Note on the Extraterritorial Effect of the Determination of Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees

EC/SCP/9

Introduction

1. The need to determine refugee status under the 1951 Convention and the 1967 Protocol normally arises in respect of a given person in the territory of the Contracting State in which that person has sought and received asylum. It is a recognized principle that it is for States parties to the 1951 Convention and/or to the 1967 Protocol to make appropriate arrangements for the determination of refugee status in their territory.

2. Where refugee status has been so determined, this will be sufficient to enable the refugee to enjoy the various rights defined in the 1951 Convention in the territory of the Contracting State concerned. The question arises, however, whether refugee status so determined is valid only within that Contracting State or whether it may have effect also on the territory of another Contracting State.

3. At its twenty-eighth session the Executive Committee "Requested UNHCR to prepare after due consideration of the opinions of States parties to the 1951 Convention and the 1967 Protocol, a detailed study on the question of the extra-territorial effect of determination of refugee status". The purpose of such a study would be "to enable the Committee to take a considered view on the matter at a subsequent session, taking into account the opinion expressed by representatives that the acceptance by a Contracting State of refugee status as determined by other States parties to these instruments would be generally desirable".¹

4. The present Note has been prepared in response to the above-mentioned request made by the Committee at its twenty-eighth session. It is based on an analysis of the relevant international instruments defining the legal status of refugees and on the information available to the Office concerning the practice of States as regards the extraterritorial effect of the determination of refugee status. The Office believes that such an analysis of the elements already available can provide an adequate basis for a further discussion of the problem by the Sub-Committee of the Whole on International Protection at its third session. At this preliminary stage the High Commissioner has not sought the opinions of States parties to the Convention and/or the Protocol on the understanding that this would be done in the light of the further examination of the problem by the Committee.

Situations in which the extraterritorial effect of a determination of refugee status may be relevant

5. The definition of the term "refugee" in the 1951 Convention is divided into two parts. It contains a general definition of the term "refugee" (article 1.A(2)), but provides further that persons who have been considered refugees under various prewar international instruments are also refugees under the 1951 Convention. Where a person has previously been determined to be a refugee by a Contracting State under one of the prewar instruments, the question may arise as to whether he should also be considered as a refugee by other States parties to the 1951 Convention and/or the 1967 Protocol.

6. The 1951 Convention and the 1967 Protocol establish a number of civil, economic, social and cultural rights for the benefit of refugees, which are normally enjoyed by the latter in the territory of the Contracting State in which they have their normal residence. A refugee may,, however, need to invoke these rights in another Contracting State. Such a situation could also occur as regards those rights defined in the Convention, the exercise of which is not necessarily related to the refugee's "lawfully staying" in the territory of a Contracting State, for example as regards matters of personal status (article 12), and the prohibition of expulsion or return to the frontiers of territories where a refugee has reason to fear persecution (article 33).

7. The 1951 Convention also provides specifically for the exercise of certain rights by a refugee in a Contracting State other than he one in which he has his normal residence, e.g. as regards artistic rights and industrial property (article 14); and access to courts, legal assistance and exemption from cautio judicatum solvi (article 16).

8. A refugee may proceed to the territory of another Contracting State on a purely temporary basis, e.g. to visit relatives or friends or for business purposes. While in the territory of a second Contracting State, situations could occur in which his refugee status - and hence the extraterritorial effect of the determination of refugee status by the first Contracting State - may be relevant.

9. Finally, there are cases in which a refugee who has been recognized as such by and is resident in the territory of - a Contracting State transfers his residence to another Contracting State with that State's permission. In such a situation it is important to ascertain whether refugee status as previously determined will be affected by transfer of residence.

Analysis of the various situations in which the extraterritorial effect of a determination of refugee status may be relevant

10. It is now proposed to examine in detail the various situations enumerated above in which the question of the extraterritorial effect of a determination of refugee status may arise.

(a) The situation of "statutory refugees"

11. As mentioned above, the definition of the term "refugee" in the 1951 Convention includes persons "who have been considered refugees" under various pre-war instruments; these persons as defined by article 1A(1) of the Convention are known as "statutory refugees".² In the context of this definition, if a person can bring evidence to show that he has previously been determined by the authorities of a particular State even a non-Contracting State - to be a refugee under one of the earlier international instruments, that person must be considered. a refugee by all States parties to the 1951 Convention and the 1967 Protocol.³ While the extraterritorial effect of the determination of refugee status under article 1A(2) remains to be analyzed in the following paragraphs, article 1A(1) contains an unequivocal provision establishing extraterritorial effect in the case of "statutory refugees".

(b) Exercise of rights provided for in the 1951 Convention in the territory of another Contracting-State

12. As mentioned above, the 1951 Convention defines a number of rights for the benefit of refugees, the exercise of which is not necessarily related to their being resident in the territory of a Contracting State. The Convention also provides specifically for the exercise of certain rights in the territory of Contracting States other than the one in which a refugee has his normal residence.

13. Thus, article 12 of the Convention provides that: "The personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence." Article 14 of the Convention,, dealing with artistic rights and industrial property, provides that "a refugee shall be accorded in the country in which he has his habitual residence the same protection. as is accorded to nationals of that country". In the territory of any other Contracting State, "he shall be accorded the same protection as is accorded in that territory to nationals of the country in which he has his habitual residence". Again, article 16 of the Convention provides that:

"1. A refugee shall have free access to the courts of law on the territory of all Contracting States.⁴

2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts including legal assistance and exemption from cautio judicatum solvi"

A refugee shall be accorded in these matters "in countries other than that in which he has his habitual residence 4/ the treatment granted to a national of the country of his habitual residence."

14. Where a refugee seeks to exercise these various rights in a country other than the one in which he is normally resident, it is only reasonable to assume that he may do so on the basis of the determination of his refugee status by the Contracting State in which he is normally resident.

15. The requirement of a fresh determination of refugee status as a precondition would give rise to a number of technical difficulties, which could seriously impede the effective exercise of these various rights. Thus, whenever it becomes necessary for a refugee - in another Contract State - to invoke a right deriving from his from his personal status (article 12), to enforce a right to artistic or industrial property (article 14), or to seek access to the courts and to obtain exemption from cautio judicatum solvi (article 16), he can hardly be expected to justify his refugee status by giving a detailed explanation of the substantive grounds why he cannot avail himself of the protection of his former home country. It should perhaps be added that the exercise of such rights in another State does not necessarily require the personal presence of the person seeking to invoke them. If, however, a refugee would be required to give substantive evidence to show that he is indeed a refugee, this might, in certain cases, give rise to considerable difficulty if he did, not present himself in person to the authorities of the second Contracting State. In the absence of serious reasons to the contrary, therefore, it should be sufficient for him toy submit evidence that he has been recognized as a refugee by another State party to the 1951 Convention and/or the 1967 Protocol.

16. This view is supported by the practice of a number of States and also by the travaux préparatoires to the 1951 Convention. As regards access to the courts, the question of a possible need for a fresh determination of refugee status was given some consideration at the Conference of Plenipotentiaries. An amendment was introduced to include after the words "in countries other than the one in which he has his habitual residence" the words "and if he is considered by such countries as being a refugee under the terms of this Convention".⁵ After some discussion, however, this proposed amendment was withdrawn. The Conference did not therefore consider it necessary to introduce a provision to this effect and several representatives indicated that it would be sufficient to have regard to the determination of refugee status by the first Contracting State.⁶

17. Considerations similar to those mentioned in the preceding paragraphs are also relevant as regards article 33, paragraph 1, of the 1951 Convention, which incorporates the fundamental humanitarian principle of non -refoulement This provision applies to a refugee, irrespective of whether he is normally resident, or even lawfully present, in the territory of a Contracting State.⁷ Situations may, however, arise - and have indeed arisen - where a person determined to be a refugee by one Contracting State enters the territory of another Contracting State and commits a criminal offence, which in the case of an ordinary alien would justify his being returned to his country of origin.⁸ In such cases, if the authorities of the second contracting State, for serious reasons of doubt, decide to re-examine refugee status, the fact that the person concerned has already been determined by another Contracting State to be a refugee will normally be taken into account as an important element that cannot be lightly disregarded.

(c) Effect of the issue of a 1951 Convention Travel Document: temporary visits

18. Article 28 of the 1951 Convention and the Schedule contain detailed provisions regarding the issue of travel documents to refugees. According to paragraph 7 of the Schedule, "The Contracting States shall recognize the validity of travel. documents issued in accordance with article 28 of the Convention". Recognition of the validity of a Convention Travel Document can normally be taken also to imply acceptance of the previous determination of refugee status, which formed the basis of the issue of the Convention Travel Document by the other Contracting State. Just as a national passport is prima facie evidence of the holder's nationality, a Convention Travel Document should be (and in fact is), in the absence of proof to the contrary, accepted as evidence of the holder's refugee status.

19. The view expressed in the preceding paragraph is supported by the wording of article 1 of the European Agreement on the Abolition of Visas for Refugees, of 20 April 1959, which exempts refugees from the visa requirement for visits of not more than three months' duration (but not in order to take up gainful employment). This article⁹ clearly indicates that for the purposes of the, Agreement the holder of a 1951 Convention Travel Document is to be considered a refugee.

20. Thus, where a refugee holding a Convention Travel Document proceeds to another Contracting State for a temporary visit, his refugee status should normally be accepted in any situation in which it may become relevant during his temporary stay. If a refugee seeks to remain in the territory of another Contracting State for a longer period than that normally permitted for a temporary visit, it will be necessary for him to obtain a residence permit. The form of such residence permit will in many cases be the same as that granted to ordinary aliens. In a number of states, however, the residence permit makes specific mention of the refugee status of the beneficiary, based on the 1951 Convention Travel Document issued to him by the other Contracting State.

(d) Transfer of responsibility for the issue of refugee travel documents

21. The 1951 Convention, like earlier international refugee instruments, contains provisions regarding the transfer of responsibility for the issue of travel documents to refugees when they lawfully establish residence in the territory of another Contracting State.

22. It should be recalled, in this connexion, that the 1951 Convention contains no provisions regarding admissions. Nor does it give the refugee a legal right to transfer his residence to the territory of another Contracting State without the agreement of that state. The provisions of the 1951 Convention concerning the transfer of responsibility for the issue of refugee travel documents therefore only relate to cases where a refugee establishes lawful residence in the territory of another Contracting State with that State's consent.

23. Of the earlier international refugee instruments, mention should be made in the first place of the "Provisional arrangement" concerning the status of refugees coming from Germany of 4th July 1936,¹⁰ article 2 of which provided that:

"1. The Contracting Governments shall issue to refugees coming from Germany and lawfully residing in their territory an identity certificate in conformity with the attached specimen (see annex), or some other document having the same object."¹¹

"2. The issue of the certificate shall be subject to the following conditions:

(a) .....

(b) .....

(c) The Government issuing a certificate shall be qualified to renew or extend it until such time as the holder shall have been able to secure the issue of a fresh certificate. If the refugee has become settled in a regular manner in another country, the authority of that country shall be bound to issue a new certificate to him."

24. Again, the Convention concerning the Status of Refugees coming from Germany of 10 February 1938¹² provided, in article 3, that

"1. (a) The High Contracting Parties shall issue, to refugees coming from Germany and sojourning lawfully in their territory to which the present Convention applies, a travel document in the form of a certificate similar to the attached specimen (see annex), or some other document taking the place of a passport."

"2. The issue of the travel document shall be subject to the following conditions:

(a) .....

(b) .....

(c) The renewal or extension of the travel document shall be a matter for the issuing authority, until such time as the holder may be able to secure the issue of a fresh travel document. Should a refugee lawfully take up residence in another territory to which the Convention applies, the authorities of that territory shall be required to supply him with a new travel document;"

25. Similar provisions are to be found in articles 8 and 13 of the Agreement relating to the issue of a travel document to refugees who are concern of the Inter-Governmental Committee on Refugees, signed in London on 15 October 1946:¹³

"The renewal or extension of the validity of the document is a matter for the authority which issued it, so long as the holder 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. (article 8, paragraph 1)

"When a refugee has lawfully taken up residence in another territory, to which the present Agreement applies, the power to issue a new travel document will transferred to the competent authority of that territory, to which the refugees shall be entitled to apply." (article 13)

26. The above-mentioned international refugee instruments adopted prior to the 1951 Convention, in recognizing the possibility that a refugee may transfer his residence, do not in any way indicate the need for a fresh determination of refugee status as a precondition for the issue of a travel document by the second Contracting State.

27. It will also be noted that these instruments display certain differences as regards the type of travel document to be issued to refugees upon taking up residence in the territory of another Contracting State. The earlier instruments - the 1936 and 1938 Conventions provided for the issue of a certificate mentioning the refugee status of the holder but left open the possibility of issuing some other type of document. The 1946 "London Agreement", however, provided exclusively for the issue by a Contracting State in which a refugee is " lawfully staying" - or in which he subsequently takes up "lawful residence" - of travel documents similar to the specimen attached to the Agreement, which mentioned the refugee status of the holder.

28. As regards the provisions of the 1951 Convention concerning the transfer of responsibility for the issue of refugee travel documents, the original draft text of the relevant paragraph of the Schedule was almost identical to that contained in the 1946 "London Agreement", i.e.

"When a refugee has lawfully taken up residence in the territory of another Contracting State, the power to issue a new document will be in the competent authority of that territory, to which the refugee shall be entitled to apply."¹⁴

29. At the Conference of Plenipotentiaries that adopted the 1951 Convention, however, an amendment was adopted to identify even more clearly the type of travel document to be issued by the second Contracting State as a refugee travel document.¹⁵ Paragraph 11 of the Schedule to the 1951 Convention therefore now reads:

"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 28,¹⁶ shall be that of the competent authority of that territory, to which the refugee shall be entitled to apply."

30. Where a refugee has lawfully taken up residence in the territory of a second Contracting State, the latter - in accordance with paragraph 11 of the Schedule will issue a new travel document to him. The practice of States in this regard is not uniform. In some States, the issue of a new travel document is automatic. In others, a new travel document is subject to a more or less formal verification of refugee status, which will only be fully re-examined if serious doubts exist as to whether the person concerned is in fact a refugee, e.g. if it appears that one of the cessation clauses in article l. C or an exclusion clause in article l. F may be applicable in his case. In other States again, refugees are frequently not issued with a new Convention Travel Document but simply a passport for aliens. In view of the general considerations set out in the preceding paragraphs, however, the question arises as to whether such a practice is in accordance with the letter and the spirit of the 1951 Convention.

31. Paragraph 11 of the Schedule to the 1951 Convention contains no specific indication as to when and under what circumstances a refugee is presumed to have lawfully taken up residence in the territory of another Contracting State. A number of bilateral and multilateral agreements have therefore been concluded in order to establish the point at which a refugee can be presumed to have taken up residence in the territory of another Contracting State and at which, therefore, responsibility for the issue of a Convention Travel Document is transferred. These bilateral and multilateral agreements provide for the transfer of responsibility once the necessary conditions (normally length of residence) have been fulfilled. They do not specify any requirement for a fresh determination of refugee status.

32. The provisions of these bilateral and multilateral agreements and, indeed, paragraph 11 of the Schedule to the 1951 Convention itself, are based on the assumption that the persons to whom they relate move to the territory of another Contracting State as refugees. without this assumption, these various provisions would lose their entire meaning and object. In the absence of strong reasons to the contrary, therefore, it would be inconsistent to call into question the refugee status of persons who., as refugees, are considered to have transferred their residence to the territory of another Contracting State in accordance with these same provisions. Such refugee status, based on a determination presumed to have been made in good-faith by another Contracting State, should therefore only be questioned in exceptional cases of serious and justified doubt It should also be recalled that the person concerned, prior to being accepted for residence, has been living in the territory of the second Contracting State as a refugee, i.e., as a person who has previously been determined to be a refugee, and has been issued with a 1951 Convention Travel Document. To consider that he is no longer a refugee at the time when he is regarded as having taken up lawful residence in the second Contracting State, in accordance with paragraph 11 of the Schedule, would mean depriving him of a legal status that he has hitherto enjoyed. A refugee should, indeed, be able to travel and to transfer his residence without being in fear of losing his refugee status.

The general concept of the international status of refugees

33. The extraterritorial effect of the determination of refugee status should also be considered against the background of the general concept of the international status of refugees. When the organized international community began to concern itself with the refugee problem after the first World War, one of its principal aims was to ensure that refugees were accorded a recognized legal status established by international instruments. One of the major preoccupations of the international community in defining this legal status was to ensure that it would be a realistic one and hence acceptable to as many States as possible. This also applied as regards the definition of the term "refugee". During the early discussions leading to the adoption of the 1951 Convention, consideration was given to the question of whether the definition of the term "refugee" should be a wider or a narrower one. Several representatives took the view, which finally prevailed, that a more restrictive definition should be adopted in order that it should be acceptable to all Governments. The consequences would be precisely to avoid the situation where a person would be considered a refugee in one State but not in another.¹⁷

Conclusions

34. The extraterritorial effect of the determination of refugee status under the 1951 Convention and the 1967 Protocol must be examined in the light of the actual provisions of these instruments, the practice of States, from the standpoint of the general concept of an internationally recognized status of refugees.

35. The provisions of the 1951 Convention, seen against the background of the travaux préparatoires leading to its adoption and of earlier international refugee instrument, illustrate a fundamental concern of Contracting States to safeguard the maintenance and continuity of refugee status once it has been determined. This preoccupation is evident in the definition of the term "refugee" in article 1. A (1), which seeks to preserve refugee status under earlier international refugee instruments, irrespective of the State by which such status may originally have been recognised.

36. A number of articles in the Convention enable a refugee residing in one Contracting State to exercise certain rights - in his capacity as a refugee - in another Contracting State. A requirement that such an exercise of rights should be dependent upon a fresh determination of refugee status by the other Contracting State was eventually not included in the 1951 Convention.

37. The institution of the Convention Travel Document - in continuation of earlier refugee travel documents already established under the League of Nations, starting with the Arrangement of 5th July 1992 - serves to underline the internationally recognized character of refugee status. The Convention Travel Document enables the holder to travel as a refugee to other Contracting States, including States that have not themselves determined the refugee status of the person concerned.

38. The 1951 Convention contains express provisions for the transfer of responsibility for the issue of a refugee travel document when a refugee has lawfully transferred his residence to the territory of another Contracting States. These provisions, in line with the provisions of earlier international refugee instruments, indicate that the determination of refugee status leading to the issue of a Convention Travel document should normally be accepted by the Contracting State to which the refugee, with the consent of that State, has lawfully transferred his residence. This conclusion is supported by the practice of a number of States, either unilaterally or on the basis of international agreements, concerning the transfer of responsibility for the issue of 1951 Convention Travel Documents. However, as this practice is not followed by States without exception, the question arises as to whether an effort towards harmonization, taking into account the letter and spirit of the 1951 Convention and the 1967 Protocol, would not be desirable.

39. The above conclusions would not, of course in any way affect the right of States to re-examine refugee status in cases where there are serious reasons for believing that a determination was wholly unjustified, e.g., if it appears that such status was acquired by fraud or that the person concerned falls within the terms of a cessation or exclusion provision of the 1951 Refugee Convention.

1 Report on the twenty-eighth session of the Executive Committee of the High Commissioner's Programme, document A/32/12/Add.1, paragraph 53 (6)(f).

2 They also include persons who have been considered refugees under the Constitution of the former International Refugee Organization (IRO).

3 Unless, of course, in the meantime one of the cessation provisions in article 1.C of the Convention has become applicable in regard to him.

4 Underlining added.

5 Document A/Conf.2/31.

6 Document A/Conf.2/SR.8, pp. 11-12. The President of the Conference stated that the proposed amendment would also be relevant to the articles concerning personal status and artistic and industrial property.

7 According to article 33 (1), "No Contracting State shall expel or return ("refouler") a refugee in 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."

8 The present reasoning does not, of course, apply to an offence of such a serious character as to permit the return to his country of origin of a refugee under the exceptions provided for in paragraph 2 of article 33

9 "Refugees lawfully resident in the territory of a Contracting Party shall be exempt, under the terms of this Agreement and subject to reciprocity, from the obligation to obtain visas for entering or leaving the territory of another Party by any frontier, provided that:

(a) they hold a travel document issued in accordance with the Convention on the Status of Refugees of 28th July 1951 or the Agreement relating to the issue of a travel document to refugees of 15th October 1946, by the authorities of the Contracting Party in whose territory they are lawfully resident;"

From this wording it follows that a person holding a 1951 Convention Travel Document is assumed to be "a refugee lawfully resident in the territory of a Contracting Party" and therefore entitled to take advantage of the provisions of the Agreement.

10 League of Nations Treaty Series, vol. CLXXI, No. 3952

11 The identity certificate was stated in the specimen to be issued in place of a provisional passport. It could be used as a travel document and visas could be affixed to it. It referred to the refugee status of the holder.

12 League of Nations Treaty Series, vol. CXCII No. 4461, p. 59.

13 United Nations Treaty Series, vol. XI, No. 150, p. 7.

14 Document E/1850, Page 32.

15 A/CONF.2/SR.32, pp. 10 and 11; ibid, SR.33, p. 6.

16 Underlining added.

17 Documents E/AC.32/SR.5, pp.7, 12-13 and SR.6, p. 4