EUROPEAN UNION AGENCY FOR ASYLUM
unwillingness to return covers both legal and practical obstacles to return. However, the
reason for not being able or willing to return must be related to a fear of persecution ( 95) or a
real risk of serious harm.
Examples of unwillingness to return
1.
The stateless applicant substantiates the fact that they cannot return to their country
of former habitual residence because they have been the victim of segregation and
mistreatment due to their ethnic origin. In this case, the link between the
unwillingness to return and a ground for international protection may be established.
2. The applicant is stateless but cannot return to the country of former habitual
residence because the border is closed for sanitary reasons or they do not wish to
return because job opportunities in that country do not correspond to their
professional expectations. Despite the applicant’s inability to return, those reasons
would not be sufficient to fulfil the conditions to be granted international protection.
The assessment of the inability or unwillingness to return requires that you assess what would
happen to the applicant if they were to return to the country of former habitual residence.
In some situations, where a stateless applicant has left their country of former habitual
residence without any fear of persecution (or real risk of serious harm), they may nonetheless
lose their rights to return and/or reside in that country. They may later claim to fear the
treatment given to irregular migrants in that country. Depending on your national law and
practice, the situation of such stateless applicants could be considered as relevant under the
statelessness determination procedure (see further in Section 2.5.2 Statelessness
determination procedure). It could also be that, under your national law and policy, this is
considered as a possible ground for international protection or for other forms of national
protection. You should familiarise yourself with the rules applicable in your national context.
Keep in mind that the principle of non-refoulement should be respected in all cases.
6.4.2.
Multiple countries of former habitual residence
Importance of adopting an approach that does not create a protection gap
It is recommended that national administrations ensure that their practice does not create
situations where stateless applicants, while having a well-founded fear of being persecuted
or facing a real risk of serious harm, would not be able to access (international) protection
(protection gap). The purpose of international protection is to make sure that an applicant
who has a well-founded fear of persecution or faces a real risk of serious harm may
(continue to) find protection from it. The principle of non-refoulement, direct and indirect,
should be respected at all times.
(95) UNHCR, Handbook on procedures and criteria for determining refugee status and guidelines on international
protection under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, reissued April
2019, HCR/1P/4/ENG/REV. 4, paragraphs 101-102.
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