Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 71d) Procedure for recognition of refugee statusThe Geneva Refugee Convention does not contain explicit protectionsfor procedural rights in the recognition of refugee status. Such standardsare set out in the UNHCR Handbook on Procedures and Criteriafor Determining Refugee Status under the 1951 Convention and the1967 Protocol relating to the Status of Refugees (UNHCR Handbook) 115and in conclusions and recommendations of the UNHCR ExCom.International human rights law imposes few binding obligations in relationto procedures for the determination of refugee status, with theexception of obligations of non-discrimination in such procedures. Theprocedural human rights protections attaching to decisions to removefrom the territory, which may be consequent on refusals of refugeestatus, are considered in Chapter 3. However, it should also be notedthat failure to apply fair procedures in the consideration of an asylumapplication may lead to violations of the right of non-refoulement andthe right to an effective remedy in respect of that right. In Jabari v.Turkey, the European Court of Human Rights held that the automaticapplication of a five-day time limit for registering a claim for asylum,which denied the applicant any scrutiny of her fear of ill-treatment followingexpulsion, and the subsequent failure of the appeal court to considerthe substance of those fears, meant that her deportation wouldviolate Article 3 ECHR, as well as the right to an effective remedy underArticle 13 ECHR. 116The Inter-American Commission on Human Rights has stressed theneed for predictable procedures and consistency in decision-making ateach stage of the process. It has recognised the right to a hearing todetermine whether an asylum seeker meets the criteria for refugee status,and the right to appeal of the first asylum decision. 117 Furthermore,the Commission held, in the case of John Doe and Others v. Canada,that to guarantee the right to seek asylum enshrined in the AmericanDeclaration (Article XXVII) “every Member State has the obligation toensure that every refugee claimant has the right to seek asylum inforeign territory, whether it be in its own territory or a third countryto which the Member State removes the refugee claimant. To the extentthat the third country’s refugee laws contain legal bars to seekingasylum for a particular claimant, the Member State may not removethat claimant to the third country. To ensure that a refugee claimant’s115 UNHCR Handbook, op. cit., fn. 66.116 Jabari v. Turkey, ECtHR, Application No. 40035/98, Judgment of 11 July 2000, paras. 39–42.117 IACHR, Report on Canada, op. cit., fn. 61, para. 52. See, on the right to have a hearing orinterview, ibid., para. 109; Haitian Interdictions Case, IACHR, op. cit., fn. 46, para. 153;John Doe et al. v. Canada, IACHR, Case 12.586, Report No. 78/11, Merits, 21 July 2011,para. 92: “it is the act of hearing the person that implements the most fundamental elementof the right to seek asylum”.