Exclusion under Article 1F
Overview
Article 1F of the 1951 Convention Relating to the Status of Refugees, as incorporated in IRPA s 98, excludes a person from Convention refugee protection if there are serious reasons for considering that they have committed: (a) a crime against peace, a war crime, or a crime against humanity; (b) a serious non-political crime outside the country of refuge prior to admission; or (c) acts contrary to the purposes and principles of the United Nations. The exclusion is absolute — a person who falls within Article 1F cannot be granted protection regardless of the risk they face.
The exclusion clauses reflect the principle that refugee protection should not benefit persons who have committed grave crimes. Canada has applied Article 1F to cases involving former military and police officials, persons involved in civil conflicts, and persons convicted of serious crimes abroad.
The standard of proof — "serious reasons for considering" — is lower than balance of probabilities. This means exclusion can be found even without a criminal conviction, based on evidence of involvement in impugned conduct.
Legal basis
- IRPA s 98 — incorporates Article 1F of the Refugees Convention; a person excluded under Article 1F is neither a Convention refugee nor a person in need of protection
- Article 1F(a) — crimes against peace, war crimes, crimes against humanity (as defined by international instruments)
- Article 1F(b) — a serious non-political crime outside the country of refuge prior to admission as a refugee
- Article 1F(c) — acts contrary to the purposes and principles of the United Nations
- Mugesera v Canada (Minister of Citizenship and Immigration) [2005] 2 SCR 100 — key Supreme Court of Canada authority on war crimes and crimes against humanity
How it works
The "serious reasons for considering" standard
The exclusion standard — "serious reasons for considering" — is lower than both the balance of probabilities (civil standard) and beyond a reasonable doubt (criminal standard). A decision-maker can exclude a person based on reasonable inference from the evidence, without requiring a criminal conviction. Direct evidence of the commission of an act, or evidence of knowing and voluntary participation in an organisation that committed such acts, can be sufficient.
Article 1F(a) — war crimes and crimes against humanity
Crimes against humanity and war crimes are defined by reference to international instruments, including the Rome Statute of the International Criminal Court. Key elements include:
- Acts committed as part of a widespread or systematic attack against a civilian population
- Murder, extermination, torture, rape, enforced disappearance, and other inhumane acts
- Violations of the laws and customs of war
A person does not need to have personally committed these acts — complicity through participation in an organisation with a limited, brutal purpose may be sufficient for exclusion.
Article 1F(b) — serious non-political crime
The "serious non-political crime" ground requires: (1) the crime was serious; and (2) the crime was "non-political" (i.e., the motive was personal, financial, or criminal, not ideological). Courts balance the political nature of the offence against its criminal character. A crime is political only where it is committed in pursuit of political aims and is proportionate to those aims.
Article 1F(c) — acts contrary to UN purposes
This clause is rarely applied and is directed primarily at high-level officials of states or organisations responsible for systematic human rights violations contrary to UN principles.
Exclusion and non-refoulement
IRPA s 98 excludes a person from both Convention refugee status (s 96) and person in need of protection status (s 97). An excluded person loses access to the primary protection mechanisms. However, Canada's obligations under the ICCPR and CAT (against torture) may still constrain removal even of excluded persons — Canada must assess whether removal would breach its CAT/ICCPR obligations through the danger opinion or Ministerial relief process.