Applicability of the "Ceased Circumstances" Cessation Clauses to Eritrean Refugees Who Fled Their Country as a Result of the War of Independence Which Ended in June 1991 or as a Result of the Border Conflict Between Ethiopia and Eritrea Which Ended in June 2000
|Publisher||UN High Commissioner for Refugees (UNHCR)|
|Publication Date||18 February 2002|
|Cite as||UN High Commissioner for Refugees (UNHCR), Applicability of the "Ceased Circumstances" Cessation Clauses to Eritrean Refugees Who Fled Their Country as a Result of the War of Independence Which Ended in June 1991 or as a Result of the Border Conflict Between Ethiopia and Eritrea Which Ended in June 2000, 18 February 2002, available at: http://www.refworld.org/docid/4165729f4.html [accessed 26 July 2014]|
1. In September 1993, in the wake of a referendum, the State of Eritrea declared independence from Ethiopia. The declaration of independence followed a protracted period of war against the central government of Ethiopia which ended with the collapse of the Mengistu regime in May 1991. Starting from the mid 1960's, the war of independence caused the exodus of hundreds of thousands of Eritrean refugees in search of protection in neighbouring countries and further afield. In addition to the ongoing civil war, in 1984/1985 there was also a serious situation of drought and famine in Eritrea which forced a large number of Eritreans to leave their country.
2. The ending of the war with Ethiopia and the attainment of independence by Eritrea represented fundamental and durable changes which may be said to have removed the root causes of the Eritrean refugee problem. As a result of these changes many Eritrean refugees who had sought asylum in countries around the world returned to Eritrea, both spontaneously and with the assistance of UNHCR. In 1995, the Government of the State of Eritrea signed a Bipartite Agreement with UNHCR to initiate a pilot voluntary repatriation project. In addition, the Government of the State of Eritrea took a number of measures to create conditions conducive for the return of its nationals who had sought asylum outside. These actions included, inter alia, the proclamation of the right and freedom of every Eritrean national to return to Eritrea without fear of persecution on account of having been a refugee. The Government also announced its commitment to facilitate the return to Eritrea of any Eritrean refugee who wished to do so and to assist in their re-integration. As a result of these measures, including the safeguards provided in the Bipartite Agreement between UNHCR and the State of Eritrea, many more Eritrean refugees were able to return to Eritrea. Since these large-scale returns, there have been no known reports of reprisals or persecution perpetuated by the Government of the State of Eritrea against returnees.
3. However, in May 2000 a full-scale war broke out between Eritrea and Ethiopia in the wake of the military conflict which had started two years earlier, due to an unsettled dispute on the demarcation of the border and other political and economic factors. As a result, a number of Eritrean nationals who were resident in the area of conflict became either displaced internally or refugees in neighbouring States, principally Sudan. Eritrea and Ethiopia signed a Cease-Fire Agreement in June 2000, which was followed in December of that year by a Comprehensive Peace Agreement resulting in the establishment of a temporary security buffer-zone created between the two countries under United Nations supervision. Within days of the signing of the Cease-Fire Agreement, the new Eritrean refugees started repatriating spontaneously. Thereafter, UNHCR facilitated the return of some 25,000 persons, following the signing of a Tripartite Agreement with Eritrea and Sudan which spelled out safeguards for the orderly return of the refugees. The returnees were well received and assisted to re-integrate. UNHCR's monitoring activities did not reveal any cases of persecution, punishment or other forms of unfavourable treatment by the Government of the State of Eritrea against them.
4. The resolution of the military conflict between Eritrea and Ethiopia, as well as the stabilization of the situation in Eritrea, effectively removed the root causes of the mass refugee outflow which occurred during 2000. Accordingly, it is concluded that the circumstances that caused the new Eritrean refugee crisis have also ceased to exist.
B. Application of the "Ceased Circumstances" Clauses of the UNHCR Statute and the 1951 Refugee Convention
5. In light of the above, the High Commissioner is of the opinion that refugees from Eritrea, who fled their country as a result of the war of independence which ended in June 1991, as well as those who fled as result of the border conflict between Ethiopia and Eritrea which ended in June 2000, should no longer have a well-founded fear of persecution or other reasons to continue to be regarded as refugees. Therefore, the "ceased circumstances" clauses contained in Article 6. A (e) of the Statute of UNHCR, Article 1. C (5) of the 1951 UN Convention Relating to the Status of Refugees, as well as Article 1. 4 (e) of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, are in principle applicable to these persons.
6. However, in accordance with basic principles of refugee law, reaffirmed by the UNHCR Executive Committee in Conclusion No. 69 (XLIII) (1992) on Cessation of Refugee Status and elaborated in IOM/17/99-FOM/17/99 of 26 April 1999, providing guidelines on the application of cessation clauses, the "ceased circumstances" clauses should not apply to individual refugees who continue to have valid grounds for claiming a well-founded fear of persecution, or who can invoke compelling reasons arising out of previous persecution for refusing to avail themselves of the protection of Eritrea. Persons claiming such grounds or other compelling reasons for continuing to be regarded as refugees should be handled in accordance with paragraphs 11 and 12 below.
C. Legal and practical consequences
7. Ultimately, it is the responsibility of the Government of the country of asylum to determine the modalities for the application of the "ceased circumstances" clauses of the 1951 UN Convention and, where applicable, the 1969 OAU Convention, in accordance with domestic legislation. However, given the supervisory role assigned to the Office in paragraph 8 of its Statute in conjunction with Article 35 of the 1951 Convention, governments are expected to consult with UNHCR.
8. As far as UNHCR is concerned, there is a presumption that persons falling under paragraph B (5) above no longer have a well-founded fear of persecution or other reasons to continue to be regarded as refugees. Accordingly, the Office shall consider the refugee status of such persons ceased as at 31 December 2002, unless there are reasons in the individual case justifying continued protection or another appropriate status. This timeframe for the entry into force of the "ceased circumstances" clauses will add momentum to the ongoing voluntary repatriation exercise, as well as encourage refugees who may invoke continuing fear of persecution, or compelling reasons arising out of previous persecution, to refuse to re-avail themselves of the protection of Eritrea, to come forward and submit their claim for consideration. It will also facilitate demarches by individual refugees who may not wish to return to Eritrea to seek alternative arrangements to remain in the host country.
9. Former Eritrean refugees who remain outside Eritrea after that date will no longer be entitled to international protection and their continued stay in the host country will depend upon the authorization of the Government concerned. Such persons should be encouraged to deal directly with the government of the host country regarding their legal status and rights in that country, taking into account the possibilities outlined below for integration in the former country of asylum or voluntary repatriation under the auspices of UNHCR.
10. UNHCR offices should endeavour to ensure that acquired rights which 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 country. Consistent with EXCOM Conclusion No. 69, it is recommended that the authorities be requested to consider new arrangements for persons who cannot be expected to leave the country of asylum for particularly compelling reasons, such as their long stay in that country resulting in strong family, social or economic links or for those former refugees whose children would risk becoming de jure or de facto stateless. Such arrangements may include the granting of legal immigrant status through temporary or permanent residence, or naturalization.
D. Review of individual cases
11. UNHCR offices are requested to ensure that UNHCR's own application of the "ceased circumstances" clauses is done in accordance with the procedure outlined in paragraph 8 above. Individual refugees should submit a request for consideration of their case before the entry into force of the cessation clauses on 31 December 2002. In particular, persons requesting the non-application of the cessation clauses should be afforded an opportunity to present the specific grounds on which they base their claim of a continuing well-founded fear of persecution in respect of Eritrea and unwillingness to re-avail themselves of the protection of the Eritrean government. In this connection, it must be reiterated that the "ceased circumstances" clauses do not apply to any refugee who might have fled Eritrea for reasons other than the war of independence or the border conflict with Ethiopia. In countries where Eritrean refugees are recognized on a group basis, it will be necessary to undertake a review of such upon their request cases on an individual basis, to establish claims and ascertain well-foundedness. Such review could take place either before existing national eligibility structures or before UNHCR, if no refugee status determination procedures exist in the host country. Relevant country offices are requested to take action accordingly, to ensure that cases claiming continuing fear of persecution are reviewed before the cessation clause enters into force. Cases who will have been found to fulfil the criteria for granting of refugee status at the end of a fair procedure should be able to continue to remain in their host countries as refugees and to enjoy international protection accordingly.
12. Some individuals may have compelling reasons arising out of previous persecution for refusing to re-avail themselves of the protection of their country of origin. Although the respective exceptions stipulated in Article 1 C (5) and (6) of the 1951 Convention formally relate only to Article 1 A (1) of the Convention, there is nothing to prevent it being applied on humanitarian grounds to persons other than statutory refugees. Therefore, by analogy, UNHCR Offices should request States to give due consideration to an appropriate status for such persons (e.g. continued refugee status or another appropriate status on humanitarian grounds), preserving previously acquired rights, 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 Refugee Status.
E. Voluntary Repatriation
13. Refugees wishing to return to Eritrea under the auspices of the Office should register for voluntary repatriation before the entry into force of the cessation clauses on 31 December 2002. Such persons will continue to receive protection and assistance from UNHCR until the repatriation movement takes place.
14. Refugees who intend to return home are expected to avail themselves of this opportunity before the voluntary repatriation exercise is completed. Only exceptional cases who provide valid cause for having failed to register and return prior to completion of the exercise may still benefit from UNHCR's assistance for this purpose. In such cases, granting of material assistance for repatriation will be dependent upon the applicant fulfilling the relevant requirements, as set out in applicable guidelines, including the Handbook on Voluntary Repatriation. Decisions on such cases should be taken by the relevant offices in consultation with Headquarters.
15. Where UNHCR has no presence in the country of asylum, Eritrean refugees who are in need of assistance to repatriate should be advised to consult the UN Resident Co-ordinator in their respective country. Measures to facilitate the return of such persons should be implemented, to the extent possible, in line with paragraph 14 above.
F. Material Assistance
16. In the case of former refugees who are allowed to continue residing in the host country, in consultation with Headquarters the relevant offices should establish a reasonable time limit for the cessation of UNHCR's material assistance.
G. Implementation of the "Ceased Circumstances" Cessation Clauses
17. UNHCR Offices in neighbouring countries and any other country hosting a substantial number of Eritrean refugees are requested to develop a comprehensive plan of action for the implementation of the "ceased circumstances" clauses, including demarches with governments, public information campaigns and mechanisms for refugee status determination.
18. The measures envisaged in the plan of action should be able to be implemented in a flexible and phased manner, particularly in neighbouring countries hosting large numbers of Eritrean refugees. Factors critical to the success of implementation include agreement on implementation procedures and timeframes among States, UNHCR, NGOs and refugees, counselling of refugees, information-sharing and the provision of assistance to returnees.