Note on International Protection Addendum 2: Implementation of the 1951 Convention and 1967 Protocol on the status of refugees - preliminary report (Submitted by the High Commissioner)

A/AC.96/508/Add.2

I. INTRODUCTION

1. At its nineteenth session in October 1968, the Executive Committee agreed that in view of the substantial number of States parties to the Convention and Protocol it would be desirable for UNHCR to receive more detailed information in respect of the implementation of these two instruments (A/AC.96/403, para. 62 (e)).

2. This decision was taken pursuant to Articles 35 and 36 of the 1951 Convention and Articles II and III of the 1967 Protocol, by virtue of which Contracting States undertake to provide UNHCR with information and statistical data concerning the implementation of the instruments concerned.

3. For this purpose a questionnaire for reporting an the application of the provisions of the 1951 Convention was drawn up in cooperation with the International Labour Office. The questionnaire was sent to 63 States parties to the Convention or Protocol. Replies have so far been received from 38 Governments.

4. These replies, many of which provided only incomplete information are summarized in Sections II and III below; they relate to Articles 17 to 19, 22, 23, 25 to 28 and 31 to 34. It is intended to issue further, more detailed reports in due course, on the basis of additional replies, information and clarifications received from Governments.¹

5. Comments on the analysis of the replies have been avoided, and members of the Executive Committee may draw their own conclusions. However, the attention of the Committee is drawn to the fact that one State in its reply stated that it does not apply the provisions of Article 33, one of the basic articles of the Convention to which no reservation is allowed.

II. GENERAL QUESTIONS

Question I

Please indicate whether effect is given to the Articles of the Convention and Protocol by legislation.

Please give a list of the constitutional and legislative provisions or administrative or other regulations which give effect to the Articles of the Convention and Protocol. Where this has not already been done, please forward copies of these various provisions, etc., to the Office of the United Nations High Commissioner for Refugees with this report. Please give any available information concerning the extent to which these laws and regulations have been enacted or modified to permit of, or as a result of, ratification.

Replies

Of the replies received, eleven indicated that effect is given to the provisions of the Convention and Protocol by legislation. The remainder gave no specification in this respect, leaving it therefore unclear as to whether legislation already exists or is not necessary.

Question II

Please supply available information concerning the practice, legislative provisions and regulations and any other measures the effect of which is to ensure the application of the following articles of the Convention and Protocol.

If, in your country, ratification of the Convention and Protocol gives the force of national law to its provisions please indicate, in addition to the constitutional texts from which this effect is derived, any measure which may have been taken to give effect to those provisions of the Convention and Protocol which may require the interventions of the national authorities to ensure their application.

Replies

Five replies indicated that legal measures had been taken to give effect to provisions of the Convention and Protocol which require the intervention of national authorities to ensure their application. The remaining replies were either silent on this point or contained insufficient information.

Question III

Please state whether courts of law or other tribunals have given decisions involving questions of principle relating to the application of the Convention and Protocol. If so, please supply the text of these decisions.

Replies

In four States, courts of law had given decisions involving questions of principle.

Question IV

Please supply any general observations which may be considered useful with regard to the manner in which the Convention and Protocol are applied.

Replies

General observations to the effect that the Convention is applied liberally, and that refugees are treated sympathetically were made by eight States. No observations on this point were contained in the other replies.

Question V

Please indicate whether any special procedure has been established and any authorities or officials designated for the purpose of determining refugee status in accordance with the Convention and Protocol. If so, has provision been made for appeals from decisions denying refugee status.

Replies

Six replies indicated the existence of special procedures for eligibility determination outside the general administrative framework.

Question VI

Please supply any statistics that may be available relating to the number of persons admitted as refugees, with particular reference to their countries of origin.

Replies

Statistics were supplied by 11 Governments.

III. QUESTIONS RELATING TO SPECIFIC ARTICLES

Article 17

WAGE-EARNING EMPLOYMENT

1. The Contracting State shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment.

2. In any case, restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market shall not be applied to a refugee who was already exempt from them at the date of entry into force of this Convention for the Contracting State concerned, or who fulfils one of the following conditions:

(a) he has completed three years' residence in the country;

(b) he has a spouse possessing the nationality of the country of residence. A refugee may not invoke the benefits of this provision if he has abandoned his spouse;

(c) he has one or more children possessing the nationality of the country of residence.

3. The Contracting States shall give sympathetic consideration to assimilating the rights of all refugees with regard to wage-earning employment to those of nationals, and in particular of those refugees who have entered their territory pursuant to programmes of labour recruitment or under immigration schemes.

Questions

1. Please indicate any legislative and other provisions designed to secure protection of the national labour market and describe the means by which they are applied (work permits, employment permits).

2. To what extent are these measures, if any, applied to refugees who do not fulfil the conditions enumerated in paragraph 2 of this Article?

3. What effect has been given to paragraph 2 of this article which provides for the exemption from such measures in the case of certain categories of refugees?

4. Do any arrangements exist for the purpose of assimilating the rights of refugees with regard to wage-earning employment to those of nationals and, in particular of those who have entered your territory as a result of programmes of labour recruitment or under immigration schemes?

Replies

Seventeen of the replies received indicated that refugees are accorded treatment no less favourable than that accorded to aliens in the same circumstances with respect to the right to engage in wage-earning employment. Treatment comparable to that of national is accorded to refugees by nine countries. No information was supplied on the application of the provisions of this Article by 12 countries.

Article 18

SELF-EMPLOYMENT

The Contracting States shall accord to a refugee lawfully in their territory treatment as favourable as possible and in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies.

Questions

1. Please indicate if, and to what extent, an alien's right to participate in or to establish himself on his own account in agriculture, industry, crafts and commerce, and to establish commercial and industrial companies is limited, or made subject, to the fulfilment of special conditions.

2. Is there any legislative or administrative measures or practice by which refugees would be extended treatment more favourable than that extended to alien's generally in respect of the activities mentioned above

Replies

The replies indicated that 16 States accord treatment as for aliens in the application of the provisions of this Article. More favourable treatment is accorded by 10 States. No information in this regard was given in the replies from 12 States.

Article 19

LIBERAL PROFESSIONS

1. Each Contracting State shall accord to refugees lawfully staying in their territory who hold diplomas recognized by the competent authorities of that State, and who are desirous of practising a liberal profession, treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.

2. The Contracting States shall use their best endeavours consistently with their laws and constitutions to secure the settlement of such refugees in the territories other than the metropolitan territory, for whose international relations they are responsible.

Questions

1. Is there any legislative or administrative measures or practice by which aliens who hold diplomas, degrees or professional qualifications recognized by the competent authorities of the State are permitted to practise liberal professions, such as doctors, lawyers, architects, teachers and engineers? If so, please specify.

2. Do refugees lawfully staying in the country benefit from these provisions in the same circumstances?

3. Is there any legislative or administrative measures or practice by which refugees would be extended treatment more favourable than that extended to aliens generally in respect of liberal professions? If so, please specify.

Replies

The replies indicated that treatment as for aliens is accorded by 21 States while more favourable treatment is accorded by three States. No information was provided by 14 States regarding the application of the provisions of this Article.

Article 22

PUBLIC EDUCATION

1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.

2. The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.

Questions

1. Have refugees the same right to be admitted to elementary education as nationals? If this is the case, is the right by law or administrative measures, or is it based on practice?

2. Please indicate whether elementary education in your country is free, or fee-levying.

3. Please indicate whether legislative provisions exist relating to secondary and university education with particular reference to whether such education is free or on a fee-levying basis.

4. Do refugees enjoy the same rights in the same circumstances?

5. Are refugees given any special consideration in respect of secondary and university education as set out in 3 above. If so, please specify.

Replies

Twenty-four Governments indicated in their replies that they grant refugees the same treatment as nationals with regard to primary education. One Government indicated that refugees are treated as aliens in this respect. Concerning education other than elementary education nine replies indicated treatment as for aliens, while 18 States accord more favourable treatment, comparable to that of nationals.

Article 23

PUBLIC RELIEF

1. The Contracting State shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.

Questions

Please indicate whether there is legislative or administrative provision for the granting of public relief and assistance. If so, to what extent may refugees in need benefit from such measures.

Replies

The replies indicated that treatment as for nationals is accorded by 21 Governments. The remainder did not specify whether public relief is available, nor whether such benefits are extended to refugees.

Article 25

ADMINISTRATIVE ASSISTANCE

1. When the exercise of a right by a refugee would normally require the assistance of authorities of a foreign country to whom he cannot have recourse, the Contracting States in whose territory he is residing shall arrange that such assistance be afforded to him by their own authorities or by an international authority.

2. The authority or authorities mentioned in paragraph 1 shall deliver or cause to be delivered under their supervision to refugees such documents or certifications as would normally be delivered to aliens by or through their national authorities.

3. Documents or certifications so delivered shall stand in the stead of the official instruments delivered to aliens by or through their national authorities, and shall be given credence in the absence of proof to the contrary.

4. Subject to such exceptional treatment as may be granted to indigent persons, fees may be charged for the services mentioned herein, but such fees shall be moderate and commensurate with those charged to nationals for similar services.

5. The provisions of this Article shall be without prejudice to Articles 27 and 28.

Questions

1. What arrangements have been made to ensure that refugees obtain the administrative assistance referred to in paragraph 1 of this Article?

2. In which manner can a refugee obtain such documents or certifications required to establish civil status (e.g. marital status) as could normally be delivered to aliens by their national authorities or the consular representatives of his country of origin or former habitual residence?

3. Are the fees charged for the services referred to in this Article commensurate with those charged to nationals for similar services or do any special facilities exist for refugees?

Replies

Twenty Governments indicated in their replies that administrative assistance is generally extended to refugees according to the provisions of this Article. The remaining 18 gave little or no information as to its application.

Article 26

FREEDOM OF MOVEMENT

Each contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.

Question

Please indicate whether any laws or regulations provide for the restriction of movement of aliens in your country. If so, would such restrictions apply to refugees lawfully staying in your country?

Replies

Twenty-four Governments indicated that the provisions of this Article are generally applied.

Article 27

IDENTITY PAPERS

The Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid travel document.

Questions

1. What is the practice in your country for the issuance of identity papers to refugees (Please indicate the relevant laws or administrative regulations and supply specimen)?

2. Is any special mention made on such documents of the refugee status of the holder of such documents?

Replies,

Twenty-six replies indicated that identity papers are issued to refugees who do not possess a valid travel document. No details in this respect were given in the remaining replies.

Article 28

TRAVEL DOCUMENTS

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.

Questions

1. Please indicate whether provisions by legal enactment or administrative regulation exist in your country enabling the issuance of identity papers and travel documents to refugees. If so, please supply specimens.

2. Please state whether the travel documents issued by other Contracting States under this Convention are recognized in your country; also, whether refugees in your country are permitted to travel out of your country and back. If there are any restrictions in this respect, please indicate what they are.

3. What special facilities are granted, if any, for the entry to, or transit through, your country to holders of refugee travel documents issued by another Contracting State? Are visas required and, if so, by which authority are they granted.

4. Is there any provision of law or administrative directive concerning the recognition or limitation of recognition of travel documents issued by another country? In this regard are there any specific agreements or arrangements with any other Contracting State?

Replies

Twenty-four Governments indicated that refugees lawfully in their territory are issued with travel documents. Other Governments gave little or no information regarding their practice.

Article 31

REFUGEES UNLAWFULLY IN THE COUNTRY OF REFUGE

1. The Contracting States shall not impose penalties on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

Questions

1. What are the regulations and administrative practices in your country with regard to aliens and refugees entering the country illegally?

2. What effect has been given to paragraph 1 of this article providing, under certain conditions, for an exemption of refugees from penalties on account of illegal entry or presence?

3. What arrangements, if any, exist for the period required by a refugee to regularize his status in your country, or to be admitted to another country? Are there any special restrictions on the movement of such refugees during that period?

4. Would such refugees, whose residence status in your country has not been regularized, be provided with identity papers or travel documents in order to enable them to be admitted to another country?

Replies

Twenty-two Governments indicated that the provisions of this Article are generally applied. The remaining replies were insufficiently detailed to ascertain the extent to which these provisions are applied in other cases. One Government indicated that the provisions of paragraph 1 are not applied and that a penalty required by law is imposed.

Article 32 EXPULSION

1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with the process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.

3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

Questions

1. Please list the basic laws or administrative regulations in your country specifically governing the prohibition or limitation of residence or expulsion of aliens.

2. What legislative or administrative measures have been adopted to give effect to paragraph 1 of this Article.

3. Please indicate whether the expulsion of an alien or refugee on grounds of public security or public order is governed by legal provision for a hearing, giving the person concerned an opportunity to show cause why he should not be expelled or deported. If so, would the person have:

(a) the right of being legally represented,

(b) the right to submit evidence in defence and

(c) the right of appealing to a specially designated higher court or other authority against an order of expulsion.

4. In the event of the order of expulsion being made final

(i) is legal or administrative provision made for the stay of expulsion or deportation of a refugee pending his obtaining legal admission to another country?

(ii) in such event, would measures such as detention be taken against the person?

Replies

Fifteen Governments indicated that the provisions of this Article are applied fully while 12 others indicated that the provisions are applied partially. The remaining replies on the subject were insufficiently detailed to permit any conclusions on practice in this respect.

Article 33

PROHIBITION OF EXPULSION OR RETURN ("REFOULEMENT")

1. No Contracting State shall expel or return ("refouler") a refugee it any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

Questions

1. What legislative or administrative measures have been adopted in your country to protect refugees against expulsion or return to a country where he would have to fear persecution?

2. Is there a legal definition or judicial precedent or administrative directive defining the nature of the offences or conduct justifying an application of the proviso contained in paragraph 2 of this Article?

Replies

The replies indicated full application of the provisions of this Article by 21 States, while one Government indicated that it does not apply them. The remaining replies either omitted or provided insufficient information on this Article.

Article 34

NATURALIZATION

The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.

Questions

1. What are the basic laws (including amendments) governing the acquisition of the nationality of your country by aliens?

2. Is there any legal or administrative provision relating to refugees by which

(a) they are enabled to qualify for naturalization earlier than aliens,

(b) the fee ordinarily payable are reduced or waived and

(c) they are not required to furnish proof of release from or loss of their former nationality?

Replies

Seventeen Governments indicated that the provisions of this Article are applied partially while 11 stated that they do not provide for favourable treatment. No information was given in any of the remaining replies.

1 Article 24 (Labour Legislation and Social Security) has not been dealt with in this report, but will be included in future reports.