Refugee Status Determination

in the World

UNHCR & Public Attorney’s Office, 14 November 2022

Aram Fahim-Hashemi, Snr. Protection Officer, UNHCR,
Regional Bureau for Asia and the Pacific
  Both States and UNHCR have an obligation to
provide international protection to refugees.
 The process whereby the authorities of the host
country or UNHCR establish that an individual
Why conduct who seeks international protection is actually
RSD? a refugee – that is, he or she meets the
eligibility criteria under international or
What is RSD? regional refugee instruments, national
legislation or UNHCR’s mandate – is referred to
as “refugee status determination”
  States are responsible for protecting the
rights of their citizens
 When governments are unable or unwilling to
do this, people may face such serious threats
What is that they are forced to leave their country and
international seek safety elsewhere.
 If this happens, another country has to step in
protection? and ensure that refugees’ basic rights are
respected.
 This is “international protection”
  The 1951 Convention relating to the Status of
Refugees and its 1967 Protocol are at the core
of the international protection system.
 Complemented by regional treaties and
International declarations that also address rights.
Protection  International refugee law does not operate in
isolation.
 Best understood as working in conjunction
with international human rights law
  The 1951 Convention relating to the Status of
Refugees is the foundation of international
refugee law
 Defines the term “refugee”
 Establishes the principle that refugees should
International
not be forcibly returned to a territory where
Refugee law their lives or freedom would be threatened
and standards  Sets out the duties of refugees and State’s
responsibilities
 Historical perspective of ‘51 Convention
focused on refugee problems post second
world war (temporal and geographical
limitations), removed by 1967 Protocol
  A refugee is someone who has left his or her country
of origin and is unable or unwilling to return there
because of a serious threat to his life or her life.
 Refugees are entitled to protection from forcible
return and have rights and duties set out in the 1951
Convention
Refugees and  “Asylum seeker” is a general designation for someone
asylum seekers who is seeking international protection. In some
countries this is a legal term for someone who has yet
to receive a final decision on his or her claim.
 Asylum seekers must not be sent back until the claim
has been examined in a fair procedure
What do the
1951
Convention
and 1967
Protocol
contain?
Who is a
refugee under
the 1951
Convention?
Regional
Frameworks –
Who is a
refugee under
the 1968 OAU
Convention?
Who is a
refugee under
the Cartagena
Declaration?
Regional Practice
  No binding regional instruments addressing refugee
law in the Middle East or Asia
 1994 Arab Convention on Regulating Status of
Refugees in the Arab Countries was adopted by the
League of Arab States but never entered into force
Middle East  In 2017 the LAS adopted a new Arab Convention on
and Asia (non- Refugees
binding  In 2001 Asian and African countries adopted the
revised Bangkok Principles on the status and
instruments) treatment of refugees.
 Both the Arab Convention and Bangkok Principles use
the refugee definition from the OAU Convention.
 In 2012 the Member States of the Organization of
Islamic Cooperation adopted the Ashgabat
Declaration
  Most far-reaching developments have come from the
EU
 1999 creation of the common European asylum
system
 Four key legislative instruments have been adopted in
original and revised versions adding content to
European refugee law in an area not addressed by the 1951
Convention.
instruments  These instruments concern: temporary protection,
reception of asylum seekers, qualification for refugee
status or “subsidiary protection and standards for
asylum procedures
 Dublin III Regulation sets out the criteria for
determining which EU Member State or other
participating country is responsible for examining
asylum applications
  Defines and prohibits torture and other forms of ill-
treatment
 Prohibits refoulement, or forced return, to situations
where there are “substantial grounds for believing” a
person would be in danger of torture
 Non-refoulement is not limited to those formally
Convention recognized as refugees
against Torture  Non-refoulement is absolute and there is no
and refugees limitation or derogation possible (contrasted against
the 1951 Convention)
 Individual complaint mechanism is possible
  UNHCR has a supervisory role

Role of States
and UNHCR in
protection
Article 35 of
the ‘51
Convention
  State responsibility:

Role of States
and UNHCR in
protection
Article 35 of
the ‘51
Convention
The role of
UNHCR
Who are
refugees under
UNHCR’s
mandate?
Who are
“persons of
concern” to
UNHCR
  • Working to enhance States’ capacity to conduct high-quality refugee
status determinations;

UNHCR’s
Supervisory
Role in the
context of RSD
UNHCR and
mandate RSD