Journal Article

Excluding Justice: The Dangerous Intersection between Refugee Claims, Criminal Law, and ‘Guilty’ Asylum Seekers

Jennifer Bond

in International Journal of Refugee Law

Volume 24, issue 1, pages 37-59
Published in print February 2012 | ISSN: 0953-8186
Published online January 2012 | e-ISSN: 1464-3715 | DOI: https://dx.doi.org/10.1093/ijrl/eer039
Excluding Justice: The Dangerous Intersection between Refugee Claims, Criminal Law, and ‘Guilty’ Asylum Seekers

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The 1951 Refugee Convention contains an ‘exclusion clause’ stipulating that individuals who have committed certain serious crimes – including war crimes and crimes against humanity – are not entitled to the protections associated with being a legal refugee. Each time the United Nations Refugee Agency (UNHCR) or a resettlement country conducts an evaluation to determine whether an asylum seeker meets the convention criteria, the exclusion provision is considered.

Principles developed in the criminal context figure prominently in exclusion assessments, a practice that is logical and convenient, both because the language of the provision mandates referral to relevant international instruments and because the entire evaluation is based on determining whether the claimant has committed a crime. There are, however, significant challenges associated with transposing legal ‘tests’ and ‘frameworks’ directly from one paradigm to another, and caution must be taken to ensure that underlying principles of fairness and justice are not compromised.

This article critically evaluates the consequences of applying jurisprudence developed in the criminal context to exclusion assessments. Focusing on the UNHCR’s practices in situations of mass influx, it argues that a failure to consider individual and mitigating circumstances, while simultaneously relying on criminal principles that assume these factors form part of the analysis, can lead to unprincipled decisions and extreme injustices. It further suggests that this problem can be remedied through a re-formulation of the proportionality aspect of the UNHCR’s exclusion process.

Journal Article.  10180 words. 

Subjects: Human Rights and Immigration ; Refugee Studies

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