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