Governance and Prima Facie Refugee Status Determination: Clarifying the Boundaries of Temporary Protection, Group Determination, and Mass Influx

Abstract

The governance of the refugee regime requires conceptual clarity. An essential part of that regime is the conduct of refugee status determination. One form of refugee status determination is widely conducted but is poorly understood and often misconstrued. It is known as prima facie refugee status determination, a term which commentators from academia, practice, and United Nations High Commissioner for Refugees often conflate with terms such as temporary protection, group determination, and mass influx. This article explores literature on the practice of prima facie refugee status determination to identify its unifying features, and to distinguish its boundaries. It finds that the practice of prima facie refugee status determination is largely consistent despite not being codified in international law. This coherence demonstrates the clear, albeit informal, governance role it plays in the refugee regime. Prima facie refugee status determination is an expedited form of individual refugee status determination. It is used when States lack capacity to conduct refugee status determination that includes regard for exclusion and non-inclusion from Convention protection. The result is a unique legal status that allows for repatriation and local integration, but not resettlement. Unlike temporary protection, prima facie refugee status determination is not of a pre-determined duration. However, it is linked with one of two conceptions of mass influx. The article concludes that prima facie refugee status determination should be governed more predictably. It recommends recourse to a numerical formula by which United Nations High Commissioner for Refugees could decide to use or lobby for prima facie refugee status determination.