Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 67On the particular exclusion clause of “non political crime”, the UNHCRclarified that, “[i]n determining whether an offence is “non-political” oris, on the contrary, a “political” crime, regard should be given in the firstplace to its nature and purpose i.e. whether it has been committed outof genuine political motives and not merely for personal reasons or gain.There should also be a close and direct causal link between the crimecommitted and its alleged political purpose and object. The politicalelement of the offence should also outweigh its common-law character.This would not be the case if the acts committed are grossly out ofproportion to the alleged objective. The political nature of the offence isalso more difficult to accept if it involves acts of an atrocious nature.” 100It is also important to recall that, “[f]or a crime to be regarded as politicalin nature, the political objectives should be consistent with humanrights principles.” 101On a procedural level, exclusion decisions should in principle be consideredduring the regular refugee status determination procedure and notat the admissibility stage or in accelerated procedures. They should bepart of a full factual and legal assessment of the whole individual case.The UNHCR has established the rule that “inclusion should generally beconsidered before exclusion”. 102 There may be exceptions to the rulewhen there is an indictment by an international criminal tribunal; whenthere is apparent and readily available evidence pointing strongly towardsthe asylum-seeker’s involvement in particularly serious crimes;or in the appeal stage where the application of the exclusion clausesis the issue to be considered. 103 UNHCR has recalled that “[e]xclusionshould not be based on sensitive evidence that cannot be challenged bythe individual concerned”. 104Finally, it must be recalled that people who have been denied refugeestatus under an exclusion clause or whose status has ceased can alwaysavail themselves of the protection from expulsion assured by the principleof non-refoulement under the Geneva Refugee Convention andinternational human rights law (see, Chapter 2).100 UNHCR Handbook, op. cit., fn. 66, para. 152. See also, UNHCR Guidelines on Application ofthe Exclusion Clauses, op. cit., fn. 99, paras. 14–16; Recommendation Rec(2005)6, CMCE,op. cit., fn. 99, para. 1 (d). For the definition of “group” subject to persecution see, RecommendationRec(2004)9 of the Committee of Ministers to member states on the concept of“membership of a particular social group” (MPSG) in the context of the 1951 Convention relatingto the status of refugees, adopted by the CMCE on 30 June 2004, at the 890 th meetingof the Ministers’ Deputies.101 See, UNHCR Guidelines on Application of the Exclusion Clauses, op. cit., fn. 99, para. 15.102 Ibid., para. 31.103 Ibid., para. 31.104 Ibid., para. 36 (emphasis in the original text).