Guidance Note on International Protection Considerations for Venezuelans – Update I
This note updates and supersedes the Guidance Note on the Outflow of Venezuelans of March 2018.
Since the issuance of the Guidance Note on the Outflow of Venezuelans, the security and humanitarian situation has worsened in Venezuela, causing outflows to neighbouring countries, other countries in the region, and countries further afield to reach 3.7 million people.2 Given the deteriorating circumstances in Venezuela, UNHCR reiterates its call to States receiving Venezuelans to allow access to their territory and highlights the critical importance of ensuring access to asylum procedures or to group-based protection arrangements with adequate safeguards.
Based on reports received by UNHCR and its partners, as well as reliable information in the public domain from a wide range of sources about the situation in Venezuela, UNHCR considers that for a number of profiles, international protection considerations are likely to arise under the 1951 Convention/1967 Protocol relating to the Status of Refugees depending on the circumstances of the individual case. Such risk profiles can be made available by UNHCR to eligibility commissions of interested host countries.
The magnitude of the current outflows poses complex challenges and may lead to asylum systems being overwhelmed. Where this is the case, a State may recognize refugee status through group-based determinations.3 UNHCR is ready to provide to interested States the required technical assistance and operational support to enhance government capacities to respond appropriately to a mass influx of refugees and to determine their legal status effectively. UNHCR encourages States to rely on regional instruments as a basis for the elaboration of group-based responses.
For States that have incorporated the refugee definition contained in the Cartagena Declaration into national law,4 or for States that apply this definition in practice, following the guidelines of the InterAmerican Court of Human Rights,5 UNHCR considers that the majority of Venezuelan nationals, or stateless persons who were habitually resident in Venezuela, are in need of international protection under the criteria contained in the Cartagena Declaration on the basis of threats to their lives, security or freedom resulting from the events that are currently seriously disturbing public order in Venezuela.6
This approach does not apply to individuals for whom the events that are currently seriously disturbing public order in Venezuela do not pose a threat to life, security or freedom, such as individuals who help to perpetuate these very circumstances, members of organized criminal groups and persons who benefit materially from the circumstances seriously disturbing public order.
To ensure protection coherence and the harmonisation of State responses, UNHCR is available to advise and support States to bring the current range of protection-sensitive arrangements,7 including under international human rights law8 and temporary protection or stay arrangements,9 in line with the minimum standards set out below.
As mentioned in UNHCR’s Guidance Note of March 2018, in all circumstances, the following minimum standards need to be guaranteed:
a. Legality: The requirements and procedures for obtaining such arrangements would need to be defined and articulated under national law. UNHCR calls on States to ensure that persons benefiting from such arrangements are issued with an official document recognized by all government authorities.
b. Accessibility: The relevant arrangements would need to be accessible to all Venezuelans, irrespective of their date of entry into the host country. This would mean that there should be no or minimal costs associated with applying for such an arrangement, and that applications would be accepted in various locations across the territory to ensure that transportation costs are not prohibitive. Further, neither irregular entry/presence nor the lack of identity documents would be viewed as a valid reason for denying access to such an arrangement.
c. Access to basic rights: Protection-based arrangements would importantly guarantee access to basic services and fundamental rights in line with UNHCR’s Guidelines on Temporary Protection or Stay Arrangements.10 These rights include: 1) access to health care;11 2) access to education;12 3) family unity;13 4) freedom of movement;14 5) access to shelter, and 6) the right to work.15 These rights would be guaranteed on an equal and non-discriminatory basis.
UNHCR and IOM have conducted a joint analysis of good practices on protection sensitive arrangements designed by governments in the Americas to respond to the outflows of Venezuelans. The analysis examines the extent of their alignment with the minimum standards and aims at reinforcing the protection dimension and coherency of responses. Drawing from this, UNHCR and IOM stand ready to support States.
Persons originating from Venezuela who seek international protection in Member States of the European Union and who are found not to be refugees under the 1951 Convention may qualify for subsidiary protection under Article 15 of the Qualification Directive (recast) if there are substantial grounds for believing that they would face a real risk of serious harm in Venezuela.
In view of the current situation in Venezuela, UNHCR calls on States to ensure Venezuelan nationals, stateless persons or individuals who were habitually resident in Venezuela will not be deported, expelled, or in any other way forced to return to Venezuela in accordance with international refugee and human rights law. This guarantee would need to be assured either in the official residence document issued to Venezuelans or through other effective means, such as clear instructions to law enforcement agencies.
In view of the challenges that host countries are facing, international responsibility-sharing in the spirit of the Global Compact on Refugees16 is key. Such an approach would build on the partnership established between UNHCR and IOM, engaging their respective mandates, roles and expertise.
In line with the Secretary-General’s guidance, UNHCR and IOM have been coordinating closely in response to the outflow of Venezuelans since 2018, when Inter-Agency Coordination Platforms were established at regional level and in main host countries.