejected

Asylum-Seekers

Since April 2004, asylum-seekers whose applications

are dismissed without entering into the substance of

the claim (DAWES) are no longer entitled to welfare

beneﬁ ts. Based on reforms that came into effect in

2008, asylum-seekers who have received a negative

decision on their claim are also no longer entitled to

welfare benefits accorded to asylum-seekers who

are not subject to a DAWES decision during the

procedure. However, according to Article 12 of the

Swiss Constitution, rejected asylum-seekers remain

13 Education is compulsory for nine years, typically from the ages of

seven to 16.

entitled to a minimum level of support to cover basic

needs as required, including medical assistance in the

case of an emergency.

9 Status and Permits

Granted outside the

Asylum Procedure

As explained above, Switzerland applies a single asylum

procedure that includes the examination of a claim

for the granting of Convention refugee status and a

complementary form of protection known as temporary

admission if there are obstacles to return. The following

types of status and permits may be granted outside the

asylum procedure.

9.1 Temporary Protection

Switzerland may grant temporary protection to groups

of persons whose country of origin is in a state of armed

conﬂ ict resulting in a mass inﬂ ux of persons arriving

in Switzerland. The Federal Council may designate

groups of persons who may beneﬁ t from temporary

protection and may determine which criteria will be

used to determine eligibility. The provision for temporary

protection was inserted into the Asylum Act in 1999,

but has not been applied to date.

9.2 Regularisation of Status of

Stateless Persons

According to Swiss law,

a person is considered to be

stateless if he or she meets the deﬁ nition of a stateless

person as laid out in the 1954 Convention on Stateless

Persons

or if ties to his or her country of origin are

weakened to such an extent as to render the person

de facto stateless. While the Convention on Stateless

Persons does not entitle stateless persons to admission

to a country or to a residence permit, Swiss law takes

precedence on this matter. Article 31 paragraph 1 of

the Aliens’ Law stipulates that a person qualifying for

the status of statelessness under Swiss law is entitled

to an annual residence permit in the canton of his or

her legal residence.

A stateless person whose application for asylum has

been rejected may make an application for recognition

of status as a stateless person to the Federal Ofﬁ ce for

Migration (FOM).

Between 1 January and 31 October 2008, the Federal

Ofﬁ ce for Migration (FOM) processed 16 applications

14 Art. 24 of the Federal Law on the International Private Law.

15 New York Convention Relating to the Status of Stateless Persons

of 28 September 1954.

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for the status of stateless person. Three applications

were approved, while 13 were rejected.

9.3 Hardship Cases

In 2007, three categories of cases of hardship were

introduced in the Asylum Law and the Aliens Law. The

criteria for determining the presence of grave hardship

are deﬁ ned in Article 31 of the Decree on Admission,

Sojourn and Employment (VZAE) and are applicable to

all three categories of hardship. The criteria are based

on an assessment of the following:

• The integration of the applicant in Switzerland

• The person’s record of respect for law and order

• The person’s family situation, with an emphasis

on the beginning and the length of the childr

en’s

schooling

• The person’s ﬁ nancial situation and willingness

to participate in economic life and education

• The duration of stay in Switzerland

• The person’s health situation

• The possibility of reintegration into the society

of the native country

As per Article 31 (2) of the VZAE, persons being

considered for a residence permit based on serious

hardship criteria are required to disclose their identity

to the authorities.

The three categories of hardship are as follows:

• Article14 paragraph 2 of the Asylum Law stipulates

that foreign nationals may be granted an annual

residence permit upon application to the competent

cantonal authority provided that the applicants

have been in Switzerland for a minimum of ﬁ ve

years and that the repatriation would cause grave

hardship. This regulation is applicable, inter alia,

to persons whose applications for asylum have

been rejected. In 2007, 800 persons were granted

an annual residence permit on these grounds.

Between 1 January 2008 and 31 October 2008,

775 persons were granted the same.

• Article 84 paragraph 5 of the Aliens’ Law

stipulates that persons benefiting from

temporary admission for at least ﬁ ve years must

have their cases examined. This examination

aims at establishing whether return to the

country of origin would cause the person grave

hardship. If return would cause grave hardship,

the competent cantonal authorities may grant

an annual residence permit with the approval of

the Federal Ofﬁ ce for Migration. In 2007, 3,395

persons benefited from this legal provision.

Likewise, 2,642 persons had been granted a

permit as at October 2008.

• A

rticle 30 paragraph 1 lit. b of the Aliens Law

provides that persons who have resided in

Switzerland without proper authorisation for a

prolonged period of time (so-called “sans-papiers”)

and whose repatriation would cause grave

hardship may be granted an annual residence

permit. Between September 2001 and October

2008, 1,132 persons obtained such a permit.

10 Return

The Federal Ofﬁ ce for Migration (FOM) is the competent

authority for the formulation and implementation of

return policies. However the cantons are in charge

of and responsible for the execution of the return,

while the FOM (Returns Operations Division) provides

assistance to them.

10.1 Pre-departure Considerations

When a rejected asylum-seeker with an order to leave

the country is prepared to voluntary leave the country

within a given timeframe, he or she may apply for return

assistance at cantonal advisory agencies, reception

centres, and airport transit.

10.2 Procedure

Voluntary Return

The purpose of return assistance is to encourage

voluntary and mandatory return of rejected asylum-

seekers by means of a system of benefits. FOM

implements these programmes in cooperation with

the Swiss Agency for Development and Cooperation

(SDC), the International Organization for Migration

(IOM) and competent cantonal agencies and relief

organisations. Partner cooperation is coordinated

by the Interdepartmental Steering Group on Return

Assistance (ILR), which is co-led by FOM and SDC.

Any asylum-seeker may apply for return assistance at

cantonal advisory agencies, reception centres and the

airport during transit. In addition, recognised refugees

may apply for return assistance if they wish to return to

their country of origin.

However, return assistance is not granted to convicted

offenders or to persons who have been found to

have misused the asylum system at any stage of the

application process or thereafter.

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Certain categories of persons designated as “foreign

nationals” also have access to return assistance. These

include victims and witnesses of human trafﬁ cking, and

cabaret dancers who are being exploited in Switzerland.

With the help of the SDC, the Return Assistance Section

of the FOM implements structural aid programmes in

the countries of origin. Both the local population in the

country of origin and returnees beneﬁ t from structural

aid. This aid includes projects to prevent irregular

migration (PiM) with the aim of making a short-term

contribution to limiting irregular migration.

The return assistance program is made up of the

following components:

• Individual return assistance

• Country-speciﬁ c

programmes

• Return assistance for “foreign nationals”

• Cantonal return counselling centres

• Return assistance communication

• Social insurance and return

• Structural aid

• Prevention of irregular migration.

Forced Return

Undocumented foreign nationals, including rejected

asylum-seekers, must leave the country. If they refuse

to return voluntarily, they may be escorted home.

Cantonal authorities are responsible for enforcing

such measures while the FOM assists as required. If a

foreign national cannot be returned on a regular ﬂ ight,

FOM organises a special ﬂ ight at the request of the

cantonal authority.

10.3 Freedom of Movement/

Detention

The cantonal authorities are responsible for the

implementation of return and removal of persons

without proper authorisation of stay in Switzerland.

Unless other sufﬁ cient but less coercive measures

can be applied effectively, the cantonal authorities

may decide to keep an illegal alien who is subject to

return procedures in detention in order to prepare the

return and/or carry out the removal process, particularly

when there is a risk of absconding or if the illegal alien

avoids or hampers the preparation of the return or the

removal process.

As such, the cantonal judicial authorities can impose

up to 24 months of administrative detention on

foreign nationals without proper authorisation of stay,

whose return cannot be implemented due to a lack of

cooperation on their part. Detention is terminated under

one of the following conditions:

• Despite the cooperation of the concerned

person, an autonomous and mandatory

departure is not possible

• The person leaves Switzerland

• An application to the judicial authorities for

elease is approved.

The administrative detention may be appealed to the

Supreme Court (federal tribunal).

10.4 Readmission Agreements

Switzerland has signed a total of 43 readmission

agreements or arrangements.

11 Integration

The Aliens Act which was passed in January 2008

deﬁ nes the policy on integration, its aims, the division of

responsibilities, and related measures. A federal action

plan on integration policy was developed in August

2007, presenting more than 40 concrete measures

focusing on, inter alia, language, vocational training,

the labour market and urban development. The federal

government deﬁ nes a programme for integration as

a programme that aims to support language training

and education, professional institutions for integration

issues, and pilot projects of national importance.

All migrants who have a legal and long-term stay

permit, including persons granted refugee status,

are entitled to these integration measures, which are

implemented at the cantonal level. The government

ﬁ nancially supports the social, professional and cultural

integration of refugees or persons with protection status

who have a residence permit or a temporary residence

permit (Article 94 of the Asylum Act). The cantons,

communities and third-party organisations have to

ﬁ nancially participate in the integration programmes.

Also people with provisional admission have, through

the new law, better access to the labour market.

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12 Annexe

12.1 Safe Countries of Origin List (1 March 2007)

Legal Basis

In accordance with Article 6(a) paragraph 2 letter A of the Asylum Act, the Federal Council establishes a list of ‘Safe

countries’, which is examined periodically.

Current List

In the following list, the States considered to fall within the meaning of Article 34 paragraph 1 of the Asylum Act

are speciﬁ ed in bold and italics.

Countries

By Decision of the Federal Council

Designation as ‘Safe Countries’

Revoked

Albania

06.10.93

Algeria 18.03.91 19.02.92

Angola 25.11.91 25.11.92

Belgium

01.08.03

Benin

01.01.07

Bosnia and Herzegovina

01.08.03

Bulgaria

18.03.91

Denmark

01.08.03

Germany

01.08.03

Estonia

01.08.03

Finland

06.10.93

France

01.08.03

Gambia

06.10.93

Ghana

06.10.93

Greece

01.08.03

United Kingdom

01.08.03

India

18.03.91

Ireland

01.08.03

Iceland

01.08.03

Italy

01.08.03

Croatia

01.01.07

Latvia

01.08.03

Lichtenstein

01.08.03

Lithuania

15.06.98

Luxembourg

01.08.03

Mali

01.01.07

Malta

01.08.03

Macedonia (FYROM)

01.08.03

Moldova

01.01.07

Mongolia

28.06.00

Montenegro

01.01.07

Netherlands

01.08.03

Norway

01.08.03

Austria

01.08.03

Poland

01.08.03

Portugal

01.08.03

Romania

25.11.91

Sweden

01.08.03

Senegal

06.10.93

Slovakia

01.08.03

Slovenia

01.08.03

Spain

01.08.03

Czech Republic

01.08.03

Ukraine

01.01.07

Cyprus

01.08.03

Hungary

01.08.03

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

SWI

12.2 Additional Statistical Information

2,000

4,000

6,000

8,000

10,000

12,000

14,000

16,000

18,000

1997 2002 2008

Albania

Nigeria

Bosnia and Herzegovina

Turkey

Serbia

Sri Lanka

Iraq

Somalia

Eritrea

Figure 5:

Asylum Applications from Top Five Countries of Origin for Switzerland in 1997, 2002 and 2008

Convention Status

Other

Authorisations

to Remain

Rejections* Other Decisions**

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1992

1,395 4% 0 0% 23,188 64% 11,828 32% 36,411

1993

3,916 13% 0 0% 19,132 63% 7,087 24% 30,135

1994

2,951 11% 0 0% 19,339 75% 3,434 13% 25,724

1995

2,595 13% 0 0% 14,290 71% 3,145 16% 20,030

1996

2,232 10% 0 0% 15,446 70% 4,245 19% 21,923

1997

2,572 10% 0 0% 14,803 59% 7,584 30% 24,959

1998

2,039 8% 0 0% 13,280 51% 10,967 42% 26,286

1999

2,060 4% 0 0% 28,339 58% 18,108 37% 48,507

2000

2,080 5% 0 0% 26,359 66% 11,597 29% 40,036

2001

2,227 10% 0 0% 13,572 59% 7,290 32% 23,089

2002

1,720 7% 0 0% 14,306 55% 10,003 38% 26,029

2003

1,610 6% 0 0% 15,493 55% 10,917 39% 28,020

2004

1,529 8% 0 0% 10,898 54% 7,610 38% 20,037

2005

1,467 11% 0 0% 7,735 57% 4,276 32% 13,478

2006

1,827 15% 0 0% 6,536 55% 3,518 30% 11,881

2007

1,537 15% 0 0% 3,800 38% 4,733 47% 10,070

2008

2,261 20% 0 0% 4,483 41% 4,318 39% 11,062

*Rejections data include Temporary Admission grants.

**Other decisions may include withdrawn claims, abandoned claims or claims otherwise resolved (including DAWES.)

Figure 6:

Decisions Made at the First Instance, 1992-2008

United

Kingdom

363 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

364 - NATIONAL LEGAL FRAMEWORK

365 - INSTITUTIONAL FRAMEWORK

365 - PRE-ENTRY MEASURES

366 - ASYLUM PROCEDURES

372 - DECISION-MAKING AND STATUS

376 - E

FFICIENCY AND INTEGRITY MEASURES

378 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

380 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

381 - RETURN

382 - INTEGRATION

384 - ANNEXE

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

1 Background: Major Asylum

Trends and Developments

Asylum Applications

In the early 1980’s, the United Kingdom (UK) was

receiving fewer than 10,000 asylum applications per

year. The numbers started to increase in 1990, however,

when annual claims reached over 38,000. Numbers

peaked in 1991 with 73,400 applications, then ﬂ uctuated

and reached new peaks from 2000 to 2002, when annual

applications ranged between 90,000 and 103,000. Since

2003, numbers have decreased signiﬁ cantly, and in

2008 the UK received 30,600 claims.

Top Nationalities

In the 1990’s, the majority of asylum-seekers arriving

in the UK originated from Somalia, the former

Yugoslavia, Sri Lanka, Turkey, Pakistan and Nigeria.

Since 2000, most claims have tended to originate from

Iraq, Afghanistan, Zimbabwe, China, Iran, Eritrea and

Somalia.

1 All ﬁ gures cited include dependants. Between 2000 and 2002, the

UK was the top destination country for asylum-seekers among all

IGC Participating States.

Figure 2:

Top Five Countries of Origin in 2008*

1 Zimbabwe 4,330

2 Afghanistan 3,730

3 Iran 2,585

4 Eritrea 2,345

5 Iraq 2,030

* First applications only

Important Reforms

Beginning in the late 1980’s, large numbers of migrants

without protection needs were making asylum

applications in order to gain entry into the UK. At the

time, the asylum procedure was characterised by a

slow, bureaucratic system of decision-making and

appeals. The UK was also facing practical problems in

returning failed applicants to their countries of origin.

Over the years, a number of measures have been taken

to address these shortcomings and strengthen the

integrity and efﬁ ciency of asylum procedures.

At the case-management level, the Home Office

introduced changes for a more rigorous examination of

each asylum application based on up-to-date country

4,300

73,400

28,000

55,000

103,100

30,600

20,000

40,000

60,000

80,000

100,000

120,000

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

* First applications only; beginning in 2003, data includes exact number of dependants, whereas prior to 2003,

data reflects estimates for dependants

Figure 1:

Evolution of Asylum Applications* in the UK, 1983-2008

364

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

of origin information. Emphasis was also placed on

speeding up processing times.

Reforms also addressed fraud within the legal aid

system and the immigration advisor profession.

A number of safe country concepts were introduced.

Applications from countries of origin designated

as safe were certiﬁ ed unfounded and were subject

to a fast-track procedure with no right of appeal. In

addition, certain countries were designated as safe

third countries, and the UK began to apply Council

Regulation (EC) No 343/2003,

as supported by the

Eurodac ﬁ ngerprint database.

New rules were introduced to allow asylum authorities

to reject applications made by persons who have

committed serious crimes. Meanwhile, rules

governing the return of rejected asylum-seekers were

amended. For example, those who do not cooperate

with authorities on return arrangements lose their

entitlement to support. All asylum-seekers are required

to present valid travel documents upon arrival in the UK

or they may face criminal charges if they do not have a

reasonable reason for lack of documentation.

Beginning in March 2007, each new asylum application

is dealt with by the same person (a UK Border Agency

case owner) throughout the process (that is, from

application to resolution of the claim).

2 Council Regulation (EC) No 343/2003 of 18 February 2003

establishing the criteria and mechanisms for determining the

Member State responsible for examining an asylum application

lodged in one of the Member States by a third-country national

(Dublin II Regulation).

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

The 1951 Convention is given effect in British law by

references in the Nationality, Immigration and Asylum

Act 2002, the Asylum and Immigration Appeals Act

1993, the Refugee and Person in Need of Humanitarian

Protection (Qualiﬁ cation) Regulations 2006, and the

Immigration Rules.

The concept of subsidiary protection as laid down

in Council Directive 2004/83/EC

is mandated in the

Immigration Rules as Humanitarian Protection. The UK

has added “unlawful killing” as an explicit category of

serious harm when granting Humanitarian Protection.

Council Directive 2005/85/EC

has been implemented

by the Asylum (Procedures) Regulations 2007 (SI

3187/2007) and changes to the Immigration Rules.

The European Convention on Human Rights (ECHR)

takes effect in British law under the Human Rights Act

1998.

3 Council Directive 2004/83/EC of 29 April 2004 on minimum

standards for the qualiﬁ cation and status of third country nationals

or stateless persons as refugees or as persons who otherwise

need international protection and the content of the protection

granted (Qualiﬁ cation Directive).

4 Council Directive 2005/85/EC of 1 December 2005 on minimum

standards on procedures in Member States for granting and

withdrawing refugee status (Asylum Procedures Directive).

1,000

2,000

3,000

4,000

5,000

6,000

7,000

8,000

9,000

10,000

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Zimbabwe Afghanistan Iran

* First applications only

Figure 3:

Evolution of Applications* from Top Three Countries of Origin for 2008

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

2.2 Pending Reforms

The UK government is committed to comprehensive

reform of the legal framework for immigration. It

published a partial draft Immigration and Citizenship

Bill in July 2008 for further scrutiny and debate. The

aim now is to publish a full draft simpliﬁ cation bill

in the autumn of 2009, for introduction when the

Parliamentary timetable allows. The partial draft

bill included little that was speciﬁ c to asylum but

the package of documents made available with it

included an initial draft of new immigration rules on

protection, bringing together a range of provisions

currently contained in the rules and in different sets

of regulations. An explanatory document, “Making

change stick”, published in this package in July made

the government’s intentions clear:

We want to do a better job of honouring our

international obligations to refugees. A new

uniﬁ ed and straightforward set of protection

rules will replace a complicated array of

rules and regulations. This will be clearer for

applicants and help ensure we make the right

decision for refugees ﬁ rst time.

While the simpliﬁ cation work continues, the government

has introduced the Borders, Citizenship and

Immigration Bill to address more immediate legislative

priorities. It does not include provisions speciﬁ c to

asylum, but changes to the wider system – including

the introduction of “earned citizenship” – will have an

impact on refugees and asylum-seekers as they will

on other migrants.

3 Institutional Framework

3.1 Principal Institutions

The UK Border Agency (UKBA), an agency of the Home

Ofﬁ ce, is responsible for processing asylum claims.

The UKBA is responsible for handling all aspects of

an asylum claim, from screening to decision-making.

The UKBA also has responsibility for overseeing the

reception of asylum-seekers. The UKBA implements

the return of rejected asylum-seekers and facilitates the

integration of recognised refugees and beneﬁ ciaries of

complementary forms of protection.

Appeals of negative decisions on asylum claims are

heard by the independent Asylum and Immigration

Tribunal (AIT).

3.2 Cooperation between

Government Authorities

The UK Border Agency and UK Police Service

have

signed a Strategic Partnership Agreement whereby

police officers work within the UKBA alongside

immigration ofﬁ cers. This partnership arrangement

recognises the need to “ensure and enforce compliance

with (UK) immigration laws, removing the most harmful

people ﬁ rst and denying the privileges of Britain to

those here illegally.”

Local, multi-agency immigration crime teams (ICT)

have been successfully piloted, bringing together the

skills and powers of police and immigration staff. The

crime teams have targeted those who facilitate human

trafficking, who produce and distribute counterfeit

documents, who cause economic harm, or who

commit various criminal offences. Those who commit

these offences possibly face both criminal justice and

immigration consequences.

Further future creation of ICTs across the UK is being

considered and planned. The ICTs will increasingly

seize cash and assets of those committing crime. Team

makeup will be widened to include other key strategic

partners.

4 Pre-entry Measures

4.1 Visa Requirements

Nationals of certain countries, including European

Union (EU) Member States, the European Economic

Area and Switzerland, do not need a visa to enter

the United Kingdom. A visa is required for entry if the

person is a national of one of the countries or territories

listed in Appendix 1 of the Immigration Rules. The UK

Border Agency is the competent authority for dealing

with visa applications.

4.2 Carrier Sanctions

Under the Carrier’s Liability legislation air and sea

carriers may be liable for a charge of £2,000 for

each person they carry to the UK who is subject to

immigration control and who fails to produce either a

valid immigration document satisfactorily establishing

his or her identity and nationality or a valid visa, if

required.

5 The UK Police Service, in partnership with the UK Border Agency,

has also run a series of national operations, Operation Pentameter,

targeting those who facilitate human trafﬁ cking for the purpose

of sexual exploitation. The operation has resulted in substantial

prison sentences and subsequent removal for those responsible

and the rescue of numerous victims.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

4.3 Interception

The UK Border Agency’s strategic aims are to protect

UK borders and national interests, tackle border

tax fraud, smuggling and immigration crime and to

implement fast and fair decisions. Juxtaposed Controls

have existed at the Channel Tunnel sites in Coquelles

and Cheriton since the opening of the Tunnel System

in 1994. Currently, the UK Border Agency operates

juxtaposed controls in Northern France and Belgium

at the seaports of Calais, Boulogne, Coquelles and

Dunkerque, as well as the Eurostar ports at Paris Gare

du Nord and Brussells Gare du Midi. The treaty signed

with the French and Belgian Governments allows for

reciprocal arrangements in the control zones in St.

Pancras, Ashford, Ebbsﬂ eet, Cheriton and Dover.

The use of juxtaposed controls has dramatically

strengthened the cross-channel border and in 2007, the

UK Border Agency, together with other agencies and

authorities, prevented over 17,500 individual attempts

by people to cross the channel illegally.

4.4 Immigration Liaison

Managers

The UK Border Agency has an overseas network of

Immigration Liaison Managers (ILMs) (previously

called Airline Liaison Ofﬁ cers). ILMs have no legal

enforcement powers and do not operate pre-clearance

but act as document advisors to airlines. Their role is

to provide information and training on UK passport and

visa requirements and forgery awareness, with a view

to preventing the carriage of inadequately documented

passengers to the UK and assisting airlines to comply

with carrier liability legislation. ILMs are posted with the

agreement of the host country and work to the Code

of Conduct for Immigration Liaison Ofﬁ cers issued

under the auspices of the International Air Transport

Association/Control Authorities Working Group (IATA/

CAWG).

UK Immigration Liaison Managers based overseas

offer training and advice to carriers on documentary

requirements for travel to the UK and on basic forgery

detection. This training includes assisting carrier

personnel to detect passengers who do not have the

required travel documents to enter the UK, those who

may be trafﬁ cked or smuggled, and those who may

pose a security threat.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

Applications for asylum can be made at a point of entry

– a sea port or airport – and inside the UK at the asylum

application units of the UK Border Agency in Croydon

and Liverpool. Applications must be made in person. In

addition, the UK manages a formal resettlement program.

Information on the UK’s asylum procedures is publicly

available on the UK Border Agency’s website.

addition, when an asylum application is made in

the UK, the UKBA case owner (decision-maker) is

responsible for guiding the asylum-seeker through the

various stages of the procedure, such as by providing

information on legal aid, reception beneﬁ ts and asylum-

seeker rights and obligations.

5.1.1. Outside the Country

Applications at Diplomatic Missions

There is no obligation on the UK to consider an asylum

application made abroad by a person outside their

country of nationality. Neither is there a basis in the

Immigration Rules upon which an individual may be given

prior entry clearance to enter the UK to claim asylum.

Resettlement/Quota Refugees

The UK’s formal resettlement plan is known as the

Gateway Protection Programme and is managed by the

UK Border Agency in cooperation with the UNHCR. It has

been operational since 2003. Through this programme,

the UK currently accepts an annual quota of 750 refugees

for resettlement (increased from 500 last ﬁ nancial year),

on the basis of applications submitted by the UNHCR.

Applications cannot be made to British Diplomatic Posts

abroad or to the UK Border Agency directly. Applicants

are interviewed by the UK Border Agency ofﬁ cials during

organised missions, and the ﬁ nal decision is made by

the UK Border Agency. In addition to the resettlement

criteria set out in the UNHCR Handbook, the UK requires

that applicants cooperate with Agency ofﬁ cials and other

organisations involved in the Programme, that they not

be in a polygamous marriage, and that they not have an

application lodged under the Mandate Scheme. There

are no ofﬁ cial sub-quotas within the programme although

the UK Border Agency aims to accept at least 10% of

cases falling under the category of Women at Risk and

resettles Medical Needs cases from each caseload.

6 The website is accessible at the following URL:

http://www.ukba.homeofﬁ ce.gov.uk.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

The Mandate Scheme allows the UK Border Agency to

resettle refugees who have close ties to the UK. This

normally means immediate family members. These family

members in the UK must have settlement or immigration

status leading to settlement in order to be eligible (but

do not themselves have to be refugees). The applicant

must have been granted Mandate refugee status by

UNHCR and also demonstrate a resettlement need in

accordance with the UNHCR Criteria on Resettlement.

Referrals are made by the UNHCR (in cooperation with

the British Red Cross). Only where there is no UNHCR

presence is a referral permitted directly to a British

diplomatic mission. Decisions are made by the UK

Border Agency on a dossier basis without an interview.

Around 150 refugees from around the world are resettled

annually through the Mandate Scheme.

The Ten or More Plan, which was established by the

UNHCR in 1973, has been used to resettle refugees

with disabilities who are in need of medical attention

unavailable in the country of refuge. The Ten or More Plan

has been suspended and there are no plans to reintroduce

a separate medical programme. The UK Border Agency

now accepts a number of medical needs refugees within

the Gateway Protection Programme quota.

5.1.2. At Ports of Entry

At a point of entry – a seaport or airport – the asylum-

seeker may communicate to the immigration ofﬁ cial

at passport control that he or she wishes to apply for

asylum. A screening process similar to the one at the

asylum screening units takes place.

Upon completion of the screening process, the applicant

may be routed into the Detained Fast Track procedure

or to a regional asylum team at the UK Border Agency

for substantive consideration of the asylum claim. He or

she may also be routed through Third Country (Dublin)

procedures.

5.1.3. Inside the Territory

Responsibility for Processing the Claim

The Dublin System

The Third Country Unit (TCU) of the UK Border Agency

is responsible for considering asylum claims that come

under the Dublin system.

Application and Procedure

Once an applicant claims asylum in the UK, his or her

ﬁ ngerprints are taken and transmitted to the Eurodac

7 The screening process at application units is described in the

section below on Application and Admissibility.

databases in accordance with the Eurodac Regulation

(EC) No. 2725/2000. If Eurodac returns a match (“hit”),

TCU will examine this evidence to determine if another

State party to the Dublin Regulation is responsible for

considering the applicant’s claim under the terms of

the Dublin Regulation. Alternatively if other evidence is

available suggesting that another State is responsible for

examining the applicant’s claim then this evidence is also

considered. Such evidence includes any of the following:

visa, residence permit, other reliable documentary

evidence (e.g. wage slips or utility bills), information

establishing family relationships (to determine whether

family unity or humanitarian provisions apply) and/or

credible statements from the applicant.

If TCU considers that another Member State is

responsible for examining the asylum claim under the

terms of the Dublin Regulation, TCU will decide whether

to detain the applicant or enforce reporting restrictions

whilst a Formal Request is made to the Member State

concerned.

Freedom of Movement/Detention

Each third country case is considered for detention and

is considered on its individual merits. For detention to be

justiﬁ ed, there must be strong grounds for believing that

a person will not comply with conditions of temporary

admission (TA) or temporary release (TR) and there

must also be a realistic prospect of removal within a

reasonable period. If a third country case is released

on TA or TR the person will be expected to report to

a UKBA Local Enforcement Ofﬁ ce or reporting centre

weekly unless the applicant has exceptional reasons for

not being able to comply, in which case a less frequent

reporting regime may be considered. If an applicant

meets the criteria he or she may also be considered

for electronic monitoring.

An immigration ofﬁ cer has the authority to temporarily

admit a person to the United Kingdom who is detained or

liable to be detained under Immigration Powers. Temporary

admission may be given pending the completion of

examination, pending the implementation of removal

directions or pending the resolution of an outstanding

appeal. The immigration ofﬁ cer may at any time decide

to resume detention, (e.g., if the person fails to observe

place of residence, employment or reporting restrictions.)

Conduct of Transfers

Once another State has accepted responsibility for an

applicant, the UK respects the provisions of the Dublin

system that govern the making of transfers, namely

Articles 19 and 20 of the Dublin Regulation and Chapter

III of the Dublin Implementing Regulation (EC) No.

1560/2003. TCU will also ensure that when an applicant

is transferred to the Member State, he or she will arrive

368

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

in their territory (as far as is practicable) before 2:00 p.m.

and not on one of their public holidays or over a weekend.

Suspension of Dublin Transfers

The UK does not have a policy whereby transfers under

Dublin to a particular State or States are suspended

in general.

If the applicant has absconded or been imprisoned,

TCU will contact the Member State and request a

twelve- month extension (to the original six-month

deadline) for the applicant’s transfer in accordance with

Articles 19(4) or 20(2) of the Dublin Regulation.

If the applicant has a Human Rights (HR) or legal

application pending, TCU will request a suspension

until the application has been concluded.

TCU will also contact the responsible State to advise

it of the delayed transfer.

Review/Appeal

Once another State party to the Dublin Regulation

has accepted responsibility for an applicant’s asylum

claim, TCU will certify the asylum claim in the UK under

Schedule 3 of the Asylum and Immigration (Treatment

of Claimants etc.) 2004 Act. The relevant Immigration

Rule applicable in third country cases is paragraph 345

of the Immigration Rules (HC 395).

The statutory right of appeal provided for transfers

under the Dublin Regulation in Part 2 of Schedule 3 to

the Asylum and Immigration (Treatment of Claimants,

etc.) Act 2004 is non-suspensive unless a human rights

challenge to removal (not based on onward removal

in breach of Article 3 of the ECHR) is not certiﬁ ed as

“clearly unfounded”. Such appeals must be lodged

with the Asylum and Immigration Tribunal (AIT) within

28 days of the person’s departure from the United

Kingdom.

If the human rights challenge to removal is not certiﬁ ed

as “clearly unfounded,” there is an in-country right of

appeal and the appeal must be lodged with the Tribunal

no later than 10 days after the person is served with the

notice of decision (ﬁ ve days if the person is in detention).

The Asylum and Immigration Tribunal has discretion to

accept appeals outside of this time frame. Furthermore,

an applicant may seek to challenge the transfer decision

by judicial review before the civil administrative courts.

Judicial review has suspensive effect.

8 Para. 345 of the Immigration Rules (HC 395), as set out in HC1112

and amended by HC82, can be found in the annexe.

Application and Screening

Upon making known his or her intention to claim asylum,

the applicant is registered by the UK Border Agency.

The applicant and any dependants are then “screened.”

This screening process is used in an attempt to establish

both identity and immigration status. The interview is

conducted in a language that the applicant can reasonably

be expected to understand. Basic bio-data is recorded

and the applicant’s ﬁ ngerprints and photographs are

taken. Applicants are requested to produce any travel

documentation or national identity documents at this

stage. Security and system checks are also completed

during the screening process. These measures assist in

establishing identity, the identiﬁ cation of Third Country

Cases, fraudulent applications, and those who may have

committed a criminal or immigration offence.

The asylum-seeker and any dependants are issued with

an application registration card (ARC), which shows

that he or she has applied for asylum in the UK. This

is not an ofﬁ cial identity document but does contain

basic bio-data and is used for contact management

purposes and to issue any asylum support.

Upon completion of this process, the applicant may

be routed into the Detained Fast-Track procedure,

to a regional asylum team at the UK Border Agency

for substantive consideration of the asylum claim, or

through Third Country procedures.

Accelerated Procedures

An asylum claim may be put through the Detained

Fast-Track procedure if, after the screening process, it

appears to be one that may be decided quickly.

There is a general presumption that the majority of

asylum applications are ones on which a quick decision

may be made, unless there is evidence to suggest

otherwise.

Case owners in the UK Border Agency are responsible

for processing claims under the fast-track procedure.

Applicants are interviewed and served with a decision

within ﬁ ve days of their arrival.

All asylum-seekers in the fast-track procedure have

access to legal advice and an interpreter. There is also

a safeguard mechanism in place to ensure that if new

or additional information comes to light suggesting that

the fast-track procedure is not suitable, the asylum-

seeker may be transferred to the normal procedure.

9 The quality of decision-making in the Detained Fast-Track process

is high, with 98% of initial refusals being upheld by the courts.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

If the claim results in a negative decision, the applicant

has two days to appeal the decision before the Asylum

and Immigration Tribunal (AIT). The appeal is expedited

and the hearing takes place before an Immigration

Judge within another two days. The Immigration Judge

is then required to provide his or her determination

within two days of that appeal hearing.

The Immigration Judge who hears a fast-track appeal

has the power to remove the asylum-seeker’s claim

from the fast-track procedure and place it in the normal

appellate system.

Asylum applicants can also apply for reconsideration

of the determination via a “High Court Opt-in.” But in

virtually all cases where the appeal was dismissed, the

applicant is Appeal Rights Exhausted within 28 days of

the decision being served.

If there has been an error of law, one may apply for an

appeal of a Tribunal decision. In exceptional cases, the

appeal may reach the Court of Appeal.

Cases Where It is Not Likely There May Be a

Quick Decision

Cases where a quick decision may not be possible may

include (but are not limited) to the following situations:

• Cases where it is foreseeable that further

enquiries (either by the UK Border Agency or

by the applicant) will be necessary to obtain

clariﬁ cation or corroborative evidence, without

which a fair and sustainable decision could not be

made, or in cases where it is apparent that those

enquiries will not be concluded in time to have a

decision within normal expected timescales

• Cases where it is foreseeable that translations

are required for documents presented by an

applicant without which a fair and sustainable

decision could not be made, or where it is

apparent that the necessary translations cannot

be obtained in time to allow a decision to take

place within the normal expected timescales.

There are exceptions to the application of the fast-track

procedure that apply to groups deemed unsuitable for

the procedure, as follows:

• Women who are 24 or more weeks pregnant

• Those who are unaccompanied asylum-seeking

childr

en, whose claimed date of birth is accepted

by the UKBA (see Age Dispute Cases, below)

• Those about whom there is independent

evidence fr

om a reputable organisation (e.g. the

Poppy Project) showing that they have been a

victim of trafﬁ cking

• Those in respect of whom there is independent

evidence of tortur

• Those with a medical condition requiring 24-

hour nursing or medical intervention

• Those presenting with physical and/or learning

disabilities r

equiring 24-hour nursing care

• Those with a disability, except the most easily

manageable

• Those presenting with acute psychosis, e.g.

schizophr

enia, who require hospitalisation

• Those with an infectious/contagious disease

that cannot be ef

fectively and appropriately

managed within a detention environment.

For the last ﬁ ve groups listed above, the extent of a

medical condition, disability, psychosis or disease

is determined based upon the information available

regarding the nature of the medical issue, and – in

cases of doubt at the time of assessment – on reference

to the Detention Escort and Population Management

Unit (DEPMU), who will be able to ascertain capacity

of the appropriate Immigration Removal Centre (IRC)

to manage the speciﬁ c issue.

Normal Procedure

The case owner has overall responsibility for dealing

with every aspect of the claim, including the substantive

examination, and acts as the point of contact for the

asylum-seeker and his or her legal representative on

the progress of the application.

During the asylum interview, the asylum-seeker may

be assisted by a legal representative who is not

claiming legal aid. The services of an interpreter will

be provided if needed. At the end of the interview,

the asylum-seeker receives a record of the interview.

Failure by the asylum-seeker to appear at the

interview may result in the claim being categorised

as unsubstantiated.

The case owner, when reviewing the merits of a claim,

must consider whether the asylum-seeker meets the

criteria for Convention refugee status, for Humanitarian

Protection or for Discretionary Leave, in that order.

Review/Appeal of the Decision

There is no automatic right of appeal against a decision

to refuse an asylum claim. Instead, appeal rights

relate to the relevant immigration decision that may

accompany the decision to refuse asylum. For instance,

an asylum-seeker who has been refused asylum but

given Humanitarian Protection or Discretionary Leave

may appeal against the decision if the status granted

provides for a residence permit of 12 months or more.

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Rejected asylum-seekers may have rights to appeal on

the following grounds:

• Discrimination based on race

• The UK Border Agency’s decision constitutes a

each of rights enshrined in the ECHR, or return

to the country of origin would be a breach of the

person’s rights.

In addition, rejected asylum-seekers may appeal in one

of the following cases:

• The UK Border Agency’s decision was not in line

with Immigration Rules

• The UK Border Agency’s decision was not in

line with the law

• If the Immigration Rules provide for the case

owner to exer

cise his or her judgment, and if

he or she should have exercised that judgment

differently given the circumstances of the case.

The Asylum and Immigration Tribunal (AIT) hears and

decides appeals against decisions made by the UK

Border Agency. Usually an Immigration Judge will make

a determination on the appeal, although some cases

may be heard by a panel of judges. There is a right to

appeal to the Administrative Court and to the Court of

Appeal a decision made by the AIT. However, appeals

against AIT decisions are possible only when there has

been an error in law.

Appeals before the AIT are given suspensive effect

unless the application is considered to be clearly

unfounded. The 2005 Procedure Rules set out the

following timeframes to appeal:

• If detained, the applicant has five days to

lodge the appeal with the AIT fr

om the time the

applicant is served with the refusal notice

• If not detained, the applicant has 10 days to

lodge the appeal with the AIT fr

om the time the

applicant is served the refusal notice.

Freedom of Movement during the

Procedure

Although some asylum-seekers may be detained,

a person is not detained simply for having claimed

asylum.

Detention

Asylum-seekers who are considered suitable for the

Detained Fast-Track Procedure (DFT) will be detained

at processing centres operating the DFT procedure

(Harmondsworth or Yarl’s Wood).

Other asylum-seekers may be detained. The power to

detain (other than in criminal cases) may be appropriate

in the following cases:

• To implement removal (including deportation)

• While establishing a person’s identity and claim

• Where there is reason to believe that a person

will fail to comply with conditions attached to a

grant of temporary admission or r

elease

• As part of a fast-track process in which it is

considered that an application can be decided

quickly.

Reporting

There are provisions in the law for the UK Border Agency

to maintain contact with asylum-seekers throughout

the asylum procedure. Reporting centres are located

throughout the country to facilitate asylum-seekers’

reporting to Agency staff. Immigration ofﬁ cials are also

posted at some police stations to facilitate reporting.

The frequency with which an asylum-seeker is required

to report to authorities depends on the circumstances

of his or her case. Persons with special needs, such as

pregnant women, the elderly, minors under the age of

17, and persons with serious medical conditions may

be required to report less frequently.

The UK Border Agency also employs other forms of

contact management for asylum-seekers (such as

tagging and voice recognition technology).

Repeat/Subsequent Applications

Anybody who makes a further application to remain

in the UK, citing asylum or human rights grounds and

having had an earlier claim withdrawn or refused with

no appeal pending on that claim, will normally have the

latest application treated as further submissions under

the procedures in paragraph 353 of the Immigration

Rules regulating “fresh claims”.

These procedures require the UK Border Agency to

ﬁ rst decide whether to grant leave and, if they decide

that leave is not appropriate, to decide whether the

submissions merit consideration as a fresh asylum or

human rights claim. A fresh asylum or human rights

claim will be generated if the most recently submitted

material on the case is ”signiﬁ cantly different” from that

which has been previously considered.

If a fresh asylum or human rights claim is generated and

then refused, the applicant has the right to appeal the

10 Para. 353 of the Immigration Rules can be found in the annexe to

the chapter.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

decision before removal takes effect, unless the claim is

certiﬁ ed under section 96 of the Nationality, Immigration

and Asylum Act 2002.

However, the applicant will have

no right to appeal where leave is rejected and a fresh

asylum or human rights claim is not generated on the

strength of the further submissions.

Applicants will have access to legal advice and

representation throughout the process and will also be

able to apply for asylum support under section 95 of the

Immigration and Asylum Act 1999, once a fresh asylum

or human rights claim has been generated. While the

further submissions are being considered, before it is

decided whether or not to grant leave, and whether or not

the submissions constitute a fresh claim, the person may

be eligible for support under section 4 of the 1999 Act.

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

Section 94(4) of the Nationality, Immigration and Asylum

Act 2002 makes provision for a list of countries from

which asylum or human rights claims must be certiﬁ ed

as clearly unfounded unless the Secretary of State is

satisﬁ ed that they are not.

A list of those states is set out in the following Orders:

• Asylum (Designated States) Order 2003

• Asylum (Designated States) (No.2) Order 2003

• Asylum (Designated States) Order 2005

• Asylum (Designated States) (No 2) Order 2005

• Asylum (Designated States) Order 2007.

Asylum Applications Made by Nationals of the

European Union

An EU national may apply for asylum in the UK. As the

UK does not have a general procedure in place by which

to declare an asylum claim inadmissible, an asylum

claim made by an EU national must be considered

within the substantive asylum procedure, albeit against

the presumption that it is manifestly unfounded.

A national from the European Economic Area (EEA)

is not excluded from applying for asylum. However,

EEA Regulations (2006) applying to such nationals

11 Section 96 of the Act can be found in the annexe to the chapter.

12 Section 4 support is a short-term form of support provided to

failed asylum-seekers who are destitute and unable to leave

the UK immediately due to circumstances beyond their control.

Support is provided in the form of accommodation which may be

full board accommodation, or where full board accommodation

cannot be provided, supported persons are provided with self-

catering accommodation and will receive vouchers each week to

purchase food and essential toiletries.

contain a provision for claims to be certiﬁ ed as “clearly

unfounded” in certain circumstances, and there is a

general assumption that this is how such cases will

be dealt with.

5.3 Special Procedures

5.3.1. Unaccompanied Minors

Support for Unaccompanied Asylum-Seeking

Children (UASCs)

Unaccompanied asylum-seeking children (UASCs) are

entitled to support from the Local Authority Children’s

Services Departments that have a legal duty to

safeguard the welfare of children in need in their area.

This support, which may include accommodation, is

based on a needs assessment. The British Refugee

Council’s Panel of Advisers plays a role in advising and

assisting the UASC with his or her asylum application.

The advisor does not offer any legal advice.

Interview

UASCs aged 12 or over will normally be interviewed

about the substance of their asylum application. Children

invited to attend an asylum interview are interviewed

by a specially trained case owner. The child must be

accompanied by a responsible adult, that is, someone

whom the child trusts. A responsible adult could be a

legal representative, social worker, guardian/relative,

foster care parent, doctor, priest, vicar, teacher, charity

worker or Refugee Council representative. However,

other persons may also assume this role. The interview

is conducted using child-sensitive techniques.

In January 2009, the UK Border Agency introduced a

Code of Practice that applies to UK Border Agency staff

and contractors. It requires all of them to be responsive

to the needs of children they encounter and to be

vigilant to indications that a child might be at risk of

harm. The UK Border Agency has taken positive steps

to keep children safe from harm by incorporating key

principles into the practice. The key principles are as

follows:

• Ensuring the immigration procedures and

situations ar

e responsive to the needs of children

• Identifying children whose circumstances mean

they may be at risk of harm when they come into

contact with the immigration system

• Referring the children to the appropriate agency

or agencies, and working together ef

fectively

with the referred agency or agencies.

The Code of Practice also requires UKBA staff to

be trained in specific children’s issues, including

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

communication with children, the safeguarding of

children, issues surrounding trafﬁ cking, smuggling and

exploitation of children, and working effectively with

other agencies.

UASCs are entitled to legal aid. However, funding has

been excluded for the ‘ﬁ rst reporting event’ or other

‘reporting event’. The Panel of Advisers usually assists

in ﬁ nding a legal representative for the child.

Figure 4:

Total Applications Made by Unaccompanied

Minors, 2000-2008*

1,000

2,000

2,735

3,470

6,200

3,180

2,990

2,965

3,450

3,525

3,300

3,000

4,000

5,000

6,000

7,000

2001

2000

2002

2003

2004

2005

2006

2007

2008

* First applications only

6 Decision-Making and

Status

6.1 Inclusion Criteria

6.1.1. Convention Refugee

The Immigration Rules state that an asylum-seeker will

be granted asylum in the UK if he or she is a refugee as

deﬁ ned in regulation 2 of the Qualiﬁ cation Regulations.

6.1.2. Complementary Forms of

Protection

Humanitarian Protection

Humanitarian Protection (HP) is granted in cases where

the asylum-seeker runs a real risk of serious harm, that

is:

• The death penalty or execution

• Unlawful killing

• Torture or inhuman or degrading treatment or

punishment

• Serious and individual threat to life or person by

eason of indiscriminate violence in situations of

international or internal armed conﬂ ict.

Discretionary Leave

Discretionary Leave (DL) may be granted to persons

who do not meet the criteria for refugee status but fall

under one of the following categories:

• They are excluded from the beneﬁ

t of refugee

status by virtue of Article 1F of the 1951

Convention

• They can be returned by virtue of Article 33(2)

of the 1951 Convention but it would be contrary

to ECHR obligations to enfor

ce removal to the

country of origin.

Similar principles apply to persons excluded for

humanitarian protection (HP) but the rules derive from

Council Directive 2004/83 (Qualiﬁ cation Directive) rather

than the 1951 Convention. Where a person would

qualify for refugee status or HP, but for exclusion for

criminality, the applicant can normally claim that their

Article 3 ECHR rights would be infringed upon if he or

she was returned to the country of origin. In such cases,

DL is usually granted for a six-month period only and

is subject to active review at the time an application is

made for further leave.

Applicants who cannot claim refugee status or HP since

they do not fulﬁ l the criteria for protection- based leave,

but whose return would breach obligations under the

ECHR (usually Articles 3 or 8) may also be granted

Discretionary Leave. Such people, who are usually

granted leave for a period of three years, may be

subdivided into four categories:

• Article 3: There are some cases where the

Article 3 br

each does not arise from a need

for protection as such (e.g., where a person’s

medical condition or severe humanitarian

conditions in the country would make return

contrary to Article 3.) Persons falling into

this category are granted DL rather than

Humanitarian Protection

• Article 8: Where return would involve a breach

of Article 8 of the ECHR (right to r

espect for

private and family life) on the basis of family

life established in the UK. For example, in

the context of a marriage or civil partnership

application where, although the requirements

of the Immigration Rules are not met, there

are genuine Article 8 reasons that would make

return inappropriate

• Other Articles: These may be engaged if return

to the country of origin would amount to a

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

“ﬂ agrant breach or denial” of a right covered

in other articles of the ECHR. For example,

an applicant may argue that conditions in the

country of origin are such that he or she would

be completely denied his or her right to freedom

of religion under Article 9

• Any other exceptionally compelling case falling

outside the rules in which it is decided that a

person should be granted discretionary leave –

this could be for any number of reasons.

6.2 The Decision

The UK Border Agency case owners make decisions

on asylum applications. The decision is based on an

assessment of the merits of the claim, which includes

consideration of the oral and documentary evidence

provided by the claimant as well as country of origin

information.

Decisions are provided in writing, with full reasons

included for grant or refusal of a particular status or

leave to remain. If no protection or leave to remain is

13 The relevant Articles of the ECHR can be found in the general

annexe to this publication.

granted, the Reasons for Refusal letter must explain

why return would not breach the UK’s obligations

under the ECHR, or why the applicant can reasonably

be expected to return voluntarily.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

Upon reviewing the merits of an asylum claim, the case

owner can take one of the following decisions:

• Grant Convention refugee status

• Refuse refugee status but grant Humanitarian

otection

• Refuse refugee status but grant discretionary

leave to r

emain

• Refuse refugee status and decline grant of leave

to enter or leave to r

emain.

Convention Refugee Status and Humanitarian

Protection

Persons who are granted Convention refugee status or

humanitarian protection are given a residence permit

valid for ﬁ ve years which entitles them to the same

Box 1:

British Case Law: Clarifying Grounds for Protection

Deﬁ ning Particular Social Group

“Membership of a particular social group” (PSG) is one of the more complex of the Convention grounds. But the term

is now well established through case law and the Qualiﬁ cation Directive at Regulation 6(1)(d). The most important

UK case on PSG is the House of Lords judgment in Shah and Islam [1999] INLR 144 (and as later interpreted in the

lower UK Courts). As a result it is established that the independent deﬁ ning characteristic of a PSG must be an

innate, immutable or unchangeable characteristic of some kind, and a characteristic or association that members

of the group should not be forced to forsake because it is so fundamental to their human dignity.

The case of Shah & Islam also demonstrated that the Courts were willing to deﬁ ne certain sections of a population,

in this case Pakistani women, as constituting a PSG. Crucial to this decision was the legal and societal discrimination

against women in Pakistan.

Deﬁ ning Article 15(c) of the Qualiﬁ cation Directive

There has been litigation around Article 15(c) of the Qualiﬁ cation Directive related to the deﬁ nition of a “serious

and individual threat to a civilian’s life or safety by reason of indiscriminate violence in situations of international

or internal armed conﬂ ict”. Domestic case law, such as KH (Article 15(c) Qualiﬁ cation Directive) Iraq CG (UKAIT

00023), has upheld the Government’s view that the protection granted under Article 15(c) is no wider than that

granted by Article 3 of the European Convention on Human Rights.

However, the Advocate General’s opinion in the case of Elgafaji (Elgafaji v. Staatssecretaris van Justitie) before the

European Court of Justice indicates that the level of protection is in fact wider. The Court’s judgment, handed down

on 17 February 2009, also states that the harm outlined in Article 15(c) covers a more general risk of harm than does

Article 3 of the ECHR (which is identical to Articles 15(a) and (b) of the Qualiﬁ cation Directive)

. As at this writing,

any action in response to this ruling in the UK is pending further interpretation of the decision.

1 The Advocate General’s opinion on the case (Case C-465/07) and the Court’s judgment can be found on the European Court of Justice

(ECJ) website (http://curia.europa.eu/en/transitpage.htm).

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

rights as permanent residents of the UK. Refugees

have access to the labour market and various beneﬁ ts,

including social assistance and an integration loan.

After ﬁ ve years, they may apply for a renewal of their

permit or for permanent residence.

The ﬁ ve-year leave to remain can be reviewed in certain

circumstances:

• If grounds for revocation of status come to light

• If there has been a significant and non-

temporary change in conditions in the country

of persecution

• When the refugee applies for indeﬁ

nite leave to

remain (ILR) or reaches the ﬁ ve-year mark of his

or her residence permit.

Discretionary Leave

Persons who are granted Discretionary Leave are

given a residence permit valid for a period of up to

three years, depending on the basis for the grant. This

period of stay may be renewed. Following six years

or more of Discretionary Leave (ten years or more for

excluded cases), beneﬁ ciaries become eligible for ILR.

Discretionary Leave, when granted, may be subject to

periodic review. Beneﬁ ciaries are entitled to work and

to receive social beneﬁ ts and assistance.

Where Discretionary Leave is granted to an

unaccompanied minor on the basis of inadequate

reception arrangements in his or her country of origin, the

length of stay is three years or until the minor reaches the

age of 17.5 years, whichever is the shorter period of time.

Rejection of an Asylum Claim

Asylum-seekers whose claims are rejected may have

the right to appeal the decision, depending on the

circumstances of their case (see the section above on

Review/Appeal). Otherwise, if they have not been granted

leave to remain on another basis, they are expected to

leave the UK immediately. If they fail to return voluntarily,

the UK Border Agency will enforce their return.

6.4 Exclusion

6.4.1. Refugee Protection

The grounds for exclusion are those set out in Articles

1D, 1E and 1F of the 1951 Convention, as replicated by

Article 12 of Council Directive 2004/83/EC.

The UK Border Agency applies the exclusion clauses on a

mandatory basis. Where applicable, the normal procedure

is to consider the asylum claim in its totality, that is, the

well-founded fear of persecution as well as the asylum-

seeker’s position with regard to Articles 1F and 33(2).

Where asylum is refused on the basis that Article

1F applies,

the person is entitled to appeal. During

the appeal, the person is entitled to challenge the

applicability of exclusion. However, the grounds for

exclusion must be considered ﬁ rst when an applicant

makes an appeal. Should those hearing the appeal

agree to do so, the asylum element of the appeal will

be dismissed.

14 In respect of Article 1F(a), the UK generally uses the Rome Statute

of the International Criminal Court as its guide to the ‘international

instruments drawn up to make provision in respect of such crimes’.

In respect of Article 1F(b), the UK adopts the position that

any serious, non-political crime is one for which a period of

imprisonment of at least two years either (i) has been imposed or

(ii) would be imposed if the equivalent crime were to be committed

in the UK. Other crimes could also fall within this deﬁ nition

(provided they were non-political). Article 1F(b) is applicable in the

UK at any point prior to the issuing of a residence permit following

the granting of asylum.

In respect of Article 1F(c), the UK uses the Preamble as well as

Articles 1 and 2 of the Charter of the United Nations as its guide to

what would constitute a crime or act “contrary to the purposes and

principles of the UN.” Membership in a group that is proscribed

within the United Kingdom (46 presently) could also be sufﬁ cient

to bring an individual within the scope of Article 1F(c). Although its

primary application in recent times has been terrorism-related, it is

not exclusively used in this context within the UK.

Box 2:

Family Reuniﬁ cation Beneﬁ ts

The UK Border Agency recognises that families become fragmented because of the speed and manner in which a

person seeking asylum has ﬂ ed to the UK. Family reunion is intended to allow dependent family members (that

is, those who formed part of the family unit prior to the time that the person ﬂ ed to seek protection) to reunite

with their family members who are recognised refugees or who have ﬁ ve years’ humanitarian protection leave in

the UK. Dependants of those with Discretionary Leave or Exceptional Leave to Remain may also apply for family

reunion in certain circumstances.

Only pre-existing families are eligible for family reunion (that is, the spouse, civil partner, unmarried/same-sex partner

and minor children who formed part of the family unit at the time the sponsor ﬂ ed to seek asylum.) However, if

there are compassionate and compelling circumstances that warrant consideration outside the Immigration Rules,

then the UK Border Agency may allow family reunion for other family members.

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6.4.2. Complementary Protection

The 1951 Convention exclusion clauses are applicable

to Humanitarian Protection and to the full provision of

Discretionary Leave. However, where removal would

place the UK in breach of Article 3 of the ECHR, the

UK would grant that person a period of six months’

Discretionary Leave which would be subject to review

at the end of the six-month period.

6.5 Cessation

With regard to clauses (1) to (4) of Article 1C of the 1951

Convention, the UK will apply the cessation clauses

where it feels appropriate. The act that brings the

person within the scope of these four provisions must

be voluntary by that person.

With regard to clauses (5) and (6), the UK Border

Agency assesses changes in circumstances on the

basis of objective country information and case law.

Any changes in the country of origin must be signiﬁ cant

/ fundamental and non-temporary / non-transitory. For

applications made since 21 October 2004, the UK

also requires a Ministerial Statement to be issued in

the Houses of Parliament announcing that the requisite

changes have occurred. This would be done after

consultation with the UNHCR. Cases would still be

looked at on an individual, case-by-case basis.

In practice, the UK Border Agency would only consider

the cessation of status for persons who obtained

protection less than five years prior to the change

in circumstances. Only in exceptional cases would

cessation be considered for persons who obtained

status more than ﬁ ve years earlier.

The UK ﬁ rst presents the person with an opportunity

to comment on the intention of the UK Border Agency

to cease their refugee status, to provide grounds

as to why their status should not be ceased, and to

provide any other reasons they have for wishing to

remain in the UK. Such an opportunity is generally

provided for in writing, although an interview may be

applicable in certain circumstances. Once the person

has responded, the UK Border Agency looks at those

grounds and makes a decision on whether to proceed

with cessation. If so, the UK contacts the UNHCR

with its proposal and allows them the opportunity to

respond. A consideration of the grounds advanced by

the UNHCR is considered before a ﬁ nal decision is

taken. Even after such a decision is taken, the person

will generally be provided an opportunity to appeal the

decision.

Decisions to cease refugee status may not be appealed

on their own but such decisions are almost always

taken in conjunction with decisions to revoke, vary or

curtail leave. These are immigration decisions, which

lead to a right of appeal, and the appellant may raise

issues relating to cessation in the appeal.

6.6 Revocation

Revocation of status can occur when the person comes

within the scope of Article 1F(a) or 1F(c) exclusion

provisions after they have been granted refugee status.

Refugee status may also be revoked if a person comes

within the “danger to the security of the country”

element of Article 33(2) of the 1951 Convention. A

process similar to that described above for cessation

is adopted.

The UK also has provision to cancel refugee status

when, after one has been recognised as a refugee,

evidence comes to light that such status should never

have been granted in the ﬁ rst place (usually this is when

it has been gained through deception). Again, a similar

process to that above for cessation is adopted.

6.7 Support and Tools for

Decision-Makers

6.7.1. Country of Origin Information

The Country of Origin Information Service (COIS),

which is located within the UK Border Agency, gathers,

compiles and produces country of origin information for

use by case owners involved in the asylum determination

process. COIS publishes COI reports focusing on the

main asylum and human rights issues in the 20 countries

that generate the greatest number of asylum-seekers to

the UK. These reports are updated regularly and posted

on the public website of the Home Ofﬁ ce.

Other products include COI Key Documents, which bring

together the main source documents on countries that

generate fewer asylum claims, and COI Bulletins, issued

periodically, usually in response to emerging events.

COIS also undertakes fact-ﬁ nding missions to gather

information directly from sources in the country of origin

when required information is not available from available

sources. COIS also operates a rapid COI request service

to research information not available in existing products.

6.7.2. Language Analysis

Intelligence and data indicate that there may be a

percentage of asylum applicants claiming to be a

nationality which is different from their real nationality

in order to further their asylum claim and/or frustrate

removal action in the event that the asylum claim is

refused. In order to address this issue, the Asylum

Screening Units (ASUs) in Croydon and Liverpool, as

the ﬁ rst point of contact for in-country asylum seekers

are involved in the use of direct language analysis.

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Language analysis assists in identifying whether an

asylum applicant is actually from the claimed country

of nationality and in deterring fraudulent claims.

A language analysis pilot project has been in operation

since February 2008 with funding allocated until March

2010. This project involves having asylum-seekers undergo

a telephone interview with a linguistic expert. Initial verbal

results are followed by a written report and transcription

of the interview which are available for appeal. In cases

where applicants are most likely to be from a country other

than the one claimed, they may be subjected to biometric

testing in order to determine their identity.

6.7.3. Operational Guidance Notes

(OGNs) and Country Policy

Bulletins

OGNs contain an evaluation of the relevant country

information applied to general asylum policy and case

law. The OGNs are designed to provide clear guidance

on how to deal with general asylum policy and with the

main categories of asylum and human rights claims

received from applicants from the country concerned.

Country policy bulletins are issued on an ad hoc basis

to provide guidance on how to deal with particular

country-speciﬁ c issues arising in asylum applications.

The purpose of OGNs is not to replace other information

or guidance but to supplement it and ensure the

consistent application of policies and information

contributing to the quality and consistency of asylum

decision-making. All asylum claims are considered on

their individual merits according to criteria set out in the

1951 Convention, against the background of the latest

available country information which UK Border Agency

case owners are obliged to follow.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

All asylum claimants may be required to have their

ﬁ ngerprints taken for identiﬁ cation purposes (sections

141 and 142 of the Immigration and Asylum Act 1999).

All ﬁ ngerprints taken from asylum- seekers are entered

into the Immigration and Asylum Fingerprint System

(IAFS) .The purpose of ﬁ ngerprinting asylum claimants is

to positively identify them and also to identify and deter

multiple asylum claims at the national and international

level. The ﬁ ngerprints of all applicants from the age of

14 are recorded on, and checked against, the Eurodac

database for Dublin Regulation purposes.

7.1.2. DNA Tests

A new project began in January 2009 based on isotope

recognition. Isotopes, which exist in soil, water and rock,

remain the same as they pass through the food chain.

They are subsequently stored in the body and a person’s

country of origin or route of travel can be deduced by

examination of small quantities of hair and/or nail samples.

As part of this work mitochondrial DNA testing may also

take place as a secondary tool in the identiﬁ cation process.

7.1.3. Forensic Testing of Documents

Forensic examination of suspect travel and identity

documents in the UK to look for evidence of fraud, forgery

or counterfeiting is led by the UK Border Agency’s National

Document Fraud Unit (NDFU). The NDFU is responsible

for training in and development of document-examination

Box 3:

Institutional and Quality Developments in COI

Until 1997, there was no dedicated COI resource in the Home Ofﬁ ce. In 1997, the Country Information and Policy

Unit (CIPU) was set up to provide COI and country-speciﬁ c policy advice to Home Ofﬁ ce asylum decision-makers

on conditions in countries of origin. In 2003, the independent Advisory Panel on Country Information (APCI)

was established to provide expert, external scrutiny of the Home Ofﬁ ce’s COI material, to help ensure that it met

the highest standards (see the APCI website: http://www.apci.org.uk). The APCI recommended in 2004 that the

information and policy functions of CIPU be separated into two distinct units within the organisation. The Country

of Origin Information Service (COIS) was established in June 2005 as a discrete unit, concentrating solely on providing

objective country information to asylum decision-makers. The COIS has functioned in this capacity ever since.

By working closely with APCI, quality standards, consistency and methodologies for Home Ofﬁ ce / UKBA delivery of

country information have improved signiﬁ cantly in recent years. In addition, new products and services such as the

COI Key Documents and COI Request Service for internal users have been developed to better meet the information

needs of decision-makers.

The APCI’s function was taken over by the Chief Inspector of UKBA in October 2008.

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skills of forgery detection teams throughout UKBA as

well as for being the centre of excellence for document

examination and information on document fraud. NDFU

document examiners are accepted as expert witnesses

by UK courts. The UK Border Agency is looking to take

this remit further in the future to develop information and

examination of supporting documentation that is non-

travel or identity related.

7.1.4. Database of Asylum

Applications/Applicants

The Casework Information Database (CID) is used to record

details of all asylum applications received. All management

information extracted from the system adheres to a strict

methodology to ensure accurate measurement of the

Public Service Agreement (PSA) Targets.

The UK Border Agency is developing a new, user-

friendly and ﬂ exible casework and IT system through

the Immigration Case Work (ICW) programme. One

of the key functions of the IT system will be to draw

together all casework interactions between UKBA and

an asylum-seeker, enabling the caseworker to gain a

single accurate view of the customer. It will gradually

remove the need for paper ﬁ les across the business,

and rely instead on electronic case ﬁ les containing

scanned images of documents where necessary.

7.1.5. Reporting Technology

To facilitate reporting by asylum-seekers, the UK has

in place RepARC, an IT reporting system that uses the

Application Registration Card (ARC). The ARC is linked

to the automatic payment of asylum support. The UKBA

is responsible for the reporting of asylum-seekers.

Paragraph 21(2) of Schedule 2 to the Immigration Act

1971 gives UKBA the power to require any asylum-

seeker to report to an Immigration Reporting Centre

or a Police Station. Frequency of reporting is agreed

on a case-by-case basis between the case owner and

the reporting centre responsible.

7.2 Length of Procedures

There are no speciﬁ c time limits for making an asylum

application, but an unexplained delay in making an

application for asylum following arrival in the UK is likely

to damage an applicant’s general credibility, unless the

claimant is a refugee sur place.

The UK Border Agency has a target to conclude 90% of

new asylum applications within six months of the date

of application by the end of 2011. Cases dealt with in

15 The methodology for the calculation of the asylum conclusion

rate is documented on page 19 of the Public Service Agreement

(PSA) 3: Delivery Agreement as published by HM Treasury:

http://www.hm-treasury.gov.uk/d/pbr_ csr07_psa17.pdf.

the Detained Fast Track are subject to an accelerated

procedure as outlined above. The timeframes for

turnaround of decisions by the UKBA and the appeal

judge in the case of Detained Fast-Track applications

are strictly adhered to.

7.3 Backlog Cases

The UK Border Agency is tackling the backlog of older

unresolved asylum applications and is on track to conclude

all these cases by summer 2011. This is not an amnesty.

7.4 Information Sharing

The UK has the following agreements and trials in place

for sharing information on asylum claims with other States:

• The Dublin II Regulation between member states

of the EU, Iceland, Norway and Switzerland

(by separate agreement with the Community)

concerning asylum applicants’ details and

fingerprints. The Dublin system is supported

by information provided by the database of

ﬁ ngerprints established by the Eurodac Regulation

• We have conducted trials and are developing

an agreement among the countries of the Four

Country Conference (4CC) (UK, US, Canada and

Australia) for the purpose of identifying persons

who have made immigration applications in

more than one 4CC state, verifying identity,

and assisting with the decision-making process

throughout the immigration process

• Trilateral Memorandum of Understanding (MOU)

for intelligence-sharing with France and Belgium

around Juxtaposed controls

• Memorandum of Understanding (MOU) on

information exchange on war criminals, signed

in April 2007 by the countries of the Four Country

Conference. This is intended to identify persons

who are convicted or suspected of committing

war crimes, crimes against humanity or

genocide, for the purpose of making casework

decisions and complying with international law

• Various individual agreements with different

countries for speciﬁ c

purposes.

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8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

The case owner will often provide the asylum-seeker with

information on ﬁ nding a legal representative. It is strongly

recommended that asylum-seekers seek advice only

from a solicitor

or an adviser who is registered with the

Ofﬁ ce of the Immigration Services Commissioner. The

Community Legal Service Direct manages a directory

of legal advisers whom asylum-seekers can access.

Destitute asylum-seekers may qualify for legal aid.

Access to Legal Aid

Legal Aid on a question of English law is available to

anyone who satisﬁ es the means and merits test. The

Legal Services Commission (LSC) administers the legal

16 A solicitor may be a qualiﬁ ed lawyer who is a member of the Law

Society and regulated by the Solicitors Regulation Authority.

aid system in England and Wales through a provision of

contracting with solicitors ﬁ rms and not-for-proﬁ t agencies.

The enabling legislation is the Access to Justice Act 1999.

Before funding is granted for representation by the

LSC, each application is considered on an individual

basis by the legal representative and is subject to a

statutory means test. At the appeal stage, in addition to

qualifying ﬁ nancially, an appellant must also show that

the merits of the case justify granting public funding.

The application is considered against criteria speciﬁ c

to the type of case. Generally this means the prospects

of success at appeal have to be moderate or better

(that is, clearly over 50%). If the prospects of success

are borderline or unclear, funding can be granted if the

case has wider public interest or is of overwhelming

importance to the applicant. The initial decision to grant

public funding or apply for public funding is made by

the solicitor or an experienced adviser having regard to

any relevant convention, statute and case law, including

“country guidance” and “starred” cases from the Asylum

and Immigration Tribunal. The legal representative is

required to exercise his or her professional judgment

regarding the granting of funding.

Box 4:

Cooperation with UNHCR

The UK Border Agency has developed a relationship with UNHCR over a number of years through the Quality Initiative

Project and through consultation on subject areas concerning EU Directives, access to protection and resettlement.

It is a member of our main Stakeholder Forum, the National Asylum Stakeholder Forum, which meets quarterly.

The Quality Initiative Project (QI) is based on the supervisory role of the UNHCR under the 1951 Convention. Its aim

is to assist the Home Ofﬁ ce in the refugee status determination process through the monitoring of procedures and

application of the refugee criteria.

The QI seeks to improve the quality of refugee status determinations, or asylum decisions, through collaborative working.

The project went through its ﬁ rst phase of implementation during 2004. Following a needs assessment whereby UNHCR

reviewed the Home Ofﬁ ce’s ﬁ rst instance decision-making systems, training programmes, and the interpretation and

application of the Convention, a working document was produced to serve as a reference point to track progress

of the Project. After a series of fact-ﬁ nding missions and meetings with UKBA staff, an internal audit of the ﬁ rst

decisions commenced.

A UNHCR QI team is co-located with the UK Border Agency in Lunar House in Croydon. It recommends improvements

to asylum decisions, recruitment, and training and accreditation through informal assessments. The ﬁ ndings have

been presented to the Minister in a series of reports. The ﬁ rst report was presented to the Minister in February 2005.

The UK Border Agency has taken forward a number of recommendations made in these reports, including the

establishment of an independent Quality Audit team, the piloting of a decision-making template and a review of

Detained Fast-Track procedures.

From September 2003 to October 2008, material produced by the UK Border Agency’s Country of Origin Information

Service was subject to expert external scrutiny and review by the Advisory Panel on Country Information. The UNHCR

took part in the Panel’s work. This monitoring function is now being taken forward by the Chief Inspector of the UK

Border Agency (see Box 3).

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8.1.2. Interpreters

The UK Border Agency will provide an interpreter

at public expense whenever it is considered to be

necessary and the service is needed in connection with

the submission of the applicant’s case. Interpreters are

offered by the AIT for all Immigration Judge appeals.

The application form contains a section in which an

interpreter can be requested and a language and dialect

speciﬁ ed.

8.1.3. NGOs

Non-governmental organisations (NGOs), such as

Asylum Aid and Oxfam, which represent the interests

of asylum-seekers also offer advice.

8.2 Reception Beneﬁ ts

The UKBA has overall responsibility for the reception

of asylum-seekers. The case owner responsible for the

examination of an asylum claim is competent for facilitating

the provision of reception beneﬁ ts to the asylum-seeker,

such as by providing information on access to beneﬁ ts and

the steps necessary to access these beneﬁ ts.

8.2.1. Accommodation

Asylum-seekers who are destitute

are provided

with support by the UK Border Agency in the form of

17 An applicant is deemed to appear destitute if he or she and

any dependants do not have adequate accommodation or any

means of obtaining it (irrespective of whether other essential

living needs are met); or they have adequate accommodation or

the means of obtaining it, but cannot meet their other essential

living needs.

subsistence or accommodation or both. Those asylum-

seekers provided with accommodation are dispersed

around the UK, generally outside London, to areas of

the country where there is a steady supply of housing.

Exceptions can be made, for example, where a person

needs to remain in London or the South East of England

for specialist health care reasons.

Those asylum-seekers who are not provided with

supported accommodation by the UK Border Agency

are free to live where they wish, although since 2007

all applicants are subject to contact management

arrangements which can include reporting at reporting

centres, a police station or another location, electronic

monitoring (tagging or voice recognition), telephone

contact, and Outreach visits.

8.2.2. Social Assistance

Under the terms of the Immigration and Asylum Act

1999, the Secretary of State may provide, or arrange

for the provision of, support for asylum-seekers or

dependants of asylum-seekers, who appear to be

destitute or who are likely to become destitute within

a 14-day period.

As noted above, asylum support is provided in the form

of subsistence, accommodation or both as applicable.

An application must be made and if it is granted,

cash support is issued once a week and housing is

allocated. The asylum-seeker must sign an agreement

indicating that he or she will follow a set of conditions,

including living in the designated housing, and report

any changes in circumstances. Pregnant women and

mothers with children under the age of three are entitled

to supplementary ﬁ nancial assistance.

Box 5:

Solicitor Fee Schemes

The Legal Services Commission (LSC) introduced new solicitor fee schemes on 1 October 2007. These set out what the

solicitor will be paid to represent an asylum-seeker in his or her application and subsequent appeal. The Immigration

and Asylum Graduated Fee Scheme (the graduated fee) covers the majority of asylum cases lodged with the Home

Ofﬁ ce after 1 October 2007.

There is a single fee for work that is undertaken at the initial asylum application stage and two fees for the asylum

appeal stage.

Additional payments of ﬁ xed values are made for representation at the UKBA asylum interview, in certain cases

(namely for minors and those with mental health issues), and for representation at hearings before the Asylum

and Immigration Tribunal.

An “escape mechanism” has been included within the scheme for cases where the actual solicitor proﬁ t costs, based

on current hourly rates, are signiﬁ cantly higher than the value of the graduated fees. If the actual costs reach the

threshold for the escape mechanism, then the total proﬁ t costs incurred by the solicitor will be paid in full.

All disbursements, including interpreter costs and experts reports, are paid on top of the graduated fees. Extensions for

further work can be sought from the LSC, and these will be granted where the requests are reasonable and necessary.

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8.2.3. Health Care

Asylum-seekers and their dependants are eligible to

receive health care from the National Health Service

(NHS), which entitles them to free medical treatment by a

general practitioner (GP) or at a hospital. Asylum-seekers

who are receiving housing and social assistance from the

UK Border Agency may obtain supplementary free health

care services, such as NHS prescriptions and dental

care. Other asylum-seekers may apply to receive these

services free of charge on the grounds of low income.

8.2.4. Education

Minor asylum-seekers between the ages of ﬁ ve and sixteen

have the same rights as all other children in the UK during

the period of compulsory education. All 16- to 18-year-

old asylum-seekers are eligible for the Learning and Skills

Council (LSC) funding in respect of their attendance in a

further education (FE) course as are UK students.

Asylum-seekers aged 19 or over are treated as UK students

for the purpose of fees for further education if they have

been legally in the UK for longer than six months pending

consideration of their application for asylum or if they

have failed in their claim but have been granted support

under the Immigration and Asylum Act 1999. This follows

the granting of concessions to enable asylum-seekers to

access LSC funding in certain circumstances, for example

for courses teaching English for Speakers of Other

Languages. Otherwise they are treated as international

students and may be required to cover the full cost of their

course. However an FE college or provider has discretion

over the level of fee that they actually charge.

Asylum-seekers have access to higher education

courses as international students and can expect to

be charged the full cost of their course by the university

concerned.

8.2.5. Access to Labour Market

Asylum-seekers do not have permission to work while

awaiting a decision on their claim by the UK Border Agency.

There is an exception for asylum-seekers who have been

awaiting a ﬁ rst-instance decision for more than 12 months,

if the delay is through no fault of their own. In such cases,

an asylum-seeker can request permission to work while

awaiting a ﬁ nal decision on the claim. This is in line with the

Council Directive on the reception of asylum-seekers. Any

permission granted is withdrawn once the asylum claim has

been rejected and all appeal rights are exhausted.

8.2.6. Access to Beneﬁ ts and Services

by Rejected Asylum-Seekers

Rejected asylum-seekers are entitled to receive

free medical treatment in Accident and Emergency

departments and for speciﬁ ed infectious diseases such

as tuberculosis. They may also receive immediately

necessary treatment regardless of their ability to pay

for it. Other treatment may be given at the discretion

of the hospital concerned. Rejected asylum-seekers

may continue, free of charge, treatment started prior

to a ﬁ nal decision on the claim until they leave the UK.

Rejected asylum-seekers who had been receiving

asylum support during the procedure will continue to

receive this support during any appeal that is made. If

no appeal is made, free accommodation and ﬁ nancial

assistance will cease 21 days after the decision of the

UK Border Agency. However, asylum-seekers with

dependants under the age of 18 will continue to receive

asylum support until the date of departure from the UK.

Similarly support continues for children and vulnerable

adults who qualify for local authority care provision.

Rejected asylum-seekers are expected to leave the

UK voluntarily. However, if they are destitute, they can

continue to receive support if they are taking reasonable

steps to return or are able to point to a legitimate barrier

to their return. To receive support, an application must

be made and, if granted, accommodation is allocated

and voucher support is issued once a week.

Minor asylum-seekers are entitled to receive an

education following a rejection on an asylum claim and

before return takes place.

9 Status and Permits

Granted Outside the

Asylum Procedure

9.1 Discretionary Leave

Applications for Discretionary Leave may be made

outside the asylum procedure on human rights grounds,

and decisions are made in accordance with ECHR

obligations.

9.2 Temporary Protection

There is provision for the grant of Temporary Protection

(TP) provided the applicant is a person entitled to

temporary protection as deﬁ ned by, and in accordance

with, Council Directive 2001/55/EC.

The Directive

provided for Members States to grant TP to additional

18 See the section above on Decisions and Status for the criteria for

granting Discretionary Leave.

19 Council Directive 2001/55/EC of 20 July 2001 on minimum

standards for giving temporary protection in the event of a mass

inﬂ ux of displaced persons and on measures promoting a balance

of efforts between Member States in receiving such persons and

bearing the consequences thereof (Temporary Protection Directive).

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categories of persons, but there has ﬁ rst to be a Council

Decision in respect of some persons – a Member State

cannot trigger the Directive unilaterally.

9.3 Withholding of Removal/Risk

Assessment

The UK Border Agency does not enforce return of

unsuccessful asylum-seekers until it is satisﬁ ed it is

safe to do so.

9.4 Obstacles to Return

There is no generally applicable rule on the granting

of status or residence permits to persons who cannot

be returned, as long as they can return voluntarily.

As indicated above, the UK enforces the return of

unsuccessful asylum-seekers only if it is satisﬁ ed that

it is safe to do so.

9.5 Regularisation of Status over

Time

The UK Immigration Rules recognise the ties a

person may form with the UK over a lengthy period of

residence. Settlement may therefore be granted after

a period of 10 years’ continuous lawful residence or 14

years’ continuous residence of any legality.

9.6 Regularisation of Status of

Stateless Persons

Although the UK is a signatory to the 1954 Convention

Relating to the Status of Stateless Persons, there are

no provisions in the UK’s Immigration Rules upon which

a stateless person would be granted leave. A stateless

person may be granted leave to enter or remain in the UK,

but only on grounds covered in the Immigration Rules.

10 Return

The UK Border Agency case owner who examines an

asylum claim is responsible for arranging the return of

a refused asylum-seeker to his or her country of origin,

whether it is voluntary or enforced.

10.1 Pre-departure Considerations

Prior to setting directions for removal from the United

Kingdom, individual circumstances are reviewed to

ensure that all outstanding appeals have been dealt

with and that there are no compelling compassionate

circumstances that have not previously been taken into

account.

10.2 Procedure

Persons are notified in advance of the date of their

removal. This notiﬁ cation is usually served in person

at an Immigration Reporting Centre, Police Station or

Detention Centre. A 72-hour minimum timeframe applies

between the notiﬁ cation of the removal directions and the

actual time of removal, to enable those being removed to

seek legal advice either to make further representations

or to apply for judicial review. Where persons provide

new information, this will be considered and a decision

as to whether removal can proceed will be made. It

is normal practice to postpone removal instructions

where an application for judicial review (JR) is made or

an injunction staying removal is granted.

However, the UKBA no longer automatically suspends

removal instructions in detained cases where a further

JR claim is lodged on the same or virtually identical

grounds to those raised before within three months

of a judge refusing permission. This may be the case

particularly in instances where the ﬁ rst claim was found

to be clearly without merit or where the claim was

withdrawn or otherwise concluded.

Voluntary Return

Voluntary return is offered as the preferred means to

return to the country of origin, for those who no longer

have a legal basis to remain in the UK.

The current package of reintegration assistance for

asylum-seekers under the Voluntary Assisted Return and

Reintegration Programme (VARRP) is designed to be

ﬂ exible enough to meet the different needs of returnees

and their families. Reintegration assistance is about

ensuring detailed and informed discussions alongside a

range of practical options and services available, in order

to meet the varying reintegration needs of returnees.

There are four main strands of reintegration assistance:

• Business set-up

• Education

• Vocational training

• Job placements.

In addition to the above, reintegration assistance can

also be used for the following:

• Accommodation – Assistance can be used to

pay for building materials and labour to either

build new accommodation or impr

ove existing

accommodation. It can also be used to pay for

rent on housing or business premises, for up to

a maximum of three months

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• Personal belongings – Returnees are also able

to avail themselves of extra baggage allowance,

as returnees will often have a large amount of

personal belongings to take before returning

permanently to their country of origin

• Medical assistance – Requests for medical

assistance ar

e considered on a case-by-case

basis, and reintegration assistance can assist in

paying for a limited period of medication. It does

not pay for elective surgery, such as cosmetic

surgery.

Assisted Voluntary Return of Irregular Migrants (AVRIM)

assists those people who are in the UK illegally and

would like help in returning to their country of origin.

The programme offers support in acquiring travel

documentation, a ﬂ ight to the country of origin and

onward domestic travel.

Reintegration assistance is not generally available to

those who return under AVRIM. However, exceptions

can be made for particularly vulnerable groups on a

case-by-case basis, such as unaccompanied minors

and victims of trafficking. In these cases £1,000

reintegration assistance is made available, which

can be used for business start-up, education and

vocational training. Furthermore, this group can also

use their assistance for counselling, which is particularly

important for unaccompanied minors and those who

have been victims of trafﬁ cking.

10.3 Freedom of Movement/

Detention

Where it is believed that a person will not voluntarily

comply with the removal instructions, then he or she

will be detained. The decision as to whether detention

is necessary is made on a case-by-case basis, taking

account of all the circumstances of each individual

case.

Detention is subject to regular review, and every

detained person is provided with written reasons for

his or her detention at the time of initial detention and

every month thereafter. There is no ﬁ xed time limit for

detention, but a person cannot be detained for longer

than necessary. If it becomes apparent that removal

cannot be effected within a reasonable timeframe, the

person will be released.

All detainees arriving at an immigration removal centre

are advised of their right to legal representation within

24 hours of arrival, and they are able to apply for bail as

often as they wish. A copy of the Bail for Immigration

Detainees (BID) notebook, which sets out how they can

apply for bail, is made available in the centre library for

detainees’ use.

There are no rights of appeal against a decision to detain

but the lawfulness of detention can be challenged in

court through the processes of habeas corpus or

judicial review.

10.4 Readmission Agreements

Readmission agreements are a means whereby member

states of the European Union and other countries party

to the Schengen agreement can seek to enforce the

return of both nationals of the country concerned and

third country nationals, where there is good evidence

that they transited or resided in that country. The

purpose of a readmission agreement is to set out the

reciprocal obligations, as well as administrative and

operational procedures, to facilitate the return and

transit of people who no longer have a legal basis to

stay in the participating states.

The UK supports the European Community’s policy

on readmission agreements and has opted into all 16

European Commission negotiating mandates agreed so

far.

European Community readmission agreements can

support the UK when conducting enforced returns and

by underpinning and reinforcing a good enforcement

policy. This can make voluntary return more attractive.

Voluntary return, even when supported by an Assisted

Voluntary Return (AVR) package, is considered a more

cost-effective way to return an unsuccessful asylum-

seeker to his or her country of origin.

11 Integration

Since 1 October 2008 the Refugee Integration and

Employment Service (RIES) has been available to those

granted either refugee status or humanitarian protection

as a result of their asylum application. RIES is a national

service that ensures that these persons can beneﬁ t from

a standard level of integration support wherever they

live. It completes the end-to-end case ownership model

by providing a practical route to integration.

RIES has three elements that are provided over a

12-month period:

• Advice and support – offering assistance to new

efugees in addressing critical needs

20 To date, the European Commission has concluded 11 agreements

with the following countries: Hong Kong, Macau, Sri Lanka,

Russia, Ukraine, Bosnia and Herzegovina, Montenegro, Serbia and

Former Yugoslav Republic of Macedonia (FYROM), Moldova and

Albania. There are mandates to negotiate readmission agreements

with Turkey, China, Morocco and Algeria. The next European

Community Readmission Agreements (ECRA) to be concluded

will be with Pakistan. The European Commission is seeking two

new mandates for Georgia and Cape Verde. Some of the ECRAs

are with priority countries for asylum, which either have citizens

seeking asylum or are transit countries for irregular migrants.

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• An employment advice service helping refugees

enter sustained employment at the earliest

opportunity

• A mentoring service offering the opportunity to

be matched with a mentor fr

om the receiving

community. The service focuses primarily on

employment as a key driver to a successful

integration outcome.

The RIES is not available to resettled refugees, as

integration support is included within the wider package

of support that is available to them. Resettled refugees

are supported fully for their ﬁ rst 12 months in the UK.

They are offered an integration package that deals with

any urgent needs on arrival and continues through

assigning each resettled refugee a caseworker who will

assist them in accessing local services, learning about

their rights and responsibilities in the UK, and enrolling

in English language courses. The casework support

also focuses on re-accreditation and re-training where

applicable as well as building up the skills necessary

to apply for a job.

In addition to RIES, those granted refugee status

or humanitarian protection (and their respective

dependants) have the opportunity to apply for an

integration loan. The loan allows persons to purchase

goods and services that will assist their integration into

the UK. Only those whose claims have been decided

after 12 June 2007 are eligible to apply.

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12 Annexe

12.1 United Kingdom Statutes Relating to Asylum

UK statutes affecting immigration are as follows:

• Immigration Act 1971

• Race Relations Act 1976

• Immigration Act 1988

• Asylum and Immigration Appeals Act 1993

• Special Immigration Appeals Commission Act 1997

• Human Rights Act 1998

• Immigration and Asylum Act 1999

• British Overseas Territories Act 2002

• Nationality, Immigration and Asylum Act 2002

• Asylum and Immigration (Treatment of Claimants etc.) Act 2004

• Immigration, Asylum and Nationality Act 2006

• The UK Borders Act 2007.

12.1.1. UK Nationality, Immigration and Asylum Act (2002)

Part 2 – Accommodation Centres

(…)

18 Asylum-seeker: deﬁ nition

(1) For the purposes of this Part a person is an “asylum-seeker” if—

(a) he is at least 18 years old,

(b) he is in the United Kingdom,

(d) the Secretary of State has recorded the claim, and

(e) the claim has not been determined.

(2) A person shall continue to be treated as an asylum-seeker despite subsection (1)(e) while—

(a) his household includes a dependent child who is under 18, and

(b) he does not have leave to enter or remain in the United Kingdom.

(3) A claim for asylum is a claim by a person that to remove him from or require him to leave the United Kingdom

would be contrary to the United Kingdom’s obligations under—

(a) the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, or

(b) Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by

the Council of Europe at Rome on 4th November 1950.

(…)

43 Asylum-seeker: form of support

(1) The Secretary of State may make an order restricting the application of section 96(1)(b) of the Immigration and

Asylum Act 1999 (c. 33) (support for asylum-seeker: essential living needs)—

21 The texts of the various statutes are available on the Ofﬁ ce of Public Sector Information website: http://www.opsi.gov.uk/.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

(a) in all circumstances, to cases in which support is being provided under section 96(1)(a) (accommodation), or

(b) in speciﬁ ed circumstances only, to cases in which support is being provided under section 96(1)(a).

(2) An order under subsection (1)(b) may, in particular, make provision by reference to—

(a) location;

(b) the date of an application.

(3) An order under subsection (1) may include transitional provision.

(4) An order under subsection (1)—

(a) must be made by statutory instrument, and

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(…)

Part 5: Immigration and Asylum Appeals

96 Earlier right of appeal

(1) An appeal under section 82(1) against an immigration decision (“the new decision”) in respect of a person may

not be brought or continued if the Secretary of State or an immigration ofﬁ cer certiﬁ es—

(a) that the person was notiﬁ ed of a right to appeal under that section against another immigration decision

(whether or not an appeal was brought and whether or not any appeal brought has been determined),

(b) that in the opinion of the Secretary of State or the immigration ofﬁ cer the new decision responds to a

claim or application which the person made in order to delay his removal from the United Kingdom or the

removal of a member of his family, and

purpose for making the claim or application.

(2) An appeal under section 82(1) against an immigration decision in respect of a person may not be brought or

continued if the Secretary of State or an immigration ofﬁ cer certiﬁ es that the immigration decision relates to an

application or claim which relies on a ground which the person—

(a) raised on an appeal under that section against another immigration decision,

(b) should have included in a statement which he was required to make under section 120 in relation to

another immigration decision or application, or

respect of which he chose not to exercise a right of appeal.

(3) A person may not rely on any ground in an appeal under section 82(1) if the Secretary of State or an immigration

ofﬁ cer certiﬁ es that the ground was considered in another appeal under that section brought by that person.

(4) In subsection (1) “notiﬁ ed” means notiﬁ ed in accordance with regulations under section 105.

(5) Subsections (1) to (3) apply to prevent or restrict a person’s right of appeal whether or not he has been outside

the United Kingdom since an earlier right of appeal arose or since a requirement under section 120 was imposed.

(6) In this section a reference to an appeal under section 82(1) includes a reference to an appeal under section 2

of the Special Immigration Appeals Commission Act 1997 (c. 68) which is or could be brought by reference to an

appeal under section 82(1).

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

12.1.2. Immigration and Asylum Act (1999)

Part I: Immigration – General

(…)

4 Accommodation for those temporarily admitted or released from detention

The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons—

(a) temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the 1971 Act;

(b) released from detention under that paragraph; or

Part IV: Appeals

(…)

69 Claims for asylum

(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to

an adjudicator on the ground that his removal in consequence of the refusal would be contrary to the Convention.

(2) If, as a result of a decision to vary, or to refuse to vary, a person’s limited leave to enter or remain in the United

Kingdom, he may be required to leave the United Kingdom within 28 days of being notiﬁ ed of the decision, he

may appeal against the decision to an adjudicator on the ground that such a requirement would be contrary to the

Convention.

(3) A person who—

(a) has been refused leave to enter or remain in the United Kingdom on the basis of a claim for asylum made

by him, but

(b) has been granted (whether before or after the decision to refuse leave) limited leave to enter or remain,

may, if that limited leave will not expire within 28 days of his being notiﬁ ed of the decision, appeal to an

adjudicator against the refusal on the ground that requiring him to leave the United Kingdom after the time

limited by that leave would be contrary to the Convention.

(4) If the Secretary of State—

(a) has decided to make a deportation order against a person under section 5(1) of the 1971 Act, or

(b) has refused to revoke such an order, that person may appeal to an adjudicator against the decision or

refusal on the ground that his removal in pursuance of the order would be contrary to the Convention.

(5) If directions are given as mentioned in section 66(1) for the removal of a person from the United Kingdom, he

may appeal to an adjudicator on the ground that his removal in pursuance of the directions would be contrary to

the Convention.

(6) “Contrary to the Convention” means contrary to the United Kingdom’s obligations under the Refugee Convention.

70 Limitations on rights of appeal under section 69

(1) Section 69(1) does not entitle a person to appeal against a refusal of leave to enter if—

(a) the Secretary of State certiﬁ es that directions have been given by the Secretary of State (and not by

a person acting under his authority) for the appellant not to be given entry to the United Kingdom on the

ground that his exclusion is in the interests of national security; or

(b) the leave to enter was refused in compliance with any such directions.

(2) Section 69(2) does not entitle a person to appeal against—

(a) a variation of his leave which reduces its duration, or

(b) a refusal to enlarge or remove the limit on its duration, if either of the following conditions is satisﬁ ed.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

(3) The conditions are—

(a) that the Secretary of State has certiﬁ ed that the appellant’s departure from the United Kingdom would

be in the interests of national security; or

(b) that the decision questioned by the appeal was taken on that ground by the Secretary of State (and not

by a person acting under his authority).

(4) Section 69(3) does not entitle a person to appeal against a refusal mentioned in paragraph (a) of that subsection if—

(a) the reason for the refusal was that he was a person to whom the Refugee Convention did not apply by

reason of Article 1(F) of that Convention; and

(b) the Secretary of State has certiﬁ ed that the disclosure of material on which the refusal was based is not

in the interests of national security.

(5) Section 69(4)(a) does not entitle a person to appeal against a decision to make a deportation order against him

if the ground of the decision was that his deportation is in the interests of national security.

(6) Section 69(4)(b) does not entitle a person to appeal against a refusal to revoke a deportation order, if—

(a) the Secretary of State has certiﬁ ed that the appellant’s exclusion from the United Kingdom would be in

the interests of national security; or

(b) if revocation was refused on that ground by the Secretary of State (and not by a person acting under

his authority).

(7) A person may not bring an appeal on any of the grounds mentioned in subsections (1) to (5) of section 69—

(a) if, before the time of the refusal, variation, decision or directions (as the case may be) he has not made

a claim for asylum;

(b) otherwise than under that section.

(8) A person may not appeal under section 69(4)(b) if he has had the right to appeal under section 69(4)(a) (whether

or not he has exercised it).

95 Persons for whom support may be provided

(1) The Secretary of State may provide, or arrange for the provision of, support for—

(a) asylum-seekers, or

(b) dependants of asylum-seekers, who appear to the Secretary of State to be destitute or to be likely to

become destitute within such period as may be prescribed.

(2) In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded.

(3) For the purposes of this section, a person is destitute if—

(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential

living needs are met); or

(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living

needs.

(4) If a person has dependants, subsection (3) is to be read as if the references to him were references to him and

his dependants taken together.

(5) In determining, for the purposes of this section, whether a person’s accommodation is adequate, the Secretary

of State—

(a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but

(b) may not have regard to such matters as may be prescribed for the purposes of this paragraph or to any

of the matters mentioned in subsection (6).

(6) Those matters are—

(a) the fact that the person concerned has no enforceable right to occupy the accommodation;

(b) the fact that he shares the accommodation, or any part of the accommodation, with one or more other

persons;

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

(d) the location of the accommodation.

(7) In determining, for the purposes of this section, whether a person’s other essential living needs are met, the

Secretary of State—

(a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but

(b) may not have regard to such matters as may be prescribed for the purposes of this paragraph.

(8) The Secretary of State may by regulations provide that items or expenses of such a description as may be

prescribed are, or are not, to be treated as being an essential living need of a person for the purposes of this Part.

(9) Support may be provided subject to conditions.

(10) The conditions must be set out in writing.

(11) A copy of the conditions must be given to the supported person.

(12) Schedule 8 gives the Secretary of State power to make regulations supplementing this section.

(13) Schedule 9 makes temporary provision for support in the period before the coming into force of this section.

12.1.3. Immigration Rules

Part 11: Asylum

Grant of asylum

334. An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisﬁ ed that:

(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;

(ii) he is a refugee, as deﬁ ned in regulation 2 of The Refugee or Person in Need of International Protection

(Qualiﬁ cation) Regulations 2006;

(iii) there are no reasonable grounds for regarding him as a danger to the security of the United Kingdom;

(iv) he does not, having been convicted by a ﬁ nal judgment of a particularly serious crime, he does not

constitute danger to the community of the United Kingdom; and

(v) refusing his application would result in him being required to go (whether immediately or after the time

limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his

life or freedom would threatened on account of his race, religion, nationality, political opinion or membership

of a particular social group.

335. If the Secretary of State decides to grant asylum to a person who has been given leave to enter (whether or

not the leave has expired) or to a person who has entered without leave, the Secretary of State will vary the existing

leave or grant limited leave to remain.

Refusal of asylum

336. An application which does not meet the criteria set out in paragraph 334 will be refused. Where an application

for asylum is refused, the reasons in fact and law shall be stated in the decision and information provided in writing

on how to challenge the decision.

(…)

Grant of humanitarian protection

339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisﬁ ed

that:

(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;

22 The Immigration Rules were last updated in March 2009 and the full text is available on the UKBA website:

http://www.ind.homeofﬁ ce.gov.uk/policyandlaw/immigrationlaw/immigrationrules/.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

(ii) he does not qualify as a refugee as deﬁ ned in regulation 2 of The Refugee or Person in Need of International

Protection (Qualiﬁ cation) Regulations 2006;

(iii) substantial grounds have been shown for believing that the person concerned, if he returned to the country

of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to

avail himself of the protection of that country; and

(iv) he is not excluded from a grant of humanitarian protection.

Serious harm consists of:

(i) the death penalty or execution;

(ii) unlawful killing;

(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or

(iv) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations

of international or internal armed conﬂ ict.

(…)

Third country cases

345. (1) In a case where the Secretary of State is satisﬁ ed that the conditions set out in Paragraphs 4 and 5(1), 9 and

10(1), 14 and 15(1) or 17 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 are

fulﬁ lled, he will normally decline to examine the asylum application substantively and issue a certiﬁ cate under Part

2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 as appropriate.

(2) The Secretary of State shall not issue a certiﬁ cate under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and

Immigration (Treatment of Claimants, etc.) Act 2004 unless:

(i) the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims

to fear persecution and has had an opportunity at the border or within the third country or territory to make

contact with the authorities of that third country or territory in order to seek their protection; or

(ii) there is other clear evidence of his admissibility to a third country or territory.

Provided that he is satisﬁ ed that a case meets these criteria, the Secretary of State is under no obligation

to consult the authorities of the third country or territory before the removal of an asylum applicant to that

country or territory.

345(2A) Where a certiﬁ cate is issued under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment

of Claimants, etc.) Act 2004 the asylum applicant shall:

(i) be informed in a language that he may reasonably be expected to understand regarding his removal to

a safe third country;

(ii) be provided with a document informing the authorities of the safe third country, in the language of that

country, that the asylum application has not been examined in substance by the authorities in the United

Kingdom;

(iii) sub-paragraph 345(2A)(ii) shall not apply if removal takes place with reference to the arrangements set

out in Regulation (EC) No. 343/2003 (the Dublin Regulation); and

iv) if an asylum applicant removed under this paragraph is not admitted to the safe third country (not being a

country to which the Dublin Regulation applies as speciﬁ ed in paragraph 345(2A)(iii)), subject to determining

and resolving the reasons for his nonadmission, the asylum applicant shall be admitted to the asylum

procedure in the United Kingdom.

(3) Where a certiﬁ cate is issued under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants,

etc.) Act 2004 in relation to the asylum claim and the person is seeking leave to enter the Immigration Ofﬁ cer will consider

whether or not he is in a position to decide to give or refuse leave to enter without interviewing the person further. If the

Immigration Ofﬁ cer decides that a further interview is not required he may serve the notice giving or refusing leave to

enter by post. If the Immigration Ofﬁ cer decides that a further interview is required, he will then resume his examination

to determine whether or not to grant the person leave to enter under any other provision of these Rules. If the person

fails at any time to comply with a requirement to report to an Immigration Ofﬁ cer for examination, the Immigration Ofﬁ cer

may direct that the person’s examination shall be treated as concluded at that time. The Immigration Ofﬁ cer will then

consider any outstanding applications for entry on the basis of any evidence before him.

(4) Where a certiﬁ cate is issued under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of

Claimants, etc.) Act 2004 the person may, if liable to removal as an illegal entrant, or removal under section 10 of

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

the Immigration and Asylum Act 1999 or to deportation, at the same time be notiﬁ ed of removal directions, served

with a notice of intention to make a deportation order, or served with a deportation order, as appropriate.

Part 12 - Procedure and rights of appeal

Fresh Claims

353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph

333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider

any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions

will amount to a fresh claim if they are signiﬁ cantly different from the material that has previously been considered.

The submissions will only be signiﬁ cantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success,

notwithstanding its rejection.

This paragraph does not apply to claims made overseas.

353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who

has made further submissions shall not be removed before the Secretary of State has considered the submissions

under paragraph 353 or otherwise.

This paragraph does not apply to submissions made overseas.

12.2 Processing Costs

It is not possible to provide a meaningful single cost of an asylum case because there are many different possible

combinations of outcome, numbers and location, each with different cost implications. Therefore, the UK Border

Agency is unable to offer a single ﬁ gure, either per capita or per case.

The National Audit Ofﬁ ce (NAO), however, gives a breakdown of the cost of typical asylum cases in 2007-2008 in

its report, The Home Ofﬁ ce Management of Asylum Applications by the UK Border Agency, which was published

on 23 January 2009. The report sets out 12 typical proﬁ les and the lower- to upper-end estimate of costs, either

excluding or including accommodation and support costs.

For example, Proﬁ le 4 estimates the cost of an enforced removal of a single, non-detained adult after appeal rights

have been exhausted, as being between £7,900-17,000, excluding accommodation and support , or £12,000-25,600

including accommodation and support.

23 This full report is available on the National Audit Ofﬁ ce website: http://www.nao.org.uk/publications/0809/management_of_asylum_appl.aspx.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

12.3 Additional Statistical Information

* First applications only

5,000

10,000

15,000

20,000

25,000

30,000

35,000

40,000

45,000

50,000

1997 2002 2008

Sri Lanka

FRY (Yugoslavia)

China

Pakistan

Somalia

Iraq

Eritrea

Iran

Afghanistan

Zimbabwe

Figure 5:

Asylum Applications* from Top Five Countries of Origin for the UK in 1997, 2002 and 2008

Convention Status

Humanitarian

Status and Other

Authorisations

to Remain

Rejections Other Decisions*

Total

Decisions

Year

Count % of total Count % of total Count % of total Count % of total

1992

1,900 3% 21,680 36% 35,480 58% 1,795 3% 60,855

1993

2,860 7% 15,480 39% 18,550 47% 2,325 6% 39,215

1994

1,395 5% 5,445 18% 20,915 68% 2,875 9% 30,630

1995

2,200 6% 6,780 18% 26,220 69% 3,060 8% 38,260

1996

3,660 7% 7,510 14% 38,180 72% 3,865 7% 53,220

1997

6,210 12% 4,740 9% 37,585 73% 3,105 6% 51,635

1998

8,245 18% 6,455 14% 28,205 63% 1,785 4% 44,690

1999

10,405 22% 4,640 10% 13,915 30% 17,790 38% 46,755

2000

12,135 9% 12,645 9% 92,330 68% 17,900 13% 135,010

2001

14,755 9% 26,025 16% 115,120 72% 3,090 2% 158,995

2002

10,990 10% 22,470 21% 69,990 66% 1,825 2% 105,280

2003

5,380 7% 7,805 9% 67,185 81% 2,205 3% 82,575

2004

2,160 4% 4,195 7% 49,040 83% 3,520 6% 58,915

2005

2,470 7% 2,955 8% 27,780 76% 3,440 9% 36,650

2006

2,630 10% 2,410 9% 20,430 74% 2,050 7% 27,520

2007

4,495 16% 2,315 8% 19,850 71% 1,400 5% 28,065

2008

3,725 19% 2,180 11% 13,510 70% 0 0% 19,415

*Other decisions may include withdrawn claims, abandoned claims or claims otherwise resolved.

Figure 6:

Decisions Made at the First Instance, 1992-2008

United States

of America

USA

395 - BACKGROUND: MAJOR ASYLUM TRENDS AND DEVELOPMENTS

397 - NATIONAL LEGAL FRAMEWORK

399 - INSTITUTIONAL FRAMEWORK

400 - PRE-ENTRY MEASURES

400 - ASYLUM PROCEDURES

407 - DECISION-MAKING AND STATUSES

413 - E

FFICIENCY AND INTEGRITY MEASURES

415 - ASSISTANCE AND RECEPTION BENEFITS FOR ASYLUM-SEEKERS

416 - STATUS AND PERMITS GRANTED OUTSIDE THE ASYLUM PROCEDURE

417 - R

ETURN

417 - INTEGRATION

418 - ANNEXE

395

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

USA

1 Background: Major Asylum

Trends and Developments

Asylum Applications

In the mid-1980’s, the United States (U.S.) was

receiving between 16,000 and 26,000 asylum claims

per year. The number of annual claims started to

increase significantly from 1988, reaching a peak

of over 160,000 in fiscal year 1993 (1 October to

30 September). Annual claims started to decrease

signiﬁ cantly from 1993 onward, and since ﬁ scal year

2004, around 30,000 claims have been received

annually.

Top Nationalities

In the 1990’s, the majority of asylum claims came from

El Salvador, Guatemala, Mexico, China, and Haiti.

Since 2000, most claimants originate from China, Haiti,

Mexico, and Colombia.

1 These numbers include both newly ﬁ led asylum applications

as well as previously received asylum applications that were

reopened during the ﬁ scal year. These numbers also reﬂ ect

“afﬁ rmative” ﬁ lings before U.S. Citizenship and Immigration

Services and “defensive” ﬁ lings by persons in removal hearings

before an immigration judge of the Department of Justice

Executive Ofﬁ ce for Immigration Review.

Figure 2:

Top Five Countries of Origin in 2008*

1 China 8,382

2 Mexico 2,213

3 El Salvador 1,908

4 Guatemala 1,752

5 Haiti 1,379

* New applications received and reopened with USCIS

(affirmative only); principal applicants only

(Source: USCIS Nationality Data).

Important Reforms

The Refugee Act of 1980 was passed with the primary

purpose of bringing U.S. refugee law in line with U.S.

obligations under the 1967 Protocol Relating to the

Status of Refugees, which entered into force for the

U.S. on 1 November 1968. Under interim regulations

published in June 1980, Immigration and Naturalization

Service (INS) District Directors were given the authority

to adjudicate asylum requests of those foreign nationals

not in exclusion or deportation proceedings.

Due to immigration events, such as the arrival of

large inﬂ uxes of Haitian and Cuban migrants, and the

ensuing debate over the proper role of asylum in U.S.

immigration decision-making, a ﬁ nal rule on the asylum

*New applications received and reopened with USCIS (affirmative only);

principal applicants only (Source: USCIS Workload Data).

26,091

16,622

101,679

56,310

160,495

43,677

65,545

31,191

29,260

20,000

40,000

60,000

80,000

100,000

120,000

140,000

160,000

180,000

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Figure 1:

Evolution of Asylum Applications in the United States, 1983-2008*

396

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

system was not published until 27 July 1990. The ﬁ nal

rule became effective on 1 October 1990 and provided

for the following:

• A corps of professional asylum ofﬁ cers,

trained

in international human rights law and non-

adversarial interview techniques, was created

solely to adjudicate afﬁ rmative asylum claims

• Those applicants not eligible for asylum who

wer

e not in legal immigration status were

allowed to renew their applications for asylum

when in deportation or exclusion proceedings

before an Immigration Judge

• Country conditions information would be compiled

from multiple sources and be maintained in a

human rights documentation centre managed

by the INS Ofﬁ ce of International Affairs.

The rule also made asylum applicants eligible for

employment authorisation so long as their applications

were deemed “non-frivolous.”

In July 1993, President Clinton directed the Department

of Justice to develop an administrative plan to reform

asylum due to mounting backlogs and a lack of

timely asylum adjudications. The resulting asylum

reforms became effective on 4 January 1995. The

comprehensive package of reforms was the product of

collaboration between government representatives and

members of the non-governmental organisation (NGO)

community and had been the subject of extensive

public consultation. There were ﬁ ve main components

to the 1995 asylum reforms.

Applicants who applied for asylum on or after 4 January

1995 are not automatically eligible for a work permit as

they previously were, as long as the asylum request was

not deemed “frivolous.” Under the 1995 reforms, work

permits are granted only if applicants are approved for

asylum or if the government takes longer than 180 days

to reach a ﬁ nal decision, whichever comes ﬁ rst.

The 1995 reforms streamlined the review process for

cases not granted by the asylum ofﬁ cer corps. Prior

to reform, asylum ofﬁ cers issued ﬁ nal decisions on all

applications for asylum and withholding of deportation.

An applicant who was found ineligible was denied, and

the applicant had the right to ﬁ le an asylum application

de novo with the Ofﬁ ce of the Chief Immigration Judge,

if exclusion or deportation proceedings were initiated.

Pursuant to the 1995 revised regulations, and current

regulations, requests filed by applicants who are

deportable or removable and who are found ineligible

for asylum must be referred directly to an Immigration

Judge for adjudication in immigration proceedings.

The immigration judge adjudicates the same asylum

application that was ﬁ led with the Asylum Ofﬁ ce. As a

matter or discretion, the immigration judge may allow

the applicant to supplement or amend the application.

Asylum officers continue to have the authority to

grant asylum to qualiﬁ ed applicants in the exercise of

discretion.

Prior to reform, asylum applicants who were found

ineligible for asylum were sent written explanations for

the decision and provided an opportunity to rebut the

preliminary decision before a ﬁ nal decision was made.

Under the reform regulations, only applicants who are in

the United States legally are provided a Notice of Intent

to Deny (NOID) explaining the negative determination

and an opportunity to rebut the decision. All other

applicants who are not granted asylum are referred

directly to an immigration judge.

* New applications received and reopened with USCIS (affirmative only);

principal applicants only (Source: USCIS Nationality Data).

2,000

4,000

6,000

8,000

10,000

12,000

14,000

16,000

18,000

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

China Mexico El Salvador

Figure 3:

Top Five Countries of Origin in 2008*

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

USA

Prior to reform, asylum decisions and any documents

initiating deportation or exclusion proceedings were

mailed to the applicant’s last known address. Since

reform, all applicants are required to pick up decisions

in person, insuring that, if they are placed in removal

proceedings, they are served with the charging

documents, informing them of the date and place of

hearing. An exception is made for asylum applicants

who are interviewed at a location other than one of the

eight asylum ofﬁ ces (see below).

Prior to 1995, asylum ofﬁ cers adjudicated requests for

withholding of deportation (now withholding of removal)

with each asylum request. Currently, asylum ofﬁ cers

adjudicate only requests for asylum despite the fact

that the application for asylum is at the same time an

application for withholding of removal. Applicants

may present to an immigration judge a request for

withholding of removal based on the original asylum

application if referred by the asylum ofﬁ ce.

2 National Legal Framework

2.1 Legal Basis for Granting

Protection

The main instrument of domestic immigration legislation

in force in the United States is the Immigration and

Nationality Act (INA), passed by Congress in 1952. In

1968, the U.S. acceded to the 1967 United Nations

(UN) Protocol, thus undertaking obligations under the

1951 Convention relating to the Status of Refugees

(1951 Convention). On 17 March 1980, the Refugee

Act of 1980 was signed into law, a far-reaching piece

of legislation that amended the INA and brought U.S.

domestic law into conformity with the 1951 Convention.

The U.S. counterpart to the refugee deﬁ nition in Article

1 of the 1951 Convention is section 101(a)(42) of the

INA. The INA also provides for the granting of asylum

status, covering issues such as who is eligible to apply

for asylum, conditions for granting asylum, and the

asylum procedure.

Additionally, the federal agencies responsible for

asylum adjudications have expanded upon the INA’s

asylum sections by providing federal regulations,

incorporated in the Code of Federal Regulations (CFR)

at 8 CFR § 208, which further explain asylum eligibility

requirements and procedures.

The U.S. offers four other forms of protection which

are granted either inside or outside the asylum

procedure. These are as follows:

• Withholding of removal under Article 33 of the

1951 Convention (INA § 241(b)(3), 8 CFR §

208.16, and 8 CFR § 1208.16)

• Protection under Article 3 of the Convention

against T

orture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (Convention

against Torture, CAT), as implemented in United

States law (8 CFR §§ 208.16 – 208.18 and 8

CFR §§ 1208.16 – 1208.18)

• Temporary Protected Status (TPS), codiﬁ ed

INA § 244, 8 CFR § 244, and 8 CFR § 1244

• Deferred Enforced Departure (DED), an authority

that is held by the Pr

esident not to initiate or

enforce removal orders against a person or

group of persons if he or she deems it in the

foreign policy interest of the U.S. to do so.

The various types of protection are described later in

the chapter.

2.2 Recent Reforms

Terrorist-Related Inadmissibility Grounds

Since 2000, the U.S. Congress has passed three

major pieces of legislation concerning terrorist-related

inadmissibility grounds that serve as a bar (exclusion) to

asylum. The U.S.A PATRIOT Act of 2001 (“Patriot Act”)

expanded grounds of inadmissibility based on terrorism,

broadened the deﬁ nition of “terrorist activity,” added

two deﬁ nitions of “terrorist organisation,” and added a

separate ground of inadmissibility for those who have

been associated with a terrorist organisation. The

Patriot Act also added a subsection on membership in

an undesignated terrorist organisation to those grounds

on which a person would not be eligible for asylum.

The INA, as amended by the Patriot Act, allows those

persons who fall under subsection (IV) of 212(a)(3)(B)(i)

(representative of a terrorist organisation) to be eligible

for an exception to the bar if it is determined that there

are not reasonable grounds to believe that they are a

danger to the security of the United States.

The REAL ID Act of 2005 further broadened the

categories of persons who are inadmissible for

terrorist activities by including those who have received

military-type training from or on behalf of a terrorist

organisation. It also broadened the inadmissibility

ground regarding espousing terrorist activity to no

longer require that the individual hold a “position of

prominence.” The statute also limited the afﬁ rmative

defense to the inadmissibility ground for “engaging

in terrorist activity” through soliciting things of value,

2 See in particular the section below on Status and Permits Granted

outside the Asylum Procedure.

3 Subsection (VI) was added to INA section 212(a)(3)(B)(i) by the

Patriot Act.

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soliciting persons for membership in, or for providing

material support to an undesignated terrorist

organisation to require the person to “demonstrate

by clear and convincing evidence that he did not

know, and reasonably should not have known, that

the organisation was a terrorist organisation.” REAL

ID Act of 2005 § 103(a). The statute also amended INA

§ 212(d) to create an inapplicability provision for the

material support ground, as well as for persons and

representatives of groups who endorse or espouse

terrorist activity. The inapplicability ground allows the

Secretary of Homeland Security, after consultation with

the Secretary of State and the Attorney General, to not

apply the provisions of sections 212(a)(3)(B)(i)(IV)(bb)

(related to representatives of organisations that endorse

or espouse terrorist activity), 212(a)(3)(B)(i)(VII) (relating

to those who endorse or espouse terrorist activity),

or 212(a)(3)(B)(iv)(VI) (related to material support to a

terrorist or terrorist organisation) to a person in the

Secretary’s sole unreviewable discretion.

On 26 December 2007, the Consolidated Appropriations

Act (CAA) of 2008 was signed into law. Through this

legislation, Congress amended the discretionary

authority of the Secretary of Homeland Security and

the Secretary of State, under section 212(d)(3)(B)(i) of

the INA, to exempt, in certain cases, the effect of a

person’s terrorist activities on his or her inadmissibility

or removability from the United States. There are limits

to the Secretaries’ authority under this provision as

amended; in particular, the provision cannot be used to

exempt foreign nationals who knowingly and voluntarily

engaged in terrorist activity on behalf of a designated

terrorist organisation. The CAA requires that the Taliban

be considered a designated terrorist organisation for

immigration purposes.

The CAA also identiﬁ ed ten groups that are not to be

considered terrorist organisations under the INA based

on actions taken before the statute’s enactment.

3 June 2008, Secretary of Homeland Security Michael

Chertoff and Secretary of State Condoleezza Rice, in

consultation with each other and the Attorney General,

exercised their discretionary authority under INA section

212(d)(3)(B)(i) not to apply most of the terrorist-related

grounds of inadmissibility to persons for activities or

associations related to any of the ten groups named

in the CAA.

4 The ten groups are: Karen National Union/Karen Liberation Army

(KNU/KNLA); Chin National Front/Chin National Army (CNF/CNA);

Chin National League for Democracy (CNLD); Kayan New Land Party

(KNLP); Arakan Liberation Party (ALP); Mustangs; Alzados; Karenni

National Progressive Party; appropriate groups afﬁ liated with the

Hmong; and appropriate groups afﬁ liated with the Montagnards.

Evidentiary and Credibility Standards

The REAL ID Act of 2005 also modiﬁ ed the evidentiary

and credibility standards used in asylum proceedings.

It modiﬁ ed the requirements concerning an asylum

applicant’s burden of proof to require that the asylum

applicant have the burden of proof to establish that

race, religion, nationality, membership in a particular

social group, or political opinion was or would be at

least one central reason for the persecutor’s motivation.

Additionally, the REAL ID Act amended the INA’s section

on sustaining the burden of proof in asylum adjudications

to the following: “The testimony of the applicant may

be sufﬁ cient to sustain the applicant’s burden without

corroboration, but only if the applicant satisﬁ es the

trier of fact that the applicant’s testimony is credible,

is persuasive, and refers to speciﬁ c facts sufﬁ cient to

demonstrate that the applicant is a refugee.”

If the

adjudicator “determines that the applicant should

provide evidence that corroborates otherwise credible

testimony, such evidence must be provided unless

the applicant does not have the evidence and cannot

reasonably obtain the evidence.”

Congress amended

the statute in this way in order to resolve conﬂ icts

between administrative and judicial tribunals with

respect to, among other issues, the sufficiency of

testimonial evidence to satisfy the applicant’s burden

of proof. Finally, in making a credibility determination,

the REAL ID Act modified INA § 208(b)(1)(B)(iii) to

require that adjudicators consider “the totality of the

circumstances, and all relevant factors.”

Serious Non-Political Crime Bar to Asylum

The Child Soldiers Accountability Act of 2008 (CSAA),

which came into force on 3 October 2008, creates

both criminal and immigration prohibitions on the

recruitment or use of child soldiers. Speciﬁ cally, the

CSAA establishes a ground of inadmissibility at section

212(a)(3)(G) of the INA and a ground of removability at

section 237(a)(4)(F) of the INA. These parallel grounds

set forth that “[a]ny foreign national who has engaged

in the recruitment or use of child soldiers in violation

of section 2442 of title 18, United States Code” is

inadmissible and is removable.

The statute also requires that DHS and DOJ promulgate

regulations establishing that a person who is subject to

these grounds of inadmissibility or removability “shall

be considered a person with respect to whom there are

serious reasons to believe that the person committed

a serious nonpolitical crime,” and is therefore ineligible

for asylum pursuant to INA section 208(b)(2)(A)(iii). The

5 INA § 208(b)(1)(B)(i).

6 INA § 208(b)(1)(B)(ii).

7 Ibid.

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USA

regulations are in the process of being promulgated.

In the interim, the Congressional intent in enacting the

CSAA, as well as the nature of the serious crime of

the use of child soldiers, is considered in determining

whether an applicant is subject to the serious non-

political crime bar.

Consideration of Asylum Applications Made by

Unaccompanied Minors

On 23 December 2008, the William Wilberforce

Trafficking Victims Protection Reauthorisation Act

(TVPRA) of 2008

was signed into law. The TVPRA

makes a number of changes to the INA that affect

unaccompanied minors (UAMs) who have filed for

asylum. First, TVPRA amended the INA so that the one-

year ﬁ ling deadline and Safe Third Country Agreement

bars to applying for asylum no longer apply to UAMs.

Second, the TVPRA provides USCIS asylum ofﬁ cers

with initial jurisdiction over any asylum application ﬁ led

by an unaccompanied child, regardless of whether the

application was ﬁ led in accordance with INA sections

208 or 235(b). As a result, unaccompanied minors ﬁ ling

for asylum who previously would have had their case

heard by an immigration judge in the ﬁ rst instance will

now receive an afﬁ rmative interview with an asylum

ofﬁ cer.

Third, the TVPRA requires the U.S. government to

develop regulations for principal applicants for asylum

and other forms of relief “which take into account

the specialised needs of [UAMs] and which address

both procedural and substantive aspects of handling

[UAMs’] cases.”

Fourth, the TVPRA authorises the Secretary of Health

and Human Services (HHS) to appoint independent child

advocates, who advocate for the child’s best interests,

for child trafﬁ cking victims and other vulnerable UAMs.

3 Institutional Framework

3.1 Principal Institutions

Asylum and refugee protection are governed by the

provisions outlined in the Immigration and Nationality

Act (INA), with a number of different bodies responsible

for its implementation.

Department of Homeland Security

Several ofﬁ ces within the Department have a role in the

asylum procedure.

8 Public Law 110-457.

U.S. Citizenship and Immigration Services (USCIS)

is responsible for adjudicating applications for

immigration beneﬁ ts, including asylum applications

and refugee resettlement determinations, and for

conducting protection screening interviews of persons

who would otherwise be returned without a hearing.

U.S. Customs and Border Protection (CBP) enforces

U.S. immigration and customs laws at the U.S. border.

U.S. Immigration and Customs Enforcement (ICE)

enforces customs and immigration laws in the interior,

manages the detention and removal of certain foreign

nationals, and investigates immigration fraud and abuse

for appropriate action in administrative, civil, or criminal

courts.

Department of Health and Human Services

The Department is responsible for funding programmes

administered by individual states and non-profit

organisations to provide cash and medical assistance,

training programmes, employment, and other support

services to asylees and refugees. It is also responsible

for the care and custody of unaccompanied minors in

U.S. custody.

Department of Justice

The Executive Ofﬁ ce for Immigration Review within

the Department of Justice houses the immigration

courts (administrative tribunals that adjudicate

asylum applications ﬁ led in removal proceedings), the

decisions of which may be appealed to EOIR’s Board

of Immigration Appeals.

Department of State

The Department of State is responsible for issuing non-

immigrant and immigrant visas to persons overseas,

formulating policies on population, refugees and

migration, and administering U.S. refugee assistance

and admissions (resettlement) programmes. DOS also

provides opinions on certain individual asylum cases,

facilitates completion of the adjudication process

for asylees’ immediate family members overseas,

and conducts overseas document and information

verification in some asylum cases as part of fraud

prevention efforts.

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4 Pre-entry Measures

4.1 Visa Requirements

A citizen of a foreign country who seeks to enter the

U.S. generally must ﬁ rst obtain a U.S. visa. Certain

international travellers may be eligible to travel to the

U.S. without a visa if they meet the requirements for

visa-free travel.

The Visa Waiver Program (VWP) enables nationals

of certain countries to travel to the United States for

tourism or business for stays of 90 days or less without

obtaining a visa. The program was established in 1986

with the objective of eliminating unnecessary barriers to

travel, stimulating the tourism industry, and permitting

the Department of State to focus consular resources in

other areas. Not all countries participate in the VWP,

and not all travellers from VWP countries are eligible

to use the program. VWP travellers are required to

apply for authorisation though the Electronic System

for Travel Authorization (ESTA), are screened at their

port of entry into the United States, and are enrolled

in the Department of Homeland Security’s US-VISIT

program.

4.2 Interception

Neither U.S. immigration law nor international refugee

law instruments are applicable to the interdiction and

repatriation of undocumented migrants encountered on

the high seas.

Notwithstanding, for over twenty years,

the handling of migrants intercepted at sea has been

guided by successive Executive Orders.

Currently, Executive Order 12,807 (May 24, 1992)

instructs the U.S. Coast Guard to interdict and

repatriate undocumented migrants at sea. However,

the Secretary of Homeland Security may decide that

a person who is a refugee will not be returned without

that person’s consent. Since 1981, Attorneys General

and now the Secretary of DHS have exercised their

authority to make such determinations by providing

interdicted migrants who express a fear of return with

an opportunity to speak to a USCIS Ofﬁ cer before

repatriation is considered. Generally, USCIS Ofﬁ cers

9 To be admitted to the VWP, a country must meet various security

and other requirements, such as enhanced law enforcement and

security-related data sharing with the United States and timely

reporting of both blank and issued lost and stolen passports. VWP

members are also required to maintain high counterterrorism, law

enforcement, border control, and document security standards.

Designation as a VWP country is at the discretion of the U.S.

Government. Meeting the objective requirements of the VWP does

not guarantee a successful candidacy for VWP membership.

See U.S. Department of State. “Visa Waiver Program,”

http://travel.state.gov/visa/temp/without/without_1990.html.

10 U.S. Department of State. “Visa Waiver Program,”

http://travel.state.gov/visa/temp/without/without_1990.html

11 Sale v. Haitian Centers Council, 509 U.S. 155 (1993).

interview migrants interdicted at sea on board a Coast

Guard vessel to determine whether any individuals have

a credible fear of persecution or torture in their home

country.

The U.S. does not generally allow interdicted migrants

who require protection to settle in the U.S.; rather, the

U.S. will seek resettlement in a third country. Third-

country resettlement promotes two complementary

goals: to save lives by discouraging dangerous sea

travel, and to provide protection screening to those who

do attempt the passage.

5 Asylum Procedures

5.1 Application Possibilities and

Requirements, Procedures

and Legal Remedies

Application Possibilities

Individuals may make asylum claims at ports-of-entry

(airports, seaports, and border crossings) through the

credible/reasonable fear process and, once inside

the country, by ﬁ ling an asylum application by mail

submitted to a USCIS Service Center. An asylum-

seeker may ﬁ le an asylum application regardless of

his or her immigration status.

Outside the country, certain individuals may access

the U.S. Refugee Admissions Program (USRAP) for

consideration for resettlement in the U.S. The USRAP,

including how individuals access the programme, is

described later in the chapter.

Access to Information

The USCIS website provides information to asylum

applicants regarding the overall process and speciﬁ c

procedures. The USCIS Asylum Division also recently

published an information pamphlet on the asylum

process for applicants that is available on the Internet

and in each of the eight asylum field offices. The

pamphlet has been translated into the ten languages

most frequently encountered by the Asylum Program

nationwide.

Individuals who are detained pending a credible fear

determination are given an orientation regarding the

credible fear process as well as a list of pro bono legal

service providers.

12 See in particular the section below on Resettlement.

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USA

Processes for Granting Asylum

The U.S. Government conducts asylum adjudications

through two separate processes. The Asylum Division

of U.S. Citizenship and Immigration Services (USCIS)

adjudicates the asylum applications of persons who

are not in removal proceedings and afﬁ rmatively ﬁ le for

asylum. Afﬁ rmative applicants may be persons who are

in valid immigration status in the U.S. and those who

are not. Asylum ofﬁ cers adjudicate these “afﬁ rmative”

asylum applications by conducting non-adversarial

interviews and writing and issuing decisions.

In addition, an asylum application can be adjudicated by

an immigration judge with the Department of Justice’s

Executive Ofﬁ ce for Immigration Review (EOIR). This

process is adversarial, with a DHS Immigration and

Customs Enforcement trial attorney representing the

government in a court proceeding. There are two main

ways that an asylum applicant’s case will be before an

immigration judge:

• A person is placed by DHS in removal

oceedings, at which time he or she ﬁ les an

asylum application

• USCIS decides to not grant the case of a person

without legal immigration status, and r

efers the

case to the immigration court for a de novo

asylum hearing.

5.1.1. Outside the Country

During annual refugee consultations with Congress,

the nationalities and categories of persons deemed

to be of “special humanitarian concern” to the U.S.

are designated under a worldwide priority system.

Only persons who qualify under this priority system

are permitted to “apply” for refugee resettlement

consideration through the U.S. Refugee Admissions

Program (USRAP). The worldwide processing priority

system (outlined in the Priorities section below) is the

tool that the Department of State (DOS) uses to manage

overall refugee admissions and helps ensure that those

refugees who are of greatest concern to the United

States have access to the refugee programme.

Currently applicants for refugee status must fall under

the following categories:

• They must have been referred by the U.N.

High Commissioner for Refugees (UNHCR),

a designated non-governmental organisation

(NGO) or a U.S. embassy

• They must be members of speciﬁ

ed groups with

special characteristics in certain countries as

determined periodically by the United States

government, or

• They must be a designated national with a

close r

elative who was admitted as a refugee

or granted asylum in the United States.

Humanitarian Parole

The Secretary of Homeland Security may, at his

discretion, on the basis of urgent humanitarian grounds

or signiﬁ cant public beneﬁ t, allow a foreign national to

enter the U.S. in order to make a claim for asylum. This

intervention – known as Humanitarian or Public Beneﬁ t

Parole – can be requested by persons who are outside

the U.S., by mailing an application form to DHS.

Applications at Diplomatic Missions

Applicants for refugee status may be referred by

diplomatic missions through Priority 1 of the worldwide

priority system (see below for further description of

Priority 1). A person who approaches a U.S diplomatic

mission seeking refugee protection is generally referred

to either the host government, if the host government

is a signatory to the 1951 Convention, or the United

Nations High Commissioner for Refugees (UNHCR).

However, a U.S. diplomatic mission has the authority

to refer individual cases to the USRAP under Priority 1.

Embassies may identify a high-proﬁ le case or a person

who is associated with the embassy in some way for

whom compelling humanitarian or security circumstances

exist such that he or she merits a referral to the USRAP.

Referrals made by a U.S. embassy are generally

transmitted through the Department of State (DOS)

cable system. While most refugee applicants, by

statute, must be outside of their country of origin,

the U.S. is authorised to process certain persons

in-country including applicants from Iraq, Cuba, the

Former Soviet Union and Vietnam as well as those of

any nationality referred by a U.S. embassy, though such

in-country referrals are presented only in exceptional

circumstances.

Resettlement/Quota Refugees

Competent Authorities

The USRAP is an interagency partnership of several

governmental agencies and NGOs, located both

overseas and domestically, whose mission is to identify

refugees for resettlement to the United States. The

Bureau of Population, Refugees, and Migration (PRM)

within DOS coordinates and manages the USRAP

overall. Determining which persons or groups are of

humanitarian concern is a PRM responsibility.

PRM works closely with its programme partners in

administering the USRAP:

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• U.S. Citizenship and Immigration Services

(USCIS), the agency authorised to interview and

adjudicate refugee applications

• The United Nations High Commissioner for

Refugees (UNHCR), the or

ganisation that

refers cases to the USRAP for resettlement

consideration and provides important

information with regard to the worldwide refugee

situation

• Overseas Processing Entities (OPE), international

or non-gover

nmental organisations under

cooperative agreement with DOS that carry

out administrative functions, assist in preparing

cases for interview, including form ﬁ ling and

data collection, and perform a variety of post-

DHS out-processing steps to prepare approved

refugees to travel to the U.S.

• The International Organization for Migration

(IOM), the organisation that arranges travel for

all U.S.-bound refugees, and serves as the panel

physician and/or and the OPE in certain locations

• The Department of Health and Human Services’

Ofﬁ ce of Refugee Resettlement (DHHS/ORR),

which provides resettlement assistance to

arriving refugees.

Eligibility and Criteria for Resettlement as a

Refugee

To be eligible for refugee status applicants must:

• Be among the refugees determined by the

esident to be of special humanitarian concern

to the U.S.

• Meet the deﬁ nition of a refugee contained in

Section 101(a)(42) of the Immigration and

Nationality Act (INA)

• Not be ﬁ

rmly resettled in a third country

• Be otherwise admissible under U.S. law.

Quota

An annual refugee admissions ceiling is established

each fiscal year by the President, in consultation

with Congress.

In ﬁ scal year 2009, total refugee

admissions are designated at 80,000, of which 75,000

refugee admissions are allocated to various regions of

the world.

13 The process leading to that annual determination was established

by the Refugee Act of 1980, incorporated into section 207 of

the INA. Following the consultation process, and after receipt

of congressional concurrence with the President’s proposal, the

DOS drafts a Presidential Determination for signature by the

President, which formally authorises overall admissions levels and

regional allocations for the ﬁ scal year.

14 Unallocated slots typically go unused but are available should

there be a shortfall in a particular region during the course of a year.

Priorities

During the consultation process on the annual quota,

processing priorities are established in order to outline

the groups of refugee applicants that will be eligible for

consideration for resettlement. There are currently three

priorities or categories of cases eligible for resettlement

consideration through the USRAP:

• Priority 1 – Individual cases referred to the

ogramme by reason of their circumstances

and apparent need for resettlement. UNHCR,

a U.S. embassy, or a designated NGO may

identify and refer cases to the programme

• Priority 2 – Groups of cases within certain

nationalities designated as having access to the

programme by reason of their circumstances

and apparent need for resettlement

• Priority 3 – Individual cases from eligible

nationalities granted access for purposes

of reuniﬁ cation with anchor family members

already in the United States.

Procedures

OPEs are international organisations or non-

governmental organisations under cooperative

agreement with DOS which carry out administrative

and processing functions for the refugee programme.

OPEs conduct an initial screening of refugee applicants

to collect biographic information and an account of

the applicant’s claim of persecution or fear of future

harm. After the initial pre-screening is completed, all

forms are prepared, and required name checks are

requested by the OPE and USCIS conducts refugee

eligibility interviews with the applicants.

Decisions

Eligibility for refugee status is decided on an individual,

case-by-case basis. A USCIS officer conducts a

personal interview with the applicant that is non-

adversarial and designed to elicit information on the

applicant’s claim for refugee status, to verify family

relationships, and to identify possible activities that

might render the applicant ineligible for refugee status.

During a refugee interview, an ofﬁ cer conﬁ rms the basic

biographic data of the applicant and his or her relatives

and, inter alia, determines whether the applicant has

suffered past persecution or has a well-founded fear

of future persecution on the basis of one of the ﬁ ve

grounds of the 1951 Convention, and assesses the

credibility of the applicant. USCIS ofﬁ cers also conﬁ rm

that required security checks have been completed for

every applicant and the results of these checks are

analysed and reviewed prior to approval.

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USA

If found by USCIS to be eligible for refugee status, the

applicant’s case is returned to the OPE for continuation

of processing, including medical screening, sponsorship

assurances, cultural orientation and scheduling for

onward travel to the United States.

There is no appeal for a denial of an application for

refugee status. USCIS may exercise its discretion to

review a case upon timely receipt of a request for review

from the principal applicant. The request must include

one or both of the following:

• A detailed account explaining how a signiﬁ cant

err

or was made by the adjudicating ofﬁ cer

• New information that would merit a change in

the determination.

USCIS will only accept one r

equest that is postmarked

or received by USCIS within 90 days from the date of

the denial.

5.1.2. At Ports of Entry

Persons who make an application for asylum at a port of

entry may be paroled into the U.S. to ﬁ le an application

under the normal in-country asylum procedure, or they

may be subject to an accelerated procedure (credible

fear process). Each process is described below.

5.1.3. Inside the Territory

Responsibility for Processing the Claim

The Safe Third Country Agreement (STCA)

Application and Procedure

The Safe Third Country Agreement between Canada

and the United States came into effect on 29 December

2004.

The Agreement afﬁ rms the commitment of Canada and

the U.S. to share responsibility with respect to refugee

claims. Under the Agreement, a refugee claimant

must seek protection in the country (Canada or the

U.S.) where he or she ﬁ rst has the opportunity to do

so, unless he or she qualiﬁ es for an exception. The

agreement applies to individuals making asylum claims

at a land border port of entry on the U.S.-Canadian

border or persons in transit through one country while

being removed from the other.

There are ﬁ ve exceptions to the Agreement:

• Canadian citizenship or habitual residency in

Canada if stateless

• Unaccompanied minor

• Family members with lawful status other than

non-immigrant or asylum applicant age 18 or

older

• Validly issued visa or no visa if none required

• Public interest or discretionary.

If asylum-seekers qualify for one of these exceptions

they ar

e placed in the credible fear asylum process,

described below.

Freedom of Movement/Detention

Persons subject to the agreement may be detained

while USCIS determines which country is responsible

for the claim. Persons may also be detained after a

decision has been made to return the person to the

country responsible for the asylum application.

Conduct of Transfers

U.S. Immigration and Customs Enforcement (ICE) is

generally responsible for the transfer of persons to

Canada where their entry has been barred by the STCA.

Review/Appeal

Supervisory Asylum Officers and USCIS Asylum

Division Headquarters review all cases subject to the

STCA. Persons subject to the Agreement may not

appeal the decisions and decisions are not reviewed

by immigration judges.

Application and Admissibility

Admissibility

To be eligible for asylum in the United States, an

applicant must ask for asylum at a port of entry or ﬁ le

an asylum application within one year of his or her last

arrival in the United States, unless there are changed

circumstances that materially affect his or her eligibility

for asylum or extraordinary circumstances relating to

the delay in ﬁ ling.

Bars to Applying for Asylum

An asylum-seeker is barred from applying for asylum

under section 208(a)(2) of the INA under the following

circumstances:

• The person failed to ﬁ

le an asylum claim within

one year of his or her last arrival in the U.S.,

unless he or she demonstrates either the

existence of changed circumstances which

materially affect his or her eligibility for asylum

or extraordinary circumstances relating to the

delay in ﬁ ling (8 CFR § 208.4)

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• The person previously applied for asylum and was

refused by an immigration judge or the Board of

Immigration Appeals, unless he or she establishes

the existence of changed circumstances

materially affecting asylum eligibility

• The person can be removed to a safe third

country pursuant to a bilateral or multilateral

agreement (currently only Canada).

Changed circumstances (8 CFR § 208.4(a)(4)) may

include the following:

• Changes in conditions in the applicant’s country

of origin

• Changes in the applicant’s circumstances that

materially af

fect his or her eligibility for asylum,

including changes in U.S law and activities he

or she becomes involved in outside the country

of origin

• Loss of the spousal or parent-child relationship

to the principal applicant thr

ough marriage,

divorce, death, or attainment of age 21.

Extraordinary circumstances (8 CFR § 208.4(a)(5)) as

they relate to a delay in ﬁ ling the asylum claim may

include the following:

• Serious illness or mental or physical disability

• Legal disability during the ﬁ

rst year after arrival

• Ineffective assistance of counsel

• The applicant has maintained Temporary

otected Status (TPS) or lawful immigrant

or non-immigrant status, or was given parole

until a reasonable period before the ﬁ ling of the

application

• A timely filing that was rejected for being

incomplete and that was r

efiled within a

reasonable period of time after being returned

for correction

• Death, serious illness, or incapacity of the

applicant’

s legal represenative or a member of

the applicant’s immediate family.

Accelerated Procedures

Undocumented Asylum-Seekers at Ports-of-

Entry

When asylum-seekers arrive at ports-of-entry without

valid travel documents, they are subject to expedited

removal without a hearing before an Immigration Judge.

If they express a fear of return or an intention to apply

for asylum, they are referred by a CBP or ICE ofﬁ cial

to a USCIS asylum ofﬁ cer for a screening interview.

The aim of the screening interview is to determine if

the asylum-seeker has a credible fear of persecution

or torture.

At this stage of the process, the Asylum

Ofﬁ cer does not consider any “bars” (i.e., grounds for

exclusion) to asylum.

If USCIS determines that a credible fear of persecution

or torture exists, the asylum-seeker is referred to an

immigration judge for a full hearing on the merits during

the course of removal proceedings. If USCIS does not

ﬁ nd a credible fear and the immigration judge sustains

the negative determination, the asylum-seeker is

ordered removed.

Normal Procedure

Asylum-seekers making claims at the border or inside

the U.S. can follow one of two types of procedures:

afﬁ rmative or defensive.

Afﬁ rmative Procedure

Persons who are physically present in the United States,

regardless of how they arrived and regardless of their

current immigration status, may apply for asylum through

the afﬁ rmative procedure. They make an asylum claim

“afﬁ rmatively” by submitting an application to USCIS.

Application

When an asylum-seeker is eligible to apply for asylum

under INA §208(a), he or she then ﬁ les an application

form, Form I-589, “Application for Asylum and for

Withholding of Removal,” at the USCIS Service Center

with jurisdiction over his or her place of residence.

Applicants 12 years and eight months of age and

older must have their ﬁ ngerprints taken at a USCIS

Application Support Center. At that time, the applicant’s

photograph and signature is captured. The ﬁ ngerprints

are automatically submitted for checks against U.S.

criminal and immigration databases.

Interview

An afﬁ rmative asylum applicant is interviewed by USCIS

within 43 days of ﬁ ling the application. The applicant

is interviewed by an asylum officer at one of eight

asylum ofﬁ ces or at another USCIS ﬁ eld ofﬁ ce if the

applicant lives a far distance from the asylum ofﬁ ce with

jurisdiction. The interview is non-adversarial. The asylum

ofﬁ cer veriﬁ es the asylum-seeker’s identity, records

basic biographical information, and elicits detailed

information regarding the applicant’s claim for asylum.

15 An asylum-seeker has a credible fear where there is a signiﬁ cant

possibility, taking into account the credibility of the statements

made by the person and other facts known to the ofﬁ cer, that the

asylum-seeker can establish eligibility for asylum or withholding of

removal (based either on a persecution or a torture claim).

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USA

If the asylum-seeker fails to appear for the interview,

and does not provide USCIS with a written explanation

within 15 days of the date of the scheduled interview,

the case will be either referred to the Immigration Court

(for those without legal status) or will be administratively

closed. The Asylum Ofﬁ ce Director has discretion to

reschedule the interview if the asylum-seeker provides

a reasonable explanation for his or her failure to appear.

The applicant’s spouse and children under the age of

21 who are included in the application must also appear

for the interview.

The asylum-seeker must bring the following documents

to the interview:

• Identity documents, including any passport(s),

other travel or identiﬁ

cation documents, or an

Arrival-Departure Record (Form I-94)

• The originals of any birth certiﬁ cates,

marriage

certiﬁ cates, or other documents the asylum-

seeker previously submitted with Form I-589

• A copy of his or her Form I-589 and other

supplementary material that he or she pr

eviously

submitted

• Any additional available items documenting the

asylum claim.

Defensive Procedure

Asylum-seekers enter the defensive asylum procedure

– in other words, they make a claim for asylum as a

defence against removal from the United States – in

one of the following circumstances:

• Through referral by an Asylum Ofﬁ

cer of USCIS

when the asylum claim is refused following an

afﬁ rmative procedure

• After being placed in removal proceedings for

immigration violations, or

• By trying to enter the U.S. at a port-of-entry

without pr

oper documents and having been

found to have a credible fear of persecution or

torture.

The asylum-seeker appears before an immigration judge

(IJ) with the Executive Ofﬁ ce for Immigration Review

(EOIR) in formal adversarial hearings. The IJ hears the

applicant’s claim along with any concerns about the

validity of the claim raised by the Government, which

is represented by an attorney.

Review/Appeal of the Normal Procedure

The immigration judge’s decision may be appealed

to the Board of Immigration Appeals (BIA), an agency

within the Department of Justice. The BIA’s decision

may then be appealed to the U.S. federal court system.

Freedom of Movement during the

Normal Procedure

Asylum-seekers subject to the afﬁ rmative procedure

and those referred to an immigration judge by USCIS

are generally free to live in a place of their choosing

in the U.S. pending the completion of the asylum

procedure.

If an asylum-seeker wishes to travel outside the country

during the procedure, he or she must receive advance

permission (Advance Parole) from USCIS before leaving

the United States.

Detention

Some asylum-seekers may be detained at certain

points during the asylum procedure. Asylum-seekers

without proper documentation who are apprehended

by immigration ofﬁ cials at a U.S. port-of-entry and are

not found to have a credible fear of persecution are kept

in detention until their removal from the United States.

Asylum-seekers who are found to have a credible fear and

are placed in the defensive procedure may be considered

for discretionary release by ICE Detention and Removal

Ofﬁ cers pursuant to standardised parole guidelines.

Reporting

The asylum-seeker has an obligation to inform USCIS

or the Immigration Court within 10 days of a change

of address. The applicant should separately notify the

Asylum Ofﬁ ce of a change of address at any time during

the afﬁ rmative procedure.

Repeat/Subsequent Applications

Afﬁ rmative Procedure

An asylum-seeker can reapply after the issuance

of a ﬁ nal denial by an asylum ofﬁ ce, the dismissal

of a motion to reopen and reconsider (MTR) or the

withdrawal of a previous application, provided that he

or she is not under the jurisdiction of the Immigration

Court. The asylum-seeker will still be subject to the

one-year ﬁ ling deadline for applications. In addition,

the previous adjudication by the asylum ofﬁ cer will be

considered in the adjudication of any repeat application.

Defensive Procedure

An asylum-seeker who was previously denied asylum

by EOIR is prohibited from ﬁ ling a new application for

asylum, unless there are changed circumstances which

materially affect the applicant’s asylum eligibility. In

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addition, a new application can be ﬁ led with USCIS only

where EOIR no longer has jurisdiction over the case.

5.2 Safe Country Concepts

5.2.1. Safe Country of Origin

There is no safe country of origin provision in the U.S.

process.

5.2.2. First Country of Asylum

Asylum applicants who are found to have been “ﬁ rmly

resettled” in another country prior to their arrival in

the U.S. are ineligible for asylum. An applicant is

considered to be ﬁ rmly resettled if, prior to his or her

arrival in the United States, he or she entered another

country with, or while in that country received, an offer

of permanent resident status, citizenship, or some other

type of permanent settlement. An individual will not be

considered “ﬁ rmly resettled” if:

• The applicant establishes that his or her entry

into that nation was a necessary consequence

of his or her ﬂ

ight from persecution, that he or

she remained in that nation only as long as was

necessary to arrange onward travel, and that

he or she did not establish signiﬁ cant ties in

that country, or

• The applicant establishes that the conditions

of his or her residence in that nation were so

substantially and consciously restricted by the

authority of the country of refuge that he or she

was not in fact resettled. In making his or her

determination, the asylum ofﬁ cer or immigration

judge considers the conditions under which other

residents of the country live, the type of housing

made available to the refugee, whether permanent

or temporary, the types and extent of employment

available to the refugee, and the extent to which

the refugee received permission to hold property

and to enjoy other rights and privileges.

5.2.3. Safe Third Country

The U.S. applies the Safe Third Country Agreement with

Canada, as described above.

5.3 Special Procedures

5.3.1. Unaccompanied Minors

Asylum Procedure

The USCIS Asylum Division has put in place a number

of procedures in recent years in order to address

the special concerns that arise with minor principal

applicants for asylum.

The predecessor to USCIS, the Immigration and

Naturalization Service, in 1998 issued Guidelines for

Children’s Asylum Claims, which provided guidance

particularly with regard to child-sensitive interview

procedures and analysis of common issues arising

in children’s asylum claims. Among other things, the

Guidelines suggest that a trusted adult may be present

at the interview to provide moral support to the minor

and that Asylum Ofﬁ cers should put the minor at ease

and explain the procedures and conduct the interview

in a way in which a young child can understand and

participate. Additionally, when an Asylum Ofﬁ cer weighs

the testimony of a minor, he or she is required to take

into account the child’s age, education, awareness of

past events, as well as the effect of past trauma when

evaluating whether the child’s testimony is credible or

whether the child has met his or her burden of proof.

In order to ensure that issues related to minors receive

proper attention, the Asylum Division provides training

on child-speciﬁ c procedures and law to new asylum

ofﬁ cers, and also requires that all cases ﬁ led by minor

principal applicants undergo quality assurance review at

the headquarters level. Additionally, in August 2007, the

Asylum Division issued a memorandum with updated

procedures for minor principal applicant claims. This

memorandum described a new mechanism to track

unaccompanied minors and provided guidance

concerning information to elicit in an asylum interview

with regard to the applicant’s care and custody and

parental awareness of the asylum application. The

Asylum Division also conducted a pilot project to

facilitate access to pro bono representation for

unrepresented unaccompanied minors.

The Department of Justice’s EOIR also has in place

a number of child-sensitive procedures. For the past

10 years, EOIR has trained immigration judges on

children’s issues with the help of experts from other

federal agencies and non-governmental organisations.

In addition, EOIR has issued guidelines for immigration

judges to create a child-friendly environment in the

immigration court, including special court dockets for

children, child-friendly courtroom modiﬁ cations, pre-

hearing courtroom orientations, and child-sensitive

questioning. Moreover, representatives of the EOIR

Legal Orientation & Pro Bono Program together

with immigration judges and other court staff have

worked closely with others inside and outside the

U.S. government to identify children in need of legal

assistance and to facilitate pro bono legal services.

Thanks to these partnership efforts, the large majority

of unaccompanied minors in government custody have

access to basic legal immigration programmes.

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USA

Care and Custody

The Office of Refugee Resettlement (ORR) at the

Department of Health and Human Services has

statutory authority over the custody and care of

unaccompanied minors (UAMs). ORR is responsible

for case management and provides accommodation,

health care, and education to UAMs.

5.3.2. Group-based Protection

There are no grounds in U.S. law upon which a

group may be granted asylum. However, under U.S.

regulations, an applicant may establish individual

eligibility for asylum if the applicant establishes that

there is a pattern or practice of persecution against

persons similarly situated to the applicant (i.e., a group)

and the applicant establishes his or her inclusion in, and

identiﬁ cation with, this group of persons.

Within the U.S. Refugee Admissions Program, Priority

Two (P-2) designations are used for speciﬁ c groups who

are of special humanitarian concern to the United States.

P-2 groups are designated by the Department of State

in consultation with USCIS, NGOs, UNHCR, and other

experts. Only those members of the speciﬁ cally identiﬁ ed

groups are eligible for processing under Priority Two.

Individuals within P-2 designations must still individually

establish eligibility for resettlement by meeting the

deﬁ nition of a refugee under INA section 101(a)(42).

5.3.3. Stateless Persons

Stateless persons are required to establish past

persecution and a well-founded fear in the country

determined to be their place of last habitual residence.

6 Decision-Making and

Statuses

Asylum-seekers under the afﬁ rmative and defensive

procedures are referred to as “asylees” once they are

granted protection according to the criteria set out in

the INA.

6.1 Inclusion Criteria

6.1.1. Convention Refugee

An asylum-seeker must ﬁ t the deﬁ nition of a refugee in

INA §101(a)(42)(A) in order to qualify for asylum.

16 8 CFR 208.13(b)(2)(c)(iii).

17 See the annexe to this chapter for examples of groups designated

P-2 under the Refugee Admissions Program.

Resistance to Coercive Population Control (CPC)

Program

The deﬁ nition of a refugee in INA § 101(a)(42) provides

that an asylum-seeker is deemed to have been

persecuted on account of political opinion if he or she

has been subject to the following:

• Forced abortion of a pregnancy

• Involuntary sterilisation

• Persecution for failure or refusal to undergo one

of the pr

ocedures above or for other resistance

to a coercive population control programme.

Applicants who express a well-founded fear that they

will be forced to undergo the procedures described

above or be subject to persecution for such failure,

refusal, or resistance may also be eligible for asylum.

Withholding of Removal under the 1951

Convention

Withholding of removal implements Article 33 of the

1951 Convention. To receive withholding of removal,

the person must demonstrate that his or her “life or

freedom” would be threatened on account of one of

the following grounds:

• Race

• Religion

• Nationality

• Membership in a particular social group

• Political opinion.

Withholding of r

emoval is speciﬁ c to the country of

removal and allows removal to a third country where

the individual would not be persecuted.

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Box 1:

U.S. Case Law: Eligibility Standards for Asylum

Two Supreme Court cases have had a substantial impact on eligibility standards for asylum. A third case with a

bearing on eligibility, INS v. Stevic, is described later in the chapter, under Withholding of Removal.

In INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987), the Supreme Court held that the well-founded fear standard

used in the asylum context is more generous than the “more likely than not” standard used for withholding of

removal. The well-founded standard is satisﬁ ed if the applicant shows that there is a “reasonable possibility” of

persecution, noting that “[o]ne can certainly have a well-founded fear of an event happening when there is less

than a 50% chance [the withholding of removal standard] of the occurrence taking place.”

In INS v. Elias-Zacarias, 502 U.S. 478 (1992), the Supreme Court clariﬁ ed that to qualify as persecution on account

of one of the ﬁ ve protected grounds, the persecution must be on account of the victim’s protected characteristic,

or one attributed to the applicant, rather than the persecutor’s. Additionally, the Supreme Court held that forced

recruitment by guerrillas and harm for refusing to join or cooperate with guerrilla forces do not, per se, constitute

persecution on account of a protected ground. Guerrilla forces may recruit for reasons unrelated to a protected

ground, such as the need to increase their ranks.

The BIA, the administrative adjudicatory appeals body responsible for immigration matters, has also played a key

role in determining legal standards relating to asylum and withholding of removal. In Matter of Acosta, 19 I&N Dec.

211 (1985), for instance, it held that persecution means harm or suffering inﬂ icted upon a person in order to punish

him for possessing a belief or characteristic a persecutor seeks to overcome, and does not encompass the harm that

arises out of civil or military strife in a country. It also concluded that “persecution on account of membership in

a particular social group” refers to persecution that is directed toward a person who is a member of a group of

persons, all of whom share a common, immutable characteristic, that is, a characteristic that either is beyond the

power of the individual members of the group to change or is so fundamental to their identities or consciences that

it ought not to be required to be changed.

In Matter of Mogharrabi, 19 I&N Dec. 439 (1987), the Board held that an asylum applicant has established a well-

founded fear of persecution if a reasonable person in his or her circumstances would fear persecution.

The Board has recently published a number of decisions regarding the interpretation of the particular social group

ground. In 2006, the BIA held that in order for a group to constitute a particular social group, in addition to the

group’s characteristics being immutable or fundamental, the group must have social visibility in society. Matter of

C-A-, 23 I&N Dec. 951 (BIA 2006). The following year, in Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007), the

BIA considered the application of the social visibility test, and also examined whether the group could be deﬁ ned

with sufﬁ cient particularity to delimit the membership.

The BIA recently examined proposed particular social groups based on current or past gang membership, imputed

gang membership, and resistance to gang membership, ﬁ nding that all three proposed groups were not particular

social groups for asylum purposes.

1 Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008).

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USA

Box 2:

U.S. Case Law: Eligibility for Withholding

of Removal

In INS v. Stevic, 467 U.S. 407 (1984), the Supreme Court

held that to establish eligibility for withholding

of removal (i.e. non-refoulement), there must be

evidence establishing that it is more likely than not

that the applicant would be persecuted or tortured

in the country of removal. The Supreme Court held

that this “clear probability” standard was different

from the “well-founded fear” standard used for

asylum adjudications, but declined to interpret

the latter. See discussion above on INS v. Elias-

Zacarias, 502 U.S. 478 (1992), for the Court’s later

interpretation of the well-founded fear standard.

6.1.2. Complementary Forms of

Protection

Complementary protection is granted outside of the

afﬁ rmative asylum procedure. However, an application

for asylum in the defensive procedure, raised as a

defence to removal, is simultaneously an application

for withholding of removal and protection under both

the Refugee Convention and the Convention against

Torture (CAT).

Protection under Article 3 of the CAT may be granted

in one of two forms: either withholding of removal,

which allows the person to remain in the U.S. with work

authorisation until such time as an immigration judge

terminates the status, or, in cases where the applicant is

ineligible for withholding of removal, deferral of removal,

which does not lead to any lawful or permanent status

in the U.S. or necessarily result in the person’s release

from detention.

6.2 The Decision

Afﬁ rmative Procedure

At the completion of their asylum interviews, asylum

applicants receive a notice

informing them of the next

steps in the asylum process and the date and time that

the applicant is to return to the ofﬁ ce to receive the

decision. Asylum applicants then receive the decision

in person within two weeks of the interview. In some

circumstances, such as for persons in valid immigration

status or following an applicant’s failure to appear at

the pick-up appointment, the decision will be sent

by mail. The decision letters are translated into ten

languages, including Spanish, French, Chinese, Haitian

18 This notice has been translated into the ten languages most

commonly spoken by asylum applicants.

Creole, Arabic, Russian, and Amharic. USCIS does not

issue ﬁ nal decisions to grant asylum until background

security checks are complete. If a case is not granted

and referred to the immigration court, the security

checks must have been initiated, at a minimum.

Under the affirmative procedure, asylum officers

record asylum decisions in a written assessment that

is supported by interview notes and information on

country conditions as well as any documentation or

other information provided by the asylum applicant.

A Supervisory Asylum Officer (SAO) reviews the

decision before it is issued. Certain cases require

quality assurance review by the Asylum Division

Headquarters.

Defensive Procedure

Under the defensive procedure, immigration judges (IJs)

of the Executive Ofﬁ ce for Immigration Review (EOIR)

are responsible for making decisions on asylum claims.

Decisions by the Immigration Judge are recorded. The

decision may be rendered orally accompanied by a

written summary order or it may be issued in writing.

If an oral decision is appealed to the BIA, the record of

the hearing and oral decision are transcribed. Decisions

of the BIA are provided to the parties in writing.

6.3 Types of Decisions, Status

and Beneﬁ ts Granted

Under the afﬁ rmative procedure, an Asylum Ofﬁ cer may

make one of the following decisions:

• Grant of asylum: The applicant is provided with

the date on which he or she is consider

ed to be

an “asylee” and information about eligibility for

certain beneﬁ ts

• Recommended approval: The applicant receives

Recommended Appr

oval when USCIS has

made a preliminary determination to grant him

or her asylum but USCIS has not yet received

complete results of an investigation on the

applicant’s identity and background. These

decisions are rare under existing procedures

• Referral to an immigration court: If the USCIS

determines that the applicant is not eligible for

asylum and he or she has no legal status in the

United States, the asylum-seeker is placed in

removal proceedings before an immigration

judge

• Notice of Intent to Deny (NOID): If the USCIS

decides that the applicant is not eligible for

asylum and he or she is in lawful status, he or

19 In addition, quality assurance/training ofﬁ cers in each asylum

ofﬁ ce will conduct random reviews of cases for quality.

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she will receive a Notice of Intent to Deny (NOID)

explaining the reasons he or she has been found

ineligible for asylum. The applicant will be given

16 days to provide a response before the ﬁ nal

decision is made

• Final denial: An applicant who receives a

Notice of Intent to Deny (NOID) will be sent a

Final Denial letter if he or she fails to submit a

rebuttal to the NOID within the time limit, or the

applicant submits a rebuttal but the evidence or

argument offered fails to overcome the grounds

for denial as stated in the NOID. The applicant

cannot appeal the decision.

Under the defensive procedure, an Immigration Judge

may make one of the following decisions:

• Grant asylum

• Deny asylum; because the immigration judge will

also hear the applicant’

s claim for withholding

of removal under the 1951 Convention or the

Convention against Torture, the immigration

judge may deny asylum but grant another form

of protection (e.g., withholding of removal).

Beneﬁ ts

An asylee is entitled to the following beneﬁ ts:

• Authorisation to work, incident to status

• Employment assistance, including job search

assistance, car

eer counselling, and occupational

skills training

• Needs-based public beneﬁ

ts, including medical

care, cash assistance, housing assistance, and

food stamps

• HHS-funded benefits, including refugee

cash and medical assistance, employment

preparation and job placement, and English

language training

• Post-secondary educational loans and grants

• Ability to petition to have his or her spouse or

unmarried child under 21 years of age join him

or her in the United States

• An unrestricted Social security card

• Eligibility to apply for adjustment of status to

lawful permanent r

esidence after one year of

residence in the United States following the

grant of asylum.

Withholding of Removal

Withholding of removal allows the individual to remain

in the U.S. with work authorisation until such time as

an immigration judge terminates the status. This form

of protection cannot lead to permanent status within

the U.S. and does not allow the individual to petition

for relatives to join him or her in the U.S.

6.4 Exclusion

6.4.1. Refugee Protection

The Asylum Ofﬁ cer or immigration judge considers

whether any mandatory bars to eligibility for asylum

apply during the asylum procedure. An asylum seeker

will be barred from a grant of asylum pursuant to INA §

208(b)(2) if it is determined that he or she is responsible

for the following:

• Ordered, incited, assisted, or otherwise

participated in the persecution of any person

on account of race, religion, nationality,

membership in a particular social group, or

political opinion (note that this exclusion is also

part of the deﬁ nition of a refugee at INA § 101(a)

(42))

• Was convicted of a particularly serious crime

such that he or she is a danger to the U.S.

(including an “aggravated felony” as deﬁ ned

under INA § 101(a)(43))

• Committed a serious non-political crime outside

the United States

• Poses a danger to the security of the United

States, or

• Has been ﬁ rmly resettled in another country

prior to arriving in the United States (see 8 CFR

§ 208.15 for a deﬁ nition of “ﬁ rm r

esettlement”).

An asylum-seeker will also be barred from a grant of

asylum under INA § 208 if he or she is described in the

terrorism- and national security-related grounds at INA

§§ 212(a)(3)(B) or (F) or INA § 237(a)(4)(B) because of

the following:

• The person has engaged in terrorist activity

• The person has engaged in or is likely to engage

after entry in any terrorist activity (a consular ofﬁ cer

or the Attorney General knows, or has reasonable

grounds to believe, that this is the case)

• The person has, under any circumstances

indicating an intention to cause death or serious

bodily harm, incited terrorist activity

• The person is a representative of: (a) terrorist

ganisation, or (b) a political, social, or other

similar group that endorses or espouses terrorist

activity, unless the Secretary of Homeland

Security or the Attorney General determines

there are not reasonable grounds for regarding

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the applicant a danger to the security of the

United States

• The person is a member of a terrorist organisation

designated under section 219 of the INA (Tier I)

or otherwise designated thr

ough publication in

the Federal Register under INA section 212(a)

(3)(B)(vi)(II) (Tier II)

• The person is a member of an undesignated

terr

orist organisation described in INA section

212(a)(3)(B)(vi)(III) (Tier III), unless he or she can

demonstrate by clear and convincing evidence

that he or she did not know, and should not

reasonably have known, that the organisation

was a terrorist organisation

• The person endorses or espouses terrorist

activity or to persuade others to endorse or

espouse terrorist activity or support a terrorist

organisation

• The person has received military-type training,

which is deﬁ

ned at 18 U.S.C. § 2339D(c)(1) to

include “training in means or methods that can

cause death or serious bodily injury, destroy or

damage property, or disrupt services to critical

infrastructure, or training on the use, storage,

production, or assembly of any explosive,

ﬁ rearm or other weapon, including any weapon

of mass destruction…” from or on behalf of any

organisation that, at the time the training was

received, was a terrorist organisation

• The person is the spouse or child of a person

who is inadmissible under this subparagraph,

if the activity causing the person to be found

inadmissible occurred within the last ﬁ ve years.

To qualify as a “child,” the individual must be

unmarried and under 21 years of age.

Under section 212(d)(3)(B)(i) of the INA, the Secretary of

Homeland Security, in consultation with the Secretary

of State and the Attorney General, or the Secretary of

State, in consultation with the Secretary of Homeland

Security and the Attorney General, may conclude in

his or her sole unreviewable discretion to not apply

certain of the terrorist-related grounds of inadmissibility

at section 212(a)(3)(B) of the INA. The Secretary of State

does not have jurisdiction to grant an exemption to a

terrorist-related ground of inadmissibility once removal

proceedings have commenced against the person.

Thus far, the Secretaries have exercised their authority

to grant exemptions in four broad categories of cases:

• For those who voluntarily provided material

support to ten speciﬁ

c named groups

• For those who provided material support under

dur

ess to terrorist organisations designated by

the U.S. government pursuant to section 212(a)

(3)(B)(vi)(I) or (II) of the INA

• For those who provided material support under

dur

ess to an undesignated terrorist organisation

pursuant to section 212(a)(3)(B)(vi)(III) of the INA

• For those persons who engaged in certain

activities or associations with one of the ten

named groups referenced above, but who did

not beneﬁ t from the automatic relief provisions

of the Consolidated Appropriations Act of 2009

(CAA), referenced below.

On 26 December 2007, Congress exempted the ten

groups from the deﬁ nition of “terrorist organisation”

for activities occurring prior to the date of enactment

of the CAA.

For those immigration benefits adjudicated by the

Department of Homeland Security (such as asylum,

refugee status, and permanent residence), the Secretary

of Homeland Security has directed that USCIS, in

consultation with ICE, will adjudicate all exemptions.

No formal application is required of the person. The

adjudicating ofﬁ cer makes an exemption determination

during the regular processing of the case. The ofﬁ cer

records his or her determination on a worksheet which is

reviewed by at least one supervisor if involving voluntary

activities such as activities or associations involving the

ten named groups in CAA, or two levels of supervisors

for those exemptions where the person claims to have

provided material support to a terrorist organisation

under duress. Additionally, for those foreign nationals

in removal proceedings and subject to the jurisdiction

of the EOIR, all exemption determinations will be made

by USCIS, in consultation with ICE.

Each exemption determination is made based on the

totality of the circumstances and subject to the person

passing required security checks. Once a decision is

made whether to apply the exemption with respect

to a particular applicant that decision will continue

to apply in other beneﬁ t adjudications involving that

applicant, unless additional information comes to light

or circumstances change so that a reconsideration of

the applicability of the exemption is warranted.

Withholding of Removal (Non-refoulement)

An applicant is ineligible for withholding of removal if he

or she falls in one of the following categories:

• The applicant has ordered, incited, assisted

or otherwise participated in the persecution of

others

• The applicant has been convicted of a particularly

serious crime, and constitutes a danger to

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the community (any crime with a sentence of

imprisonment of ﬁ ve years or more is deemed

necessarily to constitute a particularly serious

crime although crimes with lesser sentences

may also qualify as such)

• There are serious reasons to believe the

applicant committed a serious, non-political

crime before entering the country

• There are reasonable grounds to believe the

applicant is a danger to the community (this

is deﬁ ned to include anyone who meets the

terrorist bars outlined above).

6.4.2. Complementary Protection

Protection under the Convention Against

Torture

Consistent with Article 3 of the Convention Against

Torture, there are no bars for those persons eligible

for such relief. A person who is barred from receiving

withholding of removal but has established that it is

more likely than not that he or she would be tortured

will receive “deferral of removal.”

6.5 Termination of Asylum

Status

Under U.S. law, asylum status may be terminated for

the following reasons:

• There is evidence of fraud in the asylee’s

application such that he or she was not eligible

for asylum at the time it was granted

• The asylee no longer meets the deﬁ nition of

a r

efugee due to a fundamental change in

circumstances

• The asylee is a persecutor, a danger to the

security of the United States, inadmissible

under terrorist grounds, or ﬁ rmly resettled in

another country; or the asylee was convicted of

a particularly serious crime or there are serious

reasons to believe that the asylee committed a

serious non-political crime outside the United

States

• The asylee may be removed pursuant to a safe

thir

d country agreement

• The asylee voluntarily re-availed himself or

herself of the pr

otection of the country of feared

persecution by returning to such country with

the reasonable possibility of obtaining or having

obtained permanent resident status with the

same rights and obligations of other permanent

residents of the country

• The asylee has acquired a new nationality and

enjoys the pr

otection of that country.

If USCIS granted the asylum status, the asylum ofﬁ ce

may terminate the status after providing the asylee an

opportunity to rebut the grounds for termination during

an interview with an asylum ofﬁ cer. USCIS must then

establish by a preponderance of the evidence that one

or more grounds for termination applies. If the asylum

status is terminated and the individual is subject to a

ground of inadmissibility or deportability, the individual

will be placed in removal proceedings.

If an asylum-seeker was granted asylum by an

Immigration Judge, ICE may seek termination of asylum

status by ﬁ ling a motion with the judge to reopen the

case to terminate asylum. In that case, ICE must provide

evidence that was previously unavailable.

Box 3:

U.S. Case Law: Exclusion from Asylum/Withholding of Removal

In the recent case of Negusie v. Holder, 467 U. S. 837 (2009), the Court found that the BIA had incorrectly assumed

the Court’s earlier decision in Fedorenko v. United States, 449 U.S. 490 (1981), which interpreted a different statutory

provision, to be controlling on the question of whether a person who, under duress, participates in persecution

of any person on account of that person’s race, religion, nationality, membership in a particular social group, or

political opinion is nevertheless barred from asylum and withholding of removal. The Court remanded the case to

the BIA to let the administrative agency determine, in the ﬁ rst instance, whether the persecutor bar in the refugee

deﬁ nition applies irrespective of the voluntariness of the person’s participation in persecutory acts.

In INS v. Aguirre-Aguirre, 526 U.S. 415 (1999), the Court held that a lower court was incorrect in balancing the risk

of potential harm to the applicant against the seriousness of a crime committed by the applicant prior to his or her

arrival in the U.S. in determining whether that crime amounts to a serious, non-political crime and thereby precludes

the applicant from eligibility for withholding of removal. The Court also held that even if the crime was committed

out of genuine political motives, it should be considered a serious non-political crime if the act is disproportionate

to the objective, or if it is of an atrocious or barbarous nature.

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USA

6.6 Support and Tools for

Decision-Makers

6.6.1. Country of Origin Information

The Country of Origin Information Research Section

(COIRS), formerly known as the “Resource Information

Center,” provides the USCIS Asylum Ofﬁ cer Corps with

credible and objective information on human rights and

country conditions in order that asylum applicants’

claims may be adjudicated in a timely manner. The

team employs senior Asylum Ofﬁ cers who conduct

research on the situation in countries of origin. In

addition, as DHS’s primary research body on human

rights related issues, the Asylum Division COI Research

Section assists other components of USCIS and DHS

with research needs in related areas.

The USCIS Asylum Division Staff have access to COI

via the Resource Information Center (RIC) – a hard copy

library of more than 100 serials and other publications

and an electronic collection of COI on the Asylum Virtual

Library (AVL). The AVL collection consists of material

generated by governmental and non-governmental

agencies, international organisations, human rights

advocacy groups, academia, and general news media.

The electronic COI collection within the AVL is a full text-

searchable repository of asylum reference documents

and other research databases accessible by asylum

staff nationwide.

The COI research staff assists in training new asylum

officers during the Asylum Officer Basic Training

Course, as well as liaises with the Asylum Division’s

eight ﬁ eld ofﬁ ces to train asylum staff on research of

country conditions and human rights information. It

serves as a resource to ﬁ eld ofﬁ ce staff, providing

technical assistance, information dissemination, and

ﬁ elding asylum research related questions.

6.6.2. Procedures Manuals

The Asylum Division has procedures manuals for the

affirmative asylum and credible fear adjudications.

Additionally there are written procedures to guide

asylum staff on how to conduct identity and security

checks. These manuals are issued by Asylum Division

Headquarters and frequent updates are issued to the

ﬁ eld and posted to the Asylum Virtual Library. The

procedures for the adjudication of afﬁ rmative asylum

applications are publicly available on the USCIS Internet

site.

6.6.3. Training Materials

The Asylum Division maintains a collection of 33 training

modules, the basis for instruction at the six-week

Asylum Ofﬁ cer Basic Training Course. These modules,

or “lesson plans,” not only provide instruction to new

officers on all aspects of the asylum adjudication,

including legal analysis, decision writing, and

interviewing skills. They also form the core of Asylum

Division guidance to all ofﬁ cers on the adjudication

of cases.The lesson plans are regularly updated and

distributed to all Asylum Division personnel.

7 Efﬁ ciency and Integrity

Measures

7.1 Technological Tools

7.1.1. Fingerprinting

Asylum-seekers aged 12 years and eight months and

older have their ﬁ ngerprints taken at an Application

Support Center. The fingerprints are sent to the

Federal Bureau of Investigation (FBI) for a background

security check, and a cleared response is required for

all applicants between 14 and 75 years of age. The

results of this check, as well as checks against other

DHS databases, are automatically reported back to the

Asylum Division.

7.1.2. DNA Tests

USCIS Field Ofﬁ ces may suggest DNA testing as a

means of establishing family relationship when other

forms of evidence have proven inconclusive and blood

parentage testing does not clearly establish the claimed

parental relationship. The petitioner has the burden of

proof when the evidence submitted has not satisﬁ ed

the evidentiary threshold and USCIS would otherwise

deny the petition without more conclusive evidence

such as that which DNA testing could provide. These

tests are rarely requested in the asylum programme.

7.1.3. Forensic Testing of Documents

For original documents voluntarily submitted by the

applicant, forensic examination may take place either

at the ICE Forensic Document Laboratory (FDL) or at

another DHS facility, such as a fraudulent document unit

or intelligence unit at a port-of-entry. Submission of a

document for analysis is done only where analysis of

such a document may affect the outcome of the decision.

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SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

Forensic testing of documents is frequently undertaken

in the asylum process when the Asylum Ofﬁ cer believes

the documents to be fraudulent or fraudulently obtained

or when the applicant admits the document is fraudulent

or has been fraudulently obtained.

7.1.4. Database of Asylum

Applications/Applicants

Data, including that of accompanying family members,

regarding affirmative asylum applicants and the

subsequent decisions are tracked in an electronic

case management system designed to assist the

Asylum Division in the administration of the asylum

adjudications programme.

7.1.5. Other Tools

A copy of the asylum application may be sent to

the Department of State (DOS) for comment or

other information. The asylum-seeker’s biographical

information is also sent to the FBI and other government

agency data sets for a background check, and USCIS

checks other law enforcement databases with the

asylum-seeker’s biographical information.

US-VISIT is a database that contains more than 80

million biometric indentifying records including DHS

criminal and national-security related information,

records of immigration-related encounters with USCIS,

DOS, and other agencies and DHS entry and exit

information. All asylum-seekers over the age of 14 are

enrolled into this system at the time of interview.

7.2 Length of Procedures

Asylum applications must be ﬁ led within one year of

the person’s arrival in the United States, subject to

exceptions, as described above. The USCIS Asylum

Division aims to adjudicate asylum applications within

60 days from the date a complete application was ﬁ led

with USCIS. The vast majority of asylum referrals are

adjudicated within this 60-day timeframe. Applicants

whose cases have been referred to the Immigration

Court receive a decision on their application within 180

days of the ﬁ ling date.

The Asylum Division has targeted a six-month cycle

measured in real time by the end of ﬁ scal year 2009,

meaning that cases must be completed within six

months of receipt or of being re-opened.

7.3 Pending Cases

At the end of ﬁ scal year 2008, which covers October

2007 through September 2008, there were 11,296

pending afﬁ rmative asylum applications.

7.4 Information Sharing

U.S. law prohibits the disclosure of information

contained in or pertaining to asylum applications,

except in certain circumstances. However, the U.S.

has entered into a formal agreement with Canada

to share case-speciﬁ c asylum information, including

applicants’ biometrics. The former U.S. Immigration

and Naturalization Service, the Department of State, and

the Department of Citizenship and Immigration Canada

have signed agreements that permit the exchange of

immigration-related information and records between

the governments of the United States and Canada. The

agreements permit both sides to share, systematically

or on a case-by-case basis, information on asylum-

seekers and asylees to the extent permitted by the

domestic laws of the U.S. and Canada.

U.S. law further provides that asylum-related

information may be disclosed to any element of the U.S.

Intelligence Community, or any other Federal or state

agency having counterterrorism functions, provided

that the need to examine the information or the request

is made in connection with its authorised intelligence

or counterterrorism function or functions and the

information received will be used for the authorised

purpose for which it is requested.

Box 4:

Cooperation with the UNHCR, NGOs

The UNHCR in the United States has a general

monitoring function and does not have a direct

role in the determination of individual cases. The

UNHCR may ﬁ le advisory opinions or amicus briefs

in particular asylum cases, but these are non-

binding on decision-makers.

With the cooperation of the United States

government, the UNHCR monitors detention

facilities and borders as resources allow. It shares

its ﬁ ndings and recommendations with the relevant

government agencies. The UNHCR Washington

ofﬁ ce also meets regularly with the leadership of

the various agencies whose policies may have an

impact on asylum-seekers and refugees.

Training from the UNHCR is a regular component

of the introductory courses for new asylum ofﬁ cers.

NGOs are involved in domestic resettlement activities

and, along with the International Organization for

Migration (IOM), in resettlement activities overseas.

IOM arranges travel to the United States for all

refugees. NGO resettlement agencies provide

refugees assistance with initial housing, furnishings,

clothing, food, health screenings, medical care, and

employment referral services.

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8 Assistance and

Reception Beneﬁ ts for

Asylum-Seekers

8.1 Procedural Support and

Safeguards

8.1.1. Legal Assistance

The asylum-seeker may have an attorney or

representative in proceedings before the asylum ofﬁ ce

or immigration court at his or her own expense.

8.1.2. Interpreters

USCIS does not provide interpreters during the

afﬁ rmative asylum interview; the asylum-seeker must

bring an interpreter if he or she does not speak English

ﬂ uently. In a case before an immigration judge, the

government provides an interpreter.

8.1.3. UNHCR

The address and telephone number of the UNHCR

ofﬁ ce in Washington, DC is on the instructions to the

U.S. asylum application, and UNHCR responds to

written and telephonic inquiries from asylum-seekers

and refugees in the United States, particularly those in

detention facilities. In response, UNHCR provides self-

help materials on the asylum process as well as contact

information for those NGOs who provide legal or social

services to asylum-seekers in the United States.

8.1.4. NGOs

In the asylum context, NGOs may facilitate access to

pro bono counsel for applicants, particularly those in

detention, and train pro bono volunteers on asylum law

and procedures. NGOs also provide legal assistance

to asylum-seekers by helping them prepare their

cases and representing them in afﬁ rmative asylum

interviews or proceedings before an Immigration Judge

or on appeal. In addition, NGOs coordinate with the

Asylum Ofﬁ ces to provide pro bono legal consultation

to applicants in the credible fear process.

8.2 Reception Beneﬁ ts

While the range of beneﬁ ts available to asylum-seekers

is minimal, asylees are eligible for beneﬁ ts and services

funded through the Ofﬁ ce of Refugee Resettlement.

In addition, asylees are eligible for the full range of

needs-based public beneﬁ ts provided by the federal

government.

8.2.1. Accommodation

Applicants for asylum may be eligible to live in federal

or state housing, though none is speciﬁ cally allotted

for those persons.

8.2.2. Social Assistance

Eligible asylum applicants may be entitled to obtain

certain forms of social assistance from federal, state,

and local governments in limited circumstances. There

is a wide variety of private relief programmes, some

of which are partially funded by the U.S. government,

available to asylum applicants that provide services

ranging from language instruction to free legal

representation. Generally, asylum applicants are

not eligible for most federal beneﬁ t programmes. In

contrast, persons granted asylum may be eligible.

8.2.3. Health Care

Asylum-seekers are eligible for emergency medical

services. Some states offer medical assistance to all

immigrants regardless of status.

8.2.4. Education

Public school education is free in the United States, and

it is available to all children under age 17.

8.2.5. Access to Labour Market

Asylum-seekers may apply for work authorisation

after their complete asylum application has been

pending for 150 days and no decision has been made

on their application. Applicants may also apply for

work authorisation after they receive a recommended

approval or ﬁ nal approval of asylum.

8.2.6. Family Reuniﬁ cation

Persons applying for asylum may include in their

application their spouse and children who are single

and under the age of 21, if those persons are in the

U.S. This stipulation is in place to ensure that the family

is permitted to stay together while the claim is being

adjudicated. Applicants may not petition USCIS to

bring their family members into the U.S. while their

claims are pending. After asylum-seekers have been

granted asylum they may ﬁ le a petition for their spouse

and unmarried children under 21 years old to join them

in the U.S. If the application is approved, the family

members may then travel to the U.S. as asylees and

join the applicant.

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8.2.7. Access to Beneﬁ ts by Rejected

Asylum-Seekers

Rejected asylum-seekers receive emergency health

care, access to primary and secondary education, and

work authorisation if they cannot be returned to all of

the countries listed by the asylum-seeker or because

the removal is otherwise impracticable or contrary to

the public interest.

9 Status and Permits

Granted Outside the

Asylum Procedure

9.1 Withholding of Removal

An application for asylum in the defensive procedure,

raised as a defence to removal, is simultaneously an

application for withholding of removal. This is described

in the section above on Decision-Making.

Deferred Enforced Departure (DED)

Deferred Enforced Departure (DED) is within the

President’s discretion to authorise and arises from his or

her power to conduct foreign relations. Although DED

is not a speciﬁ c immigration status, persons covered by

DED are not subject to enforcement actions to remove

them from the United States, usually for a designated

period of time.

When presidents have exercised discretion to provide

DED to a certain group of persons, they have generally

directed that Executive Branch agencies, such as the

Department of Homeland Security (DHS), take steps to

implement appropriate procedures to apply DED and

related beneﬁ ts, such as employment authorisation, to

those persons.

9.2 Temporary Protected Status

The Secretary of Homeland Security, after consultation

with the appropriate Government agencies, may

designate a country (or part thereof, such as certain

provinces or states) for Temporary Protected Status

(TPS) under the following circumstances:

• Ongoing armed conﬂ ict

• An environmental disaster, if the country

equests designation and is unable temporarily

to adequately handle the return of nationals, or

20 See 8 C.F.R. §274a.12(c)(18).

• The Secretary ﬁ nds that there are extraordinary

and temporary conditions in the country that

prevent return of nationals in safety.

An applicant for TPS must demonstrate the following:

• He or she is a national of a country designated

for TPS (or a person of no nationality who last

habitually r

esided in the country)

• He or she has continuously resided in the

United States as of the date established by the

Secr

etary and has been continuously physically

present in the United States as of the effective

date of designation

• He or she is admissible as an immigrant except

as pr

ovided under 8 CFR § 244.3

• He or she is not subject to one of the criminal,

security-r

elated, or other bars to TPS, and

• He or she applies for TPS beneﬁ ts within the

initial r

egistration period. 8 CFR § 244.2(f)(2)

allows for late initial registration for TPS in

certain circumstances.

During the period for which a country has been

designated for TPS, TPS beneﬁ ciaries may remain in

the United States and may obtain work authorisation.

However, TPS does not lead to permanent resident

status. When the Secretary determines that conditions

in the country no longer warrant TPS designation, he or

she terminates the designation. Once the termination

of TPS becomes effective, TPS beneﬁ ciaries return to

the immigration status that they held prior to obtaining

TPS (unless that status has since expired or been

terminated) or any status that they may have acquired

while registered for TPS.

A person is ineligible for TPS in one of the following

instances:

• He or she has been convicted of any felony or

two or mor

e misdemeanours committed in the

U.S.

• He or she is a persecutor, or is otherwise subject

to one of the bars to asylum

• He or she is subject to one or more bars based

on criminal activity or terr

orism.

9.3 Regularisation of Status over

Time

A person in removal proceedings who has been in the

U.S. continuously for at least ten years may be eligible

for a form of relief called “cancellation of removal” in

the following circumstances:

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USA

• The person has been a person of good moral

character during the ten-year period

• He or she has not been convicted of any crime

that r

enders him or her inadmissible, and

• He or she can establish that his or her removal

would r

esult in exceptional and extremely

unusual hardship to his or her spouse, parent

or child who is a citizen or lawful permanent

resident of the United States.

9.4 Regularisation of Status of

Stateless Persons

There are no speciﬁ c provisions in U.S. law to regularise

the status of stateless persons.

10 Return

10.1 Pre-departure Considerations

The U.S. does not have any speciﬁ c procedure for pre-

departure review for protection concerns for persons

ordered removed. A person may ﬁ le a Motion to Re-

open the case before the immigration court if there

is new, previously unavailable information that merits

consideration for protection.

10.2 Procedure

Returns of rejected asylum-seekers, as with all foreign

nationals ordered removed, are administered by ICE.

10.3 Freedom of Movement/

Detention

After being ordered removed, persons may be

detained until their removal from the United States.

ICE generally cannot detain foreign nationals for longer

than six months or if removal is no longer reasonably

foreseeable.

11 Integration

Asylees may be eligible to receive beneﬁ ts and services

through programmes funded by the U.S. Department

of Health and Human Services’ Office of Refugee

Resettlement (ORR). ORR funds and administers

various programmes that are run by states and by

private or non-proﬁ t organisations, NGOs, and voluntary

agencies throughout the U.S. ORR benefits and

services include refugee cash and medical assistance

21 See Zadvydas v. Davis, 533 U.S. 678 (2001).

(for up to eight months from date of final grant of

asylum), employment preparation and job placement,

and English language training. Persons granted asylum

under INA §208 either defensively or affirmatively

are eligible for ORR beneﬁ ts and services to the same

extent as refugees admitted under INA § 207.

Asylees and refugees are not subject to the ﬁ ve year

waiting period to apply for federal public benefits

and may apply for Food Stamps (now called SNAP),

TANF, Medicaid, and SSI upon admission to the U.S.

or grant of status. Asylees who are ineligible for TANF

are eligible for the Refugee Cash Assistance (RCA)

programme. Asylees who are ineligible for Medicaid

are eligible for the Refugee Medical Assistance (RMA)

programme.

Persons granted withholding of removal under the INA or

withholding or deferral of removal under the CAT are not

eligible for ORR beneﬁ ts and services by virtue of those

statuses alone. However, persons whose deportation is

being withheld under (1) §243(h) of the INA as in effect

prior to April 1, 1997, or (2) § 241(b)(3) of the INA, as

amended, may be eligible for other, non-ORR federal

beneﬁ ts. They might also qualify for ORR beneﬁ ts and

services, or other federal beneﬁ ts and services, through

a separate qualifying immigration status.

The USCIS Ofﬁ ce of Citizenship was created by the

Homeland Security Act of 2002 to foster immigrant

integration and participation in American civic culture.

The Ofﬁ ce of Citizenship works to promote education

and training on fundamental civic principles and the

rights and responsibilities of citizenship. The work of

the Ofﬁ ce of Citizenship is not speciﬁ c to refugees or

asylees. Ofﬁ ce of Citizenship initiatives include the

following:

• Developing educational products and

information r

esources to foster immigrant

integration and participation in American civic

culture

• Enhancing training initiatives to promote an

understanding of and appr

eciation for U.S. civic

principles and the rights and responsibilities of

citizenship

• Providing federal leadership on immigrant civic

integration issues.

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12 Annexe

12.1 Selections from the Immigration and Nationality Act

INA: ACT 101 - DEFINITIONS

(...)

(42) The term “refugee” means:

(A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality,

is outside any country in which such person last habitually resided, and who is unable or unwilling to return to,

and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a

well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group,

or political opinion, or

(B) in such circumstances as the President after appropriate consultation (as deﬁ ned in section 207(e) of this Act)

may specify, any person who is within the country of such person’s nationality or, in the case of a person having

no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a

well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group,

or political opinion. The term “refugee” does not include any person who ordered, incited, assisted, or otherwise

partcipated in the persecution of any person on account of race, religion, nationality, membership in a particular

social group, or political opinion. For purposes of determinations under this Act, a person who has been forced

to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to

undergo such a procedure or for other resistance to a coercive population control programme, shall be deemed

to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she

will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be

deemed to have a well founded fear of persecution on account of political opinion.

(...)

INA: ACT 208 – ASYLUM

(a) Authority to Apply for Asylum.-

(1) In general. - Any alien who is phy sically present in the United States or who arrives in the United States (whether

or not at a designated port of arrival and including an alien who is brought to the United States after having been

interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in

accordance with this section or, where applicable, section 235(b).

(2) Exceptions. -

(A) Safe third country. - Paragraph (1) shall not apply to a person if the Attorney General determines that the person

may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the person’s

nationality or, in the case of a person having no nationality, the country of the person’s last habitual residence) in

which the person’s life or freedom would not be threatened on account of race, religion, nationality, membership in

a particular social group, or political opinion, and where the person would have access to a full and fair procedure

for determining a claim to asylum or equivalent temporary protection, unless the Attorney General ﬁ nds that it is in

the public interest for the person to receive asylum in the United States.

(B) Time limit. - Subject to subparagraph (D), paragraph (1) shall not apply to a person unless the person demonstrates

by clear and convincing evidence that the application has been ﬁ led within 1 year after the date of alien’s arrival

in the United States.

22 Immigration and Nationality Act, 27 June 1952, as through December 23, 2008 is available online at:

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=c9fef57852dc066cfe16a4cb816838a4.

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person has previously applied for asylum and had such application denied.

(D) Changed conditions. - An application for asylum of a person may be considered, notwithstanding subparagraphs

(B) and (C), if the person demonstrates to the satisfaction of the Attorney General either the existence of changed

circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating

to the delay in ﬁ ling the application within the period speciﬁ ed in subparagraph (B).

(E) APPLICABILITY- Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child (as deﬁ ned in section

462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))).

(3) Limitation on judicial review. No court shall have jurisdiction to review any determination of the Attorney General

under paragraph (2).

(b) Conditions for Granting Asylum. -

(1) In general. - (A) ELIGIBILITY- The Secretary of Homeland Security or t he Attorney General may grant asylum

to an alien who has applied for asylum in accordance with the requirements and procedures established by the

Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security

or the Attorney General determines that such alien is a refugee within the meaning of section 101(a)(42)(A).

(B) BURDEN OF PROOF-

(i) IN GENERAL- The burden of proof is on the applicant to establish that the applicant is a refugee, within the

meaning of section 101(a)(42)(A). To establish that the applicant is a refugee within the meaning of such section,

the applicant must establish that race, religion, nationality, membership in a particular social group, or political

opinion was or will be at least one central reason for persecuting the applicant.

(ii) SUSTAINING BURDEN- The testimony of the applicant may be sufﬁ cient to sustain the applicant’s burden

without corroboration, but only if the applicant satisﬁ es the trier of fact that the applicant’s testimony is credible,

is persuasive, and refers to speciﬁ c facts sufﬁ cient to demonstrate that the applicant is a refugee. In determining

whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along

with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that

corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have

the evidence and cannot reasonably obtain the evidence.

(iii) CREDIBILITY DETERMINATION- Consid ering the totality of the circumstances, and all relevant factors, a trier of

fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness,

the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s

written and oral statements (whenever made and whether or not under oath, and considering the circumstances

under which the statements were made), the internal c onsistency of each such statement, the consistency of such

statements with other evidence of record (including the reports of the Department of State on country conditions),

and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy,

or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. There is no presumption of

credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a

rebuttable presumption of credibility on appeal.

(2) Exceptions. -

(A) In general. - P aragraph (1) shall not apply to an alien if the Attorney General determines that -

(i) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race,

religion, nationality, membership in a par ticular social group, or political opinion;

(ii) the alien, having been convicted b y a ﬁ nal judgment of a particularly serious crime, constitutes a danger to the

community of the United States;

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(iii) there are serious reasons for bel ieving that the alien has committed a serious nonpolitical crime outside the

United States prior to the arrival of the alien in the United States;

(iv) there are reasonable grounds for regarding the alien as a danger to the security of the United States;

(v) the alien is described in subclaus e (I), (II), (III), (IV), or (VI) of section 212(a)(3)(B)(i) or section 237(a)( 4)(B) (relating

to terrorist activity), unless, in the case only of an alien described in subclause (IV) of section 212(a)(3)(B)(i) , the

Attorney General determines, in the Attorney General’s discretion, that there are not reasonable grounds for regarding

the alien as a danger to the security of the United States; or

(vi) the alien was ﬁ rmly resettled in another country prior to arriving in the United States

(...)

(D) No judicial r eview. - There shall be no judicial review of a determination of the Attorney General under subparagraph

(A)(v).

(3) TREATMENT OF SPOUSE AND CHILDREN-

(A) IN GENERAL- A spouse or child (as deﬁ ned in section 101(b)(1)(A), (B) , (C) , (D) , or (E)) of an alien who is

granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the

same status as the alien if accompanying, or following to join, such alien.

(B) CONTINUED CLA SSIFICATION OF CERTAIN ALIENS AS CHILDREN- An unmarried alien who seeks to

accompany, or follow to join, a parent granted asylum under this subsection, and who was under 21 years of age

on the date on which such parent applied for asylum under this section, shall continue to be classiﬁ ed as a child

for purposes of this paragraph and section 209(b)(3), if the alien attained 21 years of age after such application

was ﬁ led but while it was pending.

any asylum application ﬁ led by an unaccompanied alien child (as deﬁ ned in section 462(g) of the Homeland Security

Act of 2002 (6 U.S.C. 279(g))), regardless of whether ﬁ led in accordance with this section or section 235(b) .

(1) In general.- In the case of an alien granted asylum under subsection (b), the Attorney General

(A) shall not remove or return the alien to the alien’s country of nationality or, in the case of a person having no

na tionality, the country of the alien’s last habitual residence;

(B) shall authorize the alien to engage in employment in the United States and provide the alien with appropriate

endorsement of that authorization; and

(2) Termination of asylum. - Asylum granted under subsec tion (b) does not convey a right to remain permanently in

the United States, and may be terminated if the Attorney General determines that -

(A) the person no longer meets the conditions described in subsection (b)(1) owing to a fundamental change in

circumstances;

(B) the person meets a condition described in subsection (b)(2);

of the person’s nationality or, in the case of a person having no nationality, the country of the person’s last habitual

residence) in which the person’s life or freedom would not be threatened on account of race, religion, nationality,

membership in a particular social group, or political opinion, and where the person is eligible to receive asylum or

equivalent temporary protection;

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(D) the person has voluntarily availed himself or herself of the protection of the person’s country of nationality or,

in the case of a person having no nationality, the person’s country of last habitual residence, by returning to such

country with permanent resident status or the reasonable possibility of obtaining such status with the same rights

and obligations pertaining to other permanent residents of that country; or

(E) the person has acquired a new nationality and enjoys the protection of the country of his new nationality.

(...)

INA: ACT 241 - DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED

(b) Countries to Which Aliens May Be Removed.

(…)

(3) Restriction on removal to a country where alien’s life or freedom would be threatened.-

(A) In general.-Notwithstanding paragraphs (1) and (2), the Attorney General may not remove a person to a country

if the Attorney General decides that the person’s life or freedom would be threatened in that country because of

the person’s race, religion, nationality, membership in a particular social group, or political opinion.

(...)

12.2 Selections from Title 8 of the Code of Federal Regulations

8 CFR § 208.16 - Withholding of removal under section 241(b)(3)(B) of the Act and withholding of removal

under the Convention Against Torture

(a) Consideration of application for withholding of removal . An asylum ofﬁ cer shall not decide whether the exclusion,

deportation, or removal of an alien to a country where the alien’s life or freedom would be threatened must be withheld,

except in the case of an alien who is otherwise eligible for asylum but is precluded from being granted such status

due solely to section 207(a)(5) of the Act. In exclusion, deportation, or removal proceedings, an immigration judge

may adjudicate both an asylum claim and a request for withholding of removal whether or not asylum is granted.

(b) Eligibility for withholding of removal under section 241(b)(3) of the Act; burden of proof . The burden of proof is on

the applicant for withholding of removal under section 241(b)(3) of the Act to establish that his or her life or freedom

would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a

particular social group, or political opinion. The testimony of the applicant, if credible, may be sufﬁ cient to sustain

the burden of proof without corroboration. …

(…)

(1) For purposes of regulations under Title II of the Act, “Convention Against Torture” shall refer to the United

Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, subject to

any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of

ratiﬁ cation of the Convention, as implemented by section 2242 of the Foreign Affairs Reform and Restructuring

Act of 1998 ( Pub. L. 105-277 , 112 Stat. 2681, 2681-821). The deﬁ nition of torture contained in § 208.18(a) of this

part shall govern all decisions made under regulations under Title II of the Act about the applicability of Article 3

of the Convention Against Torture.

(2) The burden of proof is on the applicant for withholding of removal under this paragraph to establish that it is

more likely than not that he or she would be tortured if removed to the proposed country of removal. The testimony

of the applicant, if credible, may be sufﬁ cient to sustain the burden of proof without corroboration.

23 Title 8 of the Code of Federal Regulations, updated through January 20, 2009, is available online at:

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=3a8e6c4c50924a64b8e046afc8800b72.

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(3) In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of

removal, all evidence relevant to the possibility of future torture shall be considered, including, but not limited to:

(i) Evidence of past torture inﬂ icted upon the applicant;

(ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be

tortured;

(iii) Evidence of gross, ﬂ agrant or mass violations of human rights within the country of removal, where applicable; and

(iv) Other relevant information regarding conditions in the country of removal.

(4) In considering an application for withholding of removal under the Convention Against Torture, the immigration

judge shall ﬁ rst determine whether the alien is more likely than not to be tortured in the country of removal. If the

immigration judge determines that the alien is more likely than not to be tortured in the country of removal, the

alien is entitled to protection under the Convention Against Torture. Protection under the Convention Against

Torture will be granted either in the form of withho lding of removal or in the form of deferral of removal. An alien

entitled to such protection shall be granted withholding of removal unless the alien is subject to mandatory denial

of withholding of removal under paragraphs (d)(2) or (d)(3) of this section. If an alien entitled to such protection is

subject to mandatory denial of withholding of removal under paragraphs (d)(2) or (d)(3) of this section, the alien’s

removal shall be deferred under § 208.17(a) .

(d) Approval or denial of application . (1) General . Subject to paragraphs (d)(2) and (d)(3) of this section, an application

for withholding of deportation or removal to a country of proposed removal shall be granted if the applicant’s eligibility

for withholding is established pursuant to paragraphs (b) or (c) of this section.

(…)

(f) Removal to third country . Nothing in this section or § 208.17 shall prevent the Service from removing an alien

to a third country other than the country to which removal has been withheld or deferred.

8 CFR § 208.17 - DEFERRAL OF REMOVAL UNDER THE CONVENTION AGAINST TORTURE

(a) Grant of deferral of rem oval . An alien who: has been ordered removed; has been found under § 208.16(c)(3)

to be entitled to protection under the Convention Against Torture; and is subject to the provisions for mandatory

denial of withholding of removal under § 208.16(d)(2) or (d)(3) , shall be granted deferral of removal to the country

where he or she is more likely than not to be tortured.

(b) Notice to Alien . (1) After an immigration judge or ders an alien described in paragraph (a) of this section removed,

the immigration judge shall inform the alien that his or her removal to the country where he or she is more likely than

not to be tortured shall be deferred until such time as the deferral is terminated under this section. The immigration

judge shall inform the alien that deferral of removal:

(i) Does not confer upon the al ien any lawful or permanent immigration status in the United States;

(ii) Will not necessarily resul t in the alien being released from the custody of the Service if the alien is subject to

such custody;

(iii) Is effective only until terminated; and

(iv) Is subject to review and termination if the immigration judge determines that it is not likely that the alien woul d

be tortured in the country to which removal has been deferred, or if the alien requests that deferral be terminated.

(2) The immigration judge shall also inform the alien that removal has been deferred only to the country in which it

has been determined that the alien is likely to be tortured, and that the alien may be removed at any time to another

country where he or she is not likely to be tortured.

(c) Detention of an alien grante d deferral of removal under this section . Nothing in this section shall alter the authority

of the Service to detain an alien whose removal has been deferred under this section and who is otherwise subject

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to detention. In the case of such an alien, decisions about the alien’s release shall be made according to part 241

of this chapter.

(…)

8 CFR § 208.18 - IMPLEMENTATIO N OF THE CONVENTION AGAINST TORTURE

(a) Deﬁ nitions . The deﬁ nitions in this subsection incorporate the deﬁ nition of torture contained in Article 1 of the

Convention Against Torture, subject to the reservations, understandings, declarations, and provisos contained in

the United States Senate resolution of ratiﬁ cation of the Convention.

(1) Torture is deﬁ ned as any act by which severe pain or suffering, whether physical or mental, is intentionally

inﬂ icted on a person for such purposes as obtaining from him or her or a third person information or a confession,

punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or

intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when

such pain or suffering is inﬂ icted by or at the inst igation of or with the consent or acquiescence of a public ofﬁ cial

or other person acting in an ofﬁ cial capacity.

(2) Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman

or degrading treatment or punishment that do not amount to torture.

(3) Torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Lawful sanctions

include judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty, but

do not include sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture.

(4) In order to constitute tortur e, mental pain or suffering must be prolonged mental harm caused by or resulting from:

(i) The intentional inﬂ iction o r threatened inﬂ iction of severe physical pain or suffering;

(ii) The administration or appli cation, or threatened administration or application, of mind altering substances or

other procedures calculated to disrupt profoundly the senses or the personality;

(iii) The threat of imminent death; or

(iv) The threat that another per son will imminently be subjected to death, severe physical pain or suffering, or the

administration or application of mind altering substances or other proced ures calculated to disrupt profoundly the

sense or personality.

(5) In order to constitute tortu re, an act must be speciﬁ cally intended to inﬂ ict severe physical or mental pain or

suffering. An act that results in unanticipated or unintended severity of pain and suffering is not torture.

(6) In order to constitute tortur e an act must be directed against a person in the offender’s custody or physical control.

(7) Acquiescence of a public ofﬁ cial requires that the public ofﬁ cial, prior to the activity constituting torture, have

awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.

(8) Noncompliance with applicable legal procedural standards does not per se constitute torture.

(…)

(1) The Secretary of State may fo rward to the Attorney General assurances that the Secretary has obtained from the

government of a speciﬁ c country that an alien would not be tortured there if the alien were removed to that country.

(2) If the Secretary of State for wards assurances described in paragraph (c)(1) of this section to the Attorney General

for consideration by the Attorney General or her delegates under this paragraph, the Attorney General shall determine,

in consultation with the Secretary of State, whether the assurances are sufﬁ ciently reliable to allow the alien’s

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removal to that country consistent with Article 3 of the Convention Against Torture. The Attorney General’s authority

under this paragraph may be exercised b y the Deputy Attorney General or by the Commissioner, Immigration and

Naturalization Service, but may not be further delegated.

(3) Once assurances are provided under paragraph (c)(2) of this section, the alien’s claim for protection under the

Convention Against Torture shall not be considered further by an immigration judge, the Board of Immigration

Appeals, or an asylum ofﬁ cer.

(…)

12.3 Priority Two Group Designations under the Refugee Admissions

Program

Under the U.S. Refugee Admissions Program (resettlement programme), designations are used for speciﬁ c groups

of persons who are of special humanitarian concern to the U.S.. Priority Two (P-2) groups are designated by the

Department of State in consultation with U.S.CIS, NGOs, UNHCR and other experts. Only those members of the

speciﬁ cally identiﬁ ed groups are eligible for processing under P-2. Individuals within P-2 designations must still

individually establish eligibility for resettlement by meeting the deﬁ nition of a refugee at INA section 101(a)(42).

P-2 designations for groups outside their country of origin in ﬁ scal year 2009 include:

1. Ethnic minorities and others from Burma in Thailand and Malaysia

2. Certain Burundians in Tanzania

3. Bhutanese in Nepal

4. Iranian religious minorities, primarily in Austria and Turkey

5. Sudanese Darfurians in Iraq

6. Iraqis Associated with the U.S.

7. Eritreans in Shimelba camp in Ethiopia

Current P-2 groups processed in-country include the following:

1. Former Soviet Union

• Jews, Evangelical Christians, and certain members of the Ukrainian Catholic or Orthodox churches who

also have close family in the United States.

2. Cuba

• Emphasis given to former political prisoners, members of persecuted religious minorities, human rights

activists, for

ced-labor conscripts (1965-1968), persons deprived of their professional credentials or

subjected to other disproportionately harsh or discriminatory treatment resulting from their perceived or

actual political or religious beliefs or activities, and persons who have experienced or fear harm because

of their relationship – family or social – to someone who falls under one of the preceding categories.

3. Vietnam

• Persons eligible under the former Orderly Departure Program (ODP) and Resettlement Opportunity for

ietnamese Returnees (ROVR) programmes.

• Expanded during FY 2006 to permit consideration of persons who, due to no fault of their own, were

unable to access the ODP pr

ogramme prior to its cut off date.

• Amerasian immigrants.

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USA

4. Iraqis Associated with the U.S.

• Under various P-2 designations and/or the Refugee Crisis in Iraq Act, employees of the U.S. Government

(USG) or a USG-funded contractor

, U.S. media or NGO working in Iraq, as well as beneﬁ ciaries of approved

I-130 (immigrant visa) petitions are eligible for refugee processing in Iraq.

12.4 Additional Statistical Information

5,000

10,000

15,000

20,000

25,000

30,000

35,000

40,000

45,000

1997 2002 2008

India

Colombia

Haiti

Guatemala

El Salvador

Mexico

China

* New applications received and reopened with USCIS (affirmative only);

principal applicants only (Source: USCIS Nationality Data).

Figure 4:

Asylum Applications* from Top Five Countries of Origin for the United States in 1997, 2002 and 2008

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Convention Status**

Humanitarian

Status and Other

Authorisations

to Remain

Rejections*** Other Decisions****

Total

Decisions

Year*

Count % of total Count % of total Count % of total Count % of total

1992

3,919 18% 0 0% 6,506 30% 11,571 53% 21,996

1993

5,037 15% 0 0% 17,949 53% 11,142 33% 34,128

1994

8,131 15% 0 0% 28,892 54% 16,376 31% 53,399

1995

8,648 12% 0 0% 35,217 49% 27,577 39% 71,442

1996

13,368 11% 0 0% 60,082 50% 47,271 39% 120,721

1997

10,129 8% 0 0% 56,730 44% 62,857 48% 129,716

1998

9,939 12% 0 0% 41,021 48% 34,597 40% 85,557

1999

14,757 27% 0 0% 24,333 44% 16,322 29% 55,412

2000

16,693 28% 0 0% 28,472 48% 14,717 25% 59,882

2001

19,456 28% 0 0% 33,635 48% 17,573 25% 70,664

2002

18,633 22% 0 0% 36,959 45% 27,408 33% 83,000

2003

11,339 13% 0 0% 29,698 34% 47,150 53% 88,187

2004

9,354 8% 0 0% 23,825 21% 81,180 71% 114,359

2005

9,569 9% 0 0% 23,556 23% 69,868 68% 102,993

2006

10,663 14% 0 0% 26,830 36% 37,973 50% 75,466

2007

10,111 17% 0 0% 32,153 53% 18,444 30% 60,708

2008

10,411 24% 0 0% 23,833 55% 9,075 21% 43,319

Figure 5:

Decisions Made at the First Instance, 1992-2008

* Data represents outcome of afﬁ rmative asylum cases processed by USCIS; it does not include data on outcomes of cases

handled by EOIR (Source: USCIS Workload Data)

** Percentage of cases granted asylum (“Convention Status”) is based on the total number of cases decided, not the number of

cases adjudicated on the merits of the claim.

*** Includes cases denied (i.e., persons with other legal status), cases referred to an immigration judge after a determination that

the case was not ﬁ led in a timely manner and did not merit an exception to the one-year ﬁ ling deadline and/or an adjudication

on the merits of the asylum claim, as well as cases referred to an immigration judge without an adjudication on the merits of the

asylum claim (generally because the applicant failed to appear for the scheduled interview).

**** Asylum claims that are administratively closed without an adjudication on the merits of the case and the applicant is not

placed into removal hearings before an immigration judge.

ANNEXES

ANNEXE 1 : STATISTICAL INFORMATION ON ASYLUM APPLICATIONS MADE IN IGC

ARTICIPATING STATES

ANNEXE 2 : BASIC INSTRUMENTS OF INTERNATIONAL REFUGEE LAW

AND HUMAN RIGHTS LAW: RELEVANT EXTRACTS

ANNEXE 3 : SELECTED UNHCR EXECUTIVE COMMITTEE CONCLUSIONS

ON INTERNATIONAL PROTECTION

ANNEXE 4 : SELECTED REGIONAL INSTRUMENTS: EXTRACTS

STATISTICAL INFORMATION ON ASYLUM APPLICATIONS

ADE IN IGC PARTICIPATING STATES

Annexe 1

1. EVOLUTION OF APPLICATIONS IN IGC PARTICIPATING STATES, 1983-2008

2. S

HARE OF ASYLUM APPLICATIONS IN IGC PARTICIPATING STATES, 1983-2008

3. S

HARE OF APPLICATIONS IN IGC PARTICIPATING STATES, 1997

4. S

HARE OF ASYLUM APPLICATIONS IN IGC PARTICIPATING STATES, 2002

5. S

HARE OF APPLICATIONS IN IGC PARTICIPATING STATES, 2008

6. T

OTAL ASYLUM APPLICATIONS RECEIVED PER 1,000 INHABITANTS IN 2008

7. A

SYLUM-SEEKERS IN IGC PARTICIPATING STATES BY COUNTRY OF ORIGIN, 1997

8. T

OP TEN COUNTRIES OF ORIGIN, 1997

9. A

SYLUM-SEEKERS IN IGC PARTICIPATING STATES BY COUNTRY OF ORIGIN, 2002

10. T

OP TEN COUNTRIES OF ORIGIN, 2002

11. A

SYLUM-SEEKERS IN IGC PARTICIPATING STATES BY COUNTRY OF ORIGIN, 2008

12. T

OP TEN COUNTRIES OF ORIGIN, 2008

13. N

UMBER OF PENDING CASES AT FIRST INSTANCE ON 31 DECEMBER 2008

433

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1. Evolution of Applications in IGC Participating States

, 1983-2008*

1 The statistical information contained in this annexe is, as is all the other data contained in this report, collected by the IGC directly from each government.

Data on asylum applications in Greece is available only for 2004-2008, and is therefore not included in the information presented in the annexe, with the

exception of Figure 1 (Evolution of Asylum Applications in 1983-2008) and Figure 5 (Share of Asylum Applications in 2008). Data for France, Germany

(1993-2008), Ireland, the Netherlands (2007-2008), Spain, Sweden and the United Kingdom covers ﬁ rst applications only. Data for Denmark from 1983

to 1997 reﬂ ects applications under active consideration; data for 1998-2008 reﬂ ects the gross number of applications received. Data for the United

States refers only to principal applicants making an afﬁ rmative application or requesting a reopening of their afﬁ rmative application with USCIS.

* Data for Australia covers applications made in 1989-2008 only.

Data for New Zealand covers applications made in 1997-2008 only.

Data for Greece covers 2006-2008 only.

224,528

833,730

504,214

282,142

100,000

200,000

300,000

400,000

500,000

600,000

700,000

800,000

900,000

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Applications in all IGC Participating States

European Participating States

North American Participating States

Oceania Participating States

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2. Share of Asylum Applications in IGC Participating States,

1983-2008*

United States

16%

United Kingdom

10%

Switzerland

Sweden

Spain

Netherlands

Ireland

Germany

28%

France

10%

Finland

Denmark

Canada

Belgium

Australia

New Zealand

Norway

3. Share of Applications in IGC Participating States, 1997

* Data for Australia covers applications made in 1989-2008 only.

Data for New Zealand covers applications made in 1997-2008 only.

Belgium

Canada

Denmark

Ireland

Switzerland

United Kingdom

11%

United States

21%

Australia

Finland

France

Germany

27%

Netherlands

New

Zealand

Norway

Spain

Sweden

Total: 10,138, 695

Total: 382,068

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4. Share of Asylum Applications in IGC Participating States, 2002

Australia

Canada

Denmark

France

13%

Germany

15%

Switzerland

United Kingdom

21%

United States

13%

Belgium

Finland

Norway

Sweden

Spain

New Zealand

Netherlands

Ireland

5. Share of Applications in IGC Participating States, 2008

Australia

Belgium

Finland

Denmark

Germany

France

15%

Canada

13%

United States

10%

United Kingdom

11%

Switzerland

Sweden

Ireland

Greece

Netherlands

New Zealand

Norway

Spain

Total: 480,735

Total: 282,142

436

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6. Total Asylum Applications Received per 1,000 Inhabitants in 2008*

* Based on 2007 population data

437

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7. Asylum-Seekers in IGC Participating States by Country of Origin, 1997

8. Top Ten Countries of Origin, 1997

1 Iraq

2 FRY (Yugoslavia)

3 Turkey

4 Mexico

5 Sri Lanka

6 China

7 Afghanistan

8 Somalia

9 India

10 Romania

438

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9. Asylum-Seekers in IGC Participating States by Country of Origin, 2002

10. Top Ten Countries of Origin, 2002

1 Iraq

2 Turkey

3 China

4 FRY (Yugoslavia)

5 Afghanistan

6 Russia

7 Democratic Republic of the Congo

8 Colombia

9 Somalia

10 Nigeria

439

SYLUM PROCEDURES IN IGC PARTICIPATING STATES 2009

12. Top Ten Countries of Origin, 2008

11. Asylum-Seekers in IGC Participating States by Country of Origin, 2008

1 Iraq

2 China

3 Somalia

4 Afghanistan

5 Mexico

6 Pakistan

7 Russia

8 Sri Lanka

9 Eritrea

10 Iran

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13.

Number of Pending Cases at First Instance on 31 December 2008*

351

1,196

1,300

2,631

3,483

4,270

8,023

9,314

10,041

11,400

12,656

13,977

18,278

5,248

54,296

10,000 20,000 30,000 40,000 50,000 60,000

New Zealand

Denmark

Ireland

Australia***

Finland**

Greece

Spain

Netherlands

Norway

United States

United Kingdom

Switzerland

Sweden

Germany **

Belgium

Canada

* France does not make data on pending cases publicly available.

** Data includes all instances.

*** This is an approximate ﬁ gure.

Annexe 2

Basic Instruments of International Refugee

Law and Human Rights Law:

Relevant Extracts

1. 1948 UNIVERSAL DECLARATION OF HUMAN RIGHTS

2. 1950 S

TATUTE OF THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR

REFUGEES

3. 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES

4. 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES

5. 1954 UNITED NATIONS CONVENTION AGAINST TORTURE AND OTHER CRUEL,

NHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

6. 1954 CONVENTION RELATING TO THE STATUS OF STATELESS PERSONS

7. 1961 C

ONVENTION ON THE REDUCTION OF STATELESSNESS

8. 1966 I

NTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

9. 1989 C

ONVENTION ON THE RIGHTS OF THE CHILD

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1. 1948 Universal Declaration of Human Rights

Article 13

(1) Everyone has the right to freedom of movement and residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 14

(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from

acts contrary to the purposes and principles of the United Nations.

2. 1950 Statute of the Ofﬁ ce of the United Nations High

Commissioner for Refugees

CHAPTER I

General Provisions

1. The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly,

shall assume the function of providing international protection, under the auspices of the United Nations, to

refugees who fall within the scope of the present Statute and of seeking permanent solutions for the problem

of refugees by assisting Governments and, subject to the approval of the Governments concerned, private

organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national

communities.

In the exercise of his functions, more particularly when difﬁ culties arise, and for instance with regard to any

controversy concerning the international status of these persons, the High Commissioner shall request the opinion

of the advisory committee on refugees if it is created.

(...)

CHAPTER II

Functions of the High Commissioner

6 . The competence of the High Commissioner shall extend to:

A. (i) Any person who has been considered a refugee under the Arrangements of 12 May 1926 and of 30 June 1928

or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the

Constitution of the International Refugee Organization.

(ii) Any person who, as a result of events occurring before 1 January 1951 and owing to well-founded fear of being

persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality

and is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to avail himself

of the protection of that country; or who, not having a nationality and being outside the country of his former

habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling

to return to it.

Decisions as to eligibility taken by the International Refugee Organization during the period of its activities shall

not prevent the status of refugee being accorded to persons who fulﬁ l the conditions of the present paragraph;

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The competence of the High Commissioner shall cease to apply to any person deﬁ ned in section A above if:

(a) He has voluntarily re-availed himself of the protection of the country of his nationality; or

(b) Having lost his nationality, he has voluntarily re-acquired it; or

(d) He has voluntarily re-established himself in the country which he left or outside which he remained owing to

fear of persecution; or

(e) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have

ceased to exist, claim grounds other than those of personal convenience for continuing to refuse to avail himself

of the protection of the country of his nationality. Reasons of a purely economic character may not be invoked; or

(f ) Being a person who has no nationality, he can no longer, because the circumstances in connexion with which he

has been recognized as a refugee have ceased to exist and he is able to return to the country of his former habitual

residence, claim grounds other than those of personal convenience for continuing to refuse to return to that country;

B. Any other person who is outside the country of his nationality, or if he has no nationality, the country of his former

habitual residence, because he has or had well-founded fear of persecution by reason of his race, religion, nationality or

political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government

of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence.

7. Provided that the competence of the High Commissioner as deﬁ ned in paragraph 6 above shall not extend to

a person:

(a) Who is a national of more than one country unless he satisﬁ es the provisions of the preceding paragraph in

relation to each of the countries of which he is a national; or

(b) Who is recognized by the competent authorities of the country in which he has taken residence as having the

rights and obligations which are attached to the possession of the nationality of that country; or

(d) In respect of whom there are serious reasons for considering that he has committed a crime covered by the

provisions of treaties of extradition or a crime mentioned in article VI of the London Charter of the International

Military Tribunal or by the provisions of article 14, paragraph 2, of the Universal Declaration of Human Rights.

3. 1951 Convention relating to the Status of Refugees

Article 1A

Deﬁ nition of the Term “Refugee”

For the purposes of the present Convention, the term “refugee” shall apply to any person who:

(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the

Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of

the International Refugee Organization; Decisions of non-eligibility taken by the International Refugee Organization

during the period of its activities shall not prevent the status of refugee being accorded to persons who fulﬁ l the

conditions of paragraph 2 of this section;

(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for

reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the

country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that

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country; or who, not having a nationality and being outside the country of his former habitual residence as a result of

such events, is unable or, owing to such fear, is unwilling to return to it. In the case of a person who has more than

one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and

a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason

based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

Article 1C

Cessation Clause

This Convention shall cease to apply shall cease to apply to any person falling under the terms of section A if:

(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or

(2) Having lost his nationality, he has voluntarily re-acquired it, or

(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to

fear of persecution; or

(5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee

have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to

invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the

country of nationality;

(6) Being a person who has no nationality he is, because of the circumstances in connexion with which he has

been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;

Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to

invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former

habitual residence.

Article 1E

Rights and Obligations of Nationality

This Convention shall not apply to a person who is recognized by the competent authorities of the country in which

he has taken residence as having the rights and obligations which are attached to the possession of the nationality

of that country.

Article 1F

Exclusion Clause

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons

for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as deﬁ ned in the international

instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that

country as a refugee;

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Article 2

General obligations

Every refugee has duties to the country in which he ﬁ nds 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.

(...)

Article 16

Access to courts

1. A refugee shall have free access to the courts of law on the territory of all Contracting States.

2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as

a national in matters pertaining to access to the courts, including legal assistance and exemption from cautio

judicatum solvi.

3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has

his habitual residence the treatment granted to a national of the country of his habitual residence.

(...)

Article 31

Refugees unlawfully in the country of refuge

1. The Contracting States 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, enter or

are present in their territory without authorization, provided they present themselves without delay to the authorities

and show good cause for their illegal entry or presence.

2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are

necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain

admission into another country. The Contracting States shall allow such refugees a reasonable period and all the

necessary facilities to obtain admission into another country.

Article 32

Expulsion

1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security

or public order.

2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process

of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to

submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority

or a person or persons specially designated by the competent authority.

3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into

another country. The Contracting States reserve the right to apply during that period such internal measures as

they may deem necessary.

(...)

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Article 33

Prohibition of Expulsion or Return (“Refoulement”)

1. 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.

2. The beneﬁ t of the present provision may not, however, be claimed by a refugee whom there are reasonable

grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by

a ﬁ nal judgment of a particularly serious crime, constitutes a danger to the community of that country.

(...)

Article 35

Co-operation of the national authorities with the United Nations

1. The Contracting States undertake to co-operate with the Ofﬁ ce of the United Nations High Commissioner for

Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and

shall in particular facilitate its duty of supervising the application of the provisions of this Convention.

2. In order to enable the Ofﬁ ce of the High Commissioner or any other agency of the United Nations which may

succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to

provide them in the appropriate form with information and statistical data requested concerning:

(a) The condition of refugees,

(b) The implementation of this Convention, and

(...)

4. 1967 Protocol relating to the Status of Refugees

Article 1

General provision

1. The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention to

refugees as hereinafter deﬁ ned.

2. For the purpose of the present Protocol, the term “refugee” shall, except as regards the application of paragraph

3 of this article, mean any person within the deﬁ nition of article 1 of the Convention as if the words “As a result of

events occurring before 1 January 1951 and ...” “and the words”... “a result of such events”, in article 1 A (2) were

omitted.

3. The present Protocol shall be applied by the States Parties hereto without any geographic limitation, save that

existing declarations made by States already Parties to the Convention in accordance with article 1 B (1) (a) of the

Convention, shall, unless extended under article 1 B (2) thereof, apply also under the present Protocol.

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5. 1954 United Nations Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment

Article 1

1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or

mental, is intentionally inﬂ icted on a person for such purposes as obtaining from him or a third person information or

a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or

intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or

suffering is inﬂ icted by or at the instigation of or with the consent or acquiescence of a public ofﬁ cial or other person acting

in an ofﬁ cial capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain

provisions of wider application.

Article 3

No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial

grounds for believing that he would be in danger of being subjected to torture.

For the purpose of determining whether there are such grounds, the competent authorities shall take into account

all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern

of gross, ﬂ agrant or mass violations of human rights.

6. 1954 Convention relating to the Status of Stateless Persons

Chapter I

GENERAL PROVISIONS

Article 1. - Deﬁ nition of the term “stateless person”

1. For the purpose of this Convention, the term “stateless person” means a person who is not considered as a

national by any State under the operation of its law.

2 . This Convention shall not apply:

(i ) To persons who are at present receiving from organs or agencies of the United Nations other than the United

Nations High Commissioner for Refugees protection or assistance so long as they are receiving such protection

or assistance;

(ii ) To persons who are recognized by the competent authorities of the country in which they have taken residence

as having the rights and obligations which are attached to the possession of the nationality of that country;

(iii ) To persons with respect to whom there are serious reasons for considering that:

(a) They have committed a crime against peace, a war crime, or a crime against humanity, as deﬁ ned in the

international instruments drawn up to make provisions in respect of such crimes;

(b) They have committed a serious non-political crime outside the country of their residence prior to their admission

to that country;

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Article 2. - General obligations

Every st ateless person has duties to the country in which he ﬁ nds 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.

7. 1961 Convention on the Reduction of Statelessness

Article 1

1. A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless.

Such nationality shall be granted:

(a) at birth, by operation of law, or

(b) upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner

prescribed by the national law. Subject to the provisions of paragraph 2 of this article, no such application may be rejected.

A Contracting State which provides for the grant of its nationality in accordance with subparagraph (b) of this

paragraph may also provide for the grant of its nationality by operation of law at such age and subject to such

conditions as may be prescribed by the national law.

2. A Contracting State may make the grant of its nationality in accordance with subparagraph (b) of paragraph 1

of this article subject to one or more of the following conditions:

(a) that the application is lodged during a period, ﬁ xed by the Contracting State, beginning not later than at the age of eighteen

years and ending not earlier than at the age of twenty-one years, so, however, that the person concerned shall be allowed

at least one year during which he may himself make the application without having to obtain legal authorization to do so;

(b) that the person concerned has habitually resided in the territory of the Contracting State for such period as may be

ﬁ xed by that State, not exceeding ﬁ ve years immediately preceding the lodging of the application nor ten years in all;

sentenced to imprisonment for a term of ﬁ ve years or more on a criminal charge;

(d) that the person concerned has always been stateless.

3. Notwithstanding the provisions of paragraphs 1 (b) and 2 of this article, a child born in wedlock in the territory

of a Contracting State, whose mother has the nationality of that State, shall acquire at birth that nationality if it

otherwise would be stateless.

4. A Contracting State shall grant its nationality to a person who would otherwise be stateless and who is unable to

acquire the nationality of the Contracting State in whose territory he was born because he had passed the age for

lodging his application or has not fulﬁ lled the required residence conditions, if the nationality of one of his parents at

the time of the person’s birth was that of the Contracting State ﬁ rst above mentioned. If his parents did not possess

the same nationality at the time of his birth, the question whether the nationality of the person concerned should

follow that of the father or that of the mother shall be determined by the national law of such Contracting State. If

application for such nationality is required, the application shall be made to the appropriate authority by or on behalf

of the applicant in the manner prescribed by the national law. Subject to the provisions of paragraph 5 of this article,

such application shall 5. The Contracting State may make the grant of its nationality in accordance with the provisions

of paragraph 4 of this article subject to one or more of the following conditions:

(a) that the application is lodged before the applicant reaches an age, being not less than twenty-three years, ﬁ xed

by the Contracting State;

(b) that the person concerned has habitually resided in the territory of the Contracting State for such period

immediately preceding the lodging of the application, not exceeding three years, as may be ﬁ xed by that State;

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8. 1966 International Covenant on Civil and Political Rights

PART III

Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily

deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most

serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary

to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime

of Genocide. This penalty can only be carried out pursuant to a ﬁ nal judgement rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall

authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the

provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon

or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall

not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State

Party to the present Covenant.

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no

one shall be subjected without his free consent to medical or scientiﬁ c experimentation.

9. 1989 Convention on the Rights of the Child

Article 1

For the purposes of the present Convention, a child means every human being below the age of eighteen years

unless under the law applicable to the child, majority is attained earlier.

Article 2

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their

jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s

race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability,

birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of

discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s

parents, legal guardians, or family members.

Annexe 3

Selected UNHCR Executive Committee

Conclusions on International Protection

CONCLUSION NO.8 (XXVIII -1977) - DETERMINATION OF REFUGEE STATUS

2. CONCLUSION NO. 15 (XXX - 1979) - REFUGEES WITHOUT AN ASYLUM COUNTRY

3. CONCLUSION NO. 28 (XXXIII - 1982) - FOLLOW-UP ON EARLIER CONCLUSIONS

OF THE SUB-COMMITTEE OF THE WHOLE ON INTERNATIONAL PROTECTION ON THE

DETERMINATION OF REFUGEE STATUS, INTER ALIA, WITH REFERENCE TO THE ROLE

OF UNHCR IN NATIONAL REFUGEE STATUS DETERMINATION PROCEDURES

4. CONCLUSION NO. 30 (XXXIV - 1983) - THE PROBLEM OF MANIFESTLY

NFOUNDED OR ABUSIVE APPLICATIONS FOR REFUGEE STATUS OR ASYLUM

5. CONCLUSION NO. 58 (XL – 1989) - PROBLEM OF REFUGEES AND ASYLUM-

SEEKERS WHO MOVE IN AN IRREGULAR MANNER FROM A COUNTRY IN WHICH

THEY HAD ALREADY FOUND PROTECTION

6. CONCLUSION NO. 81 (XLVIII – 1997) - GENERAL CONCLUSION ON

INTERNATIONAL PROTECTION (EXTRACT)

7. C

ONCLUSION NO. 82 (XLVIII – 1997)- SAFEGUARDING ASYLUM (EXTRACTS)

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1. Conclusion No.8 (XXVIII -1977) - Determination of Refugee Status

The Executive Committee,

(a) Noted the report of the High Commissioner concerning the importance of procedures for determining refugee

status;

(b) Noted that only a limited number of States parties to the 1951 Convention and the 1967 Protocol had established

procedures for the formal determination of refugee status under these instruments;

by a number of Governments;

(d) Expressed the hope that all Governments parties to the 1951 Convention and the 1967 Protocol which had not

yet done so would take steps to establish such procedures in the near future and give favourable consideration to

UNHCR participation in such procedures in appropriate form;

(e) Recommended that procedures for the determination of refugee status should satisfy the following basic

requirements:

(i) The competent ofﬁ cial (e.g. immigration ofﬁ cer or border police ofﬁ cer) to whom the applicant addresses

himself at the border or in the territory of a Contracting State, should have clear instructions for dealing with

cases which might me within the purview of the relevant international instruments. He should be required to act in

accordance with the principle of non-refoulement and to refer such cases to a higher authority.

(ii) The applicant should receive the necessary guidance as to the procedure to be followed.

(iii) There should be a clearly identiﬁ ed authority -- wherever possible a single central authority -- with

responsibility for examining requests for refugee status and taking a decision in the ﬁ rst instance.

(iv) The applicant should be given the necessary facilities, including the services of a competent interpreter,

for submitting his case to the authorities concerned. Applicants should also be given the opportunity, of which they

should be duly informed, to contact a representative of UNHCR.

(v) If the applicant is recognized as a refugee, he should be informed accordingly and issued with documentation

certifying his refugee status.

(vi) If the applicant is not recognized, he should be given a reasonable time to appeal for a formal reconsideration

of the decision, either to the same or to a different authority, whether administrative or judicial, according to the

prevailing stem.

(vii) The applicant should be permitted to remain in the country pending a decision on his initial request by

the competent authority referred to in paragraph (iii) above, unless it has been established by that authority that

his request is clearly abusive. He should also be permitted to remain in the country while an appeal to a higher

administrative authority or to the courts is pending.

(f) Requested UNHCR to prepare, after due consideration of the opinions of States parties to the 1951 Convention

and the 1967 Protocol, a detailed study on the question of the extra-territorial effect of determination of refugee

status in order to enable the Committee to take a considered view on the matter at a subsequent session taking

into account the opinion expressed by representatives that the acceptance by a Contracting State of refugee status

as determined by other States parties to these instruments would be generally desirable;

(g) Requested the Ofﬁ ce to consider the possibility of issuing-for the guidance of Governments-a handbook relating

to procedures and criteria for determining refugee status and circulating -- with due regard to the conﬁ dential

nature of individual requests and the particular situations involved -- signiﬁ cant decisions on the determination of

refugee status.

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2. Conclusion No. 15 (XXX - 1979) - Refugees without an Asylum

Country

The Executive Committee,

Considered that States should be guided by the following considerations:

General principles

(a) States should use their best endeavours to grant asylum to bona ﬁ de asylum-seekers;

(b) Action whereby a refugee is obliged to return or is sent to a country where he has reason to fear persecution

constitutes a grave violation of the recognized principle of non-refoulement;

and to grant asylum, or at least temporary refuge, to persons on board wishing to seek asylum;

(d) Decisions by States with regard to the granting of asylum shall be made without discrimination as to race,

religion, political opinion, nationality or country of origin;

(e) In the interest of family reuniﬁ cation and for humanitarian reasons, States should facilitate the admission to

their territory of at least the spouse and minor or dependent children of any person to whom temporary refuge or

durable asylum has been granted;

Situations involving a large-scale inﬂ ux of asylum-seekers

(f) In cases of large-scale inﬂ ux, persons seeking asylum should always receive at least temporary refuge. States

which because of their geographical situation, or otherwise, are faced with a large-scale inﬂ ux should as necessary

and at the request of the State concerned receive immediate assistance from other States in accordance with

the principle of equitable burden-sharing. Such States should consult with the Ofﬁ ce of the United Nations High

Commissioner for Refugees as soon as possible to ensure that the persons involved are fully protected, are given

emergency assistance, and that durable solutions are sought;

(g) Other States should take appropriate measures individually, jointly or through the Ofﬁ ce of the United Nations

High Commissioner for Refugees or other international bodies to ensure that the burden of the ﬁ rst asylum country

is equitably shared;

Situations involving individual asylum-seekers

(h) An effort should be made to resolve the problem of identifying the country responsible for examining an asylum

request by the adoption of common criteria. In elaborating such criteria the following principles should be observed:

(i) The criteria should make it possible to identify in a positive manner the country which is responsible for

examining an asylum request and to whose authorities the asylum-seeker should have the possibility of addressing

himself;

(ii) The criteria should be of such a character as to avoid possible disagreement between States as to which of

them should be responsible for examining an asylum request and should take into account the duration and nature

of any sojourn of the asylum-seeker in other countries;

(iii) The intentions of the asylum-seeker as regards the country in which he wishes to request asylum should

as far as possible be taken into account;

(iv) Regard should be had to the concept that asylum should not be refused solely on the ground that it could

be sought from another State. Where, however, it appears that a person, before requesting asylum, already has a

connection or close links with another State, he may if it appears fair and reasonable be called upon ﬁ rst to request

asylum from that State;

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(v) Reestablishment of criteria should be accompanied by arrangements for regular consultation between

concerned Governments for dealing with cases for which no solution has been found and for consultation with the

Ofﬁ ce of the United Nations High Commissioner for Refugees as appropriate;

(vi) Agreements providing for the return by States of persons who have entered their territory from another

contracting State in an unlawful manner should be applied in respect of asylum-seekers with due regard to their

special situation.

(i) While asylum-seekers may be required to submit their asylum request within a certain time limit, failure to do so, or

the non-fulﬁ lment of other formal requirements, should not lead to an asylum request being excluded from consideration;

(j) In line with the recommendation adopted by the Executive Committee at its twenty-eighth session (document

A/AC.96/549, paragraph 53(6), (E) (i)), where an asylum-seeker addresses himself in the ﬁ rst instance to a frontier

authority the latter should not reject his application without reference to a central authority;

(k) Where a refugee who has already been granted asylum in one country requests asylum in another country on

the ground that he has compelling reasons for leaving his present asylum country due to fear of persecution or

because his physical safety or freedom are endangered, the authorities of the second country should give favourable

consideration to his asylum request;

(l) States should give favourable consideration to accepting, at the request of the Ofﬁ ce of the United Nations

High Commissioner for Refugees, a limited number of refugees who cannot ﬁ nd asylum in any country;

(m) States should pay particular attention to the need for avoiding situations in which a refugee loses his right to

reside in or to return to his country of asylum without having acquired the possibility of taking up residence in a

country other than one where he may have reasons to fear persecution;

(n) In line with the purpose of paragraphs 6 and 11 of the Schedule to the 1951 Convention, States should continue

to extend the validity of or to renew refugee travel documents until the refugee has taken up lawful residence in the

territory of another State. A similar practice should as far as possible also be applied in respect of refugees holding

a travel document other than that provided for in the 1951 Convention.

3. Conclusion No. 28 (XXXIII - 1982) - Follow-up on Earlier

Conclusions of the Sub-Committee of the Whole on

International Protection on the Determination of Refugee

Status, Inter Alia, with Reference to the Role of UNHCR in

National Refugee Status Determination Procedures

The Executive Committee,

(a) Considered the report of the High Commissioner on the progress made in regard to the determination of refugee

status (EC/SCP/22/Rev.1);

(b) Noted with satisfaction that since the twenty-eighth session of the Executive Committee procedures for the

determination of refugee status have been established by a further signiﬁ cant number of States Parties to the 1951

Convention and the 1967 Protocol and that these procedures conform to the basic requirements recommended by

the Executive Committee at its twenty-eighth session;

States Parties to the 1951 Convention and the 1967 Protocol which had not yet done so to establish such procedures

in the near future;

(d) Recognized the need for measures to meet the problem of manifestly unfounded or abusive applications for

refugee status. A decision that an application is manifestly unfounded or abusive should only be taken by or after

reference to the authority competent to determine refugee status. Consideration should be given to the establishment

of procedural safeguards to ensure that such decisions are taken only if the application is fraudulent or not related

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to the criteria for the granting of refugee status laid down in the 1951 United Nations Convention relating to the

Status of Refugees. In view of its importance, the question of manifestly unfounded or abusive applications for

refugee status should be further examined by the Sub-Committee at its next meeting, as a separate item on its

agenda and on the basis of a study to be prepared by UNHCR;

(e) Noted with satisfaction the participation in various forms of UNHCR in procedures for determining refugee status in

a large number of countries and recognized the value of UNHCR thus being given a meaningful role in such procedures.

4. Conclusion No. 30 (XXXIV - 1983) - The Problem of Manifestly

Unfounded or Abusive Applications for Refugee Status or

Asylum

The Executive Committee,

(a) Recalled Conclusion No. 8 (XXVIII) adopted at its twenty-eighth session on the Determination of Refugee Status

and Conclusion No. 15 (XXX) adopted at its thirtieth session concerning Refugees without an Asylum Country;

(b) Recalled Conclusion No. 28 (XXXIII) adopted at its thirty-third session in which the need for measures to meet

the problem of manifestly unfounded or abusive applications for refugee status was recognized;

under the relevant criteria constitute a serious problem in a number of States parties to the 1951 Convention and

the 1967 Protocol. Such applications are burdensome to the affected countries and detrimental to the interests of

those applicants who have good grounds for requesting recognition as refugees;

(d) Considered that national procedures for the determination of refugee status may usefully include special provision

for dealing in an expeditious manner with applications which are considered to be so obviously without foundation

as not to merit full examination at every level of the procedure. Such applications have been termed either “clearly

abusive” or “manifestly unfounded” and are to be deﬁ ned as those which are clearly fraudulent or not related to the

criteria for the granting of refugee status laid down in the 1951 United Nations Convention relating to the Status of

Refugees nor to any other criteria justifying the granting of asylum;

(e) Recognized the substantive character of a decision that an application for refugee status is manifestly unfounded

or abusive, the grave consequences of an erroneous determination for the applicant and the resulting need for such

a decision to be accompanied by appropriate procedural guarantees and therefore recommended that:

(i) as in the case of all requests for the determination of refugee status or the grant of asylum, the applicant

should be given a complete personal interview by a fully qualiﬁ ed ofﬁ cial and, whenever possible, by an ofﬁ cial of

the authority competent to determine refugee status;

(ii) the manifestly unfounded or abusive character of an application should be established by the authority

normally competent to determine refugee status;

(iii) an unsuccessful applicant should be enabled to have a negative decision reviewed before rejection at the

frontier or forcible removal from the territory. Where arrangements for such a review do not exist, governments

should give favourable consideration to their establishment. This review possibility can be more simpliﬁ ed than that

available in the case of rejected applications which are not considered manifestly unfounded or abusive.

(f) Recognized that while measures to deal with manifestly un-founded or abusive applications may not resolve

the wider problem of large numbers of applications for refugee status, both problems can be mitigated by overall

arrangements for speeding up refugee status determination procedures, for example by:

(i) allocating sufﬁ cient personnel and resources to refugee status determination bodies so as to enable them

to accomplish their task expeditiously, and

(ii) the introduction of measures that would reduce the time required for the completion of the appeals process.

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5. Conclusion No. 58 (XL – 1989) - Problem of Refugees and

Asylum-Seekers Who Move in an Irregular Manner from a

Country in Which They Had Already Found Protection

a) The phenomenon of refugees, whether they have been formally identiﬁ ed as such or not (asylum-seekers), who

move in an irregular manner from countries in which they have already found protection, in order to seek asylum or

permanent resettlement elsewhere, is a matter of growing concern. This concern results from the destabilizing effect

which irregular movements of this kind have on structured international efforts to provide appropriate solutions for

refugees. Such irregular movements involve entry into the territory of another country, without the prior consent of

the national authorities or without an entry visa, or with no or insufﬁ cient documentation normally required for travel

purposes, or with false or fraudulent documentation. Of similar concern is the growing phenomenon of refugees

and asylum-seekers who wilfully destroy or dispose of their documentation in order to mislead the authorities of

the country of arrival;

b) Irregular movements of refugees and asylum-seekers who have already found protection in a country are, to a

large extent, composed of persons who feel impelled to leave, due to the absence of educational and employment

possibilities and the non-availability of long-term durable solutions by way of voluntary repatriation, local integration

and resettlement;

c) The phenomenon of such irregular movements can only be effectively met through concerted action by

governments, in consultation with UNHCR, aimed at:

i) identifying the causes and scope of irregular movements in any given refugee situation,

ii) removing or mitigating the causes of such irregular movements through the granting and maintenance of

asylum and the provision of necessary durable solutions or other appropriate assistance measures,

iii) encouraging the establishment of appropriate arrangements for the identiﬁ cation of refugees in the countries

concerned and,

iv) ensuring humane treatment for refugees and asylum-seekers who, because of the uncertain situation in

which they ﬁ nd themselves, feel impelled to move from one country to another in an irregular manner;

d) Within this framework, governments, in close co-operation with UNHCR, should

i) seek to promote the establishment of appropriate measures for the care and support of refugees and

asylum-seekers in countries where they have found protection pending the identiﬁ cation of a durable solution and

ii) promote appropriate durable solutions with particular emphasis ﬁ rstly on voluntary repatriation and, when

this is not possible, local integration and the provision of adequate resettlement opportunities;

e) Refugees and asylum-seekers, who have found protection in a particular country, should normally not move

from that country in an irregular manner in order to ﬁ nd durable solutions elsewhere but should take advantage of

durable solutions available in that country through action taken by governments and UNHCR as recommended in

paragraphs (c) and (d) above;

f) Where refugees and asylum-seekers nevertheless move in an irregular manner from a country where they have

already found protection, they may be returned to that country if

i) they are protected there against refoulement and

ii) they are permitted to remain there and to be treated in accordance with recognized basic human standards

until a durable solution is found for them. Where such return is envisaged, UNHCR may be requested to assist in

arrangements for the re-admission and reception of the persons concerned;

g) In is recognized that there may be exceptional cases in which a refugee or asylum-seeker may justiﬁ ably claim

that he has reason to fear persecution or that his physical safety or freedom are endangered in a country where he

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previously found protection. Such cases should be given favourable consideration by the authorities of the State

where he requests asylum;

h) The problem of irregular movements is compounded by the use, by a growing number of refugees and asylum-

seekers, of fraudulent documentation and their practice of wilfully destroying or disposing of travel and/or other

documents in order to mislead the authorities of their country of arrival. These practices complicate the personal

identiﬁ cation of the person concerned and the determination of the country where he stayed prior to arrival, and

the nature and duration of his stay in such a country. Practices of this kind are fraudulent and may weaken the case

of the person concerned;

i) In is recognized that circumstances may compel a refugee or asylum-seeker to have recourse to fraudulent

documentation when leaving a country in which his physical safety or freedom are endangered. Where no such

compelling circumstances exist, the use of fraudulent documentation is unjustiﬁ ed;

j) The wilful destruction or disposal of travel or other documents by refugees and asylum-seekers upon arrival in

their country of destination, in order to mislead the national authorities as to their previous stay in another country

where they have protection, is unacceptable. Appropriate arrangements should be made by States, either individually

or in co-operation with other States, to deal with this growing phenomenon.

6. Conclusion No. 81 (XLVIII – 1997) - General Conclusion on

International Protection (Extract)

The Executive Committee,

(...)

(h) Reafﬁ rms Conclusion No. 80 (XLVIII), and notes that a comprehensive approach to refugee protection comprises,

inter alia, respect for all human rights; the principle of non-refoulement; access, consistent with the 1951 Convention

and the 1967 Protocol, of all asylum-seekers to fair and effective procedures for determining status and protection

needs; no rejection at frontiers without the application of these procedures; asylum; the provision of any necessary

material assistance; and the identiﬁ cation of durable solutions which recognize human dignity and worth;

(...)

7. Conclusion No. 82 (XLVIII – 1997)- Safeguarding Asylum (Extracts)

The Executive Committee,

(a) Recalls the fundamental importance of the High Commissioner’s international protection function;

(b) Reafﬁ rms that the institution of asylum, which derives directly from the right to seek and enjoy asylum set out

in Article 14 (1) of the 1948 Universal Declaration of Human Rights, is among the most basic mechanisms for the

international protection of refugees;

institution of asylum;

(d) Reiterates, in light of these challenges, the need for full respect to be accorded to the institution of asylum in

general, and considers it timely to draw attention to the following particular aspects:

(i) the principle of non-refoulement, which prohibits expulsion and return of refugees in any manner whatsoever

to the frontiers of territories where their lives or freedom would be threatened on account of their race, religion,

nationality, membership of a particular social group or political opinion, whether or not they have been formally

granted refugee status, or of persons in respect of whom there are substantial grounds for believing that they would

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be in danger of being subjected to torture, as set forth in the 1984 Convention against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment;

(ii) access, consistent with the 1951 Convention and the 1967 Protocol, of asylum-seekers to fair and effective

procedures for determining status and protection needs;

(iii) the need to admit refugees into the territories of States, which includes no rejection at frontiers without fair and

effective procedures for determining status and protection needs;

(iv) the need for rapid, unimpeded and safe UNHCR access to persons of concern to the High Commissioner;

(v) the need to apply scrupulously the exclusion clauses stipulated in Article 1 F of the 1951 Convention and in

other relevant international instruments, to ensure that the integrity of the asylum institution is not abused by the

extension of protection to those who are not entitled to it;

(vi) the obligation to treat asylum-seekers and refugees in accordance with applicable human rights and refugee

law standards as set out in relevant international instruments;

(…)

(viii) the duty of refugees, and of asylum-seekers, to respect and abide by the laws of host States;

(e) Calls upon all concerned parties to respect and comply with the precepts on which the institution of asylum is

based, and to implement their obligations in a spirit of true humanitarianism, international solidarity and burden-

sharing.

Annexe 4

Selected Regional Instruments: Extracts

Europe

1. 1950 E

UROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL

REEDOMS

2. 1985 CONVENTION IMPLEMENTING THE SCHENGEN AGREEMENT

3. PROTOCOL ON ASYLUM FOR NATIONALS OF MEMBER STATES OF THE

UROPEAN UNION (PAGE 103 OF THE TREATY OF AMSTERDAM)

4. 2000 C

OUNCIL REGULATION ON EURODAC

5. 2001 COUNCIL DIRECTIVE ON TEMPORARY PROTECTION

6. 2003 COUNCIL DIRECTIVE ON THE RECEPTION OF ASYLUM-SEEKERS

ECEPTION CONDITIONS DIRECTIVE)

7. 2003 C

OUNCIL REGULATION ON THE CRITERIA AND MECHANISMS FOR

DETERMINING THE MEMBER STATE RESPONSIBLE FOR EXAMINING AN ASYLUM

PPLICATION (DUBLIN II REGULATION)

8. 2004 C

OUNCIL DIRECTIVE ON QUALIFICATION AND STATUS AS REFUGEES OR

PERSONS OTHERWISE IN NEED OF INTERNATIONAL PROTECTION

9. 2005 C

OUNCIL DIRECTIVE ON MINIMUM STANDARDS ON PROCEDURES

IN MEMBER STATES FOR GRANTING AND WITHDRAWING REFUGEE STATUS

SYLUM PROCEDURES DIRECTIVE)

North America

10. US – C

ANADA SAFE THIRD COUNTRY AGREEMENT

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Europe

1. 1950 European Convention on Human Rights and Fundamental

Freedoms

Article 1

Respecting rights

Article 1 simply binds the signatory parties to secure the rights under the other Articles of the Convention “within

their jurisdiction”. In exceptional cases, “jurisdiction” may not be conﬁ ned to a Contracting State’s own national

territory; the obligation to secure Convention rights then also extends to foreign territory, such as occupied land in

which the State exercises effective control.

(...)

Article 3

Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

(...)

Article 8

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance

with the law and is necessary in a democratic society in the interests of national security, public safety or the

economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals,

or for the protection of the rights and freedoms of others.

Article 9

Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change

his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his

religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law

and are necessary in a democratic society in the interests of public safety, for the protection of public order, health

or morals, or for the protection of the rights and freedoms of others.

Article 13

Effective remedy

Article 13 provides for the right for an effective remedy before national authorities for violations of rights under the

Convention. The inability to obtain a remedy before a national court for an infringement of a Convention right is

thus a free-standing and separately actionable infringement of the Convention.

1 Heading added according to the provisions of Protocol No. 11 (ETS No. 155).

2 Heading added according to the provisions of Protocol No. 11 (ETS No. 155).

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Article 14

Discrimination

Article 14 contains a prohibition of discrimination. This prohibition is broad in some ways, and narrow in others.

On the one hand, the article protects against discrimination based on any of a wide range of grounds. The article

provides a list of such grounds, including sex, race, colour, language, religion and several other criteria, and most

signiﬁ cantly providing that this list is non-exhaustive. On the other hand, the article’s scope is limited only to

discrimination with respect to rights under the Convention. Thus, an applicant must prove discrimination in the

enjoyment of a speciﬁ c right that is guaranteed elsewhere in the Convention (e.g. discrimination based on sex -

Article 14 - in the enjoyment of the right to freedom of expression - Article 10). Protocol 12 extends this prohibition

to cover discrimination in any legal right, even when that legal right is not protected under the Convention, so long

as it is provided for in national law.

(...)

2. 1985 Convention implementing the Schengen Agreement

The KINGDOM OF BELGIUM, the FEDERAL REPUBLIC OF GERMANY, the FRENCH REPUBLIC, the GRAND DUCHY

OF LUXEMBOURG and the KINGDOM OF THE NETHERLANDS, hereinafter referred to as the Contracting Parties,

TAKING as their basis the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common

borders,

HAVING DECIDED to fulﬁ l the resolve expressed in that Agreement to abolish checks at their common borders on

the movement of persons and facilitate the transport and movement of goods at those borders,

WHEREAS the Treaty establishing the European Communities, supplemented by the Single European Act, provides

that the internal market shall comprise an area without internal frontiers,

WHEREAS the aim pursued by the Contracting Parties is in keeping with that objective, without prejudice to the

measures to be taken to implement the provisions of the Treaty,

WHEREAS the fulﬁ lment of that resolve requires a series of appropriate measures and close cooperation between

the Contracting Parties,

HAVE AGREED AS FOLLOWS:

(…)

TITLE II - ABOLITION OF CHECKS AT INTERNAL BORDERS AND MOVEMENT OF PERSONS

CHAPTER 1

CROSSING INTERNAL BORDERS

Article 2

1. Internal borders may be crossed at any point without any checks on persons being carried out.

3 Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union,

the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders.

The ﬁ rst Schengen agreement between the ﬁ ve original contracting parties was signed on 14 June 1985. A further convention was signed in

1990 and came into effect in 1995, abolishing checks at the internal borders of the contracting states and creating a single external border.

The Schengen area was gradually extended to include every Member State of the EU: Italy (27 November 1990), Spain and Portugal (25 June

1991), Greece (6 November 1992), Austria (28 April 1995) and Denmark, Finland and Sweden (19 December 1996). The Member States that

joined the EU on 1 May 2004 are bound by the Schengen acquis, with certain provisions coming into force after border controls have been

abolished. Iceland, Norway and Switzerland also take part in the Schengen acquis. The texts of the Schengen acquis are available on the

European Commission website: http://eur-lex.europa.eu/LexUriServ/site/en/oj/2000/l_239/l_23920000922en00010473.pdf.

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2. However, where public policy or national security so require a Contracting Party may, after consulting the other

Contracting Parties, decide that for a limited period national border checks appropriate to the situation shall be

carried out at internal borders. If public policy or national security require immediate action, the Contracting Party

concerned shall take the necessary measures and at the earliest opportunity shall inform the other Contracting

Parties thereof.

3. The abolition of checks on persons at internal borders shall not affect the provisions laid down in Article 22, or

the exercise of police powers throughout a Contracting Party’s territory by the competent authorities under that

Party’s law, or the requirement to hold, carry and produce permits and documents provided for in that Party’s law.

4. Checks on goods shall be carried out in accordance with the relevant provisions of this Convention.

CHAPTER 2

CROSSING EXTERNAL BORDERS

Article 3

1. External borders may in principle only be crossed at border crossing points and during the ﬁ xed opening hours.

More detailed provisions, exceptions and arrangements for local border trafﬁ c, and rules governing special categories

of maritime trafﬁ c such as pleasure boating and coastal ﬁ shing, shall be adopted by the Executive Committee.

2. The Contracting Parties undertake to introduce penalties for the unauthorised crossing of external borders at

places other than crossing points or at times other than the ﬁ xed opening hours.

Article 4

1. The Contracting Parties shall ensure that, as from 1993, passengers on ﬂ ights from third States who transfer

onto internal ﬂ ights will be subject to an entry check, together with their hand baggage, at the airport at which the

external ﬂ ight arrives. Passengers on internal ﬂ ights who transfer onto ﬂ ights bound for third States will be subject

to a departure check, together with their hand baggage, at the airport from which the external ﬂ ight departs.

2. The Contracting Parties shall take the necessary measures to ensure that checks are carried out in accordance

with paragraph 1.

3. Neither paragraph 1 nor paragraph 2 shall affect checks on registered baggage; such checks shall be carried

out either in the airport of ﬁ nal destination or in the airport of initial departure.

4. Until the date laid down in paragraph 1, airports shall, by way of derogation from the deﬁ nition of internal borders,

be considered as external borders for internal ﬂ ights.

Article 5

1. For stays not exceeding three months, aliens fulﬁ lling the following conditions may be granted entry into the

territories of the Contracting Parties:

(a) that the aliens possess a valid document or documents, as deﬁ ned by the Executive Committee, authorising

them to cross the border;

(b) that the aliens are in possession of a valid visa if required;

that they have sufﬁ cient means of subsistence, both for the period of the intended stay and for the return to their

country of origin or transit to a third State into which they are certain to be admitted, or are in a position to acquire

such means lawfully;

(d) that the aliens shall not be persons for whom an alert has been issued for the purposes of refusing entry;

(e) that the aliens shall not be considered to be a threat to public policy, national security or the international relations

of any of the Contracting Parties.

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3. Protocol on Asylum for Nationals of Member States of the

European Union (Page 103 of the Treaty of Amsterdam)

Given the level of protection of fundamental rights and freedoms by the Member States of the European Union,

Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and

practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a

Member State may be taken into consideration or declared admissible for processing by another Member State

only in the following cases:

(a) if the Member State of which the applicant is a national proceeds after the entry into force of the Treaty of

Amsterdam, availing itself of the provisions of Article 15 of the Convention for the Protection of Human Rights and

Fundamental Freedoms, to take measures derogating in its territory from its obligations under that Convention;

(b) if the procedure referred to in Article F.1(1) of the Treaty on European Union has been initiated and until the

Council takes a decision in respect thereof;

of the Member State which the applicant is a national, the existence of a serious and persistent breach by that

Member State of principles mentioned in Article F(1);

(d) if a Member State should so decide unilaterally in respect of the application of a national of another Member

State; in that case the Council shall be immediately informed; the application shall be dealt with on the basis of the

presumption that it is manifestly unfounded without affecting in any way, whatever the cases may be, the decision-

making power of the Member State.

4. 2000 Council Regulation on Eurodac

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose of ‘Eurodac’

1. A system known as ‘Eurodac’ is hereby established, the purpose of which shall be to assist in determining which

Member State is to be responsible pursuant to the Dublin

Convention for examining an application for asylum lodged in a Member State, and otherwise to facilitate the

application of the Dublin Convention under the conditions set out in this Regulation.

2. Eurodac shall consist of:

(a) the Central Unit referred to in Article 3;

(b) a computerised central database in which the data referred to in Article 5(1), Article 8(2) and Article 11(2) are

processed for the purpose of comparing the ﬁ ngerprint data of applicants for asylum and of the categories of aliens

referred to in Article 8(1) and Article 11(1);

The rules governing Eurodac shall also apply to operations effected by the Member States as from the transmission

of data to the Central Unit until use is made of the results of the comparison.

4 Commonly referred to as the Spanish Protocol, annexed to the Treaty of Amsterdam, which was signed on 2 October 1997 and came into force

on 1 May 1999.

5 Council Regulation No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of ﬁ ngerprints for the

effective application of the Dublin Convention.

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3. Without prejudice to the use of data intended for Eurodac by the Member State of origin in databases set up

under the latter’s national law, ﬁ ngerprint data and other personal data may be processed in Eurodac only for the

purposes set out in Article 15(1) of the Dublin Convention.

Article 3

Central Unit

1. A Central Unit shall be established within the Commission which shall be responsible for operating the central

database referred to in Article 1(2)(b) on behalf of the Member States. The Central Unit shall be equipped with a

computerised ﬁ ngerprint recognition system.

2. Data on applicants for asylum, persons covered by Article 8 and persons covered by Article 11 which are

processed at the Central Unit shall be processed on behalf of the Member State of origin under the conditions set

out in this Regulation.

3. The Central Unit shall draw up statistics on its work every quarter, indicating:

(a) the number of data sets transmitted on applicants for asylum and the persons referred to in Articles 8(1) and 11(1);

(b) the number of hits for applicants for asylum who have lodged an application for asylum in another Member State;

(d) the number of hits for persons referred to in Article 11(1) who had previously lodged an application for asylum

in another Member State;

(e) the number of ﬁ ngerprint data which the Central Unit had to request a second time from the Member States

of origin because the ﬁ ngerprint data originally transmitted did not lend themselves to comparison using the

computerised ﬁ ngerprint recognition system.

At the end of each year, statistical data shall be established in the form of a compilation of the quarterly statistics

drawn up since the beginning of Eurodac’s activities, including an indication of the number of persons for whom

hits have been recorded under (b), (c) and (d).

The statistics shall contain a breakdown of data for each Member State.

4. Pursuant to the procedure laid down in Article 23(2), the Central Unit may be charged with carrying out certain

other statistical tasks on the basis of the data processed at the Central Unit.

CHAPTER II

APPLICANTS FOR ASYLUM

Article 5(1)

Recording of data

1. Only the following data shall be recorded in the central database:

(a) Member State of origin, place and date of the application for asylum;

(b) ﬁ ngerprint data;

(d) reference number used by the Member State of origin;

(e) date on which the ﬁ ngerprints were taken;

(f) date on which the data were transmitted to the Central Unit;

(g) date on which the data were entered in the central database;

(h) details in respect of the recipient(s) of the data transmitted and the date(s) of transmission(s).

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5. 2001 Council Directive on Temporary Protection

CHAPTER I

General provisions

Article 1

The purpose of this Directive is to establish minimum standards for giving temporary protection in the event of a mass

inﬂ ux of displaced persons from third countries who are unable to return to their country of origin and to promote

a balance of effort between Member States in receiving and bearing the consequences of receiving such persons.

Article 2

For the purposes of this Directive:

(a) “temporary protection” means a procedure of exceptional character to provide, in the event of a mass inﬂ ux or

imminent mass inﬂ ux of displaced persons from third countries who are unable to return to their country of origin,

immediate and temporary protection to such persons, in particular if there is also a risk that the asylum system will

be unable to process this inﬂ ux without adverse effects for its efﬁ cient operation, in the interests of the persons

concerned and other persons requesting protection;

(b) “Geneva Convention” means the Convention of 28 July 1951 relating to the status of refugees, as amended by

the New York Protocol of 31 January 1967;

region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and

are unable to return in safe and durable conditions because of the situation prevailing in that country, who may

fall within the scope of Article 1A of the Geneva Convention or other international or national instruments giving

international protection, in particular:

(i) persons who have ﬂ ed areas of armed conﬂ ict or endemic violence;

(ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human

rights;

(d) “mass inﬂ ux” means arrival in the Community of a large number of displaced persons, who come from a speciﬁ c

country or geographical area, whether their arrival in the Community was spontaneous or aided, for example through

an evacuation programme;

(...)

Article 3

1. Temporary protection shall not prejudge recognition of refugee status under the Geneva Convention.

2. Member States shall apply temporary protection with due respect for human rights and fundamental freedoms

and their obligations regarding non-refoulement.

3. The establishment, implementation and termination of temporary protection shall be the subject of regular

consultations with the Ofﬁ ce of the United Nations High Commissioner for Refugees (UNHCR) and other relevant

international organisations.

4. This Directive shall not apply to persons who have been accepted under temporary protection schemes prior

to its entry into force.

5. This Directive shall not affect the prerogative of the Member States to adopt or retain more favourable conditions

for persons covered by temporary protection.

6 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving protection in the event of mass inﬂ ux of displaced persons

and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof

(Temporary Protection Directive).

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CHAPTER II

Duration and implementation of temporary protection

Article 4

1. Without prejudice to Article 6, the duration of temporary protection shall be one year. Unless terminated under

the terms of Article 6(1)(b), it may be extended automatically by six monthly periods for a maximum of one year.

(...)

Article 5

1. The existence of a mass inﬂ ux of displaced persons shall be established by a Council Decision adopted by a

qualiﬁ ed majority on a proposal from the Commission, which shall also examine any request by a Member State

that it submit a proposal to the Council.

2. The Commission proposal shall include at least:

(a) a description of the speciﬁ c groups of persons to whom the temporary protection will apply;

(b) the date on which the temporary protection will take effect;

3. The Council Decision shall have the effect of introducing temporary protection for the displaced persons to which it

refers, in all the Member States, in accordance with the provisions of this Directive. The Decision shall include at least:

(a) a description of the speciﬁ c groups of persons to whom the temporary protection applies;

(b) the date on which the temporary protection will take effect;

(d) information from the Commission, UNHCR and other relevant international organisations.

4. The Council Decision shall be based on:

(a) an examination of the situation and the scale of the movements of displaced persons;

(b) an assessment of the advisability of establishing temporary protection, taking into account the potential for

emergency aid and action on the ground or the inadequacy of such measures;

organisations.

5. The European Parliament shall be informed of the Council Decision.

Article 6

1. Temporary protection shall come to an end:

(a) when the maximum duration has been reached; or

(b) at any time, by Council Decision adopted by a qualiﬁ ed majority on a proposal from the Commission, which

shall also examine any request by a Member State that it submit a proposal to the Council.

2. The Council Decision shall be based on the establishment of the fact that the situation in the country of origin is

such as to permit the safe and durable return of those granted temporary protection with due respect for human rights

and fundamental freedoms and Member States’ obligations regarding non-refoulement. The European Parliament

shall be informed of the Council Decision.

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Article 7

1. Member States may extend temporary protection as provided for in this Directive to additional categories of

displaced persons over and above those to whom the Council Decision provided for in Article 5 applies, where they

are displaced for the same reasons and from the same country or region of origin. They shall notify the Council and

the Commission immediately.

(...)

Article 17

1. Persons enjoying temporary protection must be able to lodge an application for asylum at any time.

2. The examination of any asylum application not processed before the end of the period of temporary protection

shall be completed after the end of that period.

(...)

Article 19

1. The Member States may provide that temporary protection may not be enjoyed concurrently with the status of

asylum seeker while applications are under consideration.

2. Where, after an asylum application has been examined, refugee status or, where applicable, other kind of protection

is not granted to a person eligible for or enjoying temporary protection, the Member States shall, without prejudice

to Article 28, provide for that person to enjoy or to continue to enjoy temporary protection for the remainder of the

period of protection.

CHAPTER VIII

Special provisions

Article 28

1. The Member States may exclude a person from temporary protection if:

(a) there are serious reasons for considering that:

(i) he or she has committed a crime against peace, a war crime, or a crime against humanity, as deﬁ ned in the

international instruments drawn up to make provision in respect of such crimes;

(ii) he or she has committed a serious non-political crime outside the Member State of reception prior to his or her

admission to that Member State as a person enjoying temporary protection. The severity of the expected persecution

is to be weighed against the nature of the criminal offence of which the person concerned is suspected. Particularly

cruel actions, even if committed with an allegedly political objective, may be classiﬁ ed as serious non-political

crimes. This applies both to the participants in the crime and to its instigators;

(iii) he or she has been guilty of acts contrary to the purposes and principles of the United Nations;

(b) there are reasonable grounds for regarding him or her as a danger to the security of the host Member State or,

having been convicted by a ﬁ nal judgment of a particularly serious crime, he or she is a danger to the community

of the host Member State.

2. The grounds for exclusion referred to in paragraph 1 shall be based solely on the personal conduct of the person

concerned. Exclusion decisions or measures shall be based on the principle of proportionality.

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6. 2003 Council Directive on the Reception of Asylum-Seekers

(Reception Conditions Directive)

Article 1

Purpose

The purpose of this Directive is to lay down minimum standards for the reception of asylum seekers in Member States.

(...)

Article 3

Scope

1. This Directive shall apply to all third country nationals and stateless persons who make an application for asylum

at the border or in the territory of a Member State as long as they are allowed to remain on the territory as asylum

seekers, as well as to family members, if they are covered by such application for asylum according to the national law.

2. This Directive shall not apply in cases of requests for diplomatic or territorial asylum submitted to representations

of Member States.

3. This Directive shall not apply when the provisions of Council Directive 2001/55/EC of 20 July 2001 on minimum

standards for giving temporary protection in the event of a mass inﬂ ux of displaced persons and on measures

promoting a balance of efforts between Member States in receiving such persons and bearing the consequences

thereof(5) are applied.

4. Member States may decide to apply this Directive in connection with procedures for deciding on applications for

kinds of protection other than that emanating from the Geneva Convention for third-country nationals or stateless

persons who are found not to be refugees.

Article 4

More favourable provisions

Member States may introduce or retain more favourable provisions in the ﬁ eld of reception conditions for asylum

seekers and other close relatives of the applicant who are present in the same Member State when they are

dependent on him or for humanitarian reasons insofar as these provisions are compatible with this Directive.

CHAPTER II

GENERAL PROVISIONS ON RECEPTION CONDITIONS

Article 5

Information

1. Member States shall inform asylum seekers, within a reasonable time not exceeding ﬁ fteen days after they have

lodged their application for asylum with the competent authority, of at least any established beneﬁ ts and of the

obligations with which they must comply relating to reception conditions.

Member States shall ensure that applicants are provided with information on organisations or groups of persons

that provide speciﬁ c legal assistance and organisations that might be able to help or inform them concerning the

available reception conditions, including health care.

7 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers (Reception Conditions

Directive).

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2. Member States shall ensure that the information referred to in paragraph 1 is in writing and, as far as possible,

in a language that the applicants may reasonably be supposed to understand. Where appropriate, this information

may also be supplied orally.

Article 6

Documentation

1. Member States shall ensure that, within three days after an application is lodged with the competent authority,

the applicant is provided with a document issued in his or her own name certifying his or her status as an asylum

seeker or testifying that he or she is allowed to stay in the territory of the Member State while his or her application

is pending or being examined.

If the holder is not free to move within all or a part of the territory of the Member State, the document shall also

certify this fact.

2. Member States may exclude application of this Article when the asylum seeker is in detention and during the

examination of an application for asylum made at the border or within the context of a procedure to decide on the

right of the applicant legally to enter the territory of a Member State. In speciﬁ c cases, during the examination of

an application for asylum, Member States may provide applicants with other evidence equivalent to the document

referred to in paragraph 1.

3. The document referred to in paragraph 1 need not certify the identity of the asylum seeker.

4. Member States shall adopt the necessary measures to provide asylum seekers with the document referred to in

paragraph 1, which must be valid for as long as they are authorised to remain in the territory of the Member State

concerned or at the border thereof.

5. Member States may provide asylum seekers with a travel document when serious humanitarian reasons arise

that require their presence in another State.

Article 7

Residence and freedom of movement

1. Asylum seekers may move freely within the territory of the host Member State or within an area assigned to

them by that Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow

sufﬁ cient scope for guaranteeing access to all beneﬁ ts under this Directive.

2. Member States may decide on the residence of the asylum seeker for reasons of public interest, public order or,

when necessary, for the swift processing and effective monitoring of his or her application.

3. When it proves necessary, for example for legal reasons or reasons of public order, Member States may conﬁ ne

an applicant to a particular place in accordance with their national law.

4. Member States may make provision of the material reception conditions subject to actual residence by the

applicants in a speciﬁ c place, to be determined by the Member States. Such a decision, which may be of a general

nature, shall be taken individually and established by national legislation.

5. Member States shall provide for the possibility of granting applicants temporary permission to leave the place

of residence mentioned in paragraphs 2 and 4 and/or the assigned area mentioned in paragraph 1. Decisions shall

be taken individually, objectively and impartially and reasons shall be given if they are negative.

The applicant shall not require permission to keep appointments with authorities and courts if his or her appearance

is necessary.

6. Member States shall require applicants to inform the competent authorities of their current address and notify

any change of address to such authorities as soon as possible.

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Article 8

Families

Member States shall take appropriate measures to maintain as far as possible family unity as present within

their territory, if applicants are provided with housing by the Member State concerned. Such measures shall be

implemented with the asylum seeker’s agreement.

(...)

Article 10

Schooling and education of minors

1. Member States shall grant to minor children of asylum seekers and to asylum seekers who are minors access to

the education system under similar conditions as nationals of the host Member State for so long as an expulsion

measure against them or their parents is not actually enforced. Such education may be provided in accommodation

centres.

(...)

Article 11

Employment

1. Member States shall determine a period of time, starting from the date on which an application for asylum was

lodged, during which an applicant shall not have access to the labour market.

2. If a decision at ﬁ rst instance has not been taken within one year of the presentation of an application for asylum

and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access

to the labour market for the applicant.

3. Access to the labour market shall not be withdrawn during appeals procedures, where an appeal against a negative

decision in a regular procedure has suspensive effect, until such time as a negative decision on the appeal is notiﬁ ed.

4. For reasons of labour market policies, Member States may give priority to EU citizens and nationals of States

parties to the Agreement on the European Economic Area and also to legally resident third-country nationals.

(...)

Article 13

General rules on material reception conditions and health care

1. Member States shall ensure that material reception conditions are available to applicants when they make their

application for asylum.

2. Member States shall make provisions on material reception conditions to ensure a standard of living adequate

for the health of applicants and capable of ensuring their subsistence.

Member States shall ensure that that standard of living is met in the speciﬁ c situation of persons who have special

needs, in accordance with Article 17, as well as in relation to the situation of persons who are in detention.

3. Member States may make the provision of all or some of the material reception conditions and health care subject

to the condition that applicants do not have sufﬁ cient means to have a standard of living adequate for their health

and to enable their subsistence.

4. Member States may require applicants to cover or contribute to the cost of the material reception conditions

and of the health care provided for in this Directive, pursuant to the provision of paragraph 3, if the applicants have

sufﬁ cient resources, for example if they have been working for a reasonable period of time.

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If it transpires that an applicant had sufﬁ cient means to cover material reception conditions and health care at the

time when these basic needs were being covered, Member States may ask the asylum seeker for a refund.

5. Material reception conditions may be provided in kind, or in the form of ﬁ nancial allowances or vouchers or in a

combination of these provisions.

Where Member States provide material reception conditions in the form of ﬁ nancial allowances or vouchers, the

amount thereof shall be determined in accordance with the principles set out in this Article.

(...)

Article 15

Health care

1. Member States shall ensure that applicants receive the necessary health care which shall include, at least,

emergency care and essential treatment of illness.

2. Member States shall provide necessary medical or other assistance to applicants who have special needs.

Article 16– Reduction or withdrawal of receptions conditions

1. Member States may reduce or withdraw reception conditions in the following cases:

(a) where an asylum seeker:

- abandons the place of residence determined by the competent authority without informing it or, if requested,

without permission, or

- does not comply with reporting duties or with requests to provide information or to appear for personal interviews

concerning the asylum procedure during a reasonable period laid down in national law, or

- has already lodged an application in the same Member State.

When the applicant is traced or voluntarily reports to the competent authority, a duly motivated decision, based on

the reasons for the disappearance, shall be taken on the reinstallation of the grant of some or all of the reception

conditions;

(b) where an applicant has concealed ﬁ nancial resources and has therefore unduly beneﬁ ted from material reception

conditions.

If it transpires that an applicant had sufﬁ cient means to cover material reception conditions and health care at the

time when these basic needs were being covered, Member States may ask the asylum seeker for a refund.

2. Member States may refuse conditions in cases where an asylum seeker has failed to demonstrate that the asylum

claim was made as soon as reasonably practicable after arrival in that Member State.

3. Member States may determine sanctions applicable to serious breaching of the rules of the accommodation

centres as well as to seriously violent behaviour.

4. Decisions for reduction, withdrawal or refusal of reception conditions or sanctions referred to in paragraphs

1, 2 and 3 shall be taken individually, objectively and impartially and reasons shall be given. Decisions shall be

based on the particular situation of the person concerned, especially with regard to persons covered by Article 17,

taking into account the principle of proportionality. Member States shall under all circumstances ensure access to

emergency health care.

5. Member States shall ensure that material reception conditions are not withdrawn or reduced before a negative

decision is taken.

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(...)

Article 19

Unaccompanied minors

1. Member States shall as soon as possible take measures to ensure the necessary representation of unaccompanied

minors by legal guardianship or, where necessary, representation by an organisation which is responsible for the

care and well-being of minors, or by any other appropriate representation. Regular assessments shall be made by

the appropriate authorities.

2. Unaccompanied minors who make an application for asylum shall, from the moment they are admitted to the

territory to the moment they are obliged to leave the host Member State in which the application for asylum was

made or is being examined, be placed:

(a) with adult relatives;

(b) with a foster-family;

(d) in other accommodation suitable for minors.

Member States may place unaccompanied minors aged 16 or over in accommodation centres for adult asylum

seekers.

As far as possible, siblings shall be kept together, taking into account the best interests of the minor concerned

and, in particular, his or her age and degree of maturity. Changes of residence of unaccompanied minors shall be

limited to a minimum.

3. Member States, protecting the unaccompanied minor’s best interests, shall endeavour to trace the members of

his or her family as soon as possible. In cases where there may be a threat to the life or integrity of the minor or his

or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that

the collection, processing and circulation of information concerning those persons is undertaken on a conﬁ dential

basis, so as to avoid jeopardising their safety.

4. Those working with unaccompanied minors shall have had or receive appropriate training concerning their needs,

and shall be bound by the conﬁ dentiality principle as deﬁ ned in the national law, in relation to any information they

obtain in the course of their work.

(...)

7. 2003 Council Regulation on the Criteria and Mechanisms for

Determining the Member State responsible for Examining an

Asylum Application (Dublin II Regulation)

CHAPTER II

GENERAL PRINCIPLES

Article 3

1. Member States shall examine the application of any third-country national who applies at the border or in their

territory to any one of them for asylum. The application shall be examined by a single Member State, which shall

be the one which the criteria set out in Chapter III indicate is responsible.

8 Council Regulation No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible

for examining an asylum application lodged in one of the Member States by a third-country national (Dublin II Regulation).

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2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with

it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this

Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of

this Regulation and shall assume the obligations associated with that responsibility. Where appropriate, it shall inform

the Member State previously responsible, the Member State conducting a procedure for determining the Member

State responsible or the Member State which has been requested to take charge of or take back the applicant.

3. Any Member State shall retain the right, pursuant to its national laws, to send an asylum seeker to a third country,

in compliance with the provisions of the Geneva Convention.

4. The asylum seeker shall be informed in writing in a language that he or she may reasonably be expected to

understand regarding the application of this Regulation, its time limits and its effects.

Article 4

1. The process of determining the Member State responsible under this Regulation shall start as soon as an

application for asylum is ﬁ rst lodged with a Member State.

2. An application for asylum shall be deemed to have been lodged once a form submitted by the applicant for asylum

or a report prepared by the authorities has reached the competent authorities of the Member State concerned. Where

an application is not made in writing, the time elapsing between the statement of intention and the preparation of

a report should be as short as possible.

3. For the purposes of this Regulation, the situation of a minor who is accompanying the asylum seeker and meets

the deﬁ nition of a family member set out in Article 2, point (i), shall be indissociable from that of his parent or

guardian and shall be a matter for the Member State responsible for examining the application for asylum of that

parent or guardian, even if the minor is not individually an asylum seeker. The same treatment shall be applied to

children born after the asylum seeker arrives in the territory of the Member States, without the need to initiate a

new procedure for taking charge of them.

4. Where an application for asylum is lodged with the competent authorities of a Member State by an applicant

who is in the territory of another Member State, the determination of the Member State responsible shall be made

by the Member State in whose territory the applicant is present. The latter Member State shall be informed without

delay by the Member State which received the application and shall then, for the purposes of this Regulation, be

regarded as the Member State with which the application for asylum was lodged.

The applicant shall be informed in writing of this transfer and of the date on which it took place.

5. An asylum seeker who is present in another Member State and there lodges an application for asylum after

withdrawing his application during the process of determining the Member State responsible shall be taken back,

under the conditions laid down in Article 20, by the Member State with which that application for asylum was

lodged, with a view to completing the process of determining the Member State responsible for examining the

application for asylum.

This obligation shall cease, if the asylum seeker has in the meantime left the territories of the Member States for a

period of at least three months or has obtained a residence document from a Member State.

CHAPTER III

HIERARCHY OF CRITERIA

Article 5

1. The criteria for determining the Member State responsible shall be applied in the order in which they are set out

in this Chapter.

2. The Member State responsible in accordance with the criteria shall be determined on the basis of the situation

obtaining when the asylum seeker ﬁ rst lodged his application with a Member State.

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Article 6

Where the applicant for asylum is an unaccompanied minor, the Member State responsible for examining the

application shall be that where a member of his or her family is legally present, provided that this is in the best

interest of the minor.

In the absence of a family member, the Member State responsible for examining the application shall be that where

the minor has lodged his or her application for asylum.

Article 7

Where the asylum seeker has a family member, regardless of whether the family was previously formed in the country

of origin, who has been allowed to reside as a refugee in a Member State, that Member State shall be responsible

for examining the application for asylum, provided that the persons concerned so desire.

(...)

Article 9

1. Where the asylum seeker is in possession of a valid residence document, the Member State which issued the

document shall be responsible for examining the application for asylum.

2. Where the asylum seeker is in possession of a valid visa, the Member State which issued the visa shall be

responsible for examining the application for asylum, unless the visa was issued when acting for or on the written

authorisation of another Member State. In such a case, the latter Member State shall be responsible for examining

the application for asylum. Where a Member State ﬁ rst consults the central authority of another Member State, in

particular for security reasons, the latter’s reply to the consultation shall not constitute written authorisation within

the meaning of this provision.

(...)

Article 10

1. Where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned

in Article 18(3), including the data referred to in Chapter III of Regulation (EC) No 2725/2000, that an asylum seeker

has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the

Member State thus entered shall be responsible for examining the application for asylum. This responsibility shall

cease 12 months after the date on which the irregular border crossing took place.

(...)

Article 12

Where the application for asylum is made in an international transit area of an airport of a Member State by a third-

country national, that Member State shall be responsible for examining the application.

(...)

CHAPTER V

TAKING CHARGE AND TAKING BACK

Article 16

1. The Member State responsible for examining an application for asylum under this Regulation shall be obliged to:

(a) take charge, under the conditions laid down in Articles 17 to 19, of an asylum seeker who has lodged an

application in a different Member State;

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(b) complete the examination of the application for asylum;

and who is in the territory of another Member State without permission;

(d) take back, under the conditions laid down in Article 20, an applicant who has withdrawn the application under

examination and made an application in another Member State;

(e) take back, under the conditions laid down in Article 20, a third-country national whose application it has rejected

and who is in the territory of another Member State without permission.

2. Where a Member State issues a residence document to the applicant, the obligations speciﬁ ed in paragraph 1

shall be transferred to that Member State.

3. The obligations speciﬁ ed in paragraph 1 shall cease where the third-country national has left the territory of the

Member States for at least three months, unless the third-country national is in possession of a valid residence

document issued by the Member State responsible.

4. The obligations speciﬁ ed in paragraph 1(d) and (e) shall likewise cease once the Member State responsible

for examining the application has adopted and actually implemented, following the withdrawal or rejection of the

application, the provisions that are necessary before the third-country national can go to his country of origin or to

another country to which he may lawfully travel.

Article 17

1. Where a Member State with which an application for asylum has been lodged considers that another Member

State is responsible for examining the application, it may, as quickly as possible and in any case within three months

of the date on which the application was lodged within the meaning of Article 4(2), call upon the other Member

State to take charge of the applicant.

Where the request to take charge of an applicant is not made within the period of three months, responsibility for

examining the application for asylum shall lie with the Member State in which the application was lodged.

2. The requesting Member State may ask for an urgent reply in cases where the application for asylum was lodged

after leave to enter or remain was refused, after an arrest for an unlawful stay or after the service or execution of a

removal order and/or where the asylum seeker is held in detention.

(...)

CHAPTER VI

ADMINISTRATIVE COOPERATION

Article 21

1. Each Member State shall communicate to any Member State that so requests such personal data concerning

the asylum seeker as is appropriate, relevant and non-excessive for:

(a) the determination of the Member State responsible for examining the application for asylum;

(b) examining the application for asylum;

2. The information referred to in paragraph 1 may only cover:

(a) personal details of the applicant, and, where appropriate, the members of his family (full name and where

appropriate, former name; nicknames or pseudonyms; nationality, present and former; date and place of birth);

(b) identity and travel papers (references, validity, date of issue, issuing authority, place of issue, etc.);

accordance with Regulation (EC) No 2725/2000;

(d) places of residence and routes travelled;

(e) residence documents or visas issued by a Member State;

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(f) the place where the application was lodged;

(g) the date any previous application for asylum was lodged, the date the present application was lodged, the stage

reached in the proceedings and the decision taken, if any.

(...)

8. 2004 Council Directive on Qualiﬁ cation and Status as Refugees

or Persons otherwise in Need of International Protection

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

The purpose of this Directive is to lay down minimum standards for the qualiﬁ cation of third country nationals or

stateless persons as refugees or as persons who otherwise need international protection and the content of the

protection granted.

(...)

Article 3

More favourable standards

Member States may introduce or retain more favourable standards for determining who qualiﬁ es as a refugee or

as a person eligible for subsidiary protection, and for determining the content of international protection, in so far

as those standards are compatible with this Directive.

(...)

CHAPTER III

QUALIFICATION FOR BEING A REFUGEE

Article 9

Acts of Persecution

1. Acts of persecution within the meaning of article 1 A of the Geneva Convention must:

(a) be sufﬁ ciently serious by their nature or repetition as to constitute a severe violation of basic human rights, in

particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the

Protection of Human Rights and Fundamental Freedoms; or

(b) be an accumulation of various measures, including violations of human rights which is sufﬁ ciently severe as to

affect an individual in a similar manner as mentioned in (a).

2. Acts of persecution as qualiﬁ ed in paragraph 1, can, inter alia, take the form of:

(a) acts of physical or mental violence, including acts of sexual violence;

(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are

implemented in a discriminatory manner;

9 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualiﬁ cation and status of third country nationals or stateless

persons as refugees or as persons who otherwise need international protection and the content of the protection granted (Qualiﬁ cation

Directive).

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(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e) prosecution or punishment for refusal to perform military service in a conﬂ ict, where performing military service

would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);

(f) acts of a gender-speciﬁ c or child-speciﬁ c nature.

3. In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the

acts of persecution as qualiﬁ ed in paragraph 1.

Article 10

Reasons for Persecution

1. Member States shall take the following elements into account when assessing the reasons for persecution:

(a) the concept of race shall in particular include considerations of colour, descent, or membership of a particular

ethnic group;

(b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the

participation in, or abstention from, formal worship in private or in public, either alone or in community with others,

other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by

any religious belief;

membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political

origins or its relationship with the population of another State;

(d) a group shall be considered to form a particular social group where in particular:

members of that group share an innate characteristic, or a common background that cannot be changed, or share

a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to

renounce it, and

that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding

society;

depending on the circumstances in the country of origin, a particular social group might include a group based on

a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered

to be criminal in accordance with national law of the Member States: Gender related aspects might be considered,

without by themselves alone creating a presumption for the applicability of this Article;

(e) the concept of political opinion shall in particular include the holding of an opinion, thought or belief on a matter

related to the potential actors of persecution mentioned in Article 6 and to their policies or methods, whether or

not that opinion, thought or belief has been acted upon by the applicant.

2. When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant

actually possesses the racial, religious, national, social or political characteristic which attracts the persecution,

provided that such a characteristic is attributed to the applicant by the actor of persecution.

Article 11

Cessation

1. A third country national or a stateless person shall cease to be a refugee, if he or she:

(a) has voluntarily re-availed himself or herself of the protection of the country of nationality; or

(b) having lost his or her nationality, has voluntarily re-acquired it; or

(d) has voluntarily re-established himself or herself in the country which he or she left or outside which he or she

remained owing to fear of persecution; or

(e) can no longer, because the circumstances in connection with which he or she has been recognised as a refugee

have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality;

(f) being a stateless person with no nationality, he or she is able, because the circumstances in connection with

which he or she has been recognised as a refugee have ceased to exist, to return to the country of former habitual

residence.

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2. In considering points (e) and (f) of paragraph 1, Member States shall have regard to whether the change of

circumstances is of such a signiﬁ cant and non-temporary nature that the refugee’s fear of persecution can no

longer be regarded as well-founded.

Article 12

Exclusion

1. A third country national or a stateless person is excluded from being a refugee, if:

(a) he or she falls within the scope of Article 1 D of the Geneva Convention, relating to protection or assistance from

organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees. When

such protection or assistance has ceased for any reason, without the position of such persons being deﬁ nitely

settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these

persons shall ipso facto be entitled to the beneﬁ ts of this Directive;

(b) he or she is recognised by the competent authorities of the country in which he or she has taken residence as

having the rights and obligations which are attached to the possession of the nationality of that country; or rights

and obligations equivalent to those.

2. A third country national or a stateless person is excluded from being a refugee where there are serious reasons

for considering that:

(a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as deﬁ ned in the

international instruments drawn up to make provision in respect of such crimes;

(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission

as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly

cruel actions, even if committed with an allegedly political objective, may be classiﬁ ed as serious non-political crimes;

Preamble and Articles 1 and 2 of the Charter of the United Nations.

3. Paragraph 2 applies to persons who instigate or otherwise participate in the commission of the crimes or acts

mentioned therein.

CHAPTER IV

REFUGEE STATUS

Article 13

Granting of refugee status

Member States shall grant refugee status to a third country national or a stateless person, who qualiﬁ es as a refugee

in accordance with Chapters II and III.

Article 14

Revocation of, ending of or refusal to renew refugee status

1. Concerning applications for international protection ﬁ led after the entry into force of this Directive, Member

States shall revoke, end or refuse to renew the refugee status of a third country national or a stateless person

granted by a governmental, administrative, judicial or quasi-judicial body, if he or she has ceased to be a refugee

in accordance with Article 11.

2. Without prejudice to the duty of the refugee in accordance with Article 4(1) to disclose all relevant facts and

provide all relevant documentation at his/her disposal, the Member State, which has granted refugee status, shall

on an individual basis demonstrate that the person concerned has ceased to be or has never been a refugee in

accordance with paragraph 1 of this Article.

3. Member States shall revoke, end or refuse to renew the refugee status of a third country national or a stateless

person, if, after he or she has been granted refugee status, it is established by the Member State concerned that:

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(a) he or she should have been or is excluded from being a refugee in accordance with Article 12;

(b) his or her misrepresentation or omission of facts, including the use of false documents, were decisive for the

granting of refugee status.

4. Member States may revoke, end or refuse to renew the status granted to a refugee by a governmental,

administrative, judicial or quasi-judicial body, when:

(a) there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which

he or she is present;

(b) he or she, having been convicted by a ﬁ nal judgement of a particularly serious crime, constitutes a danger to

the community of that Member State.

5. In situations described in paragraph 4, Member States may decide not to grant status to a refugee, where such

a decision has not yet been taken.

6. Persons to whom paragraphs 4 or 5 apply are entitled to rights set out in or similar to those set out in Articles 3,

4, 16, 22, 31 and 32 and 33 of the Geneva Convention in so far as they are present in the Member State.

CHAPTER V

QUALIFICATION FOR SUBSIDIARY PROTECTION

Article 15

Serious Harm

Serious harm consists of:

(a) death penalty or execution; or

(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

international or internal armed conﬂ ict.

(...)

CHAPTER VI

SUBSIDIARY PROTECTION STATUS

Article 18

Granting of subsidiary protection status

Member States shall grant subsidiary protection status to a third country national or a stateless person eligible for

subsidiary protection in accordance with Chapters II and V.

(...)

Article 21

Protection from refoulement

1. Member States shall respect the principle of non-refoulement in accordance with their international obligations.

2. Where not prohibited by the international obligations mentioned in paragraph 1, Member States may refoule a

refugee, whether formally recognised or not, when:

(a) there are reasonable grounds for considering him or her as a danger to the security of the Member State in

which he or she is present; or

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(b) he or she, having been convicted by a ﬁ nal judgement of a particularly serious crime, constitutes a danger to

the community of that Member State.

3. Member States may revoke, end or refuse to renew or to grant the residence permit of (or to) a refugee to whom

paragraph 2 applies.

9. 2005 Council Directive on Minimum Standards on Procedures in

Member States for Granting and Withdrawing Refugee Status

(Asylum Procedures Directive)

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

The purpose of this Directive is to establish minimum standards on procedures in Member States for granting and

withdrawing refugee status.

(...)

Article 3

Scope

1. This Directive shall apply to all applications for asylum made in the territory, including at the border or in the

transit zones of the Member States, and to the withdrawal of refugee status.

2. This Directive shall not apply in cases of requests for diplomatic or territorial asylum submitted to representations

of Member States.

3. Where Member States employ or introduce a procedure in which asylum applications are examined both as

applications on the basis of the Geneva Convention and as applications for other kinds of international protection

given under the circumstances deﬁ ned by Article 15 of Directive 2004/83/EC, they shall apply this Directive throughout

their procedure.

4. Moreover, Member States may decide to apply this Directive in procedures for deciding on applications for any

kind of international protection.

(...)

Article 5

More favourable provisions

Member States may introduce or maintain more favourable standards on procedures for granting and withdrawing

refugee status, insofar as those standards are compatible with this Directive.

10 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing

refugee status (Asylum Procedures Directive).

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CHAPTER II

BASIC PRINCIPLES AND GUARANTEES

Article 6

Access to the procedure

1. Member States may require that applications for asylum be made in person and/or at a designated place.

2. Member States shall ensure that each adult having legal capacity has the right to make an application for asylum

on his/her own behalf.

3. Member States may provide that an application may be made by an applicant on behalf of his/her dependants.

In such cases Member States shall ensure that dependant adults consent to the lodging of the application on their

behalf, failing which they shall have an opportunity to make an application on their own behalf.

Consent shall be requested at the time the application is lodged or, at the latest, when the personal interview with

the dependant adult is conducted.

4. Member States may determine in national legislation:

(a) the cases in which a minor can make an application on his/her own behalf;

(b) the cases in which the application of an unaccompanied minor has to be lodged by a representative as provided

for in Article 17(1)(a);

application for asylum for any unmarried minor.

5. Member States shall ensure that authorities likely to be addressed by someone who wishes to make an application

for asylum are able to advise that person how and where he/she may make such an application and/or may require

these authorities to forward the application to the competent authority.

Article 7

Right to remain in the Member State pending the examination of the application

1. Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the

determining authority has made a decision in accordance with the procedures at ﬁ rst instance set out in Chapter

III. This right to remain shall not constitute an entitlement to a residence permit.

2. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application

will not be further examined or where they will surrender or extradite, as appropriate, a person either to another

Member State pursuant to obligations in accordance with a European arrest warrant [6] or otherwise, or to a third

country, or to international criminal courts or tribunals.

Article 8

Requirements for the examination of applications

1. Without prejudice to Article 23(4)(i), Member States shall ensure that applications for asylum are neither rejected

nor excluded from examination on the sole ground that they have not been made as soon as possible.

2. Member States shall ensure that decisions by the determining authority on applications for asylum are taken

after an appropriate examination. To that end, Member States shall ensure that:

(a) applications are examined and decisions are taken individually, objectively and impartially;

(b) precise and up-to-date information is obtained from various sources, such as the United Nations High

Commissioner for Refugees (UNHCR), as to the general situation prevailing in the countries of origin of applicants

for asylum and, where necessary, in countries through which they have transited, and that such information is made

available to the personnel responsible for examining applications and taking decisions;

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applicable in the ﬁ eld of asylum and refugee law.

(...)

Article 9

Requirements for a decision by the determining authority

1. Member States shall ensure that decisions on applications for asylum are given in writing.

2. Member States shall also ensure that, where an application is rejected, the reasons in fact and in law are stated

in the decision and information on how to challenge a negative decision is given in writing.

Member States need not state the reasons for not granting refugee status in a decision where the applicant is

granted a status which offers the same rights and beneﬁ ts under national and Community law as the refugee status

by virtue of Directive 2004/83/EC. In these cases, Member States shall ensure that the reasons for not granting

refugee status are stated in the applicant’s ﬁ le and that the applicant has, upon request, access to his/her ﬁ le.

Moreover, Member States need not provide information on how to challenge a negative decision in writing in

conjunction with a decision where the applicant has been provided with this information at an earlier stage either

in writing or by electronic means accessible to the applicant.

3. For the purposes of Article 6(3), and whenever the application is based on the same grounds, Member States

may take one single decision, covering all dependants.

Article 10

Guarantees for applicants for asylum

1. With respect to the procedures provided for in Chapter III, Member States shall ensure that all applicants for

asylum enjoy the following guarantees:

(a) they shall be informed in a language which they may reasonably be supposed to understand of the procedure

to be followed and of their rights and obligations during the procedure and the possible consequences of not

complying with their obligations and not cooperating with the authorities. They shall be informed of the time-frame,

as well as the means at their disposal for fulﬁ lling the obligation to submit the elements as referred to in Article 4

of Directive 2004/83/EC. This information shall be given in time to enable them to exercise the rights guaranteed

in this Directive and to comply with the obligations described in Article 11;

(b) they shall receive the services of an interpreter for submitting their case to the competent authorities whenever

necessary. Member States shall consider it necessary to give these services at least when the determining authority

calls upon the applicant to be interviewed as referred to in Articles 12 and 13 and appropriate communication cannot

be ensured without such services. In this case and in other cases where the competent authorities call upon the

applicant, these services shall be paid for out of public funds;

on behalf of the UNHCR in the territory of the Member State pursuant to an agreement with that Member State;

(d) they shall be given notice in reasonable time of the decision by the determining authority on their application

for asylum. If a legal adviser or other counsellor is legally representing the applicant, Member States may choose

to give notice of the decision to him/her instead of to the applicant for asylum;

(e) they shall be informed of the result of the decision by the determining authority in a language that they may

reasonably be supposed to understand when they are not assisted or represented by a legal adviser or other

counsellor and when free legal assistance is not available. The information provided shall include information on

how to challenge a negative decision in accordance with the provisions of Article 9(2).

2. With respect to the procedures provided for in Chapter V, Member States shall ensure that all applicants for

asylum enjoy equivalent guarantees to the ones referred to in paragraph 1(b), (c) and (d) of this Article.

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Article 11

Obligations of the applicants for asylum

1. Member States may impose upon applicants for asylum obligations to cooperate with the competent authorities

insofar as these obligations are necessary for the processing of the application.

2. In particular, Member States may provide that:

(a) applicants for asylum are required to report to the competent authorities or to appear before them in person,

either without delay or at a speciﬁ ed time;

(b) applicants for asylum have to hand over documents in their possession relevant to the examination of the

application, such as their passports;

address and of any changes thereof as soon as possible. Member States may provide that the applicant shall have

to accept any communication at the most recent place of residence or address which he/she indicated accordingly;

(d) the competent authorities may search the applicant and the items he/she carries with him/her;

(e) the competent authorities may take a photograph of the applicant; and

(f) the competent authorities may record the applicant’s oral statements, provided he/she has previously been

informed thereof.

Article 12

Personal interview

1. Before a decision is taken by the determining authority, the applicant for asylum shall be given the opportunity

of a personal interview on his/her application for asylum with a person competent under national law to conduct

such an interview.

Member States may also give the opportunity of a personal interview to each dependant adult referred to in Article

6(3).

Member States may determine in national legislation the cases in which a minor shall be given the opportunity of

a personal interview.

(...)

Article 15

Right to legal assistance and representation

1. Member States shall allow applicants for asylum the opportunity, at their own cost, to consult in an effective

manner a legal adviser or other counsellor, admitted or permitted as such under national law, on matters relating

to their asylum applications.

2. In the event of a negative decision by a determining authority, Member States shall ensure that free legal assistance

and/or representation be granted on request, subject to the provisions of paragraph 3.

3. Member States may provide in their national legislation that free legal assistance and/or representation is granted:

(a) only for procedures before a court or tribunal in accordance with Chapter V and not for any onward appeals or

reviews provided for under national law, including a rehearing of an appeal following an onward appeal or review;

and/or

(b) only to those who lack sufﬁ cient resources; and/or

applicants for asylum; and/or

(d) only if the appeal or review is likely to succeed.

Member States shall ensure that legal assistance and/or representation granted under point (d) is not arbitrarily

restricted.

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4. Rules concerning the modalities for ﬁ ling and processing requests for legal assistance and/or representation

may be provided by Member States.

5. Member States may also:

(a) impose monetary and/or time-limits on the provision of free legal assistance and/or representation, provided

that such limits do not arbitrarily restrict access to legal assistance and/or representation;

(b) provide that, as regards fees and other costs, the treatment of applicants shall not be more favourable than the

treatment generally accorded to their nationals in matters pertaining to legal assistance.

6. Member States may demand to be reimbursed wholly or partially for any expenses granted if and when the

applicant’s ﬁ nancial situation has improved considerably or if the decision to grant such beneﬁ ts was taken on the

basis of false information supplied by the applicant.

Article 17

Guarantees for unaccompanied minors

1. With respect to all procedures provided for in this Directive and without prejudice to the provisions of Articles

12 and 14, Member States shall:

(a) as soon as possible take measures to ensure that a representative represents and/or assists the unaccompanied

minor with respect to the examination of the application. This representative can also be the representative referred

to in Article 19 of Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of

asylum seekers [7];

(b) ensure that the representative is given the opportunity to inform the unaccompanied minor about the meaning

and possible consequences of the personal interview and, where appropriate, how to prepare himself/herself for

the personal interview. Member States shall allow the representative to be present at that interview and to ask

questions or make comments, within the framework set by the person who conducts the interview.

Member States may require the presence of the unaccompanied minor at the personal interview, even if the

representative is present.

(...)

4. Member States shall ensure that:

(a) if an unaccompanied minor has a personal interview on his/her application for asylum as referred to in Articles 12,

13 and 14, that interview is conducted by a person who has the necessary knowledge of the special needs of minors;

(b) an ofﬁ cial with the necessary knowledge of the special needs of minors prepares the decision by the determining

authority on the application of an unaccompanied minor.

(...)

6. The best interests of the child shall be a primary consideration for Member States when implementing this Article.

(…)

Article 21

The role of UNHCR

1. Member States shall allow the UNHCR:

(a) to have access to applicants for asylum, including those in detention and in airport or port transit zones;

(b) to have access to information on individual applications for asylum, on the course of the procedure and on the

decisions taken, provided that the applicant for asylum agrees thereto;

to any competent authorities regarding individual applications for asylum at any stage of the procedure.

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(...)

CHAPTER III

PROCEDURES AT FIRST INSTANCE

SECTION I

Article 23

Examination procedure

1. Member States shall process applications for asylum in an examination procedure in accordance with the basic

principles and guarantees of Chapter II.

2. Member States shall ensure that such a procedure is concluded as soon as possible, without prejudice to an

adequate and complete examination.

Member States shall ensure that, where a decision cannot be taken within six months, the applicant concerned

shall either:

(a) be informed of the delay; or

(b) receive, upon his/her request, information on the time-frame within which the decision on his/her application

is to be expected. Such information shall not constitute an obligation for the Member State towards the applicant

concerned to take a decision within that time-frame.

3. Member States may prioritise or accelerate any examination in accordance with the basic principles and guarantees

of Chapter II, including where the application is likely to be well-founded or where the applicant has special needs.

4. Member States may also provide that an examination procedure in accordance with the basic principles and

guarantees of Chapter II be prioritised or accelerated if:

(a) the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not

relevant or of minimal relevance to the examination of whether he/she qualiﬁ es as a refugee by virtue of Directive

2004/83/EC; or

(b) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive

2004/83/EC; or

(i) because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31, or

(ii) because the country which is not a Member State, is considered to be a safe third country for the applicant,

without prejudice to Article 28(1); or

(d) the applicant has misled the authorities by presenting false information or documents or by withholding relevant

information or documents with respect to his/her identity and/or nationality that could have had a negative impact

on the decision; or

(e) the applicant has ﬁ led another application for asylum stating other personal data; or

(f) the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or

nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that

would have helped establish his/her identity or nationality; or

(g) the applicant has made inconsistent, contradictory, improbable or insufﬁ cient representations which make his/

her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive

2004/83/EC; or

(h) the applicant has submitted a subsequent application which does not raise any relevant new elements with

respect to his/her particular circumstances or to the situation in his/her country of origin; or

(i) the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to

do so; or

(j) the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent

decision which would result in his/her removal; or

(k) the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of

Directive 2004/83/EC or in Articles11(2)(a) and (b) and 20(1) of this Directive; or

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(l) the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without

good reason, has either not presented himself/herself to the authorities and/or ﬁ led an application for asylum as

soon as possible, given the circumstances of his/her entry; or

(m) the applicant is a danger to the national security or public order of the Member State, or the applicant has been

forcibly expelled for serious reasons of public security and public order under national law; or

(n) the applicant refuses to comply with an obligation to have his/her ﬁ ngerprints taken in accordance with relevant

Community and/or national legislation; or

(o) the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the

parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect

to his/her particular circumstances or to the situation in his/her country of origin.

(...)

SECTION II

Article 25

Inadmissible applications

1. In addition to cases in which an application is not examined in accordance with Regulation (EC) No 343/2003,

Member States are not required to examine whether the applicant qualiﬁ es as a refugee in accordance with Directive

2004/83/EC where an application is considered inadmissible pursuant to this Article.

2. Member States may consider an application for asylum as inadmissible pursuant to this Article if:

(a) another Member State has granted refugee status;

(b) a country which is not a Member State is considered as a ﬁ rst country of asylum for the applicant, pursuant to

Article 26;

(c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27;

(d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this

he/she has been granted a status equivalent to the rights and beneﬁ ts of the refugee status by virtue of Directive

2004/83/EC;

(e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which

protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant

to point (d);

(f) the applicant has lodged an identical application after a ﬁ nal decision;

(g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to

have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s

situation, which justify a separate application.

Article 26

The concept of ﬁ rst country of asylum

A country can be considered to be a ﬁ rst country of asylum for a particular applicant for asylum if:

(a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that

protection; or

(b) he/she otherwise enjoys sufﬁ cient protection in that country, including beneﬁ ting from the principle of non-

refoulement;

provided that he/she will be re-admitted to that country.

In applying the concept of ﬁ rst country of asylum to the particular circumstances of an applicant for asylum Member

States may take into account Article 27(1).

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Article 27

The safe third country concept

1. Member States may apply the safe third country concept only where the competent authorities are satisﬁ ed that

a person seeking asylum will be treated in accordance with the following principles in the third country concerned:

(a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social

group or political opinion;

(b) the principle of non-refoulement in accordance with the Geneva Convention is respected;

treatment as laid down in international law, is respected; and

(d) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance

with the Geneva Convention.

2. The application of the safe third country concept shall be subject to rules laid down in national legislation, including:

(a) rules requiring a connection between the person seeking asylum and the third country concerned on the basis

of which it would be reasonable for that person to go to that country;

(b) rules on the methodology by which the competent authorities satisfy themselves that the safe third country

concept may be applied to a particular country or to a particular applicant. Such methodology shall include case-

by-case consideration of the safety of the country for a particular applicant and/or national designation of countries

considered to be generally safe;

concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the

application of the safe third country concept on the grounds that he/she would be subjected to torture, cruel,

inhuman or degrading treatment or punishment.

3. When implementing a decision solely based on this Article, Member States shall:

(a) inform the applicant accordingly; and

(b) provide him/her with a document informing the authorities of the third country, in the language of that country,

that the application has not been examined in substance.

4. Where the third country does not permit the applicant for asylum to enter its territory, Member States shall ensure

that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter

II.5. Member States shall inform the Commission periodically of the countries to which this concept is applied in

accordance with the provisions of this Article.

SECTION III

Article 28

Unfounded applications

1. Without prejudice to Articles 19 and 20, Member States may only consider an application for asylum as unfounded

if the determining authority has established that the applicant does not qualify for refugee status pursuant to

Directive 2004/83/EC.

2. In the cases mentioned in Article 23(4)(b) and in cases of unfounded applications for asylum in which any of the

circumstances listed in Article 23(4)(a) and (c) to (o) apply, Member States may also consider an application as

manifestly unfounded, where it is deﬁ ned as such in the national legislation.

Article 29

Minimum common list of third countries regarded as safe countries of origin

1. The Council shall, acting by a qualiﬁ ed majority on a proposal from the Commission and after consultation of the

European Parliament, adopt a minimum common list of third countries which shall be regarded by Member States

as safe countries of origin in accordance with Annex II.

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2. The Council may, acting by a qualiﬁ ed majority on a proposal from the Commission and after consultation of

the European Parliament, amend the minimum common list by adding or removing third countries, in accordance

with Annex II. The Commission shall examine any request made by the Council or by a Member State to submit a

proposal to amend the minimum common list.

3. When making its proposal under paragraphs 1 or 2, the Commission shall make use of information from the

Member States, its own information and, where necessary, information from UNHCR, the Council of Europe and

other relevant international organisations.

4. Where the Council requests the Commission to submit a proposal for removing a third country from the minimum

common list, the obligation of Member States pursuant to Article 31(2) shall be suspended with regard to this third

country as of the day following the Council decision requesting such a submission.

5. Where a Member State requests the Commission to submit a proposal to the Council for removing a third country

from the minimum common list, that Member State shall notify the Council in writing of the request made to the

Commission. The obligation of this Member State pursuant to Article 31(2) shall be suspended with regard to the

third country as of the day following the notiﬁ cation to the Council.

6. The European Parliament shall be informed of the suspensions under paragraphs 4 and 5.

7. The suspensions under paragraphs 4 and 5 shall end after three months, unless the Commission makes a proposal

before the end of this period, to withdraw the third country from the minimum common list. The suspensions shall

in any case end where the Council rejects a proposal by the Commission to withdraw the third country from the list.

8. Upon request by the Council, the Commission shall report to the European Parliament and the Council on whether

the situation of a country on the minimum common list is still in conformity with Annex II. When presenting its report,

the Commission may make such recommendations or proposals as it deems appropriate.

Article 30

National designation of third countries as safe countries of origin

1. Without prejudice to Article 29, Member States may retain or introduce legislation that allows, in accordance with

Annex II, for the national designation of third countries other than those appearing on the minimum common list,

as safe countries of origin for the purposes of examining applications for asylum. This may include designation of

part of a country as safe where the conditions in Annex II are fulﬁ lled in relation to that part.

2. By derogation from paragraph 1, Member States may retain legislation in force on 1 December 2005 that allows

for the national designation of third countries, other than those appearing on the minimum common list, as safe

countries of origin for the purposes of examining applications for asylum where they are satisﬁ ed that persons in

the third countries concerned are generally neither subject to:

(a) persecution as deﬁ ned in Article 9 of Directive 2004/83/EC; nor

(b) torture or inhuman or degrading treatment or punishment.

3. Member States may also retain legislation in force on 1 December 2005 that allows for the national designation

of part of a country as safe, or a country or part of a country as safe for a speciﬁ ed group of persons in that country,

where the conditions in paragraph 2 are fulﬁ lled in relation to that part or group.

4. In assessing whether a country is a safe country of origin in accordance with paragraphs 2 and 3, Member

States shall have regard to the legal situation, the application of the law and the general political circumstances in

the third country concerned.

5. The assessment of whether a country is a safe country of origin in accordance with this Article shall be based

on a range of sources of information, including in particular information from other Member States, the UNHCR,

the Council of Europe and other relevant international organisations.

6. Member States shall notify to the Commission the countries that are designated as safe countries of origin in

accordance with this Article.

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Article 31

The safe country of origin concept

1. A third country designated as a safe country of origin in accordance with either Article 29 or 30 may, after an

individual examination of the application, be considered as a safe country of origin for a particular applicant for

asylum only if:

(a) he/she has the nationality of that country; or

(b) he/she is a stateless person and was formerly habitually resident in that country;

and he/she has not submitted any serious grounds for considering the country not to be a safe country of origin

in his/her particular circumstances and in terms of his/her qualiﬁ cation as a refugee in accordance with Directive

2004/83/EC.

2. Member States shall, in accordance with paragraph 1, consider the application for asylum as unfounded where

the third country is designated as safe pursuant to Article 29.

3. Member States shall lay down in national legislation further rules and modalities for the application of the safe

country of origin concept.

SECTION IV

Article 32

Subsequent application

1. Where a person who has applied for asylum in a Member State makes further representations or a subsequent

application in the same Member State, that Member State may examine these further representations or the elements

of the subsequent application in the framework of the examination of the previous application or in the framework of

the examination of the decision under review or appeal, insofar as the competent authorities can take into account

and consider all the elements underlying the further representations or subsequent application within this framework.

2. Moreover, Member States may apply a speciﬁ c procedure as referred to in paragraph 3, where a person makes

a subsequent application for asylum:

(a) after his/her previous application has been withdrawn or abandoned by virtue of Articles 19 or 20;

(b) after a decision has been taken on the previous application. Member States may also decide to apply this

procedure only after a ﬁ nal decision has been taken.

3. A subsequent application for asylum shall be subject ﬁ rst to a preliminary examination as to whether, after

the withdrawal of the previous application or after the decision referred to in paragraph 2(b) of this Article on this

application has been reached, new elements or ﬁ ndings relating to the examination of whether he/she qualiﬁ es as

a refugee by virtue of Directive 2004/83/EC have arisen or have been presented by the applicant.

4. If, following the preliminary examination referred to in paragraph 3 of this Article, new elements or ﬁ ndings arise

or are presented by the applicant which signiﬁ cantly add to the likelihood of the applicant qualifying as a refugee

by virtue of Directive 2004/83/EC, the application shall be further examined in conformity with Chapter II.

5. Member States may, in accordance with national legislation, further examine a subsequent application where

there are other reasons why a procedure has to be re-opened.

6. Member States may decide to further examine the application only if the applicant concerned was, through no

fault of his/her own, incapable of asserting the situations set forth in paragraphs 3, 4 and 5 of this Article in the

previous procedure, in particular by exercising his/her right to an effective remedy pursuant to Article 39.

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SECTION VI

Article 36

The European safe third countries concept

1. Member States may provide that no, or no full, examination of the asylum application and of the safety of the

applicant in his/her particular circumstances as described in Chapter II, shall take place in cases where a competent

authority has established, on the basis of the facts, that the applicant for asylum is seeking to enter or has entered

illegally into its territory from a safe third country according to paragraph 2.

2. A third country can only be considered as a safe third country for the purposes of paragraph 1 where:

(a) it has ratiﬁ ed and observes the provisions of the Geneva Convention without any geographical limitations;

(b) it has in place an asylum procedure prescribed by law;

observes its provisions, including the standards relating to effective remedies; and

(d) it has been so designated by the Council in accordance with paragraph 3.

3. The Council shall, acting by qualiﬁ ed majority on a proposal from the Commission and after consultation of the

European Parliament, adopt or amend a common list of third countries that shall be regarded as safe third countries

for the purposes of paragraph 1.

4. The Member States concerned shall lay down in national law the modalities for implementing the provisions

of paragraph 1 and the consequences of decisions pursuant to those provisions in accordance with the principle

of non-refoulement under the Geneva Convention, including providing for exceptions from the application of this

Article for humanitarian or political reasons or for reasons of public international law.

5. When implementing a decision solely based on this Article, the Member States concerned shall:

(a) inform the applicant accordingly; and

(b) provide him/her with a document informing the authorities of the third country, in the language of that country,

that the application has not been examined in substance.

6. Where the safe third country does not re-admit the applicant for asylum, Member States shall ensure that access

to a procedure is given in accordance with the basic principles and guarantees described in Chapter II.

CHAPTER V

APPEALS PROCEDURES

Article 39

The right to an effective remedy

1. Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or

tribunal, against the following:

(a) a decision taken on their application for asylum, including a decision:

(i) to consider an application inadmissible pursuant to Article 25(2),

(ii) taken at the border or in the transit zones of a Member State as described in Article 35(1),

(iii) not to conduct an examination pursuant to Article 36;

(b) a refusal to re-open the examination of an application after its discontinuation pursuant to Articles 19 and 20;

(d) a decision refusing entry within the framework of the procedures provided for under Article 35(2);

(e) a decision to withdraw of refugee status pursuant to Article 38.

2. Member States shall provide for time-limits and other necessary rules for the applicant to exercise his/her right

to an effective remedy pursuant to paragraph 1.

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3. Member States shall, where appropriate, provide for rules in accordance with their international obligations

dealing with:

(a) the question of whether the remedy pursuant to paragraph 1 shall have the effect of allowing applicants to remain

in the Member State concerned pending its outcome;

(b) the possibility of legal remedy or protective measures where the remedy pursuant to paragraph 1 does not have

the effect of allowing applicants to remain in the Member State concerned pending its outcome. Member States

may also provide for an ex ofﬁ cio remedy; and

Article 27(2)(b) and (c).

4. Member States may lay down time-limits for the court or tribunal pursuant to paragraph 1 to examine the decision

of the determining authority.

5. Where an applicant has been granted a status which offers the same rights and beneﬁ ts under national and

Community law as the refugee status by virtue of Directive 2004/83/EC, the applicant may be considered as having

an effective remedy where a court or tribunal decides that the remedy pursuant to paragraph 1 is inadmissible or

unlikely to succeed on the basis of insufﬁ cient interest on the part of the applicant in maintaining the proceedings.

6. Member States may also lay down in national legislation the conditions under which it can be assumed that an

applicant has implicitly withdrawn or abandoned his/her remedy pursuant to paragraph 1, together with the rules

on the procedure to be followed.

North America

10. US – Canada Safe Third Country Agreement

Article 2

This Agreement does not apply to refugee status claimants who are citizens of Canada or the United States or who,

not having a country of nationality, are habitual residents of Canada or the United States.

Article 3

In order to ensure that refugee status claimants have access to a refugee status determination system, the Parties

shall not return or remove a refugee status claimant referred by either Party under the terms of Article 4 to another

country until an adjudication of the person’s refugee status claim has been made.

The Parties shall not remove a refugee status claimant returned to the country of last presence under the terms of

this Agreement to another country pursuant to any other safe third country agreement or regulatory designation.

Article 4

Subject to paragraphs 2 and 3, the Party of the country of last presence shall examine, in accordance with its

refugee status determination system, the refugee status claim of any person who arrives at a land border port of

entry on or after the effective date of this Agreement and makes a refugee status claim.

Responsibility for determining the refugee status claim of any person referred to in paragraph 1 shall rest with

the Party of the receiving country, and not the Party of the country of last presence, where the receiving Party

determines that the person:

11 Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee

status claims from nationals of third countries. The Agreement was signed on 5 December 2002 and came into force on 29 December 2004.

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Has in the territory of the receiving Party at least one family member who has had a refugee status claim granted

or has been granted lawful status, other than as a visitor, in the receiving Party’s territory; or

Has in the territory of the receiving Party at least one family member who is at least 18 years of age and is not

ineligible to pursue a refugee status claim in the receiving Party’s refugee status determination system and has

such a claim pending; or

Is an unaccompanied minor; or

Arrived in the territory of the receiving Party:

With a validly issued visa or other valid admission document, other than for transit, issued by the receiving Party; or

Not being required to obtain a visa by only the receiving Party.

The Party of the country of last presence shall not be required to accept the return of a refugee status claimant until

a ﬁ nal determination with respect to this Agreement is made by the receiving Party.

Neither Party shall reconsider any decision that an individual qualiﬁ es for an exception under Articles 4 and 6 of

this Agreement.

Article 5

In cases involving the removal of a person by one Party in transit through the territory of the other Party, the Parties

agree as follows:

Any person being removed from Canada in transit through the United States, who makes a refugee status claim in

the United States, shall be returned to Canada to have the refugee status claim examined by and in accordance

with the refugee status determination system of Canada.

Any person being removed from the United States in transit through Canada, who makes a refugee status claim

in Canada, and:

whose refugee status claim has been rejected by the United States, shall be permitted onward movement to the

country to which the person is being removed; or

who has not had a refugee status claim determined by the United States, shall be returned to the United States

to have the refugee status claim examined by and in accordance with the refugee status determination system of

the United States.

Article 6

Notwithstanding any provision of this Agreement, either Party may at its own discretion examine any refugee status

claim made to that Party where it determines that it is in its public interest to do so.

Article 7

The Parties may:

Exchange such information as may be necessary for the effective implementation of this Agreement subject to

national laws and regulations. This information shall not be disclosed by the Party of the receiving country except in

accordance with its national laws and regulations. The Parties shall seek to ensure that information is not exchanged

or disclosed in such a way as to place refugee status claimants or their families at risk in their countries of origin.

Exchange on a regular basis information on the laws, regulations and practices relating to their respective refugee

status determination system.

(…)