The Internal Protection Alternative Inquiry and Human Rights Considerations – Irrelevant or Indispensable?

Abstract

The Internal Protection Alternative (‘IPA’) stems from the premise that if there is a safe place within a refugee applicant’s country of origin where he or she can relocate, the refugee definition is not engaged. Today, it is an inherent part of refugee status determinations in most States Parties of the 1951 Convention, and has been incorporated into Article 8 of the 2011 Recast EC Qualification Directive. The main thrust of the IPA test across various jurisdictions is that it must be reasonable, or put another way, it must not be unduly harsh. The focus of this article, however, will be on the issue upon which states have diverged widely in their jurisprudence - the relevance and applicable standard of human rights considerations in determining the existence of an IPA. First, this article examines the position advocated by the UNHCR that protection of basic civil, political and socio-economic rights is a core requirement of the IPA. Considering that those who return to their country and are forced to relocate to obtain protection are in effect, Internally Displaced Persons, this article then discusses the relevance of the Guiding Principles on Internal Displacement to the IPA inquiry. Thirdly, this article analyses the approach put forward by the Michigan Guidelines on the Internal Protection Alternative and approved in New Zealand, and fourthly, this article examines the approach which has been established in the jurisprudence of England and Wales. This article argues that in the context of the IPA inquiry human rights considerations must be taken into account insofar as protection of human rights forms an ingredient of effective protection from the persecution feared. In addition, human rights conditions in the IPA may be of relevance when considering the possibility of indirect refoulement. Aside from these two instances, expulsion to an IPA. where human rights standards are generally low is outside of the scope of the Refugee Convention. Complementary protection, however, may preclude expulsion in this regard and it is by taking such an approach to the IFA inquiry that the distinction between refugee and humanitarian claims may be appropriately maintained.