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Sunday, 18 February 2024
Migration Policies of the European Union
Lecture VI: Exclusion from protection in the EU

I. Exclusion: art 12
Art. 12 reproduces in part the ground for exclusion contemplated in arts. 1D, E and
F of the Geneva Convention, but expands upon them:
A. Persons already receiving protection
Art. 12(1)(a) (relating to art. 1D Convention 1951)
Excludes from being a refugee those who are receiving protection or assistance
from organs or agencies of the UN (e.g.: UNRWA). When such protection of
assistance has ceased, those persons shall ipso facto be entitled to the bene ts of
the Directive;
- Bolbol, CoJ: only those persons who have actually availed themselves to the
assistance come within the exclusion, not merely those who are eligible for
assistance.
- El Kott, CoJ: only those who are currently availing themselves of assistance and
those who in fact availed themselves of such assistance shortly before submitting
an application for asylum in a MS. Cessation cannot be construed from the mere
absence or voluntary departure from the area of protection.
B. Persons considered not to be in need of protection
Art. 12(1)(b) (relating to art. 1E Convention 1951)
Those who are “recognised” by the competent authorities of the country of

residence as having the rights and obligations attached to the possession of the
nationality of that country. Substitute protection akin to national protection; formal
citizenship is not required, but protection against removal should be guaranteed.
C. Persons considered not to be deserving of protection
Art. 12(2) and (3) (relating to art. 1F Convention 1951
Exclusion on criminal grounds, banning from refugee status those of whom there
are serious reasons for considering they have committed a :
- Crime against peace, a war crime or a crime against humanity: understood as
de ned in the international instruments;
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- Crimes against peace (London Charter 1945): planning, preparation, initiation
or waging a war of aggression, or a war in violation of international treaties,
or participation in a common plan or conspiracy for the accomplishment of
such.
- Crime of aggression (ICC Statute): planning, preparation, initiation or
execution, by the political or military head of State, which constitutes a grave
and large manifest violation of the UN Charter;
- War crimes (ICC Statute): committed in internal and international armed
con icts. Wilful killing, torture, deportation, attacks on civilians or POWs;
- Crimes against humanity: systematic against the civilian population in peace
or war time, includes the extermination, murder, enslavement, deportation or
forcible transfer of population, apartheid, rape and torture, persecution
against groups on political, racial, national, ethnic, cultural, religious, gender
or other grounds.
- A serious non-political crime outside the country of refuge: particularly cruel
actions according to international standards (e.g.: murder, rape, armed robbery).
Personal motives or others are predominant, and there is a negligible political
objective. Committed outside the country of refuge prior to their admission to that
country as a refugee; or
- Have been guilty of acts contrary to the purposes and principles of the UN: which
include terrorism and incitement of terrorism (it doesn’t automatically include
membership).
II. General criteria of application
Exclusion can only be determined after a full assessment of the individual

circumstances of the case.
Respect for the principle of proportionality: it is an exception to a human rights

guarantee, which is why it can only be proportionate to its objective (gravity of the
o ence in question is weighed against the consequences of exclusion).
Restrictive interpretation.
Exhaustive list: no other clauses can be added (Joined cases C-77/17; C-78/17 X
and X and C-391/16 M [2019]).
Serious reasons for considering: conviction or criminal standard of proof not

needed, only clear and credible evidence. The burden of proof rests with the State
and the applicant should be given the bene t of the doubt.
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Cancellation is the determination that an individual should not have been
recognised as a refugee. Revocation may take place if a refugee engages in
conduct coming within the scope of arts. 1Fa or 1Fc after having been recognised
as a refugee.
MS may revoke, end or refuse to renew refugee status if there are reasonable
grounds for regarding him or her as a danger to the security of the Member State in
which he or she is present, or if he or she, having been convicted by a nal
judgement of a particularly serious crime, constitutes a danger to the community of
that Member State.
III. Exclusion from subsidiary protection: art. 17
A third country national or a stateless person is excluded from being elegible for
subsidiary protection where there are serous reasons for considering that:
- He or she has committed a crime against peace, a war crime, or a crime against
humanity, as de ned in the international instruments drawn up to make provision
in respect of such crimes;
- He or she has committed a serious crime;
- He or she has been guilty of acts contrary to the purposes and principles of the
United Nations;
- He or she constitutes a danger to the community or to the security of the Member
State in which he or she is present.
Member States may exclude a third country national or a stateless person from
being eligible for subsidiary protection, if he or she prior to his or her admission to
the Member State has committed one or more crimes, outside the scope of
paragraph 1, which would be punishable by imprisonment, had they been
committed in the Member State concerned, and if he or she left his or her country of
origin solely in order to avoid sanctions resulting from these crimes. It is for the
authority or competent national court ruling on the application for subsidiary
protection to assess the seriousness of the crime at issue (Ahmed).
Expulsion of Union citizens and their family members on grounds of public policy or
public security is a measure that can seriously harm persons who, having availed
themselves of the rights and freedoms conferred on them by the Treaty, have
become genuinely integrated into the host Member State. The scope for such
measures should therefore be limited in accordance with the principle of
proportionality to take account of the degree of integration of the persons
concerned, the length of their residence in the host Member State […] and the links
with their country of origin.
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Sunday, 18 February 2024

Migration Policies of the European Union

Lecture VI: Exclusion from protection in the EU

A. Persons already receiving protection

Art. 12(1)(a) (relating to art. 1D Convention 1951)

B. Persons considered not to be in need of protection

Art. 12(1)(b) (relating to art. 1E Convention 1951)

Those who are “recognised” by the competent authorities of the country of

C. Persons considered not to be deserving of protection

Art. 12(2) and (3) (relating to art. 1F Convention 1951

II. General criteria of application

Exclusion can only be determined after a full assessment of the individual

Respect for the principle of proportionality: it is an exception to a human rights

Serious reasons for considering: conviction or criminal standard of proof not

III. Exclusion from subsidiary protection: art. 17

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