International Protection for Criminals: To Grant or Not to Grant? Lessons from Australia, Belgium, and Canada

Abstract

Refugee law requires States to protect those who may face persecution in their country of origin. This protection, however, is not extended to those who, because of their acts, are considered to be undeserving of it. Similarly, the 1951 Refugee Convention allows the return to persecution of those who are considered a danger to the host country’s community. International human rights law, however, forbids States from returning anyone, regardless of their actions, to a place where they may face irreparable harm, such as arbitrary deprivation of life or torture (the non-refoulement obligation). Thus, forced migrants with a criminal background may find themselves in a situation in which they cannot benefit from refugee status but also cannot be returned to their country of origin. The uncertainties associated with this situation can be challenging for both migrants and States. Against this background, the current contribution explores how three States – Australia, Belgium, and Canada – regulate the situation of criminal migrants in need of international protection. More specifically, it identifies who these countries exclude from protection status, how they assess non-refoulement claims, and the measures they use to regulate the situation of these migrants. Lastly, this article evaluates whether currently applicable domestic measures comply with States’ human rights obligations. As there seems to be a lack of sustainable solutions for these migrants in the countries analysed, a reformed international protection procedure is proposed. This reformed procedure would allow the possibility of granting these migrants temporary status, subject to conditions, which, after a certain number of years, could lead to permanent residence.