Case summaries

Article 1F of the Refugee Convention relates to the application of a definition and not whether an individual seeking asylum should obtain protection or not. Therefore, and with regards to Article 1F(b), any post-offence conduct does not serve to mitigate the seriousness of an alleged non-political offence. No doctrine of expiation is to, thus, be applied to Article 1F(b).

The term serious used in Article 1F(b) denotes especially grave offending and requires no further qualification by the term “particularly." 

According to the jurisprudence of the Supreme Administrative Court an oral hearing can only be waived if the complaint does not claim any facts relevant to the assessment which are in contradiction or go beyond the result of the administrative investigation procedures.

On the contrary, it constitutes a substantiated denial of the consideration of evidence by the relevant authority if a complaint questions the credibility of different sources which formed the basis of such consideration. The lack of an oral proceeding in such cases leads to a violation of the obligation to hold a trial.

With regards to a possible exclusion from asylum its severe consequences for the individual do not only require that the exclusion clauses of the 1951 Refugee Convention are interpreted narrowly but also that the facts are sufficiently established in order to determine which conduct the exclusion is based on and to weigh the reprehensibility of the offense against the need of protection of the applicant.

Considerations of the competent authority, which are limited to the assumption that the individual in question has participated in hostilities and has caused the death of opposing soldiers and civilians without further clarifying when,  on which occasion and under which circumstances such participation has taken place, do not meet the requirements for determining whether the criteria for exclusion are fulfilled.  

This case concerned exclusion from refugee status on the basis of a war crime and a serious non-political crime.

A Chechen who was involved in the Second Chechen War - outside of the general combat action - in the killing and wounding of Russian soldiers and the kidnapping of a Russian officer to force the release of another Chechen is at risk of being exposed to torture or at least inhuman or degrading treatment or punishment in the Russian Federation. 

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.

This case concerned the revocation of asylum and refugee status in the case of a former official of the Kurdistan Workers' Party (PKK) (following the European Court of Justice case of Federal Republic of Germany v B (C-57/09) and D (C-101/09), 09 November 2010).

In applying Art 12 of the Qualification Directive concerning exclusion from refugee status, the decision-maker is required to conduct an individual assessment of the applicant’s circumstances and, specifically, of his own complicity, if any, in crimes against humanity.

Article 1F(b) of the 1951 Refugee Convention is applicable even if the sentence (for a serious non-political crime) has been served. The Court has to inquire whether the reception of the applicant in France represents a danger or a risk to the population.

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. 

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