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Refugees and Asylum after September, 11

I. Introduction

The increased threat from international terrorism also has had its effects on the international protection regime of refugees. In the aftermath of September 11, asylum governments all over the world passed anti-terrorism legislation also affecting refugees and asylum seekers. Measures such as interception at sea, tightening of border controls, detention of undocumented asylum seekers were based on the threat of terrorism. Resettlement programmes were put on hold and comprehensive security checks introduced. There was a widening perception often fuelled by politicians and the media, of refugees and asylum seekers as automatic terrorist suspects. Regardless of the fact that refugees are themselves victims of insecurity, they were often seen as a threat in the first place.

Instruments against terrorism have not only been passed on the national level. Both, on international as well as on regional level a variety of activities have taken place. Two UN Security Council resolutions were passed , both with references to asylum. They contain two important clarifications: states have a duty to ensure that refugee status is not abused by perpetrators; and all measures taken in the fight against terrorism must be in conformity with international law, including international human rights standards.

Among the regional initiatives are the June 2002 Inter-American Convention against Terrorism , the July 2002 Council of Europe, Committee of Ministers Guidelines on human rights and the fight against terrorism and the December 2002 OSCE Charter on Preventing and Combating Terrorism. The European Union, too, adopted several instruments, the most important of which are the Framework decision on combating terrorism and the introduction of a European Arrest Warrant .

The UN, including of course UNHCR, is sympathetic to national security concerns. In fact, it becomes itself increasingly a target of terrorist attacks. The bombing of the UN building in Baghdad or the murder of an UNHCR protection officer in Afghanistan are only the most recent examples. UNHCR has consistently maintained that the 1951 Convention does not provide a safe haven to terrorists, nor does it protect them from criminal prosecution. Its provisions exclude perpetrators of serious crimes from being granted asylum.

Simultaneously, UNHCR expressed concern that bona fide asylum seekers may be victimised as a result of public prejudice and unduly restrictive legislative or administrative measures. It worried that carefully built refugee protection standards may be eroded although the refugees themselves were often escaping violence, including terrorism. Governments sometimes also seem to misuse the threat of terrorism as a pretext to get tighter measures on asylum seekers and refugees adopted.

The threat of terrorist attacks is still imminent, as attacks on targets in all area of the world show. Nevertheless, more than two years after September, 11, it is time to take stock and critically assess the measures taken. While their effectiveness as such is not for this paper to examine, the focus will be on the practical implications of the measures on refugee protection. For this purpose, some outstanding examples of European states practice will be presented. On the basis of the actual legal framework of the 51 Convention, it will be assessed as to whether these are in line with international refugee law.

II. Reactions of European States to September, 11 in the light of the 1951 Convention/International Refugee Law

Several European States have adapted their asylum laws and/or policies after September, 11. Effects such as a lower recognition rate, UNHCR observes for example in countries such as Greece and Italy, may be difficult to directly link to the perceived or existing security risks. The few examples below, however, already show that September, 11 and related events clearly did effect national asylum legislation.

1. Detention of asylum seekers

Detention of undocumented asylum seekers has in many European countries been a concern before September, 11. Thereafter, states such as for example Greece, have increasingly resorted to detention for undocumented asylum seekers. Although not specifically targeted against this group, the broad powers to detain "suspected international terrorists" indefinitely without trial under the United Kingdom Anti-Terrorism, Crime and Security Act 2001 , could also effect asylum seekers and refugees. Whether any of the 16 foreign nationals who have been detained on that ground is an asylum seeker or refugee is not known.

2. Exclusion

In Germany, the Law Combating Terrorism of 9 January 2002 introduced the exclusion clauses of Art. 1F of the Convention into the German Aliens Law. Germany has incorporated the Non-Refoulement Principle of Art. 33 (Section 51 Aliens Law) without the refugee definition of Art. 1 of the Convention into its national law. Therefore, the wording of Art. 1 F was simply added to Section 51 (3) Aliens Law which is based on Art. 33 (2) of the Convention (exception to the Non-Refoulement Principle). As a result, two different provisions of the Convention with a different purpose, the exclusion clauses of Art. 1F and the exception of the non-refoulement principle in Art. 33 (2) were melted to one legal provision. This was heavily criticised by UNHCR who expressed the fear that such a connection could lead to an extension of the exclusion clauses not in line with international law and consequently to a violation of the Non-Refoulement Principle.

Meanwhile, a number of revocation decisions of the Federal Office for the Recognition of Foreign Refugees concerning, inter alia, Iranian members of the Peoples Modjahedin have underlined this concern. UNHCR has been contacted by several Iranians whose refugee status has been withdrawn on the basis of this article. The more or less standardised revocation decisions are based on the mere fact that the persons concerned belong to the Peoples Modjahedin and spent some time in Iraq. None of the decisions was based on concrete findings on individual contributions to a crime falling under Art. 1F of the Convention. Whether the courts will confirm the decisions remains to be seen. A similar provision was also included into the draft qualification directive.

In the United Kingdom, the Secretary of State can certify for a specific case the application of Art. 1 F or Art. 33 (2) of the Convention and declare an asylum applicant's removal "conducive to public good" under Section 33 of the Anti-Terrorism, Crime and Security Act 2001 (ATCS). Section 34 of the Act explicitly forbids the application of a balancing test for Art. 1F. The gravity of the fear or threat of persecution therefore does not prevent an exclusion from refugee status. An appeal against a rejection can only be successful if the Special Immigration Appeals Commission does not accept the Secretary of State's application of the exclusion clauses. Although the practical implications of these amendments are not yet seen, there is a danger that membership in specific "terrorist" organisations may lead to exclusion and expulsion without consideration of the asylum request.

3. Expulsion and Extradition

Under the Swedish Special Control of Foreigners Act the government can expel a foreigner if this is deemed necessary to the security of Sweden or if there are reasons to suspect that he or she will commit or take part in crimes involving violence, threats or coercion for political purposes . There is no provision of appeal against such a decision.

Based on that provision, Sweden expelled two Egyptian asylum seekers because of their alleged membership in an Egyptian terrorist organisation in December 2001. The decision was based on written "guarantees" provided by a senior official of the Egyptian government. There was no opportunity for the asylum seekers to refute the information, which formed the basis for their exclusion and the expulsion order.

Both, the expulsion as well as its legal basis were criticised by the UN Human Rights Committee which expressed its concern about cases of expulsion of asylum seekers suspected of terrorism to their country of origin and made clear that "The State party is requested to ensure that the concern over terrorism is not a source of abuse." Additionally, the Committee against Torture (CAT) made reference to the case and recommended that foreigners should not be sent back to a country where there are substantial grounds for believing that they would be in danger of being subjected to torture. Nevertheless, the Swedish procedure for expulsion has unfortunately remained unchanged.

In a similar incident in Austria, an Egyptian asylum seeker recognised as refugee by UNHCR under its mandate had to lodge an application against his planned extradition to Egypt at the ECHR. The deportation failed since Egypt did not accept the Austrian conditions for the extradition. The case was subsequently stroke from the list by the ECHR.

Under the UK Nationality, Immigration and Asylum Act 2002 , a refugee shall be presumed to constitute a danger to the community in the UK, if he is convicted and sentenced whether in the UK or outside to a period of imprisonment of at least two years. Although the application of this provision still has to be seen in practice, it seems as if an assessment of the individual case will no longer take place.

4. Refusal of Convention Travel Documents

In Germany, a practice has been developing during the past year to refuse refugees without proper documentation a residence permit and a Convention travel document according to Art. 28 of the 51 Convention (CTD). The authorities argue that the refugees are obliged to prove their identity and point to the security risks resulting from the lack of proven identity. While the refusal of residence permits has meanwhile been quashed by the Federal Administrative Court , it has not yet decided on the issuance of a CTD.

II. International Terrorism and the 1951 Convention

Terrorism and violence are no new phenomena. The Convention was drafted on the background of the serious security risks both of the Second World War and the beginning cold war era. Right from the beginning of the drafting process, it was clear that certain groups should be excluded from the Convention. A system of checks and balances was elaborated to take account of the security interests of States and host communities on the one hand while protecting the rights of refugees. If applied, these mechanisms ensure that refugee protection does in no way provide a safe haven for criminals.

A refugee is a victim - or potential victim - of injustice, not a fugitive from justice. The refugee definition clearly distinguishes "persecution" and "prosecution". Persons fleeing from prosecution or punishment for a common law offence are not normally refugees. Only if such a person additionally has a well-founded fear of persecution, comes the question into play whether the protection needs of the refugee or the security interest of the guest community and state prevail.

1. Exclusion Clause (Art. 1 F )

Asylum seekers, who have been involved in serious criminal activities, including terrorist acts, may be excluded from refugee status according to Art. 1 F:

"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."

The drafters of the Convention had two aspects in mind: perpetrators of severe crimes do not deserve refugee status; and the refugee regime should not hinder criminals to be brought to justice. Whereas the first aspect is still relevant, the second has lost some of its importance since international criminal law has immensely progressed during the past 50 years. Different from the 1950ies, several international treaties introduced universal jurisdiction for certain crimes. Additionally, an international criminal court was created in 1998.

As the UNHCR-Executive Committee has pointed out, the exclusion clauses must be applied scrupulously to protect the integrity of the institution of asylum. It has to be borne in mind however, that Art. 1F is not only an exceptional but also a rather complex legal provision. It incorporates elements of different fields of law: refugee law, criminal law and extradition law. Given the possible serious consequences of an exclusion, it must be applied correctly, in a restrictive manner and with great caution.

Guidance for the interpretation of the exclusion clauses can be found i.a. in the UNHCR Handbook and the UNHCR guidelines which have an elaborate background note attached. In the latter's recently issued revision, the office took into account changes in state practice and recent developments of international law. Certainly, the attacks of September, 11 also played an important role for the revision of the guidelines. Furthermore, the conclusions of an expert round table convened in the context of the Global Consultations were taken into consideration.

While the provisions will not be discussed here in detail, it is important for the understanding of the refugee regime to outline their basic features:

1.1 Art. 1F a) and c)

Art. 1F (a) and (c) are basically directed against crimes laid down in international instruments such as crimes against humanity, war crimes etc. Art. 1 F c) is generally considered supplementary. To avoid that an extensive application of this rather unprecise provision undermines the protection objectives of the Convention, 1F (c) should only be triggered in extreme circumstances by activities which attack the very basis of the international community's coexistence. The crimes envisaged in both articles are by their very nature extremely serious. According to the revised UNHCR guidelines, proportionality considerations will therefore rarely stand in the way of their application. It does not matter where and when the person has committed the crime. Once such crimes are committed, the individual is excluded from refugee status. Persons who have been recognised before, lose their status.

1.2 Art. 1 F b)

Art. 1 F(b) serves a different purpose. It aims at balancing the interest to prosecute crimes on the one hand and to protect victims of persecution on the other.

An exclusion according to Art. 1F(b) only comes into consideration for serious non-political crimes. There is no uniform state practice as to what constitutes a "serious" crime. Clear is, that it does neither cover minor crimes nor prohibitions on the legitimate exercise of human rights. Furthermore, there is some discussion as to when a crime is to be considered "non-political". Extradition law may provide some guidance, but is not conclusive in itself. Thirdly, the question whether Art. 1F requires a balancing test between the severity of the crime and the consequences of an exclusion has initiated some discussions. It is important to notice that, the principle of proportionality is a general principle of public international law. Art. 1F(b) opens quite some room for interpretation. The balancing test therefore is a good tool to avoid disproportionate consequences.

Art. 1F(b) is limited to crimes committed outside the country of refuge prior to the admission. Consequently, crimes committed in the country of asylum and/or after admission do not lead to exclusion from refugee status. Such cases are primarily to be handled by national law enforcement authorities or eventually through the mechanisms of Art. 32 and 33 (2).

1.3 Individual Responsibility

For an exclusion, individual responsibility must be established in relation to a crime covered by Art. 1F. However, if a government or a group clearly engaged in activities contrary to Art. 1F a presumption of responsibility may be established. It must however be rebuttable.

Acts commonly considered to be terrorist in nature are likely to fall within the exclusion clauses. The fact that an individual is designated on a national or international list of terrorist suspects should trigger consideration of the exclusion clauses but will generally not in itself constitute sufficient evidence to justify exclusion.

1.4 Exclusion and Human Rights Protection

The decision to exclude a person from refugee status has serious consequences. The person loses his/her status and all rights attached to it, including the right not to be refouled. However, it has to be borne in mind, that refoulement prohibitions have also been developed in the context of various human rights instruments such as for example Art. 7 ICCPR, Art. 3 CAT and for the European context, Art. 3 ECHR . Besides its treaty basis, the prohibition to refoule an individual to a country where s/he is threatened with a real risk for life or limb is meanwhile considered part of customary international law, if not ius cogens . Different to Art. 1F and Art. 33 II of the 51 Convention, the non-refoulement prohibitions of human rights law are considered absolute and do not allow for any exceptions. It is therefore legitimate to raise the question whether Art. 1 F becomes obsolete if these developments of the international human rights law are taken into consideration. The clear position of the UNHCR here is that refugee law and international human rights law in this regard have to be considered as two different legal bodies and the protection the human rights treaties offer complementary to the 51 Convention. Consequently, persons falling under Art. 1F are not considered refugees by the organisation. Based on a similar provision in the UNHCR statute , excluded asylum seekers do not even fall under the organisation's competence.

Nevertheless, human rights obligations generally will have the effect that the consequences of Art. 1F may not result in an actual removal to the country of origin as foreseen in the 51 Convention. Even if the refugee loses all protection under the 51 Convention, it will in most cases not be possible to deport him directly or indirectly to a country of persecution. However, the Swedish removal of the Egyptian asylum seekers reported above shows, that some states unfortunately attempt to circumvent these obligations. Nevertheless, the harsh criticism of various human rights bodies shows that such measures have not become acceptable.

1.5 Cancellation and Revocation

Although not explicitly included in the Convention, general principles of administrative law allow for the cancellation of refugee status where it is subsequently revealed that the basis for such a decision was absent in the first place. If the authorities obtain information after recognition that the refugee had engaged in criminal activities excludable under Art. 1F before admission, his or her refugee status is to be cancelled.

As concerns criminal activities after arrival or recognition in the country of asylum, one has to differentiate between crimes under Art. 1F (a) and (c) on the one hand and Art. 1F (b) crimes on the other. As already stated above, UNHCR clarified in its recent guidelines, that crimes under the first category could lead to an exclusion even after recognition, while an exclusion for Art. 1 F(b) crimes committed in the country of asylum after arrival would clearly be against the wording of that provision and the systematic of the Convention. Such situations are to be dealt with in the framework of Art. 33 (2).

2. Full criminal law enforcement in the host country (Art. 2)

Article 2 of the 51 Convention, which reads as follows:

"Article 2 (General obligations)
Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order".

explicitly states the duty of refugees to abide by the laws of the country he is staying in. The provision furthermore considers it a refugee's "duty" to conform with measures taken for the maintenance of public order. The provision clearly is axiomatic and need not be explicitly stated. However, it has a psychological effect on refugees and/or countries considering admitting refugees. Furthermore, it shows the purpose of the Convention to reintegrate the refugee in the framework of a community where they can recover the conditions of an active and peaceful life.

3. Detention (Art. 31)

According to Art. 31, which reads as follows:

"Refugees unlawfully in the country of refuge
(1) The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
(2) The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary..."

a refugee should not be punished solely because he had to enter the country illegally provided s/he arrives directly from the country of persecution, presents her/himself directly to the authorities and shows good reason for it. The exemption from the punishment for illegal entry also encompasses the use of false or forged documents. Refugees and asylum seekers should therefore not be detained simply because they entered the country illegally and/or applied for asylum.

Naturally, Art. 31 does not exempt refugees or asylum seekers from being punished for other offences. In this respect, it is however important to note that the due process requirements laid down in various human rights instruments (for ex. Art. 5 and 6 ECHR or Art. 9 ICCPR) do not differentiate between nationals and foreigners. They are therefore applicable as well.

4. Expulsion to a third country (Art. 32)

Besides the application of the exclusion clauses, the Convention provides for further mechanism to sanction refugees who engage in criminal activities. According to Art. 32 of the Convention, which reads as follows:

"Article 32

1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

a refugee can be expelled to a third state if he is a danger for the national security or public order. To protect the refugee's interests, Art. 32 (2) and (3) of the Convention provide for some procedural safeguards which must be met before the expulsion order can be issued.

In most cases it will be impossible to find a third state willing to accept the expelled refugee. However, even without its execution, the expulsion order can already be considered a severe sanction. It will regularly deprive the refugee of its residence permit so that the stay becomes illegal. In consequence, he will lose all rights and benefits which require a legal residence according to the 51 Convention. S/he will for example no longer be entitled to receive a travel document, public relief and assistance or a work permit.

5. Expulsion to the Country of Origin (Art. 33 (2))

According to Art. 33 (2) of the Convention, a refugee may exceptionally lose his fundamental right, the protection against refoulement to his country of origin if he is regarded either a danger to the security and/or the community of the country of refuge:

"Art. 33 (Prohibition of expulsion or return (refoulement)

1. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country."

While Art. 1F determines whether a person who committed severest crimes is (still) eligible for refugee status, Art. 33 (2) is directed to those who have already been recognised as refugees. Articles 1F and 33(2) are distinct legal provisions serving very different purposes.

Art. 33 (2) intends to protect the security of the refugee's guest state and community. Refugees enjoy special protection against expulsion. Primarily, it is the task of the state to prevent crimes and bring perpetrators to justice. The state should not simply get away with the danger of criminal activities by deporting the refugee to his country of origin. However, if a refugee engages in criminal activities of such a severe nature that s/he constitutes a severe danger to the state and the community, which the state is unable to handle through the normal law enforcement mechanisms, refugee law no longer expects the state to provide protection to the refugee. However, the state must prove, that the refugee poses a major actual or future threat. It is not sufficient that he has committed (and been convicted) for crimes in the past.

The requirements which must be met are high. The state must show that the refugee is a danger for the state or its organs as such or has been convicted for a "particularly serious crime" and constitutes a danger for the community.

The exception to the refoulement protection laid down in Art. 33 (2) has no effect on the absolute refoulement-prohibitions of human rights law (see above). International human rights obligations would in most cases prevent a deportation to the country of persecution. The Summary Conclusions of an expert round table organised within the framework of the Global Consultations even note a "trend against exceptions to basic human rights principles" which must be taken into account when interpreting the provisions.

These developments lead to the effect that the consequences of Art. 33 (2) in practice generally do not differ much from Art. 32, namely withdrawal of residence permit and the rights attached to a legal residence. Nevertheless, UNHCR would not intervene in cases of refoulement in line with Art. 33(2).

6. Refusal of CTD (Art. 28 (1))

According to Art. 28 (1) of the Convention a CTD can be refused to refugees staying lawfully in the country for "compelling reasons of national security or public order". Based on this provision, the authorities can prevent any travelling activities of persons suspected of serious criminal activities even before an exclusion or expulsion had been decided upon.

II. Conclusions

It has been shown that the Convention encompasses several mechanisms to handle cases of asylum seekers and refugees who are a (potential) security risk. The intention of the Convention is to keep severe criminals out of the protection regime, regardless of the fact that protection may be granted under the human rights instruments. September, 11 surely has contributed to a rigorous application of these mechanisms.

A complete analysis of current (European) State practice is difficult. It is not always obvious that a restrictive practice is indeed the result of increased security concerns. It is even more difficult to collect best practices. The neither exhaustive nor necessarily exemplary examples given in this paper, however, already show that states do not refrain from introducing measures which go beyond the possibilities provided by the Convention. In this regard, the requirement of a differentiated and individualised application of Art. 1F, especially 1F b) and Art. 33 (2) seems to pose specific problems to states. There is a tendency to apply these provisions already if certain factors of risk are given such as for example membership in a group generally qualified as terrorist.

Such measures may not only undermine the international protection regime but also put individual refugee's life directly at risk. Furthermore, it has to be recalled that the abovementioned resolutions of the Security Council underlined the necessity to act in conformity with international law. It would therefore be highly recommendable to critically assess such measures introduced sometimes under the immediate shock of the horrendous terrorist attacks.

It would have been outside the scope of this paper to examine current state practice in detail. The few examples given however already show that a more thorough analysis as to how states deal with increased security risks, what actions they have been taken and whether measures questionable from a refugee law and human rights perspective have proven to be successful would be important.