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Exclusion from refugee status - What is a fair procedure?

Sällfors, Amelie (2004)
Department of Law
Abstract
The refugee status determination procedure involves complex issues of both law and fact. The process becomes even more complicated when facts arise that give indications on the possible applicability of article 1.F of the Refugee Convention. In this case the decision-maker has to decide on the one hand if the applicant qualifies for refugee status and on the other hand if there are serious reasons for considering that the applicant has committed an excludable crime. The Refugee Convention gives no guidance on how the status determination procedure shall be structured. Instead this is left to each state to decide. An extensive debate has therefore arisen as to how this procedure shall be outlined. The aim of this thesis is therefore to look... (More)
The refugee status determination procedure involves complex issues of both law and fact. The process becomes even more complicated when facts arise that give indications on the possible applicability of article 1.F of the Refugee Convention. In this case the decision-maker has to decide on the one hand if the applicant qualifies for refugee status and on the other hand if there are serious reasons for considering that the applicant has committed an excludable crime. The Refugee Convention gives no guidance on how the status determination procedure shall be structured. Instead this is left to each state to decide. An extensive debate has therefore arisen as to how this procedure shall be outlined. The aim of this thesis is therefore to look into and analyze the debate on exclusion issues in the refugee status determination procedure. In pursuing this aim, two issues are analyzed. First, the placements of the assessments of inclusion and exclusion in the procedure and second, the roles of the parties in the actual procedure and hence the duties connected to these roles. The idea of assessing exclusion in a separate unit is also examined and analyzed. Concerning the placements of the assessments of inclusion and exclusion in the procedure, there are no clear answers of where in the procedure the separate issues shall be assessed. What can be said, though, is that there is no legal obligation of applying the one consideration before the other. In principle, the persons arguing in favor of applying exclusion before inclusion emphasize this fact, thus stating that there is no legal obstacle in assessing exclusion before inclusion. These proponents also highlight one of the aims of article 1.F, i.e. that certain persons are undeserving of refugee status, to justify that exclusion must be considered before inclusion. Then again, the proponents of assessing inclusion before exclusion give weight to the exclusion clause as an exception to the need of refugee protection as well as the need to assess all the facts of the case before a determination on exclusion can be made. Issues of inclusion and exclusion are often determined in the same procedure by the same decision-maker. This means that the decision-maker shall assess issues of law and fact both concerning the inclusion assessments as well as for the exclusion assessments. As a consequence, the procedure becomes complicated, since the legal criteria as well as the roles of the parties involved, are different depending on what kind of assessments are being made. As an example, the burden of proof lies on the asylum seeker in the inclusion assessments and on the decision-maker in the exclusion assessments. In addition, the assessments of possible exclusion are quasi-criminal in nature, since the applicant's alleged criminal activity shall be judged upon. This means that the procedure as such becomes complicated since the applicant on the one hand is an ordinary asylum seeker, and on the other a quasi-criminal suspect. To determine exclusion issues in a separate procedure could therefore seem like a good method both from the applicant's point of view as well as from the decision-maker's standpoint. However, even if there are advantages as well as disadvantages in having a separated procedure, it can be questioned if it is a realistic idea. In most of the countries today exclusion cases do not reach up to a significant number, why it may not be economically feasible to have special units dealing exclusively with these cases. Yet, a strong argument in favor of having special units is that it can gather expert knowledge in relevant areas connected to refugee law, such as for example international criminal law and competence in national security issues. In conclusion it can be stated that the refugee status determination procedure involves complex issues of law and fact. Since, the Refugee Convention gives no guidance on the structure of the procedure, this leaves states with a fairly large margin of discretion. Hence, the contents of the procedure and the roles of the parties are still left relatively open. Still, it is of importance that principles of procedural fairness apply and that the decision-makers are well educated in the relevant areas of law in order to make a skilled decision in each individual case. However, it must also be remembered that the most efficient procedure is the one that also is structured in accordance with reality. (Less)
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author
Sällfors, Amelie
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
International Human Rights Law
language
English
id
1554754
date added to LUP
2010-03-08 15:22:36
date last changed
2010-03-08 15:22:36
@misc{1554754,
  abstract     = {The refugee status determination procedure involves complex issues of both law and fact. The process becomes even more complicated when facts arise that give indications on the possible applicability of article 1.F of the Refugee Convention. In this case the decision-maker has to decide on the one hand if the applicant qualifies for refugee status and on the other hand if there are serious reasons for considering that the applicant has committed an excludable crime. The Refugee Convention gives no guidance on how the status determination procedure shall be structured. Instead this is left to each state to decide. An extensive debate has therefore arisen as to how this procedure shall be outlined. The aim of this thesis is therefore to look into and analyze the debate on exclusion issues in the refugee status determination procedure. In pursuing this aim, two issues are analyzed. First, the placements of the assessments of inclusion and exclusion in the procedure and second, the roles of the parties in the actual procedure and hence the duties connected to these roles. The idea of assessing exclusion in a separate unit is also examined and analyzed. Concerning the placements of the assessments of inclusion and exclusion in the procedure, there are no clear answers of where in the procedure the separate issues shall be assessed. What can be said, though, is that there is no legal obligation of applying the one consideration before the other. In principle, the persons arguing in favor of applying exclusion before inclusion emphasize this fact, thus stating that there is no legal obstacle in assessing exclusion before inclusion. These proponents also highlight one of the aims of article 1.F, i.e. that certain persons are undeserving of refugee status, to justify that exclusion must be considered before inclusion. Then again, the proponents of assessing inclusion before exclusion give weight to the exclusion clause as an exception to the need of refugee protection as well as the need to assess all the facts of the case before a determination on exclusion can be made. Issues of inclusion and exclusion are often determined in the same procedure by the same decision-maker. This means that the decision-maker shall assess issues of law and fact both concerning the inclusion assessments as well as for the exclusion assessments. As a consequence, the procedure becomes complicated, since the legal criteria as well as the roles of the parties involved, are different depending on what kind of assessments are being made. As an example, the burden of proof lies on the asylum seeker in the inclusion assessments and on the decision-maker in the exclusion assessments. In addition, the assessments of possible exclusion are quasi-criminal in nature, since the applicant's alleged criminal activity shall be judged upon. This means that the procedure as such becomes complicated since the applicant on the one hand is an ordinary asylum seeker, and on the other a quasi-criminal suspect. To determine exclusion issues in a separate procedure could therefore seem like a good method both from the applicant's point of view as well as from the decision-maker's standpoint. However, even if there are advantages as well as disadvantages in having a separated procedure, it can be questioned if it is a realistic idea. In most of the countries today exclusion cases do not reach up to a significant number, why it may not be economically feasible to have special units dealing exclusively with these cases. Yet, a strong argument in favor of having special units is that it can gather expert knowledge in relevant areas connected to refugee law, such as for example international criminal law and competence in national security issues. In conclusion it can be stated that the refugee status determination procedure involves complex issues of law and fact. Since, the Refugee Convention gives no guidance on the structure of the procedure, this leaves states with a fairly large margin of discretion. Hence, the contents of the procedure and the roles of the parties are still left relatively open. Still, it is of importance that principles of procedural fairness apply and that the decision-makers are well educated in the relevant areas of law in order to make a skilled decision in each individual case. However, it must also be remembered that the most efficient procedure is the one that also is structured in accordance with reality.},
  author       = {Sällfors, Amelie},
  keyword      = {International Human Rights Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {Exclusion from refugee status - What is a fair procedure?},
  year         = {2004},
}