Cancellation

The 1951 Convention permits refugee status previously awarded to an individual to be cancelled, where it has subsequently become clear that there was no valid basis for such a decision in the first place. Although cancellation is not explicitly mentioned in the 1951 Convention, it is fully in line with the Convention’s object and purpose and is a key concept in international refugee law. Similarly, cancellation is implied in the OAU Convention’s cessation clause. Article I(4)(g) of the OAU Convention provides that the Convention will cease to apply to refugees infringing its purposes and objectives. The concept of cancellation is also supported by general principles of administrative law: a decision that was wrong ab initio (from the beginning) can be rescinded and treated as if it never existed. Cancellation only applies to decisions made after a status determination has become final—that is, a decision that is no longer subject to appeal or review. After cancellation, a person is not, and is deemed to have never been, a refugee.

Grounds for cancellation

Cancellation of refugee status may be appropriate or necessary to rectify an initial decision to grant status that was incorrect because:

  • the applicant did not meet the inclusion criteria; or
  • one of the exclusion clauses would have applied at the time of RSD adjudication had all facts been know; or
  • the applicant had an alternative nationality or citizenship which could have provided protection at the time of RSD.

All of the above may be due to misrepresentation, bribery, misrepresentation or concealment of relevant facts, or other misconduct by the applicant. The mistake may also be due to error of fact or law by decision-makers. The UNHCR states that where the error is entirely attributable to the decision-making authority, the principle of proportionality requires that the public interest in rectifying the flawed decision be weighed against that of the individual in maintaining it. It also claims that all relevant circumstances of the case should be taken into consideration, including the person’s length of stay and degree of social and economic integration, as well as potential hardship which may be caused by a decision to cancel refugee status.

Important considerations

It is incorrect to begin cancellation procedures based on a change of opinion regarding the credibility of facts presented by an applicant. However, reliable new country of origin information (COI) or other facts may emerge which contradict information in the RSD file. In such cases, a reassessment of a RSD decision may be appropriate. In general, any decision to cancel recognition must be based on evidence relating to facts that were relevant for the initial decision, and must specifically show why this decision was objectively erroneous.

It is important to note that even when refugee status is cancelled, the prohibition on refoulement and other human rights obligations must still be respected. If a person’s status is cancelled, many jurisdiction would still look at the best interests of the child principal. Moreover, where cancellation of an individual’s status results in the cancellation of her derivatives’ status, those concerned must be given an opportunity to apply for asylum in their own right, if they so wish.

Cancellation is a valuable mechanism because the ability to transparently address errors is necessary to preserve the integrity of the refugee definition. However, the emphasis must always be on accurate first-time decision-making. UNHCR’s 1999 Guidelines on the application of the cessation clauses state that refugees should not be subjected to constant review of their status.

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