Note on International Protection (Submitted by the High Commissioner)

A/AC.96/538

Introduction,

1. Since the twenty-seventh session of the Executive Committee, developments in the field of international protection have confirmed the critical importance of this basic function of UNHCR. These developments up to 31 March 1977 are described in the High Commissioner's Report to the General Assembly at its thirty-second session (document, E/5987). Significant developments after that date will be brought to the notice of the Committee at its twenty-eighth session.

2. The purpose of this Note is not to duplicate information but to emphasise the problems that are of special concern to the High Commissioner and in respect of which he would be grateful to receive the support of the Executive Committee. The High Commissioner trusts that the Sub-Committee of the Whole on International Protection will provide a valuable forum for the more detailed discussion of specific protection problems. In addition to this Note, the High Commissioner proposes to make available to the Sub-Committee appropriate documentation as a basis for its discussions.

Major areas of concern

3. The principal concerns of the High Commissioner with regard to the international protection of refugees continue to be asylum and non-refoulement. General developments in this field are described in document E/5987.

4. The Executive Committee may wish to note that asylum and non-refoulement are subjects of concern within the framework of international legal instruments or of municipal law, and not only from a general juridical point of view. Asylum and non-refoulement confront UNHCR with daily practical problems and difficulties in a number of countries throughout the world at the level of its field offices as well as at Headquarters.

5. While overall legal progress at the national and international levels is naturally desirable and remains among the primary goals of UNHCR, the High Commissioner is convinced that considerable improvement could still be obtained by the implementation in a truly humanitarian spirit of already recognised fundamental principles and rules, including contractual obligations of States under international instruments. The High Commissioner trusts that discussions that might take place in the Sub-Committee of the Whole on International Protection will contribute to a greater awareness on the part of governments of the acute and serious problems arising today through negative practices in regard to asylum and non-refoulement. He looks forward to the continued support and understanding of the Executive Committee for his efforts in this field.

6. The problem of asylum calls for a mention of the Conference of Plenipotentiaries on Territorial Asylum, which met in Geneva from 10 January to 4 February 1977. As reported in more detail in document E/5987, the matter is now before the General Assembly of the United Nations.

7. A matter intrinsically linked with the problems of asylum and non-refoulement is the determination of refugee status. On several occasions concern has been expressed in the Executive Committee about the variety and disparity of procedures utilized in various countries for the determination of refugee status. In this respect, the High Commissioner hopes that a more detailed discussion on the matter by the Sub-Committee of the Whole may facilitate a definition of adequate minimum standards for such procedures. An information document on existing eligibility procedures is being circulated separately.¹

8. The legal status of refugees under national laws and regulations and relevant administrative practices is a decisive factor in the protection of refugees in the country where they find themselves, whether on a temporary or a durable basis. This aspect of protection is linked with the implementation in municipal law of international legal instruments concerning refugees, particularly the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. However, the problem of status under municipal law exists also in those States that have not as yet become parties to the Convention and Protocol. UNHCR has traditionally devoted considerable attention to this aspect within the framework of its co-operation with governments and proposes to intensify its efforts. This is particularly urgent in countries where there has hitherto been no refugee problem of any significance and where specific provisions concerning refugees may therefore not be found in national legislation.

9. In order to meet protection problems in the very place where they arise, i.e., in each country where there is a refugee problem of some significance, the High Commissioner will continue to develop a policy aimed at the deployment of adequate numbers of staff specializing in protection matters. To assist the High Commissioner's representatives in discharging adequately and systematically their responsibilities in the field of international protection, it is proposed to strengthen field offices, wherever required, with staff members specifically entrusted with protection functions.

10. One of the most important aspects of protection work, which has attracted increasing international attention within the framework of UNHCR activities, is that of family reunion. The fact that large refugee groups have emerged during recent years in a number of countries in different continents has called for a considerable development of the family reunion activities of UNHCR. A note describing this protection activity in the present context will be found in the Annex to this document.

Other aspects of international protection

11. While the High Commissioner believes that, within the overall framework of his protection activities, priority should be given to the most critical problems of protection, which often involve the immediate well-being, if not the lives, of refugees, he is also concerned that the protection function should be strengthened and developed in fundamental areas where the immediate impact on the refugee is less conspicuous. Information has been provided in document E/5987 on such matters as international legal instruments, travel and identity documents, and naturalization.

12. With regard to international legal instruments, the High Commissioner continues to promote the accession of States to the 1951 Convention and the 1967 Protocol, as well as the withdrawal, where still maintained, of the geographical limitation (c.f. 1951 Convention, Article 1B(1)(a) and 1967 Protocol, Article 1(3)). The 1957 Agreement and the 1973 Protocol relating to Refugee Seamen, the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness continue to receive due attention. The High Commissioner also promotes the inclusion in other international legal instruments not specifically concerned with refugees of provisions designed to reflect the particular juridical status of refugees.

13. The position of refugees is obviously more adequately defined and their legal status better assured in those States that have become parties to the principal legal instruments, and where the Contracting States have undertaken to co-operate with the High Commissioner pursuant to Article 35 of the 1951 Convention and Article II of the 1967 Protocol. It should not, however, be overlooked that the protection function is exercised primarily on the basis of the Statute of UNHCR, inasmuch as it is the Statute that, together with subsequent resolutions of the General Assembly, defines the mandate entrusted to the High Commissioner by the international community.

14. In recent years new refugee problems have emerged in a large number of countries, many of which are not parties to the 1951 Convention or to the 1967 Protocol. In these circumstances the Statute of UNHCR - which is of universal scope and supports the action of UNHCR in all Member States without distinction - has acquired increasing practical importance. In more than half of the Member States of the United Nations, the Statute of UNHCR is the major international instrument enabling the High Commissioner to take action on behalf of refugees. It is also the major instrument of protection in respect of those refugees who are excluded from the application of the 1951 Convention and 1967 Protocol on account of the geographical limitation.

15. As the Executive Committee is aware, the protection function of the High Commissioner is defined in a detailed manner in paragraph 8 of the Statute. it should be emphasized that it is largely in respect of the provisions of paragraph 8 that the operative paragraph 2 of General Assembly Resolution 428 (V):

"Calls upon Governments to co-operate with the United Nations High Commissioner for Refugees in the performance of his functions concerning refugees falling under the competence of his Office ..."

16. The High Commissioner believes that his endeavours in regard to protection would be strengthened if the Executive Committee should wish to call the attention of governments that have not so far undertaken contractual obligation under the 1951 Convention and the 1967 Protocol to the provisions of Resolution 428 (V) and of the Statute of UNHCR.

17. In conclusion, the High Commissioner would again like to stress that until more States have accepted obligations under the 1951 Convention and the 1967 Protocol the immediate improvement of refugee protection could be achieved through the more effective application of existing international instruments. This will depend very largely on a liberal and humanitarian attitude by States where refugee problems arise. It depends finally on the preparedness of governments to give concrete expression for the solution of refugee problems to the generally accepted principle of international solidarity, which constitutes the mainspring of the international protection function. The High Commissioner hopes that this principle of international solidarity will ensure further progress, especially in a period when current developments give rise to justified anxiety and concern.

ANNEX: ACTIVITIES OF THE OFFICE OF THE UNITED NATIONS HIGH FOR REFUGEES IN THE FIELD OF FAMILY REUNION

Introduction

1. The circumstances in which persons leave their country of origin as refugees frequently lead to situations in which they are separated from their close family members.

2. The importance of the basic principle of family reunion has been recognized in the Universal Declaration of Human Rights, unanimously proclaimed by the United Nations General Assembly on 10 December 1948 and restated in the United Nations Covenant on Civil and Political Rights of 16 December 1966. Both these instruments recognize that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State". The importance of the reunification of dispersed families was also recently recognized by the Conference on the Reaffirmation of Development of Humanitarian Law applicable in Armed Conflicts, which met in Geneva from 17 March to 10 June 1977. According to Article 74 of Protocol I adopted by the Conference:

"The High Contracting Parties and the Parties to the conflict shall facilitate in every possible way the reunion of families dispersed as a result of armed conflicts and shall encourage in particular the work of the humanitarian organizations engaged in this task in accordance with the provisions of the Conventions and of this Protocol and in conformity with their respective security regulations."

3. Since the separation of refugee families necessarily leads to hardship and sometimes to tragic consequences, the High Commissioner in the exercise of his humanitarian functions has devoted particular attention to this problem. Its importance was also recognized by the Conference of Plenipotentiaries that adopted the 1951 Convention relating to the Status of Refugees. In its Final Act, the Conference unanimously approved the following recommendation on the subject of family unity in the case of refugees:

"THE CONFERENCE

CONSIDERING that the unity of the family, the natural and fundamental group unit of society, is an essential right of the refugee, and that such unit is constantly threatened, and

NOTING with satisfaction that, according to the official commentary of the ad hoc Committee on Statelessness and Related Problems (E/1618, p. 40) the rights granted to a refugee are extended to the members of his family,

RECOMMENDS Governments to take the necessary measures for the protection of the refugee's family, especially with a view to:

(1) Ensuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country.

(2) The protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption."

4. In seeking to promote the reunion of separated refugee families, the High Commissioner is guided by the Statute of his Office² which entrusts him inter alia with the function of facilitating the assimilation of refugees within new national communities. It is, of course, clear that the psychological and social consequences of prolonged separation from close family members may indeed constitute serious obstacles to a refugee's assimilation and integration in his new homeland.

Specific problems arising in regard to the reunification of separated refugee families

5. In refugee situations, it frequently occurs that the close family members of refugees (husbands, wives, minor children or aged parents) are left behind in the refugee's country of origin. In situations of this kind, the action of UNHCR is directed towards:

(a) Obtaining entry visas for the refugee's close family members to enable them to join him in the country where reunion is sought, normally the refugee's country of permanent residence and not a country where he may only be in transit pending resettlement elsewhere. The availability of such entry visas is usually a prerequisite to any further action for the reunification of refugee families.

(b) Obtaining where necessary exit visas to enable close family members to leave their country of origin (or habitual residence) to be reunited with the refugee in the country of his permanent residence.

(c) Helping to resolve incidental problems that may arise, e.g. obtaining transit visas or arranging, where necessary, for the payment of travel costs.

6. When seeking to promote the reunification of separated refugee families, it is necessary to have regard to certain general considerations of a social character:

(a) Separation due to the refugee's departure from his country of origin may create serious social problems for close family members who remain behind. If the refugee head of the family was the principal breadwinner, the remaining family members may find it difficult to meet their basic material needs and may become a burden on society. Minor children separated from their parents may be entrusted to aged relatives or to strangers who may not be in a position to provide them with the necessary care. In situations of this kind it is highly desirable that the family members should on humanitarian grounds be permitted to leave their country of origin to join the refugee with the least possible delay.

(b) When considering this solution regard should also be had to the situation of the head of the family in his new country of permanent residence, i.e. whether his close family members can join him there without creating a new social problem in that country.

7. Reunification of separated refugee families can be achieved either in the refugee's new country of permanent residence or in his country of origin. An important function entrusted to the High Commissioner under the Statute is to facilitate the voluntary repatriation of refugees. When voluntary repatriation takes place this may, of course, lead to the reunification of the refugee's family in his country of origin.

8. The separation of refugee families can also occur when a refugee's close family members have not been able to accompany him from his country of first asylum to his country of resettlement, e.g. if a close family member does not fulfil the normal immigration criteria due to some physical handicap. Cases of this kind have fortunately become very infrequent in recent years and the High Commissioner welcomes the willingness of countries of resettlement to admit close family members of refugees on purely humanitarian grounds and without applying too stringent immigration criteria.

Categories of persons benefiting from UNHCR action in family reunification

9. The competence of the High Commissioner in regard to family reunification relates in the first place to refugees as defined by the Statute of his Office and by the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. However, the competence of UNHCR has been extended to permit assistance to displaced persons victims of man-made disasters, which would also include assistance to promote the reunification of separated families in this category.

10. In Resolution 2011 (LXI) of 2 August 1976, the Economic and Social Council:

"1. Commends the United Nations High Commissioner for Refugees for his efforts on behalf of refugees and displaced persons, victims of man-made disasters, requiring urgent humanitarian assistance;

2. Requests the High Commissioner to continue his activities in cooperation with Governments, United Nations bodies, appropriate intergovernmental organizations and voluntary agencies, for alleviating the suffering of all those of concern to his Office and for promoting permanent and speedy solutions to their problems through the provision of urgently required relief assistance, voluntary repatriation and assistance in their rehabilitation, integration or resettlement;

3. Calls upon the international community to continue and to strengthen further its support for the humanitarian activities of the High Commissioner."

11. This Resolution of the Economic and Social Council was endorsed by the General Assembly in Resolution 31/35 of 30 November 1976.

Procedures followed by UNHCR in promoting family reunification

12. The High Commissioner's efforts to promote family reunification constitute a normal part of his activities. They are undertaken in any part of the world where problems within his competence and involving the separation of refugee families may exist.

13. Problems of family reunion have thus arisen in regard to displaced persons from Indo-China, to the various refugee situations in Latin America, as well as to refugee situations in Africa and Europe. The procedure followed by UNHCR in promoting the reunification of families varies according to the particular circumstances. In practically all cases, it is necessary for the close relatives themselves to apply to the competent authorities for permission to leave their country of residence to join the refugee head of family abroad. It will also be necessary for the head of the family to apply for the necessary entry visas. Such applications are followed up by the UNHCR Representative in the country concerned or through UNHCR Headquarters, which undertakes appropriate démarches with the competent authorities. A specific pattern of contacts and procedures has been developed over the years with each government co-operating with UNHCR in achieving a reunification of families.

14. In all cases, the relevant laws and regulations of the countries of origin and reception are taken into account by UNHCR.

Co-operation with other organizations

15. In the field of family reunion, as in other activities, UNHCR works in close co-operation with other organizations, whether public or private. This applies, for instance, to a number of non-governmental organizations that bring family reunion cases to the attention of the High Commissioner. A special mention must be made of the International Committee of the Red Gross, which has traditionally played an important role in family reunion, also in respect of categories of persons who do not come within the High Commissioner's competence. Close liaison has therefore traditionally been maintained with the ICRC.

16. UNHCR has also maintained its usual co-operation with the Intergovernmental Committee for European Migration (ICEM) concerning transportation. Unless different arrangements are required, ICEM has been requested to make the necessary arrangements for transportation of refugees within the framework of family reunion. In the majority of cases, the necessary funds have been provided by UNHCR.

Developments

17. The High Commissioner is gratified that increasingly positive results have recently been obtained in regard to the reunification of separated refugee families. These encouraging results have been obtained largely through the growing understanding and co-operation extended to the High Commissioner by countries of origin and reception. Moreover, since the signature of the Final Act of the Helsinki Conference on Security and Co-operation in Europe, favourable solutions have been recorded in a growing number of cases where European Governments were concerned.

18. The activities of UNHCR in regard to family reunion have proved particularly important in the resettlement of a large number of Latin American refugees in recent years. In many cases it was not always possible for the whole family to depart together when the resettlement opportunity arose, and in over 1,400 cases (involving some 5,500 persons) arrangements for subsequent reunification in the country of resettlement have been made.

19. Similar problems had arisen in connexion with the resettlement of Indo-Chinese displaced persons where it was possible to assist members of families who had found temporary shelter in a neighbouring country and who were assisted in joining the rest of the family who had been resettled elsewhere.

Conclusions

20. The High Commissioner will pursue his efforts to promote and achieve family reunification in all cases that are brought to his attention and that meet the criteria outlined in the present document. He trusts that he will continue to receive the indispensable co-operation of governments in this task.

1 A/AC.96/IN.152.

2 Annexed to General Assembly Resolution 428 (V) of 14 December 1950.