For reasons of brevity, the points raised in this paper are not necessarily the same as those in the UNHCR background paper2 , nor indeed to the UNHCR paper to the 18th Standing Committee, which precedes it3 . The paper does not pretend to represent the views of all, or even the majority of NGOs. We do, however, welcome the spirit and attempt to make the Global Consultations process interactive and look forward to continuing the dialogue with both UNHCR and States.

NGOs welcome the attention which is being given to the subject of complementary forms of protection at this session of the Global Consultations. NGOs broadly agree with the background papers prepared by the UNHCR, with one exception: we endorse the suggestion of the United States delegation at the 18th Standing Committee that a panel of experts be called to consider complementary forms of protection rather than that they form the subject of a Conclusion on International Protection at the forthcoming 52nd EXCOM Session. We also endorse the comments of those delegations at the 18th Standing Committee which cited the Refugee Convention as the cornerstone of the refugee protection regime and which distinguished clearly between complementary protection and temporary protection.

Despite -or perhaps because of- its continuing worth, the Refugee Convention has been under attack by many states for years. The attacks have taken various forms but of particular concern to NGOs has been the increasing trend to adopt restrictive interpretations of which refugees fall within the definition of Article 1 of the Refugee Convention. Now, only a small proportion of people seeking asylum are recognised as Refugee Convention refugees. We hope that the statements by delegates at the 18th Standing Committee about the value of the Convention will be turned into good practice.

We would draw attention particularly to the paragraphs 7-9 of the UNHCR paper to the 18th Standing Committee. We wholeheartedly endorse UNHCR's view that many refugees to-day are wrongly being granted complementary forms of protection instead of being recognised under the Refugee Convention. We insist that support for a complementary protection status should emphatically not be seen as endorsement, implicit or otherwise for the current restrictive interpretation of the Refugee Convention common in a number of states nor as support for current practices favouring non-Refugee Convention protection, in particular the granting of a non-Convention status based solely on reasons extraneous to the need for protection, such as mode of arrival.

We affirm the conclusions of the San Remo expert panel under the 2nd track of the Global Consultations, in particular, that gender based persecution, including on grounds of sexual orientation, falls within the Convention without requiring the addition of a sixth ground to the Convention.

We would draw attention particularly to paragraphs a), b), d), e) and f) of the UNHCR background paper for this round of the Global Consultations. We endorse UNHCR's view that complementary protection is a positive way of responding to certain international protection needs but we would also emphasis that it is not merely a pragmatic response but is also necessary in order to give effect to State obligations under international and regional human rights instruments.

In establishing whether a need exists that warrants the granting of complementary protection status, we affirm the importance of considering the impact on the life, safety and freedom of persons applying for international protection, of generalised violence, foreign aggression, internal conflict, massive violation of human rights or circumstances that seriously disturb public order.

There are wide differences in treatment of those people who might benefit from complementary protection. These differences cover the reasons for the granting of protection, its duration, and the rights attached to the status. From the forms of status currently granted we can see that most states have a very narrow idea of what "protection" means- an idea not based on the universality of human rights.

In our view, the concept of "protection" involves the enjoyment of at least certain basic rights. NGOs believe that there is no legal or logical reason why persons with a complementary protection status should have less rights than refugees. This is to some extent affirmed by the authors of the Refugee Convention in Recommendation E of the Final Act of the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons where they express the hope that "all nations will be guided by it (the Convention) in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides".

In the view of NGOs, therefore, any rights accruing to Convention refugees should be granted to all persons afforded complementary protection. They should include, at a minimum, the right to a legal status with clearly defined rights and responsibilities, an unconditional right to employment, a right to shelter including the freedom to choose where to settle, access to healthcare and education, and a right to family unity. Harmonised approaches to the treatment of persons granted complementary protection should not lead to any downward trend in standards resulting in the adoption of the lowest common denominator in the granting of rights to persons in need of international protection.

In terms of duration of complementary protection, we note that persons in need of international protection who do not fall within the criteria of the refugee definition are frequently considered to be in need of temporary protection and thus granted short term permits. NGOs believe that this creates a feeling of vulnerability in the minds of such persons in addition to acting as a barrier to integration and independent living. Given that the concept of refugee protection is temporary -as the cessation clauses of Article 1C of the Refugee Convention make plain- NGOs caution against making a distinction in terms of the duration of protection between Convention refugees and persons granted complementary protection. Instead, we propose that the criteria and processes applying to cessation clauses in Article 1C of the Refugee Convention should be equally applied in the case of cessation of status of persons granted a complementary protection status.

In terms of exclusion from complementary protection, we note that this form of status is sometimes used to provide protection to those who would otherwise be excluded from the Refugee Convention due to a risk of torture or other cruel, inhuman, degrading treatment or punishment. We would remind states that they cannot exclude persons at risk from such treatment from protection, however unpalatable a conclusion that may be.

In terms of the procedures to be used in determining who is not a refugee but is otherwise in need of international protection we would recommend that the list of elements of a comprehensive procedural system outlined in paragraph 10 of the UNHCR Background Paper are included in the concluding observations. In particular, we would emphasise the importance of the procedure first considering the applicability of the Refugee Convention and subsequently, on a sliding scale, the other grounds that might justify international protection. We would also highlight the need to provide for a right of appeal against any negative decision, including in cases where refugee status is not recognised but complementary protection is granted.

A question worth highlighting is that of standard of proof. Some jurisdictions have applied different standards of proof in the determination of refugee status and the determination of, for example, a risk of torture. For the avoidance of confusion, we would recommend that the same standard of proof- that of a "reasonable likelihood of persecution"- apply to both refugee status determination and complementary protection determination.

Nearly fifty years after its completion, the Refugee Convention remains a relevant and useful tool to address refugee problems. We believe it is from this perspective that States Party delegates should consider complementary forms of protection.

1. Written comments have been received from Alison Harvey at the Medical Foundation for Victims of Torture in London, UK and other comments were made by several NGOs during the UNHCR-NGO meeting on the paper, 25 September 2001

2. EC/GC/01/18, 4 September 2001

3. (EC/50/SC/CRP.18).