Applicability of the "Ceased Circumstances" Cessation Clauses to Pre-1991 Refugees From Ethiopia

A. Background

1. With the collapse in l991 of the military regime of Mengistu which had banned all opposition activities in Ethiopia, (l974-l991) and had led to the exodus of thousands of Ethiopians in search of protection outside their country, a fundamental and durable change took place in that country so as to generally remove the reasons for fearing persecution of those Ethiopian refugees who had sought protection outside their country before l991. A coalition government was formed from many political organisations and regional and local government elections were held. A new constitution was ratified in 1994 by an elected constituent assembly and a federal system of government was established. In l995, democratic elections were held. The government of Ethiopia has, in addition, taken a number of measures to create conditions conducive to the return home of its nationals who had sought asylum outside. These include, inter alia, the proclamation of the right and freedom of every Ethiopian national to return to Ethiopia without fear of prosecution on account of having been a refugee. The government also announced its commitment to facilitate the return to Ethiopia of any Ethiopian refugee who wished to do so. It signed various tripartite voluntary repatriation agreements with UNHCR and countries of asylum in l991, l993 and l994. As a result of the foregoing changes and the safeguards provided, many Ethiopian refugees who had sought asylum in Kenya, Sudan, Djibouti, Somalia and in many other countries around the world, have been able to return to Ethiopia both spontaneously as well as under UNHCR's organized voluntary repatriation.

B. Application of the Ceased Circumstances" Clauses of the UNHCR Statute and the 1951 Refugee Convention

2. The High Commissioner is of the opinion that refugees from Ethiopia, who fled as a result of events which took place in that country prior to 1991, should no longer have a well-founded fear of persecution. Thus, the ceased circumstances" clauses contained in paragraphs (6) A (e) and (f) of the UNHCR Statute, Article 1 C (5) and (6) of the 1951 Convention, and Article 1.4 (e) of the 1969 OAU 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 and as elaborated in IOM/17/99-FOM/17/99 of 26 April 1999, the cessation clauses 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 4 below.

C. Legal and practical consequences

4. As far as UNHCR is concerned, there is a presumption that persons falling under paragraph B (2) above will no longer have a well-founded fear of persecution. However, some individuals among the larger group may exceptionally have valid arguments for their continued refusal to avail themselves of the protection of the country of nationality/former habitual residence. Such persons should be given a deadline until 1 March 2000 to come forward with any request for continued protection. If, within that time-frame, no such grounds have been presented or, upon review, those grounds have been found invalid, the cessation clauses become effective and these persons cease to be refugees.

5. Former pre-1991 Ethiopian refugees who remain outside Ethiopia after the declaration of cessation of refugee status in accordance with the present guidelines, will no longer be entitled to international protection and their continued stay in the asylum country will depend upon the 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 integration in the former country of asylum or 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, as well as the 1969 OAU Convention, UNHCR Representatives 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 to become de jure or de facto stateless. Such arrangements may include the granting of legal immigrant status or naturalization.

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 Convention, in accordance with domestic legislation. However, given the supervisory role assigned to the Office in Article 35 of the 1951 Convention, governments are expected to consult with UNHCR in order to meet the requirements of Conclusion No. 69.

8. Field Offices are also requested to ensure the Office's own application of the ceased circumstances" clauses, in accordance with the procedure outlined in paragraph 4 above. Individual members of the group must have the possibility to request consideration of their case, within the established time-frame. Persons requesting the non-application of the cessation clause should be afforded an opportunity to present the specific grounds relevant to their case on which they base their claim of a continuing well-founded fear of persecution in regard to Ethiopia.

Special attention should be given to the cases of refugees who have reasons 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 may be referred to Headquarters for further advice.

9. 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. 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 1951 Convention, there is nothing to prevent it being applied on humanitarian grounds to 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. a permanent residence permit 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 Status.

D. Material Assistance

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

E. Voluntary Repatriation

11. Individuals whose refugee status has been ended by operation of the ceased circumstances" clauses may be assisted by UNHCR to voluntary repatriate to their country of origin. Former refugees wishing to benefit from UNHCR's assistance are required to express their interest within a reasonable period of time after the cessation clauses have become effective. However, granting of material assistance for repatriation will be dependent upon the person fulfilling the relevant requirements, as set out in applicable guidelines, including the Handbook on Voluntary Repatriation. Decisions on such cases should be taken by UNHCR Field Offices in consultation with Headquarters.

12. Where UNHCR has no presence in the country of asylum, those persons whose refugee status has ceased, and 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 11 above.