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Guidelines on International Protection No. 11: Prima Facie Recognition of Refugee Status (UNHCR)

Published online by Cambridge University Press:  20 January 2017

Marjoleine Zieck
Marjoleine Zieck*
Affiliation:
Amsterdam Law School, University of Amsterdam
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Extract

The United Nations High Commissioner for Refugees (UNHCR) has been charged with the task of supervising the application of international conventions for the protection of refugees. This particular task of UNHCR has never been elaborated, neither during the drafting of UNHCR’s Statute, nor at a later date. It is clear, however, that interpretation of the conventions UNHCR has to supervise is an accepted part of its task. Prompted by its Executive Committee in 1977, it first drafted a Handbook on Procedures and Criteria for Determining Refugee Status (Handbook) under the 1951 Convention Relating to the Status of Refugees (1951 Convention) and its accompanying 1967 Protocol in 1979. The inclusion of procedures in the Handbook is particularly interesting since the 1951 Convention, and the 1967 Protocol for that matter, do not regulate the determination of refugee status: “It is therefore left to each Contracting State to establish the procedure that it considers most appropriate.” The Handbook nonetheless comprises procedures for the determination of refugee status based on and induced by the observation that state practice regarding status determination varies considerably; ranging from formal procedures to informal arrangements. It is acknowledged that realizing identical procedures would be unlikely and the Handbook therefore confines itself to laying down certain basic requirements.

Type
International Legal Materials
Information
International Legal Materials , Volume 54 , Issue 6 , December 2015 , pp. 1115 - 1129
Copyright
Copyright © American Society of International Law 2015

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References

* This text was reproduced and reformatted from the text available at the United Nations High Commissioner for Refugees website (visited November 30, 2015), http://www.unhcr.org/558a62299.html.

1 G.A. Res. 428(V), annex, Statute of the United Nations High Commissioner for Refugees [UNHCR], ¶ 8(a) (Dec. 10, 1950).

2 UNHCR, Add. to the Rep. on the Work of Its Twenty-Eighth Session, Conclusion No. 8 (XXVII), ¶ 53(6)(g), Supp. No. 12A (A/32/12/Add.1) (1977).

3 UNHCR, Handbook and Guidelines on Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, U.N. Doc. HCR/IP/4/ENG/REV.3 (2011, Reissue).

4 Id. ¶ 189.

5 Respectively, see UNHCR, Guidelines on International Protection No. 2, U.N. Doc. HCR/GIP/02/02 (2002); UNHCR, Guidelines on International Protection No. 6, U.N. Doc. HRC/GIP/04/06 (2004); and UNHCR, Guidelines on International Protection No. 10, U.N. Doc. HRC/GIP/13/10/Corr.1 (2014).

6 Respectively, see Guidelines on International Protection No. 3, U.N. Doc. HCR/GIP/03/03 (2003); and Guidelines on International Protection No. 5, U.N. Doc. HCR/GIP/03/05 (2003).

7 See Convention Relating to the Status of Refugees art. 35(1), July 28, 1951, 189 U.N.T.S. 137 [hereinafter 1951 Convention]; Protocol Relating to the Status of Refugees art. II(1), Oct. 4, 1967, 606 U.N.T.S. 267 [1967 Protocol].

8 Guidelines on International Protection No. 11, U.N. Doc. HCR/GIP/15/11, ¶ 38 (2015) [hereinafter Guidelines No. 11].

9 Id. at 2 n.3.

10 Id. ¶ 40.

11 UNHCR, Global Consultations on International Protection/Third Track: Protection of Refugees in Mass Influx Situations: Overall Protection Framework, U.N. Doc. EC/GC/01/4, ¶ 7 (Feb. 19, 2001) [hereinafter Protection of Refugees in Mass Influx Situations].

12 UNHCR Executive Comm. of the High Commissioner’s Programme, Global Consultation on International Protection: Report of the Meetings Within the Framework of the Standing Committee (Third Track), U.N. Doc. A/AC.96/961, ¶ 9 (June 27, 2002).

13 See Protection of Refugees in Mass Influx Situations, supra note 11, ¶ 6.

14 Years later, the question as to applicable standards of treatment for “prima facie refugees” was identified as one in need of further clarification. See UNHCR Executive Committee of the High Commissioner’s Programme, International Cooperation and Burden and Responsibility Sharing in Mass Influx Situations, Standing Committee, Thirty-Third Meeting, U.N. Doc. EC/55/SC/CRP.14, ¶ 7 (June 7, 2005). The Assistant High Commissioner for Refugees (Protection) observed in 2009 that the rights which have accompanied prima facie status “have usually amounted to no more and no less than the fundamental protections against irreparable harm [non refoulement being central among them] and guarantees of physical dignity and security [. . .].” Erika Feller, Assistant High Commissioner for Refugees – Protection, Statement at Monash University Prato Center, “Refugee Futures” Conference (Sept. 11, 2009), available at. http://www.unhcr.org/4ad58ba49.pdf

15 The Guidelines on Temporary Protection or Stay Arrangements, which UNHCR issued in February 2014, confirm the lesser entitlements. UNHCR, Guidelines on Temporary Protection or Stay Arrangements 2, 4–5 (2014)Google Scholar.

16 The possibility of confining the scope of the obligations to European refugees is given in Article 1B(1) (a) of the 1951 Convention. The 1967 Protocol was adopted to abolish both the temporal and optional geographical limitations of the 1951 Convention definition, save that existing declarations made on the basis of Article 1B(1)(a) of the 1951 Convention could be maintained. See, 1967 Protocol, supra note 7, art. 1(3).

17 This may seem far-fetched, but was the practice in Pakistan regarding Afghan refugees. Cf. UNHCR, Return to Afghanistan, 5 (2002)Google Scholar, available at http://www.unhcr.org/3e3f96da4.html; UNHCR, Searching for Solutions: 25 Years of UNHCR-Pakistan Cooperation on Afghan Refugees (2005)Google Scholar.

18 Guidelines No. 11, supra note 8, ¶ 6.

19 Id. ¶ 28.

20 See 1951 Convention, supra note 7, art. 1C (referring to the instruments enumerated in Articles 1A(1)); cf. Regina v. Special Adjudicator, ex parte Hoxha [2005] UKHL 19 (appeal taken from Eng. and Wales).

21 Many examples can be given, including, UNHCR, Declaration of Cessation – Timor Leste, ¶ 4 (2002); UNHCR, Applicability of the “Ceased Circumstances” Cessation Clauses to Pre-1991 Refugees from Ethiopia, ¶ 2 (1999)Google Scholar.

22 Guidelines No. 11, supra note 8, ¶ 26.

23 Id. ¶¶ 7, 26–27 (addressing the relationship with temporary protection or stay arrangements in paragraphs 26 and 27).

24 Id. ¶¶ 8, 34–35 (addressing identification and registration in paragraphs 34 and 35).

1 UNHCR, “Protection of Refugees in Mass Influx Situations: Overall Protection Framework”, 19 February 2001, EC/GC/01/4, available at: http://www.unhcr.org/3ae68f3c24.html, para. 6.

2 Ivor, C. Jackson, “The Refugee Concept in Group Situations” (Martinus, Nijhoff, 1999)Google Scholar, p. 3.

3 UNHCR data indicates that in 2012, 1,121,952 refugees were recognized on a group basis and 239,864 were recognized individually. All refugees recognized on a group basis were recognized pursuant to a prima facie approach.

4 Derived from Latin. ”A case in which there is evidence which will suffice to support the allegation made in it, and which will stand unless there is evidence to rebut the allegation”: Osborn’s Concise Law Dictionary (10th edition, Thomson Sweet & Maxwell, 2005).

5 The Oxford English Dictionary (1st edition 1933, reprinted 1978, online version, available at: http://www.oed.com/view/Entry/151264?redirectedFrom_prima_facie#eid).

6 UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, reissued December 2011, HCR/1P/4/ENG/REV.3 (hereafter “UNHCR, Handbook”), para. 44.

7 Prima facie recognition may also apply to Palestinian refugees pursuant to Article 1D of the 1951 Convention, in circumstances where the protection or assistance of UNRWA has ceased.

8 See, e.g., the extended regional refugee definitions in: Organization of African Unity (African Union), Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 September 1969 (hereafter “OAU Convention”), Art. I(2); Cartagena Declaration on Refugees, adopted at the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984 (hereafter “Cartagena Declaration”), Conclusion III(3).

9 UNHCR, “Note on the Mandate of the High Commissioner for Refugees and his Office”, October 2013, p. 3, which summarizes UNHCR’s mandate for refugees as covering “all persons outside their country of origin for reasons of feared persecution, conflict, generalized violence, or other circu mstances that have seriously disturbed public order and who, as a result, require international protection.”

10 OAU Convention, Art. 1.

11 See UNHCR, “The Cessation Clauses: Guidelines on their Application”,26April 1999, available at: http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=3c06138c4, para. 2, and UNHCR, “Guidelines on International Protection No. 3: Cessation of Refugee Status under Article 1C (5) and (6)”, 10 February 2003, HCR/GIP/03/03, available at: http://www.refworld.org/docid/3e50de6b4.html (hereafter “UNHCR, Cessation Guidelines”), para. 1.

12 See UNHCR, “Note on the Cancellation of Refugee Status”, 22 November 2004 Google Scholar, available at: http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=41a5dfd94 (hereafter “UNHCR, Note on Cancellation”), para. 1(i).

13 See UNHCR, “Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, 4 September 2003 Google Scholar, HCR/GIP/03/05, available at: http://www.unhcr.org/3f7d48514.html (hereafter “UNHCR, Article 1F Exclusion Guidelines”), para. 6.

14 Executive Committee, (hereafter “ExCom”) Conclusion No. 8 (XXVIII), 12 October 1977 on the Determination of RefugeeStatus, available at: http://www.unhcr.org/3ae68c6e4.html, para (v).

15 UNHCR, “Guidelines on the Application in Mass Influx Situations of the Exclusion Clauses of Article 1F of the 1951 Convention relating to the Status of Refugees”, 7 February 2006, available at: http://www.refworld.org/docid/43f48c0b4.html (hereafter “UNHCR, Mass Influx Exclusion Guidelines”), para. 1. “Large-scale movements” or “large-scale arrivals” are the preferred terms for these Guidelines, although it is noted that other terms are used in other Guidelines, such as “mass influx”. There is no scientific number of persons for a situation to qualify as a “large-scale movement” or “large-scale arrival.” Rather such a designation is at the discretion of the State of arrival, factoring in such matters as the capacity for registration, processing as well as assista nce to respond, also related to the speed and daily or monthly rates of arrivals.

16 Any alternative protection response is without prejudice to and should not undermine the protection regime established by the 1951 Convention or other legal instruments to which the State is a party. See II. E on temporary protection or stay arrangements.

17 See UNHCR, “Summary Conclusions on International Protection of Persons Fleeing Armed Conflict and Other Situations of Violence; Roundtable 13 and 14 September 2012, Cape Town, South Africa”, 20 December 2012, para. 6, available at: http://www.refworld.org/docid/50d32e5e2.html. In the Summary Conclusions, it was noted that some States have adopted different practices: some States have adopted the recommended sequential approach in which an assessment on the basis of the criteria of the 1951 Convention refugee definition precedes the application of one of the extended definitions; other States have adopted a “nature of flight” approach, in which the prevailing situation in the country of origin (for example, an armed conflict) would l ead to an initial application of an extended definition, rather than the 1951 Convention refugee definition; and other situations have called for a pragmatic approach, in which an extended definition is applied for reasons of efficiency and ease (para. 31).

18 See para. 5 of these Guidelines.

19 See, generally, UNHCR, “Country of Origin Information: Towards Enhanced International Cooperation”, February 2004 Google Scholar, available at: http://www.refworld.org/docid/403b2522a.html, para 14.

20 See UNHCR, “Note on the Mandate”.

21 UNHCR, “Note on the Interpretation of Article 1E of the 1951 Convention relating to the Status of Refugees”, March 2009 Google Scholar, available at: http://www.refworld.org/pdfid/49c3a3d12.pdf.

22 UNHCR, “Article 1F Exclusion Guidelines”.

23 See UNHCR, “Note on Cancellation”.

24 ExCom, “Civilian and Humanitarian Character of Asylum”, 8 October 2002 Google Scholar, Conclusion No. 94 (LIII), available at: http://www.unhcr.org/3dafdd7c4.html, para. (c)(vii) (hereafter “ExCom Conclusion No. 94”).

25 Ibid. para. (c)(iii).

26 UNHCR, “Article 1F Exclusion Guidelines”, para. 15; restated in UNHCR, “Operational Guidelines on Maintaining the Civilian and Humanitarian Character of Asylum” September 2006, available at: http://www.refworld.org/docid/452b9bca2.html, p. 33 (hereafter “UNHCR, Operational Guidelines on Maintaining the Civilian and Humanitarian Character of Asylum”).

27 UNHCR, “Operational Guidelines on Maintaining the Civilian and Humanitarian Character of Asylum”, Part 2J; UNHCR, “Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees”, 22 December 2009, HCR/GIP/09/08, available at: http://www.refworld.org/docid/4b2f4f6d2.html para. 51; UNHCR, “Guidelines on International Protection No. 10: Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees”, 3 December 2013, HCR/GIP/13/10/Corr. 1, available at: http://www.refworld. org/docid/529ee33b4.html, paras. 12, 37–41.

28 ExCom Conclusion No. 94, para. (c)(vi).

29 UNHCR, Handbook, paras. 94–96.

30 UNHCR, “Guidelines on Temporary Protection or Stay Arrangements”,February2014, available at:http://www.refworld.org/docid/52fba2404.html (hereafter “UNHCR, Guidelines on Temporary Protection or Stay Arrangements”). The Guidelines identify four situations in which temporary protection or stay arrangements may be appropriate, at para. 9: (i) large-scale arrivals of asylum-seekers or other similar humanitarian crises; (ii) complex or mixed cross-border population movements, including boat arrivals and rescue-at-sea scenarios; (iii) fluid or transitional contexts; or (iv) other exceptional and temporary conditions in the country of origin necessitating international protection and which prevent return in safety and dignity.

31 UNHCR, “Guidelines on Temporary Protection or Stay Arrangements”, paras. 3 and 8.

32 Ibid., para. 9(iii).

33 UNHCR, “Cessation Guidelines”, para 23.

34 UNHCR, “Guidelines on Exemption Procedures in respect of Cessation Declarations”, December 2011 Google Scholar, available at: http://www.refworld.org/docid/4eef5c3a2.html.

35 Executive authorities have, at times, decided to recognize refugees on a prima facie basis without issuing a formal Decision and instead have informed UNHCR of such Decision by way of a letter. While UNHCR welcomes being formally notified of the Decision to recognize refugee status on a prima facie basis, this should be in addition to the more formal procedures described in the text at paras. 30–31.

36 UNHCR, “Note on the Mandate”, pp. 3–4. See 1951 Convention, Art. 35; 1967 Protocol, Art. II, as well as Cartagena Declaration, Conclusion II(2); OAU Convention, Art. VIII(1); and Treaty on the Functioning of the European Union, 13 December. 2007, OJ C 115/47 of 9.05.2008, Art. 78 (1) per general reference to 1951 Convention; Declaration 17 of the Treaty of Amsterdam, Declaration on Article 73k of the Treaty establishing the European Community, OJ C 340/134 of 10.11.1997; EU Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ L 326/13 of 13.12.2005, Art. 21.

37 See UNHCR ExCom, “Registration of Refugees and Asylum-Seekers”, 5 October 2001 Google Scholar, Conclusion No. 91 (LII), available at: http://www.unhcr.org/3bd3e1d44.html, para. (a).

38 UNHCR, “Handbook for Registration”, September 2003 Google Scholar, available at: http://www.refworld.org/docid/3f967dc14.html, p. 21, 30, 32, 41 and 53 (hereafter “UNHCR, Handbook for Registration”): Registration is a systematic method of identifying, recording, verifying, updating and managing the information on persons with the aim of protecting, documenting and assisting them (if and when necessary). Registration is also a starting and fundamental st ep for the search of durable solutions.

39 See UNHCR, “Mass Influx Exclusion Guidelines”, paras. 51–53. See II. B of these Guidelines.

40 UNHCR, “Handbook for Registration”, p. 7.

41 See UNHCR, “Mass Influx Exclusion Guidelines”, paras. 54–55.

42 UNHCR ExCom Conclusion on the Extraterritorial Effect of Refugee Status, No. 12 (XXIX), 17 October 1978, available at: http://www.refworld.org/docid/3ae68c4447.html, para (b).

43 It may also be known as “expedited positive” processing, or similar nomenclature.

44 This evidentiary benefit was referred to as an “evidentiary shortcut” by Durieux, J.-F., “The Many Faces of “Prima Facie”: Group-Based Evidence in Refugee Status Determination” (2008) 25(2) Refuge 151 Google Scholar.

45 UNHCR, “Note on Burden and Standard of Proof in Refugee Claims”,16 December 1998 Google Scholar, available at: http://www.refworld.org/docid/3ae6b3338.html, para. 8.