Can States cease the protection status of resettled refugees?

Maria O’Sullivan

November 2019

In 2016 Denmark began reviewing the protection needs of around 1600 Somalis and their family members, with a view to revoking their status if the conditions in Somalia warranted such action. Today, more than one thousand Somali refugees have lost their protection status and are now in a return position. Remarkably, this cohort includes refugees resettled via UNHCR’s resettlement programme.  This is significant as, to my knowledge, no other country has instigated cessation or withdrawal proceedings in relation to refugees resettled via UNHCR due to changes in country conditions.

This recent policy shift in one traditional resettlement country reveals a normative tension in the international protection system. On the one hand, resettlement is designed to afford refugees in situations of protracted displacement a durable solution in a third country. According to the UNHCR Resettlement Handbook, resettlement involves admission to ‘a third State which has agreed to admit them – as refugees – with permanent residence status.’ On the other hand, some Global North asylum states are increasingly making use of the cessation clause found in Article 1C(5) of the 1951 Convention and equivalent subsidiary protection instruments, notably the EU Qualification Directive.

As demonstrated by the Danish case, the resolution of this tension appears to lie in the stronger normative footing of the sovereign right to end protection than the long-established but soft law practice of providing a durable solution via resettlement.

Legal sleight of hand?

Denmark’s revocation of protection status for resettled Somali refugees requires some unpacking. As a matter of practice, all resettled refugees undergo UNHCR’s refugee status determination before being put forward for resettlement. Section 8(1) of the Aliens Act provides for the resettlement of Convention refugees under agreement with UNHCR, thus building in protection from any subsequent cessation proceedings in accordance with Article 1C(5) of the 1951 Convention. However, the Somali group were not provided protection under Article 8(1). Instead, they were resettled under Article 8(2), which provides for protection on the basis of a risk of the death penalty, torture or inhuman or degrading treatment or punishment drawn from human rights law.

The implication of this is that the revocation of protection for the Somali group (both resettled and otherwise) was based not on the cessation rules of the 1951 Convention, but on the general situation in Somalia. As a result, the test for ending protection was based on a finding that conditions in Somalia did not reach the threshold of refoulement, rather than an assessment based on fundamental and enduring change of circumstances in the country as required by Article 1C(5) of the Refugee Convention. This is an important distinction as although the general conditions in a country may have improved, consideration must be given to whether those changes are only temporary and whether the conditions remain unpredictable. Indeed, UNHCR has written to the Danish authorities cautioning against withdrawal of status in relation to Somali refugees, stating that ‘UNHCR estimates that the general security situation in Mogadishu and southern and central Somalia remains unstable.’ [unofficial translation from Danish]

I would therefore question the withdrawal by Danish authorities of residence and protection status from Somali applicants. In particular, I note that the cessation test under the EU Qualification Directive sets out a similar test for refugee status as it does for complementary protection, requiring that changes be ‘significant and non-temporary’. Although Denmark has opted out of the EU asylum acquis, I would argue that the test for withdrawal of complementary protection be similar for that of refugee status. That is, return due to changed country conditions should be based on a robust standard such as a fundamental, stable and enduring change.

However, the real question that is at stake arising from this Danish practice is whether the status of resettled refugees should be subject to withdrawal due to changed circumstances given that they are processed and selected under a special procedure (UNHCR processing and state selection). That is, are resettled refugees in a privileged/special position to spontaneous arrivals?

The Special Status of Resettled Refugees

UNHCR has recently renewed its focus on resettlement, as the Trump administration has lowered United States’ resettlement to the lowest level in forty years. UNHCR and IOM’s Emerging Countries Joint Support Mechanism seeks to spread the practice of resettlement beyond the 28 existing resettlement countries. In a similar vein, the Global Compact on Refugees calls for expanded resettlement as a key pillar of refugee solutions. Moreover, a recent UNHCR strategy envisages one million refugees resettled each year by 2028. 

The legal status of resettlement is unusual as refugees do not have a right to be resettled and countries (including Denmark) are not legally obligated under the 1951 Refugee Convention or any other international instrument to accept refugees for resettlement.  Rather, resettlement is a voluntary scheme coordinated by the UNHCR which facilitates burden and responsibility sharing amongst countries that are party to the 1951 Refugee Convention.

However, this does not mean that states are free to treat resettled refugees in any manner they see fit, without legal or ethical constraints.

Here I would argue that resettled refugees are in a different position to that of spontaneous arrivals in that they are likely to have entered the asylum host state on the understanding that they will be accepted permanently. This is reinforced by the consistent UNHCR message of resettlement as a ‘durable solution’. Indeed, UNHCR defines resettlement as:

the selection and transfer of refugees from a State in which they have sought protection to a third State that has agreed to admit them ‐ as refugees ‐ with permanent residence status. 

Given the difficulty that refugees face in obtaining a resettlement place and the fact that resettled refugees often wait for significant periods (5-7 years) for resettlement, I would also question the use of withdrawal proceedings on ethical grounds.

I would also query the practical utility of withdrawing the status of resettled refugees given that it is counter-intuitive to the integration interests of both those refugees and the asylum host state. As UNHCR points out:

Providing for their effective reception and integration is beneficial for both the resettled refugee and the receiving country. Governments and non-governmental organization partners provide services to facilitate integration, such as cultural orientation, language and vocational training, as well as programmes to promote access to education and employment.

Conclusions

As discussed above, great care must be taken in withdrawing the residence or protection status of resettled refugees. This is particularly so where country conditions remain unstable and unpredictable (as is the case in Somalia). This practice of cessation is also not merely of concern to the Danish context. Increasingly states are looking to each other in order to ‘copy’ bad practices (‘policy transfer’) (discussed by a number of scholars, including Daniel Ghezelbash). Therefore, it is important that not only this particular cessation practice is curtailed in Denmark, but also that it is not replicated elsewhere.