Case summaries

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.

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 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.