REFUGEE WATCH
"A South Asian Journal on Forced Migration" - Issue NO.29
Exclusion from Refugee Protection in Europe: An Attempt at Legal Conceptualization
by Patrick Hoenig (Visiting Professor, Academy of Third World Studies, Jamia Millia Islamia)
I. Background
The interpretation and application of the Exclusion Clauses under the 1951 Convention on the Protection of Refugees has been evolving, factoring in historical and political considerations, not all of which proved to be conducive to securing a comprehensive legal framework designed for refugee protection. In the 1990’s, Western Europe faced an unprecedented rise in applications for refugee status, prompting EU member states to tighten borders to keep out “illegal migrants,” to shorten asylum procedures, to limit the right of appeal, and to pass on responsibility to other nations—“safe third countries”—through which asylum seekers traveled en route to Western Europe. In their totality, the policies and practices applied have given rise to concern that EU member states are increasingly bent on denying access to individual determination procedures on EU territory; curtailing privileges rightfully enjoyed by refugees under international conventions; and preparing the ground for revoking from the obligations under the 1951 Convention altogether.[i] The application of the Exclusion Clauses under Article 1 F of the Convention is a case in point. UNHCR has consistently argued in favor of a restrictive interpretation of the Exclusion Clauses, given the legal nature of the provisions as an exception from Article 1 A and the potentially serious consequences of exclusion from Convention protection.[ii] But state practice is far from homogeneous and a range of problems regarding the interpretation and application of the Exclusion Clauses persist. Weaving together the manifold threads of the discussion, it appears that “increased interest in exclusion is part of a wider policy to limit refugee status in general.”[iii]
At the same time, demographic trends suggest that a comprehensive overhaul of immigration laws and policies is required for Western European countries to avoid a slump in population and a subsequent economic backlash. In several countries legislation has been adopted or brought underway with a view to paving the way for eligible foreign nationals to be granted citizenship. But as the need for attracting foreigners to Europe is reluctantly being recognized, it seems to become harder and harder for refugees to clear the hurdles for obtaining a legal status that would reflect the legal obligations of states under the 1951 Convention. The process of synchronizing asylum laws and policies, likely to be largely affected by the expansion of the European Union to Eastern Europe, has further raised concern that European harmonization policy may generate “least common denominator” dynamics, prompting EU members with more generous asylum policies to cut back on their standards to accommodate their more restrictive neighbors.[iv] Against that background, it is safe to say that the search for a common definition of the term refugee, minimum procedural standards and mechanisms of temporary and complementary protection has sparked a fiercely antagonistic and highly politicized debate in Europe. In a climate of social insecurities, alienation with globalization policies and fear of terrorism, the refugee is perceived, not only in Europe, less as an individual deserving of protection but rather an alien raising suspicion.[v] It is now the time for advocacy to ensure that the Exclusion Clauses are applied in a coherent and rights respecting manner rather than used as loopholes to discredit legitimate claims to refugee status.
II. The Exclusion Clauses in European Practice
1. Article 1 F (a)
Article 1 F (a) of the 1951 Convention provides that individuals can be excluded from refugee protection on the grounds of a crime against peace, a war crime or a crime against humanity. Whereas crimes against peace do not play a role in exclusion practice, war crimes formed the basis of a number of exclusion decisions. In France, for example, a former soldier of the Russian army was excluded on the grounds of evidence suggesting that he had committed war crimes when he took part in the destruction of villages in Afghanistan in 1985 and the killing of civilians, including children, during an attack on a kindergarten in Chechnya in 1995.[vi] The bulk of exclusion decisions under sub-clause (a) of Article 1 F, however, is grounded in an alleged crime against humanity. But what are the elements that constitute a crime against humanity and what is the scope of its application? The Danish Refugee Council reported a decision of the Danish Refugee Board in 1999, in which a Bosnian Croat, detained as a prisoner of war in the Dretelj Camp, had been excluded because of his participation in violent acts committed against fellow detainees, resulting in the death of two of them. Could it be argued that a prisoner of war, by definition, is a potential victim, not perpetrator, of crimes? Although legal issues in the realm of crimes against humanity abound, there is hope that problems will diminish in future practice as the crime against humanity has attracted considerable research interest following its inclusion in Article 7 (1) (i) of the Statute of the International Criminal Court.
2. Article 1 F (b)
The overly broad interpretation of the term “serious non-political crime” in many European countries poses a key problem with respect to the application of Article 1 F (b). Decision-making bodies are often found to be lacking due diligence in distinguishing between civil and political criminal offenses. Sometimes criteria for what constitutes a serious non-political crime are missing or drawn up arbitrarily. In this context, it should be noted that in France crimes committed as part of the armed struggle for the independence of the “Basque Country” are prima facie considered to be of non-political nature.[vii] Austrian authorities, in particular, have been criticized for a lack of consistency and overly lax interpretation, resulting in the qualification of aggravated fraud and minor drug related offenses as serious crimes under Article 1 F (b). NGO’s based in Austria also have observed that asylum seekers alleged to be involved in minor criminal activities were rejected on the grounds of a change of conditions in the country of origin when it was clear that no such change had occurred. Applicants from Africa have been reported to face considerably more problems than others to have their applications taken seriously. At the other end of the specter, the Danish Refugee Board is to be commended for going to great lengths to make a proper distinction between civil criminal offenses—resulting in the denial of asylum—and political criminal offenses—leaving open the possibility of asylum being granted. In a three-step-procedure, the Board first determines whether there is a direct and clear connection between the act committed and the political goal pursued; secondly, the seriousness of the act is measured against the treatment to be expected by the asylum seeker if returned to his country of origin; lastly, a proportionality test is applied: The harsher the consequences of the act, the less likely it is considered to be political. The French Refugee Appeal Commission holds that “not only the gravity of the crime should be taken into account but also the goals pursued by the perpetrators and the degree of legitimacy of the violence that they carried out.”[viii] Similarly, the UK House of Lords, in T v. Secretary of State for the Home Department, backed a decision by the Court of Appeal that found it to be “inappropriate to characterise indiscriminate bombings which led to the deaths of innocent people as political crimes.”[ix] The court held that while not all terrorist acts fell outside the scope of the Convention, an atrocious act that was grossly out of proportion to any genuine political objective, with no sufficient close or direct causal link between it and the alleged political purpose, could not be qualified as political. However, a noticeable shift has occurred in Great Britain with the passing of anti-terrorist laws as early as in February 2001 and the interpretation of Article 1 F (b) is increasingly affected by human rights concerns caving in to national security considerations. Terrorist legislation gives the police wide powers to arrest individuals plotting or supporting terrorist activities abroad and seizing money for organizations banned by the parliament. Amnesty International considers the creation of a distinct system of arrest, detention and prosecution relating to “terrorist offences” as a violation of the internationally recognized right of all people to be equal before the courts, adding that the difference in treatment is not based on the seriousness of the criminal act itself but, rather, on the motivation behind the act, defined in the Act as “political, religious or ideological”.[x] Because of the reference in the bill to a “political” act, it is widely expected that it will have serious implications for refugees in status determination procedures.
3. Article 1 F (c)
Under Article 1 F (c) a person will be excluded from the protection under the 1951 Convention if found guilty of acts contrary to the purposes and principles of the United Nations. From the fact that only states can be members of the United Nations, it has been concluded that Article 1 F (c) applies “notably” to persons in senior government positions, who, by virtue of their responsibilities, ordered, or lent their authority to, actions to be considered at variance with those purposes and principles as well as to members of the security forces personally responsible for such breaches.[xi] In some countries, such as Germany, decision-makers emphasized that Articles 1 and 2 of the UN Charter were concerned with international, not individual, relations. Consequently, they held that the Exclusion Clauses did apply only where inter-state peace was affected. Along the same lines (and yet little compelling), the Austrian Administrative Court denied refugee status under Article 1 F (c) to an applicant for his carrying out a bombing campaign to reunite South Tyrol with Austria, arguing that the actions by the applicant had affected the relations of nations, namely Austria and Italy.[xii] A French court held that the exclusion of former Haitian President Jean Claude Duvalier was justified on the grounds of Article 1 F (c), not only because the applicant had been guilty of acts contrary to the purposes and principles of the United Nations, but also because he had executed them in his capacity as “President of the Republic, chief of the army, of the police and of the National Guard.” Broadening the scope of the provision, the French Appeals Board held that actions inconsistent with the goals and principles of the United Nations could also be committed by persons who, without being part of the bodies in power, participated in the activity of judicial, penal or law enforcement agencies. It thus sanctioned the exclusion under Article 1 F (c) of two nationals of the Democratic Republic of the Congo who had admitted their involvement, as informers paid by the former civilian guard, in the arrest and persecution of opponents of deposed president Mobutu.[xiii] Finally the French Appeal Court, in the Avetisian case (1997), held Article 1 F (c) to be applicable in the case of a Georgian asylum seeker who had participated in an attempted coup against the “legitimate and democratic” government of President Shevarnadze.[xiv] In this decision, there was no longer any reference to the applicant holding any power bestowed on him by the state or related to him informally by a state agency. This development is to be welcomed in principle as neither the UN Charter nor the 1951 Convention can easily be construed as providing that individuals, not acting in their official capacity, are exempt from being excluded, no matter what the motive and impact of their action. But the case of the two Congolese in particular shows how thin the line has become between rightful exclusion and contempt of the ground realities by decision-making bodies placed in a political and social environment barely comparable. Furthermore, attempts in some jurisdictions, notably the United Kingdom, to equate “terrorist” activities with a breach of the purposes and principles of the UN Charter should give rise to concern. In re Youseff, the applicant, an asylum seeker from Egypt, was denied asylum on the grounds that he was considered to be a senior member of the Egyptian Islamic Jihad constituent assembly.[xv] The State Secretary concluded that, in light of Article 1 F of the 1951 Convention and the UN Declaration on Terrorism, acts, methods and practices of terrorism were contrary to the purposes and principles of the United Nations. He was satisfied that there were serious reasons for considering that the applicant had been guilty of acts contrary to the purposes and principles of the United Nations.[xvi] The equation of “terrorist” activities with a violation of the purposes and principles of the United Nations, however, is to be met with criticism. While it is true that the UN Security Council, in resolutions 1373 (2001), 1377 (2001) and 1624 (2005), has determined that acts of international terrorism are contrary to the purposes and principles of the United Nations, it conspicuously omitted a definition of terrorism. States continue to be under an obligation to show in each and every case how the “terrorist” act the applicant is believed to have committed comes under one of the three categories provided for in Article 1 F.[xvii] While many terrorist activities will, in fact, fall under one of the definitions, the suspicion of membership to a “terrorist” or “criminal organization” as such does not bar an applicant from the protection under the 1951 Convention.
B. Exclusion Procedure
Within the framework of the 1951 Refugee Convention, the interplay of Exclusion Clauses (Article 1 F) and the principle of non-refoulement (Article 33) is complex and multi-layered. It is nevertheless possible to draw a clear line with regard to the purpose of the provisions. Article 1 F seeks to ensure the credibility of the asylum system and the accountability of perpetrators of heinous crimes, whereas Article 33 is concerned with the security interests of the host community.[xxix] It follows that neither the scope nor the consequences of Article 1 F can be identical to those of Article 33. Rather, Article 1 F provides for the exclusion of applicants from refugee status—whereas Article 33 (2) applies to those who are recognized as refugees and would benefit from non-refoulement if it was not for national security concerns. In European legislation, the line between exclusion and non-refoulement has sometimes been blurred, to the detriment of refugees. The Austrian Asylum Act (1997), for example, provides that “[a]sylum shall be denied if any of the grounds set forth in the exclusion clauses in Article 1, Section F, of the Geneva Convention on Refugees is present. Asylum shall further be denied if aliens for cogent reasons constitute a danger to the security of the Republic or have been convicted, by a final judgment of an Austrian court, of a particularly serious crime and, by reason of such punishable act, represent a danger to the community.” This provision stands out as an example for how the merger of Article 1 F and Article 33 of the 1951 Convention into a single provision under the heading “disallowance of asylum” can produce results to be deemed in discord with the rationale underpinning the provisions of the Convention. Under the Convention regime, a refugee coming under the scope of Article 33 (2), but barred from deportation, for example under Article 3 of the European Convention of Human Rights (ECHR)[xxx], enjoys all privileges conferred to him as a Convention refugee, except protection from refoulement for Convention purposes. The denial of asylum to an applicant under Article 13 (2) Austrian Asylum Act on the grounds of his posing a threat to national security, however, deprives the refugee of all rights recognized in the 1951 Convention, including protection from refoulement. The Asylum Act thus curtails the rights enjoyed by the refugee in contravention of the regime under the 1951 Convention. Furthermore, the Austrian Aliens Act (1997) provides that decisions on issues pertaining to exclusion and refoulement are to be made by the same authorities. Observers have critically noted that as a consequence the reasoning of exclusion decisions often resembles that of decisions on non-refoulement. While it may be convenient for the authorities to mete out similar-worded decisions on cases to which different provisions of the law apply, such a practice is dubious at best in light of international human rights law and procedural accuracy. Against this backdrop, it should be urged that national legislation either makes direct reference to the provisions of the 1951 Convention or otherwise ensures that the principles of exclusion and non-refoulement are not becoming entangled in a way detrimental to the rights enjoyed by refugees under the Convention. As the rationale underlying the concept of non-refoulement is different from the doctrinal underpinnings of exclusion, decisions on Article 1 F ought to be made by bodies distinct from those dealing with cases involving Article 33 (2).
State obligations do not end with the exclusion of an applicant from the refugee protection regime under the 1951 Convention. The Legal Advisory Group of the Lawyers Committee for Human Rights (now Human Rights First) stressed the need for a state rejecting an applicant on the grounds of Article 1 F to ensure that criminal proceedings will be initiated, while international human rights law continues to apply, regardless of the nature of crime the excludee is suspected of having committed.[xxxi] Post-exclusion scenarios are rife with problems. In the European context, legal predicaments arise in particular with respect to the reconciliation of Article 33 (2) 1951 Convention and Article 3 of the European Convention on Human Rights (ECHR). In Ahmed v. Austria, the European Court for Human Rights held that the applicant, a refugee from Somalia, would face the risk of being subjected to treatment contrary to Article 3 ECHR if returned to his home country. It therefore ruled that the applicant could not be deported. In Chahal v. the UK, the Court held that despite posing a risk to national security of the host state, a Sikh separatist could not be returned to India since he faced treatment there that was in contravention of the Convention. In T.I. v. United Kingdom, the Court reaffirmed its view that Article 3 ECHR imposed an obligation on the contracting states not to expel a person to a country where there were substantial grounds for believing that he would face a real risk of being subjected to torture or to inhuman or degrading treatment.[xxxii] This means that an individual found to be undeserving of the right to asylum will nevertheless be protected from deportation if the situation in his home country does not allow for the authorities in the country of refuge to reasonably expect him to be treated in compliance with basic human rights standards. In light of the European Court for Human Rights jurisprudence on non-refoulement, the suggestion has been made that the 1950 European Convention rendered refugee law largely irrelevant.[xxxiii] Organizations assisting refugees, on the other hand, have pointed out that protection from persecution under Article 3 ECHR is far from being comprehensive. Austrian courts, for example, are reported to protect refugees from returning to a country where they are faced with death penalty, torture or inhuman treatment. However, it has been noted with alarm that the observance of due process safeguards in the country of origin is usually not being taken into consideration in non-refoulement decisions.
Minimum procedural standards for deportation also need to be met in the realm of post-exclusion. It is often heard that no recourse is to be had to formal extradition procedures where a person has been excluded from protection under Article 1 F and can be returned to his country of origin under Article 3 ECHR. But why the excludee should have fewer rights than other groups of people slated for deportation is not clear. A person falling within the scope of Article 33 (2) must be dealt with in the same way as any other criminal: Extradition laws apply to him in exactly the same way as to someone who has committed post-status crimes in another country.[xxxiv] The 1951 Convention does not override international extradition agreements; it is, in fact, blind to national extradition law. What is more, the application of national extradition procedures may provide an additional safeguard for human rights protection. Deportation proceedings bring out very prominently tendencies toward criminalizing asylum seekers and leave them vulnerable to human rights abuses. As a case in point, the European Commission on Racism and Intolerance expressed alarm over episodes of excessive violence in Denmark occurring during deportations and ill-treatment of asylum seekers in the course of police operations aimed at clamping down on drug dealing.[xxxv] It is therefore essential that post-exclusion deportations are executed according to the same standards that apply to other deportees.
International law is silent on the question of status of asylum seekers who have been excluded on the grounds of Article 1 F but are barred from deportation under Article 3 ECHR. It is generally being felt to be untenable that exclusion decisions throw the excludee into a legal limbo, but national authorities still have to come up with a sound post-exclusion policy and a comprehensive legal framework. In search of a solution, it has been recommended that countries cut back on providing services and aid to individuals found to be excludable but protected from deportation. The EU Commission proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States provides for the possibility of reducing or withdrawing reception conditions, such as housing, food and clothing, if “there are serious grounds for believing that the applicant has committed a war crime or a crime against humanity or if, during the examination of the asylum application, there are serious and manifest reasons for considering that grounds of Article 1 (F) of the Geneva Convention may apply with respect to the applicant.”[xxxvi] Such drastic measures aimed at flushing out undesired asylum seekers are believed to be permissible on the grounds that Article 3 ECHR “lacks a positive obligation in that housing, work, services need to be provided.”[xxxvii] With all due respect for conservative budget spending policies, such welfare reduction schemes must be deemed incompatible with international economic and social rights. The right to work is recognized in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the right to an adequate standard of living, including adequate food, clothing and housing, spelt out in Article 11 ICESCR. Those who are eager to lay a legal groundwork for discriminatory measures against refugees, placing them in a position where they are virtually left hovering between life and death, must be aware that they propagate not only a breach of human rights law—but also an attack on human dignity. There is emerging consensus that human rights concerns should govern the post-exclusion phase. But criminal justice arguments are increasingly being advanced. Ideally, the excludee will be prosecuted in the community, in which there are reasons to believe he has committed a crime under Article 1 F of the 1951 Convention. If fair proceedings are not likely to be had capacity building schemes could kick in to reform the local justice system from the grassroots up. Sadly, such an approach commands resources and commitment well beyond what is generally thought to be available—or affordable. Alternatively, in cases where the International Criminal Court lacks jurisdiction, the state whose authorities have excluded the applicant could proceed to prosecute the alleged criminal under jurisdiction established by international law.[xxxviii] International recognition of the principle of universal jurisdiction has enabled domestic courts to try individuals accused of the most heinous crimes, thus filling one of the last lacunae of criminal justice procedures following the exclusion of suspected war criminals.[xxxix]. It emerges that a rights respecting approach to the interpretation and application of the Exclusion Clauses under Article 1 F of the 1951 Convention does not stand in the way of closing up the gaps of impunity allowing for perpetrators of genocide, war crimes and crimes against humanity to evade justice.
C. Exclusion and Refoulement
As a matter of principle, exclusion procedures should only be entered into when the decision-making bodies have established that the asylum seeker meets the requirements of the refugee definition set out in Article 1 A of the 1951 Convention. However, this is not an unanimous position. The Ministry of Justice of the Netherlands categorically claims that exclusion is a case apart and should be examined first.[xviii] In a case involving an applicant alleged to have hijacked a plane, the Dutch Council of State argued that only if the Exclusion Clauses proved to be non-applicable would the question arise as to whether the conditions of Article 1 A (2) were met.[xix] It is of course expedient to see whether the criteria of the Exclusion Clauses are fulfilled and, if so, save any further exchange of arguments on the refugee credentials of the applicant. In the Netherlands, asylum seekers are subjected, based on a first hearing, to either an Article 1 A or an Article 1 F enquiry. Article 1 F interviews are conducted by specially trained agents and have been described by asylum experts as resembling police interrogations. Lawyers representing asylum seekers warn that there is a real danger for applicants to be found guilty by association as interviews, rather than aiming at depicting a well-rounded portrait of the applicant, focus almost entirely on facts linking the applicant to excludable acts.[xx] The procedural problems are compounded by (1) the fact that asylum seekers are generally prepared for interviews by volunteer workers rather than lawyers; (2) the withholding of information from the interviewees concerning the consequences of Article 1 F determination procedures; (3) the reliance, on the part of decision-makers, on country reports, which, at times, prove to be outdated, incoherent, and ill-informed; and (4) a tendency to consider as prima facie excludable those individuals who, for whatever reason, have been linked to an organization with a ‘cruel purpose’. The example of the Netherlands bears out the practical problems stemming from giving priority to exclusion procedures over determining the merits of the case first. It is a sad but undeniable fact that the risk of arbitrary decisions increases by the degree by which state authorities are allowed to deny refugee status without fully considering the merits of the case.[xxi] State practice suggests that the examination of the question of inclusion prior to initiating exclusion procedures also provides asylum seekers more adequately with minimum procedural safeguards, such as fair hearing. French courts have established a practice of determining the existence of well-founded fear before applying the Exclusion Clauses, thus fielding evidence hinting at inclusion before turning to the question of exclusion.[xxii] The Danish Refugee Council also subscribes to a reading of the Danish Aliens Act that renders mandatory a determination of the question as to whether the applicant is in need of protection before deciding on his excludability. From a rights respecting perspective, this practice is preferable.
On the question as to whether Article 1 F provides for a test balancing the seriousness of the crime against the gravity of the exclusion consequences, views have also been at variance. UNHCR has long been known for holding the position that in the framework of Article 1 F the fear of persecution on the part of the applicant needs to be measured against the seriousness of the crime. This approach is shared by a Joint Position of the EU Council, which states that “[t]he severity of the expected persecution is to be weighed against the nature of the criminal offense of which the person concerned is suspected.” In support of a balancing test, it can be argued that there has been a fundamental change of circumstances since 1951 in terms of human rights law and restrictions on extradition, where persecution is to be feared in its aftermath. Article 1 F (b) thus can no longer be deemed absolute with respect to the denial ab initio of refugee status.[xxiii] Critics say that the balancing test proposed by UNHCR in the framework of Article 1 F (b) is well meaning, but ill-advised. They maintain that de lege lata refugee law does not require the application of a proportionality test once the standard for exclusion is met, while de lege ferenda a balancing test would invite states to impose exclusion for crimes that fail “to meet the drafters’ basic litmus test of extraditable criminality.”[xxiv]
The jurisprudence in European countries is divided over the question of a balancing test. The Danish Refugee Board, in two poignant decisions, applied a balancing test to determine the excludability of asylum seekers. In a case involving an applicant standing to be excluded for his involvement in an LTTE attack on a farm in Sri Lanka, the Board ruled in favor of the applicant, weighing in the age of the asylum seeker, his low rank in the organization, his inexperience in military operations, and the fact that he had learnt about the civilian nature of the target only shortly before the attack was launched. In another case, the Board, in a decision dated January 2001, excluded from refugee protection an Iranian asylum seeker for the hijacking of a plane in Azerbaijan, despite the fact that he had been convicted for that act by a Russian court and had served most of his time. In its reasoning, the Board stressed that, given the gravity of the act, extenuating circumstances had to be present for the applicant to escape exclusion. Considering that the he had already traveled to other republics of the former Soviet Union before resorting to hijacking, a fact that diminished the urgency of his action, the Board decided that there were no mitigating circumstances to prevent the application of the Exclusion Clauses. In a similar vein, French courts are generally reported to balance the gravity of the act committed against the severity of the persecution feared.[xxv] However, there is no explicit support for a balancing test in other jurisdictions. In T. v. Secretary of State for Home Department, the UK Court of Appeal held that the Convention does not provide for a balancing test in exclusion procedures.[xxvi] In conclusion, building on the position held by UNHCR and taking into account recent developments of international human rights law, a sufficiently compelling case can be made for the examination of all factors pointing to inclusion, including the treatment likely to be meted out to the applicant in case he were to be excluded, before making a decision in respect of any of the sub-clauses in Article 1 F.
In a number of cases the reasoning of the courts seems to suggest that the prosecution of an asylum seeker in his country of origin provides sufficient evidence for considering him excludable. In re Baljit Singh (1994), a case involving a refugee from Punjab, a UK court held that “the status of refugee should not normally be given to someone facing the legitimate processes of law within his own country properly applied.”[xxvii] Accordingly, Baljit Singh was excluded from protection under the 1951 Convention. In another case in the UK, the Queen’s Bench Division held that the Secretary of State had “quite properly borne in mind that a person who was associated with a terrorist group acting unlawfully in its own country should not normally be given refugee status when facing legitimate processes of law within his own country, where those processes were properly applied.”[xxviii] Empirical data suggests, however, that the line between persecution and prosecution is often blurred. While it is vital to hold perpetrators accountable for their crimes, safeguards need to be put in place to prevent persecution to occur in the disguise of prosecution. The rule of law does not uniformly apply, not even in counties with indisputable democratic credentials, when secessionist claims come into play and the integrity of the state is perceived to be in jeopardy. Decision-makers in exclusion procedures should not easily discard the possibility of the judiciary in a foreign jurisdiction holding mock trials based on motives beyond their jurisdiction. The indictment or conviction by a court in a foreign jurisdiction should give rise to serious reasons for considering an asylum seeker to be excludable only if the decision making body has satisfied itself that the criminal proceedings leading to the indictment or conviction have been conducted in compliance with international standards of procedural fairness.
[i] All EU member states are parties to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Turkey ratified the 1951 Refugee Convention but maintains the geographical limitation, restricting its asylum commitment to applicants from European countries. Non-European refugees are granted temporary asylum in Turkey following a status-determination procedure in which the UNHCR branch office plays a key role.
[ii] See, for example, UNHCR comments on Clause 52 of the U.K. Immigration and Asylum Bill 2005, December 2005. The UNHCR Global Consultations Track Two Expert Roundtable, held in Lisbon in May 2001, specifically dealt with the delicacies of current application of Exclusion and Cessation Clauses under the 1951 Refugee Convention, but discrepancies in their application largely remain.
[iii] Geoff Gilbert, Current Issues in the Application of the Exclusion Clauses (2001), p. 5.
[iv] Jennifer Moore, From Nation State to Failed State, Columbia Human Rights Journal, Vol. 31 (1999), p. 110. Proponents of a unified asylum system, on the other hand, point out that streamlining asylum laws and policies could benefit people in need of international protection in that harmonization may help stem a race to the bottom.
[v] Ranabir Samaddar, Refugees and the State: Practices of Asylum and Care in India (2003), p. 37.
[vi] Sibylle Kapferer, Exclusion Clauses in Europe, International Journal of Refugee Law, Special Supplementary Issue on Exclusion, Vol. 12 (2000), p. 197.
[vii] See K. Schank / P. Galiano, France, in: Carlier et al. (eds.), Who is a Refugee? (1997), p. 422.
[viii] Commission des Recours des Refugiés, French case law on the granting of refugee status (2005), citing the Council of States.
[ix] 2 All ER 865, [1996] 2 WLR 766, available in LEXIS, Legal: UK: case law.
[x] Amnesty International, International Secretariat, News Release, 20 February 2001, EUR 45/007/2001.
[xi] EU Joint Position of 4 March 1996, 96/196/JHA.
[xii] Geoff Gilbert, Current Issues in the Application of the Exclusion Clauses (2001), p. 22, citing: Austrian Administrative Court, Georg K v. Ministry of the Interior, ILR, Vol. 71, p. 284 (1969).
[xiii] Commission des Recours des Refugiés, French case law on the granting of refugee status (2005), citing the Council of States.
[xiv] Nicole Michel, The Way in Which France Applies Article 1 F (c), in: Krieken (ed.), The Exclusion Clause (1999), p. 296.
[xv] CO/706/99 (1999), available in LEXIS, Legal: UK: Case Law.
[xvi] It should also be noted that it remains unclear what evidence the “security service assessment” had provided. The use of secret evidence must be deemed in contravention of basic rights of the suspect as no effective legal defense can be devised to challenge or counter it.
[xvii] James Hathaway & Anne Cusick, Refugee Rights are not negotiable, Georgetown Immigration Law Journal, Vol. 14 (2000), p. 536.
[xviii] The Netherlands State Secretary of Justice stated in a Policy Memo (1997) that with respect to the inter-linkage between Article 1 A and Article 1 F “there is nothing in the text of the Convention to indicate that Article 1 A must be applied first.”
[xix] Vanheule, The Netherlands, in: Carlier et al. (eds.), Who is a Refugee? (1997), p. 522. In the literature, it has been argued that also the Austrian Asylum Act could be construed as providing that an asylum seeker can be found excludable before the question of his meeting the requirements of Article 1 A comes into purview. This reading of the law is little compelling, and, with the inception of the 1997 Asylum Act, also moot. According to the new Article 7 of the Asylum Act (1997), “[a]sylum seekers shall, upon application, be granted asylum by administrative decision of the authority if it is satisfactorily established that they are in danger of persecution in their country of origin (Article 1, Section A (2) 1951 Convention) and none of the grounds set forth in the Cessation or Exclusion Clauses in Article 1, Section C or F, of the Geneva Convention on Refugees is present.”
[xx] Similarly, in expedited removal procedures in the US, a genuine refugee who admits to a conviction in his country of origin may find himself barred from a credible fear hearing and thus deprived of the opportunity to show that the conviction was an act of persecution. See Kathleen Keller, US (Non) Compliance with its Duty of Non-Refoulement, Yale Human Rights & Development Law Journal, Vol. 2 (1999), p. 204.
[xxi] European Council on Refugees and Exiles, Position on Exclusion (2004), para. 8.
[xxii] Nicole Michel, The Way in Which France Applies Article 1 F (c), in: Krieken (ed.), The Exclusion Clause (1999), pp. 294-299.
[xxiii] Geoff Gilbert, Current Issues in the Application of the Exclusion Clauses (2001), p. 21, invoking Article 62 Vienna Convention on the Law of Treaties. According to Gilbert, the absurd situation would be reached in the following scenario: A person commits a serious non-political crime in country A, “Arcadia”, and flees to country B, “Ruritania”. Given the political situation in Arcadia, it is safe to say that, if returned to that country, his life would be threatened. Under the regime of Article 1 F (b), the Ruritanian authorities can deport that person even if the only state to which he can return would be Arcadia.
[xxiv] James C. Hathaway & Colin J. Harvey, Framing Refugee Protection in the New World Disorder, Cornell International Law Journal, Vol. 34, No. 2 (2001), pp. 257-320.
[xxv] Nicole Michel, The Way in Which France Applies Article 1 F (c), in: Krieken (ed.), The Exclusion Clause (1999), p. 294-299.
[xxvi] Court of Appeals, T. v. Secretary of State for Home Department [1995], Imm A.R. 142. Geoff Gilbert, Current Issues in the Application of the Exclusion Clauses (2001), p. 20, cites Canada, the UK and the US as examples for jurisdictions opposing the application of a balancing test.
[xxvii] Vanheule, United Kingdom, in: Carlier et. al. (eds), Who is a Refugee? (1997), pp. 604-6.
[xxviii] Sibylle Kapferer, Exclusion Clauses in Europe, International Journal of Refugee Law, Special Supplementary Issue on Exclusion, Vol. 12 (2000), p. 203.
[xxix] European Council on Refugees and Exiles, Position on Exclusion (2004), para. 4.
[xxx] Article 3 ECHR stipulates that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
[xxxi] International Journal of Refugee Law, Special Supplementary Issue on Exclusion, Vol. 12 (2000), p. 322.
[xxxii] Journal of Refugee Law, Special Supplementary Issue on Exclusion, Vol. 12 (2000), p. 259.
[xxxiii] James C. Hathaway & Colin J. Harvey, Framing Refugee Protection in the New World Disorder, Cornell International Law Journal, Vol. 34, No. 2 (2001), pp. 257-320.
[xxxiv] Geoff Gilbert, Current Issues in the Application of the Exclusion Clauses (2001), p. 24.
[xxxv] European Commission against Racism and Intolerance, Second Report on Denmark, 16 June 2000.
[xxxvi] Commission of the European Communities, EU Commission proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States, April 3, 2001, 2001/0091 (CNS).
[xxxvii] Van Krieken, Germany and Article 1 F, AWR, Vol. 38 (2000), p. 195. In some countries, the deprivation of social benefits is a scheme applied on a broader scale. The Austrian Federal Act on Assistance to Asylum Seekers governs the provision of social assistance granted to asylum seekers under the “federal assistance scheme” during the asylum procedure. Under the scheme, a large number of asylum seekers do reportedly not receive public assistance.
[xxxviii] European Council on Refugees and Exiles, Position on Exclusion (2004), para. 11. A seminar on Article 1 F and Afghan asylum seekers held in Amsterdam went as far as concluding that if an applicant is excluded from refugee status, international law imposes a “legal obligation” to proceed to prosecution, see Geoff Gilbert, Current Issues in the Application of the Exclusion Clauses (2001), p. 4.
[xxxix] A breakthrough for the application of the principle of universal jurisdiction was the so called “Butare Four” trial before the Brussels Cour d’Assises in 2001. For the first time, individuals were tried under a 1993 law, which allowed Belgian courts to judge war crimes and other human rights violations committed on foreign soil by persons other than residents or citizens of Belgium.