Untitled Quiz

International Law of Refugees: Loss of Refugee Status

• Refugee status is not permanent; it can be lost after a set period or under various circumstances.
• Refugee status continues as long as the fear of persecution persists.
• Loss of status occurs when the circumstances that caused the fear of persecution cease to exist, and this change is significant and permanent.
• Refugee status can be cancelled, ceased, or revoked.

Ways of Losing Refugee Status: Cancellation

• Cancellation invalidates a positive refugee status determination that should not have been made.
• It makes the refugee status null and void from the initial determination onwards.
• It applies to final determinations that cannot be appealed.
• Cancellation happens when circumstances indicate a person should never have been recognized as a refugee in the first place (e.g., significant fraud).

Ways of Losing Refugee Status: Cessation

• Cessation of refugee status happens due to changes in the individual's situation or changes in the persecuting country.
• International protection is no longer necessary based on certain voluntary acts.
• A fundamental change in the country of origin might lead to cessation.
• Cessation only affects the future.

Ways of Losing Refugee Status: Revocation

• Revocation of refugee status pertains to situations where a refugee's subsequent actions warrant the status loss.
• It happens when a refugee undertakes actions that fall under the exclusion criteria of the 1951 Convention (e.g., engaging in serious conduct).

Cancellation: Meaning

• Cancellation is the invalidation of a positive refugee status determination that shouldn't have occurred.
• It renders the refugee status null and void from the initial decision.
• It applies to final determinations that are no longer subject to appeal or review.

Grounds for Cancellation

• Substantial fraud by the applicant concerning eligibility for protection.
• Misconduct affecting eligibility (e.g., threats, bribery).
• Applicability of an exclusion clause (with or without fraud).
• Error of law or fact by the determining authority in inclusion/exclusion criteria.

Cancellation due to Fraud

• Fraud invalidates anything it touches.
• Refugee status is cancellable if obtained through fraud in most countries; discretion varies in others.
• Three elements for fraud-based cancellation:
  • Objectively false statements by the applicant.
  • Causality between the claims and the decision.
  • Intention to mislead by the applicant.

Cancellation based on Other Misconduct

• Administrative actions obtained through threats or bribery are invalid ab initio (from the outset).
• The applicant's misconduct must be substantial and related to the decision.
• Officials accepting bribes face disciplinary measures and potential criminal prosecution.

Cancellation due to Mistake

• Recognizing a refugee who doesn't meet the 1951 Convention criteria due to an error by the determining authority can lead to cancellation.
• The nature and seriousness of the error matter.
• Legitimate interests or acquired rights of the concerned person may outweigh the public interest in correcting an error.

Cancellation based on Exclusion Provisions

• Many countries' national legislation explicitly allows for cancellation of refugee status if one of the exclusion clauses of the 1951 Convention applies.
• Authorities must consider all aspects of the exclusion clause applicability, not just partial indications.

Principle of Non-refoulement

• A paramount international law principle that prohibits returning persons to places where they may face persecution, torture, or inhuman treatment.
• It applies prior to and during the refugee status determination process.
• The principle applies even to those states not party to the 1951 Refugee Convention.
• States cannot return individuals to territories where their life or freedom might be threatened due to race, religion, nationality, political opinion, or membership in a particular social group.

Exceptions to Non-refoulement

• Refoulement may be permissible under Article 33(2) only in specific circumstances.
• The potential danger to a refugee's life or freedom must be grounded.
• Refoulement is not permissible if the risk pertains to human rights violations, such as torture.

UNHCR

• The UNHCR is part of the United Nations system mandated to protect refugees, internally displaced persons and stateless people, and assist them.
• Key UNHCR functions include determination of refugee status, emergency assistance, care, maintenance, and voluntary repatriation.
• UNHCR helps refugees settle in the country of asylum and facilitates resettlement.
• UNHCR also facilitates the resolution of refugee problems in a diplomatic way. Its function is broadly to support the international protection and human rights of refugees.

Asylum of Refugees

• Asylum is a right recognised by international law, however, the individual right to asylum is not yet recognised.
• States have a right to grant asylum, and a duty not to expel a refugee into danger.
• The UNHCR has a mandate to protect refugees.
• The concept of asylum involves more than a shelter place and involves active protection by the host state.
• Asylum can be classified into territorial and diplomatic.

Asylum Defined

• Asylum is the protection that a state grants to a person seeking it.
• A person is granted shelter and protection, which extends beyond a temporary refuge.
• The state granting asylum has a duty to safeguard the person.
• The granting of asylum is humanitarian; not to be considered unfriendly by other states.

Who is an Asylum Seeker?

• An asylum seeker seeks refugee protection but has not yet been formally recognised as a refugee.
• An asylum seeker must demonstrate a well-founded fear of persecution in the home country.
• This status is temporary and dependent on the effectiveness of their application or appeal (if applicable).

Asylum Seeker and Refugee: Distinctions

• Asylum seekers are requesting refugee status, while refugees have fulfilled the requirements.
• Asylum seekers could become refugees if their application is successful.
• Asylum seeker categorization has broader possible grounds for fleeing than refugee categorization, which is narrower.

History of Rohingya Refugees

• The Rohingya have a history of exclusion and marginalization in Myanmar.
• A 1982 citizenship law denied them nationality, marking a period of escalating persecution.
• The Rohingya are being subjected to widespread persecution and discrimination, leading to mass-scale refugee immigration.

Rohingya Refugees: Legal Status

• Rohingyas are recognized as both stateless and refugees.
• Myanmar and Bangladesh have signed international agreements promoting universal respect for human rights.
• However, they haven't ratified international conventions further detailing these principles.

Legal Obligations of Myanmar and Bangladesh

• Myanmar is obligated to protect its Rohingya population; stopping violence, allowing access, and avoiding further displacement.
• Bangladesh is obliged to provide non-refoulement and protection to Rohingya refugees under international law.

Issues for Non-Accession of Bangladesh

• The 1951 Refugee Convention is criticized for being Euro-centric and not addressing the wide range of issues faced by refugees (e.g., economic migrants).
• UNHCR is dependent on Western donor countries for funding, which is a concern.
• There is a scarcity of comprehensive national refugee legislation in South Asia.

UNHCR's Core Mandate

• The UNHCR's mandate is non-political and humanitarian, aimed at providing international protection and finding permanent solutions for refugees.