Alleged perpetrators of serious crimes applying for asylum in the Netherlands: Confidentiality, the interests of justice and security
| Author | Joke Reijven,Joris van Wijk |
| DOI | 10.1177/1748895815572160 |
| Published date | 01 September 2015 |
| Date | 01 September 2015 |
| Subject Matter | Articles |
research-article2015
Article
Criminology & Criminal Justice
2015, Vol. 15(4) 484 –501
Alleged perpetrators of
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DOI: 10.1177/1748895815572160
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asylum in the Netherlands:
Confidentiality, the interests
of justice and security
Joke Reijven
VU University Amsterdam, The Netherlands
Joris van Wijk
VU University Amsterdam, The Netherlands
Abstract
The Refugee Convention states that asylum seekers should be excluded from refugee protection
when there are ‘serious reasons for considering’ that they committed serious crimes. This article
describes which alleged perpetrators are excluded in the Netherlands and discusses if and how
confidentiality issues prevent disclosure of information about their nature and whereabouts. It
concludes that law enforcement agencies typically receive information after a final decision to
exclude has been made and that other actors are generally not informed at all. It is questioned
to what extent this practice serves the interests of justice and security since it may frustrate
successful prosecution and threaten security.
Keywords
1F Refugee Convention, asylum, confidentiality, exclusion, war crimes
Introduction
An increasing number of criminological studies deal with the complexities of crime and
crime control in a globalized world. Authors typically discuss, and critically reflect on,
Corresponding author:
Joris van Wijk, Department of Criminology, Initium Building, Vrije Universiteit, Amsterdam, 1081 HV, The
Netherlands.
Email: j.van.wijk@vu.nl
Reijven and Wijk
485
international and domestic policy developments in the war on terror, the fight against
transnational organized crime and cybercrime (Aas, 2013; Jaishankar and Ronel, 2013;
Mullard and Bankole, 2007; Pakes, 2012). Surprisingly little attention has been awarded
to the question how law enforcement agencies and other institutional bodies in this ever
more globalized world deal with the threat of possible war criminals, genocidaires, ter-
rorists and other perpetrators of serious crimes entering their territory. Recently, how-
ever, the issue has gained interest in the emerging field of ‘crimmigration’, the study
which discusses the letter and practice of laws and policies at the intersection of criminal
law and immigration law (Guia et al., 2013; Stumpf, 2006). Authors writing about the
‘criminology of mobility’ (Bowling, 2013) or ‘new criminology of immigration’
(Dauvergne, 2013) increasingly and critically discuss government’s immigration poli-
cies in dealing with alleged perpetrators of serious crimes. Dauvergne (2013), for exam-
ple, suggests that misguided concerns about the criminality of asylum seekers have led
to a much greater ambit for criminal law within refugee jurisprudence. Asylum systems
face increasing political pressures. By in particular focusing on the fear of terrorists
entering a country, Dauvergne is convinced that the ability to demonstrate that the sys-
tems themselves are ‘tough on’ crime becomes an important advocacy piece in their
maintenance. De Grauw et al. (2012) warn that too much focus on identifying possible
perpetrators of crimes among asylum seekers could create a ‘population of excluded’.
This increased interest is more than welcome because over the last decade major soci-
etal, legal and policy developments have taken place which warrant criminological inter-
est in this topic. An increasing number of European and North American countries have
in the context of so-called ‘no safe haven policies’ been trying to identify alleged perpe-
trators of these crimes and to exclude them from refugee protection.1 On the basis of
article 1F of the Refugee Convention states can exclude from protection:
any person with respect to whom there are serious reasons for considering that: a.) He has
committed a crime against peace, a war crime, or a crime against humanity (…); b.) He has
committed a serious non-political crime outside the country of refuge prior to his admission to
that country as a refugee; c.) He has been guilty of acts contrary to the purposes and principles
of the United Nations.2
The evidentiary standard of proving ‘serious reasons for considering’ that someone has
committed any of the crimes mentioned in article 1F is relatively low. The standard is
certainly lower than the ‘beyond reasonable doubt’ threshold required for a criminal
conviction (Rikhof, 2012).
Additionally, with the creation of the International Criminal Court in 2002, many
countries have decided to prosecute alleged perpetrators of war crimes, crimes
against humanity and genocide residing in their territory.3 With the ever continuing
instability in Africa and the Middle East, states are increasingly confronted with the
question of how to deal with these alleged offenders crossing their borders. States
develop new policies on how to identify possible perpetrators, how to hold them
accountable and who to inform about their background and whereabouts. It is impor-
tant for criminologists to assess critically recent developments in this field. On the
one hand, a too strict application of article 1F could mean that too many individuals
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are de facto ‘pre-sentenced’ (De Grauw et al., 2012). If they can additionally not be
deported or prosecuted, they may end up in a situation of ‘legal limbo’ (Reijven and
Van Wijk, 2012), equalling a situation of 20th-century ‘universal banishment’ (Van
Wijk and Reijven, 2013). On the other hand, a too lenient approach may mean that
possibly dangerous perpetrators of serious atrocities find a safe haven in third coun-
tries without being held accountable. A related, overarching, question which is in
particular interesting in the context of ‘crimmigration’, is to what extent immigration
authorities are allowed to, and make use of, information exchange regarding 1F
excluded individuals. Under what circumstances are immigration authorities allowed
to share information about alleged perpetrators with law enforcement agencies or
local authorities? In the interests of justice and security information one could argue
information exchange is to be applauded. On the other hand, it may also lead to (fur-
ther) negative labelling, exclusion and stigmatization.
Taking the Netherlands as a case study, this article discusses when and to what extent
confidentiality issues prevent immigration authorities from sharing information on 1F
excluded asylum claimants with other relevant actors, such as law enforcement and local
authorities. We conclude that information is typically only disclosed with law enforce-
ment agencies after a final decision to exclude has been made. This is remarkable in light
of the Public Prosecutor’s monopoly on initiating criminal investigations, may frustrate
successful prosecution and threaten security. Local administrators and other actors are
generally not at all informed about the whereabouts and background of (possible) 1F
excluded individuals. This practice may not serve security, but limits negative labelling
and stigmatization.
Methodology
In addition to an analysis of academic literature, legal sources and policy documents, this
article is largely based on information stemming from a unique file analysis. On the authors’
request, and on the condition of anonymizing the data, the Dutch Immigration and
Naturalization Services (IND) provided access to its 1F files. The IND has had no say over
the authors’ findings and conclusions. It provided a list of 1498 file numbers of asylum
seekers who according to its administrative system, were associated with article 1F and had
their asylum requests processed between January 2000 and November 2010. This list con-
tained a total of 67 nationalities; with 720 files, Afghan nationals constituted the biggest
group by far. With the file numbers in hand we gained access to corresponding digitalized
copies of the files in IND’s administrative system and identified files of individuals who
had received a 1F decision (‘beschikking’) that was definite in the sense that it was not
revoked or had not (yet) been successfully appealed at the moment of data collection
(November 2010–February 2011). We identified 745 definite decisions, of which 448
related to Afghans and 297 to non-Afghans. Considering the heavy workload and antici-
pated homogeneity of the Afghan group, which will be explained further on, the authors
decided to take a systematic sample (n = 61) of the Afghan files. The 297 non-Afghan and
61 Afghan files were scored and analysed with the help of three research assistants.
The remaining 753 files were dismissed from our analysis for various reasons. The
majority concerned relatives of 1F excluded persons (442 cases). In some instances a 1F
Reijven and Wijk
487
decision by the IND had been overruled in court or revoked in anticipation of a court
decision (139 cases). In 160 cases IND had not (or not yet) come to a decision to exclude,
or files were inaccurately labelled as ‘possible 1F files’ since no 1F lead whatsoever
could be found. Finally, a limited number of 12 files were – due to the fact that we ana-
lysed digitalized copies – incomplete or (partially) inaccessible.
Files of 1F excluded persons typically contain hundreds of pages with of a wide range
of documents, ranging from...
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