Inclusion before Exclusion or Vice Versa?

1. 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 david.kosar@nssoud.cz

2. 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

3. Terminology • Inclusion before Exclusion = the view that according to the CSR51 the application of the inclusion clause mustprecede the application of the exclusion clause • Exclusion before Inclusion = the view that according to the CSR51 the application of the exclusion clause mayprecede the application of the inclusion clause

4. Inclusion before Exclusion under GC1951

5. 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….”

6. 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.“

7. 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.“

8. 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

9. 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

10. 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….”

11. 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.”

12. 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)

13. 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

14. 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 initiothose 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)

15. Inclusion before Exclusion under EC Law

16. 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.”

17. 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

18. 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, …“

19. 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? • Inclusion before exclusion • Arts. 2(c) and 12(2) QD counsel strongly against it • 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

20. 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’

21. Concluding remarks

22. 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

23. Thank you very much for your attention! David Kosař Supreme Administrative Court of the Czech Republic Masaryk University, Brno 4775@mail.muni.cz, david.kosar@nssoud.cz