Exclusion - 1F(b) and 1F(c)
| Author | Joseph Rikhof |
| Pages | 439-587 |
439
Exclusion — 1F(b) and 1F(c)
A. EXCLUSION FB
1) Introduction
Article 1F(b) reads as follows: “He has committed a serious non-political
crime outside the country of refuge prior to his admission to that coun-
try as a refugee.”
The most important issues, which have been the subject of academic
debate and jurisprudence, are the concept of what constitutes a serious
crime and the parameters of the notion of political crime. The latter
issue has also been raised in the context of the development of the legal
proscriptions of terrorism. As well, the connection between refugee law
and extradition law has been considered both in the areas of exclusion
and refoulement. The concern with extradition and refoulement is that
a person can have claimed or even been granted asylum but is also the
subject of an extradition request by the country against which they have
claimed a fear of persecution, raising the prospect of a possible hier-
archy between asylum and extradition. This problem will be addressed
continuing presence in its territory is contrary to the public interests of the territorial State.
Expulsion of Aliens, Memorandum by the Secretariat,
International Law Commission,
440| Exclusion and Refoulement: Criminality in International and Domestic Refugee Law
in Chapter . In this chapter, the relationship between extradition and
exclusion will be examined.
a) Extradition
As we saw in Chapter , extradition and asylum figured in the debates
leading up to the Refugee Convention but not prominently and again
primarily in conjunction with the issue of refoulement. The main rea-
son this issue had surfaced at the negotiations of the convention was
that the United Nations High Commissioner for Refugees (UNHCR)
Statute excluded persons who had “committed a crime covered by the
provisions of treaties of extradition,” while the comparable provision
of the convention was drafted in broader language similar to the final
text set out above. Most commentators believe that because of this
dierence in language, an automatic transfer of extradition principles
to the exclusion context was not intended and is therefore not justi-
fied, which has also been the view in the jurisprudence. Two aspects
of extradition law that might find some resonance in exclusion law are
the double criminality requirement and the concept of political oender.
The double criminality requirement means that the conduct of the
person whose extradition is requested is a crime in both the country
that made the request as well as the country to which the request is
2 Article 7(d).
Refugee Protection in International Law: UNHCR’s Global
Consultations on International Protection
The Status of Refugee in International Law, vol I(Leiden:
Journal of Migration and Refugee Issues-
The Law of Refugee Status,
Exclusion from Protection as Refugee: An Approach to a Harmoniz-
ing Interpretation in International Law
The Interface Between Extradition and Asylum
.
4 See in Australia, Minister for Immigration and Multicultural Aairs v Singh
SinghGil v Canada (Minister of Employment and Immigration) (CA),
GilZrig v Canada (Minister of Citizenship and Immigration)
ZrigFebles v Canada (Citizenship and Immigration), 2014 SCC
FeblesThe Attorney-General (Minister of Immigration)
v Tamil X and the RSAATamil X
Tand Immigration OcerImmigration Ocer
McMullen v INS
Exclusion — 1F(b) and 1F(c) | 441
directed. While this does not appear to be a dicult condition to adhere
to, there are three dierent ways to interpret this requirement. There
is the objective method, in which the label of the oence has to be the
same in both countries. There is the subjective methodology, whereby
an inquiry is made as to whether the essential elements of the oence
charged in one country correspond to the elements of an oence in the
other country, no matter what the oences are called in either country.
And third, double criminality can be accomplished by assessing whether
the conduct of the accused is criminal in both countries, in what has
been termed the “subjective, abstract approach.” The first method
was never applied, while the comparing of elements was popular until
recently, when the abstract approach gained more currency.
Related to the issue of double criminality is the definition of
extraditable crimes. Two approaches are employed: either setting out
an enumeration of all extraditable oences in the extradition treat-
ies between two countries or indicating in the treaty that all oences
with a minimum penalty amount to an extraditable oence. The latter
approach is used more often nowadays. In this context, it is useful to
Responding to International Crime
Exclusion from Protection as Refugee: An Approach to a Harmonizing Inter-
pretation in International Law
International & Transnational Criminal Law
Extradition Act 2003
Interface, above note 3-
respondence of essential elements approach is used in Canadian immigration law, where
Immigration and Refugee Protection ActIRPA
see Li v Canada (Minister of Citizenship and Immigration)
system is either one year within the European Convention on Extradition approach or
penalty is one year (art 5 of the Extradition Act1988); in Canada, it is two years (art 3(1) of the
Extradition Act
Extradition Act 1999
United States Code
Exclusion GuidelinesInterface, above
note 3 at 59–63. Interesting in this context is the observation by the Supreme Court of
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