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Cancellation of refugee status

UNHCR’s Procedural Standards for RSD under UNHCR’s Mandate

Quick reference guide

The following is a RSDWatch summary and analysis of UNHCR’s Procedural Standards for Refugee Status Determination under UNHCR’s Mandate, published by UNHCR in September 2005.  All references (i.e. section x.x) are to these Standards, unless otherwise noted.

Cancellation procedures

The 1951 Refugee Convention provides for the cessation of refugee status when circumstances change so that a person no longer needs protection from persecution. However, governments and UNHCR also sometimes cancel a person’s refugee recognition where evidence indicates he or she should not have been recognized as a refugee in the first place.

Cancellation was provided for in UNHCR’s original Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, first published in 1979, in paragraph 117:

Circumstances may, however, come to light that indicate that a person should never have been recognized as a refugee in the first place; e.g. if it subsequently appears that refugee status was obtained by a misrepresentation of material facts, or that the person concerned possesses another nationality, or that one of the exclusion clauses would have applied to him had all the relevant facts been known. In such cases, the decision by which he was determined to be a refugee will normally be cancelled. 

In its own RSD procedures, UNHCR’s policy incorporates a similar rule:

Cancellation procedures permit UNHCR to invalidate the refugee status of  persons who, at the time of recognition, were not entitled to refugee status, either because they did not fall within the inclusion criteria or the exclusion criteria applied. (section 10.1)

UNHCR’s standards restrict the cancellation to the following situations:

  • Misrepresentation or concealment of relevant facts
  • Misconduct, such as threats or bribery against UNHCR staff
  • Misconduct or administrative error by UNHCR staff
  • Error of fact or law by UNHCR

UNHCR’s standards prohibit cancellation based solely on a change of opinion about a person’s credibility unless new and reliable evidence comes to light (section 10.2).

Cancellation normally operates as an exception to the general legal principle of res judicata, which holds that once an issue has been finally adjudicated it should be considered settled (see Restatement of the Law, second, Judgments sec. 27). Cases of fraud and misconduct are generally accepted exceptions res judicata. 

However, UNHCR’s standards also permit UNHCR officials to continually re-assess the factual and legal reasoning of a decision to recognize a refugee, even if there is no indication of any bad faith. This could be subject to legal objections, though it should be noted that UNHCR compromises the principle of res judicata in ways that benefit refugees as well. UNHCR standards permit the re-opening of closed files in limited circumstances. Strict application of res judicata might limit cancellation procedures, but would also limit the chance to re-open closed files by rejected applicants.

Procedural requirements for cancellation: UNHCR standards require that a refugee be notified that he or she is subject to cancellation procedures, and have the opportunity to respond, with standards of fairness much like a regular RSD procedure. These include the right to an interview and the right to appeal (sections. 10.2, 10.3).

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