Determination and Eligibility of Refugee Status

Determination and Eligibility of Refugee Status

The office of the United Nations High Commissioner for Refugees UNHCR is the principal UN agency responsible for refugees. The statute of the UNHCR established by the UN general assembly is to provide the necessary legal protection for refugees and to seek permanent solution for their problems within the UNHCR.

The provisions of the statute were subsequently adopted by the 1951 UN Convention relating to the Status of Refugees and it is of critical importance in determining who is a refugee for purposes of benefitting from protection and assistance due to refugees. It has been stated that it is this lack of protection by home government that distinguishes a refugee from ordinary alien.[1]

A refugee can benefit from the provisions of the convention and other laws of the land on refugees. However, it is pertinent and apposite to determine whether a person is entitled to the benefits provided therein. Thus the first step is, it must be determined whether he is a refugee within the meaning of the relevant instruments.

In Africa, the Organization of African Unity Convention stipulates that the contracting state shall determine whether a person is a refugee[2]. However, it is submitted that the determination should be in favour of a person who satisfies the conditions laid down in Article 1.

In Nigeria, the National Commission for Refugees is charged with the responsibility for safeguarding the interest and treatment of persons who are seeking to become refugees in Nigeria or persons seeking for political asylum in the country.

Furthermore because of the recent development which affected the contents of refugees’ concept and the new types of refugee emerging, the universal declaration on human rights adopted by the UN in 1948 declares in its Article 14(1) that everyone has the right to seek and enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non political crime or acts contrary to the purposes and principles of the UN[3].

The purpose of these definitions in various constitutions and instrument is to enable states determine claims of asylum or refugee status which may be raised by persons physically present or arriving in their territories.

Unfortunately, some states ignore the plight of those not strictly refugees in the sense of the convention who had valid humanitarian reasons for being entitled to resettlement opportunity or protection. These groups often referred to as defector refugees may comprise conventional refugees what for various reasons are unable or unwilling to obtain recognition of their status as refugees[4].

Broadly speaking therefore for purposes of international law, refugees eligible for protection and assistance by UNHCR comprise those who can on a case by case basis be determined to have well founded fear of persecution on the grounds spelt and those other large groups of persons who can be presumed to be without or unable to avail themselves of the protection of the government of their state of origin (now referred to as displaced person).

Eligibility for Refugee Status

While the NCR defines who should enjoy refugee status, it set up an eligibility committee to avoid arbitrariness in conferring the status, avoid bureaucratic bottlenecks that could lead to unavoidable suffering by people seeking refuge in Nigeria.

The legal consequences which flow from the formal recognition of refugee status are necessarily predicated upon the determination by the relevant authority in a particular territory that the individual or group in question satisfies the relevant legal requirement of that particular territory of refugee. A person is recognized as a refugee the moment he or she satisfies the relevant definitional requirement and in that case the refugee status is finally declared.

In order words, the person must satisfy either the UNHCR statute or General Assembly Resolutions, or 1951 Convention Relating to the Status of Refugees. The OAU conventions 1969 or the Cartagena Declarations as the case may be.

However, sometimes problem may arise where states decline to determine refugee status or where different determination are reached by states and the UNHCR which is the UN Legal Authority. Where there is conflict, the conflicts are usually resolved in favour of the state party. This preference given to states to our mind is based on the sovereign powers of the states to decide whether to admit or not to admit refugees in their territory.

It is necessary to recognized that some states conscious of the potential threat to their own security as a result of massive influx of asylum seekers may try to assert freedom for herself by avoiding the use of refugee terminology in order to allow those arriving to be dealt with discretionarily.

In order to justify their actions those asylum seekers may be referred to as “displaced persons” “illegal immigrants” “quasi refugees“ “aliens“ or “deportees” etc“[5]. In some instances, they are denied entry or forcefully deported on flimsy reasons that they are bandits or drug dealers.

Nevertheless, refugees are classes now know to the general international law and as a matter of law, they are entitled to better and high standard treatment. In practice under the supervisory functions of the UNHCR specified in the convention, the office of UNHCR participates in varying degree in the determination of refugee status both for the conventional and Municipal Law.

Although the degree of such participation is usually limited to the extent authorized by the state in which refugee seeks asylum. However, for the fact that the office of the UNHCR participates in the determination of refugee status, the fear that a refugee may be discretionary dealt with by individual is minimized.

The UNHCR statute does not contain a specific provision nor did it establish any procedure for determining refugee Status. The UNHCR therefore determines refugee status at its discretion subject of course to the fact that the person’s qualifications must conform to that lay down in the statutes the policy directives given by the General Assembly and the Economic and Social Council. State parties to the convention and protocol determine refugee status according to the procedure adopted by such state since the convention established no procedure for determining refugee status.

 

 

[1]  G. Melander . “problem emanating from differences in eligibility practice in Europe (1978);

[2] Article 1(7) OAU Refugee convention 1969

[3]  Article 14(2) of UDHR 1948

[4] Article 12(3)(5) of African Charter on Human and People’s Rights

[5] UNHCR: “Chilly Reception for Refugees in Russia” Refugee, IV-1994 p.13

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