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Conclusion on Legal Safety Issues in the Context of Voluntary Repatriation of Refugees

Executive Committee Meetings

Conclusion on Legal Safety Issues in the Context of Voluntary Repatriation of Refugees
No. 101 (LV) - 2004

8 October 2004
Executive Commitee 55th session. Contained in United Nations General Assembly document A/AC.96/1003

The Executive Committee,

Recalling its Conclusion No. 18 (XXXI) and Conclusion No. 40 (XXXVI) on voluntary repatriation, as well as Conclusion No. 74 (XLV) paragraphs (y), (z) and (aa),

Recalling its Conclusion No. 96 and noting that the present Conclusion does not apply to persons found not to be in need of international protection,

Noting the relevance for voluntary repatriation of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women,

Expressing appreciation for the useful discussions on voluntary repatriation, which took place in the context of the third track of the Global Consultations on International Protection;1 and agreeing with the importance of working towards improved conditions for voluntary repatriation and of strengthening cooperation to make such repatriation sustainable in line with Goal 5, Objectives 2 and 3 of the Agenda for Protection which resulted from those discussions,

Reaffirming that voluntary repatriation, local integration and resettlement are the traditional solutions for refugees, and that all remain viable and important responses to refugee situations; reiterating that voluntary repatriation, where and when feasible, remains the preferred solution in the majority of refugee situations; and noting that a combination of solutions, taking into account the specific circumstances of each refugee situation, can help achieve lasting solutions,

Reaffirming the voluntary character of refugee repatriation, which involves the individual making a free and informed choice through, inter alia, the availability of complete, accurate and objective information on the situation in the country of origin; and stressing the need for voluntary repatriation to occur in and to conditions of safety and dignity,

Recognizing in the context of voluntary repatriation the importance of resolute efforts in the country of origin to create conditions that foster the voluntary and safe return of refugees and to ensure the restoration of national protection,

Recognizing the complexities of large-scale voluntary repatriation and the difficulties which the country of origin may face in seeking to follow the guidance provided in this Conclusion,

Noting the value of countries of origin addressing issues which are of a legal or administrative nature as a means of building confidence, facilitating decisions to return and ensuring sustainable reintegration,

Emphasizing that some legal or administrative issues may only be addressed over time; and recognizing that voluntary repatriation can and does take place without all of the legal and administrative issues addressed in this Conclusion having first been resolved,

Recognizing the usefulness of States, as countries of asylum or countries of origin, and UNHCR concluding, where appropriate, tripartite agreements to facilitate voluntary repatriation efforts, thereby setting out the core elements and modalities of voluntary repatriation, the respective roles and responsibilities of the relevant actors involved, and the obligations of States with respect to returning refugees, while also noting that, under certain circumstances, voluntary repatriation may take place without such agreements,

Recognizing also the importance of spontaneous voluntary repatriation of refugees and that actions to promote organized voluntary repatriation should not create obstacles to the spontaneous return of refugees,

Noting the desirability of incorporating appropriate legal protections for returning refugees in peace agreements, whenever possible, as a measure to build confidence and in support of their promotion in practice,

Acknowledging the importance of promoting an age- and gender-sensitive approach in all aspects of refugee return processes; and, in this regard, encouraging UNHCR to develop appropriate standards and indicators that account for such factors in repatriation and reintegration programmes,

Underlining the need for strengthened cooperation among countries of origin, host countries, UNHCR and other international organizations and the international community, to ensure that voluntary repatriation will be sustainable,

Noting that reconciliation in post-conflict situations is a key challenge and that addressing this from the outset, where necessary through transitional justice mechanisms, and involving communities, may contribute to creating conditions conducive to voluntary repatriation and sustainable reintegration,

(a) Invites countries of origin, in cooperation with UNHCR, other States and other concerned actors, as necessary and appropriate, to address, at an early stage, issues of a legal and administrative nature which are likely to hinder voluntary repatriation in safety and dignity, by taking into consideration, inter alia, the guidance included in the operative paragraphs that follow;

(b) Reaffirms that refugees have the right to return to their own country and that States have the obligation to receive back their own nationals and should facilitate such return; urges States to issue necessary travel documents, if required, to facilitate such return; calls upon transit countries to assist in the facilitation of return; and also notes that refugees may be required to be subject to brief interviews at the relevant border entry point by the authorities of the country of origin for purposes of identification;

(c) Recognizes that refugees, in exercising their right to return to their own country, should, in principle, have the possibility to return to their place of origin, or to a place of residence of their choice, subject only to restrictions as permitted by international human rights law;2 and, in this context, notes the importance of efforts that seek to mitigate the likelihood that returning refugees could become internally displaced;

(d) Emphasizing that in the context of voluntary repatriation countries of asylum have the responsibility to protect refugees from threats and harassment, including from any groups or individuals who may impede their access to information on the situation in the country of origin or may impede the exercise of their free will regarding the right to return;

(e) Reaffirms that voluntary repatriation should not necessarily be conditioned on the accomplishment of political solutions in the country of origin in order not to impede the exercise of the refugees' right to return; and recognizes that the voluntary repatriation and reintegration process is normally guided by the conditions in the country of origin;

(f) Strongly urges countries of origin to ensure that returning refugees do not face a risk of persecution, discrimination or detention due to their departure from the country or on account of their status as refugees, or their political opinion, race, ethnic origin, religious belief or membership of a particular social group;

(g) Recognizes the utility of amnesties in encouraging voluntary repatriation and recommends that countries of origin issue amnesty declarations granting returning refugees immunity from prosecution for having left or remaining outside the country of origin; and further recognizes, however, that amnesties should not be extended to returning refugees charged with, inter alia, a serious violation of international humanitarian law, or genocide, or a crime against humanity, or a crime constituting a serious violation of human rights, or a serious common crime involving death or serious bodily harm, committed prior to or during exile;

(h) Recognizes that, in principle, all returning refugees should have the right to have restored to them or be compensated for any housing, land or property of which they were deprived in an illegal, discriminatory or arbitrary manner before or during exile; notes, therefore, the potential need for fair and effective restitution mechanisms, which also take into account the situation of secondary occupants of refugees' property; and also notes that where property cannot be restored, returning refugees should be justly and adequately compensated by the country of origin;

(i) Stresses the desirability of ensuring that any restitution and compensation framework takes account of the situation of returning refugee women, in particular, where women, especially female heads of households, are prevented from securing property rights in accordance with inheritance laws or where inheritance procedures prevent them from recovering their property within a reasonable period of time;

(j) Encourages countries of origin to provide homeless returning refugees, as appropriate, with access to land and/or adequate housing, comparable to local standards;

(k) Notes the importance of ensuring nationality; and urges countries of origin to ensure that there is no exclusion of returning refugees from nationality and that statelessness is thus avoided; and recalls in this context Conclusion No. 78 (XLVI) on the prevention and reduction of statelessness and the protection of stateless persons;

(l) Notes also the importance of providing under national law for the recognition of the civil status of returning refugees and changes thereto, including as a result of births, deaths, adoptions, marriage and divorce, as well as of documentation or registration proving that status, issued by the competent bodies in the country of asylum or elsewhere, taking into account the special situation of returning refugee women who may not have documentation proving their civil status or who may face difficulties securing recognition of documentation issued by the authorities of the country of asylum;

(m) Calls on countries of origin and countries of habitual residence to accept back refugees who are non-nationals but have been habitually resident in that country, including those who were previously stateless there;

(n) Stresses the importance of family unity during and following voluntary repatriation; and calls upon States, where necessary, to assist spouses and family members of different nationalities to remain together as families;

(o) Notes the importance of skills of returning refugees for self-reliance and, in this context, calls upon countries of origin to ensure non-discriminatory access for returning refugees to processes, where they exist, to recognize the equivalency of academic, professional and vocational diplomas, certificates and degrees acquired by returning refugees while abroad; and encourages countries of origin to recognize the equivalency of primary and secondary education received abroad by returning refugees;

(p) Recommends that in consultation with refugee communities consideration be given to addressing the specific needs of returning refugees - including women, children, older people and other persons with special concerns - in order to ensure that they receive adequate protection, assistance and care throughout the repatriation and initial reintegration process; and stresses in this context that particular attention needs to be given to ensure that unaccompanied or separated children are not returned prior to successful tracing of family members or without specific and adequate reception and care arrangements having been put in place in the country of origin;

(q) Reiterates that UNHCR, in line with its mandate responsibility, be given free and unhindered access to returning refugees, as needed, in particular, so as to monitor the latter's proper treatment in accordance with international standards, including as regards the fulfilment of amnesties, guarantees or assurances on the basis of which refugees have returned;

(r) Encourages the country of origin, host countries and UNHCR in cooperation with other relevant actors to provide refugees with complete, objective and accurate information, including on physical, material and legal safety issues, prior to their voluntary repatriation to and reintegration in the country of origin;

(s) Encourages UNHCR to collaborate with other United Nations entities, international and non-governmental organizations, in particular those with mandates and expertise in rule of law, development and peacekeeping as well as peace-building, with a view to removing legal, administrative and other barriers to return in countries of origin, and, in doing so, contributing more generally to promoting the rule of law and respect for human rights and fundamental freedoms;

(t) Encourages the international community at large to mobilize adequate and sustained support to countries of origin, particularly those emerging from conflict, to assist them to restore national protection to, including respect for the human rights of, their citizens and former habitual residents, including returning refugees.

1 EC/GC/02/5 of 25 April 2002.

2 See Article 12(3) of International Covenant on Civil and Political Rights.