Prima facie determination of refugee legal status: an overview of its legal foundation
The objective of this paper is to clarify the use of PFRSD in practice and explore its legal foundation. It argues that the term ‘prima facie’ should be understood in refugee law as a shorthand reference to the general law relating to injunctions. That is, ‘prima facie’ is shorthand for a lower standard of proof, rather than a shifted burden of proof. PFRS can therefore be conceived as a quia timet injunction granted, in haste and ex parte, at the discretion of the host State with both prohibitory and mandatory elements. The injunction persists until, but is without prejudice to, RSD that considers exclusion and non-inclusion from Convention protection. The paper finds that this injunctive conception is founded in the Convention, accords with State and UNHCR practice, and clarifies the rights attached to PFRS. The paper ends by suggesting that PFRSD practice beclarified by way of an Executive Committee conclusion.