Essentials of Migration Management
for Policy Makers
and Practitioners
Section 3.5
Refugee Protection
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Section 3.5 Refugee Protection
Learning Objectives
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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
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Essentials of Migration Management
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
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Essentials of Migration Management
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 nonrefoulement, 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)
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Essentials of Migration Management
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)
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Essentials of Migration Management
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)
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Essentials of Migration Management
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)
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Essentials of Migration Management
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.
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Essentials of Migration Management
Refugee Protection
Topic One
The Framework for Refugee Protection
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Topic One
The Framework for Refugee Protection
Important Points
1.
Until a claim for refugee status is examined fairly, the principle of nonrefoulement 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:
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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)
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Essentials of Migration Management
Topic One
The Framework for Refugee Protection
3.
States who are parties to the Refugee Convention undertake to apply a
number of provisions:
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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.
4.
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.
5.
In 1984, a colloquium of Latin American government representatives and
distinguished jurists adopted the Cartagena Declaration.
(Continued)
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Essentials of Migration Management
Topic One
The 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.
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Essentials of Migration Management
Topic One
The Framework for Refugee Protection
The United Nations High Commissioner for Refugees - UNHCR
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UNHCR has been given a mandate by the United Nations to provide
international protection to refugees and to seek permanent solutions to their
problems.
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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:
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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.
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Essentials of Migration Management
Refugee Protection
Topic Two
The Framework for a Refugee Determination
System
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Topic Two
The Framework for a Refugee Determination System
A well-designed model will determine:
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the methods of entry into the refugee determination system
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the circumstances in which asylum claims are accepted
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how and by whom claims will be assessed
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the pathways an application may take through the system.
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Essentials of Migration Management
Topic Two
The Framework for a Refugee Determination System
Important Points
1.
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:
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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)
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Essentials of Migration Management
Topic Two
The 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:
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the existence of procedural safeguards under migration
legislation
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constitutional, domestic, or regional human rights provisions
affecting rights of due process
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the entitlement to remain in a country during the process of
determination.
(Continued)
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Essentials of Migration Management
Topic Two
The Framework for a Refugee Determination System
4.
A few of the most important considerations for a system that determines
refugee status and related appeals include:
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the resources that are allocated to it
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the capacity of the administrative infrastructure to process
fluctuating numbers of applicants
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the ability to achieve and regulate a uniform approach so that
there is equality of outcome in like cases
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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)
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Essentials of Migration Management
Topic Two
The Framework for a Refugee Determination System
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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
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the nature and level of status (in terms of duration and benefits)
to be granted to those who are being processed
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whether national legislation and/or practice treats the removal of
failed asylum-seekers and the deportation of non-asylum-related
cases differently
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whether lodging a review application or an appeal suspends the
process of removal or deportation
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whether to offer assistance that facilitates the reintegration of
failed asylum-seekers into their country of origin.
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Essentials of Migration Management
Topic Two
The Framework for a Refugee Determination System
Granting of asylum
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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.
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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.
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There is a general view that asylum-seekers should not normally be detained.
(Continued)
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Essentials of Migration Management
Topic Two
The Framework for a Refugee Determination System
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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:
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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:
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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.
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Essentials of Migration Management
Refugee Protection
Topic Three
Developing Solutions for Refugees
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Topic Three
Developing Solutions for Refugees
Temporary protection
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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.
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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.
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Countries of asylum may end temporary protection when there is a
fundamental change in the circumstances that prompted people to flee.
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Countries of asylum should take care not to push for premature returns since
that can destabilize the home country.
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Countries of asylum must identify and protect persons who cannot return to
their home countries.
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Essentials of Migration Management
Topic Three
Developing Solutions for Refugees
Emergency responses
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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”.
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Refugee emergencies are times of crisis for the refugees and often
for the country of asylum, which may be under tremendous pressure.
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The aim of emergency response is to provide protection and ensure
that the necessary assistance reaches people in time.
(Continued)
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Essentials of Migration Management
Topic Three
Developing Solutions for Refugees
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The country of asylum is responsible for the safety, assistance, and law and
order requirements for refugees on its territory.
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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.
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Governments often rely on the international community to help share the
financial burden of emergencies.
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Agreements that divide responsibilities in emergencies help to avoid
duplication of effort and close gaps in assistance.
(Continued)
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Essentials of Migration Management
Topic Three
Developing Solutions for Refugees
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The Executive Committee of UNHCR has agreed to a set of internationally
recognized basic standards of treatment applicable in refugee emergencies.
These include:
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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.
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Essentials of Migration Management
Topic Three
Developing Solutions for Refugees
Durable solutions
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For the vast majority of the world’s refugees, the preferred solution is to
return to their home country through voluntary repatriation.
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Both voluntary repatriation and local integration are durable solutions for
refugees.
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A third durable solution, available to only a very small percentage of
refugees, is resettlement to a second country of asylum.
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Essentials of Migration Management
Topic Three
Developing Solutions for Refugees
Voluntary Repatriation
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Voluntary repatriation is the preferred solution of the majority of refugees and
asylum countries.
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UNHCR requires a certain level of physical, legal, and material safety before
actively promoting voluntary repatriation.
(Continued)
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Essentials of Migration Management
Topic Three
Developing Solutions for Refugees
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In the ideal scenario:
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conflict has ceased and threats to physical security have been
removed
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refugees make a free decision to return based on full knowledge of
conditions in their home country
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the status of returning refugees is assured through a tri-partite
agreement between UNHCR, the country of asylum, and the home
country
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gaps between the relief phase of the operation and longer-term
development assistance have been bridged.
(Continued)
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Essentials of Migration Management
Topic Three
Developing Solutions for Refugees
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In more realistic scenarios:
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the protection offered, and the assistance available in a country of
asylum, are insufficient
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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.
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Essentials of Migration Management
Topic Three
Developing Solutions for Refugees
Local Integration
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Local integration refers to assimilation into new national communities.
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The Refugee Convention provides that States shall, as far as possible,
facilitate the assimilation and naturalization of refugees.
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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.
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Essentials of Migration Management
Topic Three
Developing Solutions for Refugees
Resettlement
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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.
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For many refugees, resettlement is, in fact, the best—or perhaps only—
alternative.
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Priority should be given to those refugees with acute legal and physical
protection needs.
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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.
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Essentials of Migration Management
Topic Three
Developing Solutions for Refugees
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Certain countries regularly offer resettlement spaces: others do this on an ad
hoc basis. Most resettlement countries prefer:
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educated refugees with strong family and cultural links to the
resettlement country
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an intact family structure
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a high likelihood of rapid integration.
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Non-governmental organizations play a significant role in providing various
resettlement services.
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In countries of asylum, NGOs help counsel and assist refugees who
may be eligible for resettlement.
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In resettlement countries, NGOs are the primary providers of
services to the arriving refugee.
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Essentials of Migration Management
Last Slide
Section 3.5
Refugee Protection
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