UNHCR Global Consultations on International Protection

Track 3, Theme 1:

Protection of Refugees in Mass Influx Situations

 

NGO Statement on Overall Protection Framework

8 March 2001

 

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.