Cancellation of Refugee Status - unhcr.org

1 LEGAL AND PROTECTION POLICY. RESEARCH SERIES. Cancellation of Refugee Status Sibylle Kapferer UNHCR Consultant DEPARTMENT OF INTERNATIONAL PROTECTION. PPLA/2003/02. March 2003. PROTECTION POLICY AND LEGAL ADVICE SECTION (PPLA). DEPARTMENT OF INTERNATIONAL PROTECTION. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES. CP 2500, 1211 Geneva 2. Switzerland E-mail: Web Site: This research paper was commissioned by the Protection Policy and Legal Advice Section of UNHCR's Department of International Protection. The views expressed in this paper are not necessarily those of UNHCR. This paper is available online at United Nations High Commissioner for Refugees 2003.

2 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior written permission of UNHCR. LEGAL AND PROTECTION POLICY. RESEARCH SERIES. Cancellation of Refugee Status Sibylle Kapferer UNHCR Consultant DEPARTMENT OF INTERNATIONAL PROTECTION. PPLA/2003/02. March 2003. Table of Contents EXECUTIVE SUMMARY .. iii I. II. Cancellation OF Refugee Status GRANTED BY A STATE UNDER THE 1951. CONVENTION ..3. A. Grounds for Cancellation of Refugee Status .

3 4. 1. Cancellation of Refugee Status because of fraud on the part of the applicant ..5. a) Objectively incorrect statements ..7. b) c) Intention to deceive ..8. 2. Cancellation on the basis of other misconduct by the applicant ..10. 3. Cancellation on the basis of an exclusion provision of the 1951 Convention ..11. 4. Cancellation of Refugee Status because of a mistake on the part of the authority ..13. B. Opening Cancellation 1. Power to reopen administrative decisions ..17. 2. Impediments to reopening administrative procedures ..19. a) Res judicata and estoppel ..19. b) Time limits.

4 22. C. Evidence for the Cancellation of Refugee Status ..23. 1. Evidence required to establish the existence of a ground for Cancellation ..24. 2. Burden and standard of 3. Remaining evidence: eligibility at the time of the initial D. Cancellation : Mandatory or Discretionary?..29. E. Cancellation Procedure: Safeguards and Guarantees ..31. F. Decision to Cancel Consequences of Cancellation ..34. G. Cancellation vs. Cessation, Revocation, Expulsion and Exceptions to the Principle of non-refoulement ..37. 1. Cessation and 2. Expulsion and exceptions to the principle of III.

5 Cancellation OF Refugee Status DETERMINED BY UNHCR UNDER ITS. STATUTE ..40. IV. CONCLUDING REMARKS ..44. i ii EXECUTIVE SUMMARY. I. INTRODUCTION. The issue of Cancellation of Refugee Status arises where a person recognised as a Refugee by a State under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol is subsequently found not to have been entitled to the benefit of international protection under these instruments. It may also affect persons who were determined to be refugees by the United Nations High Commissioner for Refugees (UNHCR) under its 1950 Statute.

6 Cancellation means the invalidation of a positive Refugee Status determination which should not have been made in the first place. It has the effect of rendering Refugee Status null and void from the time of the original decision (ab initio or ex tunc). In principle, individuals who were not eligible for international protection at the time they were determined to be refugees cannot claim to be prejudiced by Cancellation of a Status which ought not to have been recognised in the first place. Cancellation will normally be the appropriate measure where, at the time of the positive determination, the person concerned did not fulfil the eligibility criteria under the 1951 Convention, because s/he was not in need, or not deserving of international Refugee protection.

7 On the other hand, those who did have a well-founded fear of persecution and were rightly recognised as refugees must be protected from having their Status invalidated in an arbitrary or discriminatory manner. Part I of this paper introduces the subject from an international protection perspective. II. Cancellation OF Refugee Status GRANTED BY A STATE UNDER THE 1951. CONVENTION. The 1951 Convention does not specifically address Cancellation . General principles of law and national administrative procedure legislation determine the circumstances in which the invalidation of flawed Refugee Status determination is lawful.

8 As a general rule, a faulty administrative act which does not confer rights upon an individual may be cancelled by the issuing authority at any time. By contrast, the Cancellation of flawed administrative decisions which do confer such rights is subject to often stringent conditions. Part II of this paper provides a comparative analysis of the law and practice of Cancellation in a number of States. While there is some variation between common law and civil law countries, and even within those systems from one country to another, the general principles applicable to Cancellation are similar.

9 For the invalidation of a positive Refugee Status determination to be justified, a ground for Cancellation , as provided for under the relevant law, must exist. National legislation typically permits Cancellation if one or more of the following grounds are established: substantial fraud by the applicant with regard to core aspects relating to his or her eligibility for protection;. iii other misconduct affecting eligibility on the part of the applicant, such as, for example, threats or bribery;. the applicability of an exclusion clause, with or without fraud on the part of the applicant.

10 An error of law and/or fact by the determining authority, relating to inclusion or exclusion criteria. Within each category, more detailed rules determine the conditions which need to be fulfilled for Cancellation to be justified. An analysis of relevant legislation and jurisprudence is provided in Section A of this part of the paper. The paper goes on to examine a number of other issues which are relevant for Cancellation of Refugee Status under national administrative procedures. These include the circumstances and conditions in which final administrative decisions may be re-opened (Section B).