Inclusion before Exclusion or Vice Versa?

Slides:



Advertisements
Similar presentations
1 Essentials of Migration Management for Policy Makers and Practitioners Section 1.6 International Migration Law.
Advertisements

Human Rights and Refugees
The Paradox of Refugee Protection in the EU
Migration Caused by Environmental Changes Ivan Ivandić.
Purpose MLA and extradition (and other forms of international judicial cooperation) with 3rd countries is part of the external policy of the Union Purpose.
1 Competences and Responsibilities of States. 2 Competences and Responsibilities of States State sovereignty Sovereignty as a concept of international.
Taking of evidence within the European Union Council regulation no 1206/2001 on cooperation between the courts of Member States in the taking of evidence.
REFUGEE DETERMINATION PROCEDURE
1 CONSTITUTION ACT, 1982 Some Notable Features. 2 PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS  Whereas Canada is founded upon principles that recognize.
Seminar on detention of asylum-seekers and alternatives to detention UNHCR Position and Relevant case-law of the European Court of Human Rights UNHCR Representation.
ASYLUM PROCEDURE: THE CROATIAN EXAMPLE LEGAL PROVISIONS, PRACTICE AND FAILURES ANDREJ KRBEC FACULTY OF LAW UNIVERSITY OF ZAGREB.
Acquisition and loss of citizenship: openings for European courts? Gerard-René de Groot (Maastricht University) Co-financed by the European Fund for the.
International Conference/ ‘Steps to freedom’ project Riga, December 2011 International Legal Framework on Alternatives to Detention J.E. KAUTZMANN.
INTRODUCTION INTO PRIVATE INTERNATIONAL LAW OF THE EUROPEAN UNION Marko Jovanovic, LL.M. MASTER IN EUROPEAN INTEGRATION Private International Law in the.
Right to Non-Refoulement – Protection Against Expulsion By Kris Spartanska.
HUMAN RIGHTS – BAD? GRESHAM COLLEGE 5 TH NOVEMBER 2014 GEOFFREY NICE.
United Nations High Commissioner for Refugees
EU: Bilateral Agreements of Member States
Refugee Research Institute EU Refugee and Asylum Policy Proposal Michael Apicelli, Leticia Cano, Paola Castellani, Jessica Hartman, Tanya Raymond.
EU: Bilateral Agreements of Member States. Formerly concluded international agreements of Member States with third countries Article 351 TFEU The rights.
DP Baral.  Refugees are people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and membership in.
European payment order Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment.
International Principles of The Roles of UNHCR in Indonesia
T HE L INK BETWEEN A SYLUM AND M IGRATION : When should Refugee Status be Granted to a Victim of Trafficking? September 4, 2012 Seminar: Challenges Relating.
Seminar on Migration Legislation Ministry of Foreign Affairs of Guatemala 15 – 16 February 2007.
Dr Maurice Mullard Lecture 7. Who is a Non-Citizen? In the human rights arena the most common definition for a non-citizen is: “any individual who is.
An Overview of Canada’s Refugee Policy Canadian Council for Refugees March 2005.
Circulation of authentic instruments under Regulation 650/2012 speaker – Ivaylo Ivanov – Bulgarian Notary Chamber.
Human Rights Act 1998 The European convention on human rights The European convention on human rights The Convention rights The Convention rights How does.
European Enforcement Order for uncontested claims JUDr. Radka Chlebcová.
JáN KIMÁK LEGAL CONCEPT OF EQUALITY IN INTERNATIONAL & NATIONAL LAW
The Archbishop of What?! Jean Binkovitz, M.S.,J.D. Asylum Law and the International Community.
Taking of evidence within the European Union Council regulation no 1206/2001 on cooperation between the courts of Member States in the taking of evidence.
The Eighth Asian Bioethics Conference Biotechnology, Culture, and Human Values in Asia and Beyond Confidentiality and Genetic data: Ethical and Legal Rights.
OT 5.1 At the end of this session, you should be able to u explain the main sources of human rights law and the main human rights instruments u name some.
Seminar on Migration Legislation Ministry of Foreign Affairs of Guatemala 15 – 16 February 2007.
The Humanitarian Charter and the Rights - Based Approach 1.2.
United Nations High Commissioner for Refugees INTERNATIONAL REFUGEE LAW
‘ Readmission Agreements, Asylum Seekers and the 1951 Geneva Convention related to the Status of Refugees’ Annabelle Roig UNHCR Brussels 29 November 2005,
20 October 2008Maria Lundberg, NCHR1 JUR 5710 Institutions and Procedures CASE OF SOERING v. THE UNITED KINGDOM (Application no /88) 07 July 1989.
Isabelle Mihoubi Deputy Regional Representative UNHCR RR Kyiv Return/Readmission.
Seminar on EC case-law Bedanna Bapuly Brno, 2007 October 15th.
1 The importance of migration terminology. 2 Migration Terminology Importance of terminology in the area of migration Challenges in the area of migration.
MODULE II: THE INSTRUMENTS OF JUDICIAL COOPERATION IN CRIMINAL MATTERS IN THE CONTEXT OF THE COUNCIL OF EUROPE.- TUTOR: JOSÉ MIGUEL GARCÍA MORENO Red Europea.
UNHCR United Nations High Commissioner for Refugees International Law regarding Refugees Basic Principles Seminar on Migration Legislation Regional Conference.
2 4 irregular migration at sea challenges A. The instruments 1. UNCLOS, UN Convention against transnational organized crime, Human.
The collective protection of human rights. R2P- sovereignty AND intervention International Commission on Intervention and State Sovereignty (ICISS) Report.
1 The importance of migration terminology. 2 Migration Terminology Importance of terminology in the area of migration Challenges in the area of migration.
INVESTIGATION KAROLINA KREMENS, LL.M. (Ottawa), Ph.D. International Criminal Procedure.
The right to asylum: what does it entail
..  1.0 Introduction Protection is a term referring to all actions aimed at access to and enjoyment of all rights of women, men, girls and boys of concern.
Krešimir Perović, mag. iur. Head of the Independent Sector for Schengen coordination and Projects of the European Union
Council Directive 2003/9/EC laying down standards for the reception of asylum seekers European Commission Directorate-General External Relations.
HUMAN RIGHTS LAW. Ahmed T. Ghandour.. HUMAN RIGHTS IN EUROPE I.
July 15, 2008 Hnakuk University of Foreign Studies The Situation of Refugees in Korea & The Korean Civil Society in Action Pill Kyu Hwang Korean Public.
United Nations High Commissioner for Refugees (UNHCR) Workshop on Strengthening International Legal Co- operation among Member States of the OSCE to Combat.
‘REFUGEE’ DEFINITION – UNHCR. WHO ARE PERSONS OF CONCERN TO UNHCR? (Recap ) Simply described as persons whose protection and assistance needs are of concern.
František Nonnemann Skopje, 9th October 2012 JHA DP aspects related to provision of information about public figures in CZ.
The EU Accession to the ECHR after Opinion 2/13: Reflections, Solutions and the Way Forward Dr Sonia Morano – Foadi and Dr Stelios Andreadakis European.
International Protection, Refugees & the UN
Treatment of Foreigners under International Law
International Protection of transgender refugees
International Human Rights….close to home
INTRODUCTION INTO PRIVATE INTERNATIONAL LAW OF THE EUROPEAN UNION
Sub-Regional Meeting for ASEAN Countries on the Marrakesh Treaty and the Production and Exchange of Accessible Books by the World Intellectual Property.
The 1951 Refugee Convention
International Protection, Refugees & the UN
Function of the International Court of Justice (ICJ):
Refugees in International Humanitarian Law
PROCURA DELLA REPUBBLICA v. M.
Presentation transcript:

Inclusion before Exclusion or Vice Versa? 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

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

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

Inclusion before Exclusion under GC1951

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….”

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.“

Art. 31 VCLT69 = Basic rule of treaty interpretation 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.“

Exclusion before inclusion 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

Exclusion before inclusion 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

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….”

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.”

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)

Argument of Judicial Economy 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

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)

Inclusion before Exclusion under EC Law

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.”

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

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, …“

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

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’

Concluding remarks

Concluding remarks GC1951 => ‘Exclusion before inclusion’ no support for distinction between the hearings & determination stage European Asylum Acquis 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

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