The Problem with Exclusion: A Critical Analysis of Article 1F(a) of the Refugee Convention

Abstract

This thesis critically analyses an exclusion mechanism of the 1951 UN Refugee Convention; Article 1F(a) (“1F(a)”). 1F(a) excludes asylum seeker from refugee status where there are “serious reasons for considering” that they have committed an international crime. Originally included in the Convention as a means of protecting its integrity, this provision has been increasingly applied by states in recent years and has also attracted increasing criticism. Commentators have voiced concern over deficiencies in state practice, particularly an expansion of international criminal law to cover acts of terrorism and an increasingly common practice of excluding asylum seekers with only remote connections to international criminal activity. This thesis contributes to this literature in two ways. First, it undertakes a critical analysis of New Zealand’s 1F(a) exclusion practice and identifies trends in New Zealand’s treatment of international criminal law in its 47 1F(a) exclusion determinations. Second, using New Zealand’s practice as a case study, it demonstrates that the problems with exclusion go beyond the interpretation of international criminal law. They also extend to the procedures that states have adopted to undertake an exclusion determination. In particular, New Zealand’s practice reveals pressing concerns with respect to an asylum seeker’s right to silence and freedom from self-incrimination, right to be heard, and right to present and challenge evidence. In identifying due process issues in New Zealand’s exclusion practice, the thesis contends that states are required, as a matter of international human rights law, to enhance the due process rights of asylum seekers facing exclusion. It argues that an exclusion determination, because of its criminal law character and punitive consequences, should be legally subject to the same due process rights as a criminal trial, even though it is formally classified as an ‘administrative’ proceeding. Enhancing due process protections, it suggests, is essential to achieving principled decision-making in the exclusion context. Nonetheless, a number of developments in contemporary international law indicate that Article 1F(a)’s future in the Convention is questionable. States are now required, under a number of human rights treaties, to protect persons from return to a country where they may face severe deprivations of their fundamental human rights, regardless of their background or past conduct. In light of these developments, it is submitted that Article 1F(a) is at best outdated, and at worst undermining the Convention’s ongoing credibility in the contemporary international human rights framework.