Applicability of the Cessation Clauses to Refugees From the Republics of Malawi and Mozambique

A. Background

Malawi

1. Following the establishment of the National Consultative Council to draw-up the new Constitution, and the National Executive Committee to oversee the political transition from a one-party rule to a multiparty democracy, the first democratic elections were held in May 1994. The elections were judged to be free and fair by the international community and Malawi has remained stable as a functioning multiparty democracy ever since. The human rights situation has continued to improve and the independence of the judiciary is guaranteed by the new Constitution, which also contains strong human rights provisions. A substantial number of former exiles and refugees have returned and successfully re-integrated into Malawi society. A number of returnees are now prominent members of various political parties. In light of the above, UNHCR believes that the change of circumstances in Malawi is of a fundamental and durable nature, and the cessation clause should be applied to Malawi refugees.

Mozambique

2. Following the signing of the Rome Peace Accord in October 1992, the first multiparty elections were successfully conducted in October 1994, which ushered in a new era of democratic government and respect for human rights.
Since the signing of the Peace Accord more than four years ago, Mozambique has enjoyed uninterrupted peace and stability. As a result, 1.7 million refugees have returned in safety and dignity to their places of origin, and have successfully re-integrated into Mozambican society. These developments, as well as their broad international recognition and appreciation, are indicative of the fundamental nature and durability of the changes which have taken place in Mozambique, and call therefore for the application of the cessation clause to Mozambican refugees, as recommended by a number of Tripartite Commissions for the promotion of voluntary repatriation.

B. Application of the Cessation Clauses of the UNHCR Statute, the 1951 Refugee Convention and the 1969 OAU Convention

3. The High Commissioner is of the opinion that refugees from the Republics of Malawi and Mozambique, who fled as a result of events in these two countries prior to 1994, can, in principle, avail themselves of the protection of their country of nationality and/or habitual residence. The cessation clauses contained in paragraph 6 A (e) of the UNHCR Statute, Article I C (5) of the 1951 Convention, and Article 1.4 (e) of the 1969 OAU Convention are therefore applicable to those refugees.

4. In accordance with basic principles of refugee law, reaffirmed by the UNHCR Executive Committee in Conclusion No. 69 (XL111) (1992) on Cessation of Status, herewith attached as Annex I, the cessation clause should not apply to refugees who continue to have valid grounds for claiming a well-founded fear of persecution. Persons claiming such grounds or other compelling reasons for wishing to continue to be regarded as refugees should be handled in accordance with guidelines provided in paragraph 8 below.

C. Legal and practical consequences

5. As far as UNHCR is concerned, in the absence of special circumstances to the contrary, persons falling under paragraph B (3) above will cease to be refugees as from the date of publication of this IOM-FOM. Former refugees who remain outside Malawi and Mozambique after that date will not normally) be entitled to international protection, and their continued stay in the asylum country will depend upon the authorization of the Governments concerned. Such persons should be encouraged to deal directly with the asylum country regarding their legal status and rights in that country, taking into account the possibilities outlined below for a new status in the former country of asylum or for voluntary repatriation under the auspices of UNHCR.

6. On the other hand, with regard to refugee status under the 1951 Convention and its 1967 Protocol, as well as the 1969 OAU Convention, UNHCR Representatives should endeavour to ensure that whatever acquired rights individuals concerned may possess will be taken into account by the authorities. Due regard must be taken of the need to avoid unnecessary individual hardship, particularly where the loss of refugee status might lead to an automatic loss of residence and therefore disrupt any successfully initiated integration process in the host country.

7. It must be left to the governments of the countries of asylum concerned to determine whether and how to apply the relevant cessation clauses of the 1951 Convention in accordance with their domestic legislation. Given the supervisory role assigned to the Office in Article 35 of the 1951 Convention, however, UNHCR is expected to assist States in meeting the requirements of Conclusion No. 69. Consistent with this Conclusion, it is recommended that the authorities be requested to consider new arrangements for those persons who cannot be expected to leave the country of asylum due to long stay in that country resulting in strong family, social or economic links there. Such arrangements may include the granting of legal immigrant status or naturalization.

8. Field Offices are also requested to ensure the Office's own application of cessation clauses. UNHCR Offices should apply the cessation clause on a group basis. Individual members of the group may request reconsideration on the basis of special circumstances justifying maintenance of their refugee status. Two different bases for reconsideration may be presented:

i) Certain refugees may claim specific reasons for continuing to have a well-founded fear of persecution if they return to Malawi or Mozambique. Persons requesting the non-application of the cessation clause on such grounds should be afforded an opportunity to present, either to UNHCR or to the authorities of their country of asylum, the specific grounds on which they base their claim of a continuing wellfounded fear of persecution. Special attention should be given to the cases of refugees who have reason to believe that they may still be the subject of arrest warrants or convictions in absentia for acts related to the situation which led to recognition of refugee status. Such cases may be referred to Headquarters for advice.

ii) Individual refugees may have compelling reasons arising out of previous persecution for refusing to re-avail themselves of the protection of their country of origin, which could call for the possible application of the final clauses in Article 1 C (5) and (6) of the 1951 Convention. UNHCR Offices should request States to give due consideration to the request for continuing refugee status or, alternatively, consider an appropriate arrangement for such persons or other specific cases, based on the humanitarian considerations mentioned in paragraph 136, Chapter III of the Handbook on Procedures and Criteria for Determining Refugee Status, and in the Executive Committee Conclusion No. 69 (e) (XLIII) (1992) on Cessation of Status. (Annex 1).

D. Material Assistance

9. In the case of former refugees who are allowed to continue residing in the host country, the UNHCR Representative, in consultation with Headquarters, should establish a reasonable time-limit for the cessation of UNHCR's assistance.

E. Voluntary Repatriation

10. Malawi and Mozambican refugees should be informed that, in connection with application of the cessation clause, those for whom no other solution has been offered will be afforded a last opportunity to repatriate. Should UNHCR assistance be necessary for an individual repatriation, Field Offices are requested to submit to Headquarters for approval details of the request for repatriation before taking further action.

11. Where UNHCR has no presence in the country of asylum, those persons whose refugee status has ceased, and who are in need of repatriation assistance, should be advised to consult the UN Resident Coordinator in their respective country. Measures to facilitate the return of such persons should be implemented, to the extent possible, in line with paragraph 10 above.

Annex

ExCom Conclusion No. 69 (XLIII) -1992 – Cessation of Status

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