France - Council of State, 4 May 2011, Ofpra vs. Mr. A., n°320910
Keywords:
| Keywords |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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Serious non-political crime
Description
"This category does not cover minor crimes nor prohibitions on the legitimate exercise of human rights. In determining whether a particular offence is sufficiently serious, international rather than local standards are relevant. The following factors should be taken into account: the nature of the act, the actual harm inflicted, the form of procedure used to prosecute the crime, the nature of the penalty, and whether most jurisdictions would consider it a serious crime. Thus, for example, murder, rape and armed robbery would undoubtedly qualify as serious offences, whereas petty theft would obviously not. A serious crime should be considered non-political when other motives (such as personal reasons or gain) are the predominant feature of the specific crime committed. Where no clear link exists between the crime and its alleged political objective or when the act in question is disproportionate to the alleged political objective, non-political motives are predominant. The motivation, context, methods and proportionality of a crime to its objectives are important factors in evaluating its political nature. The fact that a particular crime is designated as non-political in an extradition treaty is of significance, but not conclusive in itself. Egregious acts of violence, such as those commonly considered to be of a ‘terrorist’ nature, will almost certainly fail the predominance test, being wholly disproportionate to any political objective. Furthermore, for a crime to be regarded as political in nature, the political objectives should be consistent with human rights principles." |
Headnote:
Article 1F(b) of the 1951 Refugee Convention is applicable even if the sentence (for a serious non-political crime) has been served. The Court has to inquire whether the reception of the applicant in France represents a danger or a risk to the population.
Facts:
The applicant’s asylum claim was rejected by the French Office for the Protection of Refugees and Stateless Persons (Ofpra). On appeal, the Cour Nationale du Droit d’Asil (National Asylum Court) (CNDA) quashed this decision and granted him refugee status. The Ofpra requested the Council of State to quash this decision.
Decision & reasoning:
First of all, the Council of State recalled the provisions of Article 1 A (2) and 1 F (b) of the 1951 Refugee Convention.
The Council of State considered that while these provisions may in principle justify the refusal of refugee protection, they do not prevent, if the criminal acts have resulted in a sentence which has been effectively served, the granting of this protection, unless the State in which the application was made considers that, due to the serious non-political crimes committed in the past, the applicant represents a danger or a risk for the population.
In the present case, the CNDA considered that the sole fact that the punishment to which the applicant had been sentenced in Italy had been fully served resulted in the inapplicability of the Article 1 F (b) exclusion clause of the 1951 Refugee Convention.
The Council of State found that the CNDA had to inquire whether the circumstances should lead to the refusal of the application because of the serious non-political crimes committed in the past and whether the applicant’s reception in France presented a danger or a risk. By failing to do this, the CNDA made a legal error.
The Council of State concluded that the request of the Ofpra to quash the decision of the CNDA was well-founded.
Outcome:
The decision of the CNDA was quashed. The case was referred to the CNDA.
Observations/comments:
The terms of Article 12.2(b) of the Qualification Directive relating to exclusion from refugee status do not mention any notion of danger to the community or to the security of the Member State, whereas the terms of Article 17.1 (d) relating to exclusion from subsidiary protection do.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |