I. Exclusion of Refugee Status: The Criminal Refugee (*)
In the western world it is possible that you live next to a war criminal. It is also possible to live there without a real prospect of obtaining a form of legal status and without being held criminally responsible for an alleged crime. Who are these people living in legal limbo? why are they still here?
Article 1F of the 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention) excludes the applicant from refugee status. It reads as follows:
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
(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 test for exclusion under article 1F is that there be 'serious reasons for considering' that the person in question has committed an article 1F crime. In civil law countries it is not necessary to prove this assumption according to the standard of proof in criminal law, while in common law countries it would appear that the notion of serious grounds for considering is seen as a standard of proof which is lower than the civil standard of balance of probabilities. It is very common that an excluded person is not prosecuted because of a finding by the public prosecutor that there is not sufficient criminal evidence for a prosecution. If there are serious reasons to consider that the person in question committed one of the crimes under article 1F then he himself has to prove otherwise. In Europe, the Netherlands apply article 1F more often than other European states. Between 2008-2011 103 asylum claimants have been excluded. However, since the Refugee Convention entered into force, there have been a number of developments in international human rights law that complicate the application of the exclusion clause.
Article 33 (1) of the Refugee Convention embodies the obligation of non-refoulement, which prohibits the expulsion or return of a refugee in any manner whatsoever to the borders of a territory where his or her life or freedom would be threatened on account of his or her race, religion, nationality, political opinion, or membership of a particular social group. Excluded persons, as they are not Convention refugees, are removable unless they can rely on another human rights prohibition against refoulement. The international human rights protection from non-refoulement is a form of (alternative) protection, which goes beyond the protection envisaged in the Refugee Convention. The major guarentees of non-refoulement are to be found in the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT), the International Convention for the Protection of All Persons from Enforced Disappearance and the European Convention on Human Rights (ECHR). Everyone within the jurisdiction of a State party to these treaties shall not be returned to a place where their right to be free from torture will not be respected, and in the case of the ECHR, their right to be free from 'inhuman or degrading treatment or punishment', as well. The prohibition against torture and other ill treatment is absolute and non-derogable. Thus, as Gilbert notes 'even if international refugee law will not provide protection for serious non-political criminals, international human rights law is still available'.
Allthough in most cases these human rights instruments will not be violated according to immigration authorities and judiciary, in the cases where immigration authorities have decided that these instruments do prohibit refoulement, the situation arises where you have criminal refugees on your territory who can't be expelled because of human rights obligations and who are not entitled, because of their criminality, to a regular type of immigration status. When expulsion cannot take place for a long period, there should be a choice to grant these aliens some form of legal resident status, as long as they themselves have not created the obstacles to their departure. Taking the Dutch solution as an example, as it is according to Rikhof the most sophisticated, if the person has found himself for more than 10 years (from the date of the initial claim to refugee status) in a situation that he cannot be expelled because of human rights concerns, there is no prospect of change in this situation in the near future, and departure to a third country has proven to be impossible in spite of sufficient efforts and the person is in an exceptional situation in the Netherlands, he can obtain a temporary residence permit. Rikhof adds another criterium: the level of involvement of a person in the crimes (allegedly) committed. As long as these criteria are considered reasonably and not too restrictive, it could be a possible solution for the aliens living in legal limbo.
A separate category concerns children of 1F-asylum seekers who cannot be expelled. According to article 3 of the Convention of the Rights of the Child (CRC) the interest of the child should be the first consideration for any measure regarding children. When striking a fair balance between the interests of the child and the state, immigration authorities should motivate in which ways the interest of the child have been weighed. In my view the best interests of the child are not met when their time in legal limbo exceeds five years.
* child soldiers and witnesses of international criminal tribunals are not covered by this blog
This is the first of a series of blogs on current issues in international refugee law. The other blogs will consider the following issues: II. Border Controls and Human Rights: Migration in the Mediterranean and III. The Protection of People Fleeing Armed Conflict.
A selection of relevant publications from the Peace Palace Library collection
- Gilbert, G., "Current Issues in the Application of the Exclusion Clauses", in E. Feller, V. Türk and F. Nicholson (eds.), Refugee Protection in International Law : UNHCR's Global Consultations on International Protection, 2003, pp. 425-478.
- Hathaway, J.C., The Law of Refugee Status, Toronto, Butterworths Canada, 1991.
- Rikhof, J., The Criminal Refugee: the Treatment of Asylum Seekers with a Criminal Background in International and Domestic Law, Dordrecht, Republic of Letters, 2012