Case summaries

It follows from the clear wording of Article 1D of the Refugee Convention that the clause contained therein on exclusion from refugee status applies only to persons who are actually making use of assistance provided by UNRWA (United Nations Relief and Works Agency for Palestine refugees in the Near East), and this must be interpreted strictly, i.e. it cannot also apply to persons who have made use of or might make use of protection or assistance. For the purposes of Article 12(1)(a), sentence one, of the Qualification Directive, according to the Court a person makes use of the protection or assistance of a UN agency other than the UNHCR when such a person is truly makes use of such protection or assistance.

This case concerned exclusion and confirmed that Art 12.2 of the Qualification Directive, should be interpreted so that the determining authority must perform an individual examination of the applicant’s case and assess the individual responsibility according to the objective and subjective criteria, as set out in the judgment of Germany v B and D.  In such cases, the burden of proof does not rest with the applicant but on the determining authority.

Passive complicity in genocide includes a material element and an intentional element, as active complicity does.

When applying the exclusion clause of Article 1F(c) of the 1951 Refugee Convention, the Court has to inquire into the degree of personal involvement of the applicant in acts contrary to the purposes and principles of the United Nations.

The case concerned an appeal lodged before the High National Court against the decision of the Ministry of Interior to refuse to grant refugee status based on the application of two exclusion clauses, Art 1F(a) and 1F(b) of the 1951 Refugee Convention. The applicant challenged the application of the exclusion clauses arguing an individual assessment was required, as well as evidence of participation in the crimes mentioned. The appeal was rejected. 

This Case concluded that membership of a terrorist organisation is not in itself a sufficient ground for exclusion from refugee status. 

Given the situation of particular vulnerability and constraint of the applicant, a former child soldier from the DRC, there is no reason to apply any of the exclusion clauses of Article 1F of the 1951 Refugee Convention to him.

The Court considered how to assess whether an applicant’s activities for insurgent groups in Afghanistan could constitute terrorism. It further considered whether attacks upon United Nations Security Council mandated forces, such as ISAF in Afghanistan, were acts contrary to the purposes and principles of the United Nations, justifying exclusion from the 1951 Refugee Convention under Article 1F(c).

The exclusion ground “serious non-political crime” does not automatically apply to a supporter of the PKK. In contrast, an examination of the individual responsibility has to be carried out in each case.

These joined cases concerned two Applicants who were denied protection in Germany on the basis of the exclusion provisions in the Qualification Directive.  Upon appeal the German Courts found that even if they were excluded under the Qualification Directive they may still entitled to the right of asylum recognised under Article 16A of the Grundgesetz. The CJEU, in examining Article 12, the exclusion provision in the Qualification Directive, found that the fact a person was a member of an organisation which is on the EU Common Position List 2001/931/CFSP due to its involvement in terrorist acts, does not automatically constitute a serious reason to exclude that person. Exclusion is not conditional on the person concerned representing a present danger to the host Member State or on an assessment of proportionality.