The implications of legal limbo in the field of International Protection

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*Disclaimer: The opinions expressed in this publication are those of the writer and do not necessarily represent the position of other entities or organizations.   Migration related issues have become a prevalent, if not controversial, topic especially in view of the mass influx of migrants and/or refugees in Europe after 2015. Since then, practically every European citizen has formed an opinion on how the issue should be handled, a trend that debases the phenomenon in a purely societal one. However, it is not. It remains a hodgepodge of social, political and humanitarian aspects. But, primarily, it remains, and always has been, a field anchored in legal frameworks and the obligations that derive thereof. With the hereof report, things might get, to a smaller or greater extent, technical, but wishing to include in the discussion as many as possible from various correlated fields, I will unfold my thoughts in the most simplified way possible, of course in proportion to the complexity of the topic. In addition to that, since the term of International Protection includes several distinct statuses (e.g. refugee status, subsidiary protection, a status granted for humanitarian purposes etc.), it is clarified that the report focuses exclusively on the refugee status as defined in the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol. Starting from the basics, the term “refugee” applies to any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such. However, according to the provision of the article 1F of the same legal text, ‘’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’’. In simple words; we might talk about a foreign national, who fulfils the criteria of the refugee definition, hence the person is eligible for international protection, however simultaneously, they do not deserve it, because they have committed one of the acts enumerated under the article 1F. In principle, those persons are to be deported or otherwise removed from the State that is responsible for the examination of their case, unless they fall under the provision of the prohibition of refoulement. Article 33 (1) of the Refugee Convention embodies the obligation of non-refoulment, which prohibits the expulsion or return of a refugee in any manner whatsoever to the borders of a territory where his or her life or freedom would be threatened on account of his or her race, religion, nationality, political opinion, or membership of a particular social group. In addition, International human rights obligations, such as Article 3 of the European Convention on Human Rights (ECHR); Article 3 of the Convention against Torture; Article 7 of the International Covenant on Civil and Political Rights preclude extradition. And yes, one person can fulfil all the above cumulatively. The question is; what happens then? We are talking about a person who literally exists in legal limbo. H/She can neither be granted with refugee status nor be legally removed from the competent State, therefore the person is just physically present in the host country. The question that arises next is ‘’can the host country prosecute the person because he/she has committed one or more of the excludable acts?’’.  And here things get even more complicated. The answer is not always, because the standard of proof is different in the Refugee Status Determination procedure, and more specifically when exclusion clauses apply, to the standard of proof required in the penal procedure. That means that from an RSD perspective we might have ‘’serious reasons to believe’’ that the person has committed one of the excludable acts mentioned above, however, there are not sufficient pieces of evidence based on which a penal procedure could be initiated. Another potential burden might be that the national authorities of the host country may lack jurisdiction to inquire, indict and trial the suspect before their own judicial institutions. The overly complicated situation explained above, creates, as one might assume, significant legal, political and societal implications, which relate to human rights violations, national security and absence of durable solutions.

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