Inclusion before Exclusion or Vice Versa?

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Inclusion before Exclusion or Vice Versa?
29 May, 2008 Best Practices for Refugee Status
Determination Prato

• David Kosar
• Supreme Administrative Court of the Czech
  Republic
• Masaryk University, Brno
• david.kosar_at_nssoud.cz

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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

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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

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• Inclusion before Exclusion
• under GC1951

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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.

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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.

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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.

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GC 1951 State Practice

• 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)
• Inclusion before exclusion, but only for
  Art.1F(b)
• earlier NZ approach (Re S.K., No. 29/91)
• Inclusion before exclusion
• DEN, FRA
• Unsettled case law
• Czech Rep., Belgium

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GC 1951 Doctrinal Views

• 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
• Inclusion before exclusion, but only for
  Art.1F(b)
• Geoff Gilbert Art 1F(b) speaks clearly of
  refugees
• 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

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GC 1951 UNHCRs 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.

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GC 1951 UNHCRs 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 applicants 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.

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GC 1951 UNHCRs 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)

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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
• Slippery slope arguments
• Criminal paradigm arguments
• Procedural arguments
• Pragmatic arguments

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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)

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• Inclusion before Exclusion
• under EC Law

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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.

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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
• gt QD refugee formula merger of inclusion
  exclusion clauses

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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,

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EC Law Qualification Directive IV.

• Art. 4(1) Art. 4(2) gt MS must ALWAYS assess
  the reasons for applying for international
  protection.
• What does must assess mean?
• Inclusion before exclusion
• Arts. 2(c) and 12(2) QD counsel strongly against
  it
• QD distinguishes the hearings stage and the
  determination stage gt inclusion must be
  addressed in the hearings stage
• where Gurung and the NZRSAA provides guidance,
  the QD imposes an obligation

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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)
• gt PD is silent
• but drafting history eliminates inclusion before
  exclusion

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• Concluding remarks

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Concluding remarks

• GC1951
• gt Exclusion before inclusion
• no support for distinction between the hearings
  determination stage
• European Asylum Acquis
• gt 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

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Thank you very much for your attention!
David Kosar Supreme Administrative Court of the
Czech Republic Masaryk University,
Brno 4775_at_mail.muni.cz, david.kosar_at_nssoud.cz