Select Committee on Home Affairs First Report



  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.[33] 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 status.[34]


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 to enter).

  47. The Bill preserves the right of appeal on a point of law against a decision of SIAC. We were told by the Minister that:

    "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."[35]

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."[36]

  48. On the other hand, Rick Scannell, Chair of ILPA (who had not at that point seen the text of the Bill) said:

    "...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."[37]

33   Evidence, p.75, para.7. (UNHCR) Back

34   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

35   Q199. Back

36   Q202. Back

37   Q126. Back

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