Rev.2

Addressing Security Concerns without Undermining Refugee Protection
- UNHCR’s perspective -A.

Introduction

1.
Security considerations have been permeating policy responses on a wide
range of issues for more than a decade. Since 11 September 2001, concerns about
threats to security emanating from international terrorism have intensified as a resultof further high profile attacks and developments in many regions of the world. At
times, possible linkages between international terrorism and movements of people
have been alluded to. Fears that asylum-seekers and refugees would pose a threat tothe host country have been fuelled by xenophobic rhetoric aimed at shoring up
support for restrictive policies in the area of asylum.
2.
In UNHCR’s view, security and protection are not mutually exclusive. Giving
primacy to a security focus at the expense of protection has failed to bring about
desired results. It is, however, possible to ensure that those forced to leave their homes
due to persecution, conflict and insecurity have access to international protection,
while at the same time preserving the integrity of asylum channels.
3.
UNHCR shares the legitimate concern of States to ensure that there should be
no avenue for those supporting or committing terrorists acts to secure access toterritory, whether to find a safe haven, avoid prosecution, or to carry out further
attacks. An effective response to possible security threats cannot, however, come frommeasures seeking to restrict the movement of refugees and migrants and further limit
access. This simply diverts refugee and migrant movements along other routes,
aggravates their situation, and contributes to the flourishing business of smugglers andtraffickers.
4.
Instead, UNHCR calls for an integrated response that focuses on addressing
asylum and migration flows, thereby enabling States to identify those entering theirterritory and respond to protection as well as security concerns in line with their
obligations under international law. Appropriate mechanisms need to be in place inthe field of asylum as in other areas.
5.
The observations that follow are offered against this background, with a viewto ensuring that counter-terrorism measures comply with the various aspects ofinternational law, notably international human rights law, refugee law, andhumanitarian law.

This Note supersedes the earlier version issued in November 2001 under the title “Addressing
Security Concerns without Undermining Refugee Protection – UNHCR’s Perspective, Rev.1”.

B.

General6.
UNHCR’s main concern is twofold: that asylum-seekers and refugees may be
victimized as a result of public prejudice and unduly restrictive legislative or
administrative measures, and that carefully built refugee protection standards may beeroded. Current anxieties about international terrorism risk fuelling the perception of
those seeking to reach safety as a threat to security. This can lead to heightened levelsof fear and xenophobia manifesting themselves in hostile attitudes towards, and evenphysical attacks against, asylum-seekers and refugees. Such fears and anxieties canreinforce a growing trend toward the erection of barriers to keep out perceived
dangers. In such a context, asylum-seekers have a difficult time in a number of States,
either accessing procedures or overcoming presumptions about the validity of theirclaims, which stem from their ethnicity, or their mode of arrival. The fact that asylumseekers have arrived irregularly does not vitiate the basis of their claim.
7.
Any discussion on security safeguards should start by acknowledging thatrefugees are themselves escaping persecution and violence, including terrorist acts.
Another starting point is that the international refugee instruments do not provide asafe haven to terrorists and do not protect them from criminal prosecution. On thecontrary, they render the identification of persons engaged in terrorist activities
possible and necessary, foresee their exclusion from refugee status and do not shieldthem against criminal prosecution, nor do they prevent extradition or expulsion.
8.
UNHCR’s overall conclusion is that dealing with the terrorist threat in thecontext of asylum does not necessitate amendment of the principles on which refugeeprotection is based, but requires a comprehensive and coordinated approach toaddressing situations of mixed movements of refugees, migrants and others, withproper security and protection safeguards built in.
C.

Admission/Access to refugee status determination

9.
UNHCR appreciates that States may wish to strengthen border controls as one
way of identifying security threats at the point of entry. Enhanced cooperation
between border guards, intelligence services and immigration and asylum authoritiesof the State concerned, other States along travel routes and organizations such as
INTERPOL, Europol and Frontex, as well as the use of systems such as Eurodac,
could assist in the early identification of terrorist suspects. Increased security checks,
including through the use of biometrics such as fingerprints, iris scans and/or facialcharacteristics, are reasonable measures, provided they are conducted in line with dataprotection principles and other relevant human rights standards. Proper screening
measures are valid, if conducted in conformity with the principles of necessity,
proportionality and non-discrimination, and subject to judicial control. Profiling based
solely on a person’s assumed nationality, race, religion or ethnicity would, in
UNHCR’s view, be discriminatory and inappropriate.
10.
UNHCR continues to work with States to develop and implement protectionsensitive border management systems. Some years ago, UNHCR developed a 10
Point Plan on Refugee Protection and Mixed Migration, which provides practicalsuggestions for management strategies and entry systems. At its core lie measures to2

ensure that refugees and asylum-seekers (and others with specific needs) travelling
irregularly are identified, protected against refoulement and given access to asylum
procedures. A robust capacity to receive, assist, register and screen arrivals supports
counter-terrorism and security measures by enabling States to make distinctions
between different categories among the arrivals as well as allowing for the early
identification of people who may constitute a security risk.1
11.
The summary rejection of asylum-seekers at borders or points of entry may
amount to refoulement. All persons have the right to seek asylum. An application for
asylum must be determined on its own merits, and not against negative anddiscriminatory presumptions deriving from the ethnic origin or religious faith of theclaimant.
12.
The refugee definition, properly applied, should lead to either non-inclusion or
exclusion of those responsible for serious criminal, including terrorist, acts. Sinceissues of exclusion are often complex, UNHCR continues to advocate that they should
continue to be dealt with in the regular asylum procedure, which allows for a full
factual and legal assessment in the individual case by qualified personnel.
13.
Where there is a reasonable possibility that exclusion issues may arise in thecase of an individual pursuing an asylum claim, States have an evident interest in
expedient decision making processes. In such cases UNHCR continues to support a
proper factual and legal assessment, but believes this could be accomplished throughprioritized and expedited consideration of the claim by a specialized “exclusion unit”
within the refugee status determination process. Such a unit would have expertise in
relevant areas of refugee law and criminal law, specialist knowledge of terrorist
organizations, and clear communication links with intelligence services and criminal
enforcement agencies. Specialist expertise and clearly focused resources would enableprompt and quality decision making. UNHCR promotes the redesign of the asylum
process to accommodate the setting up and operating of such a unit.
14.
If an asylum-seeker is wanted by national courts in the country of asylum, theexamination of the claim could be deferred pending the completion of criminal
procedures. In cases involving an extradition request from the country of origin,asylum and extradition procedures may be conducted in parallel but the determinationof the refugee claim needs to precede the decision on extradition. An asylum-seeker
may, however, be extradited to a country other than the country of origin, provided
there is no risk of persecution and access to a refugee status determination procedureis guaranteed. In this context, UNHCR recalls the obligation of States to bringterrorists to justice as asserted in SCR 1373 of 28 September 2001 and reaffirmed
most recently in SCR 2178 of 24 September 2014.
15.
In humanitarian crises, including large-scale influxes and complex or mixed
cross-border population movements where existing responses are not suited oradequate, temporary protection or stay arrangements may be implemented as an

1

For more information, please see UNHCR, Refugee Protection and Mixed Migration: The 10-Point
Plan in action, February 2011: http://www.refworld.org/docid/4d9430ea2.html

3appropriate multilateral response to ensure protection against refoulement andappropriate treatment for those in need of international protection. Reception
arrangements in such situations require proper systems for the identification,
registration and documentation of beneficiaries, including identity and security
screening.2
D.

Restrictions on the movement of asylum-seekers

16.
The 1951 Convention relating to the Status of Refugees and its 1967 Protocol(hereinafter “1951 Refugee Convention”) as well as human rights law do not preclude
restrictions on the movement of asylum-seekers, including detention, albeit as the
exception rather than the rule, if necessary in circumstances prescribed by law andsubject to due process safeguards. Detention would justifiably be deemed necessary,
where there are solid reasons for suspecting links with terrorism in the individualcase.3 Policies which apply automatic detention of all asylum-seekers entering
irregularly or coming from particular countries, as are being implemented and/or
considered in a number of States in response to the resurgence of fears about
terrorism, are not supported by UNHCR. They would, in UNHCR’s view, contradictlong established standards on detention agreed by States, and could be seen as anarbitrary, even discriminatory response which could then come into conflict withinternational legal norms.
E.

Sharing of data on asylum-seekers

17.
UNHCR recognizes that the sharing of data between States is crucial, provided
it is done in line with established principles and standards of data protection, and withdue consideration for what is permissible under international refugee law andinternational human rights law.4 States should thus take into account, inter alia, thewell-established principle that information on asylum-seekers should not be sharedwith the country of origin. This could endanger the safety of the asylum-seeker and/or
family members remaining in the country of origin. Best State practice indeedincorporates a strict confidentiality policy. Should it exceptionally be deemednecessary to contact the authorities in the country of origin, in case there is suspicionof terrorist involvement and the required information may only be obtained from theseauthorities, there should be no disclosure of the fact that the individual has applied for
asylum.
F.

Exclusion from refugee status

18.
Those responsible for serious crimes are legally excluded from refugee status
by virtue of the terms of the international refugee instruments. UNHCR encourages

2

For more information, please see UNHCR, Guidelines on Temporary Protection or Stay
Arrangements, February 2014: http://www.refworld.org/docid/52fba2404.html
3
For more information, please see UNHCR, Guidelines on the Applicable Criteria and Standards
relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012:
http://www.refworld.org/docid/503489533b8.html
4
For more information, please see UNHCR, Policy on the Protection of Personal Data of Persons ofConcern to UNHCR, May 2015: http://www.refworld.org/docid/55643c1d4.html

4States to use the exclusion clauses rigorously, albeit appropriately.5 It also encourages
States which have not already done so, to incorporate the exclusion clauses of the1951 Refugee Convention into national legislation. This is consistent not only withthe dictates of refugee law, but also with Security Council resolutions which call onStates not to provide refuge to terrorists, in particular SCR 1373 (2001) and SCR 1624
of 14 September 2005 which call for appropriate measures with regard to asylumseekers. As affirmed in these and numerous other resolutions adopted by the Security
Council and the General Assembly, however, such measures need to conform tointernational law, including international human rights law, refugee law andhumanitarian law.
19.
The crimes to which article 1F(a) of the 1951 Refugee Convention refers –crimes against peace, war crimes and crimes against humanity – are those so definedin international instruments and are to be interpreted in the light of a number of
evolving sources of international criminal law. Crimes which, in peacetime, would beproperly qualified as acts of terrorism, will generally meet the definition of war
crimes if committed in the context of an armed conflict. Under certain circumstances,such acts may also constitute crimes against humanity.
20.
Article 1F(c) concerns acts contrary to the purposes and principles of theUnited Nations. Many of the acts within the scope of this provision may only becommitted by persons acting on behalf of States or quasi-States, because the United
Nations’ purposes and principles are intended to be a guide for States in their relations
with each other. However, acts which are properly considered to be of a terrorist
nature, and which, given their gravity and nature, are capable of affecting
international peace and security or friendly relations between States, may also fallwithin the scope of this exclusion ground. UNHCR accepts that individuals who are
not holding a position of authority within a State may be excluded based on article
1F(c) provided it is established that they incurred individual responsibility for the actsin question.
21.
Notwithstanding the above, article 1F(b) remains a central provision. This
exclusion clause refers to “serious non-political crimes” (committed outside thecountry of refuge prior to admission), but this would generally encompass acts
prohibited under relevant international conventions and protocols pertaining toterrorism, notwithstanding any political motives behind such acts. In line withapproaches developed in the extradition context, which are relevant also in the context
of exclusion, violent acts of terrorism are likely to fail the predominance andproportionality tests used in many jurisdictions to determine the political character of
an offence.
22.
In view of the seriousness of the issues and the consequences of an incorrect
decision, the application of any exclusion clause should continue to be individuallyassessed, based on available evidence, and conform to basic standards of fairness and5

For more information, please see UNHCR, Guidelines on the Application of the Exclusion Clauses:
Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003:
http://www.refworld.org/docid/3f5857684.html and its accompanying Background Note:
http://www.refworld.org/docid/3f5857d24.html

5justice. As mentioned earlier, this assessment should be located within the refugee
status determination process, albeit taking place in specially tailored procedures for
exclusion.
23.
The assessment should also, in UNHCR’s view, be sensitive to certain
additional considerations. Firstly, in determining whether exclusion is justified, it is
not sufficient to rely on the designation as “terrorist” of a particular crime, person orgroup. Rather than focusing on the label, it is necessary to determine whether the actsin question constitute crimes within the scope of article 1F. Secondly, exclusion
requires a determination that the person concerned incurred individual liability for theacts in question, be it as a perpetrator or through his or her participation in thecommission of these acts by another person. Thirdly, even though exclusion
proceedings do not equate with a full criminal trial, the standard of proof (“serious
reasons for considering”) has to be a higher threshold than a mere suspicion and, in
UNHCR’s view, should be more than the balance of probabilities.
24.
Where there is sufficient proof that an asylum-seeker belongs to an extremistgroup involved in the commission of serious crimes, including those considered to beof a terrorist nature, the information available about this group may support a findingthat anyone who voluntarily becomes, or remains, a member may be considered tohave incurred individual responsibility for the crimes in question. In asylum
procedures, this may give rise to a rebuttable presumption of individual liability insuch cases, resulting in the burden of proof shifting to the asylum-seeker. The positionof the individual in the organization concerned, including the voluntariness of his or
her membership, as well as the fragmentation of certain groups would nevertheless be
examined and taken into account in reaching a determination on exclusion.
25.
UNHCR fully appreciates the need to tackle the financing and other forms of
support of terrorist groups, in line with SCR 1373 (2001) and subsequent resolutions
as well as the 1999 International Convention for the Suppression of the Financing ofTerrorism. Providing funds to such groups would in principle amount to an excludable
crime or give rise to individual responsibility for other crimes – this being said, theparticulars of each case would need to be considered, as not all such acts may reachthe gravity required to fall under article 1F. Depending on the particular
circumstances, where the amounts are small and provided on a sporadic basis, forexample, the offence may not reach the level of seriousness required.
26.
If an exclusion clause applies, the individual cannot benefit from international
refugee protection under the 1951 Refugee Convention. The excluded individual may
still be protected against return to a country where he or she is at risk of ill-treatment
by virtue of other international instruments. Where it is possible for the State
concerned to exercise jurisdiction over the acts which gave rise to exclusion, UNHCR
recommends the initiation of criminal proceedings.
G.

Cancellation and revocation of refugee status

27.
Generalized suspicions based on religious, ethnic or national origin or politicalaffiliation do not justify a general review process, much less a re-opening of a final
refugee status determination. Cancellation of refugee status – that is, a decision which

6invalidates the initial recognition as a refugee – normally only follows evidence offraud or misrepresentation regarding facts central to the refugee decision. This meansthat refugee status may be cancelled, if it emerges that the “inclusion” criteria were
not met at the time, for example because the individual was fleeing legitimate
prosecution rather than persecution, or if one of the exclusion clauses would haveapplied, had all the relevant facts been known. Revocation of refugee status would beappropriate if it is established, in procedures offering adequate safeguards, that there
are serious reasons for considering that the person has committed acts within thescope of article 1F(a) or (c) of the 1951 Refugee Convention after recognition as a
refugee.6
H.

Expulsion, including to the country of origin

28.
UNHCR is concerned that States may be inclined to expel groups orindividuals based on religious, ethnic or national origin or political affiliation, on themere assumption that they may be involved in terrorism. International refugee law, inparticular article 33(2) of the 1951 Refugee Convention, does not prohibit the
expulsion of recognized refugees, provided however that it is established in theindividual case that the person constitutes a danger to the security or the communityof the country of refuge. As this danger should outweigh the risks upon return,
UNHCR notes that such expulsion decisions must be reached in accordance with due
process of law which substantiates the security threat and allows the individual toprovide any evidence which might counter the allegations.
29.
Expulsion and exclusion are two different processes. Exclusion denies refugee
status to persons considered undeserving because they have committed certain serious
crimes or heinous acts, while at the same time preventing fugitives from escaping
justice for such crimes. Exclusion protects the integrity of the institution of asylum.
Expulsion aims to protect the country of refuge and hinges on the appreciation of apresent or future threat. The threshold for returning refugees to their country of origin– as an exception to the non-refoulement principle – has to be particularly stringent.
I.

Extradition

30.
International refugee law does not preclude the extradition of recognizedrefugees or asylum-seekers. Extradition may, however, be granted only if thesurrender of the wanted person to the requesting State is in conformity with theprinciple of non-refoulement. More specifically, article 33(1) of the 1951 Refugee
Convention establishes a mandatory bar to the extradition of a refugee to his or her
country of origin, except in the circumstances expressly provided for in article 33(2).
A refugee may, however, be extradited to a country other than the country of origin,provided this would not expose him or her to a risk of persecution either in the
country that requested the extradition or another country.

6

For more information, please see UNHCR, Note on the Cancellation of Refugee Status, 22 November
2004: http://www.refworld.org/docid/41a5dfd94.html

731.
Asylum-seekers subject to an extradition request from the country of origin
enjoy protection against refoulement pursuant to article 33(1) of the 1951 Refugee
Convention while their claim is being considered, including at the appeals stage. In
such cases, any information related to the extradition request will need to beconsidered, in light of all relevant circumstances. Asylum and extradition procedures
may be conducted in parallel. The host State’s obligations under international refugee
law require, however, that the asylum claim be determined by a specialized bodycompetent to assess eligibility for international protection, and that the determinationon the asylum claim must precede the decision on the grant of extradition.
32.
In case of a request for the extradition of an asylum-seeker from a country
other than the country of origin, the asylum procedure may be suspended and thewanted person may be extradited, provided it is established that this would not giverise to a risk of persecution and arrangements are made to ensure that he or she will
have access to a determination of the asylum claim in line with the standards required
under the 1951 Refugee Convention after the completion of criminal proceedings. In
cases where extradition may not proceed for reasons related to a risk of persecution orother kinds of serious harm upon surrender, prosecution in the country of asylum is, in
UNHCR’s view, the appropriate response, in line with the principle aut dedere aut
judicare (“extradite or prosecute”).7
J.

Increasing criminal law enforcement

33.
UNHCR would welcome the adoption of a comprehensive Convention on
International Terrorism and of other international or regional instruments, to servealso as an agreed framework for national legislation. UNHCR has already provided
comments on the draft Convention and several pieces of national legislation. The
closure of jurisdictional loopholes and clarity about the definition of terrorist offences
are important for combating terrorism effectively.
34.
UNHCR appeals to governments, however, to ensure that the terms ofinternational instruments and of domestic legislation do not imply any unwarranted
linkages between asylum-seekers/refugees and terrorists. In addition, definitions need
to be quite precise. If definitions are too broad and vague, there is a risk that the“terrorist” label could be abused by some for political ends, for example tocriminalize activities of political opponents. This is a matter of concern to UNHCR. It
could well lead to recriminations amounting to persecution.
K.
The continuing importance of resettlement and other regular avenues toreach safety
35.
As the number of forcibly displaced has reached 60 million worldwide, withmany of them fleeing situations of protracted conflict and violence, continued support
for resettlement is vital. UNHCR continues to seek diversification in the number ofresettlement countries globally and to strengthen its programmes, from emergency

7

For more information, please see UNHCR, Guidance Note on Extradition and International Refugee
Protection, April 2008: http://www.refworld.org/docid/481ec7d92.html

8

processing through to more systematic use of resettlement to address durable solutions
needs of refugees. UNHCR also works with States to provide other safe pathways foradmission, such as humanitarian admission, humanitarian visas, private sponsorship,
family reunification, scholarships, medical evacuation, and labour mobility initiatives,
which complement existing resettlement programmes and enable persons in need ofinternational protection to reach safety.
36.
In recent years, several countries have increased their commitments to offer
resettlement or other forms of humanitarian admission, yet there are also signs that
support for such programmes may decrease, particularly for certain groups. This
would be counterproductive. In any case, UNHCR supports the enhancement of
security screening, including the fingerprinting of candidates for resettlement andother forms of admission, to ensure the integrity of these processes.
37.
In Europe, UNHCR has welcomed the adoption of the European Relocation
and Resettlement schemes. These schemes incorporate security measures and checks,
including proper registration. Together with UNHCR’s global resettlement
programme, family reunification, private sponsorship, and humanitarian and student
visa schemes, they provide regular avenues which offer an alternative to irregularmovement.
L.

Combating racism and xenophobia

38.
Equating asylum with a safe haven for terrorists is not only legally wrong, but
it serves to vilify refugees in the public mind and promotes the singling out of personsof particular races, nationalities or religions for discrimination and hate-basedharassment.
39.
Recent security incidents in Europe and elsewhere have resulted in theemergence of uninformed and polarized discourse in some instances. The full
application of the 1951 Refugee Convention and of immigration policies moregenerally represent key aspects of a wider response to current challenges in this area.
As the Secretary-General of the United Nations also warned on 20 November 2015
after terrorist attacks in Beirut and in Paris, we must guard against “misplacedsuspicions” about refugees and migrants who can help fight violent extremism, addingthat such distortions and discrimination “only play into the hands of terrorists trying tosow divisions and fear.”
40.
Continued resolute leadership is called for at this particularly difficult time tode-dramatize and de-politicise the humanitarian challenges of protecting refugees andto provide a better understanding of refugees and the right to seek asylum.

UNHCR
Geneva, 17 December 20159