Case summaries

The applicant stated that he had been a member of the Taliban amongst other things. The Federal Asylum Agency (BAA) declared that the expulsion of the applicant to Afghanistan was permissible. The Asylum Court acted on the assumption of the existence of the ground for exclusion from asylum of ”Crimes against humanity“ and therefore granted neither asylum nor subsidiary protection, but revoked the expulsion to Afghanistan. The Constitutional Court allowed the appeal by the applicant against this decision as sufficient findings were not established in relation to the assumed crime against humanity.

Application for annulment of a decision by the Minister of Public Order.

This case concerned special protection status in accordance with the 1951 Refugee Convention andexclusion from protection of those who have committed a serious crime under “common law”. The crime committed by the applicant (attempted murder of the Indian Ambassador in Romania) does not fall within the concepts of “political”, “composite” or “related” crimes, even if it was carried out because of the offender's political opinions or principles, or with the intent of achieving such aims. The implementation of the exclusion clause is not precluded because of the fact that the party has already served the sentence which was imposed. The judgment regarding the applicant having committed a serious criminal offence was justified. The decision was opposed by a minority. Consideration was given to the severity of the persecution the applicant risked suffering should he return to India and non-refoulement was approved, his deportation was given suspensive effect, and he was given temporary leave to remain on humanitarian grounds.

The exclusion of a person who had belonged to a terrorist organisation depended on a personal examination to see whether there were genuine grounds to attribute to him a personal responsibility as organiser, author or accomplice to serious crimes under ordinary law or actions contrary to the purposes and principles of the United Nations.

The conclusion can be drawn on the basis of the B. and D. judgment that, based on the description of Hizb-e Wahdat in the official report as a violent organisation, a policy of presuming 'personal and knowing participation' on the part of aliens who have fulfilled specific roles within the organisation is consistent with Article 12(2) of the Qualification Directive.

As a result of six convictions owing to trivial offences against property, subsidiary protection was withdrawn from the Applicant, as he would represent a danger to the general public. The Constitutional Court revoked this decision as unconstitutional: the Asylum Court had not interpreted the corresponding national stipulation in accordance with the Directives as the crimes committed were not of the seriousness required in Art 17 Qualification Directive.

Exclusion from refugee protection on the grounds of "serious non-political crime" or of "acts against the purposes and principles of the United Nations", cannot solely be based on the fact that an applicant has been a supporter or a member of an organisation which has been classified as terrorist. There must be serious reasons to justify the assumption that the applicant was personally involved in the commission of such crimes.

In considering the possible exclusion under Art 1F, careful consideration must be given to culpability. Domestic law including any defences must be accurately cited. When the applicant is a child, consideration of her age and understanding; together with consideration of her welfare must form part of the overall analysis. If a child is found to be excluded from asylum or humanitarian protection the welfare of the child should be considered when arrangements for other leave to remain are considered.

Exclusion from refugee status of an Applicant who had carried out attacks against the Sri Lankan army in the name of the LTTE, a movement included on the list of terrorist organisations as decided by the Council of the EU, during peace-time, with full knowledge, without coercion and when he was over the age of majority.

The applicant sought to have the decision of the Refugee Appeals Tribunal (RAT) to refuse to recommend refugee status set aside, on the basis that the RAT had implicitly found him to be entitled to refugee status, but had then proceeded to find that he was excluded from same due to his activities in Afghanistan, without however carrying out an assessment of his individual responsibility, having regard to the standard of proof required by Article 12(2) of Council Directive 2004/83/EC, as transposed into Irish law by the European Communities (Eligibility for Protection) Regulations 2006.

The General Secretary of the Ministry of Public Order, having had an application for asylum referred back to it, considered whether the submitted evidence was “new and crucial”. If so, an ab initio examination of the application would be ordered. Failure to give notification of an act does not affect its validity, but only the start of the deadline for submitting an application for its annulment. The copy of the Turkish Government Gazette which promulgated the decision regarding withdrawal of the Applicant's nationality, was new and crucial evidence. There was no justification for refusing the request for an ab initio examination of the Applicant's circumstances, nor for rejecting his application to remain in the country on humanitarian grounds.