Exclusion and decision not to grant refugee status

Summary

• Exclusion
• Decision not to grant refugee status

Exclusion

Excluding an individual from international protection is an exception to the right for anyone to seek asylum and benefit from asylum where they are subject to persecution .

Exclusion clauses exist because the acts of certain individuals are so serious that they do not deserve to receive international protection. What is more, in this context the legal framework for asylum must not be a means of protecting criminals from due justice.

Articles L.711-3, L.711-4, L.712-2 and L.712-3 of the Code for Entry and Residence of Foreigners and Right of Asylum ( CESEDA ) determine the legal framework for exclusion, defined in Article 1F. Refugee status or the benefit of subsidiary protection is not granted to someone who meets the grounds of an exclusion clause.

Refugee status or the benefit of subsidiary protection is withdrawn when the refugee or beneficiary of subsidiary protection should have been excluded or, in light of circumstances that have arisen since such status or benefit was granted, now needs to be excluded.

After determining whether or not the stated fears or threats in the event of a return are well-founded, Ofpra may exclude from the benefit of protection any person with respect to whom there are serious reasons for considering that :

• regarding refugee status (Article 1F of the Geneva Convention)

a) he has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments ;

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.

Pursuant to Article 1Fa :

Crimes against peace are defined as the planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances, and participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned hereunder.

War crimes are defined as serious violations of the laws and customs applicable in armed conflict. They can be perpetrated in national and international contexts of armed conflict.

Crimes against humanity are defined as acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. They differ from war crimes in that they may be perpetrated in times of peace. Crimes against humanity also include genocide.

Article 1Fa has particularly been applied to nationals of Rwanda and the Former Yugoslavia in reference to the notion of crime against humanity and, more exactly, that of genocide. The incriminated acts are genocide, genocidal intent, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide.

Pursuant to Article 1Fb :

In principle, this Article bears on crimes committed for personal reasons (e.g. vengeance or profit) as well as those which, accomplished in a political aim, are characterised by a particular violence/severity in light of the end goals (e.g. assassinations, and even terrorism).

Regarding the qualification of a serious crime, Ofpra does not refer to the definition given in French criminal law. As such, the extent of severity is associated both with the type of crime, the damage caused, the judicial proceedings employed in similar cases and the type of sentence handed down. A crime can be qualified as "serious" when it harms the physical integrity, life or freedom of an individual.

Pursuant to Article 1Fc :

This concerns violations of human rights and fundamental freedoms (e.g. murders, tortures, arbitrary detention) as well as acts of terrorism. The acts coming under Article 1Fc must generally have an international dimension, threatening the very foundations of the coexistence of the international community. Although it appears that this clause has initially concerned individuals having participated in the exercise of power in a State or a State-like entity, over and above heads of State and other high-ranking officials, lower-grade officials as well as members of militias and non-State organisations have also been excluded on the grounds of Article 1Fc, since the international impact of the crime committed prevails over its perpetrator's individual position.

Irrespective of the act of exclusion identified, Article 1Fc can be enforced against individuals who have played a direct or indirect part in its decision, preparation or execution.

Furthermore, contrary to Paragraph b) of Article 1F, there is no restriction in terms of time and place for the acts committed pursuant to paragraphs a) and c). This means that the act may have been committed before leaving the country of origin. It may also have taken place after reaching the country of refuge. Regarding the place of commission, this may be the country of origin, a third country or the country of refuge.

The burden of proof lies with Ofpra. It is reversed, thereby creating the presumption that the individual will be excluded, where the latter has been indicted by an international criminal court or is a high-ranking official in a repressive government or a member of an organisation involved in unlawful violence.

Ofpra may, however, grant international protection to an asylum seeker coming under one of the three aforementioned cases of exclusion where one or more cause(s) for exoneration have been identified (legitimate defence, superior orders, duress, expiation, a minor or fragmentation).

• regarding subsidiary protection (Article L.712-2), Ofpra may exclude from the benefit of subsidiary protection any person with respect to whom there are serious reasons for considering that

a) the asylum seeker's situation bears on one of the aforementioned provisions of Article 1F of the Geneva Convention, it being highlighted that, pursuant to b), serious non-political crimes committed in France can also be considered ;

b) the asylum seeker has committed, prior to entering France, one or more crimes not coming under the provisions of Article 1F of the Geneva Convention that would be punishable by a prison sentence if they had been committed in France and the asylum seeker has only left his/her country of origin to escape punishment of said crime ;

c) the asylum seeker's activities on French soil pose a serious threat to public order, public safety or State security.

Decision not grant refugee status

Pursuant to Article L.511-6 of the CESEDA , refugee status can be refused :

• where there are serious reasons to consider that the asylum seeker 's presence in France poses a serious threat to State security ;
• where the person has been convicted in France for a crime or offence constituting an act of terrorism or has been given a ten-year prison sentence and his/her presence poses a serious threat to society.

Refugee status may also be withdrawn on the same grounds.