Case summaries

The Tribunal considered whether a woman who had been involved in invasions of white-owned farms at the behest of the ruling party in Zimbabwe was excluded under Article 1F(a) of the 1951 Refugee Convention. The Tribunal held, first of all, that Article 7(1) of the Statute of the International Criminal Court is usually regarded as providing the best working definition of a crime against humanity for the purposes of Article 1F(a) of the 1951 Refugee Convention. Secondly, it held that where the act or crime does not involve the specifically listed forms of acts or crimes, in order to consider that a crime against humanity had occurred, the Tribunal must consider if the acts participated in by the appellant were of a “similar character” to those specified in Article 7(1)(a) to (j) of the Statute. In so doing, the Tribunal must consider the specific purpose of the crime, its intent and effect, the participation of an appellant in the crime and if needs be whether the appellant made a substantial contribution to the crime.

The facilitated standard of proof under Art. 4.4 of the Qualification Directive may be applied to the examination of subsidiary protection. Under German law, subsidiary protection is not excluded on the ground that the applicant is a “danger to the community”.

The conditions for applying an exclusion clause can be fulfilled without considering if there are grounds for granting protection. 

The applicant lodged an appeal before the High National Court against the decision issued by the Ministry of Interior to refuse granting stateless status. At issue in the case was whether the reasons given by the Ministry were lawful: if the applicant had already received protection from Algeria and if he fell within the scope of the exclusion clause because of the protection already granted by organs of the UN other than UNHCR.

1. An individual is not excluded from refugee status where they have been convicted and sentenced as a juvenile, this only applies in cases of convictions and sentences according to the criminal law applicable to adults.
2. The applicant is not excluded from refugee status because of publicly distributing portraits of Öcalan (founder of the PKK) as a youth. This cannot be considered as an act of supporting terrorism within the meaning of the exclusion ground of Art 12.2 of the Qualification Directive.

For the purposes of the first sentence of Article 12(1)(a) of Directive 2004/83, a person receives protection or assistance from an agency of the United Nations other than UNHCR when that person has actually availed himself of that protection or assistance.

Article 1D of the Geneva Convention relating to the Status of Refugees, to which Article 12(1)(a) of the Directive refers, merely excludes from the scope of that Convention those persons who are at present receiving protection or assistance from an organ or agency of the United Nations other than UNHCR. It follows from the clear wording of Article 1D of the Geneva Convention that only those persons who have actually availed themselves of the assistance provided by UNRWA come within the clause excluding refugee status set out therein, which must, as such, be construed narrowly and cannot therefore also cover persons who are or have been eligible to receive protection or assistance from that agency.

Serious reasons have to be established in order to apply the exclusion clause in Article 1F(a) of the 1951 Refugee Convention, i.e. the material and intentional elements specific to the complicity.

The applicant lodged an appeal before the Supreme Court challenging the decision of the High National Court to refuse granting refugee status. The refusal was founded on the application of an exclusion clause. It was held that the applicant constituted a danger to Spanish security. This decision examined the conditions required to apply this exclusion clause, namely that it has to be determined that there are “reasonable grounds” to believe that such danger exists.

Before applying the exclusion clause in a case of complicity in an honour killing, the Court should inquire whether, on the one hand family constraint might have lowered the free will of the applicant and, on the other hand whether his young age might justify that he was more vulnerable to this constraint.

Even if an asylum applicant meets the conditions for provding subsidiary protection, he will be excluded from eligibility for subsidiary protection if there are serious grounds for believing that he represents a danger to society or a danger to the Member State in which he is staying.

It follows from the decision of the European Court of Human Rights that signatory states to the Convention (Convention for theProtection of Human Rights and Fundamental Freedoms) are under an obligation not to hand over/deport a person to a country where he might be at risk of treatment which is contrary to Article 3 of the Convention. In the case in question, however, the subject of the judicial review was not the decision to deport the Appellant, but the Respondent’s decision not to grant asylum and not to provide subsidiary protection as requested by the Appellant.