Нелегальная миграция и законодательное обеспечение защиты лиц, ищущих убежища

Abstract

Since 1995, UNHCR has been active in Belarus with direct assistance to help the Belarusian authorities in developing an effective system for granting fair access and asylum for those in need of international protection. In 1995, this came at a difficult time for Belarus, just a few years into its independence from the former Soviet Union. It had little or no experience in dealing with such issues as illegal/forced migration, asylum, smuggling and the trafficking of human beings. Since then, in 2001, Belarus has ratified the 1951 Geneva Convention Relating to the Status of Refugees with its 1967 Protocol and has amended its Law on Refugees in 2002 to better reflect international standards. These steps are in compliance with international obligations. The result is a functioning asylum system that has recognized some 700 refugees to date with another 2,500—3,000 persons of concern in the procedures. Today, UNHCR is also sponsoring and facilitating Belarus' active participation in various multi-lateral processes that have raised crucial attention to the cross-border aspects of the issues of migration and asylum. From the CIS process to the Budapest process, now Belarus has taken an active and fruitful leadership role in the Soderkoping process. In these Processes, UNHCR and Belarus have a mutually beneficial partnership which has as its basis, 2 important goals: 1. The recognition that illegal migration consists of both economic migrants and refugees, hence all efforts to combat it must have the necessary safeguards for ensuring entry into the country and then access to the asylum procedures for asylum seekers and refugees. 2. The procedures for being granted refugee status must be fair and efficient which would allow for the full protection for those who are asylum seekers in the process and those who are deemed to be refugees. In essence, this nexus between illegal migration and asylum is quite strong. It is here that the multilateral Process like the Budapest one and its recommendations are quite useful to examine the international refugee law obligations that States must adhere to as they take greater measures to control migration flows. Such State measures have included the following: punishing illegal entry and stay of asylum seekers, sanctioning the use of false documents and imposing liability on carriers that transport illegal migrants and asylum seekers. Notwithstanding the increased use of these measures, it should be noted that these UNHCR-endorsed recommendations to protect asylum seekers and refugees have already been agreed to by participating States like Belarus and the Russian Federation. As for the punishing of illegal entry and stay, Article 31 of the Geneva Convention exempts refugees from being punished, provided that they present themselves in a reasonable time to the authorities and show good cause for their illegal entry and presence. This article also provides that States should not apply restrictions to the movements of refugees, except as necessary. Regarding sanctions being introduced punishing the production, provision and use of fraudulent documents, UNHCR believes that this may have a negative impact on asylum seekers and refugees because they would have valid reasons for being in possession of forged documents. It should be recognized that asylum seekers have to resort to the use of falsified documents as the only way to flee the country of origin and if done not for deliberate deceit then such use may indicate the well-founded nature of the asylum claim. While acknowledging that there are increasing numbers of asylum seekers with false documents, States should still allow/enable all asylum seekers without any distinction to have access to the refugee status determination procedures. Concerning punishment on carriers who fail to facilitate the identification of improperly documented passengers, UNHCR's position is that this issue can be better addressed by careful harmonization of standards of application, treatment and implementation of accelerated asylum procedures. If carrier sanctions are resorted to then they should be implemented in a manner consistent with international human rights and refugee protection that under Article 14 of the Universal Declaration of Human Rights declares every person has the right to enter a country to seek asylum. Due to time constraints all the Budapest recommendations on the nexus of migration and asylum are not gone into here. However, it is necessary to highlight that no matter what actions are taken by States on the following: e. g. the approximation of visa regimes, the concluding of readmission agreements, the sanctioning of both trafficking and smuggling of people, the strengthening of the sanction of detention (in aggravating circumstances cases) — as part of their legitimate interest in controlling illegal migration, States still must meet their international obligations under refugee law. If States use these measures to interfere with the ability of persons at risk of persecution to gain access to safety and obtain asylum in their countries, then States act inconsistently with their international obligations towards refugees. In this light, concerns of immigration control should not overshadow the need to protect the victims of smuggling when they are refugees or the commitment to uphold the right to seek and enjoy asylum from persecution. Moreover, cases of trafficked persons particularly women and children may also under exceptional circumstances be in need of international protection. Therefore there is a need to reconcile measures aimed to combat the smuggling of migrants and the trafficking of persons, with existing and binding obligations under international refugee law, particularly with the principal of "non-refoulement". Lastly some points must be made on the exchange of data and the particular need for the protection of women and children. The Budapest process meetings reaffirmed the need for increased exchange of information at all levels between participating States with a view to combating illegal migration and trafficking in aliens and its linkage to organized crime. However recommendations were made that appropriate legislation should be adopted on the protection of personal data. As such, UNHCR would like to stress in conformity with this recommendation that no information which could jeopardize the individual should be shared with the country of origin of an asylum seeker and refugee or any other unauthorized source. Informing the country of origin of an asylum seeker about his/her individual case may have potentially grave consequences for the asylum seeker and may even be a course of persecution in itself. As for vulnerable categories of individuals caught in the illegal migration mixed flows, the special needs to protect women and children who are trafficked or who enter and stay illegally in your countries should be stressed. The specific rights of women are recognized in a number of international human rights instruments including the Convention on the Elimination (of all forms) of Discrimination against Women. Women should be given equal access to the asylum procedures. The authorities dealing with asylum claims should be fully aware of, and support, the needs and resources of refugee women. All officials and staff involved in the reception and determination process should be trained in order to be sensitive to gender issues. As for children, it should be highlighted that they suffer the hardship of displacement even more acutely than adults due to their vulnerability and developmental needs. Hence Article 3 (1) of the Convention on the Rights of the Child provides that the "best interests" of the child shall be the primary consideration in any action taken by States concerning illegal migration and asylum policies which affect children. In conclusion, the author highlights and congratulates Belarus for being an active participant of both the Budapest and Soderkpoing Processes in which States take stock of the advancements in combating illegal migration and in meeting international standards as to refugee law and the protection of vulnerable groups like women and children. Being a transit country for illegal migration but also providing asylum for those who wish to seek international protection, Belarus is taking full advantage of cross border cooperation mechanisms to assist in finding a solution. The solution, i. e., making illegal migration "manageable" is not only greatly facilitated by these multilateral Processes but also by the organizing of international seminars such as this one.