Conclusion on the Provision on International Protection Including Through Complementary Forms of Protection

No. 103 (LVI) - 2005

The Executive Committee, ¹

Reaffirming that the 1951 Convention relating to the Status of Refugees together with its 1967 Protocol continue to serve as the cornerstone of the international refugee protection regime; and noting in this regard the fundamental importance of their full application by State Parties, including that of the fundamental principle of non-refoulement,

Recognizing that, in different contexts, there may be a need for international protection in cases not addressed by the 1951 Convention and its 1967 Protocol; and recalling in this regard paragraph (l) of its Conclusion No. 74 (XLV),

Reaffirming the principle that all human beings shall enjoy human rights and fundamental freedoms without discrimination, including the right to seek and enjoy asylum,

Underlining the value of regional instruments, as and where applicable, including notably the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, as well as the 1984 Cartagena Declaration on Refugees, which include among refugees persons who cannot return to their countries due to indiscriminate threats resulting from situations such as generalized violence, armed conflict or events seriously disturbing public order, and the asylum legislation adopted by the European Union, which recognizes certain international protection needs beyond the 1951 Convention and its 1967 Protocol,

Recalling that international and regional instruments to address the problem of statelessness, such as the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, where applicable, are important tools for State Parties to use, in particular to avoid and resolve situations of statelessness and, where necessary, to further the protection of stateless persons,

Acknowledging that in many countries a number of administrative or legislative mechanisms are in place for regularizing, on a variety of grounds, the stay of persons, including those who may not be eligible for refugee protection but who may be in need of international protection,

Noting the value of establishing general principles upon which complementary forms of protection for those in need of international protection may be based, on the persons who might benefit from it, and on the compatibility of these forms of protection with the 1951 Convention and its 1967 Protocol and other relevant international and regional instruments,

(a) Urges State Parties to implement their obligations under the 1951 Convention and/or its 1967 Protocol fully and effectively in accordance with the object and purpose of these instruments;

(b) Calls upon State Parties to interpret the criteria for refugee status in the 1951 Convention and/or its 1967 Protocol in such a manner that all persons who fulfil these criteria are duly recognized and protected under those instruments, rather than being accorded a complementary form of protection;

(c) Recognizes that refugee law is a dynamic body of law based on the obligations of State Parties to the 1951 Convention and its 1967 Protocol and, where applicable, on regional refugee protection instruments, and which is informed by the object and purpose of these instruments and by developments in related areas of international law, such as human rights and international humanitarian law bearing directly on refugee protection;

(d) Reiterates the need to ensure that the integrity of the asylum system is not abused by the extension of refugee protection to those who are not entitled to it and to apply scrupulously the exclusion clauses stipulated in Article 1F of the 1951 Convention and in other relevant international instruments;

(e) Calls on the State Parties to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness to apply these instruments in good faith, bearing in mind their protection objectives; and requests UNHCR actively to promote accession to these instruments;

(f) Calls on States to make maximum use of existing protection instruments when addressing international protection needs; and encourages States that have not already done so to consider accession to the 1951 Convention and the 1967 Protocol and to relevant, applicable regional instruments and/or to consider lifting existing limitations or withdrawing reservations in order to ensure the widest possible application of the protection principles they contain;

(g) Calls upon all State Parties, as applicable, to adopt the necessary national legislation or procedures to give effect to regional refugee instruments;

(h) Acknowledges that complementary forms of protection provided by States to ensure that persons in need of international protection actually receive it are a positive way of responding pragmatically to certain international protection needs;

(i) Encourages the use of complementary forms of protection for individuals in need of international protection who do not meet the refugee definition under the 1951 Convention or the 1967 Protocol;

(j) Realizes that States may decide to allow prolonged stay for compassionate or practical reasons; and recognizes that such cases must be clearly distinguished from cases where there are international protection needs;

(k) Affirms that measures to provide complementary protection should be implemented in a manner that strengthens, rather than undermines, the existing international refugee protection regime;

(l) Notes that temporary protection, without formally according refugee status, as a specific provisional protection response to situations of mass influx providing immediate emergency protection from refoulement, should be clearly distinguished from other forms of international protection;

(m) Affirms that relevant international treaty obligations, where applicable, prohibiting refoulement represent important protection tools to address the protection needs of persons who are outside their country of origin and who may be of concern to UNHCR but who may not fulfil the refugee definition under the 1951 Convention and/or its 1967 Protocol; and calls upon States to respect the fundamental principle of non-refoulement;

(n) Encourages States, in granting complementary forms of protection to those persons in need of it, to provide for the highest degree of stability and certainty by ensuring the human rights and fundamental freedoms of such persons without discrimination, taking into account the relevant international instruments and giving due regard to the best interest of the child and family unity principles;

(o) Recommends that, where it is appropriate to consider the ending of complementary forms of protection, States adopt criteria which are objective and clearly and publicly enunciated; and notes that the doctrine and procedural standards developed in relation to the cessation clauses of Article 1C of the 1951 Convention may offer helpful guidance in this regard;

(p) Notes that States may choose to consult with UNHCR, if appropriate, in view of its particular expertise and mandate, when they are considering granting or ending a form of complementary protection to persons who fall within the competence of the Office;

(q) Encourages States to consider whether it may be appropriate to establish a comprehensive procedure before a central expert authority making a single decision which allows the assessment of refugee status followed by other international protection needs, as a means of assessing all international protection needs without undermining refugee protection and while recognizing the need for a flexible approach to the procedures applied;

(r) Notes that, where applicable, in considering a comprehensive procedure, the applicable procedure should be fair and efficient;

(s) Underlines the importance of applying and developing the international refugee protection system in a way which avoids protection gaps and enables all those in need of international protection to find and enjoy it.

1 This Conclusion addresses only the situation of persons who fall under the mandate of UNHCR.