Preliminary Position Paper
Considerations relating to the
return of Afghan nationals
who are currently outside their
country of origin, in countries of asylum
not in the immediate region
1. Introduction
1. The
vast majority of Afghans who in successive waves fled conflict, persecution,
the deterioration of law and order and effects of drought in Afghanistan over
the past 20 years have yet to return home. The majority is found in countries
immediately neighbouring Afghanistan, in particular in Iran and Pakistan while
many others have sought protection in countries outside the immediate region[1].
Many are recognised as refugees under the 1951 Geneva Convention, including
through prima facie recognition; others benefit from complementary forms of
protection, while many have been rejected, their stay merely
“tolerated” or are in the asylum-procedure pending a decision on
their asylum-claims.
2. Since
the fall of the Taliban and the establishment of the Interim Authority of
Afghanistan, the number of Afghans returning to Afghanistan from neighbouring
countries has increased. Most are returning independently and spontaneously,
knowing that the situation remains fragile and in many ways unsafe. At the same
time, however, some departures from Afghanistan into neighbouring countries,
particularly Pakistan, are still taking place, in particular and increasingly
of Afghans belonging to Pashtun minority communities of Northern Afghanistan.
This clearly indicates that the situation in Afghanistan remains complex and
continues to require a prudent approach with regard to questions of return. A
careful assessment on an individual basis of cases of Afghans in countries of
asylum, either enjoying a protection status short of recognition as refugees or
presently without any formal protection status, both with regard to their
possible continued need for protection as well as with regard to conditions of
safety in their country of origin is therefore considered necessary.
3. UNHCR
remains committed to assisting states to craft programs for the voluntary
return of Afghan asylum-seekers and refugees in safety and with dignity, both
from neighbouring and from non-neighbouring countries of asylum[2].
Voluntary repatriation and reintegration of returnees remain not only the
preferred durable solution for Afghan refugees but a major element in and
contribution to the process of peace building, recovery and rehabilitation in
Afghanistan. The repatriation of Afghans who have been accorded Convention
refugee status, if being pursued, has to be undertaken in accordance with
established principles and practices governing voluntary repatriation or, as
appropriate, cessation of status. Similarly, the withdrawal of complementary
forms of protection, formally granted to Afghans should be guided by the
principles of voluntary repatriation and preferably also of cessation. The
situation of Afghan asylum-seekers awaiting decisions on their claims and of
Afghans not enjoying any form of international protection, who are or might be
subject to deportation or expulsion, needs also to be carefully addressed.
2. Considerations which
might serve as the framework for return programs
a)
General
4. The
overthrow of the Taliban regime, the establishment of an Interim Authority and
the gradual deployment of an international security assistance force in Kabul
city and surrounding areas, paved the way for a significant improvement in the
situation for Afghans, particularly in urban centres, where the previous
situation of systematic discrimination by the Taliban regime no longer
prevails. In other parts of Afghanistan, however, the security situation has
not improved, but deteriorated and pockets of instability remain or re-emerge,
often as a result of unsettled power-sharing arrangements.
5. With
regard to decisions on return, the following considerations need to be taken
into account: Afghanistan is at the very early stages of a phased political
process envisaged by the Bonn Agreement and in a situation still characterised
by circumstances such as continuing military action against terrorism, a very
precarious security situation, factionalism, a drought, an overall precarious
humanitarian situation, food insecurity, the large presence of mines and UXOs,
and harsh winter conditions.
6. In
these circumstances, many Afghans, in particular those fleeing persecution and
discrimination by the Taliban after 1994 and those fleeing direct or indirect
effects of civil war, remaining in asylum countries, may no longer have
immediate protection needs. Provided there are no other obstacles, they will
hopefully be able to return home in safety, particularly following the
establishment by the Emergency Loya Jirga of a new transitional
authority to take over from the current interim administration on 22 June 2002.
7. The
people of Afghanistan and the international community face a major challenge to
rebuild a nation that has endured long years of conflict, the effects of which
have been compounded recently by three consecutive years of severe drought. The
Interim Administration has started the formidable task of reconciliation and
recovery of Afghanistan, including the response to urgent humanitarian needs,
the re-establishment of civil administration, of resuscitating the economy,
rehabilitating infrastructure, and providing basic social services. Efforts to
establish effective policing, in particular in the cities, and a functioning
and independent judiciary have just begun. The deployment of an international
security assistance force of about 4,000 initially British lead troops to
assist the Interim Administration in the provision of much needed security
remains, at present, limited to Kabul city and surrounding areas only with no
early prospects that it would be substantially expanded for deployment in other
parts of the country. Despite all efforts, political, legal, judicial, policing
and administrative structures will take some time to become functional and for
the Interim Authority to assume its role throughout the country. Access to
reconstruction assistance, areas cleared of mines, income, employment, food and
basic services will continue to be problematic for some time.
8. UNHCR
agrees with the views shared by States that voluntary repatriation should be
the preferred modality of return. That return is voluntary is of course
preferable in all circumstances as it is likely to be more sustainable. UNHCR
is concerned that persons compelled to return would risk ending in a precarious
situation of internal displacement which would add to insecurity and political
instability and leave those concerned without the protective links generally
offered through extended family-, community- and tribal links. UNHCR would hope
that, within their means, host asylum states will themselves be able to make
available resources (financial and other) to the active support of return,
particularly of those qualified Afghans who may wish to return in order to
participate in the reconstruction of their country.
9. In
the light of the factors outlined above, UNHCR urges States to engage in only voluntary
return to Afghanistan, regardless of status, at least until mid year 2002.
until the establishment of a transitional authority in summer 2002. UNHCR
undertakes to review its advice regularly, depending on benchmarks such as
progress towards security and political stabilisation in Afghanistan, in
particular the establishment of a transitional authority, the promulgation and
implementation of an amnesty declaration for returnees as well as presence of
international organisations in and access throughout the country.
b) Afghans
whose claims for refugee status have not yet been determined
10. UNHCR does
not consider a complete freeze on eligibility processes to be appropriate for
Afghan asylum seekers, including for those whose claims were based mainly on
persecution by the Taliban. Pending further clarification and stabilisation of
the security situation inside Afghanistan, it is recommended that the
processing of asylum claims should continue, Afghans admitted to the
asylum-procedure and interviews undertaken, taking carefully into account the
changed situation in Afghanistan and needs, including new needs, as well as
vulnerabilities of persons in particular groups or categories, some of which
are outlined below. There should, however, be a possibility to delay the taking
of final decisions in cases where the lack of clarity in the situation in
Afghanistan warrants extra caution in this regard. It is recommended that a
review of the situation be carried out later in 2002. Meanwhile, asylum-seekers
whose claims are pending should be treated in accordance with relevant
conclusions of the Executive Committee of UNHCR’s programme, in
particular Conclusion No. 44 (XXXVII) on detention of refugees and
asylum-seekers. For those held in detention in accordance with international
standards, it is UNHCR’s hope that they will be released under
alternative arrangements, pending final status determination and/or return
becoming possible in safety.
c) Individuals
with Protection Needs
11. Notwithstanding
the positive changes and the efforts of the international community, there
remain individuals or groups of Afghans, who could face serious problems,
including physical danger, were they to return at this time. Currently
available information on Afghanistan indicates that, among others, persons of
the following profiles might be at risk of violence, harassment or
discrimination[3]:
·
Persons
at risk of persecution on political grounds by groups now in control of their
area of origin;
·
Persons
originating and returning to areas where they constitute an ethnic minority;
·
Persons
who have sympathised with or are perceived to have been associated with the
Taliban regime which came to power in Kabul in 1996;
·
Persons
associated or perceived to have been associated with the Communist,
pre-mujaheddeen regime which was overthrown in 1992, as well as others who have
campaigned for a secular state.
12. Claims
from persons who fear persecution because they belong to one of the categories
mentioned above should be carefully and individually considered in order to
ascertain the need for international protection. Given the complex, fluid and
still fragile situation in Afghanistan, all individual claims, not only those
falling in these categories will need to be considered on a case by case basis,
although a priori they may not be as compelling.
d) Vulnerable
Groups
13. UNHCR
considers that persons finding themselves in particularly vulnerable
circumstances should not be required to return but rather should be allowed to
prolong their stay on humanitarian grounds until special and co-ordinated
arrangements can be put in place, on a case by case basis, to facilitate their
safe and orderly return and appropriately receive them in Afghanistan. This
includes individuals in the following categories:
·
handicapped
and ill individuals, or families with handicapped or ill members;
·
female-headed
households and women without effective male protection in Afghanistan;
·
the
unaccompanied elderly;
·
unaccompanied
minors;
·
landless
Afghans, particularly those originating from food-insecure areas.
14. In
addition, the claims of traumatised individuals, such as victims of torture or
particularly egregious forms of violence (for example, ex-detainees, or women who may have suffered
sexual abuse), or witnesses to crimes against humanity, will require special
attention.
e) Afghans
who are seeking to be resettled
15. Resettlement
to a third country remains an appropriate protection response for a limited
number of Afghan refugees who can neither repatriate nor remain in their
current asylum countries. The need for resettlement is ascertained on a
case-by-case basis. For cases of Afghan refugees already processed and
accepted, UNHCR advocates that decisions be honoured and that departure to
resettlement countries be expedited. For other cases already in the
“pipeline”, including those submitted to a resettlement country but
for whom the decision is pending, and those processed by
UNHCR but awaiting submission, UNHCR is advocating that they be examined by
resettlement countries on the understanding that the main beneficiaries are
very vulnerable refugees such as women-at-risk, victims of torture and
violence, refugees in need of physical and legal protection and medical cases
and that UNHCR is circumspect in its submission of new cases, focussing only on
those which are particularly compelling.
f) Afghans
whose refugee claims have been properly rejected
16. UNHCR
recommends, for reasons outlined above, that the current suspension of
deportations being respected by many states be maintained until at least the
summer, when the situation will be reviewed again. A lifting of the suspension
on deportations might also warrant, in some cases, a review of the reasons for
rejection in light of the changed circumstances, should there be substantial
reasons put forward for such a review.
3. Concluding
Remarks
17. The
changed situation in Afghanistan has given rise to a number of questions
concerning the processing of claims of Afghan asylum-seekers and the return of
Afghans, including from countries not in the immediate region.
·
UNHCR
reiterates that voluntary repatriation, irrespective of the status of Afghans
in countries of asylum, remains the preferred modality of return in all
circumstances. The organisation is committed to work closely with the
authorities in Afghanistan and countries hosting Afghans and assist governments
to develop and implement programs for the voluntary return of Afghans.
·
Given
the fragile and complex situation in Afghanistan, which leaves many Afghans
exposed to risk and vulnerable, UNHCR urges States to engage in only voluntary
returns at least until mid 2002 and subject to a review of important benchmarks
of stabilisation of the security situation and the political process in
Afghanistan, in particular the establishment of a transitional authority.
·
UNHCR
encourages States to continue to process the claims of Afghan asylum-seekers
and recommends that in cases where the lack of clarity of the situation
requires caution, decisions be delayed.
·
Similarly,
UNHCR recommends that resettlement procedures for Afghan refugees continue to
be pursued without delay.
·
UNHCR
would urge that, whenever return becomes feasible, the return process for
Afghans who do not have protection needs should be phased, co-ordinated,
orderly and humane and accomplished in manageable numbers where reception
arrangements are confirmed to be in place5.
UNHCR Geneva
13 February 2002