Report of the Meeting of the Expert Group on Temporary Refuge in Situations of Large-Scale Influx, Geneva, 21-24 April 1981

EC/SCP/16

Introduction

1. At its 31st session in October 1980, the Executive Committee of the High Commissioner's Programme requested the High Commissioner to convene a group of experts to examine temporary refuge in all its aspects within the framework of problem raised by large-scale influx.

2. Pursuant to this request, a group of experts from countries s of the Executive Committee and representing different regions of the world was convened by the High Commissioner. The group mt in the Palais des Nations at Geneva from 21 to 24 April 1981 (the participants are listed in Annex 1).

3. The meeting had before it a background paper prepared by the Office of UNHCR, and a working paper submitted b the expert from Australia.¹

Opening Statement by the High Commissioner.

4. The first requirement for a refugee was to be admitted to a country of refuge. No one should be returned to a country where he feared persecution. However, the large-scale influx of asylum-seekers has caused serious problem and the Executive Committee has repeatedly drawn attention to the necessity of granting at least temporary refuge. On the other hand, resettlement of such populations elsewhere was not always successful, and the temporary nature of their stay in countries of first asylum had considerable disadvantages, both of a material and legal nature. When considering the various problems arising in mass-influx situations, it was necessary to ensure that the basic principles for the protection of refugees and asylum-seekers were maintained.

The Director of International Protection took the chair.

5. The following Agenda was unanimously approved:

(1) Brief introductory statements by experts on the practice of granting temporary refuge in situations involving large-scale influx.

(2) Temporary refuge in the context of asylum.

(3) Temporary refuge in relation to the principle of non-refoulement.

(4) Temporary refuge and the protection of asylum-seekers in the case of large-scale influx:

(a) arrangements for admission;

(b) treatment and legal status of persons to whom temporary refuge has been granted;

(c) measures for safeguarding their personal security.

(5) International solidarity and burden-sharing in relation to temporary refuge and durable solutions.

(6) Miscellaneous.

(7) Adoption of the report.

Brief Introductory Statements by Experts on the Practice of Granting Temporary Refuge in Situations involving Large-scale Influx (Point 1 of the Agenda)

6. Introducing the working paper submitted by him, the expert from Australia briefly outlined its main points. Mindful of the serious problems raised by the mass influx of refugees in certain areas of the world, the Executive Committee of the High commissioner's Programme had asked the High Commissioner to convene this meeting of experts to examine the various aspects of the concept of temporary refuge. In fact, temporary refuge, or as it had sometimes been called, temporary asylum, had been practiced by States on an extensive scale at different periods and in different countries. Temporary refuge or asylum was a concept and a category of protection found in a number of international instruments and comments and in the practice of States. It was necessary to study it in relation to its legal nature, function, the general principle of non-refoulement and the concept of asylum, the status of refugees, the provision of durable solutions and international solidarity in obtaining such solutions.

7. Present refugee situations clearly showed that in some cases receiving States are not in a position at the time of admission to offer permanent settlement. In the period between admission and the obtention of a durable solution, it was necessary to provide adequate basic minimum standards for the protection of refugees and also principles for the provision of satisfactory durable solutions.

8. In the debate that followed, some experts referred to the refugee situations that had occurred in Europe and Africa, many of them more than 20 years ago. States had granted asylum in their territories in cases of large-scale influx, without making use of any other concepts. It was felt that a specific notion of "temporary refuge" had so far not been found necessary, and could have undesirable results. It was also pointed out that the solution of problems arising in large-scale influx situations should be based on the effective implementation of international solidarity and cooperation and did not depend upon asylum being qualified in a certain manner. Moreover, when considering whether the adoption of a new concept was desirable, regard should also be had to its implications for the individual asylum seeker.

9. The view was also expressed that asylum was not necessarily linked to the granting of a durable solution, with the result that there was no need to develop a new concept to cover situations where such durable solutions might not be immediately available.

10. Some experts considered, that in certain regions, mass influx had changed the nature of the asylum or protection that could be granted, even though the principle of non-refoulement had, of course, to be maintained. The question was, however, whether a new concept was necessary, or whether the problems arising in large-scale influx situations could not be resolved by the application and amplification of existing concepts.

Temporary Refuge in the Context of Asylum (Point 2 of the Agenda)

11. Introducing the subject, the Chairman stressed that it was most important that refugees find asylum on a permanent basis and in the shortest possible time. In cases of large-scale influx, however, it was recognized that it might only be possible to grant asylum on a temporary basis. The question was whether this should be termed "temporary refuge" and whether any legal consequences could be drawn from such a notion.

12. During the discussion, it was noted that whatever the term used to denote the nature of the temporary stay of asylum-seekers in a situation of mass-influx, protection against refoulement, as well as protection of the physical integrity of asylum-seekers and their basic human rights, including .appropriate food and shelter, should always be safeguarded. A humanitarian approach remained necessary.

13. It was, however, also stated that although according to the classical doctrine, the granting of asylum was a prerogative of States, an individual right to asylum had already taken on specific form in a number of States. Moreover, it was now generally recognized that where life was in danger, States should give at least temporary asylum. one expert said that this was an important step towards the universal recognition of an individual right to asylum.

14. Another expert gave the example of the "Front-Line States" in Africa where, often for certain categories of refugees, no proper solution could be found and where subsequent placement in other African countries was resorted to. To refer to such a practice as "temporary refuge" or "temporary residence" would only be appropriate if there was some certainty that refugees would be able to proceed to another country.

15. A number of speakers considered that an essential difficulty lay in the absence of a precise definition of asylum. one speaker pointed out that such definitions had not so far differentiated between temporary and permanent asylum. Another speaker again questioned the justification of seeking a new concept of refuge which could only erode the present notion and practice of asylum, and the application of the principle of non-refoulement.

16. Other speakers again stressed the necessity of looking at the problem from a humanitarian and not a States point of view.

Temporary Refuge in Relation to the Principle of Non-refoulement (Point 3 of the Agenda) Temporary Refuge and the Protection of Asylum-seekers in the Case of Large-scale Influx (Point 4 of the Agenda)

17. Introducing item 3 and 4, the Chairman emphasized that protection against non-refoulement was an essential element in the institution of asylum irrespective of whether it was granted temporarily or on a durable basis. He hoped that the Groups discussions would recognize the over-riding importance of the principle of non-refoulement which indeed had been described as a peremptory norm of international law. The standards of treatment which should be accorded an asylum seeker who, once admitted, had been granted asylum on a temporary basis were, however, less well-defined and he suggested that the Group might consider this particular aspect of the question.

18. In the ensuing debate, there was general consensus on the importance of upholding the existing principle of non-refoulement. Several speakers emphasized that this principle should be scrupulously observed with respect to all persons seeking asylum, also under the circumstances of large-scale influx. Several experts emphasised the mandatory character of the principle of non-refoulement. Regarding the status of persons who had been admitted on a temporary basis, however, there was widespread doubt as to whether defining standards for their treatment warranted the establishment of a separate legal concept.

19. In support of the notion of temporary refuge, one expert mentioned that the 1951 Convention already made a distinction between those rights to be accorded to persons whose presence was "lawful" (Article 32) and those who had illegally entered a country of asylum (Article 31). Persons in the former category were entitled to a more comprehensive range of rights involving the exercise of a States sovereignty than those whose presence in a country of asylum was deemed to be illegal. Another expert believed that this distinction was not relevant in the present connection since a refugee whether legally or illegally in the territory was protected against refoulement. He also pointed out that in any event most refugees entered a territory "illegally" in the sense that they were admitted without proper papers until their situation had been regularized through a series of procedures. This view was supported by another expert who noted that in the context of a large-scale influx, it was virtually impossible for a refugee to enter a territory otherwise than by irregular means.

20. Most speakers agreed that whilst the 1951 Convention made a distinction between the standard of treatment to be accorded to refugees who were lawfully in a territory and those who had entered illegally, this did not of itself constitute an implicit recognition of a specific category of temporary refuge. One expert commented that, moreover, the rights enumerated in the Convention represented a minimum standard and were also complementary to a number of other rights set out in other international instruments which were applicable to all persons, irrespective of whether or not they were in the territory legally or illegally.

21. A number of experts nevertheless expressed the view that the standard of treatment which should be accorded a person in the intermediate stage between admission and the finding of a durable solution merited further clarification. The basic minimum standards identified in the working paper were, in the view of several experts, an excellent starting point. In this context, it was generally recognized that the country of asylum should be obliged to regularize the situation of an asylum-seeker if, after a certain period, a durable solution was not forthcoming. In this connection, one expert mentioned the practice of his country whereby, in the absence of a negative determination, a refugee was deemed entitled to residence after three months. In the case of a negative decision, he would not be returned to his own country but would be asked to proceed to another country.

22. Several experts, while emphasizing the need to apply the principle of non-refoulement, pointed to the difficulties in establishing the degree of protection which should be afforded in the case of a mass influx of asylum-seekers. one speaker believed that, while persons in such situations might not fall within the strict definition of the 1951 Convention, they were .nevertheless likely to come within the widened definition of the term "refugee" contained in the OAU Convention. The same expert believed that the application of the standards of treatment established in the 1951 Convention in situations involving large-scale influx, would in the longer term be facilitated by the principle of international solidarity and burden-sharing.

International Solidarity and Burden-sharing in Relation to Temporary Refuge and Durable Solutions (Point 5 of the Agenda)

23. Introducing the item, the Chairman stated that the main problem was to define the implications of international solidarity in concrete term so that countries of first asylum when faced with a large-scale influx could be assured of a response from the international community.

24. In the ensuing discussion, one expert expressed the view that there might be a need to define or qualify the term "mass-influx" since the effects of an influx on their resources and infrastructure would differ from one country to another. one expert believed that the principle of burden-sharing already operated in practice, even if there was sometimes delay in its application. In his view, therefore, consideration should be given to strengthening the existing emergency machinery so that the response from the international community could be prompt and effective. He stressed however that such arrangements should not be a precondition for absolute respect of the principle of non-refoulement, and that the function of such arrangements should be to assist the States concerned to help the persons in distress and that such arrangements should not lead to an unfounded displacement of persons.

25. Another expert stressed the importance of the further elaboration of the principle of international solidarity. The initiative to hold the present meeting was one aspect of increasing attention being paid by the international community to the large-scale displacements of people which had occurred. It would be useful to study the experiences of each region in this matter. There was a need to consider the protection aspects of problems raised by such population movements. He hoped for a strong and forthright statement on international solidarity which should be expressed in relation to the finding of durable solutions.

26. One expert felt that the central idea behind the working paper submitted by the Australian expert was that confidence on the part of States in the effective operation of burden-sharing would make them readier to receive large numbers of asylum-seekers. He underlined that mass influx was a factual situation which needed an appropriate solution. It was difficult for legal experts to solve such situations, the causes of which were often closely related to the specific political and social situations in a given region, by working out universally applicable rules. The problem really required a political and a financial solution. What could be done, however, was to improve the legal framework for the effective organization of the required assistance within the framework of international solidarity and to ensure the basic h humanitarian standards for the treatment of the people in distress. what was needed in particular was to further streamline the international aid mechanism, perhaps by some system of advance pledging of financial, material and technical aid on the part of States. moreover, if solutions could be envisaged that took clearly into account the need for new asylum-seekers to be resettled, preferably within the region or at least in a cultural environment appropriate for their well-being as had been done in Africa, the global commitment might be more readily forthcoming.

27. The view was expressed that international solidarity should involve all States, especially countries of origin, neighbouring countries, those granting temporary refuge, and also the States granting resettlement as well as financial and technical aid. A number of speakers underlined that countries of origin must cooperate by eradicating the causes for flight and preparing the conditions for return. States granting temporary asylum should also make an effort to admit as many refugees as possible on a permanent basis.

28. Although in the case of mass-influx, repatriation was often the most appropriate solution, this was impeded where refugees were allowed to turn into militant political factions and where assistance to refugees was granted out of political motives. In certain recent refugee situations, this had rendered their repatriation within the immediate future illusory. Some measure of agreement had to be reached at the local and regional levels before international solidarity could provide the further assistance necessary actually to bring about this solution. As for resettlement possibilities, these had not been needed as much in Africa, as in other areas. Every region should, however, consider applying durable and not only temporary solutions, because the international resettlement schemes were sometimes very selective indeed. one expert stressed that some refugee situations extended across regional boundaries, rendering the implementation of durable solutions problematic. For this reason, a global approach often remained necessary.

29. As there appeared to be general agreement as to the necessity of giving a mole concrete content to the operation of international solidarity, it was suggested that a scrutiny of a number of international instruments such as the UN Declaration on Territorial Asylum or the OAU Refugee Convention might provide a basis for further steps to. put such cooperation on a more formal basis, permitting the High Commissioner's Office or any other appropriate institution, to obtain more effectively the assistance needed to cope with situations of mass-influx.

30. In this respect one expert. also pointed to the Conclusions on the present subject adopted by the Group of Experts, established by the Manila Round Table on Current Problems in the International Protection of Refugees and Displaced Persons in Asia, at its January 1981 Session in San Rem (paras. 65 to 66 of the Report).

31. One participant pointed out that there were nevertheless certain limits to the remedies which legal texts could provide. While the Expert Group should certainly emphasize that the application of international solidarity was of paramount importance in mass-influx situations, the solution remained of a political nature. other speakers felt, however, that the technique of using an "emergency fund" should be further developed. The Chairman explained the mechanism of, and the limits to, the present UNHCR Emergency Fund, and indicated that it would be difficult to obtain improvements in this particular direction. The suggestion was then made that, in order to overcome the problem of financial ceilings, use could be made of an improved method of pledging.

32. It was again emphasized by a number of experts that it was very important to work towards an elimination, on the part of countries of origin, of the causes of displacement. Such a duty on States should be put on a par with the obligation to observe the principle of non-refoulement.

33. In conclusion, the Chairman remarked that the various suggestions made for reinforcing present international aid mechanisms had been useful. The political content should, however, be kept in mind, and also the limits of moral pressure and dissuasion on countries of origin to remove the causes for the outflow of populations. The admission of such asylum-seekers to temporary asylum should not be linked to the granting of international assistance and the relationship between the regional and universal remedies was important. It was, however, necessary to maintain a flexible approach.

34. During the discussion of the Draft Conclusions, a number of further considerations were specifically mentioned. When referring to the obligation of States to respect the principle of non-refoulement, one expert stated that this protection always remained subject to the obligations assumed by States under extradition treaties. In this connection, mention was made of the full discussion of the question at the fifth meeting of the Subcommittee of the Whole on International Protection.

35. Several experts drew attention to the problem which might arise if refugees engage in political activities in the country of reception. While agreeing that refugees should not, of course, engage in subversive activities, one expert mentioned that his country guaranteed to all persons freedom of conscience and of expression. It would indeed be very difficult to curb these rights when exercised in a legal manner.

36. When the discussion centred on the various types of international assistance that should be granted by the international community, especially in cases of mass-influx, several experts felt that such assistance should include technical aid, such as medical aid and personnel. One expert considered that such assistance should also include the provision of bursaries and other educational facilities.

CONCLUSIONS

At the close of its discussion, the Group reached the following conclusions:

I. GENERAL

37. The refugee problem has become particularly acute due to the increasing number of large-scale influx situations in different areas of the world. The asylum-seekers forming part of these large-scale influxes include persons who are refugees within the meaning of the 1951 United Nations Convention and the 1967 Protocol relating to the Status of Refugees or who, owing to external, aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of their country of origin or nationality are compelled to seek refuge outside that country.

38. Asylum-seekers forming part of such large-scale influx situations are often confronted with difficulties in finding durable solutions by way of voluntary repatriation, local settlement or resettlement in a third country.

Large-scale influxes frequently create serious problems for States, with the result that certain States, although committed to obtaining durable solutions, have only found it possible to admit asylum-seekers without undertaking at the time of admission to provide permanent settlement of such persons within their borders.

39. It is therefore imperative to ensure that asylum-seekers are fully protected in large scale influx situations, to reaffirm the basic minimum standards for their treatment pending arrangements for a durable solution, and to establish effective arrangements in the context of international solidarity and burden sharing for assisting countries which receive large numbers of asylum seekers.

II. PROTECTION OF ASYLUM-SEEKERS IN SITUATIONS OF LARGE-SCALE INFLUX

A. Admission and non-refoulement

40. (i) In situations of large-scale influx, asylum-seekers should be admitted to the State in which they first seek refuge and if that State is unable to accord them asylum on a durable basis, it should at least grant them asylum on a temporary basis. They should be admitted without any discrimination as to race, religion, nationality, political opinion or physical incapacity.

(ii) In all cases the fundamental principle of non-refoulement - including non-rejection at the frontier - must be scrupulously observed.

B. Treatment of asylum-seekers who have been temporarily admitted to a country pending arrangements for a durable solution

41. (i) Article 31 of the 1951 United Nations Convention relating to the Status of Refugees contains provisions regarding the treatment of refugees who have entered a country without authorization and whose situation in that country has not yet been regularised. The standards defined in this Article do not, however, cover all aspects of the treatment of asylum-seekers in large-scale influx situations;

(ii) It is therefore essential that asylum-seekers who have been temporarily admitted pending arrangements for a durable solution should be treated in accordance with the following minimum basic human standards: -

(a) they should not be penalized or exposed to any unfavourable treatment solely on the ground that their presence in the country is considered unlawful and they should not be subjected to restrictions on their movements other than those which are necessary in the interests of public health and order.

(b) they should enjoy the fundamental rights internationally recognized, in particular those set out in the Universal Declaration of Human Rights;

(c) they should be treated as persons whose tragic plight requires special understanding and sympathy; they should receive all necessary assistance and they should not be subject to cruel, inhumane or degrading treatment

(d) there should be no discrimination on the grounds of race, religion, political opinion, nationality or country of origin;

(e) they are persons before the law enjoying free access to courts of law and other competent administrative authorities;

(f) the location of asylum-seekers should be determined by their safety and well-being as well as by the security needs of the receiving State. Asylum-seekers should, as far as possible, be located at a reasonable distance from the frontier of their country of origin. They should not become involved in subversive activities against their country of origin or any other State;

(g) they should be provided with the basic necessities of life including food, shelter and basic sanitary and health facilities;

(h) family unity should be respected;

(i) all possible assistance should be given for the tracing of relatives;

(j) adequate provision should be made for the protection of minors and unaccompanied children;

(k) the sending and receiving of mail should be allowed;

(1) material assistance from friends or relatives should be permitted;

(m) appropriate arrangements should be made, where possible, for the registration of births, deaths, and marriages;

(n) they should be granted all the necessary facilities to enable them to obtain a satisfactory durable solution;

(o) they should be permitted to transfer assets which they had brought into the territory to the country where the durable solution is obtained; and

(p) all steps should be taken to facilitate voluntary repatriation.

III. COOPERATION WITH THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

42. Asylum-seekers shall be entitled to contact the Office of UNHCR. UNHCR shall be given access to asylum seekers. UNHCR shall also be given the possibility of exercising its function of international protection and shall be allowed to supervise the well-being of persons entering reception or other refugee centres.

IV. INTERNATIONAL SOLIDARITY, BURDEN-SHARING AND DUTIES OF STATES

43. (a) Within the framework of international solidarity and burden sharing, States shall take all necessary measures to assist, at their request, States which have admitted asylum-seekers in large-scale influx situations.

(b) Such action should be taken bilaterally or multilaterally, at the regional or at the universal levels and in co-operation with UNHCR, as appropriate. Primary consideration should be given to the possibility of finding appropriate solutions within the regional context.

(c) Action with a view to burden-sharing should be directed towards facilitating voluntary repatriation, promoting local settlement in the receiving country, providing resettlement possibilities in third countries, as appropriate.

(d) The measures to be taken within the context of such burden-sharing arrangements should be adapted to the particular situation. They should include, as necessary, emergency financial and technical assistance, assistance in kind and advance pledging of further financial or other assistance beyond the emergency phase until durable solutions are found, and where voluntary repatriation or local settlement cannot be envisaged, the provision for asylum-seekers of resettlement possibilities in a cultural environment appropriate for their well-being.

(e) Consideration should be given to the strengthening of existing mechanisms and, if appropriate, the setting up of new arrangements, if possible on a permanent basis, to ensure that the necessary funds and other material and technical assistance are immediately made available.

(f) In a spirit of international solidarity, Governments should also seek to ensure that the causes leading to large-scale influxes of asylum-seekers should as far as possible be removed and, where such influxes have occurred, that conditions favourable to voluntary repatriation are established.

Annex I

MEETING OF THE GROUP OF EXPERTS ON TEMPORARY REFUGE IN SITUATIONS OF LARGE-SCALE INFLUX (Geneva, 21 April 1981)

LIST OF PARTICIPANTS

Professor C. Dunshee de ABRANCHES, Professor of Public International Law, Rio de Janeiro State University, (Brazil)

Dr. A. AGUILAR, Member of the Inter-American, Commission of Human Rights, (Venezuela)

(Owing to a last-minute impediment, Dr. Aguilar was not able to attend the meeting.)

Mr. K. Bell Deputy Executive Director, Employment and Immigration Commission, (Canada)

Professor M. BENNOUNA, Professeur agregé à la Faculté des Sciences Juridiques, Economiques et Sociales de Rabat, (Morocco)

Dr. G.J.L. COLES, Deputy Legal Adviser, Ministry of Foreign Affairs, (Australia)

Professor H. GAMMELTOFT-HANSEN, President, Danish Refugee Council, (Denmark)

Mr. GU Shirong, Deputy Division Chief, Department of Treaties and Law, Ministry of Foreign Affairs, (China)

Mr. H. HOMMA, Senior Researcher of National Diet Library, Lecturer of Hosei University, Law Faculty, (Japan)

Professor G. KOJANEC, Professor of International Law, Legal Adviser, ministry of Foreign Affairs, (Italy)

Mr. D. MARTIN, Assistant Professor of Law, University of Virginia, Charlottsville, (United States)

Mrs. R.O. OLOMOJOBI, Principle State Counsel, Federal Ministry of Justice, (Nigeria)

Mr. Sayed Natale OLWAK Akolawin, Advocate and Commissioner for Oaths, (Sudan)

Dr. P PHIPATANAKUL, Dean of Faculty of Law, Thammasat University, (Thailand)

Mr. M.J. VAN EMDE BOAS, Head of Legal and Policy Department, Ministry of Justice, (Netherlands)

Mr. J.S. WARIOBA, Attorney General, Ministry of Justice, (Tanzania)

Dr. P. WEIS, (United Kingdom)

UNHCR - PROTECTION DIVISION

Mr. P.M. MOUSSALLI, Director of International Protection

Mr. I. JACKSON, Deputy Director

Mr. J. PATRNOGIC, Deputy Director

Mr. F.E. KRENZ, Chief, General Legal Section

Mr. M. FARTASH, Senior Legal Adviser

Miss B. GRAINGER, Legal Officer

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1 These papers are available upon request.