UNHCR’s comments on the
Proposal for a new Act on Reception of Asylum-Seekers  
(Esitys laiksi kansainvälistä suojelua hakevan vastaanotosta)  

1. Introduction

UNHCR provides these comments as the agency entrusted by the United Nations General Assembly with the responsibility for providing international protection to refugees and other persons within its mandate, and for assisting governments in seeking permanent solutions to the problem of refugees. As set forth in its Statute, UNHCR fulfils its international protection mandate by, inter alia, "[p]romoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto." UNHCR's supervisory responsibility under its Statute is reiterated in Article 35 of the 1951 Convention relating to the Status of Refugees (“the 1951 Convention”) according to which State parties undertake to “co-operate with the Office of the United Nations High Commissioner for Refugees […] in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of the Convention”. The same commitment is included in Article II of the 1967 Protocol relating to the Status of Refugees (“the 1967 Protocol”)." The Office appreciates the opportunity to present comments concerning the draft of the new Act on Reception of Asylum-Seekers (hereinafter; proposed Act). 

2. General Comments

UNHCR welcomes the adoption of the Act, which will confirm the current practice in a legal act and transpose many of the provisions of the EC Council Directive 2003/9/EC of 27 January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers in Member States (Reception Conditions Directive).

The Office understands that the major purpose of this Act is to differentiate integration provisions from reception standards and to adopt two separate legal acts. The main changes in the Act are the introduction of a new system of payment of allowances to asylum-seekers, specification of the standards for accommodation of unaccompanied children and requirements for the appointment of guardians for unaccompanied children. In addition, the proposed Act will specify the responsibilities of the different actors involved in the national reception system. 

Reception conditions are measures related to the treatment of asylum seekers from the time of submission of their application until a final decision has been taken with respect to their status. These measures refer to, inter alia, the freedom of movement, health care, education, financial aid, accommodation, registration and documentation, and attention to special needs. UNHCR believes that appropriate reception conditions for asylum seekers are essential to ensure a fair and effective examination of protection needs and has outlined recommendations with regard to the different reception measures in a number of documents.

With regard to the EU acquis on asylum, the Reception Conditions Directive and UNHCR’s comments thereto refer.  In its evaluation of 2007, the European Commission identified wide disparities in Member States’ practice, notably in the application of the Directive to persons falling under the Dublin II Regulation; the level and form of reception assistance provided, including health care; access to employment; free movement rights; identification of vulnerable persons and provision of care to meet their needs. This was also documented in the study of the Odysseus network. In December 2008, the European Commission proposed a recast of the Directive. UNHCR published its comments on this proposal in March 2009. 

It is, however, important to bear in mind that any reception policy should include appropriate measures to enhance harmonious relationships with the local communities, for instance, by creating awareness of the problems of refugees and designing specifically targeted public information campaigns. Public opinion favorable to refugees and with confidence and trust in the asylum system is a key to the effective operation of any reception arrangement. The promotion of both is an important responsibility to be pursued in tandem with the arrangements themselves. Such measures may also contribute to the preventing of acts of racism and xenophobia against asylum-seekers. UNHCR therefore encourages that links still are made between the two legal Acts.

3. General Provisions

Scope of the Act

UNHCR welcomes the fact that the scope ratione personae, of the proposed Act, also includes victims of trafficking and applicants for temporary protection, in addition to asylum-seekers. Moreover, UNHCR appreciates that, in line with Article 13 of the Reception Conditions Directive, the new Act will also apply to asylum-seekers who are subject to long administrative transfer procedures under the Dublin II Regulation. UNHCR is however concerned that the proposed Act fails to regulate access to reception services (in particular, medical aid) for asylum-seekers with a final negative decision, who co-operate with national authorities, but are unable to return due to practical impediments. UNHCR therefore recommends that the legal guarantees provided in Section 22 of the proposed Act be extended to this group, as well.

Section 4 provides that when applying this Act to children below the age of twelve, special consideration should be given to the best interest of the child and the development and health of the child. UNHCR would like to recall that Article 3 of the UN Convention on the Rights of the Child stipulates that “[i]n all actions concerning children, whether undertaken by public and private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child, shall be a primary consideration.” The definition of a child is contained in Article 1 and defined as “every human being below the age of 18.” In its General Comments and examination of State Parties’ reports, the Committee on the Rights of the Child has emphasized that the principle of the best interest is fundamental to the implementation of all articles of the Convention and can not be derogated from or limited. Finland is, therefore, strongly recommended to include all children in this provision and not only those under the age of twelve.

Moreover, Section 6 defines persons who may have special needs for the purposes of the Act. Apart from the enumerated categories, UNHCR would like to add gender as a criteria for special needs. In addition to the basic needs shared with all refugees, asylum-seeking women and girls have special needs that reflect their gender: they need, for example, protection against protection manipulation, sexual and physical abuse and exploitation, and protection against sexual discrimination in the delivery of goods and services. The special needs of asylum seeking women are recognized in a number of international instruments. Examples of when women may have special needs that need to addressed by trained with special qualifications or training or in special procedures are, e.g pregnant women, or female heads of household, and victims of gender-based violence or trauma.

Confidentiality 

UNHCR notes that proposed Section 54 of does not incorporate the relevant provisions on confidentiality as provided in Section 43 of the current Act on the Integration of Immigrants and Reception of Asylum-Seekers. Instead, there is a reference to the Act on the Openness of Government Activities (621/1999). The latter does however not encompass the specifics of the refugee status determination procedure, but only regulates access to official documents in the public domain in general. In UNHCR’s view, the scope of implementation of this Act is narrower than the existing provision in Article 43 of the Act on the Integration of Immigrants and Reception of Asylum-Seekers and would therefore recommend that the formulation of the existing Act is kept.

4. Reception Services

Right to Information 

UNHCR recognizes that asylum-seekers often encounter difficulties at the very early stage of the asylum process because they lack basic information about the procedure. As a result, asylum-seekers may be unable to state their claims formally or intelligibly, without adequate guidance on the practical arrangements for their reception, the national asylum system and other useful information. UNHCR is therefore pleased that proposed Section 14 stipulates an obligation for all relevant actors, including reception centers, to provide necessary information about reception conditions for asylum-seekers. Furthermore, UNHCR appreciates that this information is to be shared in writing in a language the applicant is reasonably expected to understand. 

Health Care Services 

UNHCR welcomes the provisions in Section 22 of the proposed Act, which provides that asylum-seekers and victims of trafficking have a right to “emergency health” care, including urgent dental care. In addition, these persons are entitled to specialized medical care, which includes the prevention, examination and treatment of diseases, medical emergency services and medical rehabilitation. Decisions related to what kind of diseases and health problems should fall under the criteria of “emergency care” and “necessary specialized medical care” are to be taken by the individual doctors.    

Due to the trauma associated with refugee flight, asylum-seekers may suffer from physical health problems, and/or emotional or mental disorders that require prompt professional treatment. UNHCR would recommend that minimum standards be incorporated in the Act regarding counseling on reproductive health matters,  availability of psychological care and counseling free of charge, training and sensitization for relevant authorities and medical personnel dealing with patients of different cultural backgrounds. 

As regards asylum-seeking children, Article 24 of the Convention on the Rights of the Child stipulates that the child has the right to enjoy the highest attainable standard of health and facilities for the treatment of illness and rehabilitation of health. Children should have the same access to health care as national children. 

Separated children have experienced separation from family members. In addition, they have may have experienced loss, trauma, disruption, and violence in varying degrees. The pervasive violence and stress of a country afflicted by war may create deep-rooted feelings of helplessness and undermine a child’s trust in others. The Convention on the Rights of the Child sets out the duty of states to provide rehabilitation services to children who have been victims of any form of abuse, neglect, exploitation, torture, cruel, inhuman and degrading treatment or armed conflicts. To facilitate such recovery and reintegration, culturally appropriate mental health care should be developed and qualified psychosocial counseling be provided.
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Persons with Special Needs

UNHCR would like to recommend the Government of Finland to incorporate into Act,  mechanisms for the identification, reporting, and follow-up on the needs of vulnerable individuals already at the stage of referral to the reception centers. Specialized medical personnel and institutions will be then able to offer physically and mentally disabled persons, survivors of sexual abuse and exploitation, and victims of trauma and torture, counseling and treatment as early as possible. A similar obligation for Member States to establish procedures identifying special needs of asylum-seekers is suggested in Article 21(2) of the Re-cast EU Directive on Reception Conditions.

Likewise, UNHCR notes that the proposed Act does not provide any guidance as regards the agencies or bodies, which will be tasked to assess the vulnerability of applicants for asylum. This could easily lead to gaps, miscommunication or confusion on areas of responsibilities. UNHCR would like to propose that the qualified bodies or officials are specified in the text.

5. Representation of Separated Children

Appointment of the Representative

UNHCR welcomes the decision to clarify the status, qualifications and role of the guardians of separated children in Chapter 4. Furthermore, the Office is pleased that the appointment of guardians for unaccompanied children will become mandatory as recommended by the Finnish Ombudsman for Minorities in its recent report. Section 26 of the current Act on the Integration of Immigrants and Reception of Asylum Seekers only provides that a guardian may be assigned to a separated asylum-seeking or refugee child.

Qualifications and Duties of the Representative

Sections 36-37 of the proposed Act stipulate some conditions for the appointment as a guardian of a separated child and the duties this entails.

In regard to the qualifications of a guardian, it is important to ensure that they have the necessary expertise in the field of child-care. Furthermore, the guardians should have an understanding of the special and cultural needs of separated children, have knowledge of the relevant provisions of the Finnish legislation on aliens, as well as, receive training on basic concepts like “best interest of the child”, confidentiality, tracing, the refugee definition etc. Special attention should also be paid to prevention of child trafficking, in particular, of separated female asylum-seekers. It is also recommended, that the guardians undergo police or other reference checks to ensure that they do not have a criminal record, or hold positions that may lead to a potential conflict of interest with the best interest of the child.

Regarding the duties of the guardian/representative, they are limited in Section 37 to legal representation and representation in property matters. However, international standards also recommend that a guardian should be consulted and informed on all other actions taken in relation to the child and ensure that the child the best interest of the child is taken into account at all times and that the child has suitable care, accommodation, education, language support and access to health care. If someone else than the legal representative mentioned in Section 35 will assume these functions, it should be clearly mentioned.

UNHCR Regional Office for the Baltic and Nordic countries
August  2010