UNHCR Observations on the Commission's Proposal for a Joint Action Concerning Temporary Protection of Displaced Persons
3 European Series 2, p. 477
The European Commission proposal reflects, in a well-balanced manner, thinking to date on temporary protection regimes and provides a constructive basis for the further development of the concept of temporary protection. In this spirit, UNHCR has a number of general observations as well as specific points concerning the provisions of the Joint Action and the Explanatory Memorandum.
UNHCR's central areas of concern are the following three:
States providing temporary protection have acted on the basis of a broad consensus on the need for international protection in mass influx situations, without initially addressing the issue of whether those concerned were or were not refugees as defined in the 1951 Convention (the individual determination of which, in practical terms, proves difficult in large-scale influxes). Beneficiaries of temporary protection have in fact included both persons who clearly qualify for refugee status under the Convention, and others who might not. There is therefore a need to implement regimes without prejudice to the 1951 Convention and 1967 Protocol and to provide options at the appropriate time for consideration of Convention status and conversion to that status, with all inherent rights and benefits. The link between temporary protection and Convention status should be more clearly delineated in the Preamble and in the Articles where this is relevant, i.e. Articles 1, 3, 4, 10 and 13 of the Joint Action. Specific suggestions in this regard are made in the following paragraph by paragraph observations.
On a related matter, while refugee status is normally determined on an individual basis, situations have also arisen in which entire groups have been displaced under circumstances which indicate that all members of the group could, by and large, be considered refugees under the 1951 Convention and the l967 Protocol. With respect to refugee status determination, there is nothing in the Convention's provisions to preclude positive group determination or determination on a prima facie basis, subject to subsequent review. When circumstances in the country of origin are such that any reasonable person from a particular group would fear persecution, the "subjective" element of the refugee definition can be presumed. Furthermore, refugee status under the 1951 Convention is envisaged to be provisional in the light of the cessation clauses. The Convention also allows gradations in treatment and would not exclude the possibility of orienting programmes for refugees admitted on a temporary basis towards their eventual return when conditions permit, rather than towards full integration in the asylum country. This possibility, inherent in the international refugee instruments, should always be kept in mind. UNHCR suggests that this be discussed further in order that this aspect be reflected somewhere in the text of the Joint Action, perhaps in the definition of temporary protection under Article 1 or in the General Provisions (Article 2) or even in connection with conditions for the activating of temporary protection regimes (see also 4 and 14 of the Memorandum).
UNHCR has an internationally recognised mandate to provide international protection to refugees, which includes a supervisory role in respect of international refugee instruments. It would therefore seem appropriate to foresee a stronger role for UNHCR in the Joint Action as regards the inception, the revision and the phasing out of a temporary protection regime.
Specific observations concerning Provisions of the Joint Action
The reference to the applicability of the non-refoulement principle to beneficiaries of temporary protection is welcome. This clarifies the inter-linkage between respect for the non-refoulement principle, access to safety and temporary residence in the country of refuge. The Preamble could usefully refer not only to the principle of non-refoulement, but also to the importance of non-return to situations covered by Article 3 of the European Human Rights Convention, in light of its interpretation by the Strasbourg institutions.
Since beneficiaries of temporary protection are likely to include refugees within the meaning of the 1951 Convention, it would be helpful if reference would also be made, in a preambular paragraph, to the 1951 Convention and the 1967 Protocol. Such a preambular paragraph could generally clarify the relationship between temporary protection regimes and the international refugee instruments, making it clear that the Joint Action is not intended to depart from the international refugee instruments but to complement them, to address situations of mass influx in a flexible manner in view of the initial impracticality of conducting individual refugee status determination procedures for very large numbers and in order to meet urgent protection needs.1
Another element which could usefully be included in the Preamble is a reference to the need for comprehensive approaches, involving concerted efforts on the part of the international community to achieve a solution to the conflict or strife, and enabling those who have fled to return home in safety and dignity. So far only paragraph 35 of the Explanatory Memorandum points to comprehensive strategies. The place of temporary protection within and as part of comprehensive approaches could also be reflected in the text of the Joint Action, possibly under Articles 3 and 12.
Re Article 1 (definition of temporary protection regime):
UNHCR regards temporary protection as a flexible, practical tool to provide international protection to persons who need it in situations of large-scale influx, noting that it can respond to urgent protection needs while favouring eventual safe return as the most desirable and feasible solution. Temporary protection provides a means of alleviating the burden an the reception capacity of States, and avoids imposing burden on overloaded asylum procedures of the receiving States. It has, however, always been approached as an exceptional emergency measure, which particular character should be specifically made a part of the definition of a temporary protection regime.
Re Article 1 (definition of beneficiaries: "persons in need of international protection"):
UNHCR would recommend that the Explanatory Commentary on Article 1 be integrated into the text concerning the definition of beneficiaries. In particular, it is important that the definition clarifies explicitly that designation as a beneficiary of temporary protection is without prejudice to qualifying as a refugee under the 1951 Convention.2
Re Article 1 (definition of mass influx):
The definition of mass influx is not entirely clear. This definition not only refers to a "significant number of arrivals" but also to a "strong probability that such a situation may soon arise". In UNHCR's view, the definition should make it clear that mass influx refers only to a significant number of arrivals, not potential arrivals, of persons in need of international protection from a specific country or region (for instance those fleeing ex-Yugoslavia). The influx should be of such a size that determining refugee claims in an individual procedure is obviously impractical. A mere probability of mass arrivals should not be sufficient grounds for declaring a temporary protection regime. The rationale of temporary protection is as an emergency response to a situation which has already manifested itself. The text of the provision should specify that mass influx refers to a significant number of arrivals en masse within the Union of persons from a specific country or region who claim to be in need of international protection, and for whom, due to their numbers, individual status determination is impractical.
Re Article 2 (2) (non-discrimination):
To bring the non-discrimination provision more in line with applicable international human rights law3, the following amendment to the paragraph could be considered: "The Member States shall apply the provisions of the present joint action without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
Re Article 3 (activating of temporary protection):
Article 3 describes the procedure which activates temporary protection. For temporary protection to work effectively, however, other measures have to be introduced to complement this procedure. There needs, for example, to be a lifting of all entry and admission barriers (visa restrictions, suspension of the safe third country concept etc.) for the designated beneficiaries of temporary protection to ensure that they have secured. access to safety and benefit from protection against non-refoulement, as well as from a basic standard of treatment.
UNHCR therefore recommends that the activating of temporary protection should be accompanied by the requirement of common entry and admission policies for those in need of protection within a temporary protection regime. Furthermore, it should be clarified that persons from the particular country or region concerned who are already in the host country and are unable to return should be allowed to remain, without prejudice to a more favourable legal status which they may enjoy.
The reference to "taking into consideration whether adequate protection can be found in the region of origin" is unclear. It appears to introduce an additional criterion for the activation of temporary protection, which may undermine the intent of putting into place a co-ordinated response to situations of mass influx in a spirit of responsibility-sharing. In UNHCR's experience, the concept of "reception in the region" has not proven to be a useful tool in situations of large-scale influx. UNHCR suggests that this criterion be deleted.
Re Article 4 (prolongation and long-term protection measures):
The relationship between Article 4 and Articles 10 and 13 should be made clearer. Since the policy proposed in the Joint Action is the suspension of asylum procedures (until the ending of temporary protection or the lapse of five years), long-term protection measures and related decisions should be integrated into the Article 4 procedure, thus leading to a third option under Article 4, namely the possibility of lawful permanent residence after an extended period of time, which should not be more than three years.
A revision of the decision to apply temporary protection may also involve a partial or complete redefinition of the categories of beneficiaries, as outlined in para 16 of the Explanatory Memorandum. While the need for a flexible handling of temporary protection is acknowledged, a partial or complete redefinition might in effect lead to a prolonged denial of access of refugees to Convention based asylum procedures. This should be avoided.
Re Article 4 (return):
Article 4 second indent foresees the return of the persons concerned if the situation in the country of origin permits safe return under humane conditions. The concept of "safe return under humane conditions" is elaborated further in the Explanatory Memorandum.
This aspect of temporary protection is of fundamental importance. UNHCR strongly recommends that the elements which are listed in paragraph 19 of the Explanatory Memorandum be integrated into the text of Article 4, including the need for the conclusion of agreements between the parties involved.
It would, moreover, be helpful if the reference to assistance and shelter could be reformulated as follows: "existence of an adequate infrastructure to allow the return to be sustainable, that is, availability of the basic necessities of life, including food, shelter and basic sanitary and health facilities". In addition, this provision could also cover situations where return to the former habitual place of residence is not possible. In such cases, a person can only reasonably be expected to return to a part of the country where he or she would enjoy safety and dignity and could lead a reasonable existence. Such conditions would not for example exist where the repatriated individual would have to live the existence of an internally displaced person struggling for survival. Any provision to the above effect, if introduced, would obviously have to be without prejudice to more favourable terms included in peace agreements which guarantee a right to return to homes of origin.
In addition, it should be clarified in this Article that, upon the withdrawal of temporary protection, those raising valid reasons not to be returned should be allowed to have their claims assessed within the framework of established national mechanisms, including asylum procedures.
Re Article 5 (assistance to particularly affected Member States):
Temporary protection, as one component in a comprehensive approach, implies burden-sharing and international solidarity, including as regards local integration, resettlement, family reunion, assistance, where required, to the countries most directly affected. The of a provision to this effect is a positive development.
It would be useful to have explicit mention of assistance to non-EU Member States or regions which have been particularly affected by the mass influx. This could perhaps be done by including a second paragraph in this Article, stating that the Council will co-ordinate assistance to countries or regions outside the EU particularly affected by the large-scale influx.
Re Articles 6 to 9 (standards of treatment):
The standards of treatment set out in the Joint Action proposal are, overall, good. Paragraph 23 of the Explanatory Memorandum under Article 6 could, however, be misleading when it comes to the implementation of this Joint Action since it states that modalities will have to be laid down in national legislation and may differ accordingly ("... these provisions are not intended to create individual rights and are, therefore, not self-executing"). It would be useful if this aspect could be clarified in the Joint Action to ensure that Member States respect as an absolute minimum the standard of treatment set forth by the Joint Action.4
In view of considerable discrepancies between the various legal systems of EU Member States in the area of freedom of movement, UNHCR suggests that the Joint Action spell out that beneficiaries of temporary protection should not be subjected to restrictions on their movements other than those which are necessary in the interest of public health and public order.
Re Article 10 (asylum):
Since many of the persons benefiting from temporary protection may also qualify as refugees under the 1951 Convention, the practice of "freezing" applications for refugee status arguably denies to 1951 Convention refugees certain benefits to which they would be entitled under this Convention or related national legislation. However, it is recognised, as mentioned earlier, that in situations of large-scale influx it would be impossible to achieve timely adjudication of all the claims to refugee status that would be presented during the anticipated period of temporary refuge. This was the rationale for the development of temporary protection in response to the crisis in the former Yugoslavia. Nevertheless the Commission proposal has opted for suspending applications for refugee status for up to five years. In UNHCR's view, this is too long. UNHCR recommends that the suspension of access to asylum procedures be lifted after a maximum of three years in order to respect legal obligations of States with respect to refugees. It is also important, in this regard, to maintain the standard of treatment that is provided for in the Joint Action and ensure its implementation at the national level so as to prevent any further departure from Convention rights.
Re Article 12 (HCR's role):
In view of UNHCR's mandate to provide international protection to refugees, which includes a supervisory role in respect of international refugee instruments, UNHCR's responsibilities in a temporary protection regime merit further clarification. As the text stands, only Articles 4 (at the end) and 12 (1) of the Joint Action mention UNHCR. There would be value in explicit recognition of UNHCR's proper functions as regards the inception, the revision and the phasing out of a temporary protection regime, as is pointed out in para 35 of the Explanatory Memorandum. It would be useful to agree with the Commission and the Member States on an elaboration of UNHCR's role which would specifically recognise UNHCR's mandate responsibilities and provide for a consultative process involving UNHCR.
Re Article 13 (long-term protection measures):
UNHCR recommends that the text specify under Articles 13, 3 or 4 that beneficiaries of temporary protection should not categorically be excluded from national measures which provide a mechanism for adjusting temporary protected status to lawful permanent residence after some time. Article 13 could usefully clarify that temporary protection is an instrument aimed at finding solutions for persons fleeing situations of danger, including through local integration and resettlement. Therefore if return remains impossible, another solution must be found. Such a decision should ideally be taken after a maximum of three years.
Specific observations concerning the Explanatory Memorandum
Re para 2:
The Memorandum states that persons fleeing the situation in former Yugoslavia do not necessarily qualify for refugee status under the Geneva Convention. For the record, UNHCR has indicated repeatedly that many people who fled the Yugoslav conflict would probably have qualified as refugees under the 1951 Convention.
Re para 3:
It is not clear how the admission to Europe of Vietnamese boat people and Tamils from Sri Lanka relates to temporary protection. In Western Europe and for Western European States arrivals from Vietnam and from Sri Lanka did not constitute mass influxes and were not responded to through temporary protection mechanisms. It is suggested that these examples be reviewed, or at least located in this historical and geographic context.
Re para 8:
This paragraph provides a brief overview of the international legal framework applicable to beneficiaries of temporary protection. It would be desirable to add a reference to applicable international refugee law and to UNHCR's mandated protection responsibilities. Such a reference could usefully be inserted in the Preamble.
Re para 14:
The particular categories listed in this paragraph, which gives guidance on potential groups of beneficiaries of temporary protection, are in fact groups of people who would most likely qualify for refugee status under the Convention.5 As already pointed out in the general observations, there is certainly nothing in the 1951 Convention which would preclude their group recognition and conditions of stay regulated under the Convention, albeit they are oriented towards the solution of return. It would therefore be useful if the Explanatory Memorandum could provide more detailed guidelines on the possible beneficiaries of temporary protection.
Re para 16:
In view of UNHCR's mandate to provide international protection and to seek durable solutions for refugees, it would be useful if explicit reference could be made to UNHCR in this paragraph. The following formulation could be considered: "The Commission should consult with UNHCR on aspects of mutual concern".
Apart from specific points regarding various aspects of the Joint Action, UNHCR's observations relate, in essence, to the purposes of temporary protection, to its inter-linkage with the 1951 Convention and 1967 Protocol, to its duration and UNHCR's role in a temporary protection regime. UNHCR hopes that the above observations will assist the further deliberations on this important subject and looks forward to a constructive dialogue with the Commission and the Member States of the European Union on the various aspects of this proposed Joint Action concerning Temporary Protection of Displaced Persons.
1 Useful language could perhaps be taken from Article 28 of the Schengen Implementation Convention or Article 2 of the Dublin Convention, according to which the Contracting States reaffirm their obligations under the 1951 Convention, as amended by the 1967 Protocol, and their commitment to co-operate with UNHCR in the implementation of those instruments.
2 The purpose would be to make clear that there are likely to be individuals within the influx who meet the 1951 Convention definition of a refugee. This would in particular apply to the second category of designated beneficiaries ("persons who have been or who run a serious risk to be exposed to systematic or widespread human rights abuses, including those belonging to groups compelled to leave their homes by campaigns of ethnic or religious persecution").
3 See in particular Article 14 of the European Human Rights Convention and Article 2(1) of the International Covenant on Civil and Political Rights.
4 This is not least because beneficiaries of temporary protection are likely to include refugees entitled to the full status and rights of the 1951 Convention, once their refugee status has been recognized.
5 This is the case when, for instance, the explanatory note refers to: "persons who have been held in prisoner-of-war or internment camp and cannot otherwise be saved from a threat to life or limb"; "persons who are or have been under a direct threat to life or limb and whose protection in their region of origin cannot otherwise be secured"; "persons who have been subjected to sexual assault provided that there is no suitable means for assisting them in safe areas in their region of origin"; "persons who have come directly from combat zones within their borders and cannot return to their homes because of the conflict and human rights abuses".