Due Process in Procedures for the Determination of Refugee Status and Statelessness and the Granting of Complementary Protection OEA/Ser.L/V/II. Doc. 255 5 August 2020 Original: Spanish INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Due Process in Procedures for the Determination of Refugee Status and Statelessness and the Granting of Complementary Protection 2020 iachr.org OAS Cataloging-in Publication Data Inter-American Commission on Human Rights. Due process in procedures for the determination of refugee status and statelessness and the granting of complementary protection : approved by the Inter-American Commission on Human Rights on August 5, 2020. v. ; cm. (OAS. Official records ; OEA/Ser.L/V/II) ISBN 978-0-8270-7103-2 1. Human rights. 2. Refugees. 3. Stateless persons. 4. Asylum, Right of. I. Title. II. Series. OEA/Ser.L/V/II. Doc.255/20 INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Members Joel Hernández García Antonia Urrejola Flávia Piovesan Esmeralda Arosemena Bernal de Troitiño Margarette May Macaulay Julissa Mantilla Falcón Edgar Stuardo Ralón Orellana Executive Secretary Paulo Abrão Chief of Staff of the Executive Secretariat of the IACHR Fernanda Dos Anjos Assistant Executive Secretary for Monitoring, Promotion and Technical Cooperation María Claudia Pulido Assistant Executive Secretary for Cases and Petitions Marisol Blanchard Approved by the Inter-American Commission on Human Rights on August 5, 2020 TABLE OF CONTENTS CHAPTER 1 | INTRODUCTION AND METHODOLOGY 11 A. Introduction and Situation of Forced Migration in the Americas 11 B. Importance of Procedures for Persons Subject to International Protection 14 1. Recognition of Refugee Status 14 2. Importance of Establishing Procedures for the Determination of Statelessness 18 C. Objectives and Scope of the Report 18 D. Structure and Methodology 19 CHAPTER 2 | GENERAL NORMATIVE FRAMEWORK 23 A. Normative Framework and Background to the Report 23 1. The Right of Asylum as a Human Right 23 2. Complementary Protection 26 3. International Human Rights Law and Due Process in International Protection 28 4. Inter-American Principles on the Human Rights of All Migrants, Refugees, Stateless Persons, and Victims of Human Trafficking (Resolution 04/2019 adopted by the IACHR on December 7, 2019) 31 B. Mandate of the UNHCR for the Recognition of Refugee Status 31 C. The UNHCR's Mandate in relation to Statelessness 33 D. States and Recognition of Refugee Status and Statelessness 35 1. Regarding Refugee Status 35 2. Regarding Statelessness 36 CHAPTER 3 | CORE PRINCIPLES IN CONNECTION WITH DUE PROCESS FOR THE RECOGNITION OF REFUGEES, STATELESS PERSONS AND PERSONS IN NEED OF PROTECTION 41 A. Linkages between Principles and Constitution of the Concept of Due Process of Law in this Report 41 1. Inter-American Principles on the Human Rights of All Migrants, Refugees, Stateless Persons, and Victims of Human Trafficking and Due Process 41 2. Key Concepts in the Inter-American Principles 42 B. Principle of Non-Discrimination and Equal Protection 43 C. Pro Persona Principle 45 D. The Principle of Due Process and its Guarantees 46 1. Scope of the Principle and Essential Elements in Processes Linked to Human Mobility 46 2. Due Process and Children 49 3. Due Process and Judicial Protection in the Context of Human Mobility 50 E. The Interrelationship between Due Process and Non-Return (Non-Refoulement) 51 F. Principle of Respect for Family Unity 58 G. Mainstreaming Gender and Differentiated Approaches 61 CHAPTER 4 | PROCEDURAL GUARANTEES AND DUE PROCESS IN PROCEDURES FOR THE RECOGNITION OF REFUGEES, STATELESS PERSONS AND PERSONS IN NEED OF COMPLEMENTARY PROTECTION 65 A. Introduction 65 B. Access to Territory 65 1. No Rejection at Borders 68 2. Prohibition of Collective Expulsions and Obligation to Make a Reasonable and Objective Case-by-Case Analysis 69 3. No Penalty for Irregular Entry 70 4. No Immigration Detention 71 C. Rights and Procedural Guarantees in Connection with the Recognition of Protection Status 75 1. The Individual Rights of Applicants 79 a) Right to Appropriate Information and Guidance 79 b) Right to a Translator and/or Interpreter, Free of Charge 81 c) Right to Free Legal Aid 83 d) Right to Contact a UNHCR Representative 85 2. Minimum Procedural Guarantees (or Due Guarantees) 86 a) Impartial Authorities Trained to Identify International Protection Needs 86 b) Personal Interviews and the Right to Be Heard 87 c) Confidentiality and the Protection of Personal Data and Information 89 d) Possibility of Using All Lawful and Legally Allowed Means of Proof and Receiving the Benefit of the Doubt in the Assessment of the Facts and Circumstances Surrounding Applications 89 e) Reasoned and Substantiated Decision 93 f) Notification of the Interested Person 95 g) Right to a Suitable and Effective Remedy 96 h) Reasonable Duration of the Process 97 D. Access to Economic, Social, and Cultural Rights (ESCR) during Proceedings 99 CHAPTER 5 | SPECIFIC PROCEDURAL GUARANTEES REGARDING DETERMINATION OF THE PROTECTION STATUS OF STATELESS PERSONS 105 A. Introduction 105 B. Nationality and Statelessness 107 1. Right to Nationality 107 2. Right of Children to Acquire a Nationality at Birth 109 3. Ways of Acquiring and Losing Nationality 110 4. Statelessness 112 C. Procedures for Determining Statelessness 114 1. Establishment of Procedures for Recognition of Stateless Person Status 114 2. Stateless Children 118 3. Main Similarities to and Differences from Asylum Procedure 119 4. Interrelationships between Statelessness and Asylum Procedures 122 D. Application for Recognition of Stateless Person Status 123 1. Persons Applying for Recognition of Stateless Person Status 123 2. The Application 123 3. Child Applicants 124 4. Principal Obligations of the State relating to the Application 124 5. Exclusion Clauses 124 6. Individual and Collective Determination 126 7. Situation of Stateless Persons inside Their Country of Birth 126 E. Examination of the Application and Assessment of the Applicant's Nationality Situation 127 1. Evaluation of the Application 127 2. Evidence Assessment 128 F. Finalization of the Procedure for Recognizing Stateless Person Status: Reaching a Decision 129 1. Recognition of Stateless person Status 129 2. Rights Acquired by Virtue of Recognition of Stateless Person Status 130 3. Identity Papers and Travel Documents 133 4. Possibility of Acquiring Nationality within a Reasonable Period of Time 135 5. Decision to deny an application for recognition and protection due to stateless person status 135 6. Appeal or Challenge Remedy 136 CHAPTER 6 | CONCLUSIONS AND RECOMMENDATIONS 141 CHAPTER 1 INTRODUCTION Chapter 1: Introduction and Methodology | 11 INTRODUCTION AND METHODOLOGY A. Introduction and Situation of Forced Migration in the Americas 1. In recent years, the Inter-American Commission on Human Rights (IACHR, or the Commission) has been observing with growing concern the progressive and sometimes abrupt increase in the number of persons in the context of human mobility with special protection needs, such as asylum seekers, refugees, and stateless persons, who are often displaced by a variety of factors, such as persecution, generalized violence, internal conflicts, or massive violation of human rights in many countries of the Americas1. There are currently unprecedented levels of forced migration worldwide, which is proportionally reflected in the increasing numbers of pending applications for all forms of international protection in the Americas and, as noted by the United Nations High Commissioner for Refugees (UNHCR), with the risk of collapse of national asylum systems. 2. In this context, the IACHR has established that the right of asylum and the prohibition of refoulement necessarily presuppose the existence of a process with a procedural framework that offers the minimum guarantees necessary to allow for the individualized, serious, and timely study of each asylum application. As noted in its Inter-American Principles on the Human Rights of All Migrants, Refugees, Stateless Persons and Victims of Human Trafficking (hereinafter, “Inter-American Principles”), States should ensure 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. The process should be geared towards identifying the international protection needs of individuals and recognizing refugee status where appropriate.2 Such procedures are fundamental since they involve an assessment and decision on the possible risk of adversely affecting the most basic rights, such as the rights to life, humane treatment, and 1 The IACHR has developed in successive documents the definitions of key concepts for the protection of people in situations of human mobility, such as in its report Human Rights of Migrants, Refugees, Stateless Persons, Victims of Trafficking in Persons and Internally Displaced Persons: Norms and Standards of the Inter-American Human Rights System, and in its Resolution 04/19, Inter-American Principles on the human rights of all migrants, refugees, stateless persons, and victims of human trafficking, 2 IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination System, OAS/Ser.L/V/II.106, February 28, 2000, par. 62. Inter-American Commission on Human Rights | IACHR 12 | Due Process in Procedures for the Determination of Refugee Status and Statelessness and the Granting of Complementary Protection personal liberty,3 their aim being