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This paper² examines issues related to the migration asylum interface. It does so from the stand point of the Office of the UN High Commissioner for Refugees (UNHCR) and in some instance in comparison with the International Organization of Migration (IOM) which have different but complementary mandates in this area. Both have a responsibility to assist States in the implementation of measures which accommodate both protection for refugees and concerns about uncontrolled irregular migration. Both have, too, an important contribution to make to a public debate about migration issues in which humanitarian concerns need to regain their place.

Refugees are not migrants. Their immediate objective is to seek protection, not just to move for personal convenience. This being said, refugees may also move - in fact increasingly do so - within a broader mixed flow which includes both forced and voluntary movements. They may even resort to migrant smugglers as one way to leave their country. At the same time, in the absence of viable, legal migration options to pursue, persons who are not refugees are nevertheless seeking to enter countries of their choice through the asylum channel, it being often the only entrance possibility effectively open to them. So the line between migrant and asylum-seeker progressively blurs in the public mind, just as does the distinction between migration control and refugee protection in the policies of some States.

From UNHCR's perpective criminal smuggling in migrants and trafficking in persons pose a growing problem to States, while endangering the lives of those who are exposed to the ruthless practices of the gangs and networks responsible for these practices. UNHCR's direct interest in this issue stems from the fact that many asylum-seekers and refugees also make use of smugglers, either because they have no other means of reaching safety or because they believe that it wilt open up more viable and durable protection possibilities. As a result, measures to combat smuggling may impact quite directly on the availability of protection for refugees. Hence, UNHCR is committed to working with States to establish processes, which enable asylum-seekers to have their protection needs properly assessed and, if appropriate, solutions identified which would meet those needs.

An additional humanitarian concern arises where smugglers target smuggled asylum-seekers, in particular women and children, for criminal purposes. Such cases clearly require additional and appropriate protective measures, distinct from those, which may be applicable to refugees under national or international refugee law. In some instances, victims and witnesses of acts of trafficking may feel compelled to apply for asylum to ac-ccsb some form of protection against reprisals from the perpetrators of these acts. In Albania, many of the trafficked women and girls apprehended by the local police felt that they had no other choice but to seek asylum, as there were no adequate alternative systems in place for victims of trafficking operations. This affected adversely the efforts to build effective asylum systems. The problem was overcome by establishing an inter-agency referral system, which ensures that such individuals receive proper medical attention, counseling on voluntary return (through TOM), and material assistance in "safe houses". Asylum-seekers, on the other hand, are accommodated in a reception center established for that purpose, pending a decision on their asylum application. This arrangement reflects the reality that being a victim of trafficking per se does not represent a valid ground for claiming refugee status. However, in some cases trafficked persons may quality for international refugee protection, if the acts inflicted by the perpetrators would amount to persecution for one of the reasons contained in the 1951 Convention definition, in the absence of effective national protection.

The adoption of separate and comprehensive provisions for the protection of witnesses and victims of trafficking, while meeting their humanitarian needs, can also help to maintain the integrity of national asylum systems and procedures. In the context of mixed or composite flows, asylum systems are likely to function better if States establish policies and procedures which permit them to distinguish clearly among the different categories of migrants and to identify solutions appropriate to their specific circumstances. In terms of interception and refugee protection safeguards, discussions in some details were held at the eighteenth meeting of the Standing Committee in July 2000, on the basis of a paper submitted by UNHCR. The paper advocated a comprehensive approach in dealing with interception, in addition to a number of recommendations aimed at mitigating the effects of interception measures on asylum-seekers and refugees. Subsequent to this discussion, the Executive Committee, at its fifty-first session, recognized the importance of ensuring that, in the context of measures adopted to deal with irregular migration, trafficking and smuggling of persons, the international protection and assistance needs of asylum-seekers and refugees are identified and fully met, consistent with international protection responsibilities, in particular the principle of non-refoufement.

It has been recognized that one of the main challenges resulting from interception is the difficulty of reconciling this practice with relevant international legal responsibilities. In UNHCR's view, the 1951 Convention and the 1967 Protocol, in conjunction with some of the provisions contained in the UN Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the Convention against Transnational Organized Crime, as well as relevant human rights instruments, offer a useful legal framework for the adoption of practical protection safeguards by States. From a durable solutions perspective, resettlement can be an appropriate measure for some intercepted persons who are in need of international protection. Its potential as a solution for intercepted cases is most likely to be fully realized if resettlement is approached as a means of responsibility-sharing among involved States, including those who set up the interception mechanisms, those on whose territory the persons are intercepted and those where the intercepted refugees may have direct family links. However, resettlement cannot stand alone and needs to be complemented by efforts to promote other measures for persons for whom resettlement is not, for a number of reasons, the appropriate solution. For instance, in cases where refugees moved in an irregular manner from a country in which they had already found protection, their readmission to the first country of asylum should, in the first instance, be pursued. This being said, there may be considerable doubts as to whether "effective protection" has actually been found. The promotion of local integration may then represent the more feasible alternative solution.

Substantial movements of asylum-seekers and refugees occur not only directly from the country of origin, but also from countries of first arrival. In many instances, these latter movements can be described as irregular, in the absence of compelling reasons that endanger the physical safety or freedom of refugees. In other instances, departures of refugees result from a loss of protection in the country of first asylum or from treatment that is at variance with basic human rights standards. In order to curtail these kinds of movements, States should undertake joint efforts to strengthen the capacity of countries of first arrival to provide international protection. Some suggestions in this regard are found in the Conclusions and Recommendations of this paper. In addition, the matter is scheduled for more thorough discussion at the third meeting within the Global Consultations framework.

There arc alternatives to interception, such as in instances when persons with a well-founded fear of persecution find themselves unable to leave their country and seek asylum and international protection abroad. A small number of States have set up special program and procedures that grant such persons the opportunity to submit their claims while they are still in the country of origin. This offers an additional, if usually limited, opportunity for people in need of protection to reach safety, in particular in situations where free and direct access is available to diplomatic representations.

The availability of direct departure mechanisms is a complement to, not a replacement for seeking asylum abroad. They can provide an alternative channel, without undermining refugee protection, for individuals who are unable to leave their country and who might otherwise be compelled to jeopardize their life by cooperating with criminal organized smugglers. In-country processing of claims for organized departure can promote both orderly departures and arrivals, as well as help to reduce criminal smuggling of asylum-seekers. States offering this possibility continue, in parallel, to receive claims on their territory from spontaneous arrivals. If this were to cease to be a possibility, the right to seek asylum and opportunities to access protection would be seriously jeopardized.

UNHCR's role in in-country processing is limited by its mandate, although there are precedents for its operational involvement, most notably in the Orderly Departure Programme from Vietnam that began in May 1979 and lasted for several years. As one function, UNHCR can advise States on the criteria and modalities of such an arrangement. In addition, the Memorandum of Understanding between IOM and UNHCR provides for the possibility for the two organizations to undertake consultations on in-country processing and share information with the aim, inter alia, of ensuring that the plight of persons in vulnerable circumstances is brought to the attention of the organization best placed to assist.

The return of persons not in need of international protection, to the country of origin, of persons who, following a fair and efficient procedure, have been determined not to be in need of international protection is important. It can contribute to discouraging irregular migratory movements of similar groups from both the country of origin and from transit countries. Returns are not only part of a viable migration policy but may also maintain the integrity of the institution of asylum. Clearly, return is a significant problem for some States, and is proving detrimental to their asylum processes. Some assistance from international organizations could improve the asylum situation overall. It may also result in a more positive management of refugee status determination procedures for rejected asylum-seekers as well as diminish specific problems in some countries arising from the overstay of rejected asylum-seekers who have no alternative status.

The UN Human Rights Commission recognized in its recent resolution on the human rights of migrants that there are a number of obstacles to the full and effective protection of migrants, including obstacles and difficulties for the return of migrants who are undocumented or in an irregular situation.³

UNHCR believes that the provisions in the UN Protocol against the Smuggling of Migrants by Land, Sea and Air may effectively help in reducing some of these obstacles. The obligation of each State Party under that Protocol to facilitate and accept, without undue or unreasonable delay, the return of a person who has been smuggled and who is its national or who has the right of permanent residence in its territory, is helpful in reaffirming the right of such persons, including rejected asylum-seekers, to return. UNHCR is ready to support States in their efforts to return rejected asylum seekers, provided that the involvement of the Office is fully consistent with its humanitarian mandate to protect refugees. There are also a number of ways in which UNHCR can complement the efforts of States in this area. These include:

• taking a clear, public position on the acceptability of return of the rejected group,

• disseminating information on developments in the country of origin conducive to return;

• facilitating dialogue between countries of asylum and origin;

• promoting awareness among national authorities in the host country willing to assist persons not in need of protection and facilitate return;

• providing information on locally available possibilities for post-return reintegration assistance;
  and

• promoting with States those principles which bear on their responsibility to accept back their citizens or long-term residents, as well as principles on the reduction of statelessness.

UNHCR's role is a supportive one, ideally as part of an inter-agency arrangement.⁴ In situations where there is another agency - such as IOM - already active or, in terms of its mandate, better suited and able to undertake the necessary activities, UNHCR would not become involved. UNHCR welcomes IOM'S preparedness to exercise leadership on this issue. The nexus between asylum and migration presents important challenges to the refugee protection regime, which can be addressed most effectively in a comprehensive and collaborative framework, involving States, international organizations, NGOs and others. For their part, UNHCR and IOM will continue to cooperate in seeking situation-specific responses, both at the policy and at the operational level. More generally, UNHCR and IOM propose to:

• establish an Action Group on Asylum and Migration to review, at regular intervals, policy and operational issues of particular interest to both organizations in the implementation of priority activities outlined in this paper, in particular at the field level;

• discuss within this Group operational safeguards to ensure that asylum-seekers are provided access to an appropriate authority for consideration of any refugee claims, to coordinate voluntary return programmes and ensure monitoring and follow-up of returnees, where appropriate, in line with the respective mandates of the two organizations;

• increase their cooperation in the area of information activities in regard to persons of concern to the respective organizations, with a view to enabling them to make better informed decisions about departure or repatriation and return options.

Consistent with its Constitutional mandate, IOM will examine the usefulness of establishing or strengthening appropriate regional or international mechanisms for addressing and managing migratory movements, including, in the framework of its programs, consideration of a possible international migration regime.

In conclusion, UNHCR will elaborate guidelines on the protection of intercepted asylum-seekers and refugees, which it is hoped will also prove of assistance to States as they seek to incorporate protection safeguards into their own interception programs. As appropriate and consistent with its mandate UNHCR will also participate in programs with States which are designed to ensure that protection is available to intercepted refugees. Notwithstanding these initiatives, both organizations remain very much aware of their limited ability to influence the complex forces which determine the dynamics of global migration movements, and of the importance of encouraging States and other stakeholders to discuss and design policy responses to address the nexus between asylum and migration. To that end, States might set in train a process to:
 

a) examine the possible cause-and-effect relationship between migration movements and refugee protection, including (a) the impact of refugee protection systems on migration patterns; (b) the impact of migration regimes on access to refugee protection; (c) the interrelationships between legal immigration, irregular movement, and asylum systems and (d) the causes of irregular movements, including poverty, social development and measures such as economic sanctions, with a view to develop adequate responses. Such an examination could be conducted in the context of exploring avenues for the development of comprehensive approaches;
 

b) strengthen the capacity of countries of first arrival to provide international protection, including measures such as (a) promoting accession to the 1951 Convention with capacity-building assistance to ensure States can implement it, (b) assisting in the development of effective asylum systems which ensure fair decision-making and a proper balance in responsibilities for processing asylum claims, and (c) alleviating the burden on first countries of asylum through the establishment of responsibility-sharing mechanisms;
 

c) develop safeguards for the protection of intercepted persons in need of international protection based on the elements contained in paragraph 36 above, recommendations and conclusions of the Regional Workshop in Ottawa⁵, and proposals contained in EC/50/SC/CRP. 17 presented to the eighteenth meeting of the Standing Committee. They also could serve as a useful complement to existing inter-state cooperation arrangements for managing interception in the context of irregular migration;
 

d) adopt appropriate protective measures for victims and witnesses of smuggling and trafficking operations, in addition to or distinct from those which may be applicable to refugees under national or international refugee law;
 

f) consider ways in which comprehensive information initiatives could increase the efficiency of States in managing migration.