Additional UNHCR Observations on Article 33(2) of the 1951 Convention in the Context of the Draft Qualification Directive

1. UNHCR welcomes that the discussions have moved away from including Article 33(2) of the 1951 Convention in the provisions on the exclusion clauses of the Draft Qualification Directive. The most recent version of the draft Directive proposes two ways of incorporating Article 33(2) into the draft Directive.

2. Article 19 (2) of the draft Directive reflects the exceptions to the principle of non-refoulement, as contained in Article 33(2), proposing them to be applicable to asylum-seekers, refugees and persons eligible for subsidiary forms of protection. Paragraph 3 stipulates that Member States may revoke, end or refuse to renew or grant the residence permit of (or to) a refugee or a person eligible for subsidiary protection.

3. Paragraph 4 of Article 14B of the draft Directive allows for the revocation or ending of refugee status if

(a) the person "…has committed a serious non-political crime for reasons which would have led to exclusion of the person, if the crime had been committed outside the country of refuge prior to admission to that country as refugee;" or

(b) "there are reasonable grounds for regarding that he or she constitutes a danger to the security of the country in which he or she is".

4. If these proposals are alternatives, from UNHCR's perspective, adding Article 33(2) of the 1951 Convention to Article 19 is clearly the preferred option since it is closest to the logic and tenor of the Convention. Article 19(3) of the draft Directive, which is consistent with Article 33(2) of the 1951 Convention, gives States the possibility to revoke residence permits of refugees in cases where refoulement is permitted under the 1951 Convention but prohibited under human rights instruments.

5. Yet the way Article 19(2) and (3) is currently conceived is not fully satisfactory since it does not give the full picture of the Convention obligations applicable in such a case. As correctly foreseen in Article 19 of the draft Directive, an expulsion order in accordance with Articles 32 and 33(2) of the 1951 Convention does not entail loss of refugee status. However, a refugee - lawfully staying at the time an expulsion procedure is initiated - who has been served with an expulsion order after due process of law, in accordance with Articles 32 and 33(2), can no longer be regarded as lawfully present in the territory of the State concerned, as a result of such a procedure. Accordingly, such a refugee would not be entitled to the benefits that are attached to the lawfulness of his or her presence.[1] It should also be pointed out that Article 32(3) stipulates that a refugee subject to expulsion pursuant to Article 32(1) shall be allowed "a reasonable period within which to seek legal admission into another country". This is a specific procedural safeguard attached to refugee status, which is explicitly stated in Article 32 and impacts on the operation of Article 33(2) in case expulsion to the country of origin is envisaged. It also underlines that refoulement is considered a measure of last resort if other means, such as prosecution or imprisonment in the country of refuge or removal to a third country, are unavailable. It is conceivable that someone may be admitted as a refugee to a third country that does not have the same security concerns as the country of expulsion. UNHCR would therefore suggest that reference to the procedural safeguards, contained in Article 32, be made explicitly in Article 19(3) of the draft Directive. UNHCR notes that the current formulation of Article 19(2) also refers to asylum-seekers. This is, however, not necessary since the applicability of the exception of Article 33(2) depends in the first place on whether or not the person fulfills the criteria of the refugee definition. Establishing the refugee character is an important element for the applicability of Article 33(2), not least to enable the assessment of proportionality considerations.

6. As regards the proposal to revoke or cancel refugee status on the basis of Article 14B(4) of the draft Directive, UNHCR appreciates that exclusion considerations come into play when considering grounds for revocation of refugee status. Clearly, these considerations will need to take into account a number of new dimensions of serious threats to national security. UNHCR is therefore supportive of revoking refugee status on the basis of crimes listed in Article 1F(a) and (c) of the 1951 Convention, irrespective of when and where these crimes were committed. The draft Directive seems to have picked this up in Article 14B(3). The types of atrocious crimes committed in the context of new threats of an international terrorist nature would normally be covered by these exclusion clauses. This enhanced understanding of the exclusion clauses will also be reflected in UNHCR's revised guidelines on the applicability of the exclusion guidelines. Whereas the aforementioned exclusion clauses do not contain a temporal reference, Article 1F(b) specifies explicitly that serious, non-political crimes must have been committed outside the country of refuge prior to admission. The logic of the Convention is such that the type of crimes covered by Article 1F(b) committed after admission would be handled through rigorous domestic criminal law enforcement, as well as the application of Article 32 and Article 33(2) where necessary. The proposal of the draft Directive (as contained in Article 14B(4)) does, however, not follow this logic. The Office appreciates the perceived incompatibility between persons enjoying the benefits of the 1951 Convention who committed a serious non-political crime and the fundamental humanitarian tenor of the Convention. However, the Office's concerns stem from the lack of a harmonised interpretation of such crimes and the reality in some countries where offences are included for which the stripping of refugee status and its effects would be disproportionate. This is not least reflected in the phraseology of Article 33(2), which refers to conviction by a final judgement of a particularly serious crime, coupled with an assessment of danger to the host community. The Office prefers to maintain the revocation of residence permits of refugees in such cases, as envisaged by draft Article 19(3).

7. Against this background, UNHCR recommends that refugees who are considered a danger to the security of the country of refuge or the community should be examined in the light of Article 19 of the draft Directive (and thus Article 33(2) of the 1951 Convention). The proposal to include Article 33(2) or elements thereof in Article 14B(4) is not necessary for the reasons outlined above. In addition, it may have serious negative effects outside the European Union, were it to be replicated and used as a basis for cancellation or revocation of refugee status in regions with less stringent human rights and rule of law safeguards in place.

UNHCR Geneva

December 2002

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[1] The rights and benefits provided under the various provisions of the 1951 Convention have different levels of application, depending on the nature of the refugee's sojourn or residence in the country. The most fundamental rights (Articles 3, 31 and 33) and some others (see for example Articles 2,4,20,22,27) apply to all refugees, irrespective of the lawfulness of their presence. Other provisions apply to refugees "lawfully in" the country (Articles 18, 26, and 32(1)) while certain of the more generous benefits are to be accorded "to refugees lawfully staying in the territory" of the country concerned (Articles 15, 17, 19, 21, 23, 24 and 28; see also Articles 14, 16(2) and 25). The drafting history shows that the English term "lawfully staying" is based on the French, and that a distinction was intended between basic rights accorded to all refugees and other rights and benefits accorded to those accepted as legal residents.