The various Michigan Guidelines are always thoughtful, interesting and deserving of attention. These documents are the output of a colloquium hosted by Professor James Hathaway’s University of Michigan’s Program in Refugee and Asylum Law. Hathaway is one of the most influential and inspiring academics on the subject of refugee law and I see from his faculty bio that a follow up to his seminal The Law of Refugee Status (1991) is planned for 2014, which is exciting.

The latest batch of guidance, the Michigan Guidelines on the Exclusion of International Criminals, do not disappoint.

International vs domestic interpretations

The Guidelines act as a reminder that the Refugee Convention is international in scope and that we need to look to universals rather than our own immediate local concerns. That is made harder by the misguided decision by British politicians to add local statutory definition to the words of the Convention at section 54 of the Immigration, Asylum and Nationality Act 2006.

Nevertheless, the guidelines seem broadly consistent with the UK Supreme Court judgment in Al-Sirri v Secretary of State for the Home Department; DD (Afghanistan) v Secretary of State for the Home Department [2012] UKSC 54 (‘Exclusion from Refugee Convention‘), in which the Supreme Court seemed to more or less sidestep section 54 in reaching its conclusions.

Purpose of the exclusion clause

A passage of the Guidelines that particularly struck me discusses the purposes of  exclusion clause 1(F)(a):

3. The context of Article 1(F)(a) includes, in particular, the fact that decisions on refugee exclusion are binary: an individual either is, or is not, excluded from refugee status. In contrast, the ramifications of a finding of guilt in the context of international criminal law can be tempered by the sentencing process – an option not available to the refugee decision maker…

4. The fundamental object and purpose of Article 1(F)(a) is to exclude persons whose international criminal conduct means that their admission as a refugee threatens the integrity of the international refugee regime. This goal is to be distinguished from the advancement of host state safety and security, a matter addressed by Article 33(2) of the Convention. Nor is Article 1(F)(a) exclusion required to ensure the punishment of international criminals. Like all other persons, refugees suspected of having committed an international crime are subject to the duty of states to either prosecute or extradite (“aut dedere aut judicare”), this being the appropriate means of ensuring accountability for unexpiated international criminality.

Guidance on interpretation

The Guidelines go on to emphasise the importance of identifying relevant international instrument and persuasive interpretations of such instruments rendered by both international tribunals and national courts, of a finding individual criminal responsibility, the relevance of direct involvement and the need for particular caution with more attenuated forms of involvement, the need to construe relevant criminal law strictly and not apply it retroactively and suggest that exclusion should not be applied where the facts suggest a plausible defence.

Serious reasons for considering

On the vexed question of the standard of proof and the meaning of ‘serious reasons for considering’ the Guidelines include the following passage:

“Serious reasons” sets the standard in both fact and law that must be met in an exclusion decision, and thus has both an evidentiary and a substantive role… As an evidentiary matter, the “serious reasons” standard is generally understood to be a means of accommodating the practical constraints of access to less evidence than is normally available in a criminal trial. The decision maker must nonetheless be satisfied that there is clear and convincing evidence that a crime has been committed by the individual before finding the person to be excluded under Article 1(F)(a).

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