June 20, 2013

The government of Ecuador is entitled to regulate who is permitted to stay in the country and to reject unfounded asylum claims. However, we are deeply concerned that Presidential Decree 1182’s changes [to the asylum procedures] do not protect asylum seekers’ due process rights, including the right to have their asylum claims fairly examined. 

Mr. President Rafael Correa Delgado

Washington, D.C.

June 20, 2013

Dear President Correa,

We are writing to you today, on World Refugee Day, to urge you to revoke Presidential Decree 1182 (the “Decree”), adopted on May 30, 2012, to regulate Ecuador’s asylum procedures. As a result of the Decree, these procedures now include measures that violate basic rights of refugees provided for by international law.[1]

Human Rights Watch acknowledges that, according to the United Nations High Commissioner for Refugees (UNHCR), Ecuador has the largest number of registered refugees of any Latin American nation, a population totaling 56,000 by March 2012.[2]We also recognize that the government of Ecuador is entitled to regulate who is permitted to stay in the country and to reject unfounded asylum claims.

However, we are deeply concerned that Presidential Decree 1182’s changes do not protect asylum seekers’ due process rights, including the right to have their asylum claims fairly examined. In fact, the UNHCR has reported that although the number of people seeking protection in Ecuador remains high, “access to asylum has become difficult” since the adoption of the Decree.[3]

As described below, we are particularly concerned that the Decree includes a narrow definition of who may be considered a refugee; establishes a new admissibility procedure under which officials may reject “manifestly unfounded” asylum claims in a manner that contravenes UN guidelines; imposes a 15-day limit within which a person must register an  asylum claim after he or she enters Ecuador, which should be applied flexibly; allows officials overly broad authority to reject an asylum application before reviewing it, on the grounds that an applicant may have previously committed crimes; and grants public officials overly broad powers to revoke refugee status.

Narrow Definition of Refugee

The Decree’s refugee definition excludes several categories of individuals who are considered refugees under binding international norms.

The Decree defines who is to be considered a refugee in accordance with the 1951 Refugee ConventionRelating to the Status of Refugees[4]and its 1967 Protocol,[5]which were both ratified by Ecuador decades ago.[6]The Decree defines a refugee as “any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”[7]

However, the Decree does not draw on the 1984 Cartagena Declaration on Refugees, an international document adopted by several nations, including Ecuador, which defines refugees as persons who have “fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.”[8]

In fact, Decree 1182 specifically eliminates from the Ecuadorian legal framework a previous decree of 1992 that included this expanded definition.[9] This constitutes a regression of refugee rights under Ecuadorian law.

The vast majority of refugees in Ecuador are Colombians.[10]Since many fled generalized violence, armed conflict, and massive human rights violations, excluding the Cartagena Declaration’s refugee definition from the decree risks leading to a situation in which thousands of Colombians could be denied refugee status and the protection to which they are legally entitled.

Admissibility Procedure

Decree 1182 establishes an admissibility procedure under which officials may decide not to consider an asylum application under the standard refugee status determination procedures and instead may reject the application if they believe the case to be “manifestly unfounded” or “abusive.”

The Decree states that an official may consider a claim to be “manifestly unfounded” if it “contains elements completely unrelated to the currently valid definitions of refugee in Ecuador” and may consider it to be “abusive” if it contains “fraudulent elements that involve deception or manipulation of the process to obtain benefits for oneself, third parties or groups, as well as those cases in which the petitioner, without needing international protection, invokes refugee status to evade justice or compliance with the law.”[11]

This procedure fails to comply in a number of ways with the UNHCR Executive Committee’s guidelines on basic safeguards, which seek to ensure that States do not mistakenly reject valid asylum claims and inadvertently cause them to commit refoulement, the forced return of anyone to persecution or situations threatening their lives or freedom.[12]

The UNHCR’s Executive Committee requires UNHCR Contracting Parties to ensure the following:

“(i) as in the case of all requests for the determination of refugee status or the grant of asylum, the applicant should be given a complete personal interview by a fully qualified official and, whenever possible, by an official of the authority competent to determine refugee status;

(ii) the manifestly unfounded or abusive character of an application should be established by the authority normally competent to determine refugee status; [and]

(iii) an unsuccessful applicant should …  have a negative decision reviewed before rejection at the frontier or forcible removal from the territory.”[13]

The UNHCR’s Executive Committee also requires that Contracting Parties ensure that “[i]f the applicant is not recognized [as a refugee], he should be given a reasonable time to appeal for a formal reconsideration of the decision” and that “[t]he applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority.”[14]

The admissibility procedure in Decree 1182 does not meet these basic standards.

First, it allows a representative of the Foreign Affairs Ministry to review asylum applications, instead of the “Commission to Determine the Condition of Refugees in Ecuador,” which is the authority in Ecuador normally responsible for determining refugee status.[15]

Second, it does not require the representative to interview the asylum applicant, and it grants the representative absolute discretion on whether or not to request additional information or clarifications before reaching a decision.[16]

Third, asylum seekers are not given formal legal status in Ecuador until the Commission admits their cases for review. At that point, they receive certificates granting them the right to remain in the country temporarily until the Commission resolves their cases. These temporary permits allows asylum seekers to move freely around the country, guarantees their right not to be expelled, deported or extradited during the asylum procedure, and allows them to work.[17]

Finally, even though the Decree allows asylum seekers to appeal decisions that conclude that their applications are manifestly unfounded or abusive, it requires appeals to be filed within three days of the receipt of a notice of rejection of asylum. If the asylum seeker does not file the appeal or regularize his or her immigration status in some other way prior to this deadline, he or she must leave the country.[18]Three days is not “a reasonable time to appeal for a formal reconsideration of the decision.”

15-day Limit to Lodge Asylum Applications

The Decree requires asylum requests to be lodged within 15 days of entering the country, and states that “no administrative sanctions will be imposed for entering or remaining illegally in the country” for those who comply with this deadline, suggesting that those who do not could be sanctioned.[19]The international requirement is that asylum seekers be granted “a reasonable period within which to seek legal admission into another country.”[20]

According to Ecuadorian human rights defenders who work on asylum cases, applications filed outside of that time frame are routinely rejected without consideration for the reasons for the delay, unless the applicants have access to legal counsel who are able to challenge the rejection.[21]This is particularly problematic for Colombian asylum seekers who, according to press accounts, usually enter Ecuador through isolated border areas where there are no government officials and who therefore cannot submit their asylum requests within the 15-day deadline.[22]

Asylum seekers who qualify as members of a “priority” group, including children, the elderly, or people with disabilities, are typically allowed to file their claims more than 15 days after they enter the country.[23]

For those asylum seekers who struggle to reach asylum authorities within 15 days of arrival in the country – for understandable, logistical reasons – the authorities should ensure that those reasons are taken into account. Regardless of the 15-day limit, Ecuador may not return would-be asylum seekers to their country of origin if it would constitute refoulement.

Unlawful Powers to Exclude Asylum Seekers from Asylum Procedures

Under Presidential Decree 1182, officials may consider an asylum request “illegitimate” and immediately deport the asylum seeker without thoroughly reviewing the application if “there are well-founded reasons to consider that [the applicant] has committed crimes on Ecuadorian soil” equivalent to those included under the Refugee Convention of 1951.[24]

The UNHCR Guidelines, however, require that States should only exceptionally exclude a person from refugee status before his or her asylum claim has been considered:

Given the grave consequences of exclusion, it is essential that rigorous procedural safeguards are built into the exclusion determination procedure. Exclusion decisions  should in principle be dealt with in the context of the regular refugee status determination procedure and not in either admissibility or accelerated procedures, so that a full factual and legal assessment of the case can be made. The exceptional nature of Article 1F suggests that inclusion should generally be considered before exclusion, but there is no rigid formula. Exclusion may exceptionally be considered without particular reference to inclusion issues (i) where there is an indictment by an international criminal tribunal; (ii) in cases where there is apparent and readily available evidence pointing strongly towards the applicant’s involvement in particularly serious crimes, notably in prominent Article 1F(c) cases, and (iii) at the appeal stage in cases where exclusion is the question at issue.[25]

While there is no objection to the proper use and application of Article 1F of the 1951 Refugee Convention, we are concerned the decree does not provide for the “rigorous procedural safeguards” called for, and permits exclusion determination procedure to happen before inclusion in circumstances not foreseen by the Guidelines.  For example, the Guidelines above refer to “apparent and readily available evidence” of involvement rather than “well founded reasons to consider” an applicant may have committed an offence. They also refer to “prominent Article 1F (c ) cases” whereas the Decree would allow early exclusion for more than “acts against the purposes and principles of the United Nations” (article 1F(c)).

Broad Powers to Revoke Refugee Status

Decree 1182 grants Ecuadorian authorities the power to revoke the refugee status of recognized refugees on grounds not permitted under international law.

Under article 1F of the 1951 Refugee Convention, States may only exclude a person from refugee status if “there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to
make provision in respect of such crimes; 

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”

However, the Decree adds an additional reason to this list and authorizes the authorities to revoke a person’s refugee status if he or she “has been involved in crimes or situations that undermine the security of Ecuador.”[26]The Decree’s language does not require the person to have “committed” the relevant crime or to be “guilty” of such a crime. It simply requires the person “to have been involved” in “crimes” or “situations” that appear to involve a lower burden of proof than that required under the Convention.

Based on the above considerations, we respectfully urge you to revoke these problematic provisions and push for the adoption of comprehensive legislation that fully respects the right to seek and be granted asylum, provided for in the American Convention on Human Rights and the Universal Declaration of Human Rights.[27]

Sincerely,


 

José Miguel Vivanco                                                                           Bill Frelick      
Director                                                                                               Director
Americas Division                                                                               Refugee Program
Human Rights Watch                                                                          Human Rights Watch



[1]Rules of Procedure to Apply in Ecuador to the Right to Refuge Provided for in Article 41 of the Constitution of the Republic, and Norms included in the United Nations Convention of 1951 Relating to the Status of Refugees and its 1967 Protocol (Reglamento para la Aplicación en el Ecuador del Derecho de Refugio Establecido en el Art. 41 de la Constitución de la República, las Normas Contenidas en la Convención de las Naciones Unidas de 1951 sobre el Estatuto de los Refugiados y en su Protocolo de 1967), Executive Decree 1182, May 30, 2012.

[3]UNHRC, “UNHCR Global Appeal Ecuador,” December 2012, http://www.unhcr.org/50a9f8320.html(accessed June 7, 2013).

[4]Convention relating to the Status of Refugees, adopted April 28 1951, 189 U.N.T.S. 150, entered into force April 22 1954, http://www.unhcr.org/3b66c2aa10.html(accessed June 7, 2013).

[5]Protocol Relating to the Status of Refugees, adopted January 31 1967, 606 U.N.T.S. 267, entered into force October 4, 1967, http://www.unhcr.org/3b66c2aa10.html(accessed June 7, 2013).

[6]Ecuador ratified the Convention relating to the Status of Refugees 1951 on August 17, 1955, http://treaties.un.org/pages/ViewDetailsII.aspx?&src=UNTSONLINE&mtdsg_no=V~2&chapter=5&Temp=mtdsg2&lang=en#12(accessed June 7, 2013).

Ecuador acceded to the Protocol Relating to the Status of Refugees 1969 on March 6, 1969, http://treaties.un.org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=V-5&chapter=5&lang=en#Participants (accessed June 7, 2013).

[7]Decree 1182, art. 8.

[8]UNHRC, “Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama”, 22 November 1984, http://www.unhcr.org/refworld/docid/3ae6b36ec.html(accessed June 7, 2013), section III, para. 3.

[9]Decree 3301, May 12, 1992, http://www.mmrree.gob.ec/ministerio/reglamentos/reglamento_refugiados.pdf(accessed June 7, 2013), art. 2.UNHCR, “Expanded Definition of Refugee in Latin America” (Definición ampliada de Refugiado en América Latina), http://www.acnur.org/t3/fileadmin/scripts/doc.php?file=biblioteca/pdf/2541(accessed June 7, 2013), June 2011.

[11] Decree 1182, arts. 24, 25.

[12] The 1951 Refugee Convention prohibits States from returning refugees to persecution or places threatening their life or freedom. The 1951 Refugee Convention allows such return only where there are “reasonable grounds for regarding [the refugee] as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”  Under no circumstances may a person be returned to a situation in which he or she faces a real risk of torture or inhumane and degrading treatment.

Convention Relating to the Status of Refugees, art. 33. Cartagena Declaration on Refugees, principle 5.

UN General Assembly Declaration on Territorial Asylum, http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/2312(XXII)(accessed June 7, 2013), art. 3.1

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987., art.3.

[13]UNHCR Executive Committee, “The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum,” Conclusion No. 30, October 20, 1983, http://www.unhcr.org/refworld/docid/3ae68c6118.html(accessed June 7, 2013), paragraph (e).

[14]UN High Commissioner for Refugees, “Determination of Refugee Status”, October 12, 1977, http://www.refworld.org/docid/3ae68c6e4.html(accessed June 7, 2013), recommendation (e) (vi) and (vii).

[15]This commission is made up of a representative from the Foreign Affairs Ministry, one from the Interior Ministry, and one from the Justice, Human Rights, and Cult Ministry. Decree 1182, arts. 15, 19.

[16]Decree 1182, arts. 29, 32.

[17]Decree 1182, art. 34, 35. Individuals from other Andean countries are allowed to work for up to nine months, irrespective of the status of their asylum petitions. Human Rights Watch email communication with staff members from Asylum Access Ecuador, June 4, 2013.

[18]Decree 1182, art. 33.

[19]Decree 1182, arts. 12, 27.

[20]Convention Relating to the Status of Refugees, art. 32.3.

[21]Human Rights Watch email communication with staff members from Asylum Access Ecuador, June 4, 2013.

[22]“Un millar de refugiados al mes,” El Telegrafo, n.d., http://www.telegrafo.com.ec/actualidad/item/un-millar-de-refugiados-al-mes.html(accessed June 4, 2013).

The same article was reproduced in El Universo in April 2013.  “Concesión de asilo en Ecuador se dificultó en 2013, señala funcionario europeo”, April 19, 2013, El Universo, http://www.eluniverso.com/2013/04/19/1/1355/concesion-asilo-ecuador-dificulto-2013-senala-funcionario-europeo.html(accessed June 4, 2013).

[23]Human Rights Watch email communication with staff members from Asylum Access Ecuador, June 4, 2013.

[24] Decree 1182, arts. 10, 26, 33. Article 10 states a person will not be granted refugee status, in accordance with the 1951 Convention, if there are reasons to believe that the person committed a crime against peace, a war crime, a crime against humanity, a serious crime before entering Ecuador, or if the person is responsible of “acts against the purposes and principles of the United Nations.”

Under the 1951 Refugee Convention, a State may exclude a person from refugee status if the person has committed certain serious crimes, 1951 Convention, Article 1F.

[25]UNHCR, “Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to  the Status of Refugees”, 4 September 2003,http://www.justice.gov/eoir/vll/benchbook/resources/UNHCR_Guidelines_Exclusion_Clauses.pdf(accessed June 7, 2013), para 31.

[26]Decree 1182, art. 55.

[27]American Convention on Human Rights (“Pact of San José, Costa Rica”),adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992)., art. 22 (7).  Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948)., art.14.

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