UNHCR's Position on Manifestly Unfounded Applications for Asylum

UNHCR has long taken the position that national procedures for determination of refugee status may usefully provide for dealing in an accelerated procedure with manifestly unfounded applications for refugee status or asylum. These procedures should, however, include certain procedural safeguards regardless of whether the claim is presented at the border or within the territory. These guarantees should also be applied to pre-admission/screening procedures at the border. Furthermore, these guarantees should be respected in procedures dealing with first country of asylum cases.

1.   Definition of Manifestly Unfounded or Abusive Applications

i)      Clearly Fraudulent Applications

The Office has stated that the notion of "clearly fraudulent" could reasonably cover situations where the applicant deliberately attempts to deceive the authorities determining refugee status. The mere fact of having made false statements to the authorities does not, however, necessarily exclude a well-founded fear of persecution and vitiate the need for asylum, thus making the claim "clearly fraudulent". Only if the applicant makes what appear to be false allegations of a material or substantive nature relevant for the determination of his or her status could the claim be considered "clearly fraudulent".

As to the use of forged or counterfeit documents, it is not the use of such documents which raises the presumption of an abusive application, but the applicant's insistence that the documents are genuine. It should be borne in mind in this regard that asylum-seekers who have been compelled to use forged travel documents will often insist on their genuineness until the time they are admitted into the country and their application examined.

Applications suspected of being filed to forestall an expulsion order should only be considered as manifestly unfounded if the applicant has had ample opportunity to apply for asylum previously and has not given a valid explanation for the delay.

Where applicants have already had their claim for asylum rejected in another country upon examination of the substance of their claim, UNHCR agrees that such applications could appropriately be considered in the procedure for manifestly unfounded applications. However, this should only be the case where the examination on the substance is in conformity with UNHCR eligibility standards and the procedures comprise adequate procedural guarantees. In such cases, rejection in a previous procedure raises a rebuttable presumption that there is no substance to the claim.

ii)    Applications not Related to the Granting of Refugee Status

The Office has on a number of occasions stressed that a claim should not be rejected as manifestly unfounded even if it does not fall under the 1951 Convention definition, if it is also evident that the applicant is in need of protection for other reasons and thus may qualify for the granting of asylum.

When an assessment of credibility is necessary to establish the subjective element of the applicant's claim the situation is different. Issues of credibility are so complex that they may be more appropriately dealt with under the normal procedure.

2.   Other Cases to Be Channelled into Accelerated Procedures

i)      Safe Country of Origin and Country of First Asylum Cases

UNHCR concurs with the channelling of these claims into accelerated procedures provided the procedural safeguards set out in Point 3 below are met.

ii)    Crimes and Threat to National Security

UNHCR has taken the view that the application of Article 1 F of the 1951 Convention requires a very careful examination of the application for refugee status and of the grounds for exclusion from international protection.

Moreover, it has been broadly accepted that exclusion clauses are subject to restrictive interpretation. As a matter of treaty interpretation, exceptions to the rule are to be given a restrictive interpretation. UNHCR has advocated constantly that states balance the need for international protection with the seriousness of the crime or misconduct. All this normally entails a need to examine the claim substantively and on its merits, which is not possible in an accelerated procedure.

iii)   Internal Flight Alternative

Applications raising the issue of "internal flight alternative" raise a number of complex questions, and no international consensus exists as to its precise relevance for the determination of refugee status. In most instances, it will require an in-depth examination to establish whether the persecution faced by the applicant is clearly limited to a specific area and that effective protection is available in other parts of the country. For this reason, it is not appropriate to consider such applications in the same manner as manifestly unfounded applications.

3.   Procedural Guarantees for Manifestly Unfounded/Accelerate Procedures

As to the necessary safeguards to be included in procedures for manifestly unfounded claims, UNHCR has said, in accordance with EXCOM Conclusion No. 30 on the problem of manifestly unfounded or abusive applications for refugee status, that:

•           all applicants should receive preliminary counselling in the appropriate language provided by NGOs, the Government, UNHCR or some combination of these and should be assisted in submitting a written statement;

•           the applicant should be given a full personal interview by a fully qualified official and, whenever possible, by an official of the authority competent to determine refugee status;

•           the manifestly unfounded or abusive character of an application should be established by the authority normally competent to determine refugee status;

•           an unsuccessful applicant should be able to have a review of a negative decision. This review possibility can be more simplified than that available in the case of rejected applications which are not considered manifestly unfounded or abusive. UNHCR considers that in order to be meaningful, the review should be by an authority different from and, if possible, independent of the one making the initial decision. The appeal should have suspensive effect allowing the applicant to remain in the country pending the review of his or her case;

•           UNHCR should have the possibility of access to all claims at all stages of the procedure.

4.   Admissibility Procedures

UNHCR's position in regard to admissibility procedures is that applications for refugee status by persons arriving at airports and other points of entry must be determined in the same way as applications from other asylum-seekers, in an appropriate procedure and taking into account both the subjective and objective elements of the claim. Such procedure may, of course, include special arrangements for manifestly unfounded claims, which should, incorporate the safeguards elaborated in EXCOM Conclusion 30.