Given the serious consequences that exclusion may have for the individual, the exclusion grounds should be interpreted restrictively and applied with caution.
The examples in this chapter are non-exhaustive and non-conclusive. Each case should be examined on its own merits.
Applying the exclusion clauses, where there are serious reasons to consider that the applicant has committed any of the relevant acts, is mandatory.
Exclusion should be applied in the following cases:
It should be underlined that the determining authority has the burden of proof to establish the elements of the respective exclusion grounds and the individual responsibility of the applicant, while the applicant remains under an obligation to cooperate in establishing all facts and circumstances relevant to their application.
In the context of Somalia, numerous circumstances and different profiles may require consideration of the potential applicability of exclusion grounds. The QD does not set a time limit for the application of the grounds for exclusion. Applicants may be excluded in relation to events which have occurred in the recent and more distant past (e.g. acts committed by the Islamic Courts Union, acts committed during the civil war in 1988-1991).
COI indicates that excludable acts are committed by many actors both in relation to armed conflicts, as well as in the context of general criminality and human rights abuses.
The following subsections provide guidance on the potential applicability of the exclusion grounds in the context of Somalia.
The ground ‘crime against peace’ is not likely to be of relevance in the cases of applicants from Somalia.
Violations of international humanitarian law by different parties in the current and in past conflicts in Somalia could amount to war crimes, such as the deliberate and systematic attacks on hospitals, the deliberate indiscriminate attacks on civilians, etc.
Relevant situations include the civil war (1988-1991) and the non-international armed conflict between the Somali government and Al-Shabaab. Furthermore, fighting between the ISS and Al-Shabaab amounts to a non-international armed conflict.
Reported crimes such as murder, torture, and rape by the different actors could amount to crimes against humanity when committed as part of a widespread and systematic attack against the civilian population.
Some acts in the current and past conflicts, such as extrajudicial killings, torture, forced disappearance, could amount to both war crimes and crimes against humanity.
Especially (former) members of the SNA, the SPF, the NISA, as well as FMS security forces and anti-government armed groups, in particular Al-Shabaab and ISS, can be implicated in acts that would qualify as war crimes and/or crimes against humanity.
Crimes committed also in the context of clan militias clashes, in particular in the civil war in the past, could also give rise to considerations under Article 12(2)(a) QD/Article 17(1)(a) QD.
In the context of Somalia, criminality and breakdown in law and order in some parts of the country make the ground of ‘serious (non-political) crime’ particularly relevant. In addition to violence and murder related to family and clan disputes, some examples of particularly relevant serious crimes may include human trafficking, extorsion/illegal taxation, piracy, etc.
Violence against women and children (for example, in relation to domestic violence or in the context of forced and child marriage) could potentially amount to a serious (non-political) crime.
Performing FGM is a serious (non-political) crime. A careful examination of Performing FGM is a serious (non-political) crime. A careful examination of all relevant circumstances of the case, including those related to the individual responsibility should take place.
In some cases, the crimes in question could be linked to an armed conflict or could be committed as a part of a systematic or widespread attack against a civilian population (e.g. kidnapping of recruits, taxation to finance the activities of non-state armed groups), in which case they should instead be examined under Article 12(2)(a)/Article 17(1)(a) QD.
The application of exclusion should be based on an individual assessment of the specific facts in the context of the applicant’s activities within that organisation. The position of the applicant within the organisation would constitute a relevant consideration and a high-ranking position could justify a (rebuttable) presumption of individual responsibility. Nevertheless, it remains necessary to examine all relevant circumstances before an exclusion decision can be made.
Where the available information indicates possible involvement in crimes against peace, war crimes or crimes against humanity, the assessment would need to be made in light of the exclusion grounds under Article 12(2)(a)/Article 17(1)(a) QD.
In the examination of the application for international protection, the exclusion ground under Article 17(1)(d) QD is only applicable to persons otherwise eligible for subsidiary protection.
Unlike the other exclusion grounds, the application of this provision is based on a forward-looking assessment of risk. Nevertheless, the examination takes into account the past and/or current activities of the applicant, such as association with certain groups considered to represent a danger to the security of the Member States or criminal activities of the applicant.
