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Ruwadan refugees on their way home after the genocide.
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Protecting Refugees -
Questions & Answers
A refugee is a person who "owing to a 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 to or, owing to such fear, is unwilling to avail himself of the protection of that country..."
The 1951 Convention relating to the Status of Refugees
Governments normally guarantee the basic human rights and physical security of their citizens. But when civilians become refugees this safety net disappears. UNHCR's main role in pursuing international protection is to ensure that states are aware of, and act on, their obligations to protect refugees and people seeking asylum. However, it is not a supranational organization and cannot be considered as a substitute for government responsibility. Countries may not forcibly return refugees to a territory where they face danger, nor discriminate between groups of refugees.
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Refugees are required to respect the laws and regulations of their country of asylum.
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A refugee has the right to safe asylum. However, international protection comprises more than physical safety. Refugees should receive at least the same rights and basic help as any other foreigner who is a legal resident, including freedom of thought, of movement and freedom from torture and degrading treatment. Economic and social rights are equally applicable. Refugees should have access to medical care, schooling and the right to work.
In certain circumstances when adequate government resources are not immediately available, including the sudden arrival of large numbers of uprooted people, UNHCR and other international organizations provide assistance such as financial grants, food, tools and shelter, schools and clinics. With income-generating and skill training projects, UNHCR makes every effort to ensure that refugees become self-sufficient as quickly as possible.
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Governments establish status determination procedures to decide a person's legal standing and rights in accordance with their own legal systems. UNHCR may offer advice as part of its mandate to promote refugee law, protect refugees and supervise the implementation of the 1951 Refugee Convention. The agency advocates that governments adopt a rapid, flexible and liberal process, recognizing how difficult it often is to document persecution.
UNHCR's 70-member Executive Committee sets non-binding guidelines; and the agency's "Handbook on Procedures and Criteria for Determining Refugee Status" is an authoritative interpretation of the 1951 Convention. In countries which are not party to international refugee instruments but which request UNHCR's assistance, the agency may determine a person's refugee status and offer its protection and assistance.
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The 1951 UN Refugee Convention, the main international instrument of refugee law, does not specifically address the issue of civilians fleeing conflict, though in recent years major refugee movements have resulted from civil wars, and ethnic, tribal and religious violence.
However, UNHCR considers that people fleeing such conditions should be considered refugees, if their own state is unwilling or unable to protect them. Regional instruments such as Africa's OAU Convention and the Cartagena Declaration in Latin America support this stance.
Some countries argue that civilians fleeing generalized war or who fear persecution by non-state groups such as militias and rebels, should not be given formal refugee status. It is UNHCR's view that the origin of the persecution should not be decisive in determining refugee status. The key issue should be whether a person deserves international protection because it is not available in his or her country of origin.
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Internally displaced people (IDPs) flee their homes for the same reasons as refugees, but remain within their own country and are thus subject to the laws of that state. Though it does not have a specific mandate in this field, UNHCR has been assisting several million of the estimated 23.7 million global population of IDPs for many years.
As part of an evolving global approach towards the internally displaced, UNHCR works closely with other organizations and United Nations sister agencies, in particular applying its expertise in the fields of protection, emergency shelter and camp management.
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People who apply for refugee status normally need to establish individually that their fear of persecution is well-founded. However, during mass exoduses such as those that took place from Kosovo or, more recently, from Darfur, individual screening may be impossible. In such circumstances, particularly when civilians are fleeing for similar reasons, it may be appropriate to declare 'group' determination of refugee status, whereby each person in the group is considered as a refugee prima facie – in other words, in the absence of evidence to the contrary.
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Economic migrants normally leave a country voluntarily to seek a better life. Should they elect to return home, they would continue to receive the protection of their government. Refugees flee because of the threat of persecution and cannot return safely to their homes in the prevailing circumstances.
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People who have been determined, under an equitable procedure, not to be in need of international protection are in a situation similar to that of illegal aliens, and may be deported. However, UNHCR does urge that protection be granted to people who come from countries devastated by armed conflicts or generalized violence. The agency also advocates that rejected asylum seekers be granted the right to a review before being deported.
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Every country has the right to ask its citizens to bear arms in periods of national emergency. However, citizens should have an equal right to conscientious objection. In cases where the option of conscientious objection is not observed, or where a conflict violates international norms, draft evaders who fear persecution on political or other grounds may be eligible for refugee status.
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A criminal who has received a fair trial for a common law offense and who flees his country to escape jail is not normally a refugee. However, a person accused of non-political crimes (whether innocent or guilty) who is also at risk of persecution for political or other reasons, may be a refugee. Furthermore, people convicted of the 'crime' of political activism may well qualify as refugees.
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People who have participated in war crimes and violations of international humanitarian and human rights law – including the crime of terrorism – are specifically excluded from the protection accorded to refugees.
In practice, especially during a mass exodus, it is sometimes difficult to separate people suspected of serious human rights violations from bona fide refugees especially for a humanitarian organization such as UNHCR which is neither a police force nor a judicial body. In the 1990s, for instance, known violators were living in the huge refugee camps for Rwandans established in surrounding countries.
The most viable solution is to provide and support initiatives such as the international tribunals for Rwanda and the former Yugoslavia, to bring war criminals to justice. UNHCR is obligated to share with these and other relevant UN organizations pertinent facts on such issues, while sensitively handling information which refugees have divulged to field staff.
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A refugee is a civilian. A person who continues to pursue armed action against his or her country of origin from the country of asylum cannot be considered a refugee.
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Women, like men, may be persecuted for political, ethnic or religious reasons. In addition, someone fleeing discrimination or severe persecution for her failure to conform to strict social codes has grounds to be considered for refugee status. Such persecution may emanate from a government authority or, in the absence of adequate government protection, from non-state actors. Sexual violence, such as rape, may – depending on the circumstances – constitute persecution.
To be considered a refugee, such discrimination should have consequences that are significantly prejudicial. A woman who fears attack for her refusal to wear a chador or other restrictive clothing, or because of her desire to choose her own spouse and live an independent life, may qualify to be a refugee.
In 1984, the European Parliament determined that women facing cruel or inhumane treatment because they seemed to transgress social mores should be considered a particular social group for the purposes of determining refugee status. A number of countries including the United States, Canada, Germany, the Netherlands, Switzerland and the United Kingdom now have guidelines related to gender-based persecution.
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In several countries including France, the Netherlands, Canada, the United Kingdom and the United States, it has been officially recognized that genital mutilation represents a form of persecution and that this can be a basis for refugee status. In at least one case, a woman who feared persecution in her country because of her refusal to inflict genital mutilation on her infant daughter was recognized as a refugee.
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Homosexuals may be eligible for refugee status on the basis of persecution because of their membership of a particular social group. It is the policy of UNHCR that people facing attack, inhumane treatment, or serious discrimination because of their homosexuality, and whose governments are unable or unwilling to protect them, should be recognized as refugees.
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Nations at times offer 'temporary protection' when they face a sudden mass influx of people, as happened during the conflicts in the former Yugoslavia in the early 1990s, and later in Kosovo, when their regular asylum systems would be overwhelmed. In such circumstances people can be speedily admitted to safe countries, but without any guarantee of permanent asylum.
Thus 'temporary protection' can work to the advantage of both governments and asylum seekers in specific circumstances. But it only complements, and does not substitute for, the wider protection measures, including formal refugee status, offered by the 1951 Convention.
Temporary protection should not be prolonged, and after a reasonable period of time UNHCR advocates that people benefiting from this should be given the right to claim full refugee status. Those rejected should, nonetheless, be allowed to remain in a country of asylum until it is safe to return.
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Refugees, especially the elderly, women and children, are often vulnerable to violence. Rape, in particular, is a common element in the pattern of persecution that drives refugee families from their homes, as civilians increasingly become the deliberate targets of sectarian warfare. Civilians may be sexually assaulted during their flight and on arrival in their country of asylum, by officials, locals, or other refugees.
UNHCR field staff attempt to prevent conditions that encourage such assaults, offering victims special care and ensuring a proper legal follow-up which may include trials for suspected perpetrators. Preventive measures include improving camp layout or upgrading basic facilities such as lighting and walls and encouraging refugees to institute night patrols.
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Voluntary repatriation is the preferred long-term solution for the majority of refugees. However, because of an ongoing threat of persecution or other reasons, some civilians cannot repatriate and are unable to live permanently in their country of asylum. In those circumstances, resettlement in a third country may be the only feasible option.
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In normal circumstances, no. But in the interests of family reunification, refugees may request resettlement in countries where their close family members are already living.
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Governments are not always ready to adapt their quotas to rapidly changing needs, and often establish them in response to domestic interest groups, targeting specific nationalities. Resettlement countries may also turn down cases such as families with pressing medical problems, who may be more costly in terms of welfare payments, or who may have limited ability to integrate rapidly.
In general, although some countries do accept difficult-to-place hardship cases, most resettlement countries prefer educated refugees with strong family and cultural links, an intact family structure, and a high likelihood of rapid integration. Such families may not always correspond to the pressing protection cases which UNHCR attempts to resettle.
The global war on terror and tightened immigration procedures have hampered recent resettlement programs, especially in the United States, though the numbers of cases accepted by the US have begun to increase again.
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Of the 192 member states of the UN, 16 have established annual resettlement quotas, including Australia, Canada, Denmark, Finland, Ireland, New Zealand, the Netherlands, Norway, Sweden, the United Kingdom and the United States. Other countries may consider submissions from UNHCR on a case by case basis, normally because of family reunion or strong cultural links.
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Shipmasters have an obligation under international law to rescue any people in distress at sea. In some cases, such as the exodus of Vietnamese boat people, such people were asylum seekers. Clandestine stowaways may also be asylum seekers.
Individuals rescued at sea ought to be disembarked in a safe place, usually the nearest or next port of call, where they should be admitted, at least on a temporary basis. Some flag states of rescuing ships have on occasion provided guarantees of resettlement for rescued people.
There is no binding international convention relating to stowaway asylum seekers and their reception varies widely. UNHCR advocates that, wherever possible, stowaways should be allowed to disembark at the first safe port of call, where their refugee status may be determined by the local authorities. They should never be disembarked at, or or forced to travel on to, a place where they would be at risk.
In such cases, UNHCR officials try to arrange an on-board interview and if the asylum seeker is found to be a refugee, they assist in finding a permanent solution.
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An unaccompanied minor is one "who is separated from both parents and for whose care no person can be found who by law or custom has primary responsibility." The number of unaccompanied child refugees varies widely. It often comprises 2 to 5 percent of a refugee population and in Europe a UNHCR study estimated that 4 percent of asylum seekers were separated children.
UNHCR works with other agencies such as the Red Cross, UNICEF and Save the Children, to ensure that unaccompanied children are identified and registered, and their families traced. After the Rwandan crisis in the mid-1990s, an estimated 67,000 children were reunited with their families.
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The right to a nationality is widely recognized in international law and constitutes a status from which other rights may derive. However, millions of people worldwide remain stateless especially in some countries that were formerly part of the Soviet Union. The problem is particularly acute among children of parents of mixed origin, or who are born in a country other than their parents' country of origin, since they do not necessarily gain citizenship of the place where they are born.
There are several international documents which deal with the issue including the 1948 Universal Declaration of Human Rights, the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness which underlines that a person may not be deprived of nationality on racial, ethnic, religious or political grounds. It sketches out measures to prevent statelessness resulting from the transfer of territory; and establishes rules for the granting of nationality to people born in a country who would otherwise be stateless. The UN General Assembly entrusted UNHCR with overseeing both these Conventions. In 2003, the results of a UNHCR survey of 191 countries helped for the first time to build a comprehensive global picture that will assist governments, with UNHCR's help, to expand or introduce new laws and projects to tackle the problem.
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