CTED REGIONAL ANALYTICAL BRIEF

April 2021

EFFORTS OF EUROPEAN MEMBER STATES TO PREVENT TERRORISTS

FROM ABUSING ASYLUM SYSTEMS WHILE ENSURING COMPLIANCE WITH INTERNATIONAL REFUGEE

AND HUMAN RIGHTS LAW: CHALLENGES, RECOMMENDATIONS

AND GOOD PRACTICES

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CONTENTS

BACKGROUND ....................................................................................................................... 3

1. INTRODUCTION .................................................................................................................. 3

2. MEMBER STATES’ CONCERNS ............................................................................................. 4

Isolated cases of involvement in terrorism .............................................................................. 5

Measures to prevent radicalization ......................................................................................... 6

3. LEGAL FRAMEWORKS ......................................................................................................... 8

International legal framework: the 1951 Refugee Convention .................................................. 8

Regional legal framework: the Common European Asylum System ........................................... 9

4. PRACTICAL CHALLENGES ................................................................................................... 10

Delays in assessing asylum claims .......................................................................................... 11

Practice after an applicant is excluded from refugee status .................................................... 12

CONCLUSION ................................................................................................................... 14

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BACKGROUND

1. INTRODUCTION

1 S/RES/1373 (2001), para. 3 (f)-(g). 2 S/RES/1624 (2005), preamble. 3 S/RES/2178 (2014), preamble. See also S/RES/2322 (29106), paras. 9(d), 10. 4 S/RES/1624 (2005), para. 4; S/RES/2178 (2014), para. 5.

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2. MEMBER STATES’ CONCERNS

5 S/RES/1624 (2005), preamble; 1951 Convention Relating to the Status of Refugees, art. 33 (1). Non-refoulement obligations also exist

pursuant to certain human rights instruments, including the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, art. 3(1), and the 1950 European Convention on Human Rights, art. 3. 6 https://www.un.org/sc/ctc/wp-content/uploads/2020/09/N2019365.pdf. 7 https://www.un.org/sc/ctc/wp-content/uploads/2017/05/NOTE.039Add.3-Summary-Open-briefing-on-denying-safe-havens-24-Apr-

17.pdf. 8 S/2018/80, para. 58. 9 Fourth report of the Secretary-General on the threat posed by ISIL (Da’esh) to international peace and security and the range of United

Nations efforts in support of Member States in countering the threat (S/2017/97), para. 42; Europol, Changes in Modus Operandi of

Islamic State (IS) Revisited, November 2016.

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Isolated cases of involvement in terrorism

10 Europol, European Union Terrorism Situation and Trends Report 2017, pp. 23-24; Europol, European Union Terrorism Situation and

Trends Report 2018, pp. 18, 24; Europol, European Union Terrorism Situation and Trends Report 2019, p. 32; S/2017/97, para. 42;

Eurojust, Terrorism Convictions Monitor – Issue 28, May 2017, pp. 11-12, 17. See also investigative report of the Safety Investigation

Authority of Finland, Turku Stabbings on 18 August 2017, Doc. P2017-01, accessible at

https://turvallisuustutkinta.fi/material/attachments/otkes/tutkintaselostukset/en/muutonnettomuudet/2017/oNRjHqmjf/P2017-

01_Turku_EN.pdf; https://www.france24.com/en/20200404-knife-attack-leaves-two-dead-in-french-town-of-romans-sur-is%C3%A8re-

mayor-says; https://www.lemonde.fr/societe/article/2020/04/06/a-romans-sur-isere-un-effroyable-parcours-

terroriste_6035706_3224.html. 11 Europol, European Union Terrorism Situation and Trend Report 2019, p. 77; also Europol, European Union Terrorism Situation and

Trend Report 2018, p. 62; Europol, European Union Terrorism Situation and Trend Report 2017, pp. 6, 61. See also August 2020 report

of the Secretary-General on the threat posed by ISIL, which noted that “Member States continued to highlight the risk of abuse of

migration flows by terrorist groups and returnees, along with related screening challenges” (S/2020/774), para. 23. There have also been

reports of persons granted asylum being implicated in efforts at radicalizing and recruiting FTFs (Financial Action Task Force, Anti-

money laundering and counter-terrorist financing measures: Portugal Mutual Evaluation Report, December 2017, p. 74). 12 See, e.g., 2017 conviction by the Higher Regional Court of Berlin of a Syrian refugee for membership in a terrorist organisation

relating to activities of ISIL (Europol, European Union Terrorism Situation and Trend Report 2018, p. 18); and criminal proceedings in

Europe brought against individuals accused of involvement in the Camp Speicher massacre carried out in Iraq in 2014 (Eurojust,

Cumulative Prosecution of Foreign Terrorist Fighters for Core International Crimes and Terrorism-Related Offences, May 2020, p. 21).

See also Eurojust, Terrorism Convictions Monitor – Issue 28, May 2017, p. 5. 13 EU Radicalisation Awareness Network, Policy Brief: Preventing the risk of radicalisation of asylum seekers and refugees, and far-

right mobilisation against asylum seekers, refugees and immigrants, January 2020, pp. 3-5; Europol, European Union Terrorism

Situation and Trends Report 2018, pp. 18, 62; Eurojust, Terrorism Convictions Monitor – Issue 28, May 2017, pp. 11-12. 14 https://www.unhcr.org/en-us/figures-at-a-glance.html (figures as of October 2020). The figure for refugees includes both persons

falling under UNHCR’s mandate, as well as around 5.6 million Palestinians falling under the mandate of UNRWA. 15 S/2017/97, para. 41.

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Measures to prevent radicalization

16 The feared persecution in the country of origin which is constitutive of refugee status may also result from the acts of non-State entities

(see Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of

third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons

eligible for subsidiary protection, and for the content of the protection granted ‘EU Qualification Directive’), art. 6; UNHCR, Handbook

and Guidelines on Procedures and Criteria for Determining Refugee Status, 2011 (‘UNHCR RSD Handbook’), p. 15). See also

discussion of the interrelationship between triggers for migration and violent extremism in Counter-Terrorism Monitoring, Reporting and

Support Mechanism, Reviewing the Evidence Base on Migration and Preventing and Countering Violent Extremism (P/CVE), 2017

(https://ct-morse.eu/wp-content/uploads/2017/04/EU-CVE-Migration-.pdf). 17 See Europol, European Union Terrorism Situation and Trend Report 2018, p. 52; Europol, European Union Terrorism Situation and

Trend Report 2019, p. 23; Europol, European Union Terrorism Situation and Trend Report 2020, p. 68. See also Eurojust, Terrorism

Convictions Monitor – Issue 28, May 2017, p. 10; EU Radicalisation Awareness Network, Policy Brief: Preventing the risk of

radicalisation of asylum seekers and refugees, and far-right mobilisation against asylum seekers, refugees and immigrants, January

2020, pp. 10-12. 18 https://www.cbsnews.com/news/syrian-refugee-jaber-albakr-arrested-alleged-germany-bomb-plot-asylum-seeker/. 19 Eurojust, Cumulative Prosecution of Foreign Terrorist Fighters for Core International Crimes and Terrorism-Related Offences, May

2020, p. 25. 20 EU Radicalisation Awareness Network, Policy Brief: Preventing the risk of radicalisation of asylum seekers and refugees, and far-

right mobilisation against asylum seekers, refugees and immigrants, January 2020, pp. 3-5. 21 A September 2017 UNHCR report stated that 3.5 million refugees aged between 5 and 17 had not had the opportunity to attend school

in the previous academic year: this included 1.5 million primary school-aged children and 2 million adolescents

(http://www.unhcr.org/left-behind/?utm_source=Press%20Release%20-%2012%20September%202017%20-

%20UNHCR%20report%20highlights%20education%20crisis%20for%20refugee%20children%20Co&utm_medium=email&utm_term

=sundholm%40un.org&utm_content=http%3A%2F%2Fwww.unhcr.org%2Fleft-behind&utm_campaign). 22 On links between access to education and radicalization, see e.g., Plan of Action to Prevent Violent Extremism: Report of the

Secretary-General, 24 December 2015 (A/70/674), paras. 34, 50(j); S/RES/1624 (2005), para. 3. 23 On the effect which grievance can have on radicalization, see UNDP, Journey to Extremism in Africa: Drivers, Incentives and the

Tipping Point for Recruitment, 2017, p. 5.

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24 See presentation by Volker Turk, UNHCR Assistant High Commissioner for Protection (https://www.un.org/sc/ctc/wp-

content/uploads/2017/04/UNHCR-Speech_Asylum-Briefing-5-April-2017.pdf, pp. 3-4. 25 See S/RES/2178 (2014), para. 16.

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3. LEGAL FRAMEWORKS

International legal framework: the 1951 Refugee Convention

26 UNHCR has noted that the inclusion assessment should generally be conducted prior to any exclusion assessment (UNHCR,

Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Status

of Refugees, 4 September 2004, para. 31). 27 See UNHCR, Addressing Security Concerns without Undermining Refugee Protection - UNHCR's Perspective, Rev. 2, December

2015, paras. 18-21. See also European Court of Justice, Case C-573/14, Judgement of 13 January 2017 (Grand Chamber). 28 Prosecutor v Duško Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY Appeals Chamber, 2

October 1995, paras. 128–137. 29 See also J. Pejic, “Armed Conflict and Terrorism: There Is a (Big) Difference”, in AM Salinas de Frías, K Samuel and ND White

(eds), Counter-Terrorism: International Law and Practice (Oxford University Press 2012), pp. 175–7; B. Saul, “Terrorism, Counter-

Terrorism, and International Humanitarian Law”, in B. Saul and D. Akande (Eds.), The Oxford Guide to International Humanitarian

Law, 2020 (OUP), pp. 404-405.

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Regional legal framework: the Common European Asylum System

30 UNHCR RSD Handbook, p. 118; UNHCR, Addressing Security Concerns without Undermining Refugee Protection - UNHCR's

Perspective, Rev. 2, December 2015, para. 21. 31 See e.g., 1998 International Convention for the Suppression of Terrorist Bombings, art. 11; 1999 International Convention for the

Suppression of the Financing of Terrorism, art. 14; International Convention for the Suppression of Acts of Nuclear Terrorism, art. 15;

Council of Europe Convention on the Suppression of Terrorism, art. 20(1). 32 Vienna Convention on the Law of Treaties, art. 31(3)(c). 33 See e.g., EU Qualification Directive, recital 22. 34 1951 Refugee Convention, art. 2. 35 CTED, Technical Guide to the implementation of Security Council resolution 1373 (2001) and other relevant resolutions (S/2019/998),

para. 371. 36 1951 Refugee Convention, art. 33(2). 37 Further details accessible via https://ec.europa.eu/home-affairs/what-we-do/policies/asylum_en. For background on these processes,

see also Oxfam, Foreign Territory: the Internationalisation of EU Asylum Policy, 2005. 38 See e.g., Commission v Poland (Mécanisme temporaire de relocalisation de demandeurs de protection internationale), Case C715-17,

Judgement, 2 April 2020, para. 135.

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4. PRACTICAL CHALLENGES

39 See e.g., EU Qualification Directive, article 14(5). 40 UNHCR comments on the European Commission’s proposal for a Directive of the European Parliament and of the Council on

minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international

protection and the content of the protection granted (COM(2009)551, 21 October 2009), July 2010, pp. 12-14. 41 Specifically, articles 32 and 33(2) of the 1951 Refugee Convention, which stipulate, respectively, the lawful bases for expulsion of a

refugee (after recognition as such) and exceptions to the principle of non-refoulement. 42 S/RES/1456 (2003), Annex, para. 4(iii).

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Delays in assessing asylum claims

43 S/2017/97, para. 42. 44 UNHCR RSD Handbook, pp. 12, 103 45 https://www.un.org/sc/ctc/wp-content/uploads/2017/04/20170405_INTERPOL-Statement-Panel-1-Mr.-Gottlieb.pdf. See also

S/2018/80, para. 58. 46 Pursuant to article 1F(c) of the 1951 Refugee Convention which, unlike art. 1F(b), is not limited to conduct that took place outside the

country of refuge prior to admission to that country. 47 See presentation by UNHCR’s Assistant High Commissioner for Protection (https://www.un.org/sc/ctc/wp-

content/uploads/2017/04/UNHCR-Speech_Asylum-Briefing-5-April-2017.pdf, p. 3); S/2018/80, para. 80. 48 Separately, the initial screening should also aim to detect possible signs of trafficking in persons. As CTED has noted, “In the

European context and elsewhere, ‘crisis’ situations can cause refugees and asylum seekers, particularly unaccompanied minors, to be

more vulnerable to trafficking, particularly for sex work and forced labour” (CTED, Identifying and Exploring the Nexus between

Human Trafficking, Terrorism, and Terrorism Financing, 2019, para. 16). The Security Council has requested CTED to include in its

country assessments information regarding Member States’ efforts to address the issue of trafficking in persons where it is committed for

the purposes of supporting terrorism, including financially (S/RES/2331 (2016), para. 16; S/RES/2388 (2017), para. 12).

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Practice after an applicant is excluded from refugee status

49 On the need for administrative measures employed in respect of persons suspected of involvement with terrorism to comply with

international human rights law, see Global Counterterrorism Forum, Glion Recommendations on the Use of Rule of Law-Based

Administrative Measures in a Counterterrorism Context, 2019. 50 See e.g., UNHCR, “Addressing Security Concerns without Undermining Refugee Protection”, 17 December 2015, para. 13; CTED,

Technical Guide (S/2019/998), para. 373(h)-(i). 51 CTED, Technical Guide (S/2019/998), para. 373(j). See also 1971 Convention for the suppression of unlawful acts against civil

aviation, art. 7; 1979 International Convention against the Taking of Hostages, art. 8; 1988 Convention for the Suppression of Unlawful

Acts against the Safety of Maritime Navigation, art. 10; 1998 International Convention for the Suppression of Terrorist Bombings, art. 7;

1999 International Convention for the Suppression of the Financing of Terrorism, art. 10. See also Questions relating to the Obligation

to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, paras. 89-95. 52 S/2018/770, para. 65. 53 A 2016 report noted that, since 1994, just over 50 article 1F-excluded individuals had been successfully prosecuted by courts in

Europe and North America and that the vast majority of those prosecutions had been brought for war crimes, genocide crimes against

humanity etc., rather than for terrorism-related offences (Refugee Law Initiative & Centre for International Criminal Justice, Undesirable

and Unreturnable? Policy challenges around excluded asylum seekers and other migrants suspected of serious criminality who cannot

be removed, 2016, p. 8). 54 Efforts are underway to address these challenges. See, e.g., CTED, UNODC, UNOCT, Guidelines to facilitate the use and

admissibility of evidence in national criminal courts of information collected, handled, preserved and shared by the military to prosecute

terrorist offences, 2019; Global Counterterrorism Forum, Abuja Recommendations on the Collection, Use and Sharing of Evidence for

Purposes of Criminal Prosecution of Terrorist Suspects, September 2018. For regional examples, see

http://www.eurojust.europa.eu/press/Documents/2020-09-14-Eurojust-Memorandum-on-Battlefield-Evidence.pdf).

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55 CTED, Technical Guide (S/2019/998), para. 372. 56 Refugee Law Initiative & Centre for International Criminal Justice, Undesirable and Unreturnable? Policy challenges around

excluded asylum seekers and other migrants suspected of serious criminality who cannot be removed, 2016, pp. 7, 15, 32. On practical

obstacles to return, see UNHCR, Protection Policy Paper: The return of persons found not to be in need of international protection to

their countries of origin: UNHCR’s role, November 2010. pp. 3-4; on considerations relating to the return of non-refugees, see UNHCR,

Refugee Protection and Mixed Migration: The 10-Point Plan in Action, 2010, pp. 225-260. 57 S/2017/467, para. 64. 58 Drawing on practice in Europe, UNHCR has provided recommendations for Member States on how to maintain international refugee

law standards in these challenging circumstances (UNHCR, Practical Recommendations and Good Practice to Address Protection

Concerns in the Context of the COVID-19 Pandemic, April 2020). 59 S/2018/770, para. 65.

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CONCLUSION

60 See also CTED Technical Guide (S/2019/998), paras. 368-373.