Who is excluded from the Refugee Convention?

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
25 March 2024

Article 1F excludes refugee applicants where there are serious reasons for considering those who committed crimes against peace, war crime, or crimes against humanity or those who have committed a serious non-political crime, prior to seeking protection in the host country and those who are guilty of acts that are contrary for the purpose and principles of the United Nations.

The Home Office Policy and Guidance provides instructions to asylum decision makers on how to concede the elements of Article 1F and it explains that they are not a refugee as a result of Article 1F of the Refugee Convention, even where they would otherwise meet a definition of a refugee in Article 1A(2). Article 33(3) of the Refugee Convention has a different purpose. In effect, it negates the principle of non-refoulement set out in Article 33(1). It relates to individuals who are convention refugees but who are considered to be serious criminals or a threat to public security. It provides that such refugees may be returned to a country of persecution where there are reasonable grounds for regarding them as danger to the security of the host country or having been convicted by a final judgment of particularly serious crimes and they are considered to be a danger to that community.

Why does the Refugee Convention exclude serious criminals from protection?

At the time that the Refugee Convention was drafted, it was done immediately after the Second World War and those who drafted it were concerned that Nazis and others who had committed atrocities should not be able to claim asylum and evade justice. The other was that the legal agreement they were drafting was new and the Refugee Convention was only the second to be negotiated and agreed. The first was the Genocide Convention. In order to persuade the states to sign this agreement, the limits on the state sovereignty had to be limited as to be morally defensible to public opinion.

In our practice we have to advise those who are facing deportation and wish to seek protection as refugees. The issues of deportation of criminals who have committed serious crimes and who will nevertheless be returning to the country of origin is a complex one. According to the Crime Prosecution Service, the number of foreign national offenders subject to deportation action living in our community has risen year on year for the last decade. Can criminals be denied refugee status? The short answer is yes, criminals can be denied refugee status, however Human Rights Law is different and multiple international conventions prohibit a state party from exposing a person to torture, inhumane or degrading treatment. Therefore, it would be open to the applicant who asked for protection of his rights under Article 3 the right not to be subjected to inhumane or degrading treatment. The Supreme Court stated in the case of Rwanda, “It is not just European Convention on Human Rights that does this but also the Convention Against Torture, the International Covenant on Civil and Political Rights and other international law instruments”.