This statement is made by Dale Buscher, as the NGO
contribution to the debate. It does not pretend to represent the views of all,
or even the majority of NGOs. As the EXCOM format has been chosen for the
Global Consultations, NGO in-put is limited and we do not feel obliged by this
process to try and present a monolithic view on complex and important refugee
protection issues. We do. However,
welcome the spirit and attempt to make this process and interactive dialogue
and look forward to continuing the dialogue with both UNHCR and States.
The concept of mass influx brings to mind the situation in
Guinea today, where half a million refugees have fled the conflicts in Sierra
Leone and Liberia. It brings to mind the situation in the Great Lakes in 1994
when 1.5 million refugees fled from Rwanda in a matter of days and it brings to
mind the 2.5 million Afghan refugees in neighbouring Pakistan and Iran.
We need to be clear what we mean by a ‘mass
influx’ of refugees. The concept of a mass influx should be tied to the
capacity of a country to deal with refugees and the resources at its
disposal.
In most situations of mass influx, States have used the
1951 refugee Convention and, where appropriate, the 1969 OAU Convention
flexibly and granted refugees prima facie refugee status on a group basis. We regret that
some states, particularly those in Western Europe, do not always take advantage
of the flexible mechanisms of the Convention. It is worth reiterating that
Convention does not always require individual processing and does not
necessarily accord a permanent status.
We support UNHCR’s call for more effort to
implement durable solutions when refugee situations become protracted. The
right of all refugees to return to their home countries must be upheld.
However, it is unacceptable in situations where return is unlikely in the near
future, such as Afghans in Pakistan and Iran, the Burmese in Thailand and
Burundians in Tanzania, for refugees to remain in limbo. In this context, we
urge states to adopt a more flexible approach to durable solution options,
including wider access to resettlement.
We urge states to provide additional support and resources
to countries hosting large refugee populations. Responses to protracted mass
influx situations should not be considered in isolation, but as part of an
integrated aid and development package.
Such support should not be conditional, as some Western states would
wish, on readmission agreements and measures to stop refugees fleeing their
region of origin. Neither do we
support proposals to establish transit camps or safety zones in refugees
countries of origin and note previous such attempts as Srebrenica in Bosnia
– Herzegovina. The
fundamental right of any individual to leave their country and seek asylum must
be upheld.
The UNHCR paper also discusses the concept of
“Temporary” Protection. We are concerned about the concept
suggested by the words Temporary Protection. The need for protection is on-going, whether it is accorded
in the country, or countries, of asylum, or through the modalities of
resettlement, local integration and return.
In many countries, notably in Western Europe, Temporary
Protection is used as a lesser form of status and not in situations of genuine
mass influx into those countries. It should be used as an administrative policy
and only in exceptional circumstances. The key requirements for Temporary Protection are that
individual determination is not immediately practicable, because national procedures would
be overwhelmed by the sudden nature of the influx, and the application of
temporary protection will enhance admission to the territory. However,
Temporary Protection has been applied when these conditions did not exist.
When it is applied, persons under Temporary Protection
should have access to individual refugee determination procedures as soon as
it is practicable,
and certainly prior to return.
The right to non-refoulement applies to all people under Temporary
Protection. However, the concept
of "protection" goes beyond the mere suspension of deportation. Basic
human rights must be granted to everyone. Furthermore, it must be taken into
consideration that many persons granted temporary protection may actually be
refugees under the 1951 Refugee Convention. As such, they are entitled to the
full enjoyment of the minimum guarantees contained in Articles 3-34 of that
Convention.
Such rights include: a right to family unity, a right to
education, a right to receive social assistance and access to employment, basic
health care, the provision of identity documents and, as far as practicable,
the freedom of movement.
The return of all refugees should not take place unless:
- each person has had access to a refugee determination
procedure, and
- the conditions in the country of origin genuinely permit
return in safety and dignity, including access to the means of livelihood.
UNHCR should play a central role in indicating the viability of safe and
dignified return, and in co-ordinating its orderly implementation.
- We make specific note of the inherent dangers of
repatriating former child combatants because of the possibilities of
re-mobilization as referenced in Article 38.2 of the Convention on the Rights
of the Child and paragraph 15 of UN Security Council Resolution 1261.
To conclude, Temporary Protection should be used only in
the most exceptional circumstances. We hope that States will make use of the
Global Consultations to reaffirm their commitment to the 1951 Convention in its
entirety and will apply it flexibly and generously - particularly in situations
of mass influx.