Case summaries

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.

Membership of an organisation that was responsible for committing war crimes is not sufficient on its own to justify exclusion under Article 1F(a) of the Refugee Convention or Article 12(2)(a) of the Qualification Directive.  Membership of the LTTE or its ‘Intelligence Division” was not enough, on its own, to justify the applicant’s exclusion.

Responsibility for war crimes and crimes against humanity should be considered with regard to the Rome Statute of the International Criminal Court and other international legal materials that have come into existence following the adoption of the Refugee Convention.

The decision maker should concentrate on the actual role played by the particular persons, taking all material aspects of that role into account so as to decide whether the required degree of participation is established. The Court identified a non-exhaustive list of some of the relevant factors that should be considered.

This case concerns exclusion from refugee status due to the alleged participation of a civilian in war crimes. It was found that an act committed by a civilian can be a war crime if this act is connected to an armed conflict. In the course of an internal armed conflict, war crimes can be directed not only against the civilian population but also against combatants of the opposing party.

The CALL ruled that when a Palestinian refugee, who is under the care of United Nations Relief and Works Agency (UNWRA), resides outside the mandate areas of UNWRA, then this person no longer benefits from the protection of UNWRA and therefore falls under Art 1D(2) of the 1951 Refugee Convention, meaning that this person has an automatic right to the protection of the Convention. It should however be examined whether the person can return to the mandate areas and place him/herself back under the protection of UNWRA.

Revocation of refugee status was lawful for a leading member of an organisation which has committed war crimes, crimes against humanity and acts contrary to the purposes and principles of the United Nations (president of the Forces Démocratiques pour la Libération du Rwanda - FDLR).

In an internal armed conflict, war crimes may be committed not only against the civilian population, but also against combatants.

1. At present, a definition of what constitutes war crimes or crimes against humanity has to be primarily based on the elements of these crimes as determined in the International Criminal Court (ICC) Statute.
2. In an internal armed conflict, war crimes may be committed not only against the civilian population, but also against combatants.
3. As a rule, acts by combatants which form part of combat operations in an internal armed conflict, and which do not constitute crimes against peace, war crimes or crimes against humanity (under Section 3 II (1) (1) of the German Asylum Procedure Act), will also not constitute the exclusion ground of a serious non-political crime.

The CALL ruled that exclusion clauses are exceptional provisions with very serious consequences and should therefore be applied in a restrictive manner. There is a presumption of responsibility vis-à-vis persons holding high positions in a regime that is guilty of committing serious human rights violations, but such a presumption is refutable. It does not suffice to refer to the general situation in the country of origin at the time when the applicant held the position.