Well-functioning asylum systems where integrity and fairness of asylum procedures is safeguarded is the responsibility of States. However, multiple actors, including civil society organizations, UN agencies and national legal aid actors, often play a central role in contributing to ensuring due process guarantees in asylum procedures. Actors who work to enable asylum seekers to access these procedures, are key to a process which can be very complex. Such process requires trust in the authorities and active participation on the part of the individual on what can be very sensitive issues. This ASILE Forum contribution argues that when seeking to strengthen national asylum system it is vital to engage the range of actors in and around asylum procedures, and to recognize the different roles that they play.
This contribution takes the view that to achieve the objectives of the Global Compact on Refugees (GCR) of strengthening national asylum systems, there is a need for partnerships, which are inclusive of both asylum seekers and civil society. The GCR and in particular the Asylum Capacity Support Group Mechanism presents an opportunity to increase multi-stakeholder engagement in the asylum procedure and compliment the traditionally state-centered approach with the view to achieve concrete and better protection outcomes for asylum seekers.
- The Global Compact on Refugees and Strengthening Asylum Capacity
The Global Compact on Refugees (GCR) was adopted in December 2018. One year later, the Global Refugee Forum brought together a diverse group of stakeholders, who committed to contribute to better protection outcomes for refugees through concrete pledges.
The GCR has four main objectives: 1) easing pressures on host countries, 2) enhancing refugee self-reliance, 3) expanding access to third country solutions, and 4) supporting conditions in countries of origin for return in safety and dignity. While all GCR objectives contribute to advancing fair sharing of responsibility for refugee protection, the lack of explicit attention in the GCR on ensuring access to territory and to asylum leaves a major protection concern unaddressed. The absence of attention to ensuring access to territory and to asylum indirectly has been seen as functional to the containment strategy pursued by some high-income countries and relates to civil society critique that the GCR is perceived by many donor states primarily as a foreign policy matter reflected in development cooperation strategies rather than principles to be mirrored in domestic asylum policies.
Notwithstanding that major shortcoming, the GCR did include a much-needed focus on increasing asylum capacity by strengthening national asylum systems. The Asylum Capacity Support Group (ACSG) mechanism was established and launched at the Global Refugee Forum in 2019 to facilitate asylum capacity support between participating states and other actors. In relation to the mechanism, the GCR states that:
‘Without prejudice to activities carried out under its mandate, UNHCR will establish an Asylum Capacity Support Group with participation of experts from relevant technical areas […] The group would draw on pledges and contributions made as part of Global Refugee Forums, whether in terms of expertise or funding. […] on all aspects of asylum systems, including case-processing modalities (e.g., simplified or accelerated procedures for cases likely to be manifestly founded, or unfounded), registration and case management processes, interviewing techniques and broader institutional capacity development’. (United Nations, 2018, Global Compact on Refugees, p. 14f.).
The objective of the ACSG is to ‘match’ areas of capacity gaps with offers of capacity support on actions aimed at improving the fairness, efficiency, adaptability and integrity of national asylum systems. While so far projects launched under the ACSG have mainly involved State to State cooperation, a wider group of stakeholders such as national, regional and international NGOs, associations of judges and regional agencies have also pledged support through the mechanism.
- The role of Civil Society legal actors in Asylum Procedures
“When was the last time you saw your sisters and where are they now?”, “Tell me what happened on the day your father was brought into questioning by the police?”, “What do you fear would happen if you were to return?”, “Why do you think they would still come after you, when you have been away for so long?”
In individual asylum procedures a person is rarely able to document their claim for asylum by answering questions such as those above with ‘hard evidence’. Besides whatever documents they have managed to bring with them, people seeking asylum can only refer to their own accounts of the circumstances that made them flee and what they fear will happen if they return to their home country.
The individual asylum interview is therefore often essential in determining status in an asylum procedure. It is commonly recognized that there is a shared burden of proof in asylum cases between the asylum authorities and the individual claiming asylum. While the asylum seeker must present the claim the best she/he can, the authorities have the duty to assess the claim – as well as the facts on which it is based – against relevant background information on the applicant’s country of origin. It is therefore crucial that asylum seekers both understand procedural aspects and trust the decision-making authorities enough to share with them what is often very personal information about themselves and their loved ones. Oftentimes, people will be asked to share information of traumatic events that they have only shared with a very few people – if any – before.
Having their status as refugees recognized and being granted regular stay in the country of asylum is immensely important for people who are unable to return to their country of origin. First and foremost, because of the risks to their life and safety if they are rejected or expelled.
Second, because status recognition is key to a wide range of other important rights: access to services, family unity, work opportunities etc. The quality and fairness of the asylum systems is therefore essential in ensuring that people seeking asylum enjoy fundamental rights guaranteed by the legal framework.
Building and ensuring the functioning of asylum systems and the integrity and fairness of asylum procedures is the responsibility of States, including ensuring compliance with human rights and refugee law by all actors contributing towards the asylum system. Non-state actors, including civil society organizations, UN agencies and private legal actors, often play a central role in contributing to ensuring due process of the law in asylum procedures. Not least, the actors who work to ensure that asylum seekers are empowered to participate in the asylum procedure, supported in making informed choices about their situation, and can understand and respect the decisions of the authorities.
Legal aid services in the asylum procedure are in many places largely unavailable or insufficiently available to asylum seekers, not least due to immense legal aid needs combined with a lack of prioritization and funding of legal aid service. This can leave asylum seekers unaware or misinformed about their rights and obligations in the asylum procedure, and unable to challenge flawed decisions concerning their asylum claim. One important role played by non-state actors is to provide independent legal aid services to asylum seekers. These include a range of activities: providing overall legal information about the procedures as well as people’s rights and obligations, e.g., what to expect and what to be aware of in the procedure; individual legal counselling or assistance on a specific legal issue that may arise in an individual case or situation; legal representation, most notably to challenge decisions by authorities.
- Multi-Stakeholder Engagement in Asylum Procedures
The GCR recognizes the need for a multi-stakeholder and partnership approach to operationalize the objectives of the GCR and, thus, to better respond to the protection challenges of refugees and other forcibly displaced people. The multi-stakeholder and partnership approach laid down in the GCR is potentially a positive and needed game-changer in refugee responses. It seeks to enable much wider participation in the refugee response, including civil society, private sector, financial institutions, and a stronger voice of the hosting states and of refugees themselves. Its objective is to mobilize more resources and draw on diverse capacities to address needs of a growing number of refugees, but also to develop better responses that address the long-term human development needs of refugees, host populations, and hosting states. The approach brings together a diverse set of actors with diverse agendas, roles and mandates, and thus contains an inherent risk of dilution of responsibility and accountability for the refugee response. The key measurement of the approach should be whether it results in better protection outcomes for people, and the involvement of multiple actors should not be on account of the clear responsibility of states to ensure a right compliant refugee response.
Refugee protection in practice will always include a range of actors who support refugees in different ways and with diverse skills, and who ideally work together to achieve the best protection outcomes for people. The active and meaningful engagement of the people in need of protection and assistance is also a significant part of a successful multi-stakeholder approach. When it comes to asylum procedures, refugees and asylum seekers themselves can bring important perspectives on what their needs are and how they are addressed, based on their lived experiences with the gaps and limitations of existing asylum procedures.
In summary there are three primary areas that can and should benefit from a multi-stakeholder approach.
Legal aid should as mentioned be an integral part of the asylum procedure, not just at the appeal stage. In line with the multi-stakeholder approach, NGOs, lawyers and other private actors have an important role to play in the provision of legal aid. This includes preparing people for the asylum interviews and assisting them in understanding complex procedures, so that they may be able to participate actively and make informed decisions about their situation. Legal aid is also key to enable asylum seekers to challenge incorrect or flawed decisions. The involvement of various legal aid actors is thus essential to ensuring respect of the rule of law and due process.
Further, independent monitoring in cases of human rights violation is central. Civil society, including NGOs, can play a central role in this if ensured access, e.g., to places where asylum seekers are deprived of their liberty or detained. Strengthening effective and independent monitoring by civil society on human rights and refugee protection standard compliance by state authorities is thus key in ensuring access to justice for asylum seekers and refugees.
The involvement of multiple stakeholders is furthermore central in raising awareness around refugee issues and influencing policies and practices, with the aim of improving asylum procedures. NGOs, lawyers and other private actors can support capacity-building of asylum authorities and are essential actors in raising attention and taking action to hold duty bearers accountable when laws or practices are not compliant with the rule of law and refugee standards.
- Taking Stock and Way Forward
In December 2021, the first High-Level Officials Meeting was held to assess progress in achieving the GCR objectives. Leading up to the High-Level Officials Meeting, a stocktaking event on the work of the ACSG mechanism was organized by UNHCR. Participants in the event concluded that national asylum capacity development requires ‘long-term vision and solid partnerships’.
Since the ACSG’s launch in December 2019, six confirmed ‘matches’ between offers and requests for support have been made: between France and Niger, France and Chad, Canada and Mexico, New Zealand and the Philippines as well as between EASO and Niger. The GCR Indicator Report 2021, highlight that these matches include different areas of the asylum system: reception of asylum seekers, country-of-origin information, case-processing modalities and management, appeal procedures, and the revision of the legislative framework.
Except for the match EASO-Niger, the first years of the ACSG has only seen state-to-state matches, and to date no matches involve civil society actors. The ACSG stocktaking event’s outcome report reflects on the potential that is yet to be realized:
‘Although asylum capacity is primarily a matter of State responsibility, it is well recognised that refugee protection is operationalised with support from diverse stakeholders. It is proposed to innovate and look beyond state-to-state collaborations and bring the expertise of civil society organisations, legal aid organisations and refugee led organisations in strengthening asylum capacity development.’
The importance of taking a multi-stakeholder approach to asylum capacity development was highlighted by NGOs participants in the stocktaking exercise. The impact of the ACSG in terms of protection outcomes for asylum seekers will no doubt be greater if adequate attention is paid to engage all actors involved in asylum procedures. This include involving non-state actors in ‘matches’ established under the ACSG, as well as focusing on increasing the capacities of all stakeholders – state as well as non-state actors.
Provision of legal aid plays a vital role in ensuring due process of the law. States engaged in asylum capacity development are thus strongly encouraged to carefully consider how the multi-stakeholder and partnership approach of the GCR can be operationalized. Matches under the ACSG mechanism could and should move beyond state-state cooperation to benefit from the diverse expertise, resources, competencies and contributions of many other relevant actors in the asylum procedure, including the asylum seekers themselves.
The ACSG mechanism provides a unique avenue for regional and global debate and exchange on strengthening national of asylum procedures. In order to truly facilitate matches that also involves non-state actors, the already launched good practices and online tools could be supplemented by global and regional meetings for sharing experiences on capacity development projects as well as on the distinct roles various stakeholders play in asylum procedures. Such matching with the involvement of non-state actors should however never be a way for states to shift responsibility on to other actors. The ultimate responsibility to ensure accessibility, fairness and integrity of the asylum system remains with the State.