9 and 10 December 2002
organised by the United
Nations High Commissioner for Refugees
and the Migration Policy
Institute
hosted by the Luso-American
Foundation for Development
Summary
Conclusions on the Concept of “Effective Protection” in the Context of
Secondary Movements of Refugees and Asylum-Seekers
1. The
December 2002
2. The
roundtable is in direct follow-up of the “Agenda for Protection”
(A/AC.96/965/Add.1 of
3. The
objective of this roundtable was to identify the principles, grounded in law,
around which policy parameters could be built to address issues concerning the
secondary movement of asylum-seekers and refugees and which would have a
practical value for decision- and policy-makers. The principles should be
practical and holistic, that is, they should take account of physical, material
and legal safety considerations.
4. The
following Summary Conclusions do not represent the individual views of each
participant or necessarily of UNHCR, but reflect broadly the understandings
emerging from the discussion.
Overall
context
5. The
rationale behind examining “effective protection” in the context of the return
of asylum-seekers and refugees to third countries is fourfold:
·
to enhance international
co-operation to share the burdens and responsibilities of admitting and hosting
refugees;
·
to strengthen protection
capacities in host countries;
·
to foster international
solidarity and support for generating solutions;
·
to address issues related to
“irregular movement”, including people smuggling, people trafficking, multiple
applications and “orbit” cases.
6. The
causes of secondary movements are manifold and include lack of durable
solutions; limited capacity to host refugees and provide effective protection
for protracted periods of time; as well as lack of access to legal migration
opportunities. It was recommended that such causes required further careful
study in relation to specific situations to provide a clearer understanding on
which to build comprehensive strategies to reduce such movements.
7.
Return to a third country of asylum is only one element in an interrelated
comprehensive framework, aimed at reducing (the need for) secondary
movement. Other elements of such an
integrated framework were identified as including: addressing root causes of
forced displacement; strengthening protection capacities in host countries;
enabling access to durable solutions, including local integration and enhanced
resettlement; concluding responsibility-sharing agreements; opening up more
channels for regular entry in the context of resettlement, labour migration and, importantly, family
reunification; as well as criminal law enforcement measures.
8.
Operationalising international solidarity and international co-operation to
share the burdens and responsibilities of hosting refugees is crucial to
effecting the return of asylum-seekers and refugees to third countries under
certain circumstances. Hosting large numbers of refugees is a major
contribution by developing countries, which should be properly recognised when
considering the removal of persons who could have sought protection there.
Framework considerations
9. While
the 1951 Convention relating to the Status of Refugees and its 1967 Protocol
constitute the core framework, other sources of rights and obligations in
international law may be relevant for informing the appreciation of whether or
not it is permissible to return an asylum-seeker or refugee to a third country.
It is important not to exclude any source of law (treaty obligations, customary
international obligations, interpretative guidance such as Executive Committee
Conclusions) and to appreciate the specific circumstances of a case. An
assessment of effective protection requires an individualised case-by-case
examination.
10. From
the point of view of identifying the elements of effective protection in the
context of return to third countries, the distinction between the so-called
“safe” third country and the country of first asylum concepts is not relevant.[1]
The distinction is, however, relevant when it comes to an appreciation of the
links between an asylum-seeker or refugee and the destination country, in which
the person is now applying for asylum, or the third country, as well as for
procedural issues in destination countries. In addition, readmission
obligations are clearer in respect of countries that have already provided
effective protection to an individual.
11.
There is no obligation under international law for a person to seek
international protection at the first effective opportunity. On the other hand,
asylum-seekers and refugees do not have an unfettered right to choose the
country that will determine their asylum claim in substance and provide asylum.
Their intentions, however, ought to be taken into account.[2]
12.
States could craft bi- or multilateral arrangements, consistent with
international refugee and human rights law standards, according to which
asylum-seekers would be encouraged and enabled to seek international protection
at the first available opportunity. This could be done by agreeing to
mechanisms and criteria to allocate responsibilities for the determination of
asylum applications and the provision of effective protection. Such
arrangements should take account of meaningful links, such as family
connections and other close ties, between an asylum-seeker and a particular
country. They should also include procedural safeguards, including for example,
a notification to the receiving country that an asylum application has not been
examined on its merits. The effectiveness of such arrangements needs careful
assessment and regular review both in terms of their operational efficiency and
their resource implications.
13.
Besides considerations of burden-sharing with countries hosting large numbers
of refugees, several participants questioned the appropriateness, from a protection
perspective, of returns outside the context of countries with equivalent asylum
systems. In this regard, the wide disparity and poor levels of protection in
many countries were noted.
14.
Family and other links between a person seeking asylum and the destination
country or the third State are important and should be given weight. The
protection of the family as the natural and fundamental group unit of society
is a widely recognised principle of human rights.
15. The following elements, while not exhaustive,
are critical factors for the appreciation of “effective protection” in the
context of return to third countries:
a) The person has no well-founded fear of
persecution in the third State on any of the 1951 Convention grounds.
b) There will be respect for fundamental
human rights in the third State in accordance with applicable international
standards, including but not limited to the following:
¨
there
is no real risk that the person would be subjected to torture or to cruel,
inhuman or degrading treatment or punishment in the third State;
¨
there
is no real risk to the life of the person in the third State;
¨
there
is no real risk that the person would be deprived of his or her liberty in the
third State without due process.
c) There is no real risk that the person
would be sent by the third State to another State in which he or she would not
receive effective protection or would be at risk of being sent from there on to
any other State where such protection would not be available.
d) While respecting data protection
principles during the notification process, the third State has explicitly
agreed to readmit the person as an asylum-seeker or, as the case may be, a
refugee.
e) While accession to international refugee
instruments and basic human rights instruments is a critical indicator, the
actual practice of States and their compliance with these instruments is key to
the assessment of the effectiveness of protection. Where the return of an
asylum-seeker to a third State is involved, accession to and compliance with
the 1951 Convention and/or 1967 Protocol are essential, unless the destination
country can demonstrate that the third State has developed a practice akin to
the 1951 Convention and/or its 1967 Protocol.
f) The third State grants the person access to
fair and efficient procedures for the determination of refugee status, which
includes – as the basis of recognition of refugee status – grounds that would
be recognised in the destination country. In cases, however, where the third
State provides prima facie
recognition of refugee status, the examination must establish that the person
can avail him- or herself of such recognition and the ensuing protection.
g) The person has access to means of
subsistence sufficient to maintain an adequate standard of living. Following
recognition as a refugee, steps are undertaken by the third State to enable the
progressive achievement of self-reliance, pending the realisation of durable
solutions.
h) The third State takes account of any
special vulnerabilities of the person concerned and maintains the privacy
interests of the person and his or her family.
i)
If
the person is recognised as a refugee, effective protection will remain
available until a durable solution can be found.
Department of
International Protection
Office of the United
Nations High Commissioner for Refugees (UNHCR)
February 2002