The present work takes a closer look at the rare case of exclusion in asylum law. This article will analyse into detail which crimes and acts are taken in consideration. First, it will 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.
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 Convention. 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 Convention 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 Convention 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.
Table of Contents
1. Exclusion in Asylum Law
2. Legal framework
2.1. Examples at National Level
3. Exclusion Assessment
4. Conclusion
Research Objectives and Core Themes
This paper examines the rare but significant legal procedures regarding the exclusion of individuals from international protection under the 1951 Refugee Convention, with a specific focus on Article 1F. It aims to clarify the criteria for exclusion, the steps of the assessment process, and the necessary evidentiary standards required to ensure that the exclusion mechanism is not misused against those deserving of asylum.
- The legal foundations of exclusion under the 1951 Refugee Convention and EU directives.
- Distinctions between war crimes, crimes against humanity, and serious non-political crimes.
- The step-by-step methodology for conducting a professional exclusion assessment.
- The critical importance of proportionality assessments and individual responsibility in legal proceedings.
- Analysis of evidentiary burdens and the standard of proof required in exclusion cases.
Excerpt from the Book
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.
Chapter Summaries
1. Exclusion in Asylum Law: This chapter introduces the rare legal practice of excluding individuals from international protection, explaining that exclusion applies only to those who would otherwise qualify for refugee status.
2. Legal framework: This section details the specific articles of the 1951 Refugee Convention and EU directives that establish criteria for excluding applicants from protection.
2.1. Examples at National Level: This subsection provides practical examples from German and Italian national law to illustrate how states implement exclusion criteria in compliance with international standards.
3. Exclusion Assessment: This chapter outlines the rigorous, multi-step analytical process that authorities must follow when determining if an individual's past actions warrant exclusion.
4. Conclusion: The concluding chapter summarizes the necessity of caution in exclusion assessments, emphasizing the higher burden of proof and the potential consequences for applicants.
Keywords
Asylum Law, 1951 Refugee Convention, Exclusion Clauses, International Protection, Article 1F, War Crimes, Crimes Against Humanity, Subsidiary Protection, Legal Framework, Burden of Proof, EASO, UNHCR, Proportionality Assessment, Individual Responsibility, Refugee Status.
Frequently Asked Questions
What is the primary focus of this paper?
The paper focuses on the legal mechanism of "exclusion" within asylum procedures, explaining how and why individuals who might otherwise be eligible for protection can be legally excluded under international and European law.
What are the main thematic areas covered?
The work covers the legal provisions of the 1951 Refugee Convention, the definition of various crimes (war crimes, crimes against humanity), national implementation examples, and the procedural steps for conducting exclusion assessments.
What is the primary goal of the author?
The goal is to provide a detailed, step-by-step analysis of how exclusion should be assessed, ensuring that asylum officers balance the integrity of the protection system with the serious consequences exclusion has for the applicant.
Which scientific methods are applied?
The author employs a legal-analytical method, reviewing international treaties, EU directives, and expert guidance from bodies like the UNHCR and EASO to construct a framework for proper exclusion assessment.
What is the core content of the main section?
The main section details the four-step exclusion assessment: identifying triggers, characterizing the act, assessing individual responsibility, and performing a proportionality test.
Which keywords best describe the work?
Key terms include Asylum Law, 1951 Refugee Convention, Article 1F, Exclusion Clauses, and Proportionality Assessment.
Why is Art. 1F(c) considered controversial by experts?
Experts view Art. 1F(c) as controversial because it is defined using vague language ("acts contrary to the purposes and principles of the UN"), which increases the risk of misinterpretation and misuse in legal proceedings.
How does the burden of proof in exclusion cases differ from standard asylum claims?
The burden of proof in exclusion cases is higher than the "reasonable degree of likelihood" used for inclusion; it requires "serious reasons to consider" that the applicant committed excludable acts.
What role does the "proportionality assessment" play?
The proportionality assessment serves to balance the severity of the crimes committed by the applicant against the personal consequences of being excluded, acting as a final safeguard for professional decision-making.
- Citar trabajo
- Amelia Martha Matera (Autor), 2018, Exclusion From Protection in Asylum Law, Múnich, GRIN Verlag, https://www.grin.com/document/455168
