Essentials of Migration Management for Policy Makers and Practitioners

1. Essentials of Migration Management for Policy Makers and Practitioners Section 3.5 Refugee Protection

2. Section 3.5 Refugee Protection Learning Objectives • increase your knowledge of the international framework for refugee protection • improve your understanding of the range of options and approaches to refugee protection • develop your ability to determine the best approach to refugee protection in your setting Essentials of Migration Management

3. Section 3.5 Refugee Protection Topic Titles Topic One: The Framework for Refugee Protection Topic Two: The Framework for a Refugee Determination System Topic Three: Developing Solutions for Refugees Essentials of Migration Management

4. Section 3.5 Refugee Protection Terms and Concepts Asylum The grant, by a State, of protection on its territory to persons from another State who are fleeing persecution or serious danger. Asylum encompasses a variety of elements, including non-refoulement, permission to remain on the territory of the asylum country, and humane standards of treatment. Asylum-seeker A person whose request or application for asylum has not been finally decided on by the country of refuge that he or she is in Cessation clauses Legal provisions that indicate when refugee status comes to an end. Cessation clauses are found in Article 1 C of the 1951 Convention relating to the Status of Refugees, and in Article 1 (4) of the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa. (Continued) Essentials of Migration Management

5. Section 3.5 Refugee Protection Terms and Concepts Convention refugees Persons recognized as refugees by States under the criteria in Article 1 A of the Convention relating to the Status of Refugees, and entitled to the enjoyment of a variety of rights under that Convention Durable solutions Any means by which the situation of refugees can be satisfactorily and permanently resolved to enable them to live normal lives. This can include voluntary repatriation, local integration, and resettlement. Exclusion clauses Legal provisions that deny the benefits of international protection to persons who would otherwise satisfy the criteria for refugee status. These clauses are found in Articles 1D, 1E, and 1F of the Convention relating to the Status of Refugees. (Continued) Essentials of Migration Management

6. Section 3.5 Refugee Protection Terms and Concepts Local integration A durable solution for refugees or asylum-seekers that involves their permanent settlement in a country in which they have been granted international protection Mandate refugees Persons who are recognized as refugees by UNHCR acting under the authority of its Statute and relevant UN General Assembly resolutions Non-refoulement A core principle of refugee law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened (Continued) Essentials of Migration Management

7. Section 3.5 Refugee Protection Terms and Concepts Persecution Any severe violation of human rights. In the refugee context, “persecution” refers to any act by which fundamental rights are severely violated for reasons of race, religion, nationality, political opinion, or membership of a particular social group. Refugee law The body of customary international law and various international, regional, and national instruments that establish standards for refugee protection Refugee status determination procedures: Legal and administrative procedures that are undertaken, by States and/or UNHCR, to determine whether an individual should be recognized as a refugee in accordance with national and international law. (Continued) Essentials of Migration Management

8. Section 3.5 Refugee Protection Terms and Concepts Resettlement The transfer of refugees from the country in which they have sought refuge to another State that has agreed to admit them. The refugees will usually be granted asylum or some other form of long-term resident rights and, in many cases, will have the opportunity to become naturalized citizens. Resettlement is a durable solution as well as a tool for the protection of refugees. Temporary protection An arrangement developed by States that can be offered to persons arriving en masse from situations of conflict or generalized violence. It offers protection of a temporary nature without prior individual status determination. Voluntary repatriation Return to the country of origin based on the refugees’ free and informed decision. Voluntary repatriation may be organized or spontaneous. Essentials of Migration Management

9. Refugee Protection Topic One The Framework for Refugee Protection

10. Topic OneThe Framework for Refugee Protection Important Points • Until a claim for refugee status is examined fairly, the principle of non-refoulement applies, and asylum-seekers are entitled not to be returned and to benefit from humane standards of treatment. 2. Individual refugee status determination procedures generally share the following elements: • registration and identification of asylum-seekers • legal advice and representation • opportunity to contact the UN High Commissioner for Refugees (UNHCR) • time to prepare the asylum request • personal interview with a qualified official • a decision by an appropriate authority • opportunity for appeal of the decision(Continued) Essentials of Migration Management

11. Topic OneThe Framework for Refugee Protection • States who are parties to the Refugee Convention undertake to apply a number of provisions: • to cooperate with UNHCR in the exercise of its functions and, in particular, to help UNHCR supervise the implementation of the provisions of the Convention and Protocol • to inform the UN Secretary-General about the laws and regulations they may adopt to ensure the application of the Convention • to meet their non-refoulement obligations with regard to refugees. • The Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted in 1969, expanded upon the definition of a refugee found in the 1951 Refugee Convention. • In 1984, a colloquium of Latin American government representatives and distinguished jurists adopted the Cartagena Declaration. (Continued) Essentials of Migration Management

12. Topic OneThe Framework for Refugee Protection 6.The only agreed to, but non-binding, statement of refugee protection principles with regional applicability for many countries in Asia is the Bangkok Principles, as adopted in 2001 by the Asian-African Legal Consultative Organization. 7. In 1967, the UN General Assembly adopted a Declaration on Territorial Asylum directed towards States. Essentials of Migration Management

13. Topic OneThe Framework for Refugee Protection The United Nations High Commissioner for Refugees - UNHCR • UNHCR has been given a mandate by the United Nations to provide international protection to refugees and to seek permanent solutions to their problems. • Over the years, the General Assembly has expanded UNHCR’s responsibility to include groups of people who are not covered by the Refugee Convention and Protocol, including: • returnees • stateless persons • internally displaced persons in some situations. • Mandated refugees are not identified in the Convention but were included in the Statute establishing UNHCR which preceded the Convention. Essentials of Migration Management

14. Refugee Protection Topic Two The Framework for a Refugee Determination System

15. Topic TwoThe Framework for a Refugee Determination System A well-designed model will determine: • the methods of entry into the refugee determination system • the circumstances in which asylum claims are accepted • how and by whom claims will be assessed • the pathways an application may take through the system. Essentials of Migration Management

16. Topic TwoThe Framework for a Refugee Determination System Important Points • Although the Convention relating to the Status of Refugees does not specify procedures for determining refugee status, the United Nations High Commissioner for Refugees (UNHCR) has recommended a number of elements based on international standards and practice: • registration and identification of asylum-seekers • legal advice and representation • opportunity to contact UNHCR • time to prepare the asylum request • personal interview with a qualified official • a decision rendered by a clearly designated authority • a process to reconsider cases where claims have been rejected (Continued) Essentials of Migration Management

17. Topic TwoThe Framework for a Refugee Determination System 2. The framework for status determination will involve the prevailing legal tradition in a State. 3. The nature of the refugee determination system will also be influenced by: • the existence of procedural safeguards under migration legislation • constitutional, domestic, or regional human rights provisions affecting rights of due process • the entitlement to remain in a country during the process of determination. (Continued) Essentials of Migration Management

18. Topic TwoThe Framework for a Refugee Determination System • A few of the most important considerations for a system that determines refugee status and related appeals include: • the resources that are allocated to it • the capacity of the administrative infrastructure to process fluctuating numbers of applicants • the ability to achieve and regulate a uniform approach so that there is equality of outcome in like cases • the legal criteria used to determine protected status and the approach taken to assess an individual’s eligibility for each type of protected status (Continued) Essentials of Migration Management

19. Topic TwoThe Framework for a Refugee Determination System • the levels of internal administrative or external administrative appeal and judicial review that are available for the final determination of the merits of a claim for refugee status • the nature and level of status (in terms of duration and benefits) to be granted to those who are being processed • whether national legislation and/or practice treats the removal of failed asylum-seekers and the deportation of non-asylum-related cases differently • whether lodging a review application or an appeal suspends the process of removal or deportation • whether to offer assistance that facilitates the reintegration of failed asylum-seekers into their country of origin. Essentials of Migration Management

20. Topic TwoThe Framework for a Refugee Determination System Granting of asylum • Incorporating international standards and practices into national legislation is particularly important in areas on which the Refugee Convention is silent, for example, procedures for determining refugee status. • Article 31 of the Refugee Convention also applies to asylum-seekers since some of them are in fact refugees who have not yet been recognized. • There is a general view that asylum-seekers should not normally be detained. (Continued) Essentials of Migration Management

21. Topic TwoThe Framework for a Refugee Determination System • Asylum-seekers may be detained for a number of reasons as long as these are clearly based on national legislation that conforms to international human rights law. Detention is permitted by way of exception in order to: • verify identity in cases in which identity may be undetermined or in dispute • determine the elements on which the claim for asylum is based • deal with cases where asylum-seekers have destroyed their travel or identity documents, or have used fraudulent documents • protect national security and public order. • Alternatives to detention that a State may wish to consider include: • imposition of monitoring requirements • provision of a guarantor, or surety • release from detention subject to the provisions of recognizance and surety • requiring the asylum-seeker to reside at a collective accommodation centre. Essentials of Migration Management

22. Refugee Protection Topic Three Developing Solutions for Refugees

23. Topic ThreeDeveloping Solutions for Refugees Temporary protection • Temporary protection is an immediate short-term response when large numbers of people arrive after fleeing armed conflict, massive violations of human rights, or other forms of persecution. • The aim of temporary protection is to ensure protection in the “frontline” countries of asylum or elsewhere, as well as to provide a coherent regional response. • Countries of asylum may end temporary protection when there is a fundamental change in the circumstances that prompted people to flee. • Countries of asylum should take care not to push for premature returns since that can destabilize the home country. • Countries of asylum must identify and protect persons who cannot return to their home countries. Essentials of Migration Management

24. Topic Three Developing Solutions for Refugees Emergency responses • UNHCR’s working definition of a refugee emergency is “any situation in which the life or well-being of the refugees will be threatened unless immediate and appropriate action is taken, and which demands an extraordinary response and exceptional measures”. • Refugee emergencies are times of crisis for the refugees and often for the country of asylum, which may be under tremendous pressure. • The aim of emergency response is to provide protection and ensure that the necessary assistance reaches people in time. (Continued) Essentials of Migration Management

25. Topic Three Developing Solutions for Refugees • The country of asylum is responsible for the safety, assistance, and law and order requirements for refugees on its territory. • When the circumstances under which large numbers of people flee indicate that members of the group could be considered individually as refugees, it makes sense for the country of asylum to use “prima facie” or group status determination. • Governments often rely on the international community to help share the financial burden of emergencies. • Agreements that divide responsibilities in emergencies help to avoid duplication of effort and close gaps in assistance. (Continued) Essentials of Migration Management

26. Topic Three Developing Solutions for Refugees • The Executive Committee of UNHCR has agreed to a set of internationally recognized basic standards of treatment applicable in refugee emergencies. These include: • ensuring that borders are kept open to allow access to safety • adopting the expanded refugee definition found in the OAU Convention and the Cartagena Declaration • providing temporary protection when needed • providing protection to victims of war who do not meet the Refugee Convention definition • calling for international support and responsibility sharing. Essentials of Migration Management

27. Topic Three Developing Solutions for Refugees Durable solutions • For the vast majority of the world’s refugees, the preferred solution is to return to their home country through voluntary repatriation. • Both voluntary repatriation and local integration are durable solutions for refugees. • A third durable solution, available to only a very small percentage of refugees, is resettlement to a second country of asylum. Essentials of Migration Management

28. Topic Three Developing Solutions for Refugees Voluntary Repatriation • Voluntary repatriation is the preferred solution of the majority of refugees and asylum countries. • UNHCR requires a certain level of physical, legal, and material safety before actively promoting voluntary repatriation. (Continued) Essentials of Migration Management

29. Topic Three Developing Solutions for Refugees • In the ideal scenario: • conflict has ceased and threats to physical security have been removed • refugees make a free decision to return based on full knowledge of conditions in their home country • the status of returning refugees is assured through a tri-partite agreement between UNHCR, the country of asylum, and the home country • gaps between the relief phase of the operation and longer-term development assistance have been bridged. (Continued) Essentials of Migration Management

30. Topic Three Developing Solutions for Refugees • In more realistic scenarios: • the protection offered, and the assistance available in a country of asylum, are insufficient • refugees must choose between the lesser of two evils, and often opt to return home in the hope that conditions might have improved during their absence. Essentials of Migration Management

31. Topic Three Developing Solutions for Refugees Local Integration • Local integration refers to assimilation into new national communities. • The Refugee Convention provides that States shall, as far as possible, facilitate the assimilation and naturalization of refugees. • In recent years, fewer countries have felt themselves to be in a position to offer local integration, although there are some notable exceptions, for example, Mexico’s naturalization of thousands of refugees from Guatemala. Essentials of Migration Management

32. Topic Three Developing Solutions for Refugees Resettlement • Refugees at risk in their country of first asylum, or for whom there is no other durable solution to their plight, have protection needs that can be best met through consideration for resettlement. • For many refugees, resettlement is, in fact, the best—or perhaps only—alternative. • Priority should be given to those refugees with acute legal and physical protection needs. • In order to be recommended for resettlement, refugees must meet UNHCR’s criteria and must also be accepted under the criteria of the resettlement country. Essentials of Migration Management

33. Topic Three Developing Solutions for Refugees • Certain countries regularly offer resettlement spaces: others do this on an ad hoc basis. Most resettlement countries prefer: • educated refugees with strong family and cultural links to the resettlement country • an intact family structure • a high likelihood of rapid integration. • Non-governmental organizations play a significant role in providing various resettlement services. • In countries of asylum, NGOs help counsel and assist refugees who may be eligible for resettlement. • In resettlement countries, NGOs are the primary providers of services to the arriving refugee. Essentials of Migration Management

34. Last Slide Section 3.5 Refugee Protection