On 25 June 2004, UNHCR's paper on basic propositions on irregular secondary movements was electronically shared with the Core Group for this strand of Convention Plus. The members were invited to provide written comments with the aim of jointly working toward a comprehensive framework for addressing these onward movements. In response, written input was received in a joint statement of the African members of the Core Group (Ghana, Nigeria, Ethiopia, Uganda, Kenya and South Africa), Amnesty International, Argentina, Denmark, ICVA, the Netherlands, Sweden, Switzerland and the United Kingdom.
This document consolidates the written input received by first taking stock of the general comments, followed by the specific input per paragraph. For ease of reference, first the original text of UNHCR's document will be quoted, followed by the comments relating to the respective paragraphs.
- The phenomenon of refugees who move in an irregular manner from countries in
which they have already found protection, in order to seek asylum or permanent
resettlement elsewhere, remains as problematic today as it was in 1989, when ExCom
addressed it in Conclusion 58 (XL). Likewise, the remedial measures recommended by that Conclusion retain all their relevance today.
African Members: The African participants believe that a discussion on irregular secondary movement should be based on Excom Conclusion 58 (XL) namely asylum seekers or refugees "who move in an irregular manner from countries in which they have found protection".
The African participants believe that when asylum-seekers and refugees move onwards from countries where they are unable to find effective protection or legal status, such movement should be regarded as primary movement, namely a legitimate onward movement in search of effective protection.
Amnesty International: Firstly, we are firmly of the opinion that any discussion of irregular secondary movement must be premised on an authoritative, rights-respecting and comprehensive definition of what constitutes "effective protection", which would effectively integrate international human rights standards, including economic, social and cultural rights standards. However we believe equally strongly that this definition should not be formulated solely as a result of the relatively narrow focus of the deliberations of this core group. Therefore we reiterate our call to UNHCR's Department of International Protection to provide, in a timely manner, authoritative guidance on this important subject.
We would stress that the starting point for discussion of "irregular" movement must make explicit reference to ExCom Conclusion 58 (XL) and the remedial measures contained therein, and are thus pleased to see the reference to this Conclusion at the outset of the basic propositions paper. However, we continue to be concerned that a lack of clarity as to the definition of 'irregular secondary movements', as well as other terms contained within this paper such as 'mixed flows' and 'onward movements', could lead to an approach to solutions that impacts adversely on the human rights of refugees and asylum seekers and also migrants.
Argentina: Supports the idea that Conclusion 58 (XL) retains relevance today and covers a wide range of protection of refugees and asylum-seekers that move in an irregular manner.
Australia: In accordance with Excom Conclusion 58 (XL) 1989, the term "refugee" in Australia's comments includes refugees, whether they have been formally identified as such or not.
ICVA: NGO's who submitted their comments through ICVA welcome the reference to EXCOM Conclusion 58 (XL) in the basic propositions paper. The paper should include the recognition that one of the main problems at the root of so-called "irregular secondary movements" is the failure to respect the basic rights of refugees. Such movements are often an effective solution for refugees who are trying to ensure that their basic rights are respected. The enjoyment of the rights spelled out in the 1951 Convention, inter alia, must be seen as part of refugee protection: the current document does not clearly acknowledge this fact.
The Netherlands: In view of UNHCR's document, the Netherlands welcome the fact that in Paragraph 1 and 2 a wide description of the issue is used, including the movement of refugees and asylum-seekers without seeking protection or without awaiting the outcome of their claims. This broad notion of irregular secondary movement is not reflected in the rest of the paper. Especially where it comes to approaches to solutions (Para. 6-9) this should be taken into consideration.
The Netherlands inquire whether there any figures on this? The fact that globalisation and mobility is increasing might have made this phenomenon even more problematic than it was in 1989.
Switzerland: Would like to insert in the first sentence after "refugees" the word "asylum-seekers" and would like to delete the word "remedial" in the second sentence.
-
At the same time, today's reality of 'mixed flows' suggests that the problem is
broader, in that it extends to the movements of refugees and asylum-seekers across
several international borders either without seeking international protection or without
awaiting the outcome of their claims. Ideally, strategies to address irregular secondary
movements as defined by Conclusion 58 (XL) and as called for in the Agenda for
Protection should also tackle this new phenomenon.
African Members: The African participants furthermore believe that the discussion in the Core Group should also be based on an understanding of what constitutes effective protection although such a definition should not be limited to the context only of irregular secondary movement. The UNHCR's Department for International Protection (DIP) should provide a guiding statement.
We also believe that the lack of effective protection may not only be prevalent in developing countries but that this may also be relevant in industrialized countries where refugees or asylum seekers may not be able to access the labour market, health care, housing and education. In other words, asylum seekers do not have the ability to exercise their civil, political, economic, social and cultural rights.
A discussion on the causes of movement is needed, taking into account the situation in the country of origin, the countries in the region as well as those further afield. This should include a better understanding of what is meant by fair and efficient asylum procedures.
The obligations of states to consider an application for asylum and providing protection to genuine refugees as defined in the 1951 Convention and its Protocol as well as regional instruments enforced, should be spelt out. Whether a person has already sought but not found protection in a previous country should not impact on the person's right to seek protection in another country, as there is no obligation under international law to seek international protection at the first available opportunity. A clear understanding of states obligations as regards the right to family unity will be needed.
Amnesty International: In response to paragraph 2 of the paper, we would assert that in place of the term 'mixed flows', which conventionally refers to the simultaneous movement of refugees, asylum seekers and other migrants within the same 'flow', reference should be made instead to the movement of refugees who have not found effective protection. We would also contend that such movements are not in fact new. In our view this would clarify the group of persons on whom this segment of Convention Plus is focusing its attention. Further, it would also serve to clarify that other groups of persons would not properly be the subject of the attention of this segment, such as rejected asylum seekers or "economic migrants".
Following on from this, and prior to speaking of "strategies" to address irregular secondary movements, we believe that some thought should be given to the reasons why refugees are motivated to move onwards. In other words, an analysis should first be made of the gaps in protection which cause refugees to move onwards in search of effective protection. These in turn will enable the international community to explore avenues of action, or "strategies", which are respectful of and promote the fundamental human rights of the refugees and asylum seekers.
Australia: Would like to omit the words "of mixed flows".
The term "mixed flows" refers both to refugees and persons who are not refugees yet migrate by resorting to asylum channels - see Goal 2 of the Agenda for Protection. The first sentence of paragraph 2, however, only refers to the former.
Omitting the term also leaves paragraphs 1 and 2 to nicely encapsulate the various forms of secondary movements by refugees, without confusing the issue with irregular movements by persons who are not refugees seeking to migrate by resorting to asylum channels. A reference to this group and broader mixed migratory flows is better addressed in a separate paragraph - see suggested paragraph 2A below.
Australia suggests inserting after paragraph
2, the following paragraph 2A:
"It is important to recognize that refugees often move within broader mixed migratory flows, which include persons who are not refugees seeking to migrate by resorting to asylum channels. There is therefore a need to achieve a better understanding and management of the interface between asylum and migration."
The Netherlands: Does this include the persons that are mentioned in paragraph 9: persons other than refugees and asylum seekers that seek access to States of their choice using the asylum system? This is also an important (if not the most important) category.
Sweden: In paragraph 2 the word "ideally" in the last sentence is not really appropriate, as the mentioned strategies to address irregular secondary movements should not only ideally tackle this new phenomenon.
Switzerland: Suggests deleting the phrase "At the same time, today's reality of mixed flows suggests that" and the words "the problem" and, instead, insert "Today, the problem of irregular movements is broader (etc.)". Switzerland also suggests to insert in the second sentence, after "Ideally", the word "new".
The U.K.: We are pleased to see in paragraph 2 that asylum seekers and refugees who could have sought or could have found protection in one country, but who move on to another, are being included in this work alongside those who have found protection but moved on. We also think this paragraph would benefit from a clearer definition of "mixed flows" in the first sentence.
-
Recognizing that the vast majority of refugees are in the developing world, and that inadequacies in protection for refugees stem in part from disproportionate asylum burdens on developing countries, multilateral approaches must demonstrate a commitment to share burdens and responsibility equitably.
African Members: In order to arrive at a possible multilateral agreement, we are of the opinion that the discussion should focus on what is meant with burden- and responsibility sharing. The document drafted by Amnesty International for the 2004 March Forum meeting "Basic human rights principles applicable to responsibility and burden-sharing arrangements" could form a basis for the discussion.
Australia: Suggests amending the sentence as follows:
"It is also important to recognize that the majority of refugees are in the developing world and that inadequacies in protection for refugees stem in part from disproportionate asylum burdens on refugee-receiving developing countries."
The last clause "multilateral approaches must demonstrate a commitment to share burdens and responsibility equitably", is an approach to a solution. In keeping with the structure of the document, it therefore belongs in the section headed "approaches to solutions" rather than in outlining the context of secondary movements. Happily, it already features explicitly in paragraph 8.
Switzerland: Suggests deleting the word "asylum" in the second line.
The U.K.: Given the comments above, "refugees" in paragraph 3, and elsewhere in the paper, should also refer to "asylum seekers". In the first sentence of this paragraph, we think "vast" overstates the case; "majority" should be used. We also have concerns about the last word of the paragraph. "Equitably" can be interpreted in many different ways. We would prefer the word to be deleted. It may be too contentious, but it might help to spell out a few ways in which burdens and responsibilities could be shared, such as development assistance, help with training for host countries' refugee systems, resettlement, and so on.
Problem statement
- Irregular secondary movements are of concern to refugees, States and UNHCR
because:
-
they reflect gaps in protection for refugees, including the absence of
any prospect of a timely solution to their problems.
- they can have a destabilizing effect on structured international efforts
to provide appropriate solutions for refugees.
- they feed smuggling and trafficking networks, with harmful
consequences to refugees and asylum-seekers.
Efforts to deter these movements can lead to refugee-in-orbit situations and, in the
worst case scenario, to refoulement.
Australia: Suggests the following amendments:
First dot point: insert after the word "they", the word "may". As noted in paragraph 2, today's reality extends to movements by refugees across international borders without seeking international protection or awaiting the outcome of their claims. Some such movements (for example, from North Africa, through several European Union countries, to the United Kingdom) surely reflect neither a gap in protection, nor the absence of a timely solution.
Second dot point: Omit the word "can". The word "can" is absent from Excom-Conclusion 58 (XL) 1989 -see paragraph (a) which refers to the destabilising effect secondary movements have on structured international efforts. The word's inclusion thus implies that secondary movement may or may not have a destabilizing effect. The latter proposition is at odds with the understandings states and UNHCR have reached to date on the issue.
Australia suggests to reorder the dot points so that they move from general to specific. This is in line with broad drafting principles. Thus, the first dot point would refer to the destabilising effect on international efforts; the second to the gaps in protection and absence of timely solution; and the third to smuggling and trafficking and its harmful consequences.
Australia also suggests to omit the last sentence of paragraph 4 "Efforts….refoulement". The stated aim of the "Basic Propositions" document is to address comprehensively secondary movements, not to deter such movements. Moreover, the last sentence of paragraph 4 presents an incomplete picture of the consequences of addressing secondary movements by describing only two negative effects. An alternative to omission, is to substitute the last sentence of paragraph 4 for a more balanced and thorough description of the consequences of addressing secondary movements. In this event, it is recommended that the substituted text appears in the section headed "Approaches to Solutions", where it is better fit, rather than remain under "Problem Statement" (see text suggestions for substitution under Australia's comments on paragraph 7).
Denmark: The following should be added at the end of bullet 2: ", in particular by overloading national asylum system and by undermining public confidence in the global protection system and reducing political and consequently financial support in destination states".
ICVA: There must also be recognition that some Western states bear responsibility for creating, through interdiction, some of the conditions that force refugees and asylum-seekers to resort to smugglers.
Reference could also be in the paper made to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention Against Transnational Crime (2000), which provides protection to victims of trafficking.
The Netherlands: Would like to suggest to add a fourth bullet point:
'they lead to arbitrary situations, because the financial means that are available for refugee protection worldwide, will in practise mostly benefit those who are able to travel to the west'.
Switzerland: Suggests inserting in the first sentence the words "and asylum-seekers" after "refugees" and to add the following phrase at the end of the first bullet point: "but also the wish of individuals to seek access to states of their choice". Switzerland also suggests deleting the word 'scenario" in the last sentence.
The U.K.: In addition to the points listed in paragraph 4, there is a huge concern in "destination states" about the effect of irregular secondary movement. It causes additional pressure on overloaded asylum structures which decreases states' abilities to recognise and provide protection for refugees.
We also think the final line (beginning "Efforts to deter") is overstated.
Asylum/ migration nexus and rights protection orientation
- The human rights and human dignity of all migrants must be respected and protected at all times. However, there exists an international regime for the protection of refugees because refugees have specific protection needs. To meet these needs, it is essential that refugees be identified, including within mixed flows, as early as possible after their flight.
Amnesty International: In reference to paragraph 5 of the paper, we would prefer if the formulation refers to the fact that it is essential for refugees to "be ensured effective protection" as early as possible after their flight, as identification by itself would not ensure protection for the refugee, and has often meant that some refugees are exposed to abuse rather than being assured of protection.
Argentina: The mandate of the UNHCR covers refugees, so it is very important to identify them. Registration is a necessary tool for protection. But also multilateral approaches should be implemented to reduce causes of onward movements.
Denmark: The following should be added in the last sentence after the word "identified": "registered and documented".
The following should be added in the last sentence after the word "early": "and as close to their country of origin".
ICVA: While refugees do have specific protection needs, there is a need for the paper to provide adequate recognition of the rights of migrants, which should not be considered to be of any less importance. The paper should refer to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. In addition, reference to other human rights instruments and standards should be included as part of the basic propositions so as to ensure protection against return to a country of torture, for example. Such basic human rights provisions must not be overlooked in the paper.
The Netherlands: Would like to add the following phrase at the end of the last sentence: 'and that they have access to protection as early as possible and as close to their homes as possible'.
Switzerland: Suggests amending the heading by deleting the words "right protection orientation" and instead inserting "the protection of the rights of refugees".
The U.K.: We have several concerns with this paragraph. First of all, we would like to delete "and human dignity" as it is not clear what this covers, and could be open to very wide interpretation. We would also wish to ensure that the reference to human rights could not be interpreted as meaning that states have responsibilities for the human rights of persons not on their territory. The final sentence is also difficult, as it could be interpreted as saying that states should determine status even if it is proposed to return them to a safe third country.
We also think this paragraph belongs earlier in the document.
Approaches to solutions
-
As recognized in the Agenda for Protection, the problem of irregular secondary
movements is best addressed through multilateral approaches that focus on reducing
the causes for onward movements. Some of these causes are known and were identified in ExCom Conclusion 58 (XL). The findings of the survey on movements of Somali refugees and asylum-seekers will further inform the development of solutions-oriented approaches.
African Members: In order to arrive at a possible multilateral agreement, we are of the opinion that the discussion should focus on what is meant with burden- and responsibility sharing. The document drafted by Amnesty International for the 2004 March Forum meeting "Basic human rights principles applicable to responsibility and burden-sharing arrangements" could form a basis for the discussion.
Furthermore, any envisaged agreement should, inter alia, be consistent with international refugee and human rights law standards, take into account the intentions of refugees, have a reference to art 31 of the 1951 Convention and respect the right of family unity.
Finally the African participants wish to know what the link is between the survey of the Somali caseload and the envisaged Comprehensive Plan of Action (CPA) for Somali's. Also, we would appreciate to be informed of all current activities within the UNHCR as it relates to the Somali caseload. In this regard, information on the Inspector-General's recent report on Somalia would be welcomed (following an inspection mission by the previous Inspector General Dennis McNamara).
ICVA: There is some unclarity in the paragraph on Approaches to Solutions with regard to which "solutions" reference is being made. We would hope that the development of "solutions-oriented approaches" refers to attempts to find durable solutions for refugees, which may, as a side-effect, also reduce the causes for onward movements. The primary aim of developing "solutions-oriented approaches" must be the search for durable solutions for refugees.
Switzerland: Suggest to delete the words "and are known" in the second sentence.
The U.K.: We are still concerned that the findings of the survey on Somalis may not necessarily be applicable to other caseloads or situations (paragraph 6). Nevertheless, we welcome the attention to a practical example, and are sure there will be some cross-applicability. In this paragraph "in" should be inserted before "ExCom" and "will be of great importance and" before "will further inform".
- To address comprehensively the problem of irregular secondary movements,
multilateral cooperative frameworks and approaches should have four objectives:
- to strengthen protection capacities in States where refugees and
asylum-seekers initially arrive;
- to improve domestic asylum-systems in States where onward
movements may occur;
- to ensure the timely availability of durable solutions for refugees; and
- to ensure that States apply border control measures in a protection-sensitive
manner.
African Members: The African participants feel strongly that the focus of the discussion should be on enhancing protection in countries of asylum rather than on regional approaches for the processing of asylum claims. We would support the notion of increased protection in the region provided that it is not construed to entail burden-shifting rather than burden-sharing. Developing countries hosting significant refugee populations should be offered targeted and sustained development assistance in addition to the normal ODA. The search for durable solutions should continue and be expanded including the strategic use of resettlement, as appropriate.
Australia: Following Australia's suggestion to delete the last sentence of paragraph 4, Australia suggests to insert the following bullet points on addressing secondary movements under the heading of "Approaches to Solutions":
(a) dealing with root causes
(b) providing support to countries of first asylum bearing much of the burden of protecting the world's refugees.
(c) Achieving the most desirable outcome for the majority of the world's refugees -voluntary repatriation in conditions of safety and dignity; and
(d) Responding to those in greatest relative need as opposed to those who have the greatest relatives means.
At the same time, comprehensive efforts to reduce secondary movements must guard against creating situations of refugee-in-orbit and refoulement.
In addition to the objectives mentioned, Australia suggests to include the following additional bullet point:
"To improve cooperation between states and UNHCR in readmitting refugees who have engaged in secondary movement, to the country from which they made that movement."
Paragraph 7 refers to addressing comprehensively the problem of irregular secondary movements. Secondary movement is not comprehensively addressed without reference to readmission of refugees. This is recognised by Excom Conclusion 58 (XL) 1989, which deals with readmission of refugees in paragraph (e) and (f) (as well as strengthening the protection capacities of states and improving access to durable solutions - the subject of the two other dot points in paragraph 7). Indeed, improved cooperation on this issue would avert the refugee-in-orbit and refoulement situations currently alluded to in paragraph 4.
Australia suggests amending the second dot point as follows in order to clarify its meaning:
"To improve domestic asylum systems in states from which onward movement may occur".
Australia believes that in the existing text, it is unclear to which states this point refers, for example countries of first asylum, transit or destination.
Furthermore, Australia suggests to reorder the dot point so that they move logically in the sequence of protection. Thus, the first bullet point would refer to protection in states of initial arrival; the second to the availability of durable solutions; the third to domestic asylum systems in states from which onward movements occur; the fourth to readmission; and the fifth to protection-sensitive application of border control measures.
Denmark: The following should be added in the first bullet after the word "capacities": "of domestic asylum systems".
The following should be added at the end of bullet 1 ", including through the setting up of effective registration and documentation systems".
The following new second bullet should be added: "to increase awareness of the dangers of irregular movements through campaigns".
The following new bullet should be added: "to ensure that irregular secondary movers, within a burden- and responsibility-sharing framework, are readmitted to where they had already sought or found protection or admitted to a country in the region of origin to where they have links, which makes it reasonable that they seek protection in that country ".
The Netherlands: Feel that readmission should be 'part of the deal'. Therefore, this should be included in the objectives. We suggest as a fifth bullet point: "To ensure that readmission will be phased, orderly and humane and accomplished in manageable numbers".
Sweden: The first two bullets in paragraph 7 seem to address the same issue or could be clarified.
Switzerland: Suggests starting the first bullet point as follows: "To provide effective protection by strengthening protection capacities", etc. and to replace the word "improve" in the second bullet point by "set up and strengthen".
The U.K.: Under the first objective, we wonder if "including domestic asylum systems" should be added. The second objective does not take into account situations in which safe third country removal is an option. In the third objective, we would like "the full range of" inserted before "durable solutions". We also think "ensure" is too strong. We don't object to the fourth objective, but wonder how it will be "ensured" that states do this in practice. That would seem to go beyond the remit of this group. Finally, effective returns should be added to the list of objectives. Unless states accept their responsibilities to take back failed asylum seekers it will be difficult to tackle the secondary movements of those who are not refugees but use the Convention as a cover to move. UNHCR may also wish to consider an objective such as "to improve the availability of information regarding protection to asylum seekers and refugees", as it may be that some secondary movers would avail themselves of protection in their first host country if they knew more about it.
- The work pursued under the other strands of Convention Plus, relating to the
strategic use of resettlement and the targeting of development assistance, form an
integral part of the objective to increase protection and solutions for refugees in a
burden- and responsibility-sharing framework.
Switzerland: Suggests inserting the word "seek" after the word "and" in the third line.
- Multilateral efforts should not be expected to entirely eliminate irregular secondary movements, in part because timely solutions will not always be available to all persons in need of protection, and in part because of the reality that persons other than refugees and asylum-seekers will likely continue to seek access to States of their choice using the asylum system.
Australia: The second part of paragraph 9 refers to "persons other than refugees and asylum-seekers" - in other words, persons not in need of international protection. Such persons do not engage in secondary movement by definition, but irregular movement. It thus cannot be expected that multilateral efforts in regard to secondary movement will eliminate entirely irregular movement by persons not in need of international protection. One option is to end paragraph 9 at the clause "in part….protection." and to address irregular movement by persons not in need of international protection in a new paragraph 9A, which reads as follows:
"In better managing the interface between asylum and migration, multilateral efforts should have regard to the prompt return of persons not in need of international protection as called for in the Agenda for Protection."
Such a paragraph neatly follows on from both the suggested paragraph 2A and paragraph 5, as well as providing an approach to a solution which remains in keeping with the nature of the "Basic Propositions" document.
Denmark: The wording of this paragraph is not clear. It is stated that irregular secondary movements cannot be fully eliminated in part because other persons than refugees and asylum seekers are using the asylum system. A person, who enters the asylum system, does become an asylum seeker, and the sentence is therefore not meaningful. The sentence should be deleted or replaced by the following: "Multilateral efforts should not be expected to entirely eliminate irregular secondary movements, due to the fact that some refugees and asylum seekers in spite of having or having had the opportunity to access effective protection and even timely availability of a durable solution, are likely to continue to seek better opportunities in other countries."
The Netherlands: It is clear to everyone that irregular secondary movements will not be eliminated by multilateral efforts. Because nobody will claim that it does, it seems unnecessary to have this paragraph at all. It might even demotivate the work of this Strand to have such a 'disclaimer'. Also, the paragraph seems to be incomplete, because it is also a reality that asylum seekers and refugees who have found protection, or could have found protection, will continue to seek access to States of their choice, bypassing earlier opportunities for non-protection related reasons.
Switzerland: Suggests deleting the entire paragraph.
The U.K.: Paragraph 9 underscores the problem that many secondary movers, as defined in this paper, are part of larger migration movements. Although they trigger protection issues while the broader movement may not, it is difficult to separate them out on a strategic level to deal with the problem.
Overall, we would have preferred this section to include some examples of possible solutions.
email document
text size
