Article 1F of the 1951 Refugee Convention excludes individuals who have committed serious crimes from being eligible for refugee status under the Convention. It states:
Article 1F of the 1951 Refugee Convention states:
F. 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.
Section 98 of Canada’s Immigration and Refugee Protection Act (the “Act“) provides that a person encompassed by the 1951 Refugee Convention is not a Convention refugee or a person in need of protection pursuant to the Act.
In Hernandez Fables v. Canada (Citizenship and Immigration), 2011 FC 1103, the Federal Court certified the following question:
When applying article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?
In other words, should a refugee claimant who has committed a serious non-political crime abroad, but has since been rehabilitated, be precluded from claiming refugee status?
The Federal Court of Appeal has definitively answered that it does not matter whether a person who has committed a serious non-political crime abroad has been rehabilitated. The seriousness of a crime is to be assessed as of the time of its commission; its seriousness does not change over time, depending on whether the claimant is subsequently rehabilitated and ceases to pose a danger to the public.
In rejecting the argument that a purposive approach to Article 1F regarded an analysis of whether an individual was presently a danger to the public, the Federal Court of Appeal cited the European Court of Justice, which wrote in 2010 that:
… the grounds for exclusion at issue were introduced with the aim of excluding from refugee status persons who are deemed to be undeserving of the protection which that status entails and of preventing that status from enabling those who have committed certain serious crimes to escape criminal liability. Accordingly, it would not be consistent with that dual objective to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State.
Rehabilitated individuals who are excluded from refugee protection still have the option of obtaining a stay of removal by obtaining a positive Pre-Removal Risk Assessment.