Internal Flight in Sudan: UNHCR issues new policy guidance

Refugee Rights News
Volume 3, Issue 1
February 2006

Earlier this month the UNHCR issued new guidelines to states on the situation of Darfurian and other Sudanese asylum seekers (the Guidelines). The previous set of guidelines issued by UNHCR on Sudan had been published in 2001—considerably out of date in the light of the major changes which have occurred within Sudan and the region since that time.

The Situation in Darfur

Qualification of the situation in Darfur is at the heart of the Guidelines: the Guidelines conclude that the security situation in Darfur has noticeably deteriorated since August 2005 and that “the absence of effective protection by the authorities has further exacerbated threats to the physical safety of Darfurians.” The Guidelines recommend that “States provide international protection to Sudanese asylum-seekers from Darfur of “non-Arab” ethnic background through according them recognition as refugees.” Further, even where a state feels unable to grant refugee status under the law, the Guidelines urge that “non-Arab Sudanese originating from Darfur should not be forcibly returned until such time as there is a significant improvement in the security situation.”

The Guidelines go on to clarify, however, that “while UNHCR’s recommendation that a presumption of eligibility to refugee status […] applies to non-Arab Darfurians, asylum claims submitted by Darfurians of Arab origin shall be considered on their individual merits.”

There have been some comments and questions about this formulation and reference to “non-Arab Sudanese”: IRRI seeks the views of colleagues on this characterization.

Need for Protection beyond Darfur

Although the document containing the Guidelines is entitled “UNHCR’s position on Sudanese asylum seekers from Darfur,” the Guidelines do recognize that “certain categories of Sudanese” from other regions in Sudan outside Darfur may also have a need for international protection. In particular they recognize that “young men of fighting age who are regularly singled out for detention and interrogation” may be of concern. Further, persons who have been abroad for a period are recognized as possible subjects of investigation, under security legislation in force in the country.

It is worth mentioning that the Guidelines also call for “due attention” to be paid to the application of the exclusion clause when determining the status of Sudanese and Darfurian asylum seekers. The mechanism of exclusion provides that persons who otherwise qualify for refugee status may not be so recognized if there are strong reasons for considering that they have committed a serious crime.

The Situation of IDPs in Sudan

The Guidelines are particularly welcome for the approach which they take to the need to consider the level of protection enjoyed by internally displaced persons (IDPs) in the country of origin when examining the requirement for international protection.

Further, the Guidelines explicitly link the debate surrounding the question of whether the option of internal flight can serve to negate a refugee claim, with the characterization of the dynamics of the conflict in Darfur. UNHCR identifies an important principled position in this regard: “where internal displacement is a result of ‘ethnic cleansing’ policies, denying refugee status on the basis of the internal flight or relocation concept could be interpreted as condoning the resulting situation on the ground and therefore raises additional concerns.”

The focus on internal flight and the plight of the internally displaced in Sudan were the subject of a landmark appeal in the UK House of Lords last month. In fact, the new Guidelines were issued hot on the heels of formal intervention by UNHCR in this case, which was brought by three Darfurian asylum seekers. The Darfurians challenged a decision which had found that, despite the existence of a real risk of exposure of the asylum seekers to harm if they were sent back to Darfur, “there was not a significant risk of persecution on return to the Khartoum area and it would not be unduly harsh for the respective appellants to relocate there.”

Internal Flight and the House of Lords

UNHCR’s amicus submission in the case of Hamid, Gaafar and Mohamed v. the Secretary of State for the Home Department, was wide ranging, with the agency taking the opportunity to seek authoritative rulings from the House of Lords on a number of key issues relating to the interpretation of the 1951 UN Convention. In respect of internal flight UNHCR’s brief viewed the concept as raising two questions: (1) whether there was a “specific area of the country where there is no risk of persecution” (relevance) and (2) whether “given the particular circumstances of the case, the individual could reasonably be expected to establish him- or herself in that area and live a normal life” (reasonableness).

With respect to “relevance” UNHCR argued that where “the persecution feared emanates from, or is condoned or tolerated by State agents and where the State authority exercises control over the whole country, internal flight or relocation is normally neither relevant nor applicable.”

With respect to “reasonableness” UNHCR indicated that one of the central questions was whether, basic civil, political and socio-economic human rights, as expressed in the 1951 Refugee Convention and other major human rights instruments, would be protected in the proposed area of relocation.

Finally, as a general contextual condition, UNHCR noted that the Guiding Principles on Internal Displacement specifically affirm in Principle 2(2) that they should not to be interpreted as “restricting, modifying or impairing the provisions of any international human rights or international humanitarian law instrument or rights granted to persons under domestic law” and in particular, they are “without prejudice to the right to seek and enjoy asylum in other countries.”

The ruling of the House of Lords is awaited with interest.

For more information, see UNHCR’s Position on Sudanese Asylum Seekers from Darfur, and the Petition for the Intervention of UNHCR in Hamid, Gafaar, and Mohammed v. the Secretary of State for the Home Department.