This study is aimed at all stakeholders involved in the process of determining the protection need of asylum-seekers. It provides a detailed description of the genesis of UNHCR’s guidance (position papers) based on interviews with key personnel at the Division of International Protection at the Geneva Headquarters. It further explores what qualities may be attached to the writing of the position papers that enables UNHCR to give authoritative guidance on protection needs. It provides insight into the UNHCRs own rationale for why and how it produces its position papers, by discussing the research strategies, methodology of assessing Country of Origin Information and the reasoning that goes into the legal analysis. Finally, a view is offered as to how to understand the legal characteristic and significance of these non-binding “soft law” recommendations in national jurisdictions.
Section 3 starts out with a description of the legal basis for the production of UNHCR’s guidance (or “position papers”) on international protection needs. A description of the different types of position papers UNHCR produces under the auspices of Article 35 of the 1951 Convention is also given.
Section 4 explores the meaning and content of the “obligation to cooperate” with UNHCR’s supervisory functions, by describing the rationale and effort that goes into the making of the different position papers. This part of the study provides insight into the rationale for why UNHCR takes strong positions on protection needs; what qualities may be attached to the research and analysis that give UNHCR’s guidance its credibility? Examples given are in relation to working conditions and challenges concerning reliable sources when writing the Eligibility Guidelines on Iraq, Afghanistan or Sri Lanka and Iran. The issuance of the position papers may result in dialogue with governments where issues pertaining the sourcing and the conclusion are discussed. Dialogue with signatory states does not represent the only avenue of implementation, however. UNHCR’s guidance in court interventions has represented an important alternative in jurisdictions, and a subsection also describes the consideration that UNHCR takes into account in order to assess whether an intervention is likely to succeed or not.
Sections 5 and 6 provide a description of the organization and reception process of the position papers in three select states. Section 5 explores the implementation regimes in three national jurisdictions of the UK, Sweden and Norway. How may the basic organization of the immigration authorities affect implementation? Who handles implementation and what approach is taken as to whether to implement? Section 6 ventures into a case study on the speed and degree of implementation of UNHCR’s positions regarding the Internal Flight Alternative and Gender Related Persecution illustrate how the different organizational traits has affected the decision to implement the guidance on these two concepts.
Finally, some observations are provided on signatory states’ obligation to cooperate with UNHCR in its supervisory functions: Are UNHCR’s different position papers received as intended? Why may states sometimes arrive at different conclusions than UNHCR on
international protection needs? And what may constitute good reasons for not adhering to a recommendation in one of UNHCR’s position papers?
Carried out by: Hestenes og Dramer & Co
Commisioned by: UDI