Addressing security and criminality concerns: the Temporary Protection Directive’s ‘exclusion clauses’ unpacked

Forum on the EU Temporary Protection Responses to the Ukraine War 

Contribution by Dr Sarah Singer, Refugee Law Initiative, School of Advanced Study, University of London
13 April 2022

The Russian invasion of Ukraine has rightly given rise to an outpouring of support across the continent. The European Council has, for the first time, activated the Temporary Protection Directive, granting protection across its Member States to Ukrainians and their family members who have fled the conflict. Although questions have been raised about the differential treatment of this wave of refugees compared to those similarly fleeing conflict in Afghanistan or Syria, the fact that European States have acted as they have done is commendable.

However, the response across the continent has not been unanimous. In particular, the UK government has been criticised for its inflexible visa policy towards those fleeing Ukraine. This, it argues, is due to the security risks entailed in unmanaged migration flows. It alleges fears that refugee routes could be abused by Russian spies, criminal drug gangs, or indeed pose a health risk to the local population.

Clearly, the UK has been increasingly isolated politically from Europe in recent years, and its position appears particularly influenced by Russian influence on the country and the nerve agent attack in Salisbury, UK, in 2018 allegedly committed by Russian agents. Nonetheless, given the increasing predominance of the linkage between refugee flows and security risks in Europe’s political rhetoric in recent years, these are concerns which could spread among EU Member States as the conflict progresses.

The Temporary Protection Directive does however have inbuilt mechanisms to protect the security interests of States. Mirroring equivalent provisions in the 1951 Refugee Convention and the EU Qualification Directive, under the Temporary Protection Directive States can deny protection to those considered to have committed serious crimes and/or to pose a security threat to the host State. The purpose of this contribution is to unpack these provisions and demonstrate that the Temporary Protection Directive has adequate tools to address security and criminality concerns such as those raised by the UK. The activation of the Directive is rightly focused on providing protection to those fleeing Ukraine, and this should not be called into question by unwarranted linkages between those seeking safety and serious criminality. Where legitimate concerns are raised, the tools are in place to ensure that those who are considered underserving of protection under the Temporary Protection Directive do not benefit from the Directive’s protection.

It is argued here that these ‘exclusion’ provisions of the Temporary Protection Directive require States to consider exclusion from protection only in respect of those considered to have personally committed the most serious (international) crimes. This is not only the most feasible approach in contexts of mass influx, but could also help to re-orient the focus of exclusion provisions more appropriately to those considered guilty of the most serious crimes, rather than the trend witnessed in recent years in certain Western countries to focus on increasingly minor alleged offences to justify exclusion from protection.

What security concerns might arise?

Recent decades have seen increasing conflation between refugees seeking international protection and potential security or terrorist threats to host States. We have seen this nexus develop in the political rhetoric following the 9/11 terrorist attacks on the United States, in the context of the European refugee ‘crisis’ and in relation to refugees from specific countries who have alleged membership or affiliation with the activities of terrorist, criminal or military groups.

Aside from the isolated position taken by the UK, the refugee movement from Ukraine has not attracted similar concerns. This may be because such movement is at present predominantly limited to women and children (Ukrainian men between the ages of 18-60 being prohibited from leaving the country). There may also be a racial aspect to the criminal characterisation (or not) of refugee flows: the predominantly white, Christian demographic of those fleeing Ukraine does not fit the typical image of a ‘terrorist’ (a Western stereotype which persists despite it being shown that, for example, in the United States the most significant terrorist threat is posed by White supremacists).

However, the conflict in Ukraine has been beset with atrocities. The Implementing Decision of the Temporary Protection Directive itself describes the Russian aggression as a gross violation of international law and the UN Charter, and refers to allegations of war crimes and crimes against humanity committed by Russian forces in the country. While allegations of such atrocities have been directed towards Russian military forces, one must remember that Ukrainians are not an homogenous group and significant pro-Russian groups and individuals exist in the country who have been taking part in hostilities (indeed, the conflict has been typified by support for ‘volunteer’ fighters on both sides). The actions of such groups may warrant particular attention as the conflict progresses, as such individuals may seek to flee the conflict towards Europe. Equally, legitimate concerns may be raised about Ukrainian residents who, although not involved in the conflict itself, have a serious criminal history. As the situation progresses, we may therefore see more attention by EU Member States focused on security and criminality concerns.

How does the Temporary Protection Directive address criminality and security concerns?

The implementation of the Temporary Protection Directive provides protection to Ukrainian nationals and refugees residing in Ukraine, though Member States ‘may’ also grant protection under the Directive to stateless persons and third country nationals (TCNs) residing legally in Ukraine. The focus of the implementation of the Directive is therefore on Ukrainian nationals and those legally resident in Ukraine, rather than Russian military forces or Russian or TCN volunteers who may be involved in the conflict.

As noted above, the Temporary Protection Directive contains adequate tools to address concerns Member States may have surrounding criminality or threats to host State security. This is acknowledged in preambular role 18 of the Implementation Decision, which notes that:

Directive 2001/55/EC takes duly into account the responsibilities incumbent on Member States with regard to the maintenance of law and order and the safeguarding of internal security, as it allows Member States to exclude a displaced person from temporary protection where there are serious reasons for considering that the person: 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; has committed a serious non-political crime outside the Member State of reception prior to admission to that Member State as a person enjoying temporary protection; or has been found guilty of acts contrary to the purposes and principles of the UN. The Directive also allows Member States to exclude a displaced person from temporary protection where there are reasonable grounds for regarding that person as a danger to the security of the host Member State or a danger to the community of the host Member State.

The provision of the Temporary Protection Directive referred to in this preambular role is Article 28, which essentially mirrors the ‘exclusion’ clauses found in the 1951 Refugee Convention (Article 1F) and the 2011 EU Qualification Directive (Article 12). The rationale being twofold: to exclude those who has committed acts so grave and heinous as to be considered ‘undeserving’ of protection, and to ensure such persons do not misuse the institution of asylum to evade legitimate prosecution for their actions. Most immediately, we may think of those taking part in the Ukrainian conflict who have committed war crimes or crimes against humanity as referred to in sub-provision 28(1)(a)(i). This may be applicable to Ukrainian pro-Russian groups taking part in the conflict and involved in attacks on Ukrainian civilians. Importantly, Article 28(2) provides that a decision to exclude from protection under the Directive ‘should be based solely on the personal conduct of the person concerned’, so an individual should not be excluded from protection merely for membership of an armed group. Rather, such a decision should be based on their personal conduct and individual responsibility for the commission of crimes in the context of the armed conflict.

Article 28(1)(a)(i) of the Temporary Protection Directive also makes reference to a ‘crime against peace’, now more commonly known as the crime of aggression (see Article 8bis of the Rome Statute). This would apply to those involved in the ‘planning, preparation, initiation or waging of a war of aggression’, responsibility for which would be limited to the Russian head of State or high-ranking Russian State officials who do not fall within the scope of the Implementing Decision, rather than those fleeing Ukraine whether or not they have taken part in the conflict.

Article 28(1)(a)(iii) also makes reference to those ‘guilty of acts contrary to the purposes and principles of the United Nations’. This is a curious phrase which has evaded precise definition, but has been applied to cases of international terrorism (see preambular role 31 to the EU Qualification Directive and the decision of the CJEU in Bundesrepublik Deutschland v B and D), drug trafficking, and attacks on UN peacekeeping forces. I have argued elsewhere that, as the purposes and principles of the United Nations are inherently international in nature, application of the provision should be limited to senior State officials or high-ranking members of an organisation that are capable of implementing policies and large-scale actions that threaten international peace and security, rather than low ranking members in a State-controlled or rebel organisation. Again, reference here would primarily be towards high-ranking Russian officials or the Russian head of State who do not fall within the scope of the Implementing Decision, rather than those fleeing the conflict.

The second sub-provision of Article 28(1) refers to those for whom there are ‘serious reasons for considering’ have ‘committed a serious non-political crime outside the Member State of reception prior to his or her admission to that Member State as a person enjoying temporary protection’. This provision, as reflected in Article 1F(b) of the 1951 Refugee Convention and Article 12(2)(b) of the EU Qualification Directive, has typically been more widely used in refugee exclusion decisions outside the context of temporary protection. It has been suggested that examples of ‘serious crimes’ include murder, rape, arson and armed robbery.

However, we have seen instances where a particularly low bar has been set for what constitutes a ‘serious crime’. For example, UK Home Office guidance suggests that a ‘serious crime’ for the purpose of exclusion from refugee protection is one for which a custodial sentence of 12 months or more would be applied if convicted in the UK. This is in marked contrast to the position of Canada, for example, which applies a presumption of exclusion for a crime which would attract a 10 year custodial sentence (see s.101(2) of the Immigration and Refugee Protection Act). Indeed, the CJEU has criticised attempts to automatically exclude individuals from protection based on the length of custodial sentence prescribed in national law, rather stressing the need for an individual assessment into all the circumstances of the case.

The need for a uniform application of this provision among Member States would necessarily exclude from the definition of ‘serious crime’ acts which are classified as such only as a result of particularly stringent legislation in a Member State, such as the UK’s recent proposal to criminalise irregular asylum seeker arrivals. Rather, the notion of ‘serious crime’ should be more properly limited to a capital crime or a very grave punishable act (see UNHCR Handbook, para 155). In the current context one might think of the potential applicability of this provision to those fleeing Ukraine who have a (serious) criminal history. It must be noted however that this sub-provision provides that ‘The severity of the expected persecution is to be weighed against the nature of the criminal offence of which the person concerned is suspected.’ This qualifier is not present in parallel provision in EU Qualification Directive, and indeed this ‘balancing’ exercise been explicitly rejected by the CJEU.

For present purposes this would suggest that States should carefully consider the severity of the humanitarian situation being faced in Ukraine before considering exclusion from protection on the basis of past ‘common’ (non-international) crimes. This approach is buttressed by Article 28(2) which provides: ‘Exclusion decisions or measures shall be based on the principle of proportionality.’ Again, this proportionality approach requires States to take into account the severity of harm being faced when considering the appropriateness (or not) of exclusion from protection. This accords with the strict, or restrictive, approach which should be taken to the interpretation of the exclusion provisions, as exceptions to a humanitarian instrument. The principle of restrictive interpretation entails that in the case of any ambiguity, the narrower, stricter sense which favours non-exclusion is to be preferred. The exceptional nature of the exclusion provisions also requires that the burden of proof rests on the State to justify a decision to exclude an individual from international protection. It should furthermore be noted that the reference in Article 28(1)(a)(ii) is to serious ‘non-political’ crimes. This suggests that crimes committed in context of Ukrainian resistance against the Russian invasion should not fall within the scope of this provision unless they are considered to be ‘particularly cruel actions’ (as per Article 28(1)(a)(ii)).

Sub provision (b) of Article 28 moves the focus away from the past acts of individuals in and of themselves and focuses more squarely on the security concerns of the host State. Here an individual may be excluded from protection where: ‘there are reasonable grounds for regarding him or her as a danger to the security of the host Member State or, having been convicted by a final judgment of a particularly serious crime, he or she is a danger to the community of the host Member State’. Firstly, it must be noted that, in the same vein as its parallel provision in the EU Qualification Directive, this is an incorrect transposition of Article 33(2) of the 1951 Refugee Convention under which an individual loses protection against refoulement rather than status as a refugee (and such persons would likely benefit from protection against refoulement under human rights law).

It is not immediately apparent that persons fleeing Ukraine will be considered a security threat to an EU Member State. Russian ‘spies’ or infiltrators would not fall within the scope of the Implementing Decision itself and so the question of exclusion from protection would not arise. However, for any persons falling within the scope of the Directive for whom host State security concerns are raised, a decision to exclude must be based on the principle of proportionality in light of the humanitarian situation and consequence of exclusion from protection, and be based on the personal conduct of the individual, rather than mere membership of a group or organisation (Article 28(2)). Furthermore, an assessment must be made establishing that the individual conduct of the person in question represents a genuine, present and sufficiently serious threat to the Member State. Again, as an exception to a humanitarian instrument the provision is subject to strict interpretation and the burden of proof rests on the State.

Conclusions

We have seen that the Temporary Protection Directive has appropriate tools to address criminality and/or security concerns raised by States and maintain the integrity of the protection regime. Throughout, the emphasis must be on the proportionality of such a decision in light of the severity of the humanitarian situation in Ukraine, to ensure that only those considered to have personally committed the most serious crimes fall within the scope of the ‘exclusion’ clauses. In this respect it is also notable that exclusion provisions of the Temporary Protection Directive are framed in the non-mandatory ‘may’ rather than the mandatory formulations employed in the 1951 Refugee Convention and the EU Qualification Directive.

The Temporary Protection Directive’s focus on proportionality and personal responsibility for the commission of crimes is a welcome check on developments in this area of law. Once temporary protection status ceases, those who have fled the Ukraine conflict may apply for refugee status under the EU Qualification Directive, and questions of exclusion may arise.

In contrast to the Temporary Protection Directive, the provisions on exclusion from refugee status under Article 12(2) of the EU Qualification Directive (and Article 1F of the 1951 Refugee Convention) employ a mandatory formulation. States are therefore required to exclude from protection those who fall within the scope of the provision. Although similar to the exclusion provisions which appear in the Temporary Protection Directive, the references to the principle of proportionality and weighing the severity of the expected persecution against the nature of the criminal offence which appear in the Temporary Protection Directive are absent from the Qualification Directive’s equivalent provisions.

The provisions on individual responsibility also differ. The Qualification Directive takes a rather wide formulation of personal conduct which ‘applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein’. This has led to some expansive interpretations of the Qualification Directive’s exclusion provisions, applying exclusion to a broader range of acts than may originally have been envisaged, including in instances where no crime has taken place at all. For example, in the Lounani decision the CJEU held that:

‘acts constituting participation in the activities of a terrorist group, such as those of which the defendant in the main proceedings was convicted, may justify exclusion of refugee status, even though it is not established that the person concerned committed, attempted to commit or threatened to commit a terrorist act.’

This is a concerning development given the need to approach the interpretation and application of the exclusion clause restrictively and with caution.

It is suggested that future developments in this area of law should draw on the positive explicit formulations on proportionality and personal conduct encompassed in the Temporary Protection Directive. Exclusion from protection is the most severe sanction that can be imposed in the international protection framework. Provisions which serve to ‘exclude’ persons from this protection should therefore be based on the personal conduct of the individual concerned (rather than mere membership of a group) and be reserved for those that commit crimes so serious as to attract the condemnation of the international community.