Tripartite Memorandum of Understanding (the MoU) between the Government of Norway, the Islamic Republic of Afghanistan and the United Nation High Commissioner for Refugees (UNHCR)
The Government of Norway, the Islamic Republic of Afghanistan and UNHCR, hereinafter referred to as « the Parties »,
(a) Recognizing that the right of all citizens to leave and to return to their country is a basic human right enshrined, inter alia, in Article 13(2) of the 1948 Universal Declaration of Human Rights and Article 12 of the 1966 International Covenant on Civil and Political Rights;
(b) Recalling that the Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions signed, under the auspices of the United Nations, in Bonn on 5 December 2001 (the Bonn Agreement) has laid the foundation for achieving lasting peace, national unity, reconciliation and social and economic development in Afghanistan and noting the progress made towards this end by the establishment of the Islamic Transitional State of Afghanistan on 22 June 2002, following the conclusion of the Emergency Loya Jirga in Kabul;
(c) Welcoming the fact that large numbers of Afghan citizens have already returned to their homeland from neighbouring countries and that many more are in the process of doing so
(d) Welcoming the return of Afghans, as they bring with them valuable experiences and skills, including those returning from countries outside the region;
(e) Resolved to cooperate in order to assist the voluntary, dignified, safe and orderly return to and successful reintegration in Afghanistan of Afghans now in Norway who also opt to return;
(f) Noting the desire of the Parties to work with each other to achieve full observance of international human rights and humanitarian standards, in particular those relating to the repatriation of persons having fled from persecution and armed conflict in conditions of safety and dignity;
(g) Recognizing the need to establish a framework for such co-operation, to ensure proper planning as well as to agree on specific procedures and modalities of return and reintegration programmes, as may be supported, where appropriate, by other intergovernmental and non-governmental organizations;
Have reached the following understandings:
This MoU shall cover any Afghan citizen, as defined in Afghan Law, who is staying in Norway, irrespective of his or her legal status.
With this MoU, the Parties wish to lay the basis for a closely coordinated, phased and humane process of assisted return of Afghans in Norway which respects the primacy of voluntary return and which takes account of the conditions in Afghanistan, of the importance of safe, dignified and sustainable return.
Modalities of return
The Parties hereby accept that the return of all Afghans will, subject to the proper operation of this paragraph, take place voluntarily, based on their knowledge of the situation in intended places of return and of any options for continued stay in Norway.
I. Afghans who have been granted refugee status in Norway may return to Afghanistan on the basis of their freely expressed wish in accordance with the 1951 Convention and 1967 Protocol relating to the Status of Refugees.
II. Afghans who have been granted a residence permit on humanitarian grounds may return to Afghanistan on the basis of their freely expressed wish.
III. Afghans without protection needs or compelling humanitarian reasons can opt for voluntary assisted return until the expiration of the time limit set for leaving Norway following a final rejection of a claim for asylum.
In compliance with the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and relevant national law of Norway, alternatives to voluntary return recognized as being acceptable under international law may be examined with regard to Afghans who have no protection or compelling humanitarian needs justifying prolongation of their stay in Norway, but who nevertheless, after the passage of one month, continue to refuse to avail themselves of the voluntary return programme set forth in this MoU. The Parties accept that alternatives to voluntary return will in all cases be an option of last resort. Prior to considering such alternatives for the persons concerned, all humanitarian aspects of their situation shall have been given fair consideration, adequate notification will be provided, and every effort will be made to encourage them to opt for voluntary return.
The Government of Norway will ensure that the evolving situation in Afghanistan as well as the major challenges involved in ensuring basic services for all of its citizens will be taken into account.
The return process of Afghans found through this process not to have protection or compelling humanitarian needs will be phased, orderly and humane and accomplished in manageable numbers.
Alternatives to voluntary return for persons falling under category III of this paragraph will, in principle, not be considered until the elapse of three months after signing this MoU.
The Islamic Republic of Afghanistan will re-admit its nationals and will assist, where necessary, in determining the Afghan nationality of persons intending to benefit from assistance under this MoU, within the shortest possible time span. The Islamic Republic of Afghanistan and the Government of Norway will cooperate closely in this respect, in order also to avoid any cases of statelessness.
Commitments upon Repatriation
The Islamic Republic of Afghanistan will, together with other relevant bodies, carry out the necessary measures to ensure that Afghans abroad can return without any fear of harassment, intimidation, persecution, discrimination, prosecution or any punitive measures whatsoever. These safeguards do not preclude the right of the competent authorities of Afghanistan to prosecute individuals on account of war crimes and crimes against humanity, as defined in international instruments, or very serious common crimes involving death or severe bodily harm.
The Islamic Republic of Afghanistan recalls in this respect the guarantees contained in Decree No. 297, dated 13.03.1380 (3 June 2002) on the dignified return of Afghan refugees, which fully applies to Afghans returning from Norway under this MoU. These guarantees also include the right of recovery of movable and immovable properties.
Freedom of Choice of Destination
The Islamic Republic of Afghanistan accepts that Afghans returning from abroad will be free to settle in their former place of residence or any other place of their choice in Afghanistan.
Juridical Status and Equivalency
The Islamic Republic of Afghanistan accepts, in accordance with Afghan law, to recognise the legal status, including changes thereto, of Afghans returning from Norway, including births, deaths, adoptions, marriage and divorce. The Islamic Republic of Afghanistan will also seek to accord recognition, as appropriate, to the equivalency of academic and vocational skills diplomas and certificates obtained by Afghans while in Norway.
The role of UNHCR in assisting, facilitating and monitoring the return of Afghans in order to ensure that it is carried out in a manner consistent with its mandate and with the terms of this MoU, will be fully respected by the two other Parties. In addition to its operation in Afghanistan, UNHCR will therefore, in cooperation with its partners, operate a programme, including the provision of information, counselling and registration in Norway.
Information and Sensitisation
The Government of Norway and UNHCR will cooperate closely to ensure, with the assistance if necessary of other relevant non-governmental and inter-governmental organisations, that Afghans covered by this MoU are provided with objective and accurate information relevant to their return and reintegration in Afghanistan, to allow for decisions to return to be taken in full knowledge of the facts. To this effect, the Government of Norway and UNHCR in cooperation with other relevant inter-governmental or non-governmental organisations will carry out an information campaign targeted at Afghan communities in Norway.
The Islamic Republic of Afghanistan will, with a view to creating conditions conducive to the reintegration of returnees in safety and with dignity, carry out all necessary measures to sensitise the population.
Counselling, Registration and Documentation
Pursuant to its mandated responsibility to ensure the voluntary character of the decision to return, UNHCR will, in consultation with the Government of Norway, provide for the most appropriate means for the counselling and registration of Afghans contemplating return, with the assistance, as necessary, of other inter-governmental or non-governmental organizations.
Duly completed Voluntary Repatriation Forms (VRFs), issued in Norway by the relevant authorities of the Government of Norway in co-operation with UNHCR, signed by each adult male and female Afghan, will be recognized by the Parties as valid travel documents for the purpose of the return to their final destinations in Afghanistan of Afghans returning under this MoU. VRFs will be signed by a representative of UNHCR to attest to the voluntary character of the decision to return.
The Islamic Republic of Afghanistan will, in cases in which Afghans in the process of returning do not hold documents establishing their identity, issue valid travel documents without delay through their diplomatic representation accredited to Norway. The Government of Norway will contribute towards the costs of the issuance of identity documents to Afghans returning under this MoU.
Preservation of Family Unity
In accordance with the principle of family unity, the Government of Norway, in cooperation with the other Parties, will, in cases where all members of a family, who are all Afghans covered by the MoU, decide to return to Afghanistan, make every effort to ensure that families are returned as units and that involuntary separation is avoided. Where such efforts fail, a mechanism will be established for their reunification in Afghanistan or in Norway, according to Norwegian and international laws. In order to preserve the unity of the family, spouses and/or children of returning Afghans who are themselves not citizens of Afghanistan will be permitted to enter and remain in Afghanistan. This commitment will also apply to non-Afghan spouses as well as children of deceased Afghans who may wish to enter and remain in Afghanistan in order to ensure preservation of family links. Accordingly, the Islamic Republic of Afghanistan will regularize the entry and stay in Afghanistan of such persons in accordance with the provisions under its national laws on the entry and stay of foreigners and will consider favourably their naturalization. Visas to this effect will be issued without delay by the diplomatic representation of Afghanistan accredited to Norway.
Special Measures for Vulnerable Groups
The Parties will take special measures to ensure that vulnerable groups receive adequate protection, assistance and care throughout the return and reintegration process. In particular, measures will be taken to ensure that unaccompanied minors are not returned prior to successful tracing of family members or without specific and adequate reception and care-taking arrangements having been put in place in Afghanistan.
In making decisions about the repatriation of unaccompanied or separated children the Government of Norway will adhere to the minmum standards stipulated in the Aide-memoire "Special measures applying to the return of unaccompanied and separated children to Afghanistan" attached to the Memorandum of Understanding.
International Access Before and After Return
In order to be able to carry out effectively its international protection and assistance functions and to facilitate the implementation of this MoU, UNHCR will, in accordance with national legislation regarding data-protection, be permitted free and unhindered access to all Afghans in Norway falling under the scope of this MoU. Likewise, UNHCR will be permitted free and unhindered access to all returnees wherever they may be located in Afghanistan, including at airports and Afghans will be permitted free and unhindered access to UNHCR.
The Islamic Republic of Afghanistan will extend full cooperation to UNHCR staff to allow them to monitor the treatment of returnees in accordance with humanitarian and human rights standards, including the implementation of the commitments contained in this MoU and in Decree No. 297 of 13.03.1380 (3 June 2002).
In this context, the Islamic Republic of Afghanistan will inform UNHCR about any exceptional case of arrest, detention and penal proceedings involving returnees in accordance with the Afghan law. It will make relevant legal documentation on such cases, if any, available upon request and permit UNHCR staff prompt and unhindered access to such returnees.
The access permitted to UNHCR under this paragraph will, as appropriate, extend to inter-governmental or non-governmental organizations with which UNHCR, in consultation with the respective Party, may enter into agreements for the implementation of one or more components of the voluntary return programme covered by this MoU.
Safe Nature of Return Travel
In implementing this MoU, the Government of Norway will retain responsibility for the safety of Afghans who volunteer to return until departure at a port of exit. The responsibility for the safety of the returnees and responsibility for their personal property during travel will rest with the carrier and, if applicable, the international organization implementing travel. The Islamic Republic of Afghanistan will be responsible for their safety within the territory of Afghanistan.
The Government of Norway will ensure that all Afghans returning under this MoU are informed about the possibility of having a basic medical examination prior to their departure and given the opportunity, upon their request, of access to medical care in Norway. Furthermore, vaccinations will be provided by the Government of Norway prior to return, where considered necessary by the Government of Norway.
Immigration and Customs Formalities
To ensure the expeditious return of Afghans and their belongings, the Islamic Republic of Afghanistan and the Government of Norway will, in respect to such persons, simplify and streamline their respective immigration, customs, health and other formalities usually carried out at border crossing points. The returnees' personal property, including household and electronic items, hard currency, and food, will be exempted from all customs duties, charges and tariffs, provided that such property is not prohibited for exportation under the relevant Norwegian national laws and rules and not prohibited for importation under the relevant Afghan national laws and rules. Lists specifying such items will be submitted by the two respective Parties as soon as possible following the signing of the MoU.
Airport Arrival and Transit Arrangements
The Parties decide that, in most cases, the appropriate mode of return from Norway to Afghanistan is by air and that arrival will, in most cases, take place at Kabul Airport. UNHCR and the organization implementing return travel, if applicable, will be permitted unhindered access to receive returnees at the airport. With the assistance of the other Parties and financial support provided by the Government of Norway, the Islamic Republic of Afghanistan will ensure that appropriate reception facilities will be in place to receive returnees, particularly those belonging to vulnerable groups, in transit to their intended destination, to the extent this is considered necessary by the Parties. Where necessary and appropriate, the Parties may seek the understanding and acceptance of neighbouring countries to permit returnees to transit through their territory to reach their places of origin in Afghanistan by the most direct and safe route.
The Parties will continue to cooperate to ensure, with financial support provided by the Government of Norway, the provision of adequate mine awareness counselling to returning Afghans regarding risks of mines and unexploded ordinances.
The Government of Norway will meet the costs of travel for Afghans covered by this MoU up to the final destination in Afghanistan and of their luggage in accordance with relevant Norwegian programmes, including administrative costs to arrange for travel.
In addition, in order to facilitate re-integration, the Government of Norway will also offer a return package to Afghans returning to Afghanistan under the provisions in this MoU. The modalities of payment will be determined in consultation with the other Parties. Special consideration will be given to the needs of women, children and other vulnerable groups in the provision of the return programmes. Allowances will be regulated by the Norwegian return programmes.
With a view to facilitating the re-establishment of livelihoods in Afghanistan of returnees and mindful of the broader reconstruction and rehabilitation needs of Afghanistan, the Government of Norway, will continue to consider favourably the provision of support to ongoing reconstruction and rehabilitation projects in areas of return.
In implementing this MoU, the Parties are committed to coordinating and consulting closely with each other. In this regard, relevant information - except person-specific information related to the content of asylum-claims - will regularly be shared between the Parties, in particular between the respective diplomatic missions of Norway and the Islamic Republic of Afghanistan and with the respective UNHCR offices in Stockholm and Kabul and other relevant inter-governmental and non-governmental organisations in both countries.
Designated representatives of the Parties will form a Working Group to monitor and discuss the implementation of this MoU. The Working Group will meet at least once every six months, in Oslo, Kabul or Geneva, but may additionally be convened at the request of one of the Parties. The Working Group may, whenever it considers it useful and appropriate, invite representatives of relevant organizations to participate in its deliberations in an advisory capacity. Decisions of the Working Group will be based on the mutual consent of the designated representatives or their designated alternates.
The Government of Norway and the Islamic Republic of Afghanistan will facilitate the entry and stay, through issuance of visas as necessary, in accordance with their applicable national immigration laws, of their officials and personnel as well as of UNHCR staff and of staff of organizations assisting UNHCR in facilitating the implementation of the MoU.
Continued Validity of other Agreements
This MoU will not affect the validity of or derogate from any existing instruments, agreements, arrangements or mechanisms of cooperation between the Parties. To the extent necessary or applicable, such instruments, agreements, arrangements or mechanisms may be relied upon and applied as if they formed part of this MoU to assist in the pursuit of the objectives of this MoU, namely the voluntary return and reintegration of Afghans.
Validity of Tripartite MoU under Transitional and Permanent Government Institutions in Afghanistan
The provisions of this Tripartite MoU will be recognized and fully respected by the institutions as provided for under the Bonn Agreement, notably the Permanent Government Institutions as foreseen to be established under the Bonn Agreement.
Resolution of Disputes
Any question arising out of the interpretation or application of this MoU, or for which no provision is expressly made herein, will be resolved amicably through consultations between the Parties.
In particular, the Parties accept to address possible questions of statelessness with a view to avoid its occurrence and to seek solutions to address the hardships entailed for those affected.
Coming into Effect
This MoU will come into effect upon signature by the Parties.
This MoU may be amended by mutual consent in writing between the Parties.
Term, Expiration and Termination
This MoU will come into effect upon signature by the Parties and will remain in effect for a one year period from the date of signature. The MoU will be extended automatically on an annual basis(for a one year period) unless one of the Parties expresses a contrary intention in writing at least 30 calendar days prior to the expiration of the MoU.
Any Party hereto may terminate this MoU by notification in writing to the other Parties communicated via diplomatic channels. This MoU will cease to apply 30 calendar days after the date of delivery of any such notification to each of the Parties.
In witness whereof, the representatives of the Parties have signed this MoU.
SIGNED at Kabul, this Sunday of 10 July 2011, in triplicate, each in the English, Dari and Norwegian languages, all texts being equally authentic. In case of divergence of interpretation, the English text shall prevail.
Article 19 of this MoU refers to return programmes available for Afghan nationals returning from Norway to Afghanistan. First, there is one repatriation programme for persons referred to in category I (persons granted refugee status in Norway) and in category II (persons granted residence permit on humanitarian grounds) of article 3. Second, there is a voluntary return programme for persons referred to in category III of article 3
I. Repatriation programme for persons granted asylum or holding a residence permit on humanitarian grounds
a) Information and counselling by the Directorate of Immigration and the Norwegian Refugee Council
b) An allowance of 15,000 NOK per person
c) Travel and luggage expenses from nearest airport in Norway to the final destination in Afghanistan are covered.
There is no needs test and there is no ceilings for families. Children are granted the same amount as adults. The allowance of 15,000 NOK is as of 8 July 2005 the equivalent of 2,255 USD. The amount is meant to facilitate reintegration in Afghanistan.
Applications for repatriation allowances are to be submitted to the Directorate of Immigration.
II. Voluntary assisted return programme for persons whose application for asylum has not been decided or has been rejected
a) Information and counselling regarding the return by the International Organization for Migration (IOM).
b) Assistance in obtaining a travel document, if necessary.
c) Transportation within Norway, flights to Afghanistan and domestic transportation to the final destination.
d) Assistance at the airport on departure, in transit and on arrival.
Applications are to be submitted to the International Organization for Migration in Oslo. Before IOM can assist the applicants, a clearance by the Directorate of Immigration and the Norwegian police authorities is required.
Special measures applying to the return of
unaccompanied and separated children to Afghanistan
l. UNHCR and Afghanistan have signed a Tripartite Memorandum of Understanding (MOU) on return to Afghanistan with a number of countries, At the time of their conclusion, expectations were high for the voluntary return of Afghan refugees, including from Europe, and these agreements were primarily intended to faeilitatesueh returns,
2. At present, however, there are few if any voluntary returns of Afghans who have been
Recognized as refugees in Europe or in other countries where asylum applications are reviewed on line individual basis. Where assisted voluntary return takes place from these countries, it generally concerns Afghans who are complying with orders to leave the country after a negative decision has been taken on their asylum applications. As a result, the MoUs now primarily serve to facilitate the compulsory return to Afghanistan of persons who have been found not to need international protection.
3. These agreements contain an article on "Special Measures for Vulnerable Groups" which, although not always identically worded, stipulates that the parties will take special measures to ensure that the special needs of vulnerable persons- including unaccompanied children- are met,
4. The situation of unaccompanied and separated children from Afghanistan has recently received considerable attention in policy debates and the media. Large numbers of such children apply for asylum, in particular in Europe.
The following Tripartite Memorandum of Understanding between a sending country, the Government of the Islamic Republic of
Afghanistan and the Office of the United Nations High Commissioner for Refugees (UNHCR) are in place at present (or have expired), in alphabetical order (please note that only countries which review asylum requests on an individual basis have been included) :
a) "Tripartite. Memorandum of Understanding between the Islamic Transitional State 'of Afghanistan, the Government of Denmark and the United Nations High Commissioner for Refugees (UNHCR)", 18October 2004,(open-ended).
b) 'Tripartite Agreament between the Government of the French Republic, the Government of the Islamic Transitional State of Afghanistan and the United Nations High Commissioner for Refugees", 28Seplember 2002(open-ended);
c) ''Tripartite Memorandum of Understanding (the MoU) between the Government of the Netherlands; the Transitional Islamic State of Afghanistan and the United Nations High Commissioner for Refugees (UNHCR)", 18 March 2003, (open-ended);
d) ''Tripartite Memorandum of Understanding (the MoU) between the Government of Norway, the Islamic Republic of Afghanistan and the United Nations High Commissioner for Refugees (UNHCR)", 10 August 2005, extended by addendum of 6 Jul 2007, 10 August 2009 and 29 December 2oo9. A further extension until 30 June 2011. Was agreed on 11April 2010, subject to the conclusion of special arrangements safeguarding the reintegation of particular, vulnerable groups in accordance with international standards;
e) "Tripartite Memorandum of Understanding between the Government of the Kingdom of Sweden, the Government of the Islamic Republic of Afghanistan and the United Nations High Commissioner for Refugees (UNHCR)", 26 December 2007, extended by addendum of 18 December 2008 and27 January 2009, (expired 30 April 2009);
f) "Accord tripartite entre le Conseil federal Suisse, le Government de la Republique islamique d'Afghanistan et le Haut Commissariat des Nations Unies pour les refugies (HCR)", 5 October 2006, (open-ended);
g) "Tripartite Memorandum of Understanding (the MoU) between the Government of the United Kingdom of Great Britain and Northen Ireland (the UK Government), the Transitional lslamic Slate of Afghanistan and the United Nations High Commissioner for Refugees (UNHCR)", 12OCtober 2002,(open-ended);
In addition, the Government of Australia and Finland have expressed interest in exploring the possibility of concluding a Tripartite Memorandum of Understanding with the Government of the Islamic Republic of Afghanistan and UNHCR.
5. In 2009, UNHCR issued Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A) 2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees. These are available on UNHCR's website and through Refworld.
6. The European Union has also issued an Action Plan on Unaccompanied Minors (2010-2014).
This represents a significant step towards addressing a number of critical issues and shows an encouraging recognition of the complexity of the problem and the need for case-by-case assessment. In this Action Plan there is considerable focus on reception and care of unaccompanied children, the assessment of their asylum applications and the implementation of durable solutions, taking into account the need to ensure that the best interest of the child remains a primary consideration,
7. UNHCR is aware that in the present context of efforts to determine appropriate durable solutions for Afghan children, some countries are exploring the establishment of "care centers" in Afghanistan, to which children who are found not to be in need of international protection could be returned, in the absence of family members willing and/or able to receive and care for the children, In this connection, UNHCR believes that it is important to set out the necessary safeguards pertaining to the return to Afghanistan of unaccompanied and separated children.
II. UNHCR POSITION ON MINIMUM SAFEGUARDS
8. The paragraphs below spell out the minimum safeguards which UNHCR believes should apply to the return of unaccompanied and separated children to Afghanistan, and on which UNHCR's engagement in such returns would be premised. Moreover, implementing these safeguards would require the commitment of the sending country to secure the cooperation of the Government of Afghanistan in relation to the below measures.
Special measures for unaccompanied and separated children
i) The Government of (sending country) will ensure that unaccompanied and separated children are not returned to Afghanistan, unless return is decided upon in a formal procedure which contains all necessary safeguards, assesses all solutions available to a child, and ensures that the child's best interest is a primary consideration, The child shall be fully informed and consulted at all stages of this process and provided with appropriate counselling and support.
ii) The Government of (sending country), with the cooperation of the Government of Afghanistan, will ensure that genuine efforts are made to trace family members. If family members are successfully traced, the Government of (sending Country) in cooperation with the Government of Afghanistan will ensure through an individual assessment that the family is 'willing and able to receive the child. The outcome of this assessment (where applicable) will inform the decision on return,
iii) Where family tracing is unsuccessful, return to the child-care institution in Afghanistan may be considered as a last resort option. In such a case, full documentation of tracing efforts should be handed over to the caregiver in Afghanistan, to facilitate continuation of tracing efforts after return, The Government of (sending country) will ensure in cooperation with the Government of Afghanistan that specific and adequate reception and care arrangements are put in place prior to return. As a minimum, reception and care arrangements should include:
• Receiving the child at the airport followed by immediate access to appropriate accommodation, support for basic needs, access to education and health care.
• The appointment of a caregiver with appropriate qualifications and training, including in child-protection, who has been formally assigned responsibility for the child and is able to exercise legal capacity where necessary.
• An individual plan for the child's sustainable reintegration, drawn up in collaboration with the child and his/her guardian in (sending country) and which is based on an assessment of access upon return to food, housing, health care, education, vocational training and employment opportunities. The Government of (sending country), working with the Government of Afghanistan, will ensure this plan is formally shared with the above-mentioned caregiver in Afghanistan.
• Adequate and ongoing post-return evaluation.
20 August 2010