Note on Determination of Refugee Status under International Instruments

EC/SCP/5

Introduction

1. Refugee status is defined in various international instruments relating to refugees. The early international instruments adopted between the two world wars defined refugees by categories, according to their national or ethnic origin. The various instruments adopted after the Second World War contain general definitions of the term "refugee". For example, according to the Statute of UNHCR annexed to General Assembly Resolution 428 (V) of 14 December 1950, a refugee is essentially any person who is outside his home country owing to well-founded fear of persecution for reasons, of race, religion, nationality or political opinion. A similar definition is contained in Article l.A(2) of the Convention relating to the Status of Refugees of 28 July 1951 and Article I of the Protocol relating to the Status of Refugees of 31 January 1967.

2. Refugee status is also defined in regional instruments relating to refugees. Particular mention should be made of the OAU convention Governing the Specific Aspects of Refugee Problems in Africa of 10 September 1969.

3. Finally a definition of refugee status (or of analogous legal status, such as that of "asylee") is contained in the Constitution or in the ordinary legislation of a number of countries. Whereas a welcome trend has developed in recent years to include in such national legislation a definition close to the definition of the 1951 Convention or the 1967 Protocol, the national definitions of refugees are generally at variance, particularly if they were drafted in earlier periods, with those contained in international instruments adopted by the United Nations, or concluded under its auspices.

4. The authority called upon to apply or implement a legal instrument relating to refugees cannot de so unless the refugees are identified as such. Whilst the instrument may not provide expressly for determination of refugee status, such a determination is nevertheless an inherent requirement.¹

5. From an analysis of the international legal instruments relating to refugees, it is obvious that determination of refugee status can only be of a declaratory nature. Indeed, any person is a refugee within the framework of a given instrument if he meets the criteria of the refugee definition in that instrument, whether he is formally recognized as a refugee or not.

Legal basis and competence for the determination of refugee status

6. The legal basis for the determination of refugee status in the context of a given legal instrument is the definition of a refugee in that instrument. In applying the 1951 Convention, for example, determination of refugee status has to be made in conformity with the definition of a refugee contained in that Convention.

7. The competent authority for determining refugee status will depend on the instrument under which the process of determination is conducted. In States parties to the 1951 Convention and/or the 1967 Protocol, determination of refugee status rests primarily with the Contracting State concerned. In accordance with Article 35 of the 1951 Convention and the parallel Article II of the 1967 Protocol providing for co-operation of the Contracting States with the United Nations High Commissioner for Refugees, co-operation between the Contracting States and UNHCR is, also called for.

8. Competence to determine refugee status under the Statute of UNHCR obviously rests with the High Commissioner for Refugees. However, in view of the similarity of the refugee definitions contained in the Statute of UNHCR and subsequently in the 1951 Convention and the 1967 Protocol, there is normally no need for UNHCR to engage in determination of refugee status in States parties to the latter two instruments.

9. On the other hand, the Statute of UNHCR occupies a particular position within the framework of international instruments relating to refugees, inasmuch as it includes a definition of universal scope, which is not limited by a date-line or by geographic categories, and which is the only accepted United Nations definition of a refugee available in respect of persons in States not parties to the 1951 Convention or the 1967 Protocol. In respect of persons who find themselves in those States, it may therefore be necessary to determine refugee status under the Statute of UNHCR. Similarly, a determination of refugee status under the Statute of UNHCR, may be a technical requirement in those States that have maintained the geographical limitation (Article 1. B (1) (a) of the 1951 Convention or article 1.3 of the Protocol).²

10. The purpose of this Note is to consider procedures for determining refugee status under the basic international instruments, i.e. the 1951 Convention and the 1967 Protocol. It will not deal with determination of refugee status under regional instruments or national legislation unrelated to the Convention and Protocol.

Procedures for the determination of refugee status

11. The 1951 Convention and the 1967 Protocol give no indication of procedures to be adopted for the determination of refugee status. It is left to each Contracting State to establish the procedure that it considers the most appropriate, in conformity with its particular constitutional and administrative structure.

12. In the light of the experience of UNHCR formal procedures for the determination of refugee status are to be preferred to informal or ad hoc arrangements Within the existing administrative framework. Only such formal procedures can provide a full guarantee that the question of refugee status will be dealt with in a manner commensurate with the relevant international instruments and not result inter alia in refoulement, in the refugee being told to "move on elsewhere" due to his case having been dealt with under procedures intended for ordinary aliens entering the country, or in his being subjected to punishment or detention if he fails to leave the territory of the State concerned.

13. It should be mentioned that an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious psychological difficulties in submitting his case to the authorities of a foreign country, often in a language not his own. Hence the need for his application to be examined within the framework of specially established procedures by qualified personnel having the necessary knowledge and understanding of the subject matter and of the applicant's particular difficulties and needs.

14. Determination of refugee status is a fundamental concern of UNHCR since it is closely related to the question of asylum and, admission, and also because it can give rise to special problems bearing on the High Commissioner's protection functions. A description of existing formal procedures for the determination of refugee status is given in document A/AC.96/INF.152. As will be seen, these procedures vary widely from country to country. In some countries they are purely administrative in character; in others, provision is made for an appeal through judicial process. In a number of countries provision is made for the participation of UNHCR, but the degree and nature of this participation vary according to the particular procedure.

Basic requirements

15. In recent years the view has been expressed that a harmonization of procedures for the determination of refugee status would be desirable. Since procedures are necessarily related to the constitutional and administrative structure of the particular country, the establishment of identical procedures in the seventy States parties to the 1951 Convention and/or the 1967 Protocol would be difficult to envisage. Nevertheless, the very international scope of these instruments calls for certain common basic requirements, which should be met by the determination procedure in each Contracting State.

16. On the basis of a comparative study of the various procedures, the High Commissioner believes that these basic requirements could be the following:

(a) The competent official (e.g. immigration officer or border police. officer) to whom the applicant addresses himself at the border, or in the territory of a Contracting State, should have clear instructions for dealing with cases that might, come within the purview of the 1951 Convention or the 1967 Protocol. He should be required to refer such cases to a higher authority.

(b) The applicant should receive the necessary guidance as to the procedure to be followed.

(c) There should be a clearly identified authority specially entrusted withe responsibility for examining requests for refugee status and taking a decision in the first instance.

(d) The applicant should be given necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned. Applicants should also be given the opportunity, of which they should be duly informed, to contact a representative of UNHCR.

(e) If the applicant is recognized as a refugee, he should be informed accordingly and issued with documentation certifying his refugee status.

(f) If the applicant is not recognized, he should be given a reasonable time to appeal for a reconsideration of the decision, either to the same or to a different authority, whether administrative or judicial, according to the prevailing system.

(g) The applicant should be permitted to remain in the country until a final, legally binding decision has been reached. He should also be permitted to remain there which an appeal to a higher administrative authority or to the Courts is pending,, unless it is established that such an appeal is clearly abusive and unfounded.

The various basic requirements enumerated above are in line with widely accepted principles of equal before the law and are designed to ensure impartiality and objectivity in proceedings before the Courts.

17. As mentioned in paragraph 1 above, various procedures for the determination of refugee status provide for the participation of UNHCR, in different forms, usually either as a directed participant in first instance procedure or as a member of the appeals body, or as an observer at the first instance and/or at, the appeal stage. It is felt that, in view of UNHCR'S experience with problems related to the determination of refugee status, participation by UNHCR in the procedure can be of assistance both to the individual applicant and to the authorities of the states concerned.

18. It will be seen from The descriptions of procedures contained in. document A/AC.96/INF.152 that certain States have made arrangements for inter-ministerial participation. In some procedures, such participation As provided for at the first instance, e.g., where responsibility for the first decision is submitted to an inter-ministerial committee; in other procedures, such participation occurs at the appeal stage, e.g., where the appeals body is composed of representatives of various interested ministries.

19. The desire has also been expressed in recent years for a harmonization of the substantive criteria applied for the determination of refugee status. In this connection it may be noted that the basic criteria for determining refugee status are defined in the 1951 Convention and the 1967 Protocol and are therefore the same for all States parties to these instruments. It is evident that, due to the large number of States involved and the diversity in their internal systems; there may indeed be discrepancies in the interpretation of these basic criteria and in resulting practice. It is precisely in order to reduce such discrepancies that regular consultation with UNHCR, on the basis of Article 35 of the 1951 Convention and of Article II of the 1967 Protocol, could be useful. Such consultation is already effective where the determination procedure provides for UNHCR participation (see paragraph 16 above).

Extraterritorial effect of recognition of refugee status

20. The purpose of the 1951 Convention and the 1967 Protocol is to provide for a common approach to the problem of refugee status. This implies that refugee status recognized by one Contracting State should normally be accepted when the refugee moves to the territory of another Contracting State, either temporarily or for permanent resettlement.³ The Office is, however, aware of a number of cases in which a refugee, upon moving to another State party to the 1951 Convention, has found that the refugee status previously granted to him is no longer recognized and that he is simply treated as an ordinary alien.

21. In the light of these considerations, it would be desirable if States parties to the 1951 Convention or 10967 Protocol would make it their general practice to accept recognition of refugee status by other Contracting States.

Conclusions

22. The determination of refugee status is essentially a technical requirement for the implementation of the legal instruments relating to refugees. Of the 70 States that are parties to the 1951 Convention or 1967 Protocol, only a certain number have so far established a formal procedure in this respect.

23. While the 1951 Convention and the 1967 Protocol provide uniform international criteria for the determination of refugee status, the relevant procedures vary widely from country to country, largely on account of different legal and administrative structures. It would, nevertheless, be in keeping With the international scope of the Convention and Protocol if each national procedure were to meet a number of common basic requirements.

24. Consultation between each Contracting State and UNHCR with reference to Article 35 of the 1951 Convention and Article II of the 1967 Protocol, which is already largely practised, and participation of UNHCR in the procedure for determination of refugee status, which is also the case in a number of countries, could help in narrowing divergencies in the interpretation of the internationally established criteria involved.

25. The international scope of the 1951 Convention and the 1967 Protocol calls for the acceptance by a State party to these instruments of the recognition of refugee status by other. Contracting States.

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1 The OAU Convention provides that: For the purposes of this Convention, the Contracting State of Asylum shall determine whether an applicant is a refugee". (Article 1.6.)

2 On becoming a party to the 1951 Convention, Contracting State is required to make a declaration, as to whether it accepts the Convention on the understanding that "events occurring before 1 January 1951" is to be taken to mean events occurring in Europe or events occurring in Europe and elsewhere. The 1967 Protocol provides expressly that it shall be applied without any geographical limitation, save that existing limitations by States, already parties to the Convention shall, unless withdrawn, also apply under the Protocol.

3 An example of such acceptance is to be found in various special bilateral or multilateral agreements for the transfer of responsibilities for the issue to refugees of travel documents as provided for in the 1951 Convention. Under these agreements, responsibility for the issue of a Convention travel document passes to the other State - under the conditions specified - without any re-examination of the refugee status of the person concerned.