Report on Meeting of the Sub-Committee of the Whole on International Protection held on Monday 3 October 1977

EC/SCP/6

¹ 1. Pursuant to a decision of the Executive Committee at its twenty-seventh session, the Sub-Committee of the Whole on International Protection met on 3 October 1977 - one day before the opening of the twenty-eighth session, under the Chairmanship of His Excellency Dr. Ch. A. van der Klaauw (Netherlands). With the agreement of the Sub-Committee the Chairman nominated Mr. A. Morales (Colombia) as Rapporteur.

2. In an introductory statement, the High Commissioner expressed appreciation for the establishment of the Sub-Committee, which was evidence of the Executive Committee's support for the efforts of his Office in the field of international protection. Despite various positive developments, there were still a number of urgent problems in the field of international protection which called for a major effort by the international community. He drew particular attention to the need for establishing procedures for the determination of refugee status, to problems arising from the refusal of permanent or even temporary asylum and to the importance of further accessions to the 1951 Convention and the 1967 Protocol relating to the status of refugees.

3. The Sub-Committee adopted the following agenda:

1. Non-refoulement

2. Expulsion of refugees

3. Asylum

4. Determination of refugee status

5. Any other business

6. Consideration of draft report.

Non-refoulement

4. Introducing the working paper EC/SCP/2, the Director of Protection stated that, while the principle of non-refoulement was considered as a generally recognized principle of international law, it was not always respected. Less than half of the member States of the United Nations were parties to the 1951 Convention and/or to the 1967 Protocol. Even among States parties to these instruments, there were cases of asylum-seekers having been rejected at the frontier by subordinate officials who were not sufficiently conversant with the obligations resulting from Article 33 of the Convention. In certain cases, persons had been returned to their country of origin in disregard of the principle of non-refoulement due to their refugee character not having been established under appropriate procedures. The Office had always intervened in cases where the principle of non-refoulement had been disregarded irrespective of whether or not the person concerned had been formally recognized as a refugee. States which had not yet become parties to the 1951 Convention or the 1967 Protocol should nevertheless observe the principle of non-refoulement which had found expression also in other international instruments, notably the United Nations Declaration on Territorial Asylum.

5. In the ensuring discussion the fundamental significance of the principle of non-refoulement was stressed by a number of representatives. One representative referred to the Final Act of the 1954 Conference relating to the Status of Stateless Persons in which the principle of non-refoulement had been defined as "a generally recognized principle". One representative expressed the view that persons applying for asylum should be protected by the principle of non-refoulement pending a decision on their request, while other representatives agreed that the principle was applicable irrespective of a formal determination of refugee status.

6. One representative considered that the principle was applicable both as regards persons in a State's territory and persons seeking asylum at its frontiers. Another representative stressed that it would not be appropriate for the question whether or not the principle was applicable in any particular case to be decided by a subordinate official without reference to a superior authority.

7. One representative expressed the view that the possibility of derogating from the principle of non-refoulement provided for in Article 33, paragraph 2 of the 1951 Convention should only be resorted to in exceptional cases, while another representative stated that his country had never had recourse to this provision. Two representatives agreed with the view set out in the working paper that the words "where his life or freedom would be threatened" used in Article 33 paragraph 1, did not involve a stricter standard than that (i.e., "well-founded fear of persecution") resulting from the definition of the term refugee in Article 1.A.2 of the 1951 Convention.

8. One representative considered that the principle of non-refoulement should prevent extradition to a country where a person had reason to fear persecution. Another representative stated that his country did not see any provision on non-refoulement to which it had subscribed or for which it had voted as affecting its rights or obligations under international arrangements to extradite a person for an extraditable offence. The only refugees who had been expelled from his country were those who bad been convicted of serious crimes or had been considered to constitute a danger to the community. However, it was not his country's practice to expel or deport any person who had a well-founded fear that his life or liberty would thereby be endangered.

9. The view was also expressed that the application of the principle of non-refoulement would be facilitated by the establishment of appropriate procedures for determining refugee status and by the accession of further States to the 1951 Convention and the 1967 Protocol relating to the status of Refugees.

10. At the close of the discussion the Sub-Committee recommended that the Executive Committee adopt the following conclusions on non-refoulement:

(a) Recalling that the fundamental humanitarian principle of, non-refoulement has found expression in various international instruments adopted at the universal and regional levels and is generally accepted by States.

(b) Expressed deep concern at the information given by the High Commissioner that, while the principle of non-refoulement is in practice widely observed, this principle has in certain cases been disregarded.

(c) Reaffirms the fundamental importance of the observance of the principle of non-refoulement - both at the border and within the territory of a State - of persons who may be subjected to persecution if returned to their country of origin irrespective of whether or not they have been formally recognized as refugees.

Expulsion

11. Introducing working paper EC/SCP/3, the Director of Protection pointed out that, in accordance with Article 32 of the 1951 Convention, the expulsion of a refugee lawfully in the territory of a Contracting State was and must remain an exceptional measure. Moreover, the detention of a refugee in respect of whom an expulsion order had been especially if not enforceable - constituted an additional sanction inconsistent with more recent thinking in the field of penology.

12. In the ensuing discussion, one representative stressed the unlikelihood of a refugee subject to an expulsion measure being accepted by another State, and the need for custody or detention related to an expulsion measure not to be unduly prolonged. Another representative shared the view that an expulsion measure under Article 32 of the 1951 Convention should be resorted to only in exceptional circumstances. Moreover, where the implementation of an expulsion order was impracticable the refugee concerned should receive the same treatment as would a delinquent national in the same circumstances. The same representative also raised the question as to whether the last-mentioned principle could not be embodied in an international instrument. One representative raised the question of expulsion in the context of asylum-seekers who passed through several countries without valid documentation. Another representative while recognizing that detention should in principle not be unduly prolonged, nevertheless felt that in cases where such detention as justified for serious security reasons its length would to some extent depend upon the time required to find an alternative country of residence for the refugee. One representative felt that, if refugees were to be given special consideration as regards expulsion, they should also be reminded of their obligation to respect the laws and regulations of their country of residence.

13. At the close, of the discussion, the Sub-Committee recommended that the Executive Committee adopt the following conclusions on expulsion:

(a) Recognized that according to the 1951 Convention refugees lawfully in the territory of a Contracting State are generally protected against expulsion and that in accordance with Article 32 of the Convention expulsion of a refugee is only permitted in exceptional circumstances.

(b) Recognized that a measure of expulsion may have very serious consequences for a refugee and his immediate family members residing with him;

(c) Recommended that in line with Article 32 of the 1951 Convention, expulsion measure s against a refugee should only be taken in very exceptional cases and after due consideration of all the circumstances including the possibility for the refugee to be admitted to another country other than his country of origin;

(d) Recommended that, in cases where the implementation of an expulsion measure was impracticable, States should consider giving refugee delinquents the same treatment as national delinquents and that States examine the possibility of elaborating an international instrument giving effect to this principle;

(e) Recommended that an expulsion order should only be combined with custody or detention if absolutely necessary for reasons of national security or public order and that such custody or detention should not be unduly prolonged.

Asylum

14. Introducing working paper EC/SCP/4, the Director of Protection drew attention to the fundamental character of the grant of asylum, without which a person could not secure protection from persecution or the various rights derived from refugee status. The aim of the working paper was to draw attention to certain practical problems and in particular certain negative practices which had arisen in the field of asylum. One specific problem related to persons who had left their home country in small boats and had encountered difficulties in securing permanent or even temporary asylum. In this connexion he mentioned the Joint IMCO/UNHCR appeal to ship-owners to ensure that masters of vessels scrupulously observe the provisions of international instruments relating to rescue of persons at sea. Although a general international instrument imposing binding obligations on States in regard to asylum had not yet come into existence, there were already other instruments to which recourse could be had, notably the General Assembly Resolution 428 (V), which "Calls upon Governments to co-operate with the United Nations High Commissioner for Refugees in the performance of his functions ... especially ... by admitting refugees to their territories ... "

15. During a subsequent discussions several representatives stressed the fundamental importance of asylum and, one representative pointed out that in his country asylum, was a subjective right of the individual guaranteed by the Constitution. Two representatives expressed concern at the negative practices in the field of asylum mentioned in the working paper. One of these representatives stated that his Government had received specific reports of cases in which borders had been closed to asylum seekers; in which asylum-seekers had been admitted but without the right to work, and where illegal entry was considered a reason for refusing asylum, even though the persons concerned had no opportunity to enter the country in a regular manner.

16. One representative referred to the problem of persons who were refused asylum not because they were not considered to be refugees but because it was claimed that they could seek asylum elsewhere. This matter was being examined within the framework of the Council of Europe. Another representative also adverted to this problem and agreed with the view that a relevant consideration in refusing asylum was whether or not a person had established a connexion with another State.

17. One representative referred to the distinction between persons subject to persecution in need of protection under international instruments and persons who wrongly invoked such instruments in order to resist action to combat terrorism and violence. The borderline between these various categories had not yet been clearly drawn. The principle of non-refoulement should, however, always be observed if applicable. He further pointed out that provisions relating to asylum were contained in the national legislation of a number of countries and a discussion on various national institutions relating to asylum could usefully be held at an appropriate time.

18. Two representatives expressed particular concern regarding the situation of asylum-seekers from the Indo-China peninsula who had left their country of origin in small boats. One of these representatives stated that the authorities of his country had been particularly concerned by suggestions that its ships' masters had not scrupulously observed regulations concerning the rescue of persons on the high seas. An investigation into this matter had fortunately proved that such suggestions were unfounded. Some 5,000 persons in this category had been granted first asylum in a territory under its administration on UNHCR's undertaking to arrange for their permanent resettlement. Another representative welcomed the joint IMCO/UNHCR appeal while nevertheless regretting its necessity. He mentioned that his country guaranteed admission of such persons rescued by ships flying her flag, if not accepted for resettlement by another country.

19. In the course of the discussion on this and other items on the Sub-Committee's agenda, various representatives referred to the Conference on Territorial Asylum held from 10 January to 4 February 1977. Different views were expressed regarding the results of this Conference and any further action which might be taken on the matter.

20. At the close of the discussion, the Sub-Committee recommended that the Executive Committee adopt the following conclusions on asylum:

(a) Noted with satisfaction the report of the High Commissioner that States have generally continued to follow liberal asylum practices;

(b) Noting, however, that according to the report of the High Commissioner cases continue to occur in which asylum-seekers have encountered serious difficulties in finding a country willing to grant them even temporary refuge and that refusal of permanent or temporary asylum has led in a number of cases to serious consequences for the person concerned;

(c) Requested the High Commissioner to draw the attention of governments to the various international instruments existing in the field of asylum and reiterated the fundamental importance of, these instruments from a humanitarian standpoint;

(d) Appealed to governments to follow or continue to follow, liberal practices in granting permanent or at least temporary asylum to refugees who have come directly to their territory;

(e) Called on governments to co-operate, in a spirit of international solidarity, with the High Commissioner in the performance of his functions especially with respect to asylum - in accordance with General Assembly Resolution 428 (V) of 14 December 1950.

Determination of refugee status under international instruments

21. Introducing document EC/SCP/5, the Director of Protection explained that the determination of refugee status under international instruments was an essential technical requirement. Instruments established for the benefit of refugees could not be applied to persons who were not identified as such and for this purpose appropriate determination procedures were necessary.

22. In the context of such procedures the question of harmonization had frequently been raised. Harmonization of actual procedures would, however be difficult to achieve in view, of the varying administrative and judicial systems of different States. The Office nevertheless felt that all procedures should fulfil certain minimum requirements which had been enumerated in the working paper. As regards harmonization of criteria for determining refugee status, it should be stressed that there was only one set of criteria namely those defined in the 1951 Convention and the 1967 Protocol, although the interpretation of these criteria might vary in different States. One means of achieving harmonization as regards interpretation was to provide for co-operation with UNHCR in procedure for determining refugee status. Since the relevant criteria were those defined in a single international instrument, it followed that refugee status determined in one State should also be recognized by other States parties to the 1951 Convention and the 1967 Protocol. This for example was the case in regard to the recognition of Convention Travel Documents issued by another Contracting State. Beyond this, however, cases arose in which a refugee accepted for permanent residence by another Contracting State did not have his refugee status confirmed. This result was paradoxical and inconsistent with the purpose of a single international convention establishing refugee status.

23. In the subsequent discussion, one representative informed the Sub-Committee that a procedure for determining refugee status had been established in his country under recent legislation and would enter into force in the near future. Another representative reported that an Inter-Ministerial Committee had been set up in his country with the task of working out arrangements for the establishment of a procedure along similar lines.

24. The majority of speakers expressed their agreement with the basic minimum procedural requirements enumerated in the working paper. One representative considered that these could be supplemented by the requirement that the procedure should be as rapid as possible and that a decision that an appeal was clearly unfounded should not be made by a subordinate official but by the authority entrusted with the task of examining and deciding upon application for refugee status. He also considered that the descriptions of procedures in information paper A/AC.96/INP.152 could usefully include further details e.g. as to whether and under what circumstances applicants were permitted to remain in the territory during the procedure. It was also desirable to have more information regarding the situation of asylum seekers who moved from one country to another, a problem which was now being considered within the Council of Europe.

25. A number of representatives expressed the hope that it might be possible to reduce divergencies in the interpretation of the internationally established criteria for determining refugee status. In this connexion one representative referred to the participation of UNHCR in the determination procedure in his country, and felt that such participation could facilitate the object of harmonization to which his government attached great importance. Another representative considered that harmonization of procedures was desirable but noted that complete uniformity could not be achieved due to the differing internal structures of States. He noted that a procedure for determining refugee status existed in his country but that a description of this procedure had not been included in document A/AC.96/INF.152.

26. Certain representatives, though recognizing, that in principle it would be desirable that determination of refugee status by a State party to the 1951 Convention and/or the 1967 Protocol should be accepted by other States parties to these instruments, felt that automatic acceptance of such determination was rendered difficult by present divergencies in the interpretation of criteria. They stressed that, even if under existing international agreements Convention Travel Documents were recognized for the purpose of travel or temporary stay in the case of transfer of permanent residence, refugee status had, as a rule, to be reconfirmed. They considered that the question of the extra-territorial character of determination of refugee status should be the subject of further examination before the Committee could take a final view on the matter. One representative, however referred to paragraph 7 of the Schedule of the 1951 Convention requiring Contracting States to recognize the validity of refugee travel documents. This implied that they should also recognize pro tanto the refugee status of the holder and it was inconsistent that this requirement should lapse once the validity of the document had expired. Determination of refugee status by another State party to the 1951 Convention should, moreover, be presumed to have been made in good faith.

27. During the discussion of an earlier item on the agenda, one representative considered that it would be useful if the Office would prepare - for use by governments - a simple but authoritative handbook on criteria and procedures for determining refugee status under the 1951 Convention and the 1967 Protocol including some simplified model procedures for determining refugee status and processing asylum requests. Another representative considered that it would be useful if the Office of UNHCR would arrange for the systematic circulation of significant decisions on the determination of refugee status. These suggestions received the support of a number of representatives. One representative, however, believed that the preparation of such a handbook might present difficulties to the Office of UNHCR, while another representative expressed apprehension regarding the publication of decisions on refugee status which were reached on the basis of statements by asylum seekers which should be treated as confidential.

28. At the close of the discussion the Sub-Committee recommended that the Executive Committee adopt the following conclusions:

(a) Noted the report of the High Commissioner concerning the importance of procedures for determining refugee status;

(b) Noted that only a limited number of States parties to the 1951 Convention and the 1967 Protocol had established procedures for the for the formal determination of refugee status under these instruments;

(c) Noted, however, with satisfaction that the establishment of such procedures was under active consideration by a number of governments;

(d) Expressed the hope that all governments parties to the 1951 Convention and the 1967 Protocol which have not done so would take steps to establish such procedures in the near future and give favourable consideration to UNHCR participation in such procedures in appropriate form;

(e) Recommended that procedures for the determination of refugee status should satisfy the following basic requirements:

(i) The competent official (e.g. immigration officer or border police officer) to whom the applicant addresses himself at the border or in the territory of a Contracting State, should have clear instructions for dealing with cases which might come within the preview of the relevant international instruments. He should be required to act in accordance with the principle of non-refoulement and to refer such cases to a higher authority.

(ii) The applicant should receive the necessary guidance as to the procedure to be followed;

(iii) There should be a clearly identified authority - wherever possible a single central authority - with responsibility for examining requests for refugee status and taking a decision in the first instance.

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

(v) If the applicant is recognised as a refugee, he should be informed accordingly and issued with documentation certifying his refugee status;

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

(vii) The applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority referred to in paragraph (iii) above, unless it has been established by that authority that his request is clearly abusive. He should also be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending.

(f) Requested UNHCR to prepare, after due consideration of the opinions of States parties to the 1951 Convention and the 1967 Protocol, a detailed study on the question of the extra-territorial effect of determination of refugee status in order to enable the Committee to take a considered view on the matter at a subsequent session taking into account the opinion expressed by representatives that the acceptance by a Contracting State of refugee status as determined by other States parties to these instruments would be generally desirable.

(g) Requested the Office, of the High Commissioner to consider the possibility of issuing - for the of guidance of governments - a handbook relating to procedures and criteria for determining refugee status and circulating significant decisions on the determination of refugee status.

International Instruments

29. During their discussions of the various items, a number of representatives drew attention to the importance of further accessions to the basic international instruments relating to the status of refugees. The Sub-Committee recommended that the Executive Committee adopt the following conclusions on this matter:

(a) Noted with disappointment that since the Committee's seventh session only one further State had acceded to the 1951 Convention and to the 1967 Protocol relating to the Status of Refugees.

(b) Noted further that a large number of States had still not become parties to these instruments and recommended that the High Commissioner undertake a concerted and determined initiative at the highest level to promote further accessions.

(c) Considered that such an initiative should also extend to promoting the withdrawal of the geographical limitation still maintained by certain States in respect of their obligations under the 1951 Convention and the 1967 Protocol.

Additional questions raised by representatives during the discussion of various items

30. Certain representatives supported the view expressed by the Office in the Note on International Protection (document A/AC.96/538) that much could be achieved by the more effective implementation in a truly humanitarian spirit of standards defined in existing international instruments established for the benefit of refugees.

31. Two representatives considered that any solutions recommended with a view to improving the situation of refugees, while based on humanitarian considerations, should nevertheless be sufficiently flexible to take account of any special problems which might confront certain States particularly as a result of their geographical situation.

32. One representative felt that a new appeal could usefully be made by the High Commissioner or the Executive Committee for assistance to those countries specially affected by a large influx of asylum seekers.

33. The majority of speakers strongly emphasized the fundamental character of international protection which they considered to be the most important function of UNHCR. In expressing appreciation for the efforts undertaken by the Office in this field certain representatives were in agreement with the view expressed in document A/AC.96/538 that the Office's aims could be more effectively achieved through the deployment of adequate staff specializing in protection matters.

34. Satisfaction at the establishment of the Sub-Committee was expressed by the majority of representatives who took part in the discussions. They believed the Sub-Committee fulfilled a useful function in supporting the activities of the High Commissioner in regard to international protection.

35. It was generally agreed that further meetings of the Sub-Committee should be held and approval and appreciation was expressed for the working papers submitted by the Office to the Sub-Committee at its present session.

1 The report on the first meeting of the sub-Committee is contained in Section III, paragraphs 60-84 of the report on the twenty-seventh session of the Executive Committee of the High Commissioner's Programme, document A/AC.96/534.