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Pre-removal risk assessment (PRRA): Exclusions

This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.

This section provides guidance regarding the exclusion clauses in the United Nations 1951 Convention relating to the Status of Refugees (Refugee Convention) and how they apply in the context of Pre-removal Risk Assessment (PRRA).

On this page

Overview

The exclusion clauses are an integral part of the definition of a Convention refugee set out in the Refugee Convention. They provide that persons are excluded from refugee status if they fall under 1 of these clauses.

2 of the exclusion clauses contained in the Refugee Convention are incorporated into Canadian law and are contained in the Schedule of the Immigration and Refugee Protection Act (IRPA).

Section 98 of IRPA confirms that persons described under either of these clauses are excluded from refugee protection in Canada. Persons described under Article 1F may benefit from access to a restricted PRRA. In such cases, their applications are assessed only on the basis of factors set out in section A97. If approved, they benefit only from a reviewable stay of removal rather than from protected person status.

Authority to assess exclusions

A PRRA decision maker has the authority to make an exclusion finding. In many cases where an exclusion clause applies, an exclusion finding is made by the Refugee Protection Division (RPD) or Refugee Appeal Division (RAD) when a claim for refugee protection is referred to the Immigration and Refugee Board of Canada (IRB). However, the PRRA decision maker must assess whether an exclusion applies in cases where a person has never made a refugee claim or has but it was ineligible to be referred to the RPD, or where a situation of exclusion has arisen or been identified by the time of a PRRA determination.

The Federal Court of Appeal in Canada (Citizenship and Immigration) v. Li, 2010 FCA 75 (Li) confirmed the authority of a PRRA decision maker to determine that an applicant is a person described in Article 1F. Although the Li case only dealt with exclusion under Article 1F, its conclusion with respect to the authority of a PRRA decision maker to make an exclusion finding applies equally to exclusions under Article 1E.

When to consider an exclusion

When assessing PRRA applications, the PRRA decision maker must, in most cases, consider:

Section A98 excludes persons described by Article 1E and Article 1F of the Refugee Convention from protection and is what gives PRRA decision makers the authority to make exclusion findings.

IRPA sets out that PRRA decision makers can only apply section A98 in certain circumstances. Specifically, section A113 provides that a PRRA decision maker shall consider whether an exclusion applies [section A98] when assessing the application of a person described by 1 of the following:

When decision makers assess PRRA applications subject to sections A96 and A97 risk assessments, they should also consider exclusions, section A98.

These program delivery instructions (PDI) will focus on Exclusion under Article 1F only. Any questions on Article 1E exclusion in PRRA, including if a decision maker believes Article 1E may apply in a particular case, should be directed by the manager to the Asylum Branch (AB).

Assessing Article 1F exclusions in a PRRA

These instructions demonstrate how to assess whether an exclusion ground applies under Article 1F of the Refugee Convention.

Article 1F: General

Article 1F of the Refugee Convention deals with persons who are not considered to be deserving of protection. It states:

F. The provisions of this Convention shall not apply to 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, as defined in the international instruments drawn up to make provision in respect of such crimes;
  • (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.

Certain elements apply to all 3 exclusion grounds under Article 1F.

Exclusion determinations under Article 1F are not determinations of guilt and therefore are not based on proof beyond a reasonable doubt nor on the general civil standard of a balance of probabilities.

The phrase “serious reasons for considering” has been interpreted as setting a standard above mere suspicion. In Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40 (Ezokola), the Supreme Court of Canada (SCC) interpreted the test as more similar to the standard of proof of “reasonable grounds to believe”.

PRRA decision makers must assess the evidence before them to determine whether there are reasonable grounds to believe that a person committed an act that falls under 1 of the exclusion grounds identified in Article 1F.

It is not necessary for the applicant to have been charged or convicted of an act set out in Article 1F of the Refugee Convention. It is sufficient that there be reasonable grounds to believe that the applicant has committed such a crime.

The principles of complicity apply to all exclusion crimes. See Complicity – Modes of liability, Ezokola and defences below for more details.

Article 1F(a): Crime against peace, war crime, or crime against humanity

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

In order to understand what constitutes a crime under Article 1F(a), PRRA decision makers must refer to the international instruments that deal with these crimes.

Instruments

Several instruments exist today that define or elaborate on the notions of crimes against peace, war crimes and crimes against humanity. These include:

The SCC noted in Ezokola that reference should also be made to the growing body of jurisprudence of international ad hoc tribunals and national courts.

When making a decision to seek exclusion under Article 1F(a), it is important that PRRA decision makers be clear with regard to what specific crimes they are stating the applicant participated in and ensure they put this to the applicant. Failing to do so may result in a reviewable error upon judicial review at the Federal Court.

The PRRA decision maker should make findings as to all of the following:

Crimes against peace

The London Charter defines crimes against peace as the:

planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

The Rome Statute (PDF, 386 KB) updated this concept in 2017. The term used is now a “crime of aggression”, which refers to the same idea as a crime against peace.

The Rome Statute defines the crime of aggression as:

the planning, preparation, initiation, or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

The term “act of aggression” in this context means:

the use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

Examples of acts of aggression include:

Such crimes can only be committed in the context of international wars by persons who are representing a state or state-like entity and have the power to mobilize the state.

Due to the limited number of people to whom this paragraph of Article 1F could apply, there are few precedents for exclusion under this category.

War crimes

A war crime involves the violation of either of the following:

Such crimes can take place in either of the following scenarios:

The Geneva Conventions of 1949, Additional Protocols and their Commentaries (Geneva Convention) establishes the standards of international law for humanitarian treatment in war, including laying out 8 core war crimes. More recent international statues (listed above under Instruments) include other serious violations of the law and customs in armed conflict, which are important references in defining a war crime. The most recent instrument, the Rome Statue (PDF, 386 KB), lists over 50 war crimes. Canadian legislation codifies war crimes in the Crimes Against Humanity and War Crimes Act, which implements the Rome Statute.

Core crimes

The Rome Statute (PDF, 386 KB) defines the 8 core crimes of the Geneva Conventions first, following with the other 42 war crimes.

For the purpose of the Rome Statute, ‘war crimes’ means any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

Test for war crimes

Munyaneza c. R., 2014 QCCA 906 (Doc, 386 KB), a decision of the Quebec Court of Appeal regarding an appeal of a conviction for war crimes committed in Rwanda, helps interpret the overarching elements of a war crime. In this decision, the Court states that all of the following elements must be established:

Crimes against humanity

Crimes against humanity may be committed in the context of an international or internal war as well as in times of peace. They are defined in the Rome Statute (PDF, 386 KB) as any of the following:

To rise to the level of a crime against humanity, the offence must be committed as part of a widespread or systematic attack.

The act must be committed against a civilian population rather than other combatants.

It can include (though is not limited to being part of) a policy of persecution with the same political, racial, religious or cultural motive.

Finally, perpetrators of crimes against humanity are not limited to persons acting on behalf of a state, but may also include persons acting independently of the state, such as those involved in paramilitary or armed revolutionary movements.

Test for crimes against humanity

The Supreme Court of Canada, in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, established the elements of a crime against humanity. It found that a criminal act rises to the level of a crime against humanity when the following 4 elements are found:

  1. an enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act)
  2. the act was committed as part of a widespread or systematic attack
  3. the attack was directed against any civilian population or any identifiable group of persons
  4. the person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack

Article 1F(b): Serious non-political crime

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

General

The aim of this paragraph of the exclusion clause is to protect the community of a receiving country from the danger of admitting a person who has committed a serious common crime. This provision relates to IRPA’s objectives of protecting Canadians and denying access to Canadian territory to serious criminals.

This clause applies to anyone for whom there are serious reasons to believe they have committed an act that could be considered a serious non-political crime prior to their entry to Canada.

It can include fugitives from justice; persons who have been previously convicted, whether or not they have served any sentence imposed; and even those who have never been charged. None of the following are a prerequisite for the application of this clause:

A person can be found excluded under this clause even when there is evidence of:

These factors are considered extraneous to the test of whether there are serious reasons for considering that the applicant has committed a serious non-political crime.

Elements to consider

When assessing whether a person committed an act or crime that falls under Article 1F(b), the PRRA decision maker must consider the following questions:

Is the crime serious?

An important element of this clause is determining whether the crime is “serious.”

The Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection states that a serious non-political crime is difficult to define. However, it also notes that a serious crime must be a capital crime or a very grave punishable act.

In the context of IRPA, a “serious crime” is understood to mean an indictable or hybrid offence under the Criminal Code of Canada that is punishable by a maximum term of imprisonment of at least 10 years.

For the purpose of exclusion under Article 1F(b), there is a rebuttable presumption that, where a maximum sentence of 10 years or more could have been imposed had the crime been committed in Canada, the crime will generally be considered serious. However, as noted by the Court in Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, this presumption cannot be applied in a mechanistic, decontextualized or unjust fashion. In other words, it cannot be applied automatically, without consideration for the context surrounding the crime.

Crimes with maximum penalties of less than 10 years or acts that are not considered crimes in the jurisdiction where they are committed may still result in exclusion, while crimes with a significant potential penalty may not result in exclusion based on extenuating factors. This will depend on the circumstances and nature of the crimes committed.

Assessing the seriousness of the crime

The Federal Court of Appeal stated in Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404 that, when assessing the seriousness of a crime in the context of Article 1F(b), there must be an evaluation of the following factors:

Is the crime political?

Another important element of this clause is determining whether a crime is “political,” as a PRRA decision maker can only exclude a person under Article 1F(b) for serious non-political crimes.

For a crime to be considered political and fall outside of the scope of Article 1F(b), it must meet a 2-pronged test defined by the Court of Appeal in Gil v. Canada (Minister of Employment and Immigration) (C.A.), [1995] 1 FC 508:

  1. it must be committed for a political purpose that is in direct opposition to the government of the country
  2. there must be a rational nexus between the crime committed and the political objective sought

There are offences that can clearly be political in nature. Examples include:

However, there are also common offences that may be carried out with a clear political motivation.

The political aspect of the offence must be more important than the non-political crime aspect, and the person concerned should not be unduly benefiting from the offence.

If the political character of the offence outweighs the character of a common crime, the offence should be treated as a political offence and the person should not be excluded under Article 1F(b).

If political, is the political nature of the crime proportional to the impact of the crime?

The issue of proportionality is also a factor in assessing crimes under Article 1F(b).

Where the offence is particularly serious and disproportionate to the goal, it cannot be considered political even if the motive is political.

Was the crime committed prior to entry to Canada?

The words “prior to his admission to that country as a refugee” refer to the last element of this clause, that the crimes in question were committed prior to the applicant’s entry into Canada.

Crimes committed in Canada are dealt with through the domestic criminal justice system and are covered by IRPA’s inadmissibility provisions. In these cases, determinations regarding the application of restricted PRRAs are based on paragraph A112(3)(b) and section A113, not the exclusion clauses.

Article 1F(c): Acts contrary to the purposes and principles of the United Nations

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

This clause is very general in nature and is intended to cover such acts against the purposes and principles of the United Nations that might not be fully covered by the 2 preceding exclusion clauses. These purposes and principles can be found in the Preamble and Chapter 1 of the United Nations Charter.

The following conclusions on the application of this clause are generally accepted:

In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982, the Supreme Court of Canada set out 2 categories of acts that fall within this clause.

First category of acts

…where a widely accepted international agreement or United Nations resolution explicitly declares that the commission of certain acts is contrary to the purposes and principles of the United Nations

Examples given by the Court of acts falling under this category include:

International instruments exist that specifically designate these acts as being against the purposes and principles of the United Nations.

The Court also noted that other sources of international law may be relevant, giving by way of example determinations by the International Court of Justice.

Second category of acts

… [acts] which a court is able, for itself, to characterize as serious, sustained and systemic violations of fundamental human rights constituting persecution.

An example given by the Court of acts falling under this category:

The types of activities that are against the principles and purposes of the United Nations continue to be outlined in international jurisprudence. Most of these cases have pertained to either terrorist activities or human rights violations.

Further resources

Chapter 11 - Article 1F of the IRB Interpretation of the Convention Refugee and Person in Need of Protection in the Case Law deals with applying exclusions under Article 1F.

Modes of liability, Ezokola, and defences

These instructions demonstrate the different ways in which a person may be held accountable for an act that falls under an Article 1F of the 1951 Refugee Convention exclusion, as well as common defences for a person who has committed such an act.

Modes of liability

To find a person excluded under 1 of the Article 1F exclusion clauses, a PRRA decision maker must assess the evidence before them and determine whether there is a connection between the person’s actions and the elements of the exclusion clauses.

The most prominent form of individual criminal responsibility is direct perpetration. However, it is not necessary for a person to have personally committed a crime to be found personally responsible for that crime.

Persons may be excluded from refugee protection under Article 1F based on a variety of different roles they played in a crime being committed. A person might have physically committed a crime, or they might have aided and abetted someone to commit a crime, or they might be seen as responsible if the persons committing the crime reported to them and they reasonably should have known the crimes were being committed. These different forms of individual criminal responsibility are called modes of liability.

There are 2 modes of liability PRRA decision makers are most likely to encounter:

Direct perpetration

Direct perpetration occurs when it can be shown that a person physically carried out the main elements of an offence and that they did so with intent and knowledge.

This mode of liability is the focus of the section on Assessing Article 1F exclusions in PRRAs.

To find someone excluded for having personally carried out an offence that fits under the exclusion clauses, a PRRA decision maker must assess the evidence before them and determine whether the act committed meets all the elements under the particular clause being assessed.

Complicity

It is not necessary for a person to have physically committed an offence to have some form of individual criminal responsibility. Complicity recognizes that those who act to aid, incite, counsel, or otherwise support a perpetrator to commit an offence under Article 1F are equally culpable and should similarly be excluded from refugee protection.

In Ezokola, the SCC dealt extensively with the issue of complicity in the context of Article 1F(a). The Court overturned previous Federal Court of Appeal jurisprudence to adopt a new contribution-based test for complicity (otherwise known as the “Ezokola test”):

The Court warns decision makers that they should be cautious not to overextend the concept of complicity to capture individuals based on mere association or passive acquiescence. However, the focus on an organization’s crime or criminal purpose means that, unlike direct perpetration, complicity does not have to be tied to a specific act(s) or event(s).

The Ezokola test

The Ezokola test has 3 components that must be met. The IRB lays out the components in Chapter 11 - Article 1F of its Interpretation of the Convention Refugee and Person in Need of Protection in the Case Law as follows:

  1. Voluntary contribution. Factors to consider include:
    • whether the person had no realistic choice but to participate in the crime
    • the method of recruitment and any opportunity to leave the organization
    • whether a defence (for example, duress) is applicable
  2. Significant contribution. Factors to consider include:
    • the nature of the association (mere association or passive acquiescence will not suffice)
    • the nature of the activities in question (the contribution does not have to be directed to specific identifiable crimes but can be directed to wider concepts of common design, such as the accomplishment of an organization’s purpose)
    • the degree of contribution (it must be significant)
  3. Knowing contribution. This means that there must be a link between the person’s conduct and the criminal conduct of the group. Elements to consider include:
    • the person’s awareness (as evidenced by intent, knowledge or recklessness) of the group’s crime or criminal purpose
    • the person’s awareness that their conduct will assist in the furtherance of the crime or criminal purpose

Factors to consider

To assist in determining whether a person’s conduct meets the test for complicity (that is, was voluntary, significant and knowing), the Supreme Court in Ezokola also identified 6 factors to consider:

  1. the size and nature of the organization
  2. the part of the organization with which the person was most directly concerned
  3. the person’s duties and activities within the organization
  4. the person’s position or rank in the organization
  5. the length of time the person was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose
  6. the method by which the person was recruited and the person’s opportunity to leave the organization

The analysis of these factors is highly contextual; the weight of each factor depends on the facts and context of each case.

Important: These 6 factors are not the test and are non-exhaustive. They are intended for guidance only, to help determine whether the elements of the test are met. The test is to determine whether the person has voluntarily made a significant and knowing contribution to a crime or criminal purpose.

Defences

In certain circumstances, there are valid defences that may absolve the person from criminal responsibility for the crimes in question. Thus, despite having possibly committed a war crime or a crime against humanity, in these cases the person will not be excluded from refugee status.

The burden of proof for demonstrating that 1 or more defences apply remains with the person concerned.

Note: A person may be able to establish that their conduct was not voluntary in the context of an Ezokola complicity analysis, even if they have not established a defence.

Superior orders

An applicant may raise this defence in cases where they state they were ordered to commit an offence by a government or superior officer and where they were legally required to obey (for example, “I was just following orders…”).

This defence is not applicable, however, when the order was manifestly unlawful. The Supreme Court of Canada gave an example of this in R. v. Finta, [1994] 1 SCR 701, where the order described “offends the conscience of every reasonable, right-thinking person”, and the person had a moral choice as to whether to follow the order. The Crimes Against Humanity and War Crimes Act also provides examples of manifestly unlawful acts, stating at subsection 14(2) that “orders to commit genocide or crimes against humanity are manifestly unlawful.”

Duress

The defence of duress may be raised to address cases where a person felt forced to act because of the danger of enduring imminent harm otherwise. However, the harm the person feared must have been equal to or greater than the harm they were forced to inflict on someone else. For example, there is no expectation that a person desert or disobey an order at a risk to their life.

Paragraph 31(1)(d) of the Rome Statute (PDF, 386 KB) sets out the defence of duress and the Federal Court decision Canada (Citizenship and Immigration) v. Kljajic, 2020 FC 570 is a recent decision that involves the defence of duress.

The applicant must demonstrate the following elements for a successful defence:

For more information, see ENF 18 – Human or international rights violations (PDF, 747 KB).

Processing exclusions in a PRRA context

These instructions explain how PRRA decision makers should process PRRA applications in cases where they find an exclusion applies.

Impact of the Article 1F exclusion clause assessment

Section A113 explains how PRRAs should be considered in cases where a PRRA decision maker finds an exclusion under Article 1F of the Refugee Convention is applicable.

Before an exclusion

A decision maker must consider a PRRA application under paragraph A113(c) when both of the following apply:

A decision maker must consider a PRRA application under paragraph A113(e) when an applicant has not been previously excluded from refugee protection and is either of the following:

Paragraphs A113(c) and A113(e) direct the PRRA decision maker to assess the applicant against:

In reviewing a PRRA application against section A98, the PRRA decision maker may find that an exclusion under Article 1F applies.

After an Article 1F exclusion

The applicant falls under paragraph A112(3)(c) as having an Article 1F exclusion apply to them in cases where either of the following applies:

In these cases, as per paragraph A113(d), the applicant continues to have access to a PRRA. However, the PRRA becomes restricted to an assessment of the factors set out in paragraph A113(d).

It should be noted that a person who was excluded under Article 1F(b) and is subsequently found inadmissible under paragraph A36(1)(b), remains excluded under Article 1F(b) despite being granted rehabilitation and therefore they are still subject to a restricted PRRA.

Restricted PRRA

The PRRA application is no longer assessed under the Refugee Convention grounds [section A96]. The decision maker must consider the factors set out in the applicable subsection of paragraph A113(d), and on the basis of the following [section A97] grounds:

A positive decision on their application may only be made by a senior decision maker at Migration Integrity Operations Branch and results only in a reviewable stay of removal rather than protected person status.

In this manner, Canada is able to respect the spirit of the Refugee Convention, which excludes those who are not deserving of protection, while also upholding the principle of non-refoulement with respect to persons who face a danger of torture, a risk to life or a risk of cruel and unusual treatment or punishment.

Processing the application

Procedural fairness principles apply when conducting a risk assessment as well as to the consideration of the exclusion clauses.

The PRRA decision maker should take the following steps in processing the file:

  1. conduct a review of the file including the application and any submissions on behalf of the applicant
  2. identify the determinative issues
  3. conduct the necessary research to address the determinative issues
  4. if an exclusion clause may apply, ensure procedural fairness principles are followed by providing the applicant with a letter:
    1. notifying the applicant that an exclusion clause is under consideration
    2. explaining the impact on the applicant if they are found to be excluded; that is, if found excluded under Article 1F, the applicant will be provided with a restricted risk assessment
  5. afford the applicant with adequate time to provide written submissions in response
    1. The applicant must also be afforded an opportunity to respond to any extrinsic evidence
  6. if a hearing is held on the basis of section A113.01 or section 167 of the Immigration and Refugee Protection Regulations (IRPR),
    1. notify the applicant that the factual issues pertaining to the exclusion clause will be part of the determinative issues to be addressed during the hearing;
    2. if a hearing is not held, address why not in the written reasons
  7. after all evidence has been gathered, review the evidence to determine if an exclusion applies

Concluding the exclusion and next steps

If the PRRA decision maker finds that an exclusion under Article 1F does not apply, the decision maker will conduct a regular risk assessment based on the applicable factors set out in section A113.

If the PRRA decision maker finds that an exclusion under Article 1F does apply, the decision maker will do both of the following:

Dealing with dependants

In some cases, applicants who are found to be excluded under Article 1F may have submitted their application with other family members.

Refugee protection decisions apply to each individual separately and, when required, separate assessments should be conducted for each family member.

Distinct written decisions are particularly important in cases where 1 family member may be found excluded but where other family members might be found at risk.

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2025-11-18