REFUGEE STATUS DETERMINATION

FEDERAL REPUBLIC OF NIGERIA

THE PRESIDENCY

NATIONAL COMMISSION FOR REFUGEES (NCFR)

REFUGEE STATUS DETERMINATION

ELIGIBILITY CRITERIA

Lagos, 5th April, 2011

1951 CONVENTION RELATING TO THE STATUS OF REFUGEES

Article 1 – Refugee DefinitionArticle 1A(2), as “amended” by the 1967 ProtocolThe term “refugee” shall apply to any person who, Owing to well-founded fear of being persecuted For reasons of race, religion, nationality, membership of a particular social group, or political opinion

Is outside his countryAnd is unable or, owing to such fear, is unwilling to avail himself of the protection of that country or to return

INCLUSION CLAUSE

For the 1951 Convention, a refugee is an individual in a social and political context

To find who is the person in the context and to understand his well-founded fears are the first steps to understand why his government doesn’t provide him protection

Relevant International Instruments

1951 Convention Relating to the Status of Refugees1967 Protocol 1969 OAU Convention Governing Specific Refugee Problems in Africa

The OAU, facing all liberation movements in Africa, got the idea of having a refugee treaty concerned with African concerns.

The UNHCR promoted at that time the 1967 Protocol removing the temporal and geographical limitations and intervened with African States to have not an independent but complementary OAU Convention.

Inclusion cont’dSo §1 of the definition is built on the 1951 Convention approach. But African States wanted also to look at the social African reality. So they drafted a supplemented paragraph = §2:

Article I – Refugee Definition2. The term “refugee” shall also apply to every person who, owing toExternal aggression,OccupationForeign domination orEvents seriously disturbing public orderIs compelled to seek refuge in another place outside his country of origin or nationality

= general grounds that were important for African States because of the many exodus following the colonialism…

Inclusion cont’dSo for African States those 2 approaches (§1 and 2) were important.

This Convention gave an impetus for the evolution of refugee definition:

It wasn’t only an African reality which was reflected in the definition but also a social realityE.g. Context in China in 1980s. In 1980 the UNHCR adopted a conclusion on temporary refuge which applied similar criteria as that of the 1969 OAU definition. Applied to refugees from Cambodia and Vietnam for temporary refuge.

Inclusion cont’d SO CONVENTION REFUGEE STATUS IS A LIMITED RESOURCE…. IT IS DENIED TO:

Palestinian refugees (at present receiving protection or assistance of a UN agency other than UNHCR): Article 1D CSR51

Those recognized in their country of residence as having the rights and obligations of nationals of that country: Article 1E CSR51

This provision was introduced for Germany because after WWII many German minorities were expelled from Eastern European States because of fear of treason. But it happened that they were admitted in Germany, the latter having preferential laws for them.

Before 1962 Commonwealth Citizens.

Inclusion cont’dThose excluded under Article 1F CSR51Internally displaced personsUN Guiding Principles on Internal Displacement, 1997

For the purpose of these Principles, internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflicts, situations of generalized violence, violations of HR or natural or human-made disasters, and who have not crossed an internationally recognized State border.

Inclusion cont’d …AND CONVENTION REFUGEE STATUS ITSELF CAN COME TO AN END…

The end of refugee status – Cessation: Article 1C CSR51The Convention shall cease to apply to individuals who, (= temporary nature) Have “re-availed” themselves of the protection of their country

The person shows by his contact with his country that he doesn’t have fear anymore.

!!! Careful!!! Example of Chile which still provided their citizens outside Chile with passports but they were not entitled to protection and had no right to go back in Chile. So the passport is not enough to assess if a person has re-availed himself of the protection of his country.

Inclusion cont’dAcquired a new nationality and protectionVoluntarily re-established themselves in their countryIt is not only about going back

Can no longer claim to be refugees because of change of circumstancesStates would say “it is safe enough in you area” so you have to go back

Usually movement from authoritarian to democratic regime is an indicatorSee also UNHCR which issues reports about circumstances in countries.

INCLUSION: ANALYSIS OF THE REFUGEE DEFINITION (1) “…WELL-FOUNDED FEAR

OF PERSECUTION”Fear of persecution = Article 1A(2) CSR51

…well-founded fear of persecutionMeasure of appreciation based on:

Facts on the ground Social and political context What we know about them and their country

… for reasons of race, religion, nationality, membership of a particular social group or political opinion

INCLUSION: (1) “…WELL-FOUNDED FEAR OF PERSECUTION” CONT’D

Evidence and proof – subjective fear/objective basisThe burden or onus of proof Following the UNHCR, a person should show that he has a claim to that right

SO falls initially on asylum-seekersThe standard of proof The assessment of a future risk

Decision makers have to rely on standards of proof in order for refugees to show that they are refugees.

UNHCR Handbook asks for a statistical definition for future fear

Here it is thus about looking into the future:

INCLUSION: (1) “…WELL-FOUNDED FEAR OF

PERSECUTION” CONT’D What happened in the past may be relevant but

it’s not the focus. The decision maker/judge has to be satisfied of the serious risk that he cannot likely disregard. o It is the weakness of the refugee definition

because the decision maker has to be satisfied.

o There is no presumption as such of refugee status in case of doubt. The UNHCR has a presumption policy. In the case of Canada, e.g., the system is institutionalized, as 2 judges have to speak with the same voice to reject a case.

So a lot more attention has been paid these days to credibility.


PERSECUTION” CONT’D Credibility

Of the applicant (personal credibility) E.g. when the applicant doesn’t look into the eyes.

However, it can also be cultural. One has to take into account the trauma, the cultural

background… Of the claim (narrative credibility)

The reasons for persecutionStates did not want to sign a blank check, so it was necessary to link the persecution to certain grounds which had been relevant in the past:

RaceReligionNationalityMembership of a particular social groupPolitical opinion

INCLUSION: (1) “…WELL-FOUNDED FEAR OF PERSECUTION”

CONT’D The 2004 EU Qualification Directive

= helpful to understand better the reasons of persecution. This provision is not only the one of the EU but it reflects the international position because it has taken element of HRL

e.g. if you go to the CERD, there is the same race definition.

So the practice has a background and it is not only the EU one.


PERSECUTION” CONT’D Article 10: Reasons for persecutionRace includes considerations of color, descent, or membership of a particular ethnic group

Religion includes holding theistic, non-theistic and atheistic beliefs, participation in or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief

Nationality not confined to citizenship or lack thereof but includes membership of a group determined by cultural, ethnic, or linguistic identity, common geographical or political origins or relationship with the population of another State.


PERSECUTION” CONT’D Particular social group where in particular:

Members share an innate characteristic, or a common background that cannot be changed, or a characteristic or belief so fundamental to identity or conscience that a person should not be forced to renounce it, and

That group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society

Political opinion includes holding an opinion, thought or belief on a matter related to the potential actors of persecution (Article 6) and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant.


PERSECUTION” CONT’D APPLYING THE REFUGEE DEFINITION…1) MEANING OF PERSECUTIONPersecution is not defined in any instrument

There is the crime of persecution in the ICC Statute

SO the jurisprudence of the international tribunals is useful to understand in general the terms but care should be taken because it is not the domain of international criminal law.


PERSECUTION” CONT’D Persecution includes:Violations of fundamental HRSerious harmAn element of discrimination

One can see that already in the way States define the refugee status = See the grounds that have already an element of persecution

Failure of the State to provide protectionBefore = Back in 20s and 30s, refugees were persons no longer enjoying the protection of the government of their country of origin = reference to diplomatic protection, as they were treated as non-nationals


PERSECUTION” CONT’D Nowadays = The same sort of sense of protection is interpreted in the 51 Convention But it falls back to the concept of persecution

itself = also in terms of a lack of protection at home and not only outside the country

= the refugee left because he/she didn't have the protection of HR at home

The actions of State or NSA There is a division of opinions between EU States on this Majority position =

It is not necessary that there is a link between the persecution and States, NSA can also be source of persecution.

But then what the State concerned do? So there is a part of responsibility of the State concerned too because it doesn't act.


PERSECUTION” CONT’D The UNHCR Handbook (1979)The UNHCR Handbook was re-edited 1992But hasn't changed, it is the same document in substance and hasn't been updated for political reasons.

So the positions stated may well have evolved. But it still provide guidance on those issues

Persecution includes…Paragraph 51: threat to life or freedom; other serious violations of HR

Paragraph 52: other prejudicial acts or threatsParagraph 53: cumulative effectParagraph 65: serious discriminatory or other offensive acts… by local populace


PERSECUTION” CONT’D Protected rights and interests

But which HR should we have in mind? If someone claims a restriction of its freedom of movement, it is not serious and fundamental

So one possible approach is to think about those right to which no derogation is permitted


PERSECUTION” CONT’D Human rights at riskRight to lifeProtection against tortureProtection against cruel or inhuman treatment

Freedom from slavery or servitudeProtection against retroactive penaltiesRight to recognition as person before the law

Freedom of though, conscience and religionBut how far does it go?


PERSECUTION” CONT’D

3 other HR that are frequently claimed:

Right to liberty and security of the person

Freedom from arbitrary arrest and detention

Freedom from arbitrary interference in private, home and family life


PERSECUTION” CONT’D Assessing the risk of persecutionone has to put himself/herself in the position of the decision makersthey face a lack of documentary proof

So how to assess the risk of persecution?Looking to the future, with an eye on the past…The nature of the right or freedom threatenedThe nature and severity of the violation or restriction

The rationale or reason for the interference with or violation of freedom, andOne of the grounds, such as race, nationality…

The likelihood of the restriction, interference or violation occurring in the individual caseThe percentage of risk gets problematic here


PERSECUTION” CONT’D Criteria for assessment:Assessment on individual basis

This requires that you look into every single case

All « elements »All relevant factsApplicant's individual position and personal circumstances

Activities since leaving the country of originReasonable availability of protection by virtue of other nationality

Past persecution or harm


PERSECUTION” CONT’D So it is a general approach, a common sense approach.

But in seeking to promote a harmonized approach it looked also at sources of persecution

Article 6 : Sources of persecution or serious harm :

The StateThe State is the one commonly understood as the persecutor

Parties and organizations controlling the State


PERSECUTION” CONT’D NSA where the State or parties or organizations, including international organizations, controlling the State are unable or unwilling to provide protection.

Article 7 : Actors of protectionThe StateParties and organizations, including IOs, controlling the State or a substantial part of the territory of the State BUT there is a problematic issues =

As regards to IOs: For the most part IOs are not bound by HR treaties and are

limited in the functions which they are entrusted. So they are not the same as governments and cannot provide the same protection.


PERSECUTION” CONT’D As regards the control of a substantial part of the territory:

So if there are resistance movements, the latter should provide protection when controlling a part of the territory. But in reality they are not bound to provide the same protection as the State.

So this led to practical problems for the last years. This is not realistic but States have claimed a right to return people in such situations.

Article 9 : Acts of persecution Acts of persecution must be:Sufficiently serious by their nature or repetition as to constitute a severe violation of basic HR… or a single act can amount to persecution

An accumulation of various measures…


PERSECUTION” CONT’D Examples

Physical or mental violence Legal administration of the police and/or judicial measures Prosecution or punishment if disproportionate or

discriminatory The law can be a source of persecution but the fact that you

are punished doesn't mean that you are a refugee because the law has always been used as an instrument of persecution.

Denial of judicial redress It may be part of the act of persecution

Prosecution or punishment for refusal to perform military service, where such performance would include exclusion acts or offences

= cross reference to article 1 f of the 51 Convention It is not a general open ended recognition, it is only

recognized when a person would have had to perform illegal acts if he had engaged/rejoin the military (such as WC, CaH, genocide...)


PERSECUTION” CONT’D Issues of interpretationThe « internal flight alternative »Does a person who could have been able to move to another part of his/her country would be nonetheless a refugee under the 1951 Convention? This is not a problem under the 1969 Convention but it is under 51 Convention which doesn't address this issue

See the one case = Januzi, House of Lords (if interested)

Whether if there is protection in a part of your country you should access it and how much protection should there be there.

For Hathaway, the level of protection should be as high as possible

For the House of Lords, there must be only a certain level


PERSECUTION” CONT’D Flight from civil war = persecution and conflict related risk

It is not because a person is fleeing a civil war that he/she is a convention refugee, as he/she may not be at particular risk, unless he/she can prove the persecution element.

Usually people may prove that they are at risk because of the civil conflict on the ground of ethnicity (because of the nature of the conflict)so it is not incompatible with the refugee status

In the 1969 AU Convention, conflicts are recognized as a possible source of persecution

In the EU Qualification directive, the subsidiary protection encompasses the conflict criterion

INCLUSION: ANALYSIS OF THE REFUGEE DEFINITION (2) “…PARTICULAR SOCIAL

GROUP… POLITICAL OPINION”MEMBERSHIP OF A PARTICULAR SOCIAL GROUP…Non-discrimination = Article 2 UDHR and Article 2 ICCPR« national or social origin, property, birth or mother status »

UNHCR Handbook 1979 – membership of a particular social group

77. A « particular social group » normally comprises persons of similar background, habits or social status…

78. Membership of a particular social group may be at the root of persecution because there is no confidence in the group’s loyalty to the government or because the political outlook, antecedents or economic activity of its members, or the very existence of the social group as such, is held to be an obstacle to the Government’s policies.


GROUP… POLITICAL OPINION”Ward v. Attorney-General of Canada, 1993, 2SCR 689 (Supreme Court of Canada)

Here the court defined that concept of member of a social group:Those defined by an innate or unchangeable characteristic

Those whose members voluntarily associate for reasons fundamental to their human dignity e.g. HR defenders

Those associated by a former voluntary status= Those that can never escape that past in some way and will always be in this group.


GROUP… POLITICAL OPINION”The 2004 EU Qualification DirectiveArticle 10 : Reasons for persecutionparticular social group where in particular:members share an innate characteristic, or a common

background that cannot be changed, or a characteristic or belief so fundamental to identity or conscience that a person should not be forced to renounce to it,

that groups has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.


GROUP… POLITICAL OPINION”Women as claimants to refugee statusSo : Non-discrimination on the ground of gender

We still have to link the women, persecution and the Convention Gender as “link” in the context of social group Persecution for reasons of membership of a particular social group

Case of K and Fornah v. Secretary of State for the Home Department, 2007

Here comes always the same question = It is for a convention reason that a person is persecuted?

See also the case with Pakistan... Identifying the group within the group – the question of risk

One has still to show that there is a risk of persecution, so not all women are persecuted as such

Case of K. and Fornah v. Secretary of State for the Home Department, 2007

Islam and Shah v. Secretary of State for the Home Department, 1999


GROUP… POLITICAL OPINION”So for identifying a social group here is a summary set of criteria

Involuntary linkages – innate or unchangeable characteristics; or

Voluntary association for “fundamental” reasons; and/orSocial perceptions – the perception of otherPOLITICAL OPINIONArticle 19 UDHR, Article 19 ICCPREveryone has the right to freedom of opinion and expression ; the right

includes freedom to hold opinion without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers

… any opinion on any matter in which the machinery of State, government and policy may be engaged.


GROUP… POLITICAL OPINION”Issues of interpretationsThere are issues when:Political opinions are unexpressedPolitical opinions are actual or imputedPost-flight political activities

Political opinion expressed after having entered the new country

More to do with personal credibilityPolitical offenders

more and more problematic, we'll see that in exclusion

Political acts are still problematicThey are associated with terrorism often those days and tend to be excluded

EXCLUSION FROM REFUGEE STATUS

AND

PROTECTION

(WAR CRIMINALS, NATIONAL SECURITY AND TERRORISM)


= denial of protection Idea of excluding people is ages old:WWII after Nuremberg, States were keen to exclude war criminalsSo they made sure that refugee status was not enjoyed by those persons.

Article 14 UDHR: the right to seek asylum2. This right may not be invoked in the case of

prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the UN.= no asylum for ordinary criminals and those acts contrary to UN principles


IRO ConstitutionIt doesn’t extend to ordinary criminals extraditable by treaty

UNHCR Statutecrimes covered by the provisions of treaties of extradition

The “political offence” exception:Rationale for the exception of political offenders:

XXth century perception was that political revolutions were seen as a useful mechanism to get rid of authoritarian government.

Political motivation if you rob a bank to fund your revolutionary movement, it is not enough to make your offence political

The general view is that the political motto has to be predominant


Crimes in international lawIt doesn’t encompass WC, CaH, genocide but those crimes that States have deemed to be serious enough to require a certain level of cooperation e.g. Highjacking, hostage taking which shall not be considered as political offences no matters their political character under extradition exceptions

BUT extradite or prosecute (in case you think risk of torture back home)

Not sure about what remain political offences today. The area is shrinking considerably.


National security1951 Convention States were conscious about national security dimensionSo the arguments that the Convention is not suitable in the context of terrorism is not true.

See 2 particular provisions:Article 8 1951 Convention

Exemption from exceptional measuresArticle 9 1951 Convention

intended to allow State in time of war to take exceptional measures = provisional measures in time of war or other grave and exceptional circumstances


Denial of protection under the Convention a) Article 1F : the Convention shall not apply to anyone with respect to whom there are serious reasons to consider that he or she :

Has committed a war crime, crime against peace or crime against humanity

One doesn’t have to show that the person is guilty or has been convicted, the State has only to have serious reasons to consider so. = Not a requirement of conviction but it enables States to exercise broad discretion in determining whether the facts do indeed support the fact that the person committed one of those crimes.


b) Before admission to the country of refuge, has committed a serious non-political crimeWhat is a serious crime? The French version speaks about « grave délit »Look if the person would have had to go to prisonWould he have to go to prison in the State of origin and in the receiving one?

Look at the nature of the crime


What is a non-political crime today? What’s left in the political crime category?

Can’t be hijacking, terrorism.. So what’s left?

Expression of political opinions might be Prisoners of conscience But today there is no more willingness on the part of States to

identify those ordinary crimes which might be excused due to a political motivation.

Interference with electoral processes perhaps This provision was relying upon the idea that there was a general sense that emerged in the context of extradition

So States knew what they were talking about at that time = political offenders

So there was a sense But now it seems like that sense is gone, States’ interest is

now the real issue for extradition.


c) Has committed acts contrary to the purposes and principles of the UN

Idea that emerged at that timeUntil 2001 it was applied on a restrictive basis

After 2001 it has been applied to terrorism as against principles and purposes of the UN.

SC Resolution 1373, 28 September 2001:Paras 3(f)(g) – The SC calls upon all States “To take ‘appropriate measures’ to ensure that asylum

seekers have not ‘planned, facilitated or participated in the commission of terrorist acts”


“To ‘ensure…that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists”.

Para. 5 The Security Council declares“Acts, methods and practices of terrorism are contrary to the

purposes and principles of the UN and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the UN”

= interesting interpretation of Article 1F c) as regards the purpose of the UN SC here says that terrorism is contrary to the purposes of UN as well as planning, financing and inciting


So, to sum up, in relation to security:Articles 1F, 32, 33 = security appears as an exception

The object and purpose = protection and security concerns are a narrow exception to those objects and purpose But there is a tendency where it seems that the purpose is more security and that the exception is protection today. It is problematic


So it is a loose provision. States don't have to do much to exclude someone.

= not the same standards as those applied by the tribunals to assess the individual criminal responsibility of a person

MH case [Syria] A lot of exclusion cases came up in the UK Facts = a young girl joined the PKK at 13 years old

She was a child then, did she join under duress? This raises the issue of child soldiers (but this issue didn’t come up in this case)

Should child soldiers be excluded from refugee status? What facts are relevant?

Use of drugs, brutalization of children, forcible recruitment. They are obliged to commit atrocities and have no possibility to come back home…


How do we deal with this in refugee protection??= these issues are better resolved by applying the CRC, Article 3 = best interest of the child

She has been primarily involved not in armed activity (not terrorism) but in nursing assistanceHow can she be penalized as a nurse? How can she be brought within Article 1F?

The natural reaction of IHL to this question would be that she cannot be penalized as nursing (medical care) is a protected activity

But in MH the tribunal did say that if she cared for suicide bombers who were going to explode themselves later on, she’s guilty

Are there defences to those exclusions? Can u rely on duress?The Courts tried to rely on the same criteria as in ICL…

Now look to ’77 AP and ICC Statute for the definition of those terms

THANK YOU

REFUGEE STATUS DETERMINATION

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