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Applicability of the Cessation Clauses to Refugees From Chile

Publisher UN High Commissioner for Refugees (UNHCR)
Publication Date 28 March 1994
Cite as UN High Commissioner for Refugees (UNHCR), Applicability of the Cessation Clauses to Refugees From Chile, 28 March 1994, available at: http://www.refworld.org/docid/4165716d10.html [accessed 26 July 2014]

A. Background

1. Since the presidential and parliamentary elections of March 1990 which started the process of reinstating the country's democratic institutions, a large number of Chilean refugees have voluntarily repatriated – either spontaneously or under the terms of the Tripartite Agreement between the Chilean government, UNHCR and the International Organization for Migration and have done so in conditions of safety and dignity. These factors, plus the time that has passed since the beginning of this process, attest to the durable and fundamental nature of the changes that the Chilean institutions have undergone.

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

2. The High Commissioner is, therefore, of the opinion that the refugees who fled Chile as a result of events which took place following the Coup d'Etat in September 1973 by the military regime against President Allende can, absent exceptional circumstances, avail themselves of the protection of their country of nationality or former habitual residence, since the grounds for maintaining refugee status have ceased to exist. Thus, the cessation clauses contained in paragraphs (6) A(e) and (f) of the Statute of the Office and Article 1 C(5) and (6) of the 1951 Convention are applicable to these persons.

3. In accordance with basic principles of refugee law, reaffirmed by the UNHCR Executive Committee in the Conclusion No. 69 (XLIII) (1992) on cessation of status, 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 continuing to be regarded as refugees should be handled in accordance with paragraph 5 below.

C. Legal and practical consequences

4. As far as UNHCR is concerned, in the absence of special circumstances, persons falling under Section B (2) the status of ordinary aliens and their continued stay in the asylum country will depend upon the above have ceased to be refugees. Former refugees who remain outside Chile will henceforth have authorization of the Government 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 repatriation under the auspices of UNHCR.

5. UNHCR Offices should apply this clause on a group basis. Individual members of the group may request reconsideration on the basis of special circumstances which may justify maintenance of their refugee status. Two different bases for reconsiderations may be presented:

(i) Certain refugees may claim specific reasons for continuing to have a well-founded fear of persecution if they return to Chile. Persons requesting reconsideration of the cessation clause to their case 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 relevant to their case on which they base their claim of a continuing well-founded fear of persecution. Special attention should be given to the cases of refugees who have reason to believe 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 should be referred to Headquarters in order to examine the merits of the case and advise the country of asylum accordingly.

(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 by analogy by a State Party to the 1951 Convention and/or the 1967 Protocol or by UNHCR 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 continuing the 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 of Procedures and Criteria for Determining Refugee Status and in the 1992 Executive Committee Conclusion 69(e) (XLIII) on Cessation of Status

6. It must ultimately 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 to meet the requirements of the Conclusion No. 69. Field Offices are also requested to ensure the protection provided for therein to refugees affected by the Office's own application of the relevant cessation clause in the UNHCR statute.

D. Material Assistance

7. In the case of former refugees who are allowed to continue residing in the host country, the UNHCR Representative in consultation with Headquarters should fix a reasonable time limit for the cessation of UNHCR material assistance.

E. Voluntary Repatriation

8. Should UNHCR assistance be necessary for an individual repatriation, UNHCR field offices are requested to submit to Headquarters for approval, details of the request for repatriation before taking further action. All former Chilean refugees who qualify for repatriation and who wish to return under the auspices of the High Commissioner should register with UNHCR or its operational partner by 30 September 1994, and should have reached their final destination by 1 August 1995. On very special grounds such as completion of an ongoing course of studies prior to repatriation may be authorized to postpone repatriation beyond the dates set forth above. Decisions on such cases should be taken by UNHCR Field Office in consultation with Headquarters.

9. 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 system Resident Coordinator present. Measures to facilitate the return of such persons should be implemented, to the extent possible, in line with paragraph 8 above.

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