Understanding “cessation” of refugee status requires knowledge of core terms used by Home Affairs

There have been recent news reports about Convention Refugees and Protected Persons losing their refugee status because of something called “cessation”. Many people are confused about what cessation is and how it relates to South African immigration. In order to understand cessation, we must go back to the basic definitions of a few immigration terms.
Who is a “Convention Refugee”?
Convention Refugees are people who have left their country of nationality or country of last residence if they are stateless (having no country of citizenship). They must have a genuine fear of persecution based on their race, religion, nationality, political opinion and/or membership in a particular social group (e.g. women, families, occupational groups, homosexuals, etc.). Finally, they must be unable or afraid to seek protection from the police or government of their country of nationality.
Who is a “Protected Person”?
A Protected Person, also called a Person in Need of Protection, is someone inside South Africa who is in danger of torture, risk to their life, or a risk of cruel and unusual treatment or punishment if they were returned to their country of nationality. Convention Refugees in South Africa are also considered to be Protected Persons.
What is “reavailment”?
Reavailment happens when someone who is a Protected Person contacts or enters the country they are afraid of, or if they obtain protection from a third country.
What is “Cessation”?
Cessation happens when the South African government tries to take away someone’s Protected Person status because they have returned to the country where they said they were in danger.
Why would anyone contact or enter a country where they are in danger?
In my practice I see two main reasons why people have reavailed themselves. The first reason is that they return to their home country to visit a relative who is dying or because one just passed away. Protected Persons in this situation weigh the risk of persecution and torture against the risk of never getting to say goodbye to their loved one. Often they will take the risk and return to their home country.
The second common type of reavailment is when Protected Persons contact their country of nationality to renew a passport or obtain an identity document. When they do these things they are asking for help from a government that cannot protect them from harm or that is actively harming them.
How do people who have reavailed themselves get caught?
The most common scenario of reavailment is when someone enters their country of nationality to see a relative and gets a stamp in their passport showing when and where they entered that country. These people are likely to get caught when a Border Security Officer sees that stamp in their passport when they re-enter South Africa.
What happens when cessation proceedings start?
Proceedings will start when the South Africa Immigration Services discovers possible reavailment and takes action on behalf of Immigration, Refugees , South Africa to have a cessation hearing.
Usually cessation proceedings are brought against people waiting for South African permanent residency, though in exceptional circumstances the government can start cessation proceedings against South African permanent residents. South African citizens are not affected by cessation.
How will they prove that reavailment occurred?
The South African government will examine three main things at a cessation hearing. The first is voluntariness: did the person reavail themselves freely or were they forced to reavail themselves by circumstances outside their control? The second is intention: why did the person reavail themselves? The third is reavailment: did they actually return to their country of nationality?
What happens when someone is found to have reavailed themselves?
If the Protected Person is not yet a permanent resident, they will have their refugee status taken away and be forced to return to their country of nationality. If the Protected Person is already a permanent resident, the government will start the process of taking away their permanent resident status.
What does the UN Conventions say ?
The consequences of reavailment are serious and anyone facing reavailment proceedings should seek professional assistance immediately or risk losing their South African status.
The cessation clauses are contained in Article 1C of the 1951 Convention.[1] This provision reads as follows: This Convention shall cease to apply to any person falling under the terms of Section A if(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or (2) Having lost his nationality, he has voluntarily re-acquired it ; or (3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution ; (5) He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality ; Provided that this paragraph shall not apply to a refugee falling under section A (1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality; (6) Being a person who has no nationality he is, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, able to return to the country of his former habitual residence; Provided that this paragraph shall not apply to a refugee falling under section A (1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.” 5. The above clauses can be divided broadly into two categories: those relating to a change in the personal situation of the refugee brought about by his/her own acts (contained in sub-paragraphs 1 to 4), and those relating to a change in the objective circumstances which formed the basis for the recognition of refugee status (contained in sub-paragraphs 5 and 6). The last clause is commonly referred to as the “ceased circumstances” clause. Voluntary Re-availing of the Protection of the Country of Nationality 6. The protection intended here is the diplomatic protection by the country of nationality of the refugee. The notion of diplomatic protection principally relates to the actions that a State is entitled to undertake vis-a-vis another State in order to obtain redress, in case the rights of one of its nationals have been violated or have been threatened by the latter State. If a refugee re-avails him or herself of such form of protection, his or her refugee status should come to an end. 7. Diplomatic protection more broadly also subsumes consular assistance. Where consular authorities provide documents and certificates that the nationals of the country may need while being abroad, including renewal of passports, birth and marriage certificates, authentication of diplomas, etc., this may also constitute re-availment of national protection. 8. The re-availing of the protection of the country of nationality should lead to cessation where the refugee has acted voluntarily, has intended to re-avail himself of the protection of the country of his/her nationality; and has actually obtained such protection. (a) Voluntary act 9. If the refugee is compelled to act by circumstances beyond his/her control, such as at the instructions of the authorities of the country of asylum or in order to avert illegalities in regard to his/her stay there, such an act should not be considered as voluntary. The refugee must therefore truly act out of his/her own free will in approaching the authorities of his/her country of origin. (b) Intention or motive for the act 10. The intent or motive of the refugee in contacting the authorities of his/her country of nationality must be assessed in order to establish if the act is indeed undertaken for the purpose of obtaining the protection of the authorities. While it may be difficult to determine the intention or motive of the refugee, every case has to be assessed on its own merits and on the basis of the particular act of the refugee. Most ordinary contacts with diplomatic missions for the purpose of certification of academic documents, or for the purpose of obtaining copies of birth, marital, and other records, are not considered as acts which carry the intention of re-availment of the protection of the country of origin. Applications by refugees for the issuance or extension of national passports will normally imply an intention to entrust the protection of their interests to, or to re-establish normal relations with, their country of nationality. This implication may, however, be rebutted by the refugee. There may be cases where obtaining or renewing a national passport should not be considered as indicative of an intention to re-avail of the protection of the country of nationality. The key issue is the purpose or reason for which the passport was obtained or renewed.

Leave a Reply

Your email address will not be published. Required fields are marked *

*

* Copy This Password *

* Type Or Paste Password Here *

33,640 Spam Comments Blocked so far by Spam Free Wordpress

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>