Information Note on Implementation of the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees
1. In a Note on Implementation of the 1951 Convention and the 1967 Protocol (doc. EC/SCP/54), submitted to the Sub-Committee of the Whole on International Protection at the fortieth session of the Executive Committee of the High Commissioner's Programme in July 1989, the High Commissioner outlined certain difficulties being experienced by States parties in the implementation of the Convention and Protocol. The Note made a general survey of the types of problems identified as impeding full and effective implementation and promoted a more detailed examination, within the framework of the fortieth anniversary of the 1951 Convention. Upon the recommendation of the Sub-Committee, the Executive Committee, in its Conclusion No. 57 (XL), requested the High Commissioner to prepare a more detailed report on implementation for consideration at its forty-second session. States parties were called upon to provide the High Commissioner, when requested, with detailed information on implementation of the Convention and/or Protocol in their respective countries.
2. In compliance with the Executive Committee's request, the High Commissioner prepared and submitted a questionnaire to States parties on 9 May 1990. The questionnaire consisted of two parts: Part One requesting information of a general nature regarding the implementation of the Convention/Protocol, and Part Two seeking more detailed information in relation to selected articles. Part Two was subdivided into two sections covering, respectively, the general rights and obligations of refugees (Part A) and their socioeconomic, administrative and juridical rights and obligations (Part B). States were requested to complete both parts at different intervals, but the final date for submission of the entire questionnaire was 31 January 1991.
3. Twenty-three states have so far replied to the questionnaire. A follow-up note seeking their response was sent to those States parties which have not yet replied. Most of the replies came from countries in Europe and North America, followed by Latin America, Africa and Asia and Oceania. The information thus provided is valuable to the Office in carrying out its protection tasks. Where the replies contain incomplete information or indicate that there may be a measure of non-compliance with the provisions of the Convention/Protocol, further clarification may, in due course, be sought by the Office.
4. A report based on the replies received to date has been prepared and is annexed herewith, although to engage in an extensive analytical exercise, or to draw definitive conclusions, would be premature in the absence of a more extensive response. It is regretted that the number of replies to date has been relatively small, and it is hoped that other states will respond in due course in order to enlarge the information base about implementation of the Convention and so that a more comprehensive report may be prepared at a future date.
Implementation of the Convention and Protocol
5. The information submitted so far by States indicates that there is a welcome, high level of conformity with the basic provisions of the Convention and Protocol. It is also encouraging to note that, in some instances, refugees are accorded more favourable treatment than the minimum standards foreseen by the Convention, on the basis of constitutional provisions, national legislation or other international conventions to which the particular State is a party.
6. In the majority of States which have replied, the Convention and Protocol have the force of law or have been specifically incorporated into national legislation. Those countries which have not taken steps to this end have stated that pertinent legislation is construed and administrative practice adapted so as to take due account of obligations under these instruments. Nevertheless, in several such countries, refugee protection is still a matter for the exercise of ministerial discretion, and is not subject to the control of the courts.
7. Most of the states which have replied have established national procedures for refugee status determination. Some have created special inter-ministerial or interdepartmental committees to implement these procedures. In other states, however, competence for refugees, including determination of refugee status, remains with one or other government department. Where the procedures have been described in the replies, these are generally in line with the recommendations of the Executive Committee in Conclusion No. 8 (XXVIII). However, it is noted that a few countries have made no provision for appeals against rejection of a refugee claim or that the asylum-seeker is, in some cases, not allowed to remain in the country while an appeal is pending.
8. In other areas, it is not entirely clear whether some provisions of the Convention are being interpreted and fully applied in accordance with its letter or spirit, e.g., as regards the refugee definition, the conditions for cessation of refugee status, the prohibition of penalties for irregular entry or presence of refugees, and the issuance of Convention Travel Documents. On the other hand, with very few exceptions, there appears to be general conformity, of those states which have replied to the questionnaire, with provisions of the Convention in the area of socioeconomic, administrative and juridical rights and obligations.
9. In its Conclusion No. 57 (XL), the Executive Committee recognized the need for full and effective implementation by the Contracting States of the Convention and Protocol, which the High Commissioner is called upon to supervise pursuant to Paragraph 8(a) of the UNHCR Statute, Article 35 of the 1951 Convention and Article II of the Protocol. Unlike other human rights treaties and conventions, the 1951 Convention does not impose an obligation on states to submit periodic reports on implementation. Nevertheless, as mentioned by the High Commissioner in the Note on Implementation submitted to the fortieth session of the Executive Committee (doc. EC/SCP/54), information is already being sought and received on protection issues by UNHCR through its branch offices. This information assists the Office generally to monitor compliance with various provisions of the Convention/Protocol.
10. The High Commissioner would, at this point, welcome the views of the Sub-Committee regarding possible future action to regularize the system of reporting on implementation. States might wish to reflect, therefore, on the desirability of periodic assessment on a more structured basis. In particular, the possibility of introducing a system of regular reporting at two, three or five-year intervals could be considered. Any views and suggestions governments may have for action to be taken by the High Commissioner with regard to follow-up on problems encountered would also be welcome. In this connection, states might wish to reflect, inter alia, on what mechanisms would be the most appropriate to resolve differences of interpretation or disputed notions. One possibility in this regard would be to resort to an advisory opinion of the International Court of Justice, as is envisaged in Article 38 of the 1951 Convention. Finally, it would be of assistance to ... 'have the views of the Sub-Committee on the desirability or otherwise of giving States' reports a wider distribution outside UNHCR, for example, as formal United Nations documents.
11. The more structured exchange now initiated with States parties, through the medium of the questionnaire, promises to be most productive, assuming outstanding responses are forthcoming. On their receipt, a more detailed analysis, building on the work to date, will be undertaken which, it is hoped, will yield a broad understanding of the strengths of the Convention, as well as areas where further dialogue with States would be useful.
INTERIM REPORT ON IMPLEMENTATION OF THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES1
PART ONE: INFORMATION OF A GENERAL NATURE
Q. (a) Describe briefly the general legal framework (including constitutional provisions and arrangements; any federal/state divisions of responsibilities; status accorded to international treaties) within which, at the national level, refugees are protected and their rights guaranteed.
1. The twenty-three States which have replied to the questionnaire report that refugees are protected either by one or by a combination of international legal instruments, national laws and regulations, as well as by administrative practices. The international instruments referred to are treaties, conventions or agreements, the most important being the 1951 Convention and the 1967 Protocol. In some other countries, additional protection is provided by regional refugee instruments, such as the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa, and various Council of Europe agreements relating to or affecting refugees2.
2. Some states have cited constitutional provisions as part of the general legal framework of refugee protection, in particular, relating to respect for human rights, the equality of aliens with nationals in certain areas of civil law, or (in one state) an express prohibition on extradition of refugees. In certain countries, the status of refugees is specifically regulated by national law while, in yet others, the position of refugees is subject to legislative provisions concerning aliens generally, e.g., immigration, extradition, passport and nationality laws.
3. Three of the States replying are federally constituted. In two of these, responsibility for refugee matters is centred in the federal government. In the third, all legal aspects of refugee status, other than the status determination procedure, the right of refugees to remain in the territory, and the care of asylum-seekers, have been decentralized.
4. In 10 States, international treaties take precedence over national law and are also regarded as self-executing. The majority of States have, in addition, adopted decrees or enacted special legislation to give full effect to their ratification of the Convention. Moreover, in some States, an inter-ministerial or inter-departmental body with responsibility for refugees (and sometimes stateless persons) has been established by legislation for the purpose of administering the refugee status determination procedure.
5. In the other reporting states, international treaties are not self-executing. The majority, however, have not taken steps to incorporate the provisions of the Convention and/or Protocol into national legislation. In some cases, existing law or administrative procedures have been merely amended or adapted, often by making express reference to the existence of the country's obligations under these instruments (see below).
Q. (b) What is the status of the 1951 Convention and/or the 1967 Protocol under domestic law? Please specify, in particular, whether they can be invoked before and directly enforced by the courts, other tribunals or administrative authorities, or whether they must be enacted as internal laws or administrative regulations to be directly enforced. If such enactment is necessary, but has not yet been carried out, please indicate what measures you intend to take in this regard.
6. As previously mentioned, the Convention and/or Protocol are directly applicable or have been incorporated into national law in most States. As a consequence, these instruments may be invoked before and are directly enforceable by the courts. In one of these States, incorporation into national law has been accomplished through publication in the official gazette, and the provisions of these instruments are considered directly applicable, if this can be deduced from their wording. In the same State, matters relating to the legal status of refugees remain within the competence of the constituent units, to the extent to which they have not been made the subject of federal legislation.
7. In "dualist" States (i.e. states where international treaties are not self-executing), if no implementing legislation has been enacted, the effective protection of the rights of refugees may depend on the extent to which existing legislation relating to aliens has been amended or adapted to reflect the provisions of the Convention and Protocol. In one State, a provision has been added to the national immigration law to the effect that the law is not to be construed in a manner contrary to the Convention or Protocol. In another, while implementing legislation is necessary, there is also a presumption that domestic law is in conformity with international law, unless national law contains express provisions that are contrary to those contained in international treaties. In this State, therefore, in the absence of implementing legislation, the Convention and Protocol may be invoked before the courts as a relevant source of law with persuasive but not with binding effect. In a third State, the situation of refugees and asylum-seekers is duly taken into account in administrative practice and in the exercise of a general discretionary power applicable to aliens. In such cases, judicial review is limited to verifying the proper exercise of such discretion.
8. None of the "dualist" States replying has indicated an intention to enact legislation to give complete effect to all the provisions of the Convention or Protocol. Two have implied that such measures are not considered essential to protect the rights of refugees, as the State is already fulfilling its obligations in this regard under existing arrangements. One of these States, however, intends to introduce further amendments to its legislation "to provide a sound basis in domestic law for refugee status determination". Another intends to review its refugee legislation, in order to bring into line with the Convention several of its provisions which are presently considered inadequate.
Q. (c) What judicial, administrative or other competent authorities have jurisdiction over matters dealt with in the Convention and Protocol?
9. Most States which have replied have entrusted responsibility for refugees to government ministries with such portfolios as foreign affairs, justice, interior, national security, and in some cases, to the president of the republic or his office. In others, all matters relating to refugees (and in some cases stateless persons) have been delegated to an inter-ministerial or inter-departmental body specially created for the purpose. In these countries, the preliminary investigation of asylum applications is entrusted to the local immigration or police authorities, and the proceedings are administrative in nature, both at the first instance and at the appeals stage. Judicial competence exists at the appeals stage in a number of states and is dealt with below under questions (d) and (e).
Q. (d) What domestic remedies are available to an individual refugee whose rights, pursuant to provisions of the Convention/Protocol, have been violated?
10. It appears from the replies that where the Convention and Protocol have been incorporated into national legislation, the refugee is entitled to the normal administrative and judicial remedies available under the general law. Where this is not the case, the remedies available may be less far-reaching, particularly where decisions are taken on the basis of administrative discretion or if the Convention or Protocol can only be invoked as a persuasive and not as a binding source of law.
Q. (e) Does your national legislation or do administrative regulations provide for the possibility to review or to appeal against a negative decision which has been taken on an application for refugee status or asylum? Is the applicant allowed to stay in your country pending the review or pending a decision on the appeal?
11. An asylum-seeker whose claim to refugee status has been rejected has the possibility of lodging an appeal against this decision in most States which have replied to the question. Four have indicated that no such appeal is possible, although in one of these the asylum-seeker is given the opportunity to make a new application and the right to remain while it is being considered.
12. In those countries where an appeal exists, the latter assumes various forms. Where a special refugee body has been established, the first appeal may constitute a request for reconsideration of the decision, by the same body, or by a special refugee appeals or review commission. A second appeal to the courts may then lie. In other countries, the first appeal lies directly to the competent minister or ministry, whose decision is then subject to review by the courts. In one state, an independent advisory body has been created to make representations against rejection on behalf of asylum-seekers who are facing deportation. This body acts in close consultation with UNHCR. Other states have provided for a "recours gracieux" or for an approach to an "ombudsman" by the asylum-seeker after other means of recourse have been exhausted.
13. All but three countries allow rejected asylum-seekers to remain in the country while an appeal is pending. The others do not allow this, respectively, if the application is considered manifestly unfounded, if the application, for various reasons, is not considered appropriate for substantive examination or if the applicant has already been required to await the outcome of the procedure in another country, or if the asylum-seeker entered the country illegally.
Q. (f) To what extent are the terms of the Convention/Protocol in practice the basis of your policy towards, and treatment of, refugees? The answer should indicate whether the reporting state is a party to an international instrument or has national legislation which does, or may, contain provisions of wider application than those provided for under the Convention.
14. Most of the States which have replied to the question have accepted the Convention and the Protocol as the basis for their refugee and/or asylum policy and of their treatment of refugees. One State has, however, indicated that, in practice, the Convention and Protocol only apply where domestic law is inadequate.
15. The Convention and Protocol are supplemented, in many instances, by other universal, regional and international instruments to which the state is a party, as well as humanitarian law principles, national legislation and administrative practice. Two States are parties to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. One of these States has reported that its policy on extradition or expulsion of refugees would be applied in conformity with this Convention, as well as with the 1951 Convention. The refugee policy of two States is also guided by various humanitarian instruments such as the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. One of these has stated specifically that priority is given, for humanitarian reasons, to asylum-seekers claiming to be torture victims. Other States have cited their accession to regional instruments such as the 1969 Organization of African Unity (OAU) Convention. Several States have the power to grant asylum, for humanitarian reasons, on the basis of legislation or administrative discretion, or on the basis of criteria going beyond the refugee definition given in Article 1 of the 1951 Convention.
Q. (g) What do you assess to be the main strengths and weaknesses of the Convention/Protocol in responding to the refugee problems confronting your state directly and those confronting the international community more generally? Please indicate any difficulties you have experienced in fulfilling the obligations under the Convention/Protocol.
16. In general, the Convention and Protocol are considered to provide a sound framework and to have attracted an impressive international consensus for refugee protection. Opinions are divided, however, as to their continued relevance to current refugee problems. One State feels that the Convention and Protocol have responded well to the new refugee situations that have arisen over the past 40 years. Some believe, however, that they may have been superseded by such changes. The Convention is seen by these States as having been formulated for the singular post-Second World War period which has since been eclipsed by newer and more complex refugee phenomena. As a result, a new global concept and a redefinition of the Convention's role may be required.
17. The refugee definition in Article 1 of the Convention has also given rise to some comment. One State thinks this definition is sufficiently wide, given the possibility for the High Commissioner to assist persons who may fall outside the central mandate of UNHCR. Other States consider that it may not reflect the enormous change in the scale and character of refugee movements, especially during the last decade. This latter point was emphasized by two States which feel that the asylum procedures established under the refugee instruments are being exploited - to the detriment of many worthwhile cases in order to circumvent the increasingly stringent immigration controls instituted since 1951 by most States. As a result, States find themselves caught between their domestic immigration-control policies and their obligations toward international refugee protection. On the other hand, one State feels that the Convention does not go far enough in emphasizing the notion of interdependence, collaboration and solidarity, rather than the now-outmoded concept of limitless national sovereignty, as do more recent instruments such as the OAU Convention and the 1984 Cartagena Declaration. Another State has complained of the lack of solidarity of States parties to the Convention, some of which, in its opinion, appear to violate their obligations with impunity.
18. Other States have cited procedural difficulties in fulfilling their obligations under the Convention/Protocol. Some have complained of the complexity of the facts to be established and the time-consuming requirements of the refugee status determination procedure, the massive resources being expended in some countries to deal with only a small percentage of the global number of asylum-seekers (only a few of whom are ultimately determined to be refugees) and the legal problems encountered in correctly assessing refugee claims by persons fleeing wars or other disasters. Another State has raised the question of the applicability of the non-refoulement principle in Article 33 to non-recognized refugees. Other problems cited include lack of economic resources which make collaboration with UNHCR problematic, continuing large influxes into countries with already serious demographic problems, and irregular movements and transit by refugees through several countries.
PART TWO: INFORMATION IN RELATION TO SELECTED ARTICLES OF THE CONVENTION
A) General rights and obligations
Q. 1 When is the term "refugee" used and on the basis of what criteria, and after what (if any) decision-making process? Are persons recognized as refugees on grounds other than those enumerated in Article 1?
19. All but two of the States which have replied to this part of the question apply the refugee criteria contained in Article 1 of the Convention. One of these States also applies the refugee definition contained in the OAU Convention. Two States have refugee definitions which do not strictly follow the text of the definition in Article 1 of the 1951 Convention, and it is not clear whether or to what extent the Convention definition is being followed in practice.
20. Only five States have given detailed information on the procedure followed for determining refugee status. These procedures are administrative in character both at the first and at the second-instance levels. In certain countries, provision also exists for judicial review in appropriate cases. The actual form of the procedure varies according to the State concerned, both as regards the authority competent to take the first-instance decision - i.e. a central or decentralized governmental authority - arrangements for administrative appeal or review and UNHCR's participation in the procedures.
21. The replies indicate that refugee status is normally determined on the basis of the 1951 Convention refugee criteria. In one State it is also based on the refugee criteria contained in the OAU Convention. Several States draw attention to the possibility of granting asylum on humanitarian grounds.
Q. 2 On what basis may an individual lose refugee status? On what basis may an individual who fulfils the criteria for refugee status nevertheless be denied or excluded from such status?
22. The majority of States which have replied indicate that refugee status terminates for the reasons indicated in Article 1 (C) of the Convention. One State has, however, advised that refugee status may also be lost if the refugee engages in various prohibited activities in the country of asylum.
23. The replies of two States do not deal expressly with cessation of refugee status under the Convention but only refer to the relevant national legislation regarding the expulsion of refugees.
24. The majority of replies deal with exclusion only under Article 1 (F), while others refer to Articles 1 (D) and (E) of the Convention. As regards all these provisions, the replies indicate conformity with the Convention.
Q. 3 Where an individual is understood to possess rights or obligations, or enjoy some protection, in another country which is not the country of origin, to what extent is this fact the reason for rejection of the asylum application or refusal of refugee status to the individual concerned? Is the fact that an individual has transited through another country a ground for preventing him/her from being considered for refugee status?
25. The majority of replies indicate that an application for refugee status or asylum will be refused - or not examined in substance - if the applicant is considered to have protection in another State. In some cases, the replies go further and specify either that the protection must be "effective", or that such protection presupposes residence for a certain period in another country, or that it must include protection against refoulement. In one case, an applicant is considered to have protection in another country - irrespective of the length of time spent there - if this is considered a "safe country", if asylum could have been requested there, and if the principle of non-refoulement is respected. In one case, however, exceptions can be made if the applicant has "substantial links" with the reporting country.
26. The replies generally indicate that mere transit through another country is not, in itself, sufficient to exclude an application for refugee status or asylum. Such an application may, however, be excluded if the asylum-seeker has spent more than a given period in another country or countries where he or she has no reason to fear persecution or refoulement and where protection could have been sought and obtained.
Q. 4 Is there any legal or practical distinction between granting of asylum and recognition of refugee status in your country? Is it possible for an individual to be granted one status and refused the other?
27. Recognition of refugee status and the granting of asylum are generally considered as being legally distinct. In practice, however, asylum is granted when a person is determined to be a refugee. In addition, in certain countries, asylum may be granted on humanitarian grounds and is not limited to refugees as defined by the 1951 Convention. As regards the meaning of asylum, this is generally taken to imply permission to remain in the country on a temporary or permanent basis. In the majority of States which have replied, asylum in the sense of permanent or indefinite residence in the country is granted when a person is determined to be a refugee. In one State, however, a refugee may be granted a right of temporary or permanent residence depending on the circumstances of recognition.
Q. 5 Are refugees required by legislation or administrative regulations to fulfil particular duties or obligations? If so, please specify.
28. The States which have replied to this question confirm that refugees are subject to the general obligations as specified in Article 2. In two States, however, refugees are specifically prohibited from engaging in internal politics or from intervening in domestic matters, and in one of these States they are required to abstain from activities which are directed against the government of the country or which may disturb its relations with other States. In another, refugees are required to refrain from joining or participating in associations which, by the use of any kind of violence, seek to change or modify the organization or composition of a foreign State or government. In yet another State, refugees are required to abstain from subversive activities as defined in Article III of the OAU Convention. In the reply of this State, mention is also made of the unpublished agreement between member States of the "Communauté economique des pays des grands lacs" which prohibits subversive activities in or against member States. No legal or administrative regulations imposing special duties exist in the other reporting States.
Q. 6 In so far as you are able to provide a breakdown, please advise the composition of the refugee population in your country, including the different racial, ethnic and religious groups.
29. Fourteen States have replied giving useful information regarding the composition of the refugee population in the country concerned. A number of States have indicated that they do not maintain statistics according to these categories.
Q. 7 Are all refugees entitled by law or in practice to enjoy the rights and protections of the Convention on an equal basis? Do different groups have different entitlements?
30. The replies to this question confirm that refugees in the respective countries are able to benefit from the provisions of the Convention without discrimination.
Q. 8 Are there any legal or other differences between different religious groups as regards their right or freedom to practise their religion and the religious education of their children? Are there any legal or other restrictions on the practice of religion, or on religious education, which apply to refugees but not, at the same time, to nationals of your country?
31. There appear to be no legal or other differences between different religious groups as regards freedom to practise religion or religious education of children. In several cases, however, it is pointed out that religious freedom is restricted by the prohibition of practices considered to be contrary to public order or to the moral code of the country concerned. One reply says that while there is no restriction on their establishment, religious schools must comply with state regulations which aim at ensuring that a balanced and appropriate curriculum, qualified staff, etc. are provided. Another State prohibits religious activities that could impair the health of its citizens or interfere with the education system.
32. The replies further indicate that there are no legislative or other restrictions on the practice of religion or religious education which apply to refugees but not at the same time to nationals of the country concerned.
Q. 9 Does your national legislation or do administrative regulations provide for exceptional measures to be taken against nationals of a foreign state? If so, under what circumstances, and are there any exemptions for refugees formally nationals of the State in question?
33. The majority of States replying do not have any legislative provision permitting exceptional measures to be taken against aliens. Two States have the possibility of introducing such exceptional measures, and no exceptions are made in the case of refugees.
Q. 10 What is the position of refugees during a state of emergency, and how does it compare with that of nationals and aliens in general?
34. In a number of replies it is reported that, during a emergency, aliens (including refugees) would receive the same treatment as nationals. In another reply it is stated that, in time of war, various restrictions may be imposed on the freedom of movement of aliens without any exception being made for refugees. Another State, which has no legislative provision for emergency situations, has indicated that if such legislation were to be enacted, regard would be had to its obligations under Articles 8 and 9 of the Convention.
Q. 11 Are refugees required to live in defined camps, settlements or parts of the country and, if so, to what extent may refugees move outside these camps, settlements or areas? What is the legal basis for these restrictions and do the same restrictions apply to aliens generally?
35. The majority of the replies advise that refugees enjoy freedom of movement and the possibility of choosing their place of residence. They may, however, be subjected to restrictions on their freedom of movement which are applicable to aliens generally. Thus, in one State, they may be required to live in certain districts, and in others their freedom may be restricted for security reasons. In two countries (which have introduced a reservation to Article 26 of the Convention), refugees may be required to live in a reception area after their status has been determined. One State has provisions relating to mass influx whereby refugees may be installed in camps while awaiting a durable solution. In another, refugees are given the possibility of residing in a reception centre in order to facilitate their ultimate integration. As pointed out in some of the replies, the right of refugees to choose their place of residence may, in practice, be limited by the availability of housing and job opportunities. Certain countries have reported that refugees whose residence status is considered irregular may be subjected to restrictions on their freedom of movement. In one of these countries, asylum-seekers whose immigration status is considered irregular, (e.g., overstayers or those who seek to enter undocumented) may be placed in detention while their application is being considered. If, upon request, they are released from detention, they may nevertheless be subjected to restrictions on their freedom of movement.
36. In most States, the above-mentioned restrictions apply to all aliens, including refugees, on the basis of general legislation. Some States, however, have included them in their refugee legislation.
ARTICLES 27 AND 28:
Q. 12 Are identity documents and travel documents issued to refugees? Please specify their type and the criteria for their issue and any circumstances under which issue can be refused. Please also indicate the normal period of validity of both types of documents and describe the procedures for renewal and extension of validity.
37. The majority of States which have replied issue identity papers to refugees. These have different forms: for example, documents specifically intended to certify the holder's identity (and in some cases, his/her refugee status) or, alternatively, documents such as residence permits, certificates of registration with the police authorities or "sauf conduits". In certain countries, refugees, upon recognition as such, are automatically issued a Convention Travel Document which also serves as an identity document for internal purposes. Three states do not, apparently, issue identity documents to refugees other than travel documents, if these are required for travel purposes.
38. As regards the criteria for the issue of identity documents, the majority of replies indicate that determination of refugee status is a necessary precondition. One State has specified that identity documents are provided to refugees residing in the country to enable them to work or to engage in commerce or a profession.
39. As regards Convention Travel Documents, these are issued in accordance with Article 28 of the Convention upon application by refugees lawfully staying in the country. In one State, however, Convention Travel Documents are issued only for the purpose of study abroad. In two replies, it is specified that Convention Travel Documents may be refused for compelling reasons of national security.
40. In accordance with Paragraph 5 of the Schedule to the Convention, all travel documents are valid for at least one year and generally for two years, and are normally renewable. In one State they are valid for 4 years in the first instance and renewable for five years thereafter for up to 10 years at a time. The period of validity of identity papers is for the duration of refugee status but in some countries they need to be periodically renewed. No special procedures for renewal of identity papers or travel documents have been reported.
Q. 13 Are your diplomatic and consular authorities abroad competent to issue, renew or extend the validity of travel documents?
41. From the replies received, it appears that the foreign embassies and consulates of most States are not generally authorized to issue Convention Travel Documents. They may nevertheless, extend or renew them, for periods varying from six months to one year. In some cases, prior authorization from the home authorities is required. One State also empowers its diplomatic and consular services to withdraw Convention Travel Documents. Two States have made no provision for renewal abroad of Convention Travel Documents; in one case however, a Certificate of Identity, which also serves as a travel document, may be renewed at an overseas post for up to 5 years beyond the original date of issue.
Q. 14 Are travel documents issued to refugees in your territory who are lawfully resident elsewhere but cannot obtain documents from the country of lawful residence?
42. The majority of States replying have indicated that Convention Travel Documents are not issued by them to refugees lawfully resident in another country. One State has explained that this possibility is not foreseen in the relevant legislation. Several States have said that, in order to be of assistance, they would issue a Convention Travel Document or a "sauf conduit" to a refugee who is unable to obtain a travel document from his/her country of lawful residence. One State which has replied in the negative has, however, referred to its obligations under the 1980 Council of Europe Agreement on the Transfer of Responsibility for Refugees.
Q. 15 Are travel documents issued to refugees by other contracting States in accordance with the provisions of the Convention recognized in your country?
43. All States which have replied to this question recognize without reservation the validity of travel documents issued by other States parties to the Convention/Protocol.
Q. 16 Are there any restrictions on travel into, out of, or back to, your country by individuals holding travel documents issued in accordance with the Convention?
44. The majority of States replying permit refugees to return during the period of validity of their Convention Travel Documents, but one State has indicated that refugees are required to have a re-entry visa. There are no restrictions on departure. Certain States deal specifically with the question of visa requirements for refugees holding Convention Travel Documents issued by another State and require such refugees to have a valid entry visa. One State maintains this requirement only for refugees coming from a country whose nationals also need a visa. It appears from the replies that visas are normally necessary for travel by holders of Convention Travel Documents. One State, however, permits an exception for entry into its territory if the Convention Travel Document is issued by a State whose nationals are exempted from the requirement of an entry visa. This and other States also permit visa-free entry if the Convention Travel Document is issued by another State party to the 1959 European Agreement for the Abolition of Visas for Refugees. Others do not require visas for refugees whose travel document has been issued by a Contracting State which is also a Party to the 1959 European Agreement on the Abolition of Visas for Refugees.
45. Two States have specified that refugees are not permitted to travel to their country of origin or to a country in regard to which fear of persecution has been claimed, either with a Convention Travel Document or with a Certificate of Identity. One of these States has indicated that refugee status may be re-examined in consequence of such travel.
Q. 17 What laws, regulations or administrative practices apply in relation to refugees who enter or are present in country without authorization? Please indicate whether they may be detained and if so how long, whether any penalties are imposed and whether there are any other restrictions.
46. The majority of States which have replied indicated that, according to their legislation or administrative practice, penalties are not imposed on refugees for illegal entry, if, as provided in Article 31, they declare themselves promptly to the authorities. One State has, however, reported that all foreigners entering the country in an irregular manner are subject to penalties, without any exception being made for refugees.
47. The majority of replies state that foreigners entering the country in an irregular manner may, if necessary, be placed in detention. They do not clearly indicate whether, or to what extent, such detention measures are, in practice, applied to refugees. Some of these replies, however, state in general terms that the provisions of Article 31 of the 1951 Convention are observed. Another State may detain refugee claimants, as an exceptional measure, in the interests of national security or public order, pending determination of their status. Five replies indicate that refugees entering or remaining in the country in an irregular manner are not placed in detention.
Q. 18 What, if any, sanctions are imposed on transport carriers for bringing in aliens without required documents and is any distinction made in this regard between asylum-seekers, persons subsequently declared to be refugees, and aliens in general?
48. Three States which have replied to the question impose sanctions on transport carriers. One State obliges an airline to remove an unsuccessful refugee applicant to the point at which his/her use of the aircraft began - or to any other place for which he or she holds the right of entry - in accordance with the International Civil Aviation Convention. Two others impose a fine, in addition to the obligation of removal, on any vessel, including an aircraft, which has brought an unsuccessful refugee applicant into the country without the required documentation. A reasonable belief on the part of the carrier that the person would have been exempted from the requirement of such documentation is stated to be a possible defence in one of these countries, but the mere fact that the person brought in is subsequently determined to be a refugee is not, in itself, sufficient to absolve the carrier from responsibility. Four States subject carriers to criminal prosecution, but in one case criminal prosecution is only resorted to if the carrier has brought in a minimum number, which may soon be reduced from five to one, of undocumented passengers. In another of these States, the carrier is absolved from criminal responsibility if the person brought in is determined to be a refugee or asylee.
Q. 19 Is it possible to expel or extradite a refugee from your territory and if so on what grounds and in accordance with what legislation or administrative regulations? Please describe the procedures used in these cases, including possibilities for appeal and legal representation. Please also indicate whether refugees who are faced with expulsion orders are provided with the opportunity to seek admission elsewhere.
49. Most States which have replied provide, in their legislation, for deportation of non-citizens for reasons of national security or public order. The majority have indicated that such legislation is also applicable to refugees. Others have simply indicated in general terms that the provisions of Article 32 are being complied with in regard to the expulsion of refugees.
50. In one State, the Director of Refugees has the competence to order deportation of refugees at his discretion. In addition, a court may make a deportation order against a refugee who is convicted of an offence under the relevant refugee-control legislation. In both instances, however, the refugee will not be deported to his/her country of origin if he or she would face trial for a political offence.
51. In one African State, a refugee may be expelled on the basis of Article 32 of the 1951 Convention and also of Article III of the OAU Convention, and in certain cases under a regional security agreement to which the responding State is a party.
52. Nearly all expulsion procedures, where mentioned, are administrative rather than judicial and due process is normally respected. Decisions are usually taken by government ministers under powers granted by legislation. A number of replies specifically state that the possibility of appeal or review and legal representation is provided. Other replies do not deal with this part of the question. In one State there is no appeal against a deportation order if the latter is considered to be conducive to the public good. The refugee is, however, permitted to be heard and to make representations before the deportation measure is taken. Moreover he or she has a right of appeal against the chosen country of destination, once the deportation order has been made.
53. Some countries specifically state that in the case of an expulsion order, a refugee would be given an opportunity to seek admission to another country. One State has indicated that it would permit the refugee to remain for as long as necessary for this purpose. Both this and another State have said that they would inform UNHCR of the expulsion order and request its assistance in finding another country to which the refugee can proceed.
54. Most States which have replied permit the extradition of refugees in accordance with relevant legislation and/or international arrangements if the refugee is alleged to have committed an extraditable offence in another country. A number of States, however, exclude the extradition of a refugee if, in the requesting State, he or she would be exposed to persecution on the grounds mentioned in Article 1 of the Convention, if he or she would not be given a fair trial (Article 6 of the European Human Rights Convention) or would be exposed to inhuman and degrading treatment (ibid, Article 3). One State generally prohibits the extradition of a refugee to his/her country of origin. In two States, the extradition of a refugee is specifically excluded: in one because refugees, as regards extradition, are treated as nationals of the country and, therefore, by definition, cannot be extradited; in the other because refugees are protected against extradition by the constitution. Two States, on the other hand, permit the extradition of a refugee to a "safe third country", i.e. a country other than the country of origin.
55. In only one of the States which has replied is extradition the subject of judicial decision; in the others, the competent government minister is empowered to make the extradition order. Only some States have expressly indicated that due process, such as appeal and/or legal representation, is provided.
Q. 20 How many cases of expulsion or extradition of refugees have there been over the past five years (give details)?
56. Eight States have reported that no expulsions or extraditions of refugees have taken place during this period. Three were unable to provide any data due to the absence of records, but one of these has indicated that, in any event, such cases are rare. One State has reported the expulsion of 60 refugees since 1985.
Q. 21 How are the terms "national security" and "public order" interpreted in your country in cases involving expulsion of refugees?
57. The majority of States have no legislative or other formal definition of these terms. However, most appear to have working criteria for deciding whether or not a refugee may be expelled from the country. The meaning given to these terms can be summarized as follows:
(a) National security: In most States, the term is taken to refer to matters concerning the security of the State (or a foreign State) and/or its institutions." Activities involving espionage, sabotage, terrorism, conspiracy and subversion, have been given as examples which would, because of their threat to security, result in the expulsion of an alien or refugee. Some States indicate that the term would be interpreted on an ad hoc basis (e.g., taking into account such factors as the refugee's personality and circumstances, etc.), or by having regard to the prevailing situation in the country at any given time.
(b) Public order: This term is generally understood to refer to the safety of the community at large. However, there is no apparent consensus as to which activities would be considered grounds for expulsion under this heading. In one State, the term represents a "safety valve" that enables it to deal with unforeseen circumstances. However, this State has confirmed that refoulement or expulsion measures would be based exclusively on the individual's conduct and would not be used as a "sanction" for the exercise of fundamental human rights such as freedom of speech or the right of association. Other States have given other examples such as habitual criminality and immorality, as well as membership of a group or organization whose activities are considered as constituting a social-danger.
Q. 22 Are refugees formally protected, through legislative enactment or administrative regulations, from forcible return to territories where their lives or freedom may be endangered?
58. All States consider themselves bound by the non-refoulement principle contained in Article 33, although only some of them have formally incorporated it into their legislation. In cases where no legislative provision has been made for the protection of refugees against refoulement, such protection is said to be accorded by administrative practice.
Q. 23 Is the protection against refoulement understood in law or practice as extending to asylum-seekers seeking entry at the frontier?
59. All States which have replied indicate that they extend protection against refoulement to asylum-seekers, including those seeking entry at the frontier, while their claim is being considered.
Q. 24 Are there any exceptions to non-refoulement in your national legislation or have there been any cases in your country where the benefit of the protection against refoulement has been formally denied a refugee?
60. A number of the States which have replied indicate that they do not make any exceptions to the principle of non-refoulement. Others indicate that any exceptions made would be in line with paragraph 2 of Article 33 of the Convention. Two States have given detailed explanations as to how the exception of "particularly serious crime" is interpreted: in one State, it is applied to a crime which carries a sentence of imprisonment for more than 12 months committed by a person who has resided in the country for less than 10 years, and in the other, it is a crime punishable by imprisonment for more than five years.
Q. 25 How are the terms "danger to the security of the country" and "danger to the community" interpreted in your country in cases where refoulement of refugees is at issue?
61. Danger to the security of the country: the majority of States which have responded to this question adopt the same interpretation as that applied in regard to the term "national security" in Article 32 of the Convention (see Question 21 above). The remainder have not given any explanation as to the manner in which this term is applied.
62. Danger to the community: One State would consider a refugee who had committed crimes punishable by more than five years' imprisonment to be a danger to the community for the purpose of this exception. Another would base its decision on a judgement by the country's federal court which has held that, in order to be expelled, the refugee must constitute a present danger to the community. Thus, a refugee who has committed a serious crime would be regarded as a grave risk to the well-being of the community if there is a high likelihood of harm to others and if the chances of a change in the refugee's life-style were low. As a result, the interest of the refugee in remaining in the community would be outweighed by the community's interest in the welfare and protection of its members. Other examples of "danger to the community" given in the replies are cases in which the refugee has committed acts which create conditions of social unrest and sedition or which give rise to tension within the community. A number of States, however, either have no definition of "particularly serious crime" or "danger to the community", or have indicated that these terms would be interpreted restrictively, or at the discretion of the authorities concerned.
Q. 26 What laws regulate the acquisition of nationality in your country and what requirements have to be fulfilled before nationality is granted? Are any distinctions made between refugees and aliens in general in this regard?
63. All States replying to this question have legislative provision for the acquisition of nationality, usually through birth in the national territory (jus soli), birth to a national of the country (jus sanguinis), marriage to a national or through naturalization. Some States also grant nationality spontaneously on the ground of an alien's exceptional services to the country.
64. The usual requirements for naturalization are a minimum period of residence in the country (varying from one to 10 years), adulthood (usually 18 years), good character and health, sufficient knowledge of the language (and, in one case, of the significance of acquiring citizenship) and financial self-sufficiency. Some States also require the renunciation by the alien of his/her previous nationality.
65. A few States have reported distinctions between refugees and aliens as regards naturalization. One State exempts refugees from the requirement of renunciation of former nationality, and in two States special consideration is given to an application for naturalization by a refugee. One State reduces the residence requirement from five to three years for refugees. Another, while making no legal or practical distinction between aliens and refugees in this respect, makes certain concessions from which some refugees could benefit - for physically handicapped, elderly or very young applicants who may be unable to fulfil the condition of having a knowledge and understanding of the rights and privileges of citizenship, or the language requirement. The same State, however, only issues temporary residence permits in the first instance to refugees recognized in the country which may either be renewed for a further period or converted to permanent residence permits, at the discretion of the authorities. Refugees in this situation would thus have to wait longer to fulfil the requirement of five years' permanent residence before being eligible to apply for naturalization.
66. One State, in its refugee legislation, has expressly disqualified refugees from naturalization by excluding residence by a refugee as qualifying residence for naturalization purposes. It is not clear, however, whether a refugee may acquire nationality through birth or marriage. In any event, this State has indicated that its naturalization law is currently being revised in order to permit refugees to acquire the country's nationality (see below).
Q. 27 What charges or costs, if any, must refugees meet for the purposes of their naturalization?
67. Refugees are generally required to pay the same fees and/or costs, as aliens, of the naturalization procedure, sometimes classified as stamp duty. These costs range from $ 270, in one State, to a sum described by other States as "minimal charges". In only three States is the naturalization procedure free of cost; in another it is free for refugee women who marry nationals.
Q. 28 Are any policies pursued specifically to facilitate the naturalization of refugees? Please indicate how many, if any, refugees have been naturalized in your country over the last five years and what percentage they represent of the refugee population as a whole.
68. The majority of States which have replied do not, at present, have any policies designed to facilitate the naturalization of refugees, apart from those mentioned under Question 26, above. One State has given power to the competent minister to make policies which would give special consideration to the acquisition of nationality by refugees. Three others have stated that the question is either being studied or that laws to implement such a policy are in the legislative process.
69. One State reports almost 8,000 refugee naturalizations since 1985, and another 140 (10 per cent of the total number). Two States have reported no refugee naturalizations or have explained that the figure is very low due to the fact that most refugees migrate to other resettlement countries. Most of the other States have not provided any data on the subject.
B) Socio-economic, administrative and juridical rights and obligations
Q. 29 Are rights affecting the personal status of a refugee (for example, rights attaching to marriage or the family), which were acquired by that person prior to his/her arrival in your country recognized and enforceable in your courts? Please specify which law (of domicile or of nationality) governs the personal status of a refugee.
70. Nearly all the States which have replied recognize the previously acquired rights of refugees dependent on personal status. Some, however, provide for exceptions, mostly relating to marriages that would not be considered valid under their national law, because they do not conform to that country's substantive requirements (e.g., minimum age of spouses, monogamy). Nevertheless, one such State has indicated that exemptions on strong humanitarian grounds are possible regarding the minimum-age requirement.
71. Four States respect the obligation in paragraph 1 of Article 12 of the Convention to apply the law of domicile or that of the country of residence to refugees in matters regarding their personal status. Other States specify only the law of domicile and do not mention residence. One State applies the law of the country of nationality with regard to the personal status of aliens including refugees. Another State has explained that either the law of nationality or the law of domicile applies in the case of both aliens and refugees, depending on the particular case, and that more recent legislation dealing with certain aspects of family law calls for the application of the law of domicile in preference to the law of nationality. Another State has specified that matters concerning the recognition of the validity of marriages and the custody of children are governed by its obligations under international conventions to which it is a party3, and by corresponding national legislation.
Q. 30 Does a refugee have to comply with any specific requirements for his/her previously acquired rights to be respected in your country? If so, please specify.
72. The majority of States which have replied indicate that no specific requirements exist in this regard. Two of these States have, however, drawn attention to the fact that documentary proof of matters concerning personal status, is required.
Q. 31 What restrictions, if any, are there on acquisition by refugees of property and the entitlements relating thereto? Do the same laws and regulations apply on an equal basis to other aliens? Where the position of refugees differs from that of aliens generally as regards property rights, please give details.
73. The majority of States have reported that there is no difference in treatment between aliens and refugees in the matter of acquisition of property and related entitlements. Indeed, in some of these States, refugees are more favourably treated in that they enjoy the same rights in this area as nationals of the country. In others, however, certain restrictions exist, for example, on the right of both aliens and refugees to own immovable property. One State also has restrictions on the acquisition and disposal of public securities by non-nationals of European Community (EC) countries.
Q. 32 What rights do refugees enjoy as compared with those of nationals in your country regarding protection of industrial property (such as inventions, designs or models, trademarks or trade names) and artistic rights (rights in literary, artistic and scientific works)? Please specify laws and regulations, if any, which directly apply in this regard.
74. Refugees enjoy the same rights as nationals, in all but one of the States which have replied, with respect to protection of industrial property and artistic rights. One State grants protection for artistic rights only to its own nationals.
Q. 33 What rights in this regard are enjoyed in your country by refugees resident outside your country?
75. From the replies received, it appears that refugees resident outside the country of asylum enjoy the same rights in this regard as the nationals of their country of residence, with the exception of one State which grants protection for artistic rights only to its own nationals.
Q. 34 Are there any restrictions in force in your country on the right of a refugee to associate with, or join, associations and trade unions? If so, are such restrictions the same as those applying to all other aliens?
76. No restrictions are placed on the refugee's right of association in the majority of States replying to the question. In States where such restrictions exist, these apply to both refugees and aliens. Two States have reported that, in line with Article 15, refugees and aliens may only join non-profit, non-political associations. Two replies mention the right of refugees to join trade unions. In one of these States, in order to join trade unions, refugees and aliens are obliged to obtain an alien's work permit from the labour ministry and to be registered with the social security office. In another State, if the number of aliens constituting an association exceeds half the membership, the ministry of the interior must be informed. Finally, in one State, refugees are expressly forbidden, under pain of expulsion or internment, to join or participate in associations which practise violence and/or advocate the violent overthrow of foreign governments.
Q. 35 What, if any, restrictions are there on the access of refugees to courts in your country?
77. No restrictions whatever have been reported. In one case aliens generally are required to deposit a cautio judicatum solvi, but it is stated that this requirement is not rigorously applied in the case of refugees.
Q. 36 What rules regulate the right to legal assistance of refugees habitually resident in the territory of another State party to the Convention/Protocol? Are there any differences in this respect between refugees and nationals?
78. In none of the States replying is a distinction made between nationals and refugees, or between refugees habitually resident in another country and nationals of that country, as regards legal assistance.
Q. 37 Do refugees enjoy the right to work in wage-earning employment or on their own account in your country? What, if any requirements (e.g., residence requirements, acquisition of work permits) need to be complied with in this regard and are any financial costs involved?
79. In all States which have replied, refugees are given the right to work. As a minimum, refugees are treated in the same way as aliens and, in some cases, enjoy a more favourable standard.
80. Refugees, like aliens, are required to obtain work permits in most States. Two have indicated that the eligibility requirements for such permits are more liberally applied in the case of refugees, or that refugees are usually granted permits regardless of the employment situation in the country. In two other States, refugees are granted the same rights to employment as nationals upon receipt of permanent residence status. In one State, self-employed aliens require a business licence; however, no work permit is needed in wage-earning employment. One country automatically issues to refugees, upon recognition, an alien's registration card which serves as an identity paper, as an internal travel document and also as a work permit.
81. Only one State has supplied data regarding fees payable. While the cost of work permits (which is not specified) in this case is usually met by the employer, self-employed persons are required to pay an initial fee of $ 94 and an annual fee of $ 37 thereafter. Three others have advised that no charges are made.
Q. 38 Are any fields or areas of employment closed to refugees? If so, please specify.
82. Refugees and aliens generally are barred, in all but three of the States which have replied, from working in the civil service and in the armed forces of the country, and in one of these they are also excluded from the judiciary and the legal professions. In another State, they are prevented from holding senior executive posts in certain state enterprises, and may also be excluded from working in "sensitive" fields, such as economics and finance.
Q. 39 Does any group of aliens in your country enjoy favourable treatment in the area of employment? How does the position of refugees as regards wage-earning employment and self-employment compare with this group and with that of aliens generally?
83. The majority of States replying do not accord favourable treatment to any particular group in the area of employment. Four States, however, give priority to nationals of neighbouring States or member States of the European Community (EC), nationals of former colonial territories, or members of certain professions. One State, on the contrary, not only has no such restrictions but has instituted special programmes designed to facilitate labour opportunities for aliens and refugees. In two of these States, refugees are eligible for the same treatment as privileged groups. Another State also accords priority in employment to asylum-seekers who have been granted provisional residence status.
Q. 40 Are there any legal or other restrictions on the practice of their profession by refugees who are duly qualified in their own countries, for example, as medical doctors, lawyers, architects, teachers or engineers? If so, please explain how these restrictions compare with those imposed generally on all other aliens in your country.
84. The majority of States require that aliens generally (including refugees) possess the necessary professional qualifications and that these be validated or recognized by the competent authorities before they are allowed to practise. In one State, aliens are also required to become members of professional associations. Some States have reserved the practice of certain professions such as law, medicine, engineering, architecture and teaching to their own nationals while, in some cases, allowing aliens to be employed in these fields on a contractual basis. One State has no restrictions whatever on the practice of professions by aliens or refugees. Another, which does have certain restrictions, has indicated its willingness to enter into agreements relating to mutual recognition of diplomas, as provided by the relevant United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention.
Q. 42 Are there any restrictions on aliens generally as regards access to housing in your country? If so, please indicate whether refugees are treated as all other aliens in this regard or whether any special provisions apply to refugees.
85. Of those States which have replied to this question, the majority indicate that they have no restrictions on access to housing by aliens in general. In two countries, refugees are fully assimilated to nationals in this respect and in one country they are so assimilated to a very large extent. Where restrictions exist, refugees are usually exempted (e.g., where such restrictions relate to access to public housing). Where qualifying residence in the country is a condition of access to public housing, the majority of replies have not specified the type or length of residence required. In several replies it is merely stated that the refugee must be "resident" in the country. In one reply, reference is made to "permanent" residence and in another, three years' residence is specified as a precondition in one of the constituent units of the federal state concerned. In one country, the local refugee body, in cooperation with UNHCR, assists refugees in acquiring housing and subsidizes the costs during the first few months of occupancy.
Q. 43 What guarantees do refugees enjoy as regards access to elementary, secondary and tertiary or further education in your country? In what way, if any, do these rights differ, in law or in practice, from those enjoyed by nationals and by aliens in general?
86. The replies indicate that refugee's, like nationals, are allowed free access to all levels of education. In one State, access to higher education is subject to the general requirement of an adequate knowledge of the national language. In another State, refugees, unlike aliens generally, are provided with vocational and language courses to enable them to qualify for admission to educational institutions. In one State, refugees and aliens are given access to elementary and secondary education only if they are granted permanent residence.
Q. 44 In so far as fees and other charges are levied for education, are there any provisions for the remission of these charges and do refugees benefit from these provisions?
87. From the majority of the replies received, it is not apparent whether tuition fees are payable and, if so, at which educational level. Where however, it is indicated that fees are payable by aliens, refugees are exempted in certain countries. In two States, refugees and nationals are required to pay the same fees. In others, refugees may benefit from considerable reductions in the cost of tuition fees and/or scholarships normally reserved to nationals. In one country, however, refugees with temporary residence permits are required to pay full overseas student fees for higher education.
Q. 45 What is the practice in your country as regards the recognition of foreign school certificates, diplomas or degrees held by refugees?
88. In most States, foreign diplomas of refugees need to be evaluated in order for them to be recognized as equivalent to national qualifications. In most cases, the evaluation is carried out by the educational institution concerned, and no distinction is made between refugees and aliens. In one EC member State, refugees who have obtained their qualifications elsewhere in the EC may benefit from the relevant directive which obliges each member State to recognize the diplomas awarded by other member States.
ARTICLES 23 AND 24
Q. 46 Do refugees enjoy by law and in practice the same rights and protection as nationals as regards public relief and assistance, social security and conditions of work (labour legislation)? Please specify what, if any, differences exist between refugees and nationals in this regard. (Please pay particular attention to the details of Article 24 when responding to this question.)
89. Public relief: Refugees, in principle, have the same rights as nationals as regards public relief and assistance in all the States which have replied. Nevertheless, the type and amount of such assistance varies according to the State concerned, and in one case, even within one federal state where each constituent unit provides such relief according to its own social assistance laws and its own eligibility criteria. The result is that while in most of the constituent units there is full equality of refugees with nationals, in the others, there may be certain differences of treatment. This situation is, nevertheless, in line with a reservation to Article 23 of the Convention made by the country concerned.
90. Labour legislation: Very little information has been supplied regarding refugees' rights in regard to labour legislation, but it would appear that, in most States, they enjoy equal rights with nationals in regard to the matters mentioned in Article 24(1)(a). One State indicated that some of these matters, e.g., rates of pay, working hours (overtime), paid leave etc., are not the subject of legislation but are governed by private employment contracts.
91. Social security: In the majority of the States which have replied, refugees, in accordance with Article 24(1)(b), receive treatment equal to nationals as regards the right to participate in social security schemes and to claim social security benefits. Some of the replies contain detailed information showing the treatment received by refugees in regard to social. security, which, in certain cases, may prove to be more favourable than that enjoyed by nationals. In one of these States, refugees may be exempted from the need to provide documentary proof of length of employment for social security purposes, a simple declaration being sufficient in cases where such proof cannot be obtained. In another State, refugees, upon recognition, are exempted from the normal six-month waiting period for access to medical care. They are similarly exempted, upon recognition, from the normal five-year residence requirement for family allowances. In one State, on the other hand, refugees and aliens generally must be permanently resident in order to have access to social security benefits such as pensions and unemployment assistance. If they have not been granted permanent residence, they may, nevertheless, receive certain other minimum allowances in cases of severe hardship.
Q. 47 In situations where refugees would normally require some form of administrative assistance (e.g., delivery or certification of documents) from authorities in a foreign country to which they now cannot have recourse, is such assistance provided by your own authorities, or an international authority, and if so, pursuant to what law or administrative regulations?
92. Most States have given legislative effect to Article 25 and provide administrative assistance to refugees in delivery or certification of documents; others, however, do so on an ad hoc basis. Such assistance may take the form of a waiver of the requirement to produce documents in certain circumstances, e.g., in matters relating to marriage. In other cases, where documents are obtainable with difficulty, or not at all, a simple declaration by the refugee is accepted.
Q. 48 Are fees or charges levied on refugees for such assistance and are these commensurate with those charged to nationals?
93. In the majority of States replying, refugees are required to pay the same fees as nationals for delivery or certification of documents. In one country, however, they are exempted, and in another, no fees are charged for assistance in translations or certification of marriage documents. Refugees also benefit, in some States, from the total or partial exemption from charges which is accorded to indigent persons.
Q. 49 Are there any differences between refugees and nationals as regards fiscal duties, charges or taxes of any description? If so, please specify.
94. Refugees and nationals are treated equally in this respect in the majority of States which have replied, and in some countries they benefit from positive measures such as exemption from stamp duty in certain administrative procedures. Furthermore, in two States, refugees are exempted from customs duties on the importation of personal effects.
Q. 50 What, if any, laws or regulations exist which affect the transfer of assets of refugees leaving your country for resettlement in another country?
95. In most States which have replied, refugees are not subject to restrictions on the transfer of assets out of the country of asylum. Furthermore, no distinction has been made between assets brought into the country or acquired there by the refugee. However, some States impose restrictions, mainly with regard to the transfer of foreign currency and other items of value, on all persons, without distinction. Only one State has indicated that it renders assistance to refugees in order to facilitate the transfer of their property upon departure from the country.
1 Prepared on the basis of replies of States parties as at July 1991 to a questionnaire on implementation submitted to them by UNHCR in 1990.
2 1959 European Agreement on the Abolition of Visas for Refugees, 1980 European Agreement on the Transfer of Responsibility for Refugees.
3 Convention on Celebration and Recognition of the Validity of Marriages, Convention on the Civil Aspects of International Child Abduction.