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Background Information on the Situation in Albania in the Context of the "Safe Third Country" Concept

Publisher UN High Commissioner for Refugees (UNHCR)
Publication Date 1 December 1995
Cite as UN High Commissioner for Refugees (UNHCR), Background Information on the Situation in Albania in the Context of the "Safe Third Country" Concept, 1 December 1995, available at: http://www.refworld.org/docid/3ae6b31c44.html [accessed 30 August 2014]

1.         The Office of the United Nations High Commissioner for Refugees (UNHCR) considers the notion of "safe third country" as a useful basis for agreements between States. Such agreements provide for the return of refugees and asylum-seekers to countries where they have or could have sought asylum and where their safety would not be jeopardized. The Office is concerned to ensure that refugees receive effective and adequate protection in a country of asylum, and welcomes and promotes cooperation among States to this end.

2.         The Office has identified some factors for consideration in determining whether the return of a refugee or an asylum-seeker to a particular country should take place. These factors, which include both formal aspects and the practice of the State concerned, are:

·           ratification of and compliance with the international refugee instruments, in particular compliance with the principle of non-refoulement;

·           ratification of and compliance with international and regional human rights instruments;

·           readiness to permit asylum-seekers to remain while their claims are being examined;

·           adherence to recognized basic human rights standards for the treatment of asylum-seeker and refugees;

·           and, notably, the State's willingness and practice to accept returned asylum-seekers and refugees, consider their asylum claims in a fair manner and provide effective and adequate protection.

3.         Albania acceded to the 1951 Convention and 1967 Protocol relating to the Status of Refugees on 18 August 1992 and is a signatory to the International Covenant on Civil and Political Rights (October 1991), International Covenant on Economic, Social and Cultural Rights (October 1991), the 1989 Convention on the Rights of the Child (February 1992), the International Convention on the Elimination of All Forms of Racial Discrimination (May 1994), as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (May 1994).

4.         The Albanian Parliament adopted on 29 April 1991 the Law No. 7491 "On Major Constitutional Provisions" which functions as an interim Constitution and which embodies in its article 28 (lb) the President's competence to grant political asylum. This provision has never been applied.

5.         The 1951 Convention and the 1967 Protocol have not yet been fully implemented. As a first measure to implement both international refugee instruments. the Albanian Council of Ministers established the Interministerial Commission for Refugees (IMCR) pursuant to Ordinance No. 443 dated 15 October 1992, which has since remained mostly inoperational; as a matter of fact, its members 'nave not met since January 1993. There are various reasons responsible for that situation:

a)         the IMCR's competencies had never been defined;

b)         the Commission's primary role was conceived to be a coordinating body for emergency preparedness and contingency planning for an eventual mass influx of refugees from the former Yugoslavia, but due to a to a lack of procedure, no internal working structures were established;

c)         the IMCR was not given the mandate to act as the competent authority to examine asylum claims.

6.         It was only recently that the Parliament adopted the "Law on Migration" (Law No. 7939 of 25 May 1995) which entered into force on 2 July 1995. This law does not contain specific national refugee legislation, but regulates this matter in the context of migration in rather general terms. Chapter m of this law contains provisions on the refugee definition, family unity, entry, residence, access to the labour market, and expulsion. The various provisions are incomplete and do not provide a comprehensive legal framework which would guarantee the effective protection of asylum-seekers and refugees. Article 24 of the "Law on Migration" stipulates that refugees within the meaning of the Geneva Convention shall be " recognized in accordance with the procedures established by regulations issued for the implementation of this law"; Article 26 only reproduces the principle of non-refoulement as enshrined in Article 33 of the 1951 Convention; and Article 28 states that asylum applications should be lodged with the "respective authority specially designated by the legal acts issued for the implementation of this law". The Council of Ministers has already drafted regulations on "Procedures for Determination of Refugee Status and Granting of Asylum in the Republic of Albania" as foreseen in Article 24 of the "Law on Migration'' (this regulation also contains relevant provisions for the examination of the non-refoulement principle), but this has yet to be adopted and implemented. The most recent measures taken by the Government were the establishment of the Office for Refugees in accordance with the Prime Minister's Ordinance No. 1668 dated 8 June 1995, the appointment of its Head (Decision of the Secretary of State for Local Power dated 14 August 1995) as well as adopting the protocol on the "Functions of the Head of the Office for Refugees" (Protocol No. 602 dated 8 September 1995). However, appropriate structures to ensure the proper handling of asylum claims have yet to be created.

7.         In the absence of a national protection mechanism, UNHCR is assisting individual cases brought to its attention. As an interim solution, cases found to be of concern to UNHCR are assisted by the Albanian Red Cross. Whilst these individuals are tolerated, they are neither protected by a legal right of residence, nor do they have any access to employment. A further aggravating factor is that Albania, like many counties in Central and Eastern Europe, is perceived by asylum-seekers as a transit country rather than as a place where they would claim refugee status and establish their residence.

8.         Ethnic Albanians from the former Yugoslavia come within a different legal framework compared to asylum-seekers from other countries. According to Decree No. 282 dated 15 August 1992, this group is exempt from entry visa fees and, consequently, visa requirements are not imposed on them. They can enter the country without major obstacles, have a right to remain, but do not benefit from any state assistance. Some are assisted by local populations of the northern districts of Tropoja, Puka, Kukesi and Shkodra, as well as in Tirana city, others are left on their own and have difficulties to survive economically given the lack of employment opportunities. Current social and economic conditions, such as low GNP, low average income and high unemployment, as well Albanians' dependence on remittances from relatives abroad, are not conducive to the realisation of a durable solution The conclusion based on the elements listed above is that treatment is not guaranteed in accordance with recognized basic human rights standards. This may create onward irregular movements. Therefore, in the absence of an international assistance programme, ethnic Albanians may be forced to leave Albania if they cannot rely on the support of their relatives

9.         Ethnic Albanians may apply for Albanian citizenship (amendment of the Decree No. 1374 dated 7 June 1954 on Albanian Citizenship, Decree No. 255 dated 17 July 1992), but this decree has so far not been applied: most of the applications for citizenship have not been dealt with or have been granted in isolated cases only, such as personalities who have distinguished themselves in the arts and sciences or in business.

10.       The Office is aware of the many other pressing priorities with which Albania is confronted and notes the enormous social and economic difficulties inherent in the restructuring process. Given these circumstances, UNHCR recognizes the endeavours so far undertaken by the Albanian Government, to implement the 1951 Convention and the 1967 Protocol, and the Office is trying to assist the Albanian authorities in establishing a fair and efficient refugee status determination procedure to which asylum-seekers would be guaranteed access However, because of the lack of a refugee status determination procedure, the absence of a formal procedure to ensure compliance with Article 33 of the 1951 Convention as well as the absence of appropriate overall structures for dealing with asylum-seekers and refugees, it is likely to take some time yet before appropriate registration, reception, status determination and integration structures and procedures will be established.

11.       Given the circumstances prevailing and in the absence of an international assistance programme, the Office would advise against the return to Albania of asylum-seekers and refugees (including ethnic Albanians with the exception of those who can rely on the support of relatives) who have arrived in third countries, on the basis of their stay or transit there, as there are, for the time being, no guarantees that they will benefit from effective protection, including assistance conducive to the realisation of a durable solution, in Albania. Persons genuinely in need of international protection might be exposed to the risk of being returned to a place where their life or freedom would be threatened.

UNHCR Geneva, December 1995

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