UNHCR Commentary on the Draft Directive on Temporary Protection in the Event of a Mass Influx

1. Introduction

The protection of asylum-seekers is a core concern of the United Nations High Commissioner for Refugees (UNHCR). Situations of mass-influx of asylum-seekers raise particular issues which have for some time been the focus of UNHCR attention, and indeed of the United Nations as a whole. The Executive Committee of UNHCR (EXCOM) has over the years dealt with this question, or some aspects of it, in a number of its Conclusions, including No. 15 (XXX) of 1979 concerning Refugees Without an Asylum Country, No. 19 (XXXI) of 1980 concerning Temporary Refuge, No. 22 (XXXII) of 1981 concerning Protection of Asylum-seekers in Situations of Large-scale Influx, No. 35 (XXXV) of 1984 concerning Identity Documents for Refugees, and No. 74 (XLV) of 1994, General Conclusion. In these Conclusions, the Committee has formulated the fundamental protection principles applicable in situations of large-scale influx of asylum-seekers; has defined the scope, nature and purpose of temporary protection regimes; has examined the link between the 1951 Convention regime and temporary protection; has drawn attention to the crucial importance of solidarity between States and of cooperation between States and UNHCR to effectively address the problems posed by situations of mass influx; and has laid down minimum standards of treatment to be accorded to beneficiaries of temporary protection.

The Sections that follow examine the proposal for a Council Directive on temporary protection, issued by the European Commission on 24 May 2000 , in the light of the internationally agreed principles and standards of treatment embodied in the instruments referred to above.

2. Protection principles applicable in situations of large-scale influx of asylum-seekers

UNHCR's position

The Executive Committee of UNHCR has affirmed that asylum-seekers forming part of large-scale influxes triggered by conflict or persecution must be admitted to the State in which they first seek refuge, without any discrimination as to race, religion, political opinion, nationality, country of origin or physical incapacity. The Committee has stressed that the principle of non-refoulement, including non-rejection at the frontier, must be scrupulously observed in all cases.

The Committee has further affirmed that, if the first State is unable to admit such asylum-seekers on a durable basis, it should always admit them at least on a temporary basis and provide them protection. The Committee has declared that in such situations, and pending arrangements for a durable solution, it is imperative:

(i) to ensure that asylum-seekers are fully protected and enjoy basic minimum standards of treatment; and,

(ii) to establish effective arrangements in the context of international solidarity and burden-sharing for assisting receiving countries. To these effects, concerned States should consult with UNHCR as soon as possible.

Draft Directive

The draft Directive does not explicitly deal with the admission to the territory of asylum-seekers forming part of large-scale influxes, as the only aims of the instrument are, on the one hand, to establish standards of treatment applicable to beneficiaries of temporary protection (that is to say, once they have been admitted) and, on the other, to promote a balance of effort between Member States in receiving and bearing the consequences of receiving such persons.

Commentary

Though acknowledging the specific scope of the Directive, UNHCR considers that, given the fundamental importance of the principles of admission to the territory without discrimination and of non-refoulement, including non-rejection at the frontier, these principles should be explicitly recalled in the text.

UNHCR further wishes to recall that measures for the control illegal immigration may sometimes also prevent refugees from reaching safety. For this consideration, the Executive Committee has on a number of occasions, urged States to ensure that national law and administrative practices, including migration control measures, are compatible with the principles and standards of applicable refugee and human rights law, as set out in relevant international instruments. The introduction of visa requirements and of sanctions to carriers who bring improperly documented passengers, while legitimate in themselves, may infringe those principles and standards if they are specifically targeted at nationals of countries from which bona fide refugees regularly come.

Accordingly, UNHCR strongly recommends the inclusion in the draft Directive of a provision to the effect that, as regards countries in relation to which a temporary protection arrangement is in place:

(i) no visa requirement shall be introduced by Members States, or if this has already been done, it will be lifted; and,

(ii) no sanctions to carriers for bringing improperly documented asylum-seekers shall be applied.

3. Scope, nature and purpose of temporary protection regimes

UNHCR's position

Large-scale influxes include persons who are refugees within the meaning of the 1951 Refugee Convention and 1967 Protocol, as well as persons who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part of, or the whole of their country of origin or nationality are compelled to seek outside that country. What constitutes a "mass or large-scale influx" cannot be defined in absolute terms, but must be defined in relation to the resources of the receiving country. The expression should be understood as referring to a significant number of arrivals in a country, over a short time period, of persons from the same home country who have been displaced under circumstances indicating that members of the group would qualify for international protection, and for whom, due to their numbers, individual refugee status determination is procedurally impractical.

The Committee has examined the special problems of international protection which arise in situations of mass or large-scale influxes of asylum-seekers, and has acknowledged the value of temporary protection as a pragmatic and flexible method of affording international protection in such situations.

Draft Directive

According to the draft Directive, temporary protection may be established by a decision of the Council in the event of a mass influx of displaced persons from third countries who have had to leave their country or area of origin because of the situation prevailing there and are unable to return in safe and humane conditions, where there is a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons concerned and other persons requesting protection.

Persons forming part of such mass influxes may fall within the scope of the 1951 Convention/1967 Protocol or other international or national instruments giving protection, in particular personswho have fled areas of armed conflict or endemic violence, and persons at serious risk of or who have been the victims of systematic or generalised violations of their human rights.

The Directive allows for exclusion from temporary protection of persons who are regarded as a danger to their national security or who fall within the scope of exclusion clauses of the 1951 Convention. Exclusion decisions shall be based solely on the personal conduct of the person concerned, and further shall be based on the principle of proportionality. The persons concerned shall be entitled to seek redress in the courts of the Member State concerned.

Temporary protection may be brought to an end at any time if the situation in the country of origin is such as to permit the long-term, safe and dignified return, in accordance with Article 33 of the Geneva Convention and the European Convention on Human Rights.

In specific cases, beneficiaries of temporary protection may be allowed to remain in the Member State after the end of temporary protection, if there are compelling humanitarian reasons which may make return impossible or unrealistic.

Commentary

UNHCR considers that both the conditions that the draft Directive lays down for the setting up and for the ending of temporary protection, as well as its definition of the nature and purpose of temporary protection, are generally consistent with internationally agreed principles. Also consistent with those principles are the provisions on exclusion from temporary protection.

As regards the scope of application of the Directive, UNHCR wishes to state that, from a practical point of view, it sees nothing wrong in the fact that the Directive is only made applicable to mass influxes of nationals of third countries. But it would be a matter of the most serious concern for UNHCR if this limitation of the scope of the instrument were to be read as implying that nationals of Member States of the European Union are excluded from international protection. While recognizing as a matter of fact that, under present circumstances, it is most unlikely that conditions for a mass outflow may arise in any Member State of the European Union,such possibility cannot be ruled out as a matter of law. UNHCR, therefore, strongly recommends that a clarification be included in the explanatory memorandum in the sense that nothing contained in the Directive should be construed as impairing the right of nationals of Member States to seek and to enjoy protection in conformity with the relevant international instruments for the protection of refugees and for the protection of human rights.

UNHCR further strongly suggests that the possibility of granting beneficiaries of temporary protection permits to remain compelling humanitarian reasons, after the end of temporary protection, be also extended to cases where return would be inappropriate for compelling reasons arising out of previous persecution or experiences.

4. Link with the 1951 Convention and Access to Refugee Status Determination Procedures

UNHCR's Position

The Executive Committee has stressed the fundamental importance of the provisions of the 1951 Refugee Convention and 1967 Protocol, and the exceptional character of the use of the device of temporary protection. While accepting that the suspension of status determination procedures may be necessary in situations of mass influx, the Committee has affirmed that the implementation of temporary protection must not diminish the protection afforded to refugees under the above instruments. The Committee has further stressed the need for constant advice by UNHCR on the practical application of the above international instruments by countries exposed to a large-scale influx of refugees.

UNHCR has further insisted that refugees who have benefited from temporary protection must, at some point, be afforded access to protection procedures if they wish to claim continuing protection. Thus if they do not wish to return home when temporary protection ends because of the possibility of voluntary repatriation, beneficiaries of temporary protection must be able to have their protection needs fully and fairly assessed.

Draft Directive

The Draft Directive reaffirms the primacy of the 1951 Convention and its 1967 Protocol as the basic international instruments for the treatment of refugees and declares that temporary protection is an exceptional measure. These statements of principle find concrete expressions in the fact that the draft Directive limits duration of temporary protection to a maximum of two years, and provides its beneficiaries with a guarantee of access to refugee status determination procedures, at the latest at the end of temporary protection. The draft Directive further provides that the criteria and mechanisms for deciding which Member State is responsible for considering the asylum application shall apply.

Commentary

UNHCR welcomes the explicit guarantee of access to asylum procedures by refugees enjoying temporary protection. It, however, takes the view that the responsibility for considering the asylum request should lie with the Member State where the person is enjoying temporary protection. This view is based both on humanitarian and practical considerations. UNHCR therefore suggests that this provision be modified accordingly. Article 19 should make explicit that the reference to "protection" in fact refers to the asylum law.

5. International solidarity and international cooperation

UNHCR's position

The Executive Committee has stressed that States which, because of their geographical situation or otherwise, are faced with a large-scale influx, should as necessary and at the request of the State concerned receive immediate assistance from other States in accordance with the principle of equitable burden-sharing. In this connection, the Committee has agreed that:

(i) action should be taken bilaterally or multilaterally at the regional or at the universal levels and in co-operation with UNHCR, as appropriate, and primary consideration should be given to the possibility of finding suitable solutions within the regional context;

(ii) action with a view to burden-sharing should be directed towards facilitating voluntary repatriation, promoting local settlement in the receiving country, and providing resettlement possibilities in third countries, as appropriate;

(iii) the measures to be taken within the context of such burden-sharing arrangements should be adapted to the particular situation; they should include, as necessary, emergency, financial and technical assistance, assistance in kind and advance pledging of further financial or other assistance beyond the emergency phase until durable solutions are found, and where voluntary repatriation or local settlement cannot be envisaged, the provision for asylum seekers of resettlement possibilities in a cultural environment appropriate for their well-being; and,

(iv) consideration should be given to the strengthening of existing mechanisms and, if appropriate, the setting up of new arrangements, if possible on a permanent basis, to ensure that the necessary funds and other material and technical assistance are immediately made available.

The Committee has further called upon UNHCR, in close cooperation with the Governments concerned, to continue to coordinate and to provide guidance concerning the implementation of temporary protection and other forms of asylum oriented towards repatriation, in situations where return home is considered the most appropriate durable solution, including advice on voluntary repatriation and on safe return once the need for international protection has ceased.

Draft Directive

The draft Directive affirms the essential role of solidarity among Member States in addressing the problems posed by large-scale influx of asylum-seekers. This solidarity is expressed in the form of a financial mechanism, as well as in the physical distribution of persons enjoying temporary protection. To this latter effect, Member States must make a declaration indicating their capacity to receive such persons. The transfer of beneficiaries of temporary protection cannot, however, take place without the agreement of the persons concerned.

As regards international cooperation, the draft Directive provides that UNHCR should be involved in processes aimed at establishing, implementing and terminating temporary protection regimes, and that UNHCR will be informed of the declarations made by Member States as to their capacity to receive beneficiaries of temporary protection, as well as of the requests for transfers made by Member States.

The draft Directive further provides that the application of the above solidarity measures shall be without prejudice to the Member States' obligations regarding non-refoulement. The explanatory memorandum explains that the meaning of this provision is that observance of the principle of non-refoulement by Member States should not depend on a burden-sharing agreement.

Commentary

UNHCR considers that the provisions on burden-sharing and solidarity contained in the draft Directive are fully in conformity with international recommendations.

UNHCR supports the approach taken by the Commission on this issue, encompassing both financial and physical solidarity.

6. Standards of treatment

UNHCR's position

The Executive Committee has agreed that beneficiaries of temporary protection should be treated in accordance with basic humanitarian standards.

Among the standards adopted by the Committee on the treatment of beneficiaries of temporary protection in matters within the field of civil and political rights, are:

(i) that they should not be penalized or exposed to any unfavourabletreatment solely on the ground that their presence in the country is considered unlawful;

(ii) that they should not be subjected to restrictions on their movements other than those which are necessary in the interest of public health and public order;

(iii) that they should be provided with appropriate documentation, where appropriate in cooperation with UNHCR;

(iv) that they should not be subjected to cruel, inhuman or degrading treatment and should generally enjoy the fundamental civil rights internationally recognized, in particular those set out in the Universal Declaration of Human Rights;

(v) that they should not be discriminated against on the grounds of race, religion, political opinion, nationality, country of origin or physical incapacity;

(vi) that they should be considered as persons before the law, enjoying free access to courts of law and other competent administrative authorities;

(vii) that the unity of their family should be respected and they should be given all possible assistance for the tracing of relatives.

Standards on their treatment in the field of economic, social and cultural rights, include that they should receive all necessary assistance and be provided with the basic necessities of life including food, shelter and basic sanitary and health facilities.

The Committee has further affirmed that adequate provision should be made for the protection of minors and unaccompanied children. As regards solutions, the Committee has recommended that beneficiaries of temporary protection should be granted all the necessary facilities to enable them to obtain a satisfactory durable solution and, in particular, all steps should be taken to facilitate their voluntary repatriation.

Draft Directive

The draft Directive provides that the standards of treatment of beneficiaries of temporary protection must be consistent with human rights standards as laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms, and further declares that those laid down in the Directive are minimum standards which may be improved by Member States.

Specific provisions of the draft Directive in the field of civil and political rights (apart from the general reference to the standards laid down in the European Convention of Human Rights), include that beneficiaries of temporary protection shall not be discriminated on ground of sex, race, ethnic origin, nationality, religion or convictions, or on a handicap, age or sexual orientation and, that they shall be issued residence permits for the entire duration of the protection, and shall be documented accordingly.

In connection with the right to respect for the unity of the family, the draft Directive provides that when circumstances surrounding the mass influx have led to the separation of families which already existed in the country of origin, beneficiaries of temporary protection shall be entitled to reunite with the following members of their separated family:

(i) their spouse or unmarried partner in a stable relationship, if the legislation of the Member State concerned treats unmarried couples in the same way as married couples;

(ii) the children of the couple referred to above or of the applicant, on condition that they are unmarried and dependent and without distinction according to whether they were born in or out of wedlock or adopted; and,

(iii) other family members if they are dependent on the applicant or have undergone particularly traumatic experiences or require special medical treatment.

Among the substantive and procedural rules applicable to the reunification of families, are:

(i) the absence of documentary evidence of the family relationship is not an obstacle for the reunification;

(ii) families may be reunited at any time during the period of temporary protection until two months before the end of the maximum two-year period;

(iii) concerned members of the family must agree to the reunification;

(iv) the reunification of members of a family who enjoy temporary protection in different Member States, shall take place in the host Member State of the choice of the family group;

(v) reunited family members shall be granted residence permits under the temporary protection scheme;

(vi) applications for reunification shall be examined as quickly as possible; and,

(vii) decisions rejecting the application shall be accompanied by a statement of reasons and be open to legal challenge.

The draft Directive provides that when examining applications, the Member States shall give priority to the interests of minors. In relation to unaccompanied minors, the text provides that:

(i) they must be represented by a legal guardian, by a suitable organisationor by any other appropriate carer; and,

(ii) they will be placed with adult relatives, or in the absence of these, with a person or persons who looked after the child when fleeing; with a foster-family; or in suitable reception centres;

In the field of economic, social and cultural rights the draft Directive provides that beneficiaries of temporary protection:

(i) shall be treated on equal terms with refugees regarding the right to engage in employed or self-employed activities, as well as regarding remuneration, social security related to employed or self-employed activities, and other conditions of employment;

(ii) shall have access to suitable accommodation or, if necessary, receive the means to obtain housing;

(iii) shall receive the necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care; and,

(iv) shall have access to the general education system, as well as to vocational training, further training or retraining, and that minors shall have access to the education system under the same conditions as nationals.

The draft Directive further provides that persons with special needs, such as unaccompanied minors or persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence, shall be entitled to appropriate medical or other assistance.

Extensions of the benefits of temporary protection beyond the period of its duration are possible in respect of certain categories of beneficiaries with special needs, including persons undergoing medical treatment and children attending school. Finally, the draft Directive makes provision on facilitation of voluntary repatriation and of resettlement.

As regards voluntary repatriation, it provides that Member States:

(i) shall take the measures necessary to facilitate the voluntary return, in a secure and dignified manner, of persons enjoying temporary protection or whose temporary protection has ended;

(ii) shall ensure that the decision of those persons to return is taken in full knowledge of the facts. The Member States may provide for the possibility of exploratory visits;

(iii) shall, for as long as the temporary protection has not ended, give favourable consideration to requests for return to the host Member State from persons who have enjoyed temporary protection and exercised their right to voluntary return; and,

(iv) may extend the enjoyment of benefits, after temporary protection has ended, for persons waiting to be repatriated.

In relation with facilitation of resettlement, the draft Directive provides that Member States will take appropriate measures, in agreement with the persons concerned and in cooperation with the international organisations responsible.

Commentary

The draft Directive deals in a very comprehensive manner with the standards of treatment to be accorded to beneficiaries of temporary protection. The standards embodied in the proposal are fully consistent with those required under international protection principles and, therefore, UNHCR strongly supports these proposals. UNHCR notes, however, that the right to freedom of movement is not specifically mentioned in the draft instrument and, even though its recognition is implied by the reference made to the European Convention on Human Rights, it wishes to suggest that such mention be included in the text.

UNHCR also supports the Commission's approach regarding the identification and implementation of solutions, and appreciates the fact that humanitarian considerations are incorporated into this approach.

UNHCR