Conclusion on International Protection

No. 85 (XLIX) - 1998

The Executive Committee,

The protection situation

(a) Welcomes that many States continue to grant asylum to refugees, both on an individual basis and in situations of mass influx, in accordance with international law and with internationally established principles and standards, but deplores the numerous and serious breaches of such law, principles and standards by some States;

(b) Deplores, in particular, that in certain situations, refugees, as well as returnees and other persons of concern to UNHCR, have been subjected to armed attacks, murder, rape and other serious violations of or threats to their personal security, including through denial of access to safety, refoulement or expulsion to highly dangerous situations;

(c) Expresses deep concern about the increasing use of war and violence as a means to carry out persecutory policies against groups targeted on account of their race, religion, nationality, membership of a particular social group, or political opinion;

(d) Reiterates that refugee protection is primarily the responsibility of States and that it is best achieved through effective cooperation between all States and UNHCR, as well as other international organizations and pertinent actors, in a spirit of international solidarity and burden-sharing;

(e) Encourages UNHCR and States to strengthen their efforts to promote broader accession to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and to cooperate to promote a universal and full implementation of these instruments;

Human rights and refugee protection

(f) Notes that the 50th anniversary of the Universal Declaration of Human Rights is being commemorated this year and reaffirms that the institution of asylum, which derives directly from the right to seek and enjoy asylum from persecution set out in Article 14 of the Declaration, is among the most basic mechanisms for the protection of refugees;

(g) Recognizes that the refugee experience, in all its stages, is closely linked to the degree of respect by States for human rights and fundamental freedoms and the related refugee protection principles, and reaffirms the importance in this regard of educational and other programmes to combat racism, discrimination and xenophobia, to promote tolerance and respect for all persons and their human rights, to advance the rule of law and legal and judicial capacity-building, and to strengthen civil society and sustainable development;

(h) Deplores that serious and repeated violations of human rights and fundamental freedoms, which are one of the principal reasons for refugee flows, continue both in peace and in times of armed conflict;

(i) Encourages UNHCR to strengthen further its collaboration with the Office of the High Commissioner for Human Rights and with relevant human rights bodies and mechanisms, as well as with non-governmental organizations, with a view to strengthening refugee protection, keeping in mind the need to improve coordination, promote complementarity, avoid duplication of efforts and to preserve the distinct character of the respective mandates;

(j) Deplores gender-related violence and all forms of discrimination on grounds of sex directed against refugee and displaced women and girls, and calls on States to ensure that their human rights and physical and psychological integrity are protected, and that they are made aware of these rights;

(k) Remains deeply concerned also about continuing violations of the rights of refugee children, including through abduction with a view to forcing participation in military activities, as well as through acts of violence, threats to their dignity, forced family separation, and sexual abuse and exploitation, and calls on States and relevant parties to take all necessary measures to end these violations, in compliance with principles and standards of refugee law, human rights law and humanitarian law;

(l) Notes that 1999 has been declared the International Year of Older Persons, and calls upon UNHCR to make renewed efforts to ensure that the rights, needs and dignity of elderly refugees are fully respected and addressed through appropriate programme activities;

(m) Reaffirms the importance of the right to a nationality and calls on States to adopt all necessary measures to prevent or reduce the incidence of statelessness, including through national legislation and, as appropriate, accession to and implementation of the Statelessness Conventions; draws particular and urgent attention in this regard to the situation of children of refugees and asylum-seekers born in asylum countries who could be stateless unless appropriate legislation and registration procedures are in place and are followed;

The right to seek and enjoy asylum

(n) Underlines the utmost significance to refugee protection of the institution of asylum, which serves the purpose of providing a structured framework for protection and assistance to persons in need of international protection, while ensuring that appropriate durable solutions can be achieved;

(o) Reiterates its commitment to uphold the principles of international solidarity and burden-sharing, reaffirms the need for resources to be mobilized to assist countries receiving refugees, particularly developing countries who host the large majority of the world's refugees and bear a heavy burden in this regard, and calls upon Governments, UNHCR and the international community to continue to respond to the asylum and assistance needs of refugees until durable solutions are found;

(p) Recognizes that international solidarity and burden-sharing are of direct importance to the satisfactory implementation of refugee protection principles; stresses, however, in this regard, that access to asylum and the meeting by States of their protection obligations should not be dependent on burden-sharing arrangements first being in place, particularly because respect for fundamental human rights and humanitarian principles is an obligation for all members of the international community;

(q) Strongly deplores the continuing incidence and often tragic humanitarian consequences of refoulement in all its forms, including through summary removals, occasionally en masse, and reiterates in this regard the need to admit refugees to the territory of States, which includes no rejection at frontiers without access to fair and effective procedures for determining their status and protection needs;

(r) Strongly urges States to devise and implement procedures for handling refugee claims which are consistent with protection principles provided for in applicable universal refugee instruments and in regional refugee instruments, consistent with international standards, as well as with the standards recommended by the Executive Committee;

(s) Notes with concern reports from countries that there is an increasing trend towards the misuse or abuse of national refugee status determination procedures; acknowledges the need for States to address this problem both at the national level and through international cooperation; urges, however, States to ensure that national law and administrative practices, including migration control measures, are compatible with the principles and standards of applicable refugee and human rights law, as set out in relevant international instruments;

(t) Emphasizes the duty of asylum-seekers and refugees to comply with the laws and regulations of the country in which they find themselves;

Family unity

(u) Recalls that Articles 16(3) of the Universal Declaration of Human Rights and 23(1) of the International Covenant on Civil and Political Rights proclaim that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State;

(v) Recommends that Governments take appropriate measures to ensure that the unity of the family is maintained, particularly in cases where the head of the family has been admitted as a refugee to a particular country;

(w) Exhorts States, in accordance with the relevant principles and standards, to implement measures to facilitate family reunification of refugees on their territory, especially through the consideration of all related requests in a positive and humanitarian spirit, and without undue delay;

(x) Encourages States, which have not already done so, to consider developing the legal framework to give effect at the national level to a right to family unity for all refugees, taking into account the human rights of the refugees and their families;

Composite flows and facilitation of return

(y) Emphasizes that outflows of people may include refugees and persons not in need of or not entitled to international protection and, therefore, notes that making a proper and careful differentiation between the two groups is of paramount importance for the identification of any protection needs which would make return inappropriate;

(z) Reaffirms the fundamental right of all people to leave and to return to their own countries, as well as the obligation of States to receive back their own nationals, and remains seriously concerned, as regards the return of persons not in need of international protection, that some countries continue to restrict the return of their nationals, either outright or through laws and practices which effectively block expeditious return;

(aa) Stresses that, as regards the return to a third country of an asylum-seeker whose claim has yet to be determined from the territory of the country where the claim has been submitted, including pursuant to bilateral or multilateral readmission agreements, it should be established that the third country will treat the asylum-seeker (asylum-seekers) in accordance with accepted international standards, will ensure effective protection against refoulement, and will provide the asylum-seeker (asylum-seekers) with the possibility to seek and enjoy asylum;

(bb) Deeply deplores the use of those practices for the return of asylum-seekers and persons not in need of international protection which seriously endanger their physical safety and reiterates in this regard that, irrespective of the status of the persons concerned, returns should be undertaken in a humane manner and in full respect for their human rights and dignity and without resort to excessive force;

Detention of asylum-seekers

(cc) Recalls Article 31 of the 1951 Convention relating to the Status of Refugees and reaffirms Conclusion No. 44. (XXXVII) on the detention of refugees and asylum-seekers;

(dd) Deplores that many countries continue routinely to detain asylum-seekers (including minors) on an arbitrary basis, for unduly prolonged periods, and without giving them adequate access to UNHCR and to fair procedures for timely review of their detention status; notes that such detention practices are inconsistent with established human rights standards and urges States to explore more actively all feasible alternatives to detention;

(ee) Notes with concern that asylum-seekers detained only because of their illegal entry or presence are often held together with persons detained as common criminals, and reiterates that this is undesirable and must be avoided whenever possible, and that asylum-seekers shall not be located in areas where their physical safety is in danger;

Durable solutions

(ff) Urges States, particularly countries of origin of refugees, resolutely to cooperate at the bilateral, regional and universal levels to address the underlying causes of refugee flows, both in a preventive and curative manner, and to facilitate just and lasting solutions;

(gg) Recalls Conclusion No.62 (XLI) which states that voluntary repatriation, local integration and resettlement, that is, the traditional solutions for refugees, all remain viable and important responses to refugee situations, even while voluntary repatriation is the pre-eminent solution;

(hh) Calls upon countries of origin, countries of asylum, UNHCR, and the international community to take all necessary measures to enable refugees to exercise freely their right to return to their homes in safety and dignity;

(ii) Emphasizes the importance of reconciliation for facilitating and ensuring the durability of return, and calls upon States and all other actors, including the refugees themselves, to cooperate willingly and generously in all initiatives undertaken to bring lasting peace and justice to reintegrating communities;

(jj) Reaffirms the continuing importance of resettlement as an instrument of protection and an element of burden-sharing; calls on UNHCR to continue to work with resettlement countries to improve the efficiency and timely provision of resettlement opportunities for those where resettlement is the appropriate solution; encourages States which have not already offered resettlement opportunities to refugees, and which are capable of doing so, to join in offering such opportunities, and calls on States and UNHCR to pay particular attention to the resettlement of individual refugees with special protection needs, including women-at-risk, minors, adolescents, elderly refugees, and survivors of torture.