Ensuring Due Process in Refugee Status Determination Procedures
The Inter-American Commission on Human Rights emphasizes the importance of due process in asylum applications for refugees, asylum seekers, and stateless persons in the Americas. International legal and normative frameworks outline standards and procedural guarantees to protect the rights of individuals seeking asylum or international protection, emphasizing individualized and timely assessments to prevent refoulement. The Inter-American Principles on the Human Rights of Migrants, Refugees, and Stateless Persons highlight the necessity of fair procedures in recognizing and protecting the rights of these vulnerable populations.
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Due Process in Refugee Status Determination Procedures Laura Rudel Protection Officer Multi Country Office Panama
Introduction The Inter-American Commission on Human Rights has been observing an increase number of persons in the Americas with special protection needs, such as asylum seekers, refugees, and stateless persons, who are often displaced by a variety of factors (persecution, generalized violence, internal conflicts, or massive violation of human rights) increase in the In this context, the Commission has established that the right refoulement refoulement necessarily presuppose the existence of a process guarantees necessary to allow for the individualized, serious, and timely study of each asylum application. right of process that offers the minimum of asylum asylum and and the the prohibition prohibition of of States should ensure due rights due process process in all proceedings leading to a restriction or recognition of
International legal framework Absence of specific standards and procedural guarantees in international treaties Inter Inter- -American American Human with various obligations related to the comprehensive protection of the human rights of all persons in context of human mobility Human Rights Rights System System that works as guidelines for OAS member states on how to comply UNHCR s UNHCR s Procedural Procedural Standards Standards for Refugee Status Determination under UNHCR s mandate International International Human Rights right to seek and enjoy asylum; 1951 Refugee Convention and its 1967 Protocol; Cartagena Declaration; CAT) Human Rights Rights law law and and International International Refugee Refugee Law Law (art. 14 Universal Declaration of Human Human Human rights African Commission on Human and Peoples' Rights, and other entities that have directly interpreted human rights norms in procedures for recognition of refugee status rights bodies bodies such as the Human Rights Committee, the European Court of Human Rights, the
Normative framework Inter Inter- -American American Principles Human Human Trafficking Trafficking (hereinafter, Inter-American Principles ). States should ensure: Principles on on the the Human Human Rights Rights of of All All Migrants, Migrants, Refugees, Refugees, Stateless Stateless Persons Persons and and Victims Victims of of due process in all proceedings leading to a restriction or recognition of rights, such as procedures for determining refugee or stateless person status or other international protection needs . Inter Inter- -American American Court American Convention of Human Rights, refers to the set of requirements that must be met in procedural instances so that a person may defend himself adequately in the face of any kind of act of the State, adopted by any public authority, whether administrative, legislative, or judicial, that affect their rights, including procedures for recognizing refugee status. Court of of Human Human Rights Rights has indicated that the right right to to a a fair fair trial, trial, enshrined in Article Article 8 8 of the This requires States to adopt legislative accordance with the Convention itself and other relevant treaties. legislative or or other other measures measures to ensure the right to seek and receive asylum in
Core Principles Non-discrimination and Equal Protection Pro Persona Principle Due Process and its guarantees Non-refoulement Respect for family unit Mainstreaming gender and differentiated approaches
Procedural guarantees and Due Process in RSD procedures Access Access to to territory territory: : a) non-refoulement at the border; b) prohibition of collective expulsions; c) and non-punishment for irregular entry and non-detention of migrants. Individual rights of applicants: Individual rights of applicants: a) Right to appropriate information and guidance b) Right to a translator/interpreter free of charge c) Right to free legal aid d) Right to Contact a UNHCR Representative
Procedural guarantees and Due Process in RSD procedures Minimum procedural guarantees: Minimum procedural guarantees: a) Impartial authorities b) Personal interview and right to be heard c) Confidentiality and protection of personal data and information d) Means of proof, benefit of the doubt and shared duty e) Reasoned and substantiated decisions f) Notification of decisions g) Right to suitable and effective remedy h) Reasonable duration of the process
Procedural guarantees and Due Process in RSD procedures Access to Access to Economic, Social, and Cultural Rights (ESCR) during Proceedings Economic, Social, and Cultural Rights (ESCR) during Proceedings Firewalls: strict and real separation between immigration enforcement and public services Access to ESCR should not be conditioned upon administrative status or level of protection. Access to health care, education, housing, security, and other rights, should be guaranteed on an equal footing with nationals Provision of personal identity documents to persons with protection needs to ensure that they are protected against refoulement or expulsion and access other rights.
