Report of the 23 January Meeting of the Sub-Committee of the Whole on International Protection

1.         The Sub-Committee of the Whole oh International Protection (Sub-Committee) met on 23 January 1992 under the chairmanship of Ambassador Bernard de Riedmatten (Switzerland). The following agenda was adopted:

(1)           Plan of work of the Sub-Committee;

(2)           Change of circumstances and the cessation clauses (EC/SCP/1992/CRP.1); and

(3)           Any other business.

Plan of work of the Sub-Committee

2          In his opening remarks, the Chairman drew attention to the letter of 19 December 1991 from the Director of International Protection, setting out the plan of work which had been proposed following consultations by the Bureau of the Executive Committee with a number of delegations and UNHCR. The various issues suggested for discussion broadly divided into two groups. On the one hand, those which were specific in character and where consensus was possible in the shorter term (Category I) and, on the other, broader themes, already raised in part within the Working Group on Solutions and Protection (WGSP), requiring longer-term reflection (Category II). The Chairman noted that the list of items was not exhaustive and invited delegations to propose any additional items for discussion.

3          There was general agreement with the proposed work plan. Several delegations called on the Sub-Committee to give priority consideration to the more specific topics, while other delegations stressed, nevertheless, the importance of also discussing the general issues. In this regard, the cooperation between UNHCR and the human rights bodies was noted as an important issue. One delegation felt that the item on protection of persons of concern to UNHCR who fall outside the 1951 Convention should also be regarded as practical and relevant, and might even be considered as a Category I issue. Another delegation proposed that the safe country item be removed from Category I and placed in Category II. That delegation also proposed that the issue of physical protection of refugees, a problem highlighted in the annual Note on International Protection (A/AC.96/777), should be added to Category I items, while any discussion of voluntary repatriation, in the Sub-Committee, should be limited to the specific protection aspects of this solution.

4          Many delegations expressed doubts as to whether the Sub-Committee would have sufficient time available to consider and conclude discussions on all the issues listed in Category I, although it was agreed, nevertheless, that the effort should be made. One problem cited was that all draft conclusions would, for many delegations, require referral to capitals. Formal adoption would therefore have to await subsequent inter-sessional meetings, or the October session of the Executive Committee. On the question of timing of future meetings, several delegations requested the Secretariat to take into consideration the calendar of meetings of the Geneva-based international organizations and, within that framework, to give priority to those UNHCR meetings where operational issues requiring urgent attention were to be discussed.

5          The Sub-Committee agreed to adopt the proposed plan of work with the revisions suggested by the delegations, except as regards relocation of the safe country item. The revised plan is attached as Annex 1.

Change of circumstances and the cessation clauses

6          In his introductory comments, the Director of International Protection observed that profound global political changes, a more complex and sizeable refugee problem and renewed emphasis on return as the preferred solution had all given greater relevance to the cessation clauses over recent years. The Director explained that the discussion note (EC/SCP/1992/CRP.1) submitted by UNHCR summarized the main conditions which the Office believed should accompany any resort to the "ceased circumstances" cessation clause. These included the need for an exhaustive examination of the profound and enduring nature of the changes over a period of time, before any decision was taken to apply the clause. In addition, each individual affected should have the option to initiate reconsideration of his/her claim. Ongoing fear of persecution or compelling reasons arising out of previous persecution should justify continuation of refugee status. An appropriate alternative status, if not maintenance of refugee status, should be considered for those refugees who have established strong social and economic links in the country of asylum. Finally, States should take measures to deal humanely with the consequences for affected individuals, including, to the extent possible, steps calculated to facilitate return and reintegration.

7          The Director hoped that these points would be reflected in the conclusions that the Sub-Committee would recommend for adoption. He also drew attention to the fact that the relationship between cessation and voluntary repatriation was not dealt with in the paper. While he recommended it for closer study when the Sub-Committee considered the issue of voluntary repatriation, he noted the importance of not confusing the two issues in terms of the judgments and the criteria which should apply. A study of the relationship between cessation and safe country had also been omitted from the paper, given the fact that discussions in the Sub-Committee on the meaning and content of the safe country notion had not yet been concluded. The Director noted that a declaration of cessation involved an assessment of conditions in the country of origin which had been at the basis of recognition of refugee status. It did not, in principle, address whether other groups inside this country might have valid reasons to leave.

8          In introducing the paper on the same topic prepared by the Swiss Government, the Swiss delegate emphasized that not all issues related to cessation were covered, but that the paper was intended to serve as source of inspiration for the Sub-Committee on specific aspects, notably the question of how to give effect to decisions in the individual case once cessation is declared. The consequences of withdrawal of status had to be carefully analysed. Situations of undue hardship should be avoided and any alternative status which would preserve the refugee's previously acquired rights should be considered. The Swiss delegate suggested that the criteria for applying the "ceased circumstances" cessation clause should be more stringent than for the determination of "safe country", and the procedures applied should provide necessary safeguards, including as to the right of any refugee concerned to request reconsideration of a decision to apply the cessation clause in his or her case.

9          The Chairman welcomed the two papers which complemented each other well in examining the issue from slightly different perspectives. The practice was one he suggested should be followed for future meetings. In order to focus the discussion on cessation, the Chairman proposed that the delegations concentrate their remarks on the following aspects of the application of the cessation clause, even while bringing up whatever other points they might wish:

•       the kind of changes required to justify invoking the ceased circumstances cessation clause;

•       the period required for assessing the profound, stable nature of the changes;

•       the desirability of harmonized decision-making and the role of UNHCR;

•       the factors which will negate the application of the cessation clause in the individual case;

•       elements of relevance when assessing whether a refugee's social and economic links in the country justify continued residence; and

•       the procedural considerations to be taken into account in situations of return after cessation.

10        In ensuing discussions, the two papers were widely commended as complementary, balanced and valuable in setting out the framework for useful discussions. One delegation agreed on the significance of the ceased circumstances cessation clause but suggested the other cessation clauses might merit consideration at a later date. Many delegations provided information on approaches taken nationally or legislation in force concerning cessation. In a number of countries, even where the cessation clauses were incorporated in domestic legislation, they were rarely resorted to as refugees could acquire permanent residence within a relatively short time after admission. In another country, it was reported that refugees were only granted temporary residence and the issue of cessation was therefore of direct relevance. One delegation stated that his country had resorted to cessation clauses on several occasions and that this experience could be a valuable basis for the discussions in the Sub-Committee.

11        Several delegations agreed strongly with the point that refugee status was inherently temporary in nature, as the 1951 Convention itself reflected. Nevertheless, the need for a restrictive application of the cessation clauses was stressed by a number of delegations, given the consequences for the persons concerned. There was broad agreement that, before cessation could be applied, the changes in the country of origin had to be of a fundamental character, extending to the prevailing legislative, political and constitutional structures and processes, as well as the human rights situation. Several delegations called for greater precision as to the preconditions in this regard for the application of the cessation clauses. Other delegations felt no list of conditions should be established as it could not be representative or exhaustive. One delegation felt adherence to human rights instruments was not necessarily an appropriate precondition for application of the cessation clauses. There were different regional perspectives on these instruments which had to be taken into account.

12        Some delegations emphasized the need to consider the change in circumstances in relation to the specific elements which had given rise to individual refugee status. In their opinion, the "ceased circumstances" cessation clause could apply to individuals as well as selected groups of refugees, without all conditions necessarily being fulfilled for a wider application to all refugees from that country. As to whether the cessation clauses had an individual or a group application, while several delegations pointed out their practical value in large, group situations, other delegations emphasized the need, under their countries' laws, to approach cessation of status on an individual basis. This, it was pointed out, was consistent with the language of the 1951 Convention. The right for the refugee concerned to request reconsideration of a decision to invoke the cessation clause was widely acknowledged.

13        It was generally agreed that all developments which could appear to evidence fundamental changes such as would bring the cessation clauses into play had to be measured over time, as a guarantee of their stable and enduring nature. A number of delegations felt that the length of any such period could not be established formally but would have to be reasonable taking into account the concrete circumstances in the country concerned.

14        A number of delegations emphasized that the cessation clauses could not be applied to refugees who, despite fundamental changes in their country of origin, continued to have a well-founded fear of persecution, or who, for compelling reasons arising out of previous persecution, refused to reveal themselves of the protection of their country. One delegate advised that neither persecution by agents other than the State itself nor past persecution were recognized as valid grounds for refugee status in his country. A number of delegations raised questions about the entitlements of persons to whom cessation applied who, nevertheless, had acquired rights or strong social and economic links in the country of asylum. The need to avoid situations giving rise to undue hardship was recognized by a number of delegations, but they felt that maintenance of refugee status was inappropriate. Several delegations suggested that an alternative status to refugee status, including permanent residence status, had to be examined with a view to guaranteeing protection of previously acquired rights. Some delegations queried, in particular, whether economic links per se gave any rights in this regard.

15        There was general acknowledgement that the decision to apply the cessation clauses under the 1951 Convention was one which rested with the Contracting States concerned. Several delegations felt, however, that UNHCR could usefully play some role in this process and they called on the Office to delineate what that role should be. Other delegations felt that decisions on the applicability of the ceased circumstances cessation clause should be harmonized among States, with UNHCR's involvement, and should only be implemented on the basis of agreed arrangements involving all concerned parties, including the country of origin. One delegate proposed the creation of a multilateral framework to facilitate such decision-making. UNHCR was requested to clarify what role it might assume in such framework.

16        Several delegations suggested that the responsibilities and needs of the country of origin had to be appropriately taken into account when applying the cessation clauses. The modalities of return should be worked out in close cooperation with the country of origin and the international community should assist in the reintegration process of the returnees. Several delegations suggested that only refugees volunteering to return should do so on application of the cessation clauses. Another delegation stressed that the notion of voluntariness had no relevance once cessation applied. Other delegations stressed that, following application of the cessation clauses, refugees' future status in the country of asylum was regulated by the immigration laws of that country. One delegation provided information about its experience with reintegration programmes for refugees returning to their country of origin. It suggested that the cost for such programmes had to be shared by the international community as a whole and that the burden of financing return and reintegration should not fall solely on the countries of asylum from which the refugees were returning.

17        A number of delegations raised the relationship between declarations of cessation and the safe country notion, requesting that this issue be further examined. While certain delegations felt there was a close parallel between the two, others pointed out that the basis and purposes of both were different and accordingly they should not be confused. Some delegations felt that cessation should be linked to the wider discussion on causes of refugee flows and expeditious procedures to handle manifestly unfounded claims. One delegation queried whether the existence of a voluntary repatriation programme to a country of origin could be taken as an indication that the country could be considered safe, so that application of the cessation clauses should follow appropriately after the voluntary repatriation had taken place.

18        Another delegation stressed that the cessation clauses generally had a limited application and in no way should they be extended to become a mechanism to deal with issues or situations they were never intended to cover. In particular, they should not become a means to erect obstacles to acquisition of a regularized status.

19        In reply to a question, the Swiss delegation explained that the criteria listed in paragraph 2, page 2 of the Swiss paper in fact related to decisions on whether a country could be considered safe, not on whether to apply cessation. The criteria for the latter had to be approached more restrictively, given that cessation led to deprivation of status, whereas designation of a country as safe gave rise to presumptions subject to testing in asylum procedures.

20        In responding to the debate, the Chief of UNHCR's General Legal Advice Section confirmed that the element of time related to the stable and enduring nature of the changes and that no fixed time formula could be set for this purpose, although the time lapse had to be significant. She noted that ongoing persecution by other than State authorities and compelling reasons arising out of previous persecution were both generally recognized in international instruments and State practice as directly relevant to determination of status and decisions not to apply the cessation clauses. It was UNHCR's position that refugees with strong social and economic links in the country of asylum, often developed over a long period, deserved special consideration as regards the possibilities for continuing residence in the country of asylum. For these refugees, an appropriate alternative status, preserving acquired rights, should be considered. As far as harmonized decision-making was concerned, the proposal for a multilateral framework was well-worth pursuing and would be further considered. UNHCR's role could include sharing of country-of-origin information and participating in the assessment of the changes. The needs of the country of origin should be taken into account when implementing cessation, but this was not necessarily an element in deciding when and to whom the clauses applied.

21        At the conclusion of the discussion on this item, the Secretariat prepared the following draft conclusion for consideration by the Sub-Committee:

DRAFT CONCLUSION

CESSATION OF STATUS DUE TO CEASED CIRCUMSTANCES

The Executive Committee,

Noting that cessation clauses may be resorted to where a refugee has re-availed him/herself of national protection or where the circumstances giving rise to fear of persecution have ceased to exist so that international protection is no longer necessary or justified;

Recognizing that a strict approach is necessary to the application of the cessation clauses, given the need to provide refugees with the assurance that their status will not be subject to constant review in the light of temporary changes, not of a fundamental character, in the situation prevailing in the country of origin;

Stresses that prior to any decision on application of the cessation clauses based on "ceased circumstances", States must carefully assess the fundamental character of the changes in the country of origin, including as to the prevailing legislative, political and constitutional structures and processes, compliance with human right instruments and the general human rights situation, in order to ascertain that the refugees concerned safely can return and re-avail themselves of the protection of their country of nationality;

Underlines that an essential element in such assessment is the enduring nature of the changes, which can only be verified over time, making use of the various sources available in this respect, in particular human rights bodies and UNHCR;

Recognizes that the "ceased circumstances" cessation clauses shall not apply to individual refugees who for special reasons continue to have a well-founded fear of persecution or who have valid reasons arising out of previous persecution for refusing to re-avail themselves of the protection of their country and that all refugees affected by a decision to apply these cessation clauses must have the possibility, upon request, to have such application in their cases reconsidered on grounds particular to each case;

Recommends that States favourably consider continuation of refugee status or an appropriate alternative status, preserving previously acquired rights, for those persons who request permanent residence in the country of asylum based on strong social and economic links in that country;

Recommends also, that procedures for implementing any decision on cessation for individuals or groups should be clearly established and known to all concerned parties, and should provide, to the extent possible, for arrangements facilitating return, including as to travel documents, social security, transfer of assets and personal property, and assisting reintegration in the country of origin.

21        The delegations agreed to forward the text of the draft conclusions to their respective capitals for consideration. Delegations were requested to advise the Secretariat of any proposed amendments, after which and based thereupon, the Secretariat would prepare a revised draft for the next inter-sessional meeting.

Any other business

22        The Chairman informed the Sub-Committee that he would undertake consultations with delegations on the agenda and timing for the next meeting. Based on the discussion in the Sub-Committee and given that the delegates had expressed reservations about discussing conclusions before their referral to capitals, the Chairman would propose in these consultations that the next meeting consider the Category I issues of "Statelessness" and the "Protection aspects of voluntary repatriation" on the same day. The issue of "Protection of persons of concern to the High Commissioner who fall outside the 1951 Convention" could be the first Category II issue for discussion. The Secretariat had examined the calendar of other related international meetings and it would appear that the next inter-sessional meeting could take place in the latter half of March.

Annex 1

SUB-COMMITTEE OF THE WHOLE ON INTERNATIONAL PROTECTION INTER-SESSIONAL MEETINGS IN THE FORTY-SECOND SESSION

PLAN OF WORK

CATEGORY I

Change of circumstances and cessation;

Protection aspects of voluntary repatriation;

Stateless persons;

Physical protection of refugees;

Implementation of the 1951 Convention;

"Safe country" notion.

CATEGORY II

Protection of persons of concern to UNHCR who fall outside the 1951 Convention;

UNHCR's preventive role, including through cooperation with human rights bodies;

Protection and internally displaced persons;

State responsibility.