Refugee Law and Durability of Protection

Temporary Residence and Cessation of Status

Maria O'Sullivan

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351399173
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

This book examines the link between refugee protection, duration of risk and residency rights. It focuses on two main issues of importance to current state practice: the use of temporary forms of refugee status and residency and the legal criteria for cessation of refugee status under Article 1C(5) of the 1951 Refugee Convention.

In analysing this issue, this book canvasses debates which are pertinent to many other contentious areas of refugee law, including the relationship between the refugee definition and complementary protection, application of the Refugee Convention in situations of armed conflict, and the role of non-state bodies as actors of protection. It also illustrates some of the central problems with the way in which the 1951 Refugee Convention is implemented domestically in key asylum host states. The arguments put forward in this book have particular significance for the return of asylum seekers and refugees to situations of ongoing conflict and post-conflict situations and is therefore highly pertinent to the future development of international refugee law.

1
Introduction

Key concepts and interpretative framework

This book deals with one of the most pressing and difficult issues of modern times – the way in which the international community should respond to refugee flows and the content of the law which should govern that response. In particular, this book examines the criteria used to grant and revoke refugee status, the nature and length of the protection which should be accorded to recognised refugees and the procedures used in such determinations.

It focuses on a relatively recent and controversial development in state practice of international refugee law: the use of time-limited permits¹ for recognised refuges and the cessation of refugee status due to a change in circumstances in conditions in the refugee’s country of nationality under Article 1C(5) of the 1951 Refugee Convention.² It queries whether protection and residence of refugees can be temporary. If so, how is this measured against the duration of risk? Importantly, this book examines what happens when an asylum host state seeks to revoke temporary refugee status or residence. What standards govern this decision and should any integrative links which the refugee has acquired or developed in the host state be considered as part of the cessation and deportation decisions?

This book is timely because some states, particularly those in Europe, have expressed an increased interest in utilising cessation as a mechanism to compel refugees to return to their country of origin. This is most starkly reflected in current proposals before the European Parliament to amend the EU Qualification Directive³ to oblige or encourage EU Member States to use ‘status reviews’ to examine whether there have been significant changes in the situation of the relevant country of origin.⁴ It is hoped that this book will provide a detailed, robust analysis of cessation which will guide states in utilising such reviews.

Although this book is focused on time-limited protection and cessation, the analysis presented here has broader relevance to global refugee law issues: the way in which international refugee law norms should be interpreted in a modern-day context, the influence of European definitions of refugee law on international law and the balance to be struck between refugee protection and contemporary state imperatives which are increasingly hostile to acceptance of significant numbers of refugees.

Current state practice of temporary residence and cessation

Many states now favour the use of various forms of temporary protection for individualised refugees via time-limited visas and permits. Such practice is important, as it allows states to then review cases upon expiry of that permit in accordance with Article 1C(5) of the Convention and to revoke refugee status and residence if circumstances in the country of origin have changed.

There are two main examples of state practice in this context which will be used in this book. First, state practice in Australia, which has operated a temporary protection visa (TPV) scheme in various forms since 1999. Under the current legal framework in Australia, a recognised refugee can only be granted a three-year ‘temporary protection visa’ and is precluded from obtaining a permanent protection visa. The existence of TPVs has enabled Australian authorities to apply Article 1C(5) to holders of those visas.⁵ This will therefore be analysed in some depth as a case study throughout the book.

Time-limited residence permits for refugees are also now used in some Member States of the EU. The Qualification Directive⁶ is important here as it allows EU Member States to issue three-year residence permits to refugees, rather than permanent residence permits.⁷ As a result, a number of European states, including the United Kingdom (UK),⁸ Germany,⁹ Netherlands,¹⁰ Finland¹¹ and Norway,¹² have introduced temporary residence permits for recognised refugees.¹³ The EU Qualification Directive also requires Member States to implement cessation provisions similar to those in Article 1C(5) into domestic law¹⁴ and to revoke or refuse to renew refugee status if cessation has occurred.¹⁵

Interestingly, although many states have cessation provisions in place in domestic legislation, cessation practice is a relatively recent phenomenon. Of all EU countries, only Germany has applied Article 1C(5) to holders of temporary residence permits in significant numbers.¹⁶ Other EU countries have cessation provisions in place in domestic law but have only commenced utilisation of those provisions relatively recently and in comparatively small numbers. This may be due to the resource implications of applying cessation to refugees (which requires decision makers) and the existing backlog of first-instance refugee status decisions in many countries.

In order to understand current state practice on cessation, one must also differentiate between (a) refugee status and (b) the residence or protection permit which coincides with that status. Here there is a significant difference across key jurisdictions. In Australia, cessation results in the revocation of both refugee protection and lawful permission to stay. Thus, cessation renders applicants open to deportation. In contrast, under the German system, residence is not revoked automatically following the application of cessation. Further, if residence is revoked, such persons may be protected from immediate return due to applicability of a bar on deportation¹⁷ or they may be eligible for other types of protection, such as complementary protection, humanitarian protection or tolerated (Dul-dung) status, which is a temporary stay on deportation and does not constitute a residence permit).¹⁸ Thus, in Germany it appears that cessation is being used as a means of stripping away the rights of those refugees affected, rather than for the purpose of return to their country of origin.¹⁹ Such ‘ceased refugees’ may also have an uncertain status in Germany (for instance, if they are given ‘tolerated stay’ via the grant of Duldung status).²⁰ For instance, as of 2006 (when Germany was utilising cessation widely), there were 186,000 persons in Germany holding Duldung status. More than 100,000 of these had been staying in Germany for longer than 6 years.²¹ UNHCR also reported that, as at the end 2007, 13% of the 8,380 persons who had their refugee status revoked due to Article 1C(5) were staying in Germany on the basis of toleration permits.²² As UNHCR has noted, it therefore places the individual in a very weak legal position.²³ This is important for the operation of cessation, as such persons may be residing in a host state but be open to deportation at any time if state authorities decide that their country of origin is now ‘safe’. Further, the former EU Commissioner of Human Rights, Thomas Hammarberg has criticised Germany’s use of Duldung, noting that whilst they may be justified as a short-term measure, ‘when they are applied for several years, not to mention over a decade, such an insecure status can become an affront to human dignity’.²⁴

The legal questions

The state practice of time-limited visas and permits raises fundamental questions relating to refugee protection: in what circumstances should refugee status be ceased? Should it simply be where the refugee no longer meets the definition of a refugee under the Refugee Convention, or does it require more? Is the test simply absence of persecution or a broader notion of ‘effective protection’ encompassing criteria such as human rights protections, operation of judicial and administrative structures, and the absence of armed conflict? In other words, what is the relationship between persecution and protection under international refugee law?

The difference between granting and revoking refugee status

One of the fundamental starting points of my analysis is that the granting of refugee status is an important act under both international and domestic law. This may be an obvious point to some readers, but it is worth highlighting because it is a legal act which has ramifications for the way in which states grant protection, and for the test to be used in revoking that status.

The definition of a refugee set out in Article 1A(2) of the Refugee Convention states that the term ‘refugee’ shall apply to any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.²⁵

Thus, the refugee definition applies only to those persons who are outside their country of origin and are able to demonstrate that they are unable or unwilling to return to that country due to a well-founded fear of persecution for a Convention reason.

There are two issues which arise from this in terms of the duration and nature of protection granted to refugees under Article 1A(2). First, once refugee status is granted, it is able to be revoked or ‘ceased’ by a state if the criteria set out in Article 1C of the Refugee Convention are satisfied. One of the criteria upon which a state can cease the refugee status of a person is if there is a sufficient change in circumstances in the refugee’s country of nationality (‘the ceased circumstances clause’), which is set out in Article 1C(5) of the Refugee Convention. It provides that the Convention may cease to apply to a refugee if:

he can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; Provided that this paragraph shall not apply to a refugee falling under Section 1A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality.²⁶

Second, the Refugee Convention does not explicitly state that refugee protection granted by a state must be permanent in nature. Historically, the use of temporary protection has generally been recognised as an acceptable response to the particular exigencies of certain situations, such as those of mass influx. However, it is less clear that it should be used outside that special case, where individual refugee status determination is possible. On this point, some commentators have pointed to Article 1C as evidence that protection under the Convention is designed to be temporary only.²⁷ I argue in this book that whilst temporary residence permits may be granted to refugees, the legal situation becomes more complex as those refugees continue to reside in the asylum host state for a number of years. As such, the practical integration of refugees in an asylum host state may have to be considered as part of any cessation decision (discussed in Chapter 7).

Persecution and protection, whilst linked in the refugee definition,²⁸ are two very different concepts under cessation, and indeed under international refugee law more broadly. Acts recognised by state decis...