Note on follow-up to the earlier Conclusion of the Executive Committee on Travel Documents for Refugees

EC/SCP/48

Introduction

1. The subject of travel documents for refugees was considered by the Sub-Committee of the Whole on International Protection at its third meeting in 1978. Discussions were conducted on the basis of a Note on Travel Documents for Refugees (EC/SCP/10) submitted to the Sub-Committee by the High Commissioner which set out the various issues concerning travel documents in the light of relevant provisions of the 1951 Convention relating to the Status of Refugees, i.e. Article 28, the Schedule and the Annex. Following consideration of the subject by the Sub-Committee, the Executive Committee, at its twenty-ninth session, adopted Conclusion No. 13 (XXIX) on Travel Documents for Refugees.

2. The Office has continued to follow-up on the question of the issue of travel documents to refugees. Convention Travel Documents (CTDs) are now regularly issued by most of the 102 States parties to the 1951 UN Refugee Convention and/or the 1967 Protocol and are also widely recognized by these States as well as by States which are not parties. CTDs are, moreover, generally issued in full conformity with the provisions of Article 28, the Schedule and the Annex of the 1951 UN Convention and with Executive Committee Conclusion No. 13. The texts of these provisions and of Conclusion No. 13 are set out for easy reference in the Annex to this Note.

Problems facing refugees in connection with travel documents

3. The framework established by the 1951 UN Convention and the Executive Committee Conclusion No. 13 (XXIX) goes a long way towards addressing the needs of refugees with respect to the issue of travel documents. As mentioned above, these needs are generally being met by States. However, the various problems referred to in Document EC/SCP/10 continue to arise, albeit to a lesser extent than previously. The current problems are set out in the following paragraphs.

4. With respect to the issue of Convention Travel Documents, a few States parties to the 1951 Convention and/or the 1967 Protocol have not taken administrative or legislative measures to ensure the effective implementation of Article 28. Consequently, persons who have been recognized as refugees may be unable to obtain CTDs. Although some of these States issue aliens documents to refugees on a case-by-case basis or provide special certificates of identity for resettlement purposes, none of these arrangements have proved to be a suitable replacement for the CTD as such alternative documentation does not meet the full requirements of a Convention Travel Document.

5. Some States restrict the issue of CTDs to persons who have been formally determined by them to be Convention refugees under their refugee status/asylum procedures or for admission under refugee quotas. Thus persons who have been allowed to remain in the country under "humanitarian" programmes or who have been admitted under non-refugee quotas are not eligible for CTDs, even though they may, in fact, fulfil the criteria for refugee status. These persons are normally granted certificates of identity or other aliens travel documents which have the same disadvantages as those referred to in the preceding paragraph.

6. In some States, the absence of a refugee status determination procedure has made it difficult to identify persons as refugees and hence also persons who are entitled to be issued with CTDs. In other States, where such procedures exist but where there are very prolonged, CTDs can only be issued after considerable delay. The establishment of appropriate procedures for the determination of refugee status and their rapid functioning would also have obvious advantages for the issuance of CTDs.

7. As regards persons who have already been determined to be refugees, it is of course desirable that their application for a CTD be processed with the least possible delay, a practice which is usually followed. In certain countries, however, applications can take from six to twelve months to process. Such protracted periods lead to obvious hardship for refugees and may delay resettlement and lead to loss of educational or employment opportunities.

8. Concerning the geographical validity of Convention Travel Documents, the vast majority of States, in accordance with paragraph 4 of the Schedule, endorse the CTD as valid for all countries with the exception of the country of origin. A few States, however, restrict the geographical validity of CTDs to certain named countries, usually for political or security reasons.

9. The majority of States issue CTDs with a period of validity of two years. This has been found to be preferable as a shorter period inevitably involves inconvenience for the holder as well as considerable administrative costs for the issuing authorities and/or their diplomatic or consular representatives abroad. In a very limited number of cases, States issue CTDs with a period of validity of less than the one or two years required by paragraph 5 of the Schedule.

10. The questions of the return clause and re-admission to the issuing country continue to give rise to problems. The return clause is contained in the travel document and specifies the period within which the holder is authorized to return to the issuing country. In order to meet the conditions of the Convention and to facilitate the obtaining of visas for short visits, education and resettlement, the period specified normally coincides with the validity of the Convention Travel Document. According to paragraph 13 of the Schedule, contracting States are required to re-admit the holder of a travel document to their country at any time during the period of its validity. In exceptional cases, or where the refugee's stay is authorized for a specific period, Contracting States may limit the period during which the refugee may return to a period of not loss than three months. The term "exceptional cases" has not been defined but given the general intent of the Convention's provisions concerning travel documents, the term should be restrictively interpreted.

11. A few States issue CTDs with no return clause at all; some issue CTDs with a return clause of only three months even though there do not appear to be any exceptional reasons for restricting the validity of the return clause to a period of less than that of the travel document itself. Other States, while providing a return clause, do not permit the holder to re-enter the country within the specified period, even though he/she has not established lawful residence in another country. Such restrictions on the validity of the return clause or refusal of readmission can seriously reduce the value of the travel document by discouraging other States from granting visas and could even have wider consequences, e.g. jeopardizing educational schemes for refugees.

12. The renewal or extension of Convention Travel Documents by diplomatic or consular authorities normally causes no problems. Such renewals or extensions are often granted for the maximum period of six months set out in sub-paragraph 6(2) of the Schedule; some Contracting States authorize extensions by their diplomatic or consular authorities for longer periods. Alternatively, arrangements have been made whereby CTDs can be transmitted by diplomatic or consular authorities for renewal or extension, without the refugee having to return to the issuing country. A number of States, however, have not empowered their diplomatic or consular authorities, pursuant to sub-paragraph 6(2) of the Schedule, to renew and extend CTDs or made other suitable arrangements. This has led to some very long delays in obtaining renewals or extensions from the issuing authorities with resulting hardship for the refugees concerned, including numerous cases of loss of employment.

13. Concerning the transfer of responsibility for the issue of Convention Travel Documents, certain problems continue to arise. The State which first issued a CTD retains responsibility for the refugee and for the renewal of the travel document until such time as this responsibility is effectively transferred to another State. According to paragraph 11 of the Schedule, the transfer takes place when a refugee has "lawfully taken up residence in the territory of another Contracting State". Most States respect this provision and issue refugees who take up lawful residence in their territory with a new CTD Some States, however, issue such refugees with an alien's passport or other type of documentation rather than a CTD. This practice is not in accordance with the requirements the Convention.

14. Because the Schedule does not define the expression "has lawfully taken up residence in the territory of another Contracting State", difficulties sometimes arise in determining when responsibility for the issue of a CTD is transferred. Such problems often occur in the case of refugees who spend a prolonged period of time in another Contracting State, e.g. for study or employment purposes.

15. In a situation where there is disagreement between two Contracting States as to whether the refugee is now "lawfully resident" in the "second" country, the problem may be resolved by application of Article 28(1) and sub-paragraph 6(3) of the Schedule, which permit the issue of CTDs by a State to refugees who are not, or are no longer, lawfully resident in its territory.

16. The difficulties resulting from different interpretations of paragraphs 6 and 11 of the Schedule have been recognized by the Executive Committee which recommended that Contracting States make appropriate arrangements, including the adoption of bilateral or multilateral agreements, concerning the transfer of responsibility (Conclusion No. 13 (XXIX), paragraph(e)). One such agreement is the European Agreement on Transfer of Responsibility for Refugees (1980) adopted within the Council of Europe. This Agreement came into force on 1 December 1980 and currently has eight parties: Denmark, Italy, the Netherlands, Norway, Portugal, Sweden, Switzerland and the United Kingdom. The basic principle in the Agreement is that responsibility is considered to be transferred on the expiry of a period of two years of actual and continuous stay in the second State with the agreement of its authorities, or earlier if the second State has permitted the refugee to remain in its territory either on a permanent basis or for a period exceeding the validity of the travel document (Article 2). Stays authorized solely for the purpose of studies, training, or medical care are not taken into account. Other agreements of this type - bilateral or multilateral - also exist between certain European States.

17. Needless to say, arrangements such as the 1980 Council of Europe Agreement are beneficial in avoiding situations in which the responsibility for the issue of CTDs by Contracting States is unclear.

18. The vast majority of Contracting States recognize the validity of documents issued in accordance with the provisions of Article 28 of the Convention for visa and admission purposes, and as evidence of the holder's refugee status. There have nevertheless been cases where the special character of the CTD has not been recognized. UNHCR has brought these cases to the attention of the appropriate authorities. The CTD is also, as mentioned above, widely recognized by States which are not parties to the 1951 UN Refugee Convention.

19. A refugee who has a CTD will normally need a visa for travel purposes, not only to take up employment or for studies but also for short visits or transit. Despite the various provisions in the Schedule regarding visas (paragraphs 8-10), there have been a number of instances in which refugees have encountered difficulties in obtaining visas on their Convention Travel documents. The difficulties generally relate to the practice of the issuing country concerning the return clause and/or readmission. UNHCR attempts to resolve these problems in discussions with the parties concerned.

20. Refugees sometimes need a visa for travel to another country even though the nationals of their country of residence may benefit - for similar travel- from special arrangements dispensing with the visa requirement. In this connection, the Executive Committee expressed the hope that refugees would benefit from bilateral and multilateral arrangements concluded with a view to facilitating travel by the nationals of Contracting States, e.g. as regards the simplification of visa formalities or the abolition of visa fees. A number of bilateral agreements exist which exempt refugees from the visa requirement. In addition, the European Agreement on the Abolition of Visas for Refugees of 20 April 1959 was adopted within the framework of the Council of Europe. The Agreement, inter alia, exempts refugees from the visa requirement for visits of not more than three months (otherwise than for taking up employment). The Agreement only applies to refugee holders of CTDs issued by States parties to it. The adoption of such measures is an important step in ensuring that refugees also benefit from arrangements between States for exempting their nationals from the visa requirement. Since the adoption of the Executive Committee Conclusion No. 13, two further members of the Council of Europe have become parties to the Agreement, bringing the total to sixteen States; one party has, however, recently suspended its application.

21. As many of the world's refugees reside in countries which are not signatories to either the 1951 UN Convention or the 1967 Protocol, they face special problems with regard to travel documents. The Executive Committee, in addressing such problems, expressed the hope that States not parties to the instruments would issue to refugees lawfully residing in their territory appropriate travel documents under conditions as similar as possible to those attaching to the 1951 Convention Travel Documents (Conclusion No. 13, paragraph (g)). It is gratifying to note that a number of these States provide refugees with such alternative documentation. In some cases, however, the travel documents issued to refugees are not as advantageous as CTDs, often lacking return clauses and having limited geographical and temporal validity. In other instances, some governments have refused to issue any travel document to refugees, thereby causing extreme hardship to the refugees involved.

UNHCR assistance with respect to travel documents

22. In order to assist States parties to the 1951 UN Convention and/or 1967 Protocol, particularly those in the developing world, UNHCR has printed and is able to provide to Governments at their request, Convention Travel Documents. These documents conform to the model prescribed by the Convention and are available in eight versions (English-French; Swahili-English; Arabic-English-French; French-English; Rwandese-French-English; Portuguese-French-English; Spanish-French-English; Arabic-French). The latest series of documents incorporate various technical measures aimed at deterring forgery, imitation or other misuse of Convention Travel Documents.

23. UNHCR is also willing to provide advice to States which are not parties to the international refugee instruments concerning the issue of travel documents to persons of concern to the Office, including the type and quality of document to be issued, and the conditions applicable thereto.

Conclusions

24. The provisions of Article 28 of the 1951 UN Refugee Convention and the Schedule and Annex to the last-mentioned instrument, together with Conclusion No. 13 adopted by the Executive Committee at its twenty-ninth session, provide an adequate framework for the issue of travel documents to refugees and the guidelines which they contain are generally followed by States.

25. Travel documents still cause some problems due to the fact that:

(a) certain Contracting States do not issue CTDs to some or all refugees lawfully staying in their territory;

(b) procedures for issuing CTDs are sometimes very lengthy;

(c) in certain cases, CTDs have restricted geographical and/or temporal validity;

(d) some travel documents have not been issued with a sufficiently long return clause or refugees have not been permitted to re-enter the issuing country during the validity of the travel document;

(e) refugees have, in some cases, encountered difficulties in securing the renewal of their travel documents by, or through, the diplomatic or consular representatives of the issuing State;

(f) the question of the transfer of responsibility for the issue of travel documents has not been generally resolved;

(g) refugees have, in some cases, been unable to obtain visas on their CTDs and do not benefit from exemptions from the visa requirement made available to nationals.

(h) the Convention Travel Document, in exceptional cases, is not recognized for visa and admission purposes;

(i) in the case of States not parties to the 1951 UN Refugee Convention or the 1967 Protocol, refugees have sometimes not been issued with a travel document equivalent to that provided for in these instruments.

26. It is believed that these problems are in many cases due to the absence of national measures geared towards ensuring the full and effective implementation of the existing guidelines as mentioned in paragraph 24 above. This points to the need for the adoption of such legislative or administrative measures, including clear instructions to national authorities competent to issue, renew and extend travel documents and to grant visas to holders of CTDs UNHCR is willing to provide any advice and technical assistance that may be desired by Governments with respect to the issue of travel documents to refugees.

ANNEX I - PROVISIONS OF THE 1951 UN CONVENTION CONCERNING TRAVEL DOCUMENTS EXECUTIVE COMMITTEE CONCLUSION NO. 13 (XXIX) ON TRAVEL DOCUMENTS

(a) 1951 Refugee Convention

1. Article 28 of the 1951 Convention provides that:

"1. The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such documents. The Contracting States may, issue such a travel document to any other refugee in their territory; they shall in particular give sympathetic consideration to the issue of such a travel document to refugees in their territory who are unable to obtain a travel document from the country of their lawful residence.

2. Travel documents issued to refugees under previous international agreements by parties thereto shall be recognized and treated by the Contracting States in the same way as if they had been issued pursuant to this article."

2. An obligation to issue travel documents in accordance with this article is also assumed by States upon becoming parties to the 1967 Protocol relating to the Status of Refugees.¹

3. The Schedule to the 1951 Convention contains detailed provisions regarding the Convention Travel Documents. Its terms, binding on States parties, follow:

"Paragraph 1

1. The travel document referred to in article 28 of this Convention shall be similar to the specimen annexed hereto.

2. The document shall be made out in at least two languages, one of which shall be English or French.

Paragraph 2

Subject to the regulations obtaining in the country of issue, children may be included in the travel document of a parent or, in exceptional circumstances, of another adult refugee.

Paragraph 3

The fees charged for issue of the document shall not exceed the lowest scale of charges for national passports.

Paragraph 4

Save in special or exceptional cases, the document shall be made valid for the largest possible number of countries,

Paragraph 5

The document shall have a validity of either one or two years, at the discretion of the issuing authority.

Paragraph 6

1. The renewal or extension of the validity of the document is a matter for the authority which issued it, so long as the holder has not established lawful residence in another territory and resides lawfully in the territory of the said authority. The issue of a new document is, under the same conditions, a matter for the authority which issued the former document.

2. Diplomatic or consular authorities, specially authorized for the purpose, shall be empowered to extend, for a period not exceeding six months, the validity of travel documents issued by their Governments.

3. The Contracting States shall give sympathetic consideration to renewing or extending the validity of travel documents or issuing new documents to refugees no longer lawfully resident in their territory who are unable to obtain a travel document from the country of their lawful residence.

Paragraph 7

The Contracting States shall recognize the validity of the documents issued in accordance with the provisions of article 28 of this Convention.

Paragraph 8

The competent authorities of the country to which the refugee desires to proceed shall, if they are prepared to admit him and if a visa is required, affix a visa on the document of which he is the holder.

Paragraph 9

1. The Contracting States undertake to issue transit visas to refugees who have obtained visas for a territory of final destination.

2. The issue of such visas may be refused on grounds which would justify refusal of a visa to any alien.

Paragraph 10

The fees for the issue of exit, entry or transit visas shall not exceed the lowest scale of charges for visas on foreign passports.

Paragraph 11

When a refugee has lawfully taken up residence in the territory of another Contracting State, the responsibility for the issue of a new document, under the terms and conditions of article 28, shall be that of the competent authority of that territory, to which the refugees shall be entitled to apply.

Paragraph 12

The authority issuing a new document shall withdraw the old document and shall return it to the country of issue, if it is stated in the document that. it should be so returned; otherwise it shall withdraw and cancel the document.

Paragraph 13

1. Each Contracting States undertakes that the holder of a travel document issued by it in accordance with article 28 of this Convention shall be readmitted to its territory at any time during the period of its validity.

2. Subject to the provisions of the preceding sub-paragraph, a Contracting State may require the holder of the document to comply with such formalities as may be prescribed in regard to exit from or return to its territory.

3. The Contracting States reserve the right, in exceptional cases, or in cases where the refugee's stay is authorized for a specific period, when issuing the document, to limit the period during which the refugee may return to a period of not less than three months.

Paragraph 14

Subject only to the terms of paragraph 13, the provisions of this Schedule in no way affect the laws and regulations governing the conditions of admission to, transit through, residence and establishment in, and departure from, the territories of the Contracting States.

Paragraph 15

Neither the issue of the document nor the entries made thereon determine or affect the status of the holder, particularly as regards nationality.

Paragraph 16

The issue of the document does not in any way entitle the holder to the protection of the diplomatic or consular authorities of the country of issue, and does not confer on these authorities a right of protection."

4. The Annex to the 1951 Convention, which is not reproduced here, contains a specimen travel document.

(b) Executive Committee Conclusion No. 13 (XXIX) on Travel Documents

5. The Executive Committee, in Conclusion No. 13 (XXIX) on Travel Documents:

"(a) Reaffirmed the importance of the issue of travel documents to refugees for temporary travel outside their country of residence and for resettlement in other countries;

(b) Urged all States parties to the 1951 Convention and/or the 1967 Protocol to issue to all refugees, lawfully staying in their territory and who wish to travel, travel documents as provided for in the 1951 Convention (article 28, schedule and annex);

(c) Recommended that such Convention Travel Documents should have a wide validity, both geographically and in time, and should contain - as provided for in paragraph 13 of the schedule - a return clause with the same period of validity, in the absence of very special circumstances, as that of the travel document itself;

(d) Recommended that in order to avoid unnecessary hardship a refugee requesting an extension of validity or renewal of his Convention Travel Document should not be required to return to the issuing country for that purpose and should be enabled to secure such extension of validity or renewal of the Convention Travel Document, also for periods beyond six months, by or through the diplomatic or consular representatives of the issuing state;

(e) Recommended that, with a view to avoiding divergent interpretations of paragraphs 6 and 11 of the schedule and the resulting hardships to refugees, Contracting States make appropriate arrangements, including the adoption of bilateral or multilateral agreements, concerning the transfer of responsibility for the issue of Convention Travel Document;

(f) Expressed the hope that bilateral and multilateral arrangements, concluded with a view to facilitating travel by their nationals, e.g. as regards the simplification of visa fees, be extended by Contracting States also to refugees lawfully residing in their respective territory;

(g) Expressed the hope that States which are not parties to the 1951 Convention or the 1967 Protocol will issue to refugees lawfully residing in their territory appropriate travel documents under conditions as similar as possible to those attaching to the issue of 1951 Convention Travel Documents;

(h) Expressed appreciation for the Note on Travel Documents for Refugees (EC/SCP/10) submitted by the High Commissioner, was in general agreement with its contents and recommended that, in an appropriate form and together with the above conclusions, it be communicated to Governments by the High Commissioner in support of his efforts to promote the issue of travel documents to refugees in accordance with internationally accepted standards."

1 Article 1.1 of the Protocol provides: "The States parties to the present Protocol undertaken to apply article 2 to 34 inclusive of the Convention to refugees as hereinafter defined".