Delayed Asylum: The impact of the Exclusion Clause Test

The 1951 Convention Relating to the Status of Refugees details the legal protection, rights and assistance that a refugee is entitled to receive. Its article 1F^[1], known as the exclusion clause, outlines specific criteria for excluding individuals from refugee protection if there are serious reasons for believing that they have committed a crime against peace, a war crime, or a crime against humanity, among other serious offenses. The purpose of the exclusion is to safeguard the integrity of the institution of asylum^[2]. Given the serious consequences this may have for individuals, the application of the exclusion clause should always be considered in a restrictive manner and with great caution^[3]. In this article we highlight the increased application of the exclusion clause, particularly among Afghan asylum seekers in Lesvos by Greek authorities, and its adverse effects on the mental health and wellbeing of subjected individuals and their families.

In 2024, 71% of the population in the Closed Controlled Access Centre (Mavrovouni CCAC) were from Afghanistan, and 41% of the population were men^[4]. Many of them were forced to flee due to persecution by the Taliban, based on their involvement working with foreign governments intervening in the country (such as the US/UK military coalition).

The exclusion clause interview occurs at the discretion of the Greek authorities and has only recently begun to be applied on Lesvos. In recent months, men from Afghanistan have been subjected to an additional interview concerning the exclusion clause test, it should be noted that the application of this test occurred at the same time as the vast majority of Afghans are receiving international protection^[5]. The exclusion clause test is a critical component of the asylum application process, designed to determine whether a person’s past actions or affiliations disqualify them from receiving refugee status^[6].

This disposition may delay the asylum process, for them, as it requires additional scrutiny to determine their eligibility for refugee status. This delay is due to additional interviews to clarify their role in conflict situations, which considerably prolongs their wait until a decision is made, causing anxiety and mental health difficulties.

As a result, in Lesvos’ CCAC, NGOs estimate that between 60 and 80 families are in a state of limbo. While the men await a decision on their asylum claims, their wives and children, who already got a decision, have reported to different organisations, that they faced pressure from the Reception and Identification Service (RIS) forcing them to leave the CCAC within 24 hours of receiving travel documents with the threats that if they don’t leave, they will take away their documents. The prospect that they might be asked to leave the camp where they have found temporary shelter or the fear that if they leave the camp (for instance, to go shopping), they will not be able to return, destabilize an already vulnerable population.

This situation not only jeopardizes the safety and well-being of the individuals directly involved, but also places considerable strain on their families, exacerbating mental health challenges already prevalent among asylum seekers due to their precarious circumstances and the trauma they have endured^[7].

The uncertainty and prolonged waiting associated with the exclusion clause test have a profound impact on the mental health of Afghan asylum seekers and their families^[8]. The stress of potential separation, coupled with the trauma of their experiences and the harsh conditions of camp life, contribute to a heightened state of anxiety, depression, and other mental health issues. Children, who are particularly vulnerable, witness the distress of their parents, compounding the psychological toll on the family unit.

‍

Recommendations

The situation in Lesvos, within the Mavrovouni CCAC, highlights the urgent need for a more nuanced approach to the application of the exclusion clause. This approach must carefully balance the legal imperatives of the exclusion clause with the humanitarian needs and rights of asylum seekers, ensuring that processes are both fair and expedient. The mental health implications for these individuals and their families cannot be overstated, necessitating immediate attention and action from both the Greek authorities and international bodies. Mental health support, alongside legal assistance, should be prioritized to mitigate the adverse effects of prolonged asylum processes and uncertain futures.

To address the challenges highlighted by these cases, the following recommendations are proposed to Greek authorities and the European Commission to ensure that:

- The Greek asylum service expedites the processing of asylum claims, particularly those subjected to the exclusion clause test, to minimize the duration of uncertainty and its associated mental health impacts.

- The effective provision of holistic support services, including legal assistance and mental health support, for asylum seekers undergoing scrutiny under Article 1F. These services should be designed to address the unique needs of individuals with military affiliations and their families.

- Enhance access to clear and accurate information about the asylum process to alleviate stress caused by uncertainty and confusion about decisions.

- Clearer guidelines to differentiate between forced conscription and voluntary engagement in activities that would trigger the application of Article 1F. This distinction is vital for ensuring that those who were coerced into military service are not unjustly penalized.

- The welfare of families awaiting the outcome of asylum claims must be prioritized. Policies should ensure that families are not separated and are provided with adequate shelter and support during the decision-making process.