Table of Contents
1. Exclusion in Asylum Law
2. Legal framework
2.1. Examples at National Level
3. Exclusion Assessment
1. Exclusion in Asylum Law
Exclusion is a rare circumstance in the asylum procedure. The criteria to establish inclusion exactly like exclusion are set out in the Convention Relating to the Status of Refugees, from now on 1951 Refugee Convection. An asylum seeker who applied for international protection will go through an assessment done by an authority establishing whether he or she is entitled for international protection. If the person is entitled to protection according to the refugee definition stated in the 1951 Refugee Convection the person will be included. Being included means that the person needs protection because he or she has been forced to flee his or her country because of persecution, a refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group. Being included is also a prerogative for exclusion, a person cannot be excluded if he or she is first not included. The principle of exclusion is that the person who applied for asylum does not deserve protection. The aim of the 1951 Refugee Convection is to protect potential victims, not to protest criminals, therefore it does not have to be misused. The reason for not deserving protection can be mainly three. The first case is when the person is already beneficiary of protection, because he or she receives assistance from organs or agencies of the United Nations. The second scenario is when the person is recognised by the competent authorities of the country in which he or she has taken residence as having the same rights and obligations of the citizen in possession of the nationality of that country. The third and maybe most controversial scenario is when the person claiming asylum is responsible of a crime or an act so serious that the person is not considered to deserve protection. This article will analyse into detail which crimes and acts are taken in consideration. This article will first give an introduction of the legal framework of exclusion. In the second part it will analyse in depth the steps of the exclusion assessment, referring to experts such as EASO and the UNHCR. The article will conclude with a summary of the findings.
2. Legal framework
The Refugee Convection signed in 1951 brought together states who agreed that there is the need to protect people who fears persecution due to their race, religion, political opinion, belonging to a social group or their nationality. The same Convention who gives the definition of refugee and the criteria also states that is some particular cases cessation and exclusion criteria can be applied. Art. 1 D, E, F of the 1951 Refugee Convection set the exclusion criteria which are the followings:
D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.
E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
The first two are very clear conditions, while the most controversial is the application of Art. 1 F. Experts suggest not to adopt Art. 1 F (c) since it is the most vague definition and can be easily misinterpreted and misused. The United Nations agreed in “Preamble, Purposes and Principles of the Charter of the United Nations
Signed in San Francisco, California on June 26, 1945” on their principles and purposes. Their purposes are: to maintain international peace and security, to develop friendly relations among nations, to achieve international co-operation in solving international problems, and to be a centre for harmonizing the actions of nations in the attainment of these common ends.
The principles of the United Nations according to Art. 2 of the same Charter are: the sovereign equality of all its Members; all Members shall fulfil in good faith the obligations assumed by them in accordance with the present Charter; all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered; all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations; all member shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action and the Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters, which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. The 1951 Refugee Convection represent the legal framework at international level. However, it is of foremost importance to consider that at the European level there is the Qualification Directive, which has to be implemented as well. It is relevant because is states the criteria for subsidiary protection, which is another form of international protection. The qualification Directive refers back to the exclusion criteria set out in the 1951 Refugee Convection and states that these shall also apply in case the person is not eligible for refugee status, however there is reason to believe that the Applicant will face a serious harm, as defined by the terms contained within Art.15 of the Council Directive 2011/95 EU. The EU directive Art. 17 also includes the following paragraphs in case of a person eligible for subsidiary protection, but the authority responsible considers to exclude him or her:
“(d) he or she constitutes a danger to the community or to the security of the Member State in which he or she is present.
2. Paragraph 1 applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein.
3. Member States may exclude a third-country national or a stateless person from being eligible for subsidiary protection if he or she, prior to his or her admission to the Member State concerned, has committed one or more crimes outside the scope of paragraph 1 which would be punishable by imprisonment, had they been committed in the Member State concerned, and if he or she left his or her country of origin solely in order to avoid sanctions resulting from those crimes.”
2.1. Examples at National Level
As set in Art. 17 (3) of the qualification Directive member states may exclude an Applicant who committed a crime before entering the member states. However, it is not rare to find other adds to these criteria, for example is the Applicant represent a threat for the national security of the country, criteria which are in accordance to Art. 17 of the Qualification Directive. In the German law, for example, in accordance to Art. 60 (8) 1 of the Aufenthaltsgesetz the person who represents a serious danger for the community, this is the case in which the person was sentenced to at least three years prison, can be subject to exclusion. (AsylGsetz) In the Italian law the criteria are similar, the person can be excluded according to Art. 1 (D, E, F) of the 1951 Refugee Convection, but also if the persons represents a danger for the security of the state and its community, this would be the case if he or she is sentenced for a serious crime. (ASGI, 2013) As shown with these two examples national law can contribute by applying other criteria, which however, do not have to be opposing to the international and European law.
3. Exclusion Assessment
Experts agree on the steps to follow when analysing exclusion. The first step is to understand whether the Article 1 D, E, F are triggered. Since the first two are quite straightforward, this section of the article will analyse into depth the exclusion assessment of Art. 1 (F). The second step in this case is to characterise the act; third is to analyse the individual responsibility and fourth is the proportionality assessment. The first step in the analysis is to search for any indication that the Applicant may have been associated with acts within the scope of Art. 1F. If there is no indication there will be no need to analyse an eventual exclusion. If there is any indication it is important to begin the analysis very carefully and assess whether the criteria for exclusion are met. These indications could involve the Applicant him or herself, the Applicant�s profile, experiences, affiliations, but also of a third party or any other suggestion like an extradition request. The second step is to characterise the acts. It is important to identify the acts and to decide whether they fall within the criteria of art. 1 F (a), (b) or (C). A detailed guidance of these acts is provided by the Background Note on Exclusion at paragraphs 23-49. It is importanto to distinguish between 1 F (a) war crimes, (b) crimes against humanity, and (c) serious non-political crimes. EASO Guidance explains that in this step the factors which have to be taken into account in relation to a war crime are the act, the context, and the actor. The act includes the planning, preparation, initiation and waging of a war aggression or any armed conflict in violation of international treaties and agreements. The crimes against peace can be committed only in the case of an international armed conflict, hence the importance of establishing if there is an international armed conflict or not. Furthermore, the actor has to be analysed, during international armed conflicts it is common that a state declares war to another state or state-like entity; while a crime against peace is usually committed by individuals in a high position representing a state, or similar. (EASO, 2017 pg. 21) When it is a war crime, the asylum officer has to consider the following: if the war crime is a serious violation of international humanitarian law and whether it entails individual responsibility directly under international law. War crimes can only be committed in the context of an armed conflict, this conflict can be international or non. It is also important to establish the reason and the nature behind the conflict. It is relevant to distinguish that not all crimes committed in the time of a conflict are war crimes, this is because combatant who are fighting are not considered to commit a war crime as long as they follow the rules of the international humanitarian law. In the case of a person who is eligible for refugee status or subsidiary protection, there is need to conduct a personal assessment. War crimes are listed under Art. 8 of the Rome Statute, under the �Grave Breaches� provisions of the 1949 Geneva Conventions and Additional Protocol I, common Article 3 and relevant provisions of Additional Protocol II, the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) and Statute of the International Criminal Tribunal for Rwanda (ICTR). Moreover there should be a link between the crime and the conflict, did the armed conflict take place at the time of the crime? Did the act in question take place in connection with the armed conflict and is it associated to it? Was it an international or non-international armed conflict at the time of the crime? EASO also suggests that the crime can be committed by anybody, also civilians. Furthermore, if it is the case of a war crime the object has to be established, the crime has to be committed against protected persons or objects. Protected persons or objects can be civilians or cultural objects. Another object that has to be established is whether there has been a use of unlawful weapons or other means of warfare. EASO (2017) further explains the specific mental element, which requires knowledge about the factual circumstances and the protected status of person or objects. Some war crimes could also have an additional specific mental element, like in the case of the war crimes of treacherously killing or wounding, hostage taking. In case of a crime against humanity the elements which have to be considered are the followings: it is a crime against humanity when it is committed as part of a widespread or systematic attack against civilians. The EASO Guidance (2017) mentions murder, extermination, torture, rape, political or religious persecution as examples. Another inhumane acts reach the threshold of crimes against humanity if they are part of a widespread or systematic attack against civilians. In the legal context, the definition is found in Art. 7 of the Rome Statute. Moreover, it has to be established whether the attack is directed to a civilian population, and also if it is during an armed conflict or not, if it is during an armed conflict this would include person who do not (anymore) take part in the conflict. It could also be the case of isolated inhuman acts, which are not considered as crimes against humanity, in that case they would fall under the category of serious non-political crimes. The main difference between the war crime and a crime against humanity is that the latter one can be committed also during a peacetime, not only during a conflict. The last element which has to be considered is the specific mental element, in this case the crime has to be committed by a person who had the knowledge of the attack. The EASO Guidance (2017) also states that some of these crimes require an additional intent, like in the case of persecution and genocide.