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Exclusion from refugee status. Rules and practices in Norway, Canada, Great Britain, the Netherlands and Denmark. A comparative study (pdf, 1,8 MB)

Summary

1. The number of exclusion decisions increased significantly following the establishment of the UDI F 1 unit in 2009. Based on the low number of exclusion decisions prior to 2009, this indicates that significant improvement has taken place concerning identification of cases and consequently implementation of the obligations under article 1 F.
2. A significantly larger number of cases are referred to unit F1 compared to the actual number of exclusion decisions. This includes individuals who are not granted refugee status or temporary permits on the basis of ECHR article 3, but who have informed of prior involvement or affiliation with crimes. This shows that the threshold for referring cases to the exclusion unit is low. The explanation behind the divergence between number of cases referred to the unit and actual exclusion decisions met must be that the requirements of article 1 A (inclusion) are not considered to be met in most cases. Thus, this phenomenon does not say much about the capability of case workers at geographical units at identifying exclusion cases, e.g. where the applicant himself attempts at avoiding identification as having been affiliated with repressive regimes or criminal organizations.
3. Countries of origin in exclusion cases are diverse, including among other Iraq, Eritrea, Stateless Palestinians, Sudan, Afghanistan, Somalia, Russia, Sri Lanka, Ethiopia, Iran and 
4. Almost all exclusion decisions were based on information provided by the applicant in the asylum interview. Other commonly used sources of evidence were criminal convictions and country reports.
5. From 2010, an increase may be seen in the amount of information provided in the pre-notifications of potential application of article 1 F. In addition to referral to the facts which constitutes the basis of the consideration under article 1 F, the pre-notification provides reference to legal sources and academic references. The pre-notification, as it is practiced today, provides the applicant with a better possibility of contradiction than did the previous versions.
6. The dominant basis for exclusion is article 1 F b), which more or less doubles the next category, article 1 F a) (crimes against humanity), in size. This is explained by the practice described under finding no. 7. A relatively low number of cases were decided on the basis of article 1 F a) (war crimes). No cases were decided on the basis of article 1 F a) (genocide). No cases were decided on the basis of crimes contrary to the purposes and principles of the UN or crimes against the peace.
7. According to UDI practice, individuals not holding immunity from having committed otherwise lawful acts of war, who participate in concrete violent incidents during armed conflict, are considered for exclusion under article 1 F b. This means that individuals who have participated actively in armed conflict on behalf of non-state actors, albeit without holding formal competency to apply force, are exclude also where he or she otherwise acted within the parameters of the law of armed conflict, or where there are no indications that war crimes were committed. Examples of groups considered by UDI to be under this category are:
   • Eritrean separatists fighting in the liberation war against Ethiopia (1961-1991)
   • Taliban and other non-state actors targeting the ISAF forces in Afghanistan
   • Members of the JEM having taken part in the 2008 attack on the city of Omdurman (Sudan)
8. A majority of exclusion cases are based on acts of complicity of the applicant, i.e. the applicant is in most cases not the main perpetrator of a crime. A presumption of individual responsibility was applied in six decisions. Where exclusion was decided on the basis of a presumption of responsibility, UDI provided a particularly thorough reasoning on the basis of country of origin information reports.
9. The subjective element (mens rea) regarding the chapeau requirement of “widespread and systematic” under crimes against humanity is seldom explicitly considered in exclusion decisions based on that category of crime.
10. The applied minimum age of criminal responsibility in cases considered under article 1 F a) is 18 years as stipulated by the ICC statutes article 26, while the minimum age in cases considered under article 1 F b) is 15 years as stipulated by the Norwegian Penal Code § 46.
11. In most decisions, the burden of proof was described in the autonomous wording of the refugee convention (“serious reason to believe”). Only in six cases was reference made to domestic administrative law standards of proof, and among these both “a balance of probability” and “a clear / qualified balance of probability” was applied.
12. Neither UDI nor UNE apply a balancing / proportionality test in assessing whether exclusion should be decided.
13. Duress is a commonly argued defense, but has only been accepted in one case.
14. Both the UNHCR Background Note (2003) and Guideline (2003) on exclusion are important sources in UDI and UNE interpretation of article 1 F.
15. Exclusion cases at UNE are always considered by the Board, consisting of three members. The applicant may provide an oral statement to the board.
16. The evidence in a case often changes from the time of the UDI decision until the time of the UNE decision. In some cases this is due to changes in the statement of the applicant following the UDI exclusion decision. The mode of consideration of evidence is also significantly different in UNE than in UDI. Where UDI must base its decision on written material only (including the asylum interview), UNE renders a decision also on the basis of an oral, direct statement from the applicant.
17. In three of 13 cases UDI and UNE concluded differently as to the question of exclusion.1 The remaining cases where both UDI and UNE have rendered decisions may be described as follows:
    1. Seven cases where UDI did not consider the applicant as protected under Section 28 first paragraph (refugee), and thus did not consider exclusion at all, whereas UNE considered 28 first paragraph to be applicable and considered exclusion.2 The differences in these cases related to the inclusion assessment alone, as only UNE considered the question of exclusion.
    2. Three cases where UDI excluded the applicant, whereas UNE did not.3
18. In total, UNE concluded on application of article 1 F in 8 cases. Among these, 4 were based on crimes against humanity and 4 on serious non-political crimes. No cases were based on war crimes or crimes against the peace.
19. All but one decision at UNE were based on accessorial liability (complicity). No decisions in UNE practice are explicitly based on a presumption of individual responsibility. UNE appears to apply a higher threshold for invoking a presumption of responsibility, compared to UDI.
20. The level of proof required for exclusion at UNE is, according to interviews, “a clear balance of probability”.
21. As opposed to UDI, exclusion cases at UNE are considered within the geographical units. All exclusion cases are considered by the UNE Board, i.e. none are considered by a Board Leader alone. No exclusion cases have yet been considered by the UNE Grand Board.
22. As opposed to other countries included in the survey, Norwegian legislation does not include provisions aimed at excluding or barring entry of foreign citizens applying for leave to stay on other basis such as family reunification, work or study, specifically on grounds similar to article 1 F. Still, rejection is mandated where “foreign policy interests” or “fundamental national interests” necessitate it, or where the facts of the case indicate grounds for rejecting the applicant at a port of entry or expulsion from the country.4
23. Applicants who are excluded from refugee status are as a main rule considered to be protected under ECHR article 3, which is implemented in the Immigration Act Section 73. In such instances, temporary residence permits are granted on the basis of the immigration act Section 74. The permits have a validity of six months, after which renewal must be sought. The permits provide permit to work in Norway, but may not serve as the basis for family reunification, permanent residence, new entry into Norway (i.e. the holder may not leave Norway and expect to return), or visits to other Schengen states.
24. The National Criminal Investigation Service (KRIPOS) is routinely informed, in writing, of article 1 F cases by UDI and UNE. Their access to UDI or UNE information in each case is assessed on a concrete basis, and only following concrete requests from KRIPOS.

Carried out by: Advokatfirmaet Stabell & Co

Commissioned by: UDI