THE ANTI-TERRORISM, CRIME AND SECURITY
ASYLUM CLAIMS BY PERSONS WHO ARE NOT ENTITLED
TO PROTECTION UNDER ARTICLE 33(1) OF THE REFUGEE CONVENTION (clauses
33 & 34)
44. The Bill contains a provision that is designed
to limit SIAC's consideration of an asylum claim on an appeal.
We understand that, at present, SIAC is able to consider the question
of whether the appellant has a well-founded fear of persecution
at the same time as any issue of national security, which might
exclude them from the protection of the Refugee Convention. This
is the approach favoured by the Executive Committee of the United
Nations High Commissioner for Refugees.
Under the new provision, SIAC would have to consider only the
national security issues, without any examination of the substance
of the asylum.
45. The provision will only apply if the Home
Secretary certifies that the appellant is not entitled to protection
under Article 33(1) of the Refugee Convention, because either
Article 33(2) or Article 1(F) applied. Article 33(1) - otherwise
known as the principle against non-refoulement - prevents the
removal of a refugee where this would lead to their life or freedom
being threatened on account of their race, religion, nationality,
membership of a particular social group or political opinion.
Article 33(2) lifts that protection where there are reasonable
grounds for regarding the refugee as a danger to national security.
Where Article 1(F) applies, the person is excluded from the protection
of the Convention as a whole and, therefore, excluded from refugee
ARTICLE 1(F), REFUGEE CONVENTION
|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
46. If a person was certified under clause 33, SIAC would
have to consider the Home Secretary's statements on the certificate
(i.e., the national security issues) first:
- If SIAC agreed with those statements, it would
have to dismiss the asylum claim before considering any other
ground of appeal (e.g., a claim that Article 3 of the ECHR
prevents his removal)
- If it did not agree, it would have to quash the
decision or action against which the appeal was brought (e.g.,
the decision to refuse leave to enter) and the claim for asylum
would then be treated as undecided until the Home Secretary had
determined whether or not to take another decision or action of
the kind quashed (e.g, a fresh decision to refuse leave
47. The Bill preserves the right of appeal on
a point of law against a decision of SIAC. We were told by the
"What this Bill will enable the Government
to do if somebody is apprehended because there is a concern about
them, who then puts in an asylum claim, is that the Secretary
of State will, through the certification process, be able to set
aside the asylum claim and deal with the other issues first. At
the moment, under our current legislation we have to deal with
it the other way round, and that means that we actually cannot
take actions against somebody."
She added that:
"What the clarification of that process
does is to say that if somebody is excluded by Article 1(f) or
33(2) from the refugee status the process that we are setting
forward in the Bill, in terms of consequences of that assessment
being confirmed by SIAC, is a valid one and the water cannot be
muddied by an asylum claim."
48. On the other hand, Rick Scannell, Chair
of ILPA (who had not at that point seen the text of the Bill)
"...there are far more fundamental questions
which should be asked first: whether the person is a refugee or
whether there would be a risk that if removed to a country such
removal would put the UK in breach of its obligations under Article 3.
Both those substantive questions are questions in respect of which
any removal of appeal rights would be in fundamental contradiction
of any proper notion of the rule of law. We would object vehemently
to the withdrawal of an appeal in respect of status determination.
That is what SIAC is there to do and that is what it does."
33 Evidence, p.75, para.7. (UNHCR) Back
Acts contrary to the purposes and principles of the United Nations,
within the meaning of Article 1(F)(C) is taken to include terrorist
acts -- see, e.g., Article 3(3) of UN Security Council Resolution
1373, passed on 28 September 2001. Back