Memorandum to the United Nations High Commissioner for Refugees with respect to the critical situation of Iranian asylum seekers in Turkey whose asylum cases are presently rejected

(from Iranian Refugees At Risk Summer 95)

August 20, 1995
A group of more than 150 Iranian asylum seekers, mostly women and children, whose refugee claims have been rejected by the United Nations High Commissioner for Refugees (UNHCR) Branch Office in Turkey have taken refuge in the office of the United Socialist Party (sosyalist birlik partisi) in Ankara. An indefinite sit-in is staged in protest to the UNHCR Office's adjudicating policy. The protest action took place under extremely desperate conditions where dozens of rejected asylum seekers were at once facing imminent threats of forcible return by the Turkish authorities, while UNHCR Branch Office in Turkey continued to refuse a meaningful appeal procedure to rejected claimants.

Although this is the third week of the protest action, the UNHCR Branch Office has not yet responded to the predicament facing the protesters in a credible and constructive manner. The inherent secrecy surrounding the practices of the Office, which prevents open scrutiny of the determinations, does not suggest any particular adherence by the Office to the duty of accountability owed to refugee claimants. Repeated reports from asylum seekers and Turkish organizations suggest that the Office may have opted for a quick disposition of the crisis by merely calling the aggrieved asylum seekers "economic migrants". Iranian Refugees' Alliance believes that a body involved in a judicial process, pursuant to which people might be erroneously returned to life-threatening situations, must justify its determinations under the laws, instruments and norms governing the situation. The fact that UNHCR is an international adjudicating body does not lessen this duty. More so, the agency itself has promoted the highest available standards in this regard. According to UNHCR's own principles, asylum seekers can not be dismissed as merely economic migrants a) without due consideration of their claims in fair procedures b) without assessing whether or not they are in need of international protection on grounds other than the narrow interpretation laid down in the 1951 Convention and c) without the asylum-seeker having exhausted all possibilities to be recognized as a refugee.(footnote 1)

Nonetheless, to date, there has been no public assurance from the UNHCR regarding the full implementation of the above cited preconditions. Our concerns from this lack of accountability are compounded by strong evidence that the Branch Office has imported restrictive measures and adopted narrow interpretations in implementing its refugee status determination. The following are urgent issues that, in our view, need be accounted for by the UNHCR in response to the present crisis:

  1. Fairness, fundamental justice, or due process are legal requirements in many countries which set out minimum safeguards a refugee system must meet in order to be considered generally fair. When these safeguards are removed, then the possibility for errors in determinations increases. In May 1995, Iranian Refugees' Alliance produced a report entitled "Evading Scrutiny: Does UNHCR Refugee Determination Procedure Measure up to International Standards?", which concluded that the UNHCR Branch Office in Turkey has imposed procedural constraints in the determination system that are incompatible with the duty of fairness owed refugee claimants. This conviction derived from clear evidence that certain minimum safeguards were altogether absent and from evidence indicating systematic undermining of a non-adversarial mode for interviews and a perceived lack of impartiality necessary to ensure fair decisions. Noting the potential for errors in the determination procedure due to lack of several essential safeguards, the report made 16 recommendations to ensure fairness in the determinations. These included individual legal counseling and representation, access to records and information pertaining to the asylum claim by the asylum seeker or an authorized third party, providing findings and reasoning behind a rejection, expansion of the right of appeal to errors in fact and procedures and not merely to new information and evidence, providing competent and impartial interpreters, and non-adversarial interviews. As a matter of urgency, Iranian Refugees' Alliance also called upon the UNHCR to reopen cases previously closed and to redetermine these cases under internationally accepted minimum fairness safeguards, so that no person in need of international protection is returned to Iran in error. To date, the organization has not received any comments on its stated concerns or on the recommendations made. In the absence of a reply, Iranian Refugees' Alliance maintains that the present UNHCR refugee status determination can not be relied on to identify all refugees and persists in its earlier recommendations. The organization draws attention to the fact that these recommendations can be readily incorporated in the Branch Office's procedures because they are compatible with UNHCR's own guidelines on fair and effective refugee status determination and are explicitly listed by the UNHCR as applicable "to UNHCR procedures", in order to ensure "fair and proper examination of applications".(footnote 2)

    As a measure presently essential to implement duties owed to refugees, Iranian Refugees' Alliance calls upon the UNHCR again to immediately reopen cases previously closed before any asylum seeker is forcibly returned and therefore denied her/his right to a fair and just refugee status determination.

  2. Of prime importance in accurate refugee eligibility determination is application of criteria. According to the 1951 UN Convention, individuals qualify as refugees if they are unwilling to return to their country of nationality or habitual residence "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion."(footnote 3) However, there is no universal definition of persecution and there are different interpretations on restriction applicable to each ground. In countries where information on the basis of a decision have been available, an instructive body of case law has led to more knowledge about criteria. In these countries, refugee claimants, representatives, non-governmental organizations, scholars and UNHCR's national representatives can participate in a meaningful way to ensure that the criteria are applied generously and properly. Many negative decisions are reversed based on misapplication of criteria.

    This, however, is not the case in the refugee determination procedure of the UNHCR Branch Office in Turkey. Persistent lack of information in the determination procedure has prevented open scrutiny of the criteria being applied on refugee claims. There is no factual knowledge whatsoever as to the Office's concept of persecution, the foundedness of information on country conditions used for assessing claims, as well as the guidelines used to apply the definitions.

    Iranian Refugees' Alliance is aware of many individual cases suggesting that claimants may have been rejected based on a combination of improper or inadequate criteria, misconceptions and lack of information or misinformation about country conditions. There have also been cases which have come to the attention of Amnesty International where the International organization has believed the person would risk serious human rights violations if returned to her/his country.(footnote 4) While the level of inquiries in the determination procedure suggests that the breadth and depth of persecution in Iran is not adequately appreciated, the background of many of the presently rejected claimants raises similar concerns. Amongst the rejected claimants are former political prisoners, close relatives of executed political activists, women who have transgressed Islamic laws and children whose rights under the UN Convention on Children have been systematically violated.

    As a measure to ensure proper use of refugee criteria in assessing claims, Iranian Refugees' Alliance strongly recommends to the UNHCR Office that the criteria used to assess claims by the Office become open for scrutiny to asylum seekers, representatives, and non-governmental organizations involved in refugee and human rights issues. Furthermore, the agency should elaborate, in consultation with non governmental organizations, the most appropriate criteria congruent with the conditions prevailing in Iran. In particular, the Office should provide reasons for rejections, which should go beyond stock phrases such as "not eligible for refugee criteria" and should relate refugee criteria to the claim, explain substantial points raised, and relate the facts to the conclusions.

  3. It is a well-acknowledge fact that levels of persecution in Iran remain high and that violations of fundamental human rights are widespread throughout. The Iranian government is not just known as a regime which is unable to ensure economic, social and cultural rights of the Iranian population but also as an intolerant and repressive state whose official laws are inherently persecutory and strike at the heart of fundamental civil and political rights. These attributes are further compounded when this regime promotes human rights violations on an international level. Latest acknowledgments of these daily realities in Iran are reported by several international organizations and bodies, including Amnesty International (May 1995), Human Rights Watch (1995), the US State Department (February 1995), and the European Parliament (April 10 1995). (footnote 5)

    Due to the fact that Iranian asylum seekers flee a country that is known to have a consistently poor human rights record and is known to produce refugees, there is a human rights obligation that has to be met before returning an asylum seeker to Iran. In this context, non-refoulement (principle of non-return) should be extended to those Iranians, who, although not Convention refugees, may be subjected to violations of fundamental human rights upon return. This obligation rooted in human rights law shifts the burden of proof to the returning authority that the person returned would not face a substantial risk of being subjected to violations of fundamental human rights. In realization of this obligation, States in Europe, North America and Australia have widely granted humanitarian or other status to Iranians who may not satisfy the narrow interpretation of the refugee definition in the 1951 UN Convention but who, nevertheless, merit protection.

    However, this reality is not recognized by the UNHCR Office in Turkey. From information provided by individual asylum seekers, it is apparent that the likelihood and fear of human rights violations upon return to Iran is not a matter examined by the Office as either a basis for Convention criteria or as an alternative justifying protection for those who do not meet the narrow Convention criteria. Neither has the Office expressed a justification of the notion that the return of rejected asylum seekers to Iran would not subject them to treatment in violation of generally accepted human rights standards.

    More disturbing is the predicament faced by those rejected asylum seekers who, nevertheless, are offered protection by resettling countries (privately sponsored refugee or humanitarian visa applications). UNHCR Office has adopted the role of an adverse party in the resettlement of such persons. Because, in this situation, the Office refuses to offer any form of protection, the asylum seekers are left to their own devices to fight expulsion orders and forcible return by the Turkish authorities. In the past, there have been several such applications that have been fully processed and the applicants scheduled to leave Turkey in a matter of weeks, but because UNHCR has refused to exercise its international protection function, applicants have been forcibly returned to Iran. Presently, there are many such applicants who are already granted or have a good chance of being granted protection by resettling countries but are refused temporary protection by the UNHCR to prevent their forcible return.

    As a measure to provide international protection based on international refugee and human rights laws, Iranian Refugees' Alliance strongly recommends that UNHCR should not be an adverse party to a rejected asylum seeker when that person is granted protection from a third country. On the contrary, there should be cooperation with the admitting country and the UNHCR for safe resettlement of that person. Furthermore, UNHCR should elaborate a set of criteria of its own, which provides that Iranian asylum seekers in need of international protection are protected even if they fall outside of the 1951 Geneva Convention definition. This should, in the least, include adequate protection against forcible return, allowing for full processing of privately sponsored visa applications and exit from Turkey.

    Through this memorandum, Iranian Refugees' Alliance expresses hope that the UNHCR Office's practices are instantly improved to the highest standards promoted by the agency itself, in full conformity with the UNHCR guidelines and in compliance with other relevant international obligations.

    Footnotes:

    1. . see "Return and Readmission of Unsuccessful Asylum Seekers, Joint IOM and UNHCR Views, Geneva, 1994, IOM Policy Paper Series.
    2. see Determination of Refugee Status - Training Module, United Nations High Commissioner for Refugees, 1989.
    3. United Nations Convention relating to the Status of Refugees, adopted by the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (adopted 28 July 1951), art. 1(B)
    4. see TURKEY Selective protection: Discriminatory treatment of non-European refugees and asylum-seekers, Amnesty International, March 1994, EUR 44/16/94.
    5. Amnesty International, IRAN: Official secrecy hides continuing repression, AI INDEX: MDE 113/02/95, Human Rights Watch World Report 1994, US State Department Human Rights Country Report 1994- Iran, European Parliament Plenary Resolution, Strasbourg, 10/04/1995.