Transcript No Slide Title

29 May, 2008
Best Practices for Refugee Status Determination
Prato
Inclusion before Exclusion or Vice Versa?
David Kosar
Supreme Administrative Court of the Czech Republic
Masaryk University, Brno
[email protected]
Framework of the Presentation
•
Inclusion before Exclusion under GC1951
– Wording of GC1951
– State practice + Jurisprudence
– Doctrinal views
– Position of the UNHCR
– Policy arguments
•
Inclusion before Exclusion under EC Law
– Qualification Directive
– Procedures Directive
•
Concluding remarks
Terminology
•
Inclusion before Exclusion
= the view that according to the CSR51 the
application of the inclusion clause must
precede the application of the exclusion
clause
•
Exclusion before Inclusion
= the view that according to the CSR51 the
application of the exclusion clause may
precede the application of the inclusion
clause
Inclusion before Exclusion
under GC1951
GC 1951 – Wording I.
•
•
Art. 1F (Exclusion): “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.”
Art. 32 § 1 (Expulsion): “The Contracting States
shall not expel a refugee lawfully in their territory
save on grounds of national security or public
order….”
GC 1951 – Wording II.
•
Art. 33 (Non-refoulement):
“1. No Contracting State shall expel or return
("refouler") a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom
would be threatened on account of his race,
religion, nationality, membership of a particular
social group or political opinion.
2. The benefit of the present provision may not,
however, be claimed by a refugee whom there are
reasonable grounds for regarding as a danger to
the security of the country in which he is, or who,
having been convicted by a final judgement of a
particularly serious crime, constitutes a danger to
the community of that country.“
Other Instruments
•
Art. 14 UDHR48
“(1) Everyone has the right to seek and to enjoy in
other
countries
asylum
from
persecution.
(2) This right may not be invoked in the case of
prosecutions genuinely arising from non-political
crimes or from acts contrary to the purposes and
principles of the United Nations.”
•
Art. 31 VCLT69 = Basic rule of treaty
interpretation
“1. A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light
of its object and purpose.“
GC 1951 – State Practice
1. Exclusion before inclusion
•
AUS (MIMA v Singh), AUT (VwGH, 29.10.1993, No.
93/01/0985), CAN (Gonzales), UK (Gurung), NL
[Council of State, 8 April 1991 (RV 1991, 5)], NZ
(NZRSAA, No. 74796)
2. Inclusion before exclusion, but only for Art.1F(b)
•
earlier NZ approach (Re S.K., No. 29/91)
3. Inclusion before exclusion
•
DEN, FRA
4. Unsettled case law
–
Czech Rep., Belgium
GC 1951 – Doctrinal Views
1. Exclusion before inclusion
–
Goodwin-Gill & McAdam (2007 ed.)
•
–
Art. 1 F speaks about “persons” (not “refugees”)
Hathaway & Harvey
•
Art. 14 § 2 UDHR48 is absolute bar
2. Inclusion before exclusion, but only for Art.1F(b)
–
Geoff Gilbert: Art 1F(b) speaks clearly of ‘refugees’
3. Inclusion before exclusion
–
–
–
Jean-Yves Carlier: “you must be first in before you are
out”
Michael Bliss: exclusion first is inconsistent with
general principles of procedural fairness
LCHR & ECRE: Art. 1 F ≠ admissibility test
GC 1951 – UNHCR’s view I.
•
UNHCR Handbook
“141. Normally it will be during the process of
determining a person's refugee status that the facts
leading to exclusion under these clauses will
emerge.
176. An application for refugee status by a person
having (…) used force, or to have committed acts of
violence of whatever nature and within whatever
context, must in the first place--like any other
application--be examined from the standpoint of the
inclusion clauses ….
177. Where it has been determined that an
applicant fulfils the inclusion criteria, the question
may arise as to whether … he may not be covered
by the terms of one or more of the exclusion
clauses….”
GC 1951 – UNHCR’s view II.
•
UNHCR GUIDELINES ON INTERNATIONAL
PROTECTION: Application of the Exclusion
Clauses
“31. … The exceptional nature of Article 1F
suggests that inclusion should generally be
considered before exclusion, but there is no rigid
formula. Exclusion may exceptionally be considered
without particular reference to inclusion issues
(i) where there is an indictment by an international
criminal tribunal;
(ii) in cases where there is apparent and readily
available evidence pointing strongly towards the
applicant’s involvement in particularly serious
crimes, notably in prominent Article 1F(c) cases,
and
(iii) at the appeal stage in cases where exclusion is
the question at issue.”
GC 1951 – UNHCR’s view III.
•
The Background Note to 2003 UNHCR
Guidelines
– “The holistic approach allows for
flexibility, taking into account the nature
of the particular case … as it [for
instance]
prevents
unnecessary
consideration of Article 1F in cases
where non-inclusion arises.”
– “Inclusion before exclusion also enables
a
fuller
understanding
of
the
circumstances
and
international
protection
concerns
about
family
members to be addressed.” (§ 100)
GC 1951 – Policy Arguments
•
Argument of Judicial Economy
–
•
“Where there is a choice between a construction
of the Convention that would further [speedy,
economical and efficient] decision-making …
and one that would frustrate those objectives,
the former construction should be preferred.”
(Kirby J in Singh)
VS
4 categories of arguments for ‘inclusion first’
1.
2.
3.
4.
‘Slippery slope’ arguments
‘Criminal paradigm’ arguments
Procedural arguments
Pragmatic arguments
GC 1951 – Conclusions
•
•
‘general purpose of Art. 1(F) is not the protection of
the society of refuge from dangerous refugees,
whether because of acts committed before or after
the presentation of a refugee claim; that purpose is
served by Art. 33 ... Rather, it is to exclude ab initio
those who are not bona fide refugees at the time of
their claim for refugee status.’ (Pushpanathan)
‘Art. 1F is expressed as an exception. If it is
satisfied, the provisions of the Convention are said
not to apply to the person in question. If the
provisions of the Convention do not apply to the
person, the person cannot be entitled to protection
under the Convention. … The preferable solution is
to read the reference to "admission ... as a refugee"
as a reference to putative admission as a refugee’.
(Singh)
Inclusion before Exclusion
under EC Law
EC Law – Qualification Directive I.
Art. 12(2):
”A third country national or a stateless person is
excluded from being a refugee where there are serious
reasons for considering that:
(a) he or she 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 or she has committed a serious non-political
crime outside the country of refuge prior to his or her
admission as a refugee; which means the time of
issuing a residence permit based on the granting of
refugee status; …
(c) he or she has been guilty of acts contrary to the
purposes and principles of the United Nations as set out
in the Preamble and Articles 1 and 2 of the Charter of
the United Nations.”
EC Law – Qualification Directive II.
•
Art. 2 (c): ”[refugee = TCN] who, owing to a
well-founded fear of being persecuted for
reasons of …, is outside the country of
nationality and is unable … to avail himself
or herself of the protection of that country,
…, and to whom Article 12 does not apply”
• Art. 12(2) QD ≈ Article 1F of the GC1951
• Art. 13: “Member States shall grant refugee
status to a third country national …, who
qualifies as a refugee …”
=> QD refugee formula = merger of inclusion +
exclusion clauses
EC Law – Qualification Directive III.
•
Art. 4: “1. … In cooperation with the applicant it is
the duty of the Member State to assess the relevant
elements of the application.
2. The elements referred to in of § 1 consist of the
applicant's statements and all documentation at the
applicants disposal regarding the applicant's …
background … and the reasons for applying for
international protection.
3. The assessment of an application for
international protection is to be carried out on an
individual basis and includes taking into account:
(a) all relevant facts as they relate to the country of
origin at the time of taking a decision on the
application; …;
(b) the relevant statements and documentation
presented by the applicant …;
(c) the individual position and personal
circumstances of the applicant, …“
EC Law – Qualification Directive IV.
•
Art. 4(1) + Art. 4(2) => MS must ALWAYS
assess the reasons for applying for
international protection.
• What does ‘must assess’ mean?
1. Inclusion before exclusion
•
Arts. 2(c) and 12(2) QD counsel strongly
against it
2. QD distinguishes the hearings stage and
the determination stage => inclusion
must be addressed in the hearings stage
= where Gurung and the NZRSAA provides
guidance, the QD imposes an obligation
EC Law – Procedures Directive
•
•
Preambular §§ 10, 13, 22
Art. 3(1): PD applies to “all applications for
asylum”
• Art. 8(2): “decisions by the determining
authority on applications for asylum are taken
after an appropriate examination”.
• No accelerated procedure (x First Proposal PD)
• Not “manifestly unfounded” (x Amended Proposal PD)
=> PD is silent
– but drafting history eliminates ‘inclusion
before exclusion’
Concluding remarks
Concluding remarks
•
GC1951
=> ‘Exclusion before inclusion’
– no support for distinction between the
hearings & determination stage
• European Asylum Acquis
=> ‘Exclusion before inclusion’
– inclusion must be addressed in the
hearings stage!!!
• Holistic approach (Art.1F alongside Art.1A)?
– no support in the text of the GC1951
– argument of judicial economy
– ‘belt-and-brace’ approach is dangerous
Thank you very much
for your attention!
David Kosař
Supreme Administrative Court of the Czech Republic
Masaryk University, Brno
[email protected], [email protected]