Illusary Appeal: The case of UNHCR refugee determination procedure in Turkey

(from Iranian Refugees At Risk Fall95/Winter 96)

In order for an appeal to be meaningful and effective, certain safeguards must be in place. In its 1990 recommendations to the Hong Kong Government, UNHCR has mentioned that the notion of "appeal for a formal reconsideration" should include some basic principles of fairness applicable equally to judicial or administrative reviews. These are the possibility for the applicant to be heard by the review body and to be able to obtain legal advice and representation in order to make his submission; for reconsideration to be based on all relevant evidence; and for a consistent and rational application of refugee criteria in line with the guidelines established in the UNHCR Handbook. UNHCR believes that the notion of fairness also requires the review body to provide the grounds for its decision.

Ironically, the above criteria have proven the most difficult for the UNHCR to apply when the organization has been faced with the task of determining refugee claims. UNHCR has determined refugee claims in a number of signatory and non-signatory countries to the 1951 UN Convention Relating to the Status of Refugees. For example, until February 1, 1988, UNHCR was the authority in Belgium which decided whether an asylum seeker's application was well-founded. When an application was rejected, the UNHCR representative had the authority to reopen a case and seek the advice of UNHCR headquarters. However, the claimant or his lawyer did not have complete access to the file on which the decision was based. Nor did the representative give reasons for a negative decision. Such a negative decision leading to an expulsion order could still be quashed in the Belgian Civil Court.

The situation is different in Turkey. Turkey has a geographic reservation attached to its accession to the UN Refugee Convention, recognizing as refugees only those who have fled from Europe. Iranians and Iraqis are the two largest groups of asylum seekers in Turkey who are excluded. Unlike Belgium, UNHCR's determination system in Turkey has been the cornerstone of international protection afforded to non-European asylum seekers. Until July 1994, UNHCR had been the sole authority deciding refugee eligibility of non-Europeans. Based on an agreement with the Turkish authorities, applicants who received a final rejection by the UNHCR Office should have been deported to their countries of origin. After this date, the government has assumed the task of identifying "genuine refugees" and referring them to UNHCR for resettlement. However, UNHCR would reject a case for resettlement if it is not a "worthy case" by its standards. Similarly, when an applicant is not considered a "genuine refugee" by the government and therefore issued a deportation order, UNHCR would "consult" with the government only if it is a "worthy case". In either of these circumstances, Turkey's domestic law does not provide the asylum seeker a right of appeal against the rejection. Nor could asylum seekers rely on Article 13 of the International Covenant of Civil and Political Rights, which confers a right of review of a decision to deport an alien and a right to be represented for this purpose before the competent court. Turkey is not a party to the Covenant.

In view of the grave consequences of an incorrect decision by the UNHCR, it is reasonable to expect that the UNHCR Office in Turkey will stringently implement the safeguards it considers as fundamental for a meaningful and effective appeal. In reality, however, the appeal procedure has lacked the safeguards which are highlighted above.

Rejection of a case by the UNHCR Branch Office in Turkey has been in either of the following forms: rejection with an opportunity for a review or a closed case without an opportunity for an automatic review. In the latter case, an "information notice" would explain that one's case was rejected as "manifestly unfounded" or as "abusive of the procedures". If the decision is negative with the opportunity for a review, the applicant is informed in a form letter that s/he can write an appeal letter. An interview is not always granted but a different legal officer makes a second review of the case. For cases that are closed, although a re-opening is possible, there is no formal procedure to lodge an appeal. The process is open ended and in some cases takes as long as a year. A request for a re-opening is granted only based on introduction of "new information or documents".

UNHCR legal officers in Turkey do not provide reasons for their conclusions. As a result, asylum seekers are severely handicapped not knowing the grounds upon which they can base their challenge in an appeal. They are uncertain what they can accomplish in such an appeal. Grounds for decisions are also not provided after review. Thus the applicant whose case is rejected on review is never reassured that s/he has had a fair hearing and that the criteria have been applied properly. Nor can an applicant have access to her/his file because of the agency's confidentiality rules. Considering the Office's available interpretation facilities, which lacks standardized selection criteria and training of interpreters and that interview notes are not read back to applicants for acknowledgement of accuracy and completion, the right to access files is not just a question of fairness, it is the only opportunity for an applicant to rectify errors such as mis-interpretation. In these circumstances, the right to appeal becomes meaningless.

Despite UNHCR's emphasis on the need for legal advice and representation, such assistance has not been available to asylum seekers. Once an applicant receives a negative decision, the only instruction s/he receives for preparing an appeal letter is that the letter "SHOULD NOT EXCEED TWO PAGES". To request a re-opening of one's case, one is instructed only to provide "new information and documents".

The procedure has also been designed in a way that does not allow any meaningful involvement of representatives or advocates at any stage of the process. Representatives have been barred from accompanying asylum seekers to the interviews. They have also been denied access to files and any relevant information about an asylum seeker's case. Submissions in support of asylum cases have been generally not replied to and it is never clear if they are included in assessment of a claim. It has also been very frustrating to advise asylum seekers, because there is no information available on how refugee criteria are applied and whether the burden of proof applicants are required to meet are consistent with the guidelines established in the UNHCR Handbook.

The failure of the system in providing an effective appeal process is also shown in the fact that appellants are asked to produce new information and documents in support of their claim. This limits the review to only errors or deficiencies in an applicants presentation of her/his case and disregards entirely the possibility of mistakes in a decision maker's conclusion. It does not consider the possibility of procedural flaws and irregularities. By restricting the review to new facts, the new decision maker would not make an independent evaluation of the facts already presented in the case. This denies the claimant a reconsideration of the claim based on all relevant evidence.

There are currently hundreds of Iranian and Iraqi, mainly Kurdish, asylum seekers who are subject to deportation by the Turkish authorities due to their cases being closed by the UNHCR after an appeal. Some have lingered in Turkey for several years, hiding in squalid slums.

In my own survey of closed cases, I have found many compelling cases of persecution. An illustrative example is the case of Mrs. H., an Iranian national, who fled to Turkey with her three children close to two years ago. Both she and her husband were political activists and imprisoned by the Iranian government. Her husband was executed and she was released because at the time no evidence was found against her. She then faced serious threats including losing the custody of her children and had to flee her country due to revelation of her political activities after her husband's execution. She has provided documentary evidence with respect to her husband's execution and the custody issue.

While according to the UNHCR Office, Mrs. H. has "failed to establish a credible claim", Mrs. H's description of the procedure pursuant to which her case was denied, raises issues which challenge fairness of the procedure. According to her, the scope of the inquiries at both her interviews has been limited to her political activism, disregarding other valid grounds for persecution, including impingements on her right as a parent and her right to personal security. Nor were the children included in the claim, despite the fact that they may also have a valid persecution claim due to the custody issue. On the issue of credibility, Mr. H's narrative of her interviews conveys unreasonable and irrelevant tests.

UNHCR has undertaken a difficult and unique task in operating a full scale refugee status determination procedure in Turkey. There is, of course, financial constraints, problems arising from inherent lack of co-operation from the Turkish authorities and political considerations. While the appeal is not in itself a deportation hearing, its outcome could lead directly to a person being expelled to the country of persecution. The need to ensure that fundamental requirements are present must therefore remain paramount.

This article is written by Deljou Abadi and was first printed in the Spring 1995 issue of Refugee Update, a quarterly publication by Jesuit Refugee Service/Canada.