Territorial Protection: Cessation of Refugee Status and Internal Flight Alternative Compared

Abstract

This chapter analyses two important refugee protection concepts – the internal flight alternative (IFA) and cessation of refugee status due to change in country conditions under Article 1C(5) of the Refugee Convention. The concepts of IFA and cessation are linked in that they both concern the definition of a refugee under Article 1 of the 1951 Convention and both entail consideration of the adequacy of protection in the refugee’s country of origin. The need to link the interpretation of these two concepts has become more pressing due to the developing recognition of non-state bodies as agents of protection. Jurisprudence in a number of countries has recognised that, in limited circumstances, certain non-state actors can be said to provide ‘protection’ for the purpose of the 1951 Convention. Some have applied this to situations where the organisation providing protection is controlling only a part of the country in question. The European Union Qualification Directive explicitly recognises this concept in that Article 7 of that Directive states that protection can be provided by the State or ‘parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State’. This raises a question as to whether, and how, non-state protection should apply to the changed circumstances cessation clause.This paper raises concerns about the inequalities arising from the way in which the tests for IFA and cessation currently operate. Should a refugee being returned to their country of origin under Article 1C(5) be considered under similar principles to those applicable to IFA (particularly where there is a finding as to non-state protection in part of a country)? Should this include humanitarian considerations which some jurisdictions have recognised as part of the IFA, such as the ‘reasonableness’ of return to the area of ‘safety’ and, as part of this, whether this should include consideration of the risk of serious harm and socio-economic conditions such as the right to livelihood? In addition to these specific questions, the link between cessation and IFA raises a broader issue of whether a more consistent approach and holistic interpretation should be taken of ‘safety’ and ‘protection’ across international refugee law (including the EU Qualification Directive).I argue for greater integration across the meaning of protection, at least in relation to the linked concepts of cessation and IFA, in order to provide a more holistic test for protection under the Refugee Convention.