A former soldier in the Wagner Group was excluded by the Directorate of Immigration (UDI) from refugee status under Section 31(1)(b) of the Immigration Act for commission of a serious non-political crime, and he was granted a residence permit with restrictions under Section 74 of the Immigration Act. The applicant complained against this decision arguing that he was a privileged combatant, that the Wagner Group belonged to one of the parties to the conflict entitled to immunity from national criminal laws for acts of war.

The Immigration Appeals Board (UNE) examined the appeal in a Grand Chamber formation by looking at international legal norms established in international criminal law (ICL) and international humanitarian law, the practice of international ad hoc courts, the Geneva Conventions (GC) and the Rome Statute of the International Criminal Court (ICC).

It noted that the Immigration Act, Section 31(1) was based on Article 1 F of the UN Refugee Convention, based on which a person who has committed a serious crime is considered unworthy of international protection as a refugee and at the same time it prevents persons who have committed crimes referred to in Article 1 F from being able to exploit the protection in the Refugee Convention to avoid prosecution in their home country.

UNE also noted that the conditions for exclusion from refugee status under Section 31(1) of the Immigration Act are cumulative and the standard of proof is a general preponderance of probability. In addition, Section 31(1)(a) should always be examined first as this provision concerns war crimes. As war crimes under Section 31(1)(a) of the Immigration Act are particularly serious violations of the rules of international law on armed conflicts, referred to as international humanitarian law, exclusion due to war crimes should always be considered before the other provisions, before considering exclusion under letter b for commission of serious non-political crimes.

UNE also emphasised that the most important acts that constitute war crimes include the killing of protected persons (civilians, wounded, prisoners of war) and torture of protected persons and that any combatant who participates in an armed conflict can be guilty of war crimes. Therefore, for this assessment, it is decisive whether the act was committed in connection with the armed conflict. It is not decisive whether one is a lawful combatant in one of the parties' armed forces, or whether one participates in the war as a civilian combatant, or a hybrid, as in the case of the Wagner Group.

UNE further noted that there is country information from reliable sources documenting the commission of war crimes by the Russian forces in Ukraine, in which the Wagner Group is expressly mentioned. These acts include murder, torture and other types of attacks against protected persons and, with reference to the Wagner Group, the treatment of Ukrainian prisoners of war which included torture, murder, sexual abuse, detention in inhumane conditions and lack of contact with family, which were routine in Wagner's treatment of Ukrainian prisoners of war.

Regarding the criminal conduct, UNE noted that persons may be guilty of a crime under Section 31(1) by committing and/or aiding and abetting the crime (i.e. making a substantial contribution to the crime, not necessary or decisive for the commission of the crime). Based on case law from Norway, the ICC, the ICTY, the Nuremberg Tribunal and also based on a statement from UNHCR, UNE concluded that the applicant had participated in a war crime and there were no grounds for impunity that could exempt him from punishment.

To the applicant's argument that he was a privileged combatant, UNE emphasised that ‘privileged combatants’ is defined in Article 4 of the Third Geneva Convention (GC, 1949), and Article 43 of Additional Protocol (TP) I to the Geneva Conventions (1977). Furthermore, Article 43(3) of TP I states that “a party to the conflict that incorporates into its armed forces a paramilitary or armed law enforcement agency shall always inform the other parties to the conflict of this.” However, UNE considered that the Wagner Group did not form part of the regular Russian armed forces in the period until 4 November 2022 and noted also that a possible state responsibility does not exclude individual responsibility for war crimes.

UNE also looked at the existence of any case law on the responsibility of paramilitary forces. By looking at ICJ jurisprudence, UNE concluded that it is only in cases where there is total dependence between the group and the state, direct command, that responsibility can be attributed to the state. While in this case there was information that Russia allowed the creation of the Wagner Group in order to serve Russian interests, at the same time it denied that the group had anything to do with Russia. Regarding the involvement of the group in the war in Ukraine, the available information indicated that although there were close ties between Russia and the Wagner Group leaders at various levels, the Wagner Group had varying degrees of autonomy as they were assigned areas and missions, but they chose the execution themselves. Therefore, UNE concluded that the Wagner Group was not part of the armed forces in Russia before 4 November 2022 and thus, in agreement with the UDI conclusion, the applicant was to be considered a civilian without the right to fire on Ukrainian forces.

Regarding exclusion under Section 31(1)(b) of the Immigration Act, for commission of a serious non-political crime, UNE noted that murder, torture, abduction, inhuman treatment, child abuse, rape, arson, hijacking, armed robbery and the import or trafficking of significant quantities of narcotics can provide grounds for exclusion. Based on UNE's previous case law, acts that can be characterized as torture or inhuman or degrading treatment (including attempts to commit them and complicity) are covered by the concept of serious crime. UNE also noted that the applicant’s main motive for joining the Wagner Group was economic and the desire to escape the regular mobilization of Russian forces, and therefore it was not  a political motive. Thus, in agreement with the UDI conclusion, UNE held that the applicant committed serious non-political crimes and that he could therefore also be excluded under letter b.

Finally, UNE also held that there was also serious reason to assume that the applicant was guilty of acts contrary to the purposes and principles of the UN, and could be excluded also under Section 31(1)(c) of the Immigration Act, as he contributed to international terrorism, serious cross-border criminal acts carried out with the purpose of intimidating a population or forcing a government to take or refrain from taking an action.

Therefore, UNE excluded the applicant from refugee status under Section 31(1)(a) and (b) of the Immigration Act and noted that he could also be excluded under letter c (acts contrary to the purposes and principles of the UN).