MOBILE – Mobility Law Open Lab with Nikolas Feith Tan
’Manifestly Well-Founded’ Procedures: Towards a Fair and Effective Asylum System?
Guest presenter: Nikolas Feith Tan is a senior researcher at the Danish Institute for Human Rights.
Presentation: The processes used to recognise refugees are at the heart of how states decide who needs international protection and who does not. As the 1951 Refugee Convention is silent on the question of how asylum procedures are to be carried out, states exercise significant discretion in the processes used to recognise refugees (Costello, Nalule and Ozgul 2021; Botero and Vedsted-Hansen 2021). Nevertheless, the Convention includes an implicit requirement for state parties to provide ‘fair and effective’ processes to deal with asylum applications (UNHCR 1997).
National asylum systems around the world are under massive strain, due to administrative delays, backlogs, and increased complexity in asylum cases (AIDA 2017). In recent decades, the emergence of mixed movements — whereby refugees travel alongside people on the move for other reasons — has placed additional pressures on national asylum systems. This situation was exacerbated by the COVID-19 pandemic, which led to the temporary suspension of asylum procedures in many countries around the world (Ghezelbash and Tan 2020). As a result, the number of new asylum applications globally has increased year on year, with 2.9 million in 2022, a significant increase from the 1.7 million new applications in 2021 and 2.2 million in 2019 (UNHCR 2023). In many countries, asylum backlogs stretch into years, raising concerns whether these systems are fit for purpose, and calling into question the integrity of and public trust in national asylum systems.
Historically, developed states have overwhelmingly favoured asylum procedures that focus on the individual circumstances of the asylum seeker. However, there are other ways to carry out fair and effective asylum processes. Well-established alternatives are manifestly well-founded or prima facie procedures, which recognise groups of refugees ‘on the basis of readily apparent, objective circumstances in the country of origin’ (UNHCR 2015). The prima facie method has historically exclusively been used in mass influx situations and on a group basis by African states and the United Nations High Commissioner for Refugees (Albert 2011; UNHCR 2020).
In the past decade, some developed states have responded to the rise in number, complexity and backlogs of asylum applications by experimenting with manifestly well-founded procedures for asylum seekers likely to need international protection. Although no universally accepted definition of manifestly-well founded procedures exists, generally they refer to asylum applications that, on their face, clearly indicate that the individual meets the definition of a refugee under the Refugee Convention or complementary protection under international human rights law. Although manifestly well-founded procedures are usually associated with mass influx situations, the recent experimentation by states shows that they may also be an appropriate response for the protection of individuals who share a readily apparent common risk of harm, even in the absence of a large-scale movement of refugees (Tan and Ineli-Ciger 2023).
The key aim of this paper is to inform the development of manifestly well-founded procedures to increase the fairness and effectiveness of national asylum systems, including in Australia. This will be achieved by drawing lessons from the use of manifestly well-founded procedures in Canada, Denmark, and the UK to influence the development of Australia’s asylum system. Fairness refers to the quality of decision-making, including through decision-making consistency, non-discrimination among refugees, and fraud issues. Effectiveness refers to the time, administrative and financial resources used in asylum processes in prima facie procedures, compared to a full ‘in-merits’ procedure.
Time: 30 November 2023 13:00-14:15
Place: MOBILE – 6B-2-22 Southern Campus + ONLINE
Online participation
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