Ending Asylum: Protection Concerns Relevant to Mass Return in the Kosovo Operation

Purpose of the Note

Return is now imminent for those who fled Kosovo over the past months.  To date, the focus on return planning has been almost exclusively on Kosovo itself.  Yet, the ending of asylum in those countries which have offered protection must also be approached in a principled manner, based on the international framework for refugee protection.  This note reiterates the relevant general principles, identifies potential difficulties which may arise, and suggests various types of action to address these problems.[1]As there is a likelihood of return occurring in a mass movement, a situation which poses specific challenges to upholding protection principles, related issues have been given prominence.

Ending Asylum for Whom - The Affected Population

UNHCR has consistently characterised the population leaving Kosovo during 1998 and 1999 as composed overwhelmingly of refugees. The displacement within and from Kosovo, which the world has witnessed for more than a year and which intensified in recent months, has been driven by the threat of serious harm which has been meted out on the basis of ethnicity and imputed political opinion.  Forced deportation, particularly accompanied by violence, dispossession and efforts to erase identity, is persecution in itself. The fact that the population can be characterised as a refugee population has important implications for the ending of protection and return: that is, refugee protection principles apply.

Ending Asylum - The Principles and Responses 

1. Voluntariness of Return

Protection Principles: Voluntariness is the key to refugee return, and has a number of aspects:

·        the principle of non-refoulement (the prohibition on return to a country or territory where the refugees' lives or safety would be threatened on Convention grounds) dictates that refugees cannot be compelled to return against their will;  

·        voluntariness only ceases to be a prerequisite for return after a significant and durable change in circumstances in the country of origin sufficient to warrant cessation of refugee status. (This is clearly not the case in Kosovo and will not be the case for some time to come);

·        by the same token, refugees have the right to return to their country of nationality and origin and should not be prevented from doing so if they so desire; 

·        voluntariness must be judged both from the point of view of the circumstances in the country of asylum and those in the country of origin - that is, refugees should be able to decide whether to return with information available to them and without undue influence being exerted upon them;  

·        even where return of the majority is on-going, there will be refugees who continue to have a well-founded fear of persecution whose protection needs have to be met.

Mass Return Issues: Voluntariness is particularly at risk in situations of mass return because

·        mass movement by its very nature limits the individual's ability to obtain information, to weigh it objectively, and decide independently on return;

·        where there are large numbers of persons who have previously moved together (for example having fled together), there may be an element of coercion in the sheer numbers involved, and it  is difficult for an individual to extricate him or herself from the group;

·        in mass return there is heightened potential that the movement will be used, or attempts will be made to use it, for political, military or other such purposes;

·        where large numbers are moving en masse, it will be very difficult to provide an adequate mechanism and opportunity for those who do not wish to return to make their objections known to authorities, and to have those objections judged in an impartial way;

·        the overwhelmingly large numbers of those returning en masse tend to influence negatively the attitudes of the authorities to objections to return, obscuring real dangers or compelling humanitarian circumstances which may persist for some refugees including, for instance,

·        the unaccompanied elderly, 

·        unaccompanied minors, 

·        families of mixed ethnic origin,

·        persons belonging to a minority ethnic group,

·        deserters or draft evaders in certain circumstances,

·        victims of torture or particularly egregious forms of violence, (for example, ex-detainees, or women who may have suffered sexual violence) 

In the Kosovo Operation:

·        initially, refugees who are eager to go back should have their return facilitated, as soon as conditions on the ground permit;

·        while it will in all likelihood be impossible for willingness to be verified in the usual manner through individual signing of voluntary repatriation forms, UNHCR and partner staff on the ground should be vigilant, on the look-out for signs that any entity is coercing refugees to return against their free will, and make appropriate interventions to stop the coercion; 

·        as the return movement gains momentum, the protection challenge will be to identify those who have objections to return,  who should be provided with an opportunity to request continued protection;

·        some mechanism must be put in place for persons who do not wish to return to make their objection known, to put forward their reasons for objecting, and to have their protection and humanitarian needs decided objectively, in a fair and timely fashion; 

·        UNHCR staff should monitor (or undertake as necessary) such procedures and provide assistance and advice to both refugees and governments on continuing protection needs;

·        refugees wanting to return to Kosovo should be provided regularly with updated information on the situation inside Kosovo (particularly the security conditions, the role and presence of UNHCR and how to contact the Office) and, where they exist, on any available arrangements to assist refugees to return, through a variety of media ("mass information campaign");

·        UNHCR and humanitarian aid agencies present in the country of asylum should pay particular attention to those who have special protection needs and may have particular difficulty in returning, such as those groups listed above.  For example, separated children and unaccompanied elderly persons especially should receive counselling and the appropriate care and their cases should be considered in light of their best interests, given their particular needs.

2.      Return in Safety

Protection Principles:  Return should take place under conditions where the following is assured:

·        legal safety (such as guarantees of recognition before the law, amnesties or public assurances of personal safety, integrity, non-discrimination and freedom from fear of persecution or punishment upon return);

·        physical security (including protection from armed attacks, and mine-free routes; and if not mine-free, then at least demarcated settlement sites);

·        material security (e.g. access to land or means of livelihood);

·        proper modalities are in place in on both sides of the border to ensure a safe return.

Mass Return Issues:  Safety concerns in mass return situations include the following:

·        mass return is likely to occur once refugees and/or host countries see an improvement in physical security, (after cessation of hostilities and deployment of an international security presence) but before de-mining or establishment of frameworks to ensure legal safety (e.g., enactment of amnesty laws, important for draft evaders or deserters);

·        the large numbers returning rapidly may confront/create difficulties with reclaiming property (proof of ownership, how to mediate or resolve property disputes), as well as accessing a means of livelihood;

·        other actors (regional security organisations, parties to the conflict, international forces or other inter-governmental organisations) are likely to take on a leading role in the overall situation where mass movement occurs, and UNHCR's ability to protect refugees and returnees and influence the progress of the return may be limited.

In the Kosovo Operation:  

·        refugees wanting to return to Kosovo should receive mine awarenessinformation and, if possible, training before departure;

·        registration which precedes return (if any) should be explicit in recording property to be reclaimed, and refugees not returning immediately should ideally be provided with the opportunity to register their property claim at the earliest possible moment;

·        UNHCR should ensure, to the extent possible prior to return, that refugee identity and registration documents will be accepted as proof of prior residence and the right to return; 

·        UNHCR must have sufficient protection staff in place in order to liaise regularly with NATO, OSCE, other inter-governmental and non-governmental organisations as well as with governments, advising them constantly and consistently of the relevant refugee protection principles and encouraging them to implement these principles in the context of return;

·        UNHCR must be prepared to protest strongly to governments and other actors when protection principles are not being respected, and to "go public" with protection concerns when quiet diplomacy does not work.

3.      Return in Dignity

Protection Principles: Return with dignity means, in practice, that

·        refugees must not be manhandled;

·        if returning spontaneously, they can do so at their own pace;

·        they are not separated from their family members; and

·        they are treated with respect and full acceptance by their national authorities, including having their rights fully restored.

Mass Return Issues:  Difficulties in ensuring the dignity of returnees in situations of mass return may arise in the following ways: 

·        refugees may be "swept along" in the mass movement without having adequate time and opportunity to prepare, and may not be able to move at a suitable pace (this will be a particular problem for the elderly, small children and handicapped persons);

·        adequate transportation facilities are not likely to be immediately available for the large numbers of persons moving together; 

·        mass movements increase dramatically the likelihood of family separation;

·        mass movements make it difficult, if not impossible, to record adequately the identity and location of returnees, increasing the potential for discrimination and disputes about rights;

·        host country and country of origin authorities may be more likely to use physical force to encourage and control onward movement in situations of mass movement.

In the Kosovo Operation:

·        refugees should be registered and provided with identification cards or at least copies of their registration forms before departure if at all possible;

·        if prior registration is not possible, consideration should be given to registering in the proximity of border crossing points, preferably having present as part of the registration team someone able to distinguish (because of local knowledge, familiarity with language differences etc.) between Kosovo Albanians and Albanian Albanians;[2]

·        even if there is a registration pre-departure or at the border, refugees should be registered as soon as possible after return, preferably upon arrival in their communities;

·        modalities for quickly identifying separated family members and tracing their families need to be in placeduring the return, and tracing operations now in place in countries of asylum should be continued and coordinated with efforts during and after return, including the sharing of registration information from refugee and returnee registration exercises with ICRC to facilitate tracing in both the asylum countries and in Kosovo;

·        UNHCR, inter- and non-governmental or other organisations should be present along the return routes and, to the extent possible, monitor the treatment of the refugees in transit;

·        for those who cannot return immediately on account of age, disability or for any other reason, but who will willingly return as soon as suitable transportation or reception facilities can be provided, appropriate transitional arrangements should be maintained or put in place by UNHCR and partners to ensure continued protection and adequate living conditions;

·        foster arrangements in place to ensure care for separated children should be preserved during and after return; no separated children should be returned, nor left behind in the asylum country, if that would lead to them being placed in institutional care;

·        unaccompanied children should not be returned until tracing efforts have been completed and the conditions they will face on return are known and acceptable (see also discussion below on Those who Cannot or Do Not Wish to Return);

·        due regard should be paid to the need to preserve family unity in cases where family members arrived in the same country under different circumstances and may have different status there.

4.      Those Who Cannot or Do Not Wish to Return

Protection Principles: Refugees who have on-going protection needs or compelling humanitarian reasons and therefore object to return should be provided with the necessary protection.  For those who do not return in the short term, the options available are

·        continued protection in the country of asylum;

·        local integration; or

·        resettlement to a third country.

Mass Return Issues: As mass return typically occurs before the situation in the country of origin has stabilised sufficiently to be considered safe, 

·        continuing international protection for a period after return of the majority commences will be the appropriate interim solution for some while protection concerns ((e.g. tracing) are being addressed;

·        however, the circumstances of some individuals will dictate that a durable solution should be found for them immediately.  These individuals may include, for example,

·        separated or unaccompanied children, once tracing efforts have been exhausted or it is determined that they cannot reunite with family members ;

·        those for whom return would be psychologically detrimental or inhumane (possibly the case for some ex-detainees who experienced torture, some women victims of sexual violence and like cases);

·        unaccompanied elderly without family members in the country of origin but with relatives in a third country; 

·        those who cannot live safely in the asylum country  (for example, high profile political or other leaders who may experience threats);

·        persons belonging to minority ethnic groups;

·        families of mixed ethnic origin.

In the Kosovo Operation:

·        As return becomes a reality, authorities and UNHCR staff should be alert to the need to consider resettlement for protection or compelling humanitarian reasons in individual cases or for groups such as those listed above, and take appropriate action;

·        if and when appropriate, UNHCR should make demarches with States to encourage local integration and resettlement of the individuals in need of these solutions.

Standards and Legal Advice Section

Department of International Protection

11 June 1999

[1] Many of the scenarios outlined have been provided by the staff in the operation, and many of the activities suggested are in fact already being implemented (e.g. mass information campaigns, mine awareness training, resettlement); others may prove difficult to achieve.

[2]  Every effort should be made to avoid (to the extent possible) over-inflating the numbers of returnees.