Applicability of the Cessation Clauses to Refugees From the Republics of Namibia and South Africa
|Publisher||UN High Commissioner for Refugees (UNHCR)|
|Publication Date||18 May 1995|
|Cite as||UN High Commissioner for Refugees (UNHCR), Applicability of the Cessation Clauses to Refugees From the Republics of Namibia and South Africa, 18 May 1995, available at: http://www.refworld.org/docid/416578874.html [accessed 9 March 2014]|
1. Although Namibia achieved independence in March 1990, and the mass voluntary repatriation organized by UNHCR was completed in time to enable returnees to take part in the national elections of November 1989, a small number of Namibian refugees is still registered with UNHCR, mainly in countries of the Southern Africa region. Considering that Namibia is regarded as the most shining example of a successful accession to independence and democratic governance in Africa, there is little doubt as to the fundamental nature and durability of the changes which took place during 1989-1990. This was further confirmed by the peaceful conduct of the national elections in December 1994. The application of the cessation clause to Namibian refugees is therefore long overdue.
2. Since the signing of the Memorandum of Understanding (MOW) on 4 September 1991 between UNHCR and the Republic of South Africa (RSA), thousands of South African refugees have returned home. The process of installation of democratic institutions and dismantling of apartheid culminated in the presidential and parliamentary elections of April 1994 and the formation of a government of national unity. The new Parliament will also act as Constituent Assembly for the elaboration of the new Constitution. These developments of historical importance, as well as their broad international recognition and appreciation, attest to the fundamental nature and durability of the changes which have taken place in the Republic of South Africa.
B. Application of Cessation Clauses of the UNHCR Statute and the 1951 Refugee Convention
3. The High Commissioner is of the opinion that nationals of Namibia and South Africa can in principle avail themselves of the protection of their country of nationality. The cessation clauses contained in paragraph 6A (e) of the UNHCR Statute, Article 1C (5) of the 1951 Convention and Article 1.4(e) of the OAU Convention are, therefore, applicable to those persons.
4. In accordance with basic principles of refugee law, reaffirmed by the UNHCR Executive Committee in Conclusion N° 69 (XLIII) (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 continuing 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, persons falling under paragraph B (3) above will cease to be refugees as from the day of publication of this IOM-FOM. Former refugees who remain outside South Africa and Namibia from 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 and 1969 OAU Convention governing specific aspects of refugee problems in Africa, 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 society.
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 N° 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 from strong family, social or economic links there (e. g legal immigrant status, naturalization). Field Offices are also requested to ensure the Office's own application of the relevant cessation clause.
8. 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 Namibia and South Africa. Persons requesting 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 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 be may referred to Headquarters in order to examine their merits 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 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 of Procedures and Criteria for Determining Refugee Status, and in the Executive Committee Conclusion 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 fix a reasonable time limit for the cessation of UNHCR's assistance.
E. Voluntary Repatriation
10. 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 Namibian and South African refugees who qualify for repatriation and who wish to return under the auspices of the High Commissioner should register with UNHCR. Decisions on such cases should be taken by UNHCR Field Offices in consultation with Headquarters.
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.
ExCom Conclusion No. 69 (XLIII) -1992 – Cessation of Status
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