Exkluderad från skyddsstatus - Ett straff för begånget brott eller en administrativ åtgärd?

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Sammanfattning: This thesis address the rules of asylum law that allows exclusion of certain persons in need of protection from taking part of the protection provided by national and international law. The purpose of this thesis has been to investigate whether an exclusion may be regarded as punishment for a committed crime in criminal law. If the exclusion procedure may be regarded as a criminal procedure, the legal guarantees, given to a person who is accused of a crime, should also be given to the person that is at risk of being excluded. According to the exclusion rules in Chapter 4, The Aliens Act, a refugee, or an individual that is in need of subsidiary protection shall be excluded from protection if there is serious reasons for considering that the person is guilty of certain international offenses or other serious crimes. In the vast majority of situations, when an individual is excluded from the right to protection and there are no other grounds for the individual to receive a residence permit, expulsion can not be enforced due to the principle of non-refoulment. An exclusion may, as applied in Sweden, result in a person in need of protection which falls outside the principle of non-refoulment being expelled to a country where he or she is at risk of being subjected to treatment which could in itself amount to persecution. An exclusion may also result in an individual losing the right to family reunification, which complicates or eliminates a family life. Article 6 of the European Convention provides for the right to a fair trial for the accused of a crime. In a ruling by the European Court of Human Rights, the Court has set three criteria, the Engel criteria, to determine whether an individual is charged with a crime, thus determining whether it is a criminal procedure in which Article 6 of the European Convention applies. In view of an exclusion procedure in the light of the three English criteria, there is, in my opinion, scope for considering an exclusion procedure as a criminal procedure. Even in such cases where exclusion does not mean expulsion, nor does deprives or aggrevates the individual from a family life, the consequences can be extremely negative. However, in an additional protocol to the abovementioned article, the European Court of Human Rights has stated that Article 6 does not apply to the exclusion of foreigners. The fact that the European Court of Human Rights actively chose to declare that Article 6 is not applicable in the cases concerning exklusion can, however, bear witness to the fact that the procedure contains many components that are part of a criminal procedure. There is no clear answer to the essay's question. However, seeing an exclusion process in the light of the Engel criteria indicates that the exclusion procedure contains many components that are part of a criminal procedure. The thesis also argues that the exclusion rules, as applied in Sweden today, have clear problems with fulfilling most of the objectives that the rules were intended to fulfill. Rather focusing on prosecuting the suspects who are in need of protection, instead of excluding them, would not mean a significant difference, since the objectives of the exclusion rules, to a large extent, are still not met. This would contribute to increased legal certainty and reduce the risk that an innocent in need of protection will be excluded and suffer from the consequences it brings.

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