STATUS DETERMINATION OF REFUGEES

The Refugee Status Determination (RSD) is a legal and administrative process undertaken by a State or the United Nations High Commissioner for Refugees (UNHCR) to decide as to whether a person can be considered a refugee as per the national or global legal framework. It is considered a key component to enjoy their rights and freedoms under the international law that has a profound implication for the life, liberty and security of people. The sole purposes of RSD are to recognise the criteria that applies in the granting of refugee status; to be familiar with the means of evaluation of an application; to scrutinise the applications upon which one should seek the expert legal opinion; to determine the salient features of eligibility procedures; and finally to learn the process of recommendation of improvements to the existing procedures for determining the status of refugees.

On the universal level, RSD is governed by the 1951 Convention and its 1967 Protocol. But the Convention does not indicate the RSD procedures; rather it is left to each Contracting State to create the procedure that it thinks most appropriate. The RSD procedure primarily takes place in two stages: (1) it is essential to ascertain the relevant facts of the case; and (2) the definitions in the 1951 Convention and 1967 Protocol have to be applied to the facts thus ascertained. The provisions of 1951 Convention defining who is a refugee consist of three parts, that is termed respectively “inclusion”, “cessation” and “exclusion” clauses.

Article 1A(2) of the Convention contains the “inclusion” clauses according to which, the term “refugee” shall apply to a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or unwilling to return to it. This definition clarifies that a person becomes a refugee within the meaning of 1951 Convention once he fulfills the criteria contained in the definition therein. This might happen before his refugee status is officially determined. Thus the determination of his refugee status does not make him a refugee but declares him to be one. He does not become a refugee as a result of recognition, but is recognised because he is a refugee.

Article 1(C) of the Convention contains the cessation clauses which stipulate that a person shall no longer be considered a refugee if there has been a fundamental change in political circumstances in the State of origin enabling him to take up renewed residence there. This clause may be applied after the person has been recognised as a refugee. The exclusion clauses are inserted in Article 1(D), (E) and (F) of the said Convention which respectively stipulate that the Convention shall not apply to the persons who meet the inclusion criteria, but do not need or deserve protection. This would apply to a person who is already receiving protection from the agencies of the UN other than the UNHCR, or who has committed a crime against peace or humanity or war crime, or who has violated the objects and principles of the UN.

The assessment as to who is a refugee under the 1951 Convention is incumbent upon the States to which the refugees submit application for their status being legally recognised. Under the international law, States have the key obligation to conduct the RSD due to their membership of the UN. But problems might occur where States are reluctant to resolve the refugee problems through conducting the RSD, or where various RSDs are accomplished both by the States and the UNHCR. Where the States are unable or unwilling to conduct the RSD, the UNHCR does the same. In maximum States of the world, RSD is conducted not by the States but entirely by the UNHCR. In recent years, owing to changes in patterns of forced displacement, the UNHCR has been required to conduct the RSD in more States than before. Even in most of the countries of Asia, RSD is conducted not by Governments but by the UNHCR and the practice of RSD conducted by the UNHRC differs from one place to another. The UNHCR usually conducts the RSD in States that are not party to the 1951 Convention; or States that have not established asylum procedures; or States that retain the geographic limitation thus denying some access to their asylum procedures.

Refugees are the most persecuted and thus vulnerable group of people all over the world. In recent times the number of refugees has been increasing because of armed conflicts, natural disasters, environmental degradation and persecution in various parts of the world. In order to protect their rights in international law, determination of their status is indispensable for the governance of the international refugee regime. The RSD is the linchpin of refugee protection as it is the means through which those who need protection are identified.

The writer is a Lecturer of Law, Southeast University.