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ICCPR; Article 12, on Freedom of Movement bounds of law, vis-à-vis applicable rights guaranteed by the Constitution
and the ICCPR.
Marcos vs. Manglapus
G.R. No. 88211 (1989) Ruling:

Facts: 1. YES. Considering the prevailing circumstances, the President, in

her exercise as the ultimate protector of the country’s peace, has
1. At the height of the non-violent People Power Revolution in the obligation, under the Constitution to protect the people,
February 1986, Ferdinand E. Marcos was deposed from the promote their welfare and advance national interest.
presidency and forced into exile, effectively installing Corazon
Aquino as the President of the Philippines under a revolutionary 2. While the Bill of Rights guarantee the right to travel and the liberty
government of abode, the right to return to one’s country is not among its
2. Mrs. Aquino’s rule has been besieged by challenges which specifically protected provisions, particularly if taken into
included, among others, the Manila Hotel coup in 1986 by political consideration the impending risks as a result thereof, which may
leaders of Marcos; the commandeering of Channel 7 by rebel disturb national peace and imperil the stability of the government
forces reinforced by Marcos loyalists and; the foiled plot of Mrs. and safety of its people.
Marcos to return from Hawaii, threatened the country of the
capability of the Marcoses to instigate chaos enabled by the 3. It must be emphasized that the Constitution, aside from being an
family’s rabid followers and supporters even away from the allocation of power is also a social contract whereby the people
country. have surrendered their sovereign powers to the State for the
3. Amid his lingering illness and in deathbed, Marcos has expressed common good. Thus, unless the agents of the Government
his desire to come back to the Philippines to die. exercising the powers delegated by the people forget and the
4. President Aquino, taking into account the implications of a Marcos servants of the people become rulers, the Constitution reminds
return which should spell chaos in the face of fanatic following by everyone that "[s]overeignty resides in the people and all
Marcos loyalists, has stood firmly on the decision to prevent the government authority emanates from them." [Art. II, Sec. 1.]
return of Marcos and his family.
4. The well-documented history of violence and efforts at
Issue: destabilization by Marcos supporters only reinforces the
conclusion that allowing such untimely return would only douse
Whether or not President Aquino may prohibit the Marcoses from fuel to the chaos and destruction aimed at the state and its general
returning to the Philippines, in the exercise of her authority within the population.

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5. The President is constrained to consider these basic principles on his passport request until he satisfied the affidavit
and considerations in arriving at a decision; nevertheless, acting requirement. On appeal from consecutive adverse rulings in both
through the Government, is not precluded from taking preemptive district and appellate court, the Supreme Court granted Kent
actions against threats to the State’s existence even as nascent it certiorari.
may be, as utmost protection of the people is the primordial
essence of government Issue:
Whether or not Could the Executive's Passport Department defer
6. All told, the Supreme Court held that the President did not act or refuse the issuance of passports to individuals suspected of being
arbitrarily or with grave abuse of discretion in determining the Communists or of traveling abroad to further Communist causes?
return of the petitioners at the time where the prevailing
circumstances pose a serious threat to national interest and Ruling:
welfare, whereby prohibiting the Marcoses’ return to the
Philippines. The petition is, hence, DISMISSED. 1. No. In a 5-to-4 decision, the Court held that the right to travel is an
inherent element of "liberty" that cannot be denied to American
citizens. Although the Executive may regulate the travel practices
Kent v. Dulles
of citizens, by requiring them to obtain valid passports, it may not
357 U.S. 116 (1958)
condition the fulfillment of such requirements with the imposition
of rules that abridge basic constitutional notions of liberty,
Facts:
assembly, association, and personal autonomy.
1. Rockwell Kent applied for and was refused a passport to visit
England. In addition to informing him that his application refusal Ackla v. Togo
Communication No. 505/1992
rested on his Communist Party affiliations, the Passport Office
Director told Kent that in order for a passport to be issued a
Facts:
hearing would be necessary. The Director instructed Kent to
submit an affidavit as to whether he was a current or past 1. Ketenguere Ackla was a former police superintendent of Togo,
Communist. Upon the advice of counsel, Kent refused to sign the and was dismissed from his post based on fabricated charges of
affidavit but did participate in a hearing at which he was once grave professional misbehavior on decision of 13 May 1986.
more asked to sign an affidavit concerning his Communist According to him, the decision was unjustifiable and arbitrary. He
affiliations. When he refused the affidavit, the Passport requested the establishment of a disciplinary committee to
Department advised Kent that no further action would be taken investigate his case, but his request was not granted.

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Whether or not the decision denying Mr. Ackla from entering the
2. On 29 May 1987, Mr. Ackla author arrested at his residence, upon district of La Kozah, and his native town of Kara violates Article 12 of the
orders of the State party's President, Eyadema Gnassingbe. He International Covenant on Civil and Political Rights guaranteeing the right
was detained for eight days, apparently without charges. On the to freedom of movement.
third day of his detention, he was able to contact the President.
According to the him, he was detained because the President held Ruling:
personal grudges against him. He contends that during his
detention, his house and his other properties were seized and 1. Yes. The absence of any explanation from the State party justifying
turned over to his former wife. the restrictions to which the author has been subjected, pursuant
to paragraph 3, it has violated Article 12 (1) of the Covenant.
3. Prior to his release on 6 June 1987, Mr. Ackla was notified of the
President's decision to deny him the right to enter the district of 2. The Committee noted the State party's contention that since Mr.
La Kozah and his native town of Kara, situated in this district. Ackla was reintegrated in the police, his complaint should be
considered moot is baseless because the restrictions on his
4. On 24 July 1987, the police once more tried to arrest him when he freedom of movement were distinct from his claims related to his
returned to Kara to retrieve some personal effects. He managed to dismissal.
escape and subsequently requested his sister to retrieve his
belongings; she was unable to do so. 3. Pursuant to Article 2, Paragraph 3 (a), of the Covenant, Mr. Ackla
is entitled to an effective remedy. In the Committee's opinion, this
5. The author seeks the restitution of his property, in particular of remedy should entail measures to immediately restore Mr. Ackla's
his home, as well as compensation for the lost revenue derived freedom of movement and residence, as well as appropriate
from the rental of his home, amounting to 1,078,000 Francs by the compensation. The State party is under an obligation to ensure
beginning of 1992. that similar violations do not occur in the future.

6. He challenges the decision to deny him access to the La Kozah Celepli v. Sweden
district and his native village, which remains in force, and the 60 U.S. 393 (1857)
refusal of the Chief of National Security, dating from 1991, to
reinstate him in his functions. Facts:

Issue: 1. Ismet Celepli is a Turkish citizen of Kurdish origin who was

granted permission to stay in Sweden but was not granted refugee
status. He was arrested and taken into custody under the Aliens

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Act for suspicions involving terrorist activities however, he was finds that the restrictions were compatible with Article 12,
not charged with any offence. An expulsion order was issued paragraph 3, of the Covenant.
against him, but was not enforced due to humanitarian
considerations; instead restrictions were imposed by Swedish Stewart v. Canada
authorities concerning his place of residence. Communication No. 538/1993

2. Celepli claimed that his rights were violated on account of him Facts:
being subjected to a regime of residence restrictions without
disclosing the grounds for such measure. 1. Charles Edward Stewart was the author of the communication, a
British citizen born in 1960. He has resided in Ontario, Canada
3. The State party submitted that the restrictions imposed upon since the age of seven, and currently faces deportation from
Celepli were in conformity with the Aliens Act which states that Canada. He claims to be a victim of violations by Canada on articles
the Government may do so if it is required for reasons of national 7,9,12,13,17 and 23 of the ICCPR. The author was ordered
security. The State party further argued that Celepli’s stay in deported on account of his criminal convictions.
Sweden, after the expulsion order, was only lawful within the
boundaries set forth and subject to compliance with the 2. According to the author, the term “home” should be interpreted
restrictions imposed upon him. broadly encompassing the entire community of which an
individual is a part. The author submits that article 12 (4) is
Issue: applicable to his situation in all practical purpose, Canada is his
own country. His deportation from Canada would result in an
Whether or not the State party violated Article 12 of the ICCPR. absolute statutory bar from re-entering Canada. It is noted un this
context that article (12)4 does not indicate that everyone has the
Ruling: right to enter in his own country of nationality or of birth but only
“his own country”. Since the author left UK and his entire life is
1. No, the HRC held that the State party did not violate Article 12 of now devoted to this family in Canada, he must be considered as de
the ICCPR. The HRC is of view that following the expulsion order, facto a Canadian citizen. The author believe that his deportation
Celepli was lawfully in the territory of Sweden, for purposes of violate “his liberty of movement within Canada and within his
Article 12, paragraph 1,of the Covenant, only under the restriction community”.
placed upon him by the State party.
Issues:
2. As the State party invoked reasons of national security to justify 1. Whether or not the author’s contention under article 12 is
the said restrictions on Celepli’s freedom of movement, the HRC admissible.

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2. Whether or not the expulsion of Mr. Stewart violates the of article 12 (4), account must also be had of the language of article
obligations Canada has assumed under article 12 . 13 of the Covenant. That provision speaks of "an alien lawfully in
the territory of a State party" in limiting the rights of States to
Ruling: expel an individual categorized as an "alien". It would thus appear
that "his own country" as a concept applies to individuals who are
1. The committee noted that the State party’s contention that no nationals and to certain categories of individuals who, while not
substantiation in support of this claim had been adduce, as well as nationals in a formal sense, are also not "aliens" within the
counsel’s contention that article 12 (4) was applicable to the case meaning of article 13, although they may be considered as aliens
of Mr. Stewart. The committee noted that the determination of for other purposes. The language of article 12 (4), permits a
whether article 12(4) was applicable to the author’s situation broader interpretation, moreover, that might embrace other
required a careful analysis of whether Canada could be regarded categories of long-term residents, particularly stateless persons
as the author’s country within the meaning of article 12 and if so, arbitrarily deprived of the right to acquire the nationality of the
whether the author’s deportation to the United Kingdom would country of such residence.
bar him from re-entering his own country and in the affirmative,
whether this would be done arbitrarily. The committee 4. In the present case, the country of immigration facilitates
considered that the author’s situation could not be subsumed acquiring its nationality, and the immigrant refrains from doing so,
under article 12 (4) and therefore concluded that this issue should either by choice or by committing acts that will disqualify him
be considered on its merits. from acquiring that nationality, the country of immigration does
not become "his own country" within the meaning of article 12 (4)
2. Article 12 (4) of the covenant provides “No one shall be arbitrarily of the Covenant. It is true that his criminal record might have kept
deprived of the right to enter his own country.” This article does him from acquiring Canadian nationality by the time he was old
not refer directly to expulsion or deportation of a person. The duty enough to do so on his own. The fact is, however, that he never
of a State party to refrain from deporting persons is a direct attempted to acquire such nationality. Furthermore, even had he
function of this provision and that a State party that is under an applied and been denied nationality because of his criminal record,
obligation to allow entry of a person is also prohibited from this disability was of his own making. It cannot be said that
deporting that person. Canada's immigration legislation is arbitrary or unreasonable in
denying Canadian nationality to individuals who have criminal
3. In interpreting article 12 (4), it is important to note that the scope records.
of the phrase "his own country" is broader than the concept
"country of his nationality", which it embraces and which some
regional human rights treaties use in guaranteeing the right to
enter a country. Moreover, in seeking to understand the meaning

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ICCPR; Article 13 on Alien Expulsion

2. The Court is satisfied that Ahani was fully informed of the
Ahani vs Canada Minister's case against him and given a full opportunity to
Communication No. 1051/2002 respond. Insofar as the procedures followed may not have
precisely complied with those we suggest in Suresh. The court was
Facts: satisfied that this did not prejudice him and conclude that the
process accorded to Ahani was consistent with the principles of
1. In this case, Mansour Ahani entered Canada in 1991, claiming fundamental justice, and would reject this ground of appeal.
Convention refugee status. On the year 1993, the Minister of
Citizenship and Immigration filed a security certificate for Ahani's 3. In the case of Suresh v. Canada (Minister of Citizenship and
deportation on the basis of a report from the Canadian Security Immigration), the Court ruled that when a refugee establishes a
Intelligence Service (CSIS). CSIS claimed to have obtained prima facie case that deportation may lead to torture, they are
evidence that Ahani was a trained assassin operating with the entitled to a higher degree of procedural protections than the
Ministry of Intelligence and National Security of Iran (MOIS). Immigration Act stipulates. In particular, the appellant has a right
Ahani admitted to an association with MOIS and having received to know the full case against him, and to be given a full opportunity
military training, however he denied that he was an assassin. to respond in writing. The appellant must be given the
opportunity to rebut claims and evidence and to produce their
2. Moreover, Ahani argued that he would likely face torture if own evidence. Finally, the appellant has the right to receive
deported to Iran, and that deportation under this circumstance written reasons for a decision of the Minister.
would be a violation of fundamental justice, a right guaranteed by
Section 7 of the Canadian Charter of Rights and Freedoms. Trump v. Hawaii
585 U.S. ___ (2018)
Issue:
Whether or not the requirements of procedural fairness had been Facts:
met?
1. President Donald Trump signed Executive Order No. 13769 (EO-
Ruling: 1) that purported a suspension entry for 90 days of foreign
nationals from seven countries due to terrorism-related risks
1. Yes, the court ruled that the requirements of procedural fairness dated. Trump issued another Executive Order No. 13780 (EO-2).
had been met in this case. This result differs from the Sureshcase, The proclamation imposed restrictions that vary based on the
where the Court ruled that procedural fairness requirements had “distinct circumstances” provides case-by-case waivers under
not been met, and ordered a new hearing.
certain circumstances. The Proclamation sought to improve

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vetting procedures by identifying ongoing deficiencies in the that the Proclamation violates the Establishment Clause of the
information needed to assess whether nationals of particular First Amendment because it was motivated not by concerns about
countries present “public safety threats.” national security but by animus toward Islam.

2. The Proclamation placed entry restrictions on the nationals of Issue:

eight foreign states whose systems for managing and sharing WN the issuance of entry restrictions to the United States against
information about their nationals the President deemed nationals of eight Muslim countries is unconstitutional within the purview
inadequate. The Proclamation described how foreign states were of Trump’s authority to act based on national security concerns.
selected for inclusion based on the review undertaken according
to EO–2 whereas the following were consulted including the Ruling:
Department of Homeland Security, State Department, and several
1. The Court assumed that the Proclamation does not violate the
intelligence agencies. In so doing, the process yield a baseline
president's statutory authority. It entrusts to the President the
information required from foreign governments to confirm the
decisions whether and when to suspend entry, whose entry to
identity of individuals seeking entry into the United States, and to
suspend, for how long, and on what conditions. It thus vests the
determine whether those individuals pose a security threat (i.e.,
President with “ample power” to impose entry restrictions in
identity-management information, information on criminal
addition to those elsewhere enumerated in the Immigration and
history and suspected terrorist links, and various indicators of
Nationality Act (INA) and the Establishment Clause.
national security risk).

2. The majority considered the plaintiffs' Establishment Clause claim

3. Plaintiffs, in this case, are the State of Hawaii, three individuals,
and found the Proclamation did not favor or disfavor any
and the Muslim Association of Hawaii. The State operates the
particular religion. The majority found that the facts that many
University of Hawaii system, which recruits students and faculty
majority-Muslim countries were not subject to restrictions and
from the designated countries. The three individual plaintiffs are
that some non-majority-Muslim countries were subject to the
U. S. citizens or lawful permanent residents who have relatives
restrictions supported the government's contention that the
from Iran, Syria, and Yemen applying for immigrant or
Proclamation was not based on anti-Muslim animus and was
nonimmigrant visas. The Association is a nonprofit organization
instead based on "a sufficient national security justification."
that operates a mosque in Hawaii.

3. President Trump fulfilled the requirements through a

4. Plaintiffs argued that the Proclamation contravenes provisions in
comprehensive evaluation of every single country’s compliances
the Immigration and Nationality Act. Plaintiffs further claimed
with the information and risk assessment baseline before he

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issued the Proclamation that accurately delineates a “class of findings following a worldwide, multi-agency review that entry of
aliens” whose entry is suspended, and the word “class” the covered aliens would be detrimental to the national interest.
comfortably encompasses a group of people linked by nationality.
Kindler v. Canada
4. The plaintiffs have not identified any conflict between the [1991] 2 SCR 779
Proclamation and immigration scheme reflected in the INA. The
Court must consider not only the statements of a particular Facts:
President but also the authority of the Presidency itself. Plaintiffs’
extrinsic evidence may be considered, but the policy will be 1. In November 1983 the author was convicted in the State of
Pennsylvania, United States, of first degree murder and
upheld so long as it can reasonably be understood to result from a
kidnapping; the jury recommended the death sentence. According
justification independent of unconstitutional grounds. The entry
to the author, this recommendation is binding on the court. In
restrictions on Muslim-majority nations are limited to countries
September 1984, prior to sentencing, the author escaped from
that were previously designated by Congress or prior custody. He was arrested in the province of Quebec in April 1985.
administrations as posing national security risks. In July 1985 the United States requested and in August 1985 the
Superior Court of Quebec ordered his extradition.
a) The entry policy supports the Government’s claim of a
legitimate national security interest. 2. Article 6 of the 1976 Extradition Treaty between Canada and the
b) First, the President introduced entry restrictions in January United States provides: "When the offence for which extradition is
2017, three Muslim-majority countries including Iraq, Sudan, requested is punishable by death under the laws of the requesting
and Chad, which have been removed from the list. State and the laws of the requested State do not permit such
c) Second, for those countries still subject to entry restrictions, punishment for that offence, extradition may be refused unless the
the Proclamation includes numerous exceptions for various requesting State provides such assurances as the requested State
categories of foreign nationals. considers sufficient that the death penalty shall not be imposed or,
d) Third, the Proclamation creates a waiver program open to all if imposed, shall not be executed".
covered foreign nationals seeking entry as immigrants or
nonimmigrants. 3. Canada abolished the death penalty in 1976, except in the case of
certain military offences.
5. Under these circumstances, the Government has set forth a
4. The author claims that the decision to extradite him violates
sufficient national security justification to survive rational basis
articles 6, 7, 9, 14 and 26 of the Covenant. He submits that the
review. President lawfully exercised that discretion based on his
death penalty per se constitutes cruel and inhuman treatment or

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punishment, and that conditions on death row are cruel, inhuman how a period of detention during which a convicted prisoner
and degrading. He further alleges that the judicial procedures in would pursue all avenues of appeal, can be held to constitute a
Pennsylvania, inasmuch as they relate specifically to capital violation of the Covenant.
punishment, do not meet basic requirements of justice. In this
context, the author, who is white, generally alleges racial bias in Committee's considerations and decision on admissibility
the imposition of the death penalty in the United States, without, 1. The Committee also observed that, in principle, lawful capital
however, substantiating how this alleged bias would affect him. punishment under article 6 does not per se raise an issue under
article 7. The Committee considered whether there are none the
5. The State party recalls that the author illegally entered the less special circumstances that in this particular case still raise an
territory of Canada, where he was arrested in April 1985. It issue under article 7. Canadian law does not provide for the death
submits that the communication is inadmissible ratione personae, penalty, except in military cases. Canada may by virtue of article 6
loci and materiae. of the Extradition Treaty seek assurances from the other State
which retains the death penalty, that a capital sentence shall not
6. It is argued that the author cannot be considered a victim within be imposed. It may also, under the Treaty, refuse to extradite a
the meaning of the Optional Protocol, since his allegations are person when such an assurance is not received. While the seeking
derived from assumptions about possible future events, which of such assurances and the determination as to whether or not to
may not materialize and which are dependent on the law and extradite in their absence is discretionary under the Treaty and
actions of the authorities of the United States. The State party Canadian law, these decisions may raise issues under the
refers in this connection to the Committee's views in Covenant. In particular, the Committee considered that it might be
communication No. 61/1979, (1) where it was found that the relevant to know whether the State party satisfied itself, before
Committee "has only been entrusted with the mandate of deciding not to invoke article 6 of the Treaty, that this would not
examining whether an individual has suffered an actual violation involve for the author a necessary and foreseeable violation of his
of his rights. It cannot review in the abstract whether national rights under the Covenant.
legislation contravenes the Covenant".
2. On 31 July 1992 the Committee decided that the communication
7. The State party finally submits that the author has failed to was admissible inasmuch as it might raise issues under articles 6
substantiate his allegations that the treatment he may face in the and 7 of the Covenant. The Committee further indicated that, in
United States will violate his rights under the Covenant. In this accordance with rule 93, paragraph 4, of its rules of procedure, the
connection, the State party points out that the imposition of the State party could request a review of the decision on admissibility
death penalty is not per se unlawful under the Covenant. As at the time of the examination of the merits of the communication.
regards the delay between the imposition and the execution of the Two Committee members appended a dissenting opinion to the
death sentence, the State party submits that it is difficult to see decision on admissibility.

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4. The Committee notes that article 6, paragraph 1, must be read

Comments by author's counsel together with article 6, paragraph 2, which does not prohibit the
1. In his comments on the State party's submission, author's counsel imposition of the death penalty for the most serious crimes.
argues that whereas article 6 of the Covenant does foresee the Canada itself did not impose the death penalty on Mr. Kindler, but
possibility of the imposition of the death penalty, article 6, extradited him to the United States, where he faced capital
paragraph 2, applies only to countries "which have not abolished punishment. If Mr. Kindler had been exposed, through extradition
the death penalty". Since Canada has abolished capital from Canada, to a real risk of a violation of article 6, paragraph 2,
punishment in non-military law, the principle applies that one in the United States, that would have entailed a violation by
cannot do indirectly what one cannot do directly, and that Canada Canada of its obligations under article 6, paragraph 1. Among the
was required to demand guarantees that Mr. Kindler would not be requirements of article 6, paragraph 2, is that capital punishment
executed and that he would be treated in accordance with article be imposed only for the most serious crimes, in circumstances not
7 of the Covenant. contrary to the Covenant and other instruments, and that it be
carried out pursuant to a final judgment rendered by a competent
2. Counsel contests the argument by the State party that Mr. Kindler court. The Committee notes that Mr. Kindler was convicted of
was not a minor at the time of the offence. "It is not sufficient to premeditated murder, undoubtedly a very serious crime. He was
state that Mr. Kindler is not a minor and is charged with a serious over 18 years of age when the crime was committed. The author
offence because in a society in which minors and mentally has not claimed before the Canadian courts or before the
defective citizens can be executed, the access to a pardon is almost Committee that the conduct of the trial in the Pennsylvania court
non-existent for someone like Mr. Kindler; yet the right to apply violated his rights to a fair hearing under article 14 of the
for pardon is an essential one in the Covenant." Covenant.

3. The fact that the Covenant provides for capital punishment for 5. MOREOVER, THE COMMITTEE OBSERVES THAT MR. KINDLER
serious offenses does not prevent an evolution in the WAS EXTRADITED TO THE UNITED STATES FOLLOWING
interpretation of the law. "By now capital punishment must be EXTENSIVE PROCEEDINGS IN THE CANADIAN COURTS, WHICH
viewed as per se cruel and unusual, and as a violation of sections REVIEWED ALL THE EVIDENCE SUBMITTED CONCERNING MR.
6 and 7 of the Covenant in all but the most horrendous cases of KINDLER'S TRIAL AND CONVICTION. IN THE CIRCUMSTANCES,
heinous crime; it can no longer be accepted as the standard THE COMMITTEE FINDS THAT THE OBLIGATIONS ARISING
penalty for murder; thus except for those unusual cases, the UNDER ARTICLE 6, PARAGRAPH 1, DID NOT REQUIRE CANADA
Covenant does not authorize it. In this context, executing Mr. TO REFUSE THE AUTHOR'S EXTRADITION.
Kindler would by itself be a violation of sections 6 and 7 and he
should not have been extradited without guarantees." 6. While States must be mindful of the possibilities for the protection
of life when exercising their discretion in the application of

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extradition treaties, the Committee does not find that the terms of that, in contrast to the present case, there was a simultaneous
article 6 of the Covenant necessarily require Canada to refuse to request for extradition by a State where the death penalty would
extradite or to seek assurances. The Committee notes that the not be imposed.
extradition of Mr. Kindler would have violated Canada's
obligations under article 6 of the Covenant, if the decision to 8. ACCORDINGLY, THE COMMITTEE CONCLUDES THAT THE FACTS
extradite without assurances would have been taken arbitrarily or AS SUBMITTED IN THE INSTANT CASE DO NOT REVEAL A
summarily. The evidence before the Committee reveals, however, VIOLATION OF ARTICLE 6 OF THE COVENANT BY CANADA. THE
that the Minister of Justice reached a decision after hearing COMMITTEE ALSO CONCLUDES THAT THE FACTS OF THE CASE
argument in favour of seeking assurances. The Committee further DO NOT REVEAL A VIOLATION OF ARTICLE 7 OF THE COVENANT
takes note of the reasons given by Canada not to seek assurances BY CANADA.
in Mr. Kindler's case, in particular, the absence of exceptional
circumstances, the availability of due process, and the importance 9. The Committee expresses its regret that the State party did not
of not providing a safe haven for those accused of or found guilty accede to the Special Rapporteur's request under rule 86, made in
of murder. connection with the registration of the communication on 26
September 1991.
7. In determining whether, in a particular case, the imposition of
capital punishment could constitute a violation of article 7, the 10. THE COMMITTEE, ACTING UNDER ARTICLE 5, PARAGRAPH 4, OF
Committee will have regard to the relevant personal factors THE OPTIONAL PROTOCOL, FINDS THAT THE FACTS BEFORE IT
regarding the author, the specific conditions of detention on death DO NOT REVEAL A VIOLATION BY CANADA OF ANY PROVISION
row, and whether the proposed method of execution is OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
particularly abhorrent. In this context the Committee has had RIGHTS.
careful regard to the judgment given by the European Court of
Human Rights in the Soering v. United Kingdom case. (13) It notes Maroufidou v. Sweden
that important facts leading to the judgment of the European Communication No. R.13/58
Court are distinguishable on material points from the facts in the
present case. In particular, the facts differ as to the age and mental Facts:
state of the offender, and the conditions on death row in the
respective prison systems. The author's counsel made no specific 1. Anna Maroufidou, a Greek citizen, who came to Sweden seeking
submissions on prison conditions in Pennsylvania, or about the asylum, was granted a residence permit in 1976. Subsequently on
possibility or the effects of prolonged delay in the execution of 4 April 1977 she was arrested on suspicion of being involved in a
sentence; nor was any submission made about the specific method plan of a terrorist group to abduct a former member of the
of execution. The Committee has also noted in the Soering case Swedish Government. In these circumstances the Central

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 P a g e | 12

Immigration Authority on 28 April 1977 raised the question of her 3. The Committee is satisfied that in reaching the decision to expel
expulsion from Sweden on the ground that there was good reason Anna Maroufidou the Swedish authorities did interpret and apply
to believe that she belonged to, or worked for, a terrorist the relevant provisions of Swedish law in good faith and in a
organization or group, and that there was a danger that she would reasonable manner and consequently that the decision was made
participate in Sweden in a terrorist act of the kind referred to in "in accordance with law" as required by article 13 of the Covenant.
sections 20 and 29 of the Aliens Act. On 5 May 1977 the Swedish
Government decided to expel her and the decision was
immediately executed. ICCPR; Article 13 on Alien Expulsion ; Vis-à-vis Refugee and Asylum

Issue: Immigration and Naturalization Services vs. Cardoza-Fonseca

480 U.S. 421 (1987)
Whether or not the decision to expel her was in violation of article
13 of the Covenant because it was not "in accordance with law"? Facts:

Ruling: 1. Cardoza-Fonseca entered the US as a visitor from Nicaragua. She

overstayed her visa which resulted to INS proceedings to deport
1. No. The Human Rights Committee acting under article 5 (4) of the her.
Optional Protocol to the International Covenant on Civil and
Political Rights is therefore of the view that the above facts do not 2. She admitted that she stayed illegally and she applied for two (2)
disclose any violation of the Covenant and in particular of article forms of relief in the deportation hearings - assylum and
13. witholding of deportation.

2. The Committee takes the view that the interpretation of domestic 3. According to her application, she availed said relief because she
law is essentially a matter for the courts and authorities of the and her brother were hunted by the Sandinistas who tortured her
State party concerned. It is not within the powers or functions of brother due to their political involvement or activities in
the Committee to evaluate whether the competent authorities of Nicaragua.
the State party in question have interpreted and applied the
domestic law correctly in the case before it under the Optional
4. She feared that she would be interrogated about her brother's
Protocol, unless it is established that they have not interpreted
whereabouts and activities, and she also feared that she will be
and applied it in good faith or that it is evident that there has been
tortured if she will return to her home country.
an abuse of power.

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5. An immigration judge denied her application for asylum for her 1. The applicant is a 26-year-old married male native of Albania and
failure to establish a "clear probability of persecution". citizen of Yugoslavia. He arrived in the United States on June 5,
1986, and was placed in exclusion proceedings. The applicant
Issue: does not contest on appeal his excludability under sections
Whether or not applicant Cardoza-Fonseca is eligible for asylum 212(a)(19) and (20) of the Act.
as a refugee for establishing a clear probability of persecution.
2. The applicant testified that he was born in Albania and fled to
Ruling: Yugoslavia with his family as a refugee when he was 5 years old.

1. Yes. A person is eligible for discretionary relief of asylum if they 3. In 1985 Yugoslav authorities did issue him a titre de voyage 2 so
are a refugee - that is "unable or unwilling to return to, and is he could travel out of the country, but the American Embassy
unwilling or unable to avail themselves of the protection of their denied his application for a visa.
home country because of persecution on account of race, religion,
nationality, membership in a particular social group, or political 4. The applicant also said that while he was in Brussels he applied
opinion."
for a tourist visa at the American Embassy, but his application was
denied and he was told to go to Yugoslavia to apply for a visa. He
2. The alien need not prove that the she will be persecuted upon
testified that he did not ask for asylum at the American Embassy
return to her home country; hence, there is no need to establish a
because he did not know that he could do so.
"clear probability of persecution" in order to be entitled for said
relief. Issue:
Whether or not the applicant is entitled to asylum.
3. The applicant only need is to prove that there js an existing fear or
"well-founded fear" that she will be persecuted if she return to her Ruling:
home country; thus, Cardoza-Fonseca is only required to show
either past persecution or "good reason" to fear future 1. Yes. To be eligible for asylum under section 208 of the Act, an alien
persecution. must meet the definition of a "refugee," which requires him to
show persecution or a well-founded fear of persecution in a
Matter of Pula particular country on account of race, religion, nationality,
19 I&N Dec. 467 (BIA 1987) membership in a particular social group, or political opinion.
Section 101(aX42)(A) of the Act, 8 U.S.C. § 1101(a)(42XA) (1982);
Facts:
section 208 of the Act. The burden of proof required to establish

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eligibility for asylum is lower than that required for withholding in the status of a stowaway is entitled under section 208(a) to a
of deportation. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). An hearing before an immigration judge on his application for
applicant for asylum has established a well-founded fear if he asylum). The phrase does not apply to the second clause of the
shows that a reasonable person in his circumstances would fear sentence, which is independent and separate from the first clause.
persecution for one of the five grounds specified in the Act Matter This second clause contains authorization for the Attorney General
of Mogharrabi, 19 I&N Dec. 439 (MIA. 1987). Further, asylum, to grant asylum applications at his discretion. The only express
unlike withholding of deportation, may be denied in the exercise of qualification on the exercise of this discretion is that the alien be a
discretion to an alien who establishes statutory eligibility for the refugee within the meaning of section 101(aX42)(A). Thus, while
relief. INS v. Cardoza-Fonseca, supra; Matter of Mogharrabi, supra. section 208(a) provides that an asylum application be accepted
from an alien "irrespective of such alien's status," no language in
2. Each of the factors mentioned above will not, of course, be found that section precludes the consideration of the alien's status in
every case. An applicant for asylum has the burden of establishing granting or denying the application in the exercise of discretion.
that the favorable exercise of discretion is warranted. Matter of
Shirde2, 19 I&N Dec. 33 (BIA 1984). Therefore, the alien should Djordje Kovac v. INS
present evidence on any relevant factors which he believes 407 F.2d 102 (9th Cir. 1969)
support the favorable exercise of discretion in his case. In the
absence of any adverse factors, however, asylum should be Facts:
granted in the exercise of discretion.
1. Djordje Kovac was a native and citizen of Yugoslavia, entered the
United State on February 13, 1967, as a non-immigrant crewman
3. Section 208(a) consists of only one sentence, which contains two
on shore leave from a Yugoslavian vessel. His ship departed on
independent clauses linked by the conjunction "and." A careful
February 21, but Kovac remained. He concedes that he is
reading of the language of this section reveals that the phrase
deportable.
"irrespective of such alien's status" modifies only the word "alien"
in the first clause of the sentence. The function of that phrase is to 2. On March 06, 1967, in the deportation hearing, petitioner
ensure that the procedure established by the Attorney General for expressed a desire to apply for a temporary stay of deportation
asylum applications includes provisions for adjudicating under section 243 (h) of the Immigration and Nationality Act
applications from any alien present in the United States or at a which as amended October 03, 1965. Authorizes the Attorney
land border or port of entry, "irrespective of such alien's status." General to withhold deportation any country in which “the alien
cf. Yiu Sing Chun v. Sava, '708 F.2d 869 (2d Cir. 1983); Matter of would be subject to persecution on account of race, religion or
Waldei, 19 I&N Dec. 189 (BIA 1984) (discussing whether an alien political opinion.”

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Ruling:
3. Consisting almost entirely of an examination of Kovac by
government counsel through an interpreter – Kovac did not speak AFFIRMED
English and was not represented by counsel. At the conclusion of
the hearing the special inquiry officer dictated an opinion denying 1. Whatever the scope of review of factual aspects of decision under
relief under section 243 (h) (although no formal application had this section, it is now well settled that the “standard employed by
been filed) and ordering petitioner deported. the Attorney General in exercising his discretion under 243 are
subject to judicial review. The three erroneous legal standards
4. The special inquiry officer rested his decision upon his
were applied by the Board:
understanding that petitioner’s claim to persecution was “based
solely on the fact that he could be liable to prosecution for
violation of the Yugoslavian law for deserting his ship.” However, a. The Board appears to have equated petitioner's fear of
the documents subsequently filed by petitioner with the special punishment for having sought political asylum in this country with
inquiry officer and the Board made it clear that this was not the a fear of punishment for having deserted his ship. Congress did not
substance of Kovac claim. intend to make the United States a refuge for common criminals,
but it did intend to grant asylum to those who would, if returned,
5. Djordje Kovac claim, as set out in his notice of appeal and motions be punished criminally for violating a politically motivated
for reopening an reconsideration, rested upon the following prohibition against defection from a police state. The Board itself
allegations. Kovac is a Yugoslavian citizen, but was discriminated has recently recognized that relief may be afforded under section
against because of his Hungarian extraction. He was trained as a 243(h) if an alien can show "that his departure was politically
chef, and, after completing trade school, was employed as a chef in motivated and that any consequence he faces on return are
various hotels and inns. Following the Hungarian revolution in political in nature," even though they take the form of criminal
1957, petitioner was approached by officials of the Yugoslavian penalties for flight.
secret police and asked to mingle among the Hungarian refugees
b. The Board concluded that if petitioner were returned to
and inform the police of the activities of the Hungarian
Yugoslavia he would not be denied employment but would simply
underground.
be assigned to ships not destined for this country.
c. An even more serious problem arises from the significance which
Issue:
Whether or not Djordje Kovac the motion to reopen, the Board of the Board attached to its conclusion that some employment
Immigration Appeals applied legal standards which reflect, in our opinion, opportunity would remain available to petitioner in Yugoslavia.
an erroneous interpretation of section 243(h) This, the Board said, "would deprive of any validity the possible
claim that he would be subjected to economic sanctions so severe

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as to deprive him of all means of earning a livelihood." The suffer persecution because of race, religion, or political opinion.
standard here applied by the Board is clearly wrong. Under the amended statute, therefore, a probability of deliberate
imposition of substantial economic disadvantage upon an alien for
3. Until 1965, the Attorney General's authority to withhold reasons of race, religion, or political opinion is sufficient to confer
deportation under section 243(h) was limited to those cases in upon the Attorney General the discretion to withhold deportation.
which the alien could show the probability of 6. Because the Board's decision may have been infected by the
"physical persecution." However, section 243(h) was amended in application of these three erroneous legal standards, the Board's
1965, by the same bill which generally liberalized the Immigration order must be vacated. Moreover, fairness requires that the
and Nationality Act by abolishing the "national origins" system. petitioner be afforded an opportunity to present evidence at a
The adjective "physical" was deleted, and the language was reopened hearing before a special inquiry officer, conducted in the
modified to read, "persecution on account of race, religion, or light of proper statutory standards.
political opinion."
Korablina v. INS
4. The amendment followed repeated criticism of the narrowness of 158 F.3d 1038, 1045-46 (9th Cir.1998)
the restriction to "physical" persecution, including a specific
reference to rulings that "reducing a workman to the lowest stage Facts:
of ability to work, and thereby depriving him of opportunity of
providing for himself and his family, [is] not `physical.'" 1. Korablina and her family suffered several instances of
discrimination and severe harassment by ultranationalists in
Congressman Feighan, Chairman of the House Committee which
Ukraine due to their religion which is Jewish.
later proposed the amendment, and floor manager of the bill,
expressed approval of the latter criticism.
2. These include denial of her admittance to a school, difficulty in
work advancement, and separate attacks and threats from
5. The amendment thus eliminated the premise upon which courts ultranationalists. Even her father and daughter suffered from
construing the old statute — and the Board in this case — based similar attacks and harassment due to their religion.
the rule that, to come within the reach of section 243(h), a denial
of employment opportunities must extend to all means of gaining 3. She went to the United States as a visitor. Four days before her
a livelihood. The amended statute shifts the emphasis from the visa expired, she applied for asylum. However, the Immigration
consequences of the oppressive conduct to the motivation behind Judge (IJ) denied her application for asylum. The IJ concluded that
it. An alien is now eligible for the humanitarian relief provided by what Korablina experienced was mere discrimination and did not
the statute if he can show that, if deported, he would probably

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rise to the level of persecution which is the requirement for 5. Therefore, the experiences suffered by Korablina compel the
asylum. conclusion that she suffered persecution and has succeeded in
establishing prima facie eligibility for asylum.
4. The Board of Immigrations Appeal (BIA) dismissed her appeal and
ordered for her deportation. Hence, Korablina petitioned the case Immigration and Naturalization Service (INS) v. Elias-Zacarias
to the U.S. Court of Appeals. 502 U.S. 478 (1992)

Issue: Facts :
Whether or not Korablina is entitled to asylum.
1. In July 1987, respondent Elias-Zacarias was arrested for illegally
Ruling: entering the United States without inspection. In deportation
proceedings brought by petitioner Immigration and
1. Yes, she is entitled to asylum. The requirement is that there is Naturalization Service (INS), Elias-Zacarias conceded his
persecution or a well-founded fear of persecution if she returns to deportability, but requested asylum and withholding of
her country of origin. deportation. the Board of Immigration Appeals (BIA) determined
that he was ineligible for a discretionary grant of asylum.
2. The court defined persecution as “the infliction of suffering or
harm upon those who differ (in race, religion, or political opinion) 2. He testified that six months before he was arrested, in his native
in a way regarded as offensive”. Guatemala, two armed, uniformed guerrillas covering their faces
with handkerchiefs entered his home. The armed guerrillas
3. By testifying that she fears persecution and she experienced demanded that he and his parents join the rebellion, but they all
violent attacks, she clearly met the test of well-founded fear which refused. Elias-Zacarias did not want to join the guerrillas because
should be subjectively genuine and objectively reasonable. they were against the government, and he was afraid the
government would retaliate against him if he joined the guerrillas.
4. In contrast with the IJ’s decision that what she suffered was mere Elias-Zacarias left Guatemala in March, 1987, because he was
discrimination, the court said that “Discrimination, harassment, afraid the guerrillas would return.
and violence by groups that the government is unwilling or unable
to control can also constitute to persecution.” This is evident in 3. After an immigration judge denied his application for asylum, and
Ukraine due to a pattern of anti-Semitic and negligence of the the Board of Immigration Appeals denied an appeal, he submitted
government. new evidence saying that after he had left Guatemala, the
guerrillas had returned to his home twice more seeking to recruit

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him. The BIA rejected the new evidence, saying it would not explanations was germane to any political opinion Elias-Zacarias
change the fact that he was not legally eligible for asylum. might have been expressing.

4. the Court of Appeals ruled that a guerrilla organization's acts of 3. And as for the political motives of the guerrillas, the Court found
conscription constitute persecution on account of political these to be beside the point. The statute, after all, made a refugee
opinion and that respondent therefore had a well-founded fear of eligible for asylum only if the persecution he experienced was "on
such persecution. account of political opinion." The Court thought that the "ordinary
meaning" of these words referred to the victim's political opinion,
Issue: not the persecutors. "If a Nazi regime persecutes Jews, it is not,
Whether or not respondent is eligible for asylum. within the ordinary meaning of language, engaging in persecution
on account of political opinion; and if a fundamentalist Moslem
Ruling: regime persecutes democrats, it is not engaging in persecution on
account of religion. Thus, the mere existence of a generalized
1. Under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(42), 'political' motive underlying the guerrillas' forced recruitment is
any alien who is "unable or unwilling to return to his home inadequate to establish... the proposition that Elias-Zacarias fears
country because of persecution or a well-founded fear of persecution on account of political opinion."
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion" is eligible for 4. Further, even if the Court were to accept the proposition that not
asylum in the United States. The Court emphasized that, when a taking a political opinion was in itself a political opinion, Elias-
refugee applies for asylum on account of political opinion, the Zacarias had to establish that he feared the guerrillas would
refugee must actually be expressing a political opinion, and it is persecute him because of that political opinion. The crucial
the political opinion of the refugee that is important, not that of deficiency on this score was that there was no evidence in the
his persecutors. Because neither of these applied to the record of what the guerrillas' motives were.
respondent Elias-Zacarias, the Court had to ultimately deny his
application for asylum. Bolanos-Hernandez v. Immigration & Naturalization Services
767 F.2d 1277; 1984 U.S. App. LEXIS 15794
2. There were many reasons apparent to the Court why a person
might not want to join a guerrilla organization, and not all of them Facts:
were related to a political opinion. He might be afraid of combat,
he might want to remain with his family and friends, he might 1. Petitioner Bolanos, a citizen of El Salvador, entered the USA
wish to "earn a better living in civilian life." None of these illegally.

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2. A deportation hearing was set, during which, Bolanos conceded a. Whether there was a likelihood of persecution as to
deportation, but added that he is a political refugee (he applied for Bolanos’ life or freedom?
asylum) and, therefore, should not be deported, as he would be b. Whether such persecution, if any or at all, was based on
subject to political persecution back in his country, both from the Bolanos’ political beliefs?
government and the guerrilla fighters. 3. Whether the requirements of Section 208(a) of the Refugee Act
o Bolanos based this contention on the fact that, one, the were met and/or satisfied, likewise?
guerrillas tried to recruit him, owing to his affiliation with
the government, and when he refused, he received threats Ruling:
of murder; and, two, that the fact that his brother is
associated with the said guerrillas gave him reason to, at 1. No, it is not. The court notes that the government failed to
the same time, also fear the government. consider Section 243(h) of the INA and Section 208(a) of the RA
o Together, these fears constrained Bolanos to enter the separately. Instead, it immediately ruled on the matter in a
USA without going through a proper immigration process “combined fashion”, therein lumping both provisions together,
and, consequently, seek asylum. despite or against prevailing jurisprudence.

3. The Immigration Judge, et al., ruled that Bolanos failed to show, 2. Yes. A proper invocation of the quoted section requires showing
justify, or prove any danger to himself because of his political of the following requisites, thus:
opinion and that his fears of persecution was no different nor
greater than that of other citizens of El Salvador currently staying a) A likelihood of persecution, i.e., threat to life or freedom;
in the country, thereby contending that the standards required by b) Persecution by the government or by a group which the
both the Refugee Act (Section 208(a)) and the Immigration and government is unable to control;
Nationality Act (Section 243(h)) were not satisfied and/or met by c) Persecution resulting from the petitioner’s political
Bolanos. beliefs; and
d) The petitioner is not a danger or a security risk to the
Issues:
United States.

1. Whether the government was correct in denying Bolanos’

In this case, the government does not deny that both (b) and (d)
application and, therefore, ordering his deportation?
have been met by Bolanos. Rather, the government bases its
decision on Bolanos’ failure to prove (a) and (c) of the same. In this
2. Whether the requirements of Section 243(h) of the Immigration
regard, the court disagrees.
and Nationality Act were met and/or satisfied by applicant
Bolanos?
a. Yes.

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guerrillas is proof that his actions may result into a violent

While the Court notes that general evidence of widespread response, if not utter retaliation, against his life or liberty.
conditions of violence affecting all residents of a country is, in
itself, insufficient, it is provided, however, that such evidence, 8. Yes. The government’s contention that Bolanos’ choice to remain
coupled with factual support, concrete evidence, and some neutral is apolitical; hence, not the cause of his suffering or
documentary evidence is sufficient enough so as to prove the persecution is without basis in both law or logic. The Court notes
likelihood of persecution, as required in Section 243(h) of the INA. that choosing neutrality is as much the same as choosing a
particular political faction. Simply said, the decision to remain
4. In this case, it must be noted that the threat to Bolanos’ life is a neutral is a political choice.
specific one; not a general one, as so claimed by the government.
Additionally, Bolanos’ evidence of newspapers were coupled by 9. Likewise, the Court rejects the contention that a political decision,
testimonial evidence. for the same to be political, must be for a political motive. The
Court disagrees. A political decision may be undertaken for both
5. The Court rejected the argument of the government that political and non-political reasons.
corroborative testimony or evidence is required in order to
validate the asylum applicant’s own claims, for to accept such an 10. Regardless, the Court finds it improper for the government to
interpretation vis-à-vis the requirement of “objective evidence” inquire upon an applicant’s motives for choosing a particular
would be to render all applications for asylum insuperable. political choice. For one, creating a standard for assessment of
such decision—i.e., whether it is political or non-political—may
6. The Court notes, however, that any mere claim of threat of be close to impossible. For another, it must be noted that potential
persecution cannot simply suffice as it is. For there to be a clear persecutors do not really care what the applicant’s motives are.
probability of persecution, any threats must be of a serious nature, The Court notes that perpetrators of violence do not inquire into
i.e., that the group making the threat has the will or ability to carry the reasoning process of those who remain neutral or who refuse
it out. to join their ranks. To find otherwise is to make the application
process for asylum nigh impossible to process and, consequently,
7. In this regard, the Court notes that, under prevailing render the existing laws useless.
jurisprudence, it is not a stranger to the fact that members of
guerrilla groups tend to respond or retaliate violently to persons 11. Yes, but primarily because of the satisfaction of the requirements
who refuse to join their ranks. Applied in this case, Bolanos has of Section 243(h), supra. Under the rules, any alien who meets the
clearly shown, by documentary evidence and testimonial clear probability standard under Section 243(h) also
evidence, that the general violence in El Salvador caused by the

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automatically meets the well-founded fear standard under Section protection. The police in turn charged him for his part in the
208(a). hostage incident.

12. As such, the case must be remanded to the Attorney General so 4. Ward expressed concern to the police about his wife and children.
that he may exercise his power of discretion in determining The police checked on them, only to discover that they had been
whether he should grant the requested relief. taken hostage by the INLA in order to prevent Ward from
providing information to the police about INLA.
Ward v. Canada
5. After ward released from a 3 years sentenced in jail, he sought
Facts: assistance of police from INLA members. He obtained a Republic
of Ireland passport for Ward and airline tickets to Canada.
1. Patrick Francis Ward joined the Irish National Liberation Army
(INLA) in 1983 as a volunteer. He described it as a ruthless para- 6. He arrived in Canada and sought admission as visitor. He became
military organization more violent than the Irish Republican the subject of an inquiry in May 1986 and claimed Convention
Army (IRA). Ward had been convicted of the offences of refugee status. His claim was based on a fear of persecution of the
possession of firearms, and contributing to acts of terrorism. He INLA. The Minister of Employment and Immigration insisted that
testified that with the constant turmoil in Northern Ireland, Ward was not a Convention refugee and, as a result, he filed an
people were forced to "take a stand" to protect their loved ones application for redetermination of his claim before the
and that his joining the INLA stemmed in part from a desire to Immigration Appeal Board. The Board allowed the
protect himself and his family, mainly from the IRA redetermination and found Ward to be a Convention refugee.

2. Wards task in INLA was to assist in guarding the organizations 7. Respondent Attorney General of Canada brought an application to
hostages in Ireland. One day, the INLA ordered the hostages to be review and set aside the decision of the Board. This application
executed but he wanted no part in the execution. Hence, he was granted by the Federal Court of Appeal, which set aside the
releases the hostages and succeeded in doing so without revealing decision and referred the matter back to the Board for
himself to the INLA. reconsideration. The federal court found that the willingness to
avail of the protection to his state is inextricably intertwined with
3. However, police let slip to an INLA member that one of their the state’s ability to offer effective protection. Same goes with the
member assisted the hostages in their escape. The INLA fear of persecution and lawck of protection is interrelated. The
suspected Ward, and he was confined and tortured. He was board found out that the Irish police protection is not adequate.
sentenced to death but managed to escape and sought police They Found Ward to be a completely credible witness Ward’s

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contention that his life would be in danger if he were required to membership does not substantiate a claim to refugee status based
return to Northern Ireland. upon a fear arising from acts committed by a member of the group
contrary to the interests of the group, which group interests are
8. Attorney General appealed. themselves contrary to the well-being of the state. In other words,
if the claimant's fear arose from within the group itself and not the
Issue: state, it cannot provide the basis of a claim of persecution. Urie
Whether or not Ward fall into the convention refugee definition.
J.A. was not persuaded that Ward, who feared persecution from
the organization to which he belonged, was entitled to the
Ruling:
protection afforded bona fide refugees who meet all the elements
in the definition of Convention refugee.
1. No, Convention Refugee is defined as any person who
(a) by reason of a well-founded fear of persecution for
3. In this case, Ward, being a member of the INLA who acted contrary
reasons of race, religion, nationality, membership in a
to their interest did not bring him within the definition. Ward's
particular social group or political opinion,
fear of persecution sprang from his membership in the
(i) is outside the country of the person's
organization and not from the state, since the INLA sentence him
nationality and is unable or, by reason of that
to death. He further noted that a determination that Ward was a
fear, is unwilling to avail himself of the
Convention refugee would not automatically entitle him to remain
protection of that country, or
in Canada, as he would still be subject to the exceptions relating to
(ii) not having a country of nationality, is outside
previous convictions, espionage or subversion.
the country of the person's former habitual
residence and is unable or, by reason of that
fear, is unwilling to return to that country, and Salahadin Abdulla and Others v. Bundesrepublik Deutschland (Court
(b) has not ceased to be a Convention refugee by virtue of of Justice, European Union) (2 March 2010)
subsection (2),
Facts:
2. In this case, Ward, being a member of the INLA who acted contrary
to their interest did not bring him within the definition. The basis 1. Iraqi nationals fled their country, fearing persecution by the
of the claim in order to fall in the purview of the convention regime of Saddam Hussein’s Baa’th party. They travelled to
refugee is that the fear of persecution must come from the state Germany between 1999 and 2002, there, sought for asylum
and not from INLA. The INLA activities are clearly contrary to the
interests of the government of Northern Ireland. But mere

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2. Bundesamt (Federal Office) recognized the applicants for asylum (1) refugee status ceases to exist when change in
and granted them refugee status. However, in 2004, circumstances in the country concerned are significant and non-
circumstances in Iraq changed prompting the Bundestamt to temporary in nature, and those circumstances which justified the person’s
initiate procedures in 2005 to revoke the recognition. The fear of persecution, and on which basis refugee status was granted, no
grantees appealed against the revocation of their refugee status longer exist and that person has no other reason to fear being persecuted

3. The instant case concerns interpretations of the Qualification For the purposes of assessing a change of circumstances:
Directive of the European Council (EC) setting forth the conditions
on minimum standards in determining who qualifies for refugee (2) the competent authorities of the Member State
status, the assessment of refugee’s fear of persecution and the must verify, having regard to the refugee’s individual
factors considered in cessation/revocation of refugee status situation, that the actors of protection have taken reasonable steps to
prevent the persecution,
4. Germany’s National Legislation on the Law of Asylum and Article
18 of the Charter of Fundamental Rights of the European Union (3) that they operate an effective legal system for the
(The Charter) recognize the right of asylum as set out in their detection, prosecution and punishment of acts constituting
respective legislations persecution,

Issues: (4) that the national concerned will have access to such
protection if he ceases to have refugee status, and
1. W/N the requirement of minimum standards of the Qualification
Directive of the EC as interpreted were met and/or satisfied by (5) that the actors of protection may comprise
the applicants for asylum and refugee status international organizations controlling the State or a substantial part
of the territory of the State, including by means of the presence of a
2. W/N Bundesamt (Federal Office) was correct in revoking the multinational troops under the mandate of international
grant of asylum and refugee status vis-à-vis the conditions set community under the auspices of the United Nations
forth in the Directive
2. Chapter II of the Directive speaks of Assessment of Applications for
Ruling: International Protection, sets out the conditions governing the
assessment of facts and circumstances, providing that “Member
1. Yes. Article 11 of Council Directive on minimum standards for the States consider it the duty of the applicant to submit
qualification must be interpreted as meaning that: as soon a s possible all elements needed to substantiate the
application for international protection

Human Rights Law | Atty. Kim Dayag | 1st Semester A.Y. ’19 - ‘20
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(Cessation…continue to refuse to avail himself of the

3. Chapter III of the Directive titled as Reasons for Persecution, protection of the country of nationality)
determines the elements which must be taken into account in
the assessment of each of the five reasons for persecution,
namely, (1) race, (2) religion, (3) nationality, (4)
membership of a particular social group. (5) political opinion

4. Yes. Germany’s National Legislation, the Law on Asylum, provides

that “The grant of the right to asylum and of refugee status shall be
revoked without delay when the conditions on which they were
based have ceased to exist, the foreign national can no longer
continue to refuse to avail of the protection of his country of
nationality.”

5. The same Convention states that the status shall cease to apply to
any person when the circumstances with which he was
recognized as a refugee is deemed to have ceased to exist,
thereby, he can no longer refuse the protection his country
affords him.

6. Article 14 of the Directive, which is entitled “Revocation of, ending

of or refusal to renew refugee status, provides as
follows:

1. Concerning applications for international protection filed

after the entry into force of this Directive, Member States shall
revoke, end or refuse to renew the refugee status of a third
country national, granted by a competent body, if he has
ceased to be a refugee in accordance with Article II

Human Rights Law | Atty. Kim Dayag | 1st Semester A.Y. ’19 - ‘20