Composite flows and the relationship to refugee outflows, including return of persons not in need of international protection, as well as facilitation of return in its global dimension

EC/48/SC/CRP.29

COMPOSITE FLOWS AND THE RELATIONSHIP TO REFUGEE OUTFLOWS, INCLUDING RETURN OF PERSONS NOT IN NEED OF INTERNATIONAL PROTECTION, AS WELL AS FACILITATION OF RETURN IN ITS GLOBAL DIMENSION

I. INTRODUCTION

1. The Standing Committee of the Executive Committee of the High Commissioner's Programme has requested a discussion on the topic "Composite Flows and the Relationship to Refugee Outflows, including Return of Persons Not in Need of International Protection, as well as Facilitation of Return in its Global Dimension". The subject is a comprehensive one which has important refugee protection dimensions, but goes, as well, far beyond refugee movements and into the broader field of international migration. Given the specific mandate and interest of the Standing Committee in refugee and asylum concerns, together with the fact that the purely migration aspects of the topic are under study in other international fora¹, it was deemed most useful to focus discussion around protection aspects of the following general themes:

(i) The nature of composite flows;

(ii) The situation of refugees within mixed flows;

(iii) The return of persons not in need of international protection; and

(iv) The facilitation of return.

2. Composite flows pose challenges for refugee protection which are of course not new in themselves. It is timely to recall that changes in the character and composition of asylum-seekers since the adoption of the 1951 Convention relating to the Status of Refugees led to the creation by the Executive Committee of an open-ended Working Group on Solutions and Protection which met periodically from September 1990 until the presentation of its report to the forty-second session of the Executive Committee in October 1991 (EC/SCP/64). That Working Group, composed of representatives of Executive Committee Member States, UNHCR, as well as States and international organizations with observer status at the Executive Committee, was tasked to "to examine protection and solutions in a coherent and comprehensive manner" and to consider, to this end, existing law and doctrine in the light of real situations being faced by refugees and solutions through more effective regional and international initiatives, based around dialogue and prevention. It was also asked to concentrate on particular matters including the difference between refugees and economic migrants, the concept of State responsibility, and ways to deal effectively and responsibly with rejected asylum-seekers. The Working Group approached its task by analysing the various population movements in order to identify those groups which were of direct concern to protection and solution-oriented efforts. Its working premise was that solutions were the ultimate purpose of protection and that protection should be seen as governing the entire process towards solutions, without prejudicing international protection as an end in itself.

3. This premise, as well as the observations and recommendations of the Working Group are most instructive for the present purposes. Where the reasoning of the Working Group directly relates to the four themes of this note, it is brought into this analysis for further reflection by the Standing Committee.

II. THE NATURE OF COMPOSITE FLOWS

4. The protection of refugees is beset by major difficulties attributable, at least in part, to the complexity of modern population movements. Composite flows are compelled by a variety of situations, including persecution, conflict, other forms of human rights violations, natural or economic disasters, extreme poverty, human striving for betterment or a mixture of these reasons. Population movements are also facilitated, more so than in the past, by transportation and mass media networks and traffickers.

5. Irregular population movements have increasingly included types of asylum-seekers not directly covered by existing international refugee instruments. The institution of asylum has at times been overburdened and sometimes misused. The protection responsibilities of States, the UNHCR and the international community, for the various different groups, have been at times obscured. Who should be considered and treated as a person deserving of international protection and, therefore, the central beneficiary of the exercise of these responsibilities has become, as the Working Group on Solutions and Protection observed, an even more delicate issue. To address this point, the Working Group identified seven categories of persons most regularly associated in some way with the search for asylum or refuge:

a) Persons covered by the 1951 Convention, and its 1967 Protocol;

b) Persons covered by the OAU Convention/Cartagena Declaration;

c) Other persons, outside the coverage of these instruments, forced to leave or prevented from returning because of man-made disasters;

d) Persons forced to leave or prevented from returning because of natural or ecological disasters or extreme poverty;

e) Rejected asylum-seekers;

f) Internally displaced persons; and

g) Stateless persons.

The Working Group might well have added a further grouping, that is persons seeking asylum who do not, however, come directly from a country of persecution.

6. Not all groups will have the same need for protection. Indeed relief assistance for some might be the essential requirement. Where departure is motivated solely by the search for better social and economic possibilities, the Working Group did not query the legitimacy of this, but stressed it should follow regular and appropriate channels. As an overall observation, the Working Group was concerned that solutions to problems pursued on behalf of any of these groupings of persons caught up in composite flows must be compatible with the needs, well-being and rights of the persons concerned, as well as with the principles of international protection and burden-sharing.

III. THE SITUATION OF REFUGEES WITHIN MIXED FLOWS

7. The fact that refugees flee for their lives or liberty alongside those leaving poverty and hardship increasingly complicates the task of ensuring international protection to those who need it. One central concern in this regard is that the particularity of the refugee's situation and the individual's resulting protection needs are at times in danger of not being identified. Clearly, migration control is a sovereign right and responsibility of States. In UNHCR's view, though, the differentiation between refugees and those deemed not to be in need of international protection is of paramount importance, and must be maintained in the crafting and implementation of migration control regulations and measures.

8. The identification of people in need of international protection depends in part on the establishment of fair and efficient procedures to enable identification and handling of asylum claims. The Working Group stressed that the 1951 Convention and its 1967 Protocol, together with UNHCR's central role in supervising their proper implementation, "remain the cornerstone of international protection", and broad international support for effective implementation of both instruments and UNHCR's role in this regard is essential. However, there are also persons crossing national borders in need of international protection who fall outside the scope of the Convention definition, as strictly applied. Many do receive some protection and assistance, albeit not always sufficient and somewhat ad hoc. The criteria for identification of protection needs are important. Refugee flows are caused by a variety of often interconnected factors, including individual persecution or the well-founded fear thereof, as well as generalized violence, foreign aggression, internal conflicts and other circumstances which seriously disturb public order. The forty-fifth session of the Executive Committee in 1994 recognized in its General Conclusion on International Protection (A/AC.96/839, paragraph 19 (l)) that "while persons who are unable to return in safety to their countries of origin as a result of situations of conflict may or may not be considered refugees within the terms of the 1951 Convention and 1967 Protocol, depending on the particular circumstances, they nonetheless are often in need of international protection, humanitarian assistance and a solution to their plight."It further recalled that protection and assistance are also to be extended to these individuals under the UNHCR mandate.

9. Fair and efficient procedures to enable identification of refugees also serve to identify those persons not in need of international protection. There is a degree of abuse, or misuse, of the procedures by those not in protection need who are seeking only to circumvent normal immigration regulations. This can add noticeably to costs incurred by receiving countries, both in processing applications and in meeting welfare related expenses while applications are pending. In addition, abuse has been shown to prejudice the receptivity of local communities towards refugees in general which in turn can negatively influence policies and practices at the national level, limiting opportunities for persons in genuine need of protection. The value of expedited procedures to deal with manifestly unfounded claims, carried out in accordance with applicable international standards and practices, was recognized by the Working Group on Solutions and Protection. The Executive Committee has also endorsed them and UNHCR supports their establishment, as long as applicable due process standards are respected. The notion of "manifestly unfounded" could, however, benefit from further elaboration.

10. The individual identification of people with protection needs is usually impractical during situations of mass influx. Not least as a response to composite flows in mass influx situations, temporary protection régimes have been practically and usefully resorted to. The ultimate goal of temporary protection is to ensure that people who are forced to flee their country have access to safety for as long as is required by their circumstances and can exercise their right to return in safety and dignity. The clear protection need, rather than the particularities of a definition, is the rationale for the asylum offered. The focus on the return solution is the rationale for standards of treatment which emphasize the provisional aspects of the stay. Temporary protection may be brought to an end if there is a change in the circumstances that caused people to flee, or when the dangers they were escaping from no longer exist. In such situations, repatriation should preferably proceed on a voluntary basis. On the lifting of temporary protection, persons who can credibly claim continuing need for protection should be given the opportunity to establish the claim within the framework of normal refugee determination procedures. For the refugees among the temporarily protected population, their repatriation on a voluntary basis, as for all refugees, must be absolutely respected. All returns should be carried out in a dignified manner and with due respect for human rights and humanitarian standards, taking into account factors such as the availability of reception facilities and the possibilities of reintegration.

11. Refugee outflows are best addressed through averting their causes. The Working Group on Solutions and Protection stressed that acceptance of State responsibility, in particular as it regards countries of origin, was an important element in averting mass flows, as well as facilitating solutions. This responsibility was recognized to include addressing the causes of, inter alia human rights violations, internal conflicts, external aggression, and social and economic injustices, in both a preventive and curative manner, as well as facilitating the return and reintegration of nationals in safety and dignity.

IV. RETURN OF THOSE NOT IN NEED OF INTERNATIONAL PROTECTION

12. Individuals not in need of international protection are not necessarily the same as persons who have been rejected for refugee status. Within composite flows, there may be persons who are deserving of refugee status, but who, for reasons, for example, of an overly restrictive approach to definitional issues, are rejected. There have also been persons whose situation is precarious, giving rise to clear protection concerns, but which does not directly fall within the 1951 Convention criteria. In UNHCR's view, the distinction must always be kept in mind between those rejected cases who can be returned and rejected cases who cannot be returned to their respective countries of origin, because of protection considerations. As has been the practice of many countries to date, UNHCR recommends that before return is considered, protection needs of whatever nature should be closely reviewed.

13. International human rights instruments provide relevant considerations which a State may have to weigh when taking a decision to return a rejected asylum-seeker. In particular, the return of a person to a country where he/she may be subject to torture is not permitted. Article 3(1) of the United Nations Convention against Torture provides that "No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."Similarly, Article 7 of the International Covenant on Civil and Political Rights states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".

14. Persons clearly not in need of international protection can be expelled or deported as an exercise of national sovereignty. The Executive Committee has recognized that return of those not in need of international protection is fundamental to preserve the integrity of the asylum institution. The Working Group on Solutions and Protection also noted the negative effect that abusive claims have on both public opinion in the receiving country and on the institution of asylum generally. Obstacles to effecting return of individuals not in need of international protection to their countries of origin, however, remain. As a result, the Executive Committee has called for a more comprehensive approach to return, based on dialogue between the countries concerned and, when appropriate, involving international organizations such as UNHCR and the International Organization for Migration (IOM).

15. Over the last year, UNHCR has been approached by some Governments in different parts of the world for cooperation, in one way or another, in comprehensive return programmes. Pursuant to UNHCR's guidelines on involvement with return of rejected asylum-seekers in humane and safe conditions, and always within a protection framework, UNHCR has been generally forthcoming. While the Office continues to be engaged in such discussions with various Governments, there remains a need to examine further how the activities of other organizations, specifically IOM, may best complement arrangements agreed between the States. Comprehensive voluntary return programmes based on a philosophy of incentives rather than coercion have been put into effect by States. These various pilot projects deserve a careful "lessons learned" analysis.

16. While return incentives are proving useful, broader development assistance in countries of origin also underpins the durability of return. The Working Group on Solutions and Protection devoted some time to examining this issue. It called upon the international community to analyse the relationship between development and migration, including the use of development assistance to reduce push factors, particularly where the migration is caused by extreme poverty. Social and economic development, as well as promotion and protection of human rights in their civil, political, economic, social and cultural dimensions, was understood by the Working Group as being among the most wide-reaching and long-lasting preventive measures available to many States.

V. FACILITATION OF RETURN - READMISSION AGREEMENTS

17. As regards asylum-seekers, return is mainly an issue after rejection when the solution is return to the country of origin, or before rejection when it is deemed that a State other than the receiving State should bear responsibility for assessing the claim and offering any warranted protection in the first instance.

18. The Executive Committee, in its General Conclusion on International Protection (A/AC.96/821, paragraph 19 (k)), recognized "the advisability of concluding agreements among States directly concerned, in consultation with UNHCR, to provide for the protection of refugees through the adoption of common criteria and related arrangements to determine which State shall be responsible for considering an application for asylum and refugee status and for granting the protection required, and thus avoiding orbit situations". Multilateral arrangements apportioning responsibilities for asylum requests are important in this regard. One agreement is the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities (Dublin Convention), which entered into force for all European Union Member States on 1 September 1997. The Dublin Convention is a valuable model, in so far as it stipulates a division of responsibility which is flexible enough to take account of the special needs of individual asylum-seekers, including family reunions. For UNHCR, an important main consideration with any readmission agreement is that it be structured to avoid "orbit" situations. It can do so by building in the necessity of consent to return and that its application not be able to lead to a situation where an asylum-seeker can be returned to a country where the guarantees against refoulement are not in place, or where the refugee procedures do not meet internationally agreed standards of fairness and thoroughness. It is also important that any such agreement preserve the discretion of States to consider any claim, taking into account the particular circumstances of the individual applicant, including family reasons or other special humanitarian grounds.

19. Return has increasingly been carried out over recent years on the basis of bilateral readmission agreements. Classical bilateral readmission agreements were in fact not developed to address return of asylum-seekers as such, but normally applied indiscriminately to nationals or residents of the contracting States, or to nationals of third countries who moved irregularly from one of the contracting States to the other. Unlike multilateral arrangements, such as the Dublin Convention, these bilateral agreements have not traditionally been drafted to respect the particular situation of asylum-seekers and as such will usually be inadequate vehicles through which to effect their return. Most important, they have not been framed to ensure protection against refoulement, by, for example, including guarantees of access to asylum procedures in the third country. In UNHCR's view, these classical bilateral readmission agreements should not be used to return asylum-seekers, even where this is technically possible.

20. The need to distinguish between ordinary aliens and asylum-seekers when it comes to the application of such agreements was underlined in the Conclusion on Refugees without an Asylum Country adopted at the thirtieth session of the Executive Committee (A/AC.96/572, paragraph 72 (2) (h) (vi)), which states that "agreements providing for the return by States of persons who have entered their territory from another contracting State in an unlawful manner should be applied in respect of asylum-seekers with due regard to their special situation". Before a bilateral readmission agreement should be used to return asylum-seekers, it should contain explicit provision for return to take place only if the asylum-seekers will be readmitted, protected against refoulement and given access to full and fair procedures for determining status, as well as to effective protection, as necessary. If for any of these reasons these conditions cannot be met, or a receiving country is not prepared to offer guarantees in the individual case that such conditions will apply to the return, the possibility of return should be explicitly excluded. In situations where it is clear from the outset that one or other of the Parties to a bilateral readmission agreement would not be in a position to meet such stipulations, because, for example, the State does not adhere to relevant international refugee protection principles, or because procedures to implement refugee responsibilities are still developing, then UNHCR would recommend that the readmission contain a provision expressly excluding asylum-seekers and refugees, as a category, from the operation of the agreement.

VI. CONCLUDING REMARKS

21. Appreciating the report of the Working Group on Solutions and Protection, the Executive Committee requested the constructive discussions initiated by the Working Group to continue. Given the direct relevance of the Working Group's deliberations to the present theme, the Standing Committee might wish in its discussions to pay particular attention to certain of the following of the Working Group's preoccupations, according to which:

a) States and UNHCR should continue to promote measures and activities which would contribute to averting mass flows of refugees;

b) States, in their individual capacity and as members of the international community, should, in both a preventive and curative context, take measures to eliminate the causes of refugee flows in a comprehensive manner through activities aimed at economic and social development and guaranteeing respect for human rights, as well as recognizing and respecting the right to return in safety and dignity;

c) UNHCR should continue its efforts to promote broader accession to the 1951 Convention and 1967 Protocol and, with the assistance of States, to promote a more uniform and vigorous implementation of these instruments;

d) States should ensure that national refugee status determination procedures are conducted in a manner which is consistent with the minimum guidelines accepted by the Executive Committee, as well as international principles and protections under the Convention and its Protocol. The misuse of national refugee status determination procedures should also be appropriately addressed;

e) Countries of origin and receiving countries should consult further in order to elaborate humane modalities for the return and reintegration of those individuals not in need of international protection, involving as appropriate international organizations such as UNHCR and IOM;

f) Further consideration should be given to how the Executive Committee might be enabled to support UNHCR more actively in its protection efforts;

g) International solidarity should be mobilized to assist more effectively both those developing countries of asylum who host the majority of the world's refugees and UNHCR, so that protection and durable solutions for refugees are both facilitated. Broader and flexible funding mechanisms should be formulated in order for UNHCR to fulfil its mandate of protection, assistance and the search for durable solutions to the problems of persons of concern to the Office; and

h) The international community should vigorously pursue the enhanced promotion and implementation of international humanitarian and human rights law, and further develop the concept of State responsibility as it relates to redressing the root causes which lead to mass flows of persons.

1 The upcoming Technical Symposium on International Migration and Development, convened by the Working Group on International Migration, is one example.