Irretrievably Prejudiced? : The Right to Legal Aid in Exclusion Proceedings at First Instance within the European Union

Abstract

Article 1F of the Refugee Convention obliges contracting states to exclude individuals suspected of having committed certain grave crimes from the scope of the Refugee Convention. While taking place within the administrative setting of asylum procedure, exclusion proceedings share many similarities with criminal proceedings and may inflict severe and life-long consequences upon an individual. Regardless, asylum seekers subject to exclusion proceedings do not have the formal status of a defendant, and do not enjoy all procedural guarantees attached to criminal proceedings. Within the EU, legal aid, which is an inseparable part of the right to legal assistance, must be offered in the appeals procedure of refugee status determination, but is not offered consistently in procedures at first instance. Considering the complex nature of exclusion cases, their severe consequences and the inconsistent application of the exclusion clause between and within different jurisdictions, lack of legal aid may jeopardise equality of arms in this quasi-criminal procedure in case of impecunious applicants. This thesis examines whether the right to legal aid should be considered applicable in exclusion proceedings at first instance within EU Member States through clarifying the significance of legal assistance in exclusion proceedings as well as examining the status of current legal norms concerning the right to legal aid in relation to exclusion proceedings within the EU. The thesis first offers a comparison of exclusion proceedings’ elements with those of criminal proceedings, after which the possible applicability of the right to legal assistance and legal aid in exclusion proceedings is analysed through the relevant regional instruments, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. Furthermore, the adverse and possibly irretrievable implications of lack of legal aid in procedures at first instance is examined. Finally, the thesis offers an analysis of the conditions under which the right to legal assistance and legal aid should be considered applicable in exclusion proceedings. Through the above described analysis, this thesis concludes that EU Member States should consider the right to legal assistance an applicable safeguard in exclusion proceedings when specific suspicion of an excludable act arises. Pieces of evidence amounting to specific allegations can be identified as confession, third party witness statement, information on official databases, extradition request, judgement, crime record and arrest warrant. General factors which may cause a minor level of suspicion but not trigger the applicability of the right to legal assistance can be identified as country of origin information, identity and travel documents, and place of residence or travel route. In the occurrence of specific allegations, an asylum interview should be suspended until access to legal assistance, through legal aid when necessary, has been ensured.