Stellungsnahme des UNHCR zu dem Kommissionsentwurf  :

UNHCR observations
on the revised proposal of the European Commission
for a Joint Action on Temporary Protection of Displaced Persons (COM (1998) 372)

1. UNHCR welcomes the revised Commission proposal for a Joint Action on Temporary Protection of Displaced Persons as providing a constructive basis for the further development of the concept. UNHCR supports the adoption of a regional approach to temporary protection in situations of large-scale influx which unavoidably result in long delays in the individual processing of asylum applications. In such situations temporary measures need to be developed in order to provide the displaced with the necessary protection and an appropriate framework of rights and benefits. A distinct European approach to temporary protection is desirable given the existence of elaborate asylum procedures in European states, the tendency for refugee status to be viewed as permanent, and the application of a restrictive interpretation of the refugee definition by some of these states. Also, a common approach to temporary protection by EU Member States can avoid the unintended and often discriminatory consequences of the current divergence in States’ temporary protection regimes.
   
2. Among the improvements in the revised proposal, UNHCR notes the recognition in Article 1 that any temporary protection arrangement is without prejudice to recognition of refugee status in accordance with the 1951 Convention. In its comments on the original proposal, UNHCR had asked for stronger emphasis on the inter-linkage with the 1951 Convention by recognising that beneficiaries of temporary protection include persons who qualify for refugee status under the 1951 Convention. Access to temporary protection, however, should not be conditional on express request by the persons concerned as the revised text of Article 1 (a) appears to imply.
   
3. In activating a temporary protection regime, UNHCR recommends that Member States not only decide jointly on the specific beneficiary groups and the duration of the regime, but also the specific minimum measures to be taken in order to ensure access to territory and the temporary protection regime. Such measures could be reflected in Article 3.2 of the Joint Action and include the lifting of visa restrictions, as well as the adoption of common entry and admission policies.
   
4. UNHCR has expressed the view that temporary protection should be limited to a duration of three years. It nevertheless welcomes the provisions in the revised proposal which limit the maximum duration of temporary protection to five years, and the suspension of the examination of the asylum application to three years, with the option of an extension of a maximum of two years (five years in aggregate) (Articles 3 and 10). In the view of UNHCR, and considering notably that beneficiaries of temporary protection include persons who meet the criteria for refugee status under the 1951 Convention, temporary status must not be unduly prolonged and should give way to more permanent arrangements in cases where there is no prospect of return in the short- or medium term and local integration - or resettlement - turns out to be the preferred option.
   
5. The rationale for temporary protection lies in the need to offer protection to
   refugees and displaced persons arriving in large-scale influx, where it would be impossible or impracticable to achieve timely and individual adjudication of their applications for asylum. In such cases, admission to safety and respect for the principle of non-refoulement must be guaranteed, if necessary outside the framework of the asylum procedure. The grant of temporary protection may therefore be predicated on the suspension of the examination of the individual application for asylum (Article 10). As the Commission proposal acknowledges, persons receiving temporary protection should not be indefinitely precluded from applying for refugee status. Access to the asylum procedure must be provided at some stage in order not to withhold the benefits of the 1951 Convention from those who fulfil the criteria for recognition as refugees under that instrument.
   
6. UNHCR strongly supports the proposed standards of treatment set out in Articles 6, 7, 8 and 9 of the Draft Joint Action. The Office has long held the view that beneficiaries of temporary protection are potential refugees who are legally present in the host country and, therefore, are entitled to a minimum of civil and social rights as prescribed by international and regional human rights instruments. Moreover, as many of the beneficiaries of temporary protection would qualify for refugee status, the standard of treatment of beneficiaries of temporary protection should closely resemble that to which recognised refugees are entitled under the 1951 Convention, particularly if the need for protection continues to exist over an appreciable period of time. UNHCR reiterates its recommendation that the Joint Action should expressly provide for the right to freedom of movement save for those legitimate restrictions set out in international and regional human rights instruments.
   
7. UNHCR recognises that State practice with regard to family unity (Article 7) varies widely. There has been a tendency for a growing number of States to authorise family reunion for at least spouses and minor children as part of temporary protection, which is reflected in the Commission proposal. The principle of family unity is laid down in most international and regional human rights instruments and is reflected in the Final Act of the Conference that adopted the 1951 Convention. The Conclusion on International Protection adopted by the Executive Committee at its 49th session in October 1998 (A/AC.96/911, paragraph 21 (u - x)), calls on States to implement measures to facilitate family reunification of refugees in a positive and humanitarian spirit and without undue delay, and, where necessary, to consider developing the legal framework to give effect to a right to family unity for all refugees. UNHCR encourages States to apply such a policy also to beneficiaries of temporary protection, on the understanding that many of them qualify as refugees.
   
8. UNHCR welcomes the priority given to the furtherance of voluntary repatriation (Article 4.3) once temporary protection is lifted and return is to be organised. Exceptions to automatic return upon the phasing-out of temporary protection should be provided for persons invoking compelling reasons not to be returned, arising from past persecution or other traumatic experiences. Such persons should have their claims assessed within the framework of existing asylum procedures or other national arrangements. The provision of accurate and comprehensive information concerning all relevant aspects of return to the country of origin is of fundamental importance; this should include information provided by UNHCR and independent international human rights organisations. UNHCR would welcome the inclusion of a reference in support of use of available Community funds to facilitate voluntary return of beneficiaries of temporary protection.
   
9. As with the original proposal, the revised Draft Joint Action refers to the possibility to find adequate protection in the region of origin (Article 3.1) as a factor to be taken into account by EU Member States when considering the activation of a co-ordinated temporary protection regime. UNHCR has expressed concern that this clause may undermine the intent of putting into place a co-ordinated response to admit into safety persons displaced in mass influx situations. Reception capacities of countries neighbouring conflict zones are often saturated quickly and, in such situations, EU Member States should offer protection to those seeking asylum, in a spirit of solidarity and shared responsibility. UNHCR would also be concerned if Member States were to include relocation within the country of origin as a measure to offer protection in the region of origin. Whether or not protection can be found elsewhere in the country of origin ("internal flight alternative") is a factor to be taken into account when assessing the well-foundedness of a claim to fear of persecution as well as the reasonableness of the relocation, and can only be decided on a case by case basis. The notion should not be resorted to in determining access to a temporary protection regime.
   
10. The adoption of long-term protection measures (Article 13) in case return in safety and dignity is not possible within a period of 5 years should be obligatory on States and not remain a moral imperative only. Such long-term measures could be made more specific and refer to permanent residence, local integration or resettlement.
    
11. UNHCR reiterates its suggestion that consultations with UNHCR (Article 12) during the introduction, revision or phasing -out of any temporary protection arrangement should be mandatory and not merely optional. As stated earlier, there would be value in an explicit recognition of UNHCR’s responsibilities and proper functions in situations where EU Member States decide upon the inception, the revision or the phasing out of a temporary protection regime.
    
12. Finally, UNHCR notes as additional improvements in the revised Draft Joint Action the requirement of States to apply the implementing provisions of temporary protection in strict compliance with the European Convention for the Protection of Human Rights (Article 2.2), the option for States to adopt national temporary protection arrangements pending the Council adopting an EU-wide regime (Article 2.4), and the provision for special measures to be taken for vulnerable groups such as women and unaccompanied minors (Article 7.2).

30 December 1998