The proper interpretation of Refugee
Convention Article 33(2)
16. The Order purports to be an implementation of
Article 33(2) of the Refugee Convention. That provision allows
for an exception to the principle of non-refoulement contained
in Article 33(1). The principle of non-refoulement set out in
Article 33(1) is the very foundation of the international system
for the protection of refugees. It expresses a principle which
is now widely regarded as a principle of customary international
law. No reservations to the principle are allowed.[21]
17. The only exceptions to the principle are those
set out in Article 33(2). The exceptions are twofold: a refugee
may be returned to persecution
(1) if there are reasonable grounds for regarding
him as a danger to the security of the country in which he is,
or
(2) if, having been convicted of a particularly serious
crime, he constitutes a danger to the community of that country.
18. The Order therefore raises the question of the
proper interpretation of the second exception to the principle
of non-refoulement. The effect of the Order is to deem any person
who has been convicted of any of the offences it contains to have
been convicted of a "particularly serious crime" and
to be a danger to the community for the purposes of Article 33(2),
subject to their proving that they do not constitute a danger
to the community.
19. The phrase "particularly serious crimes"
in Article 33(2) must be interpreted in the context of the Refugee
Convention as a whole. In particular, it must be interpreted in
the light of Article 1 of the Convention which contains provisions
whereby persons who otherwise have the characteristics of refugees
are excluded from refugee status. Article 1F of the Convention
sets out the categories of people who are not considered to be
deserving of international protection. It provides—
1F. 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.
20. The most significant exclusion clause for present
purposes is that contained in Article 1F(b), which provides for
the exclusion from refugee status of persons who have committed
a "serious non-political crime" outside the country
of refuge. The way in which "serious crime" is interpreted
in this context is obviously significant for the proper interpretation
of the phrase "particularly serious crimes" in Article
33(2).
21. Guidance on the proper interpretation of both
Article 1F(b) and Article 33(2) is available from the UNHCR. The
UNHCR is responsible for supervising the application of the provisions
of the Refugee Convention, and by Article 35 of the Convention
Contracting States have undertaken to co-operate with the Office
of the UNHCR in the exercise of its functions. States are therefore
expected to pay due regard to the UNHCR's interpretation of the
relevant refugee instruments.
22. The most up to date guidance from the UNHCR in
relation to Articles 1F and 33(2) is to be found in its Guidelines
on International Protection: Application of the Exclusion Clauses:
Article 1F of the 1951 Convention relating to the Status of Refugees[22]
and the accompanying Background Note which forms an integral
part of the Guidelines.
23. The UNHCR Guidelines and Background Note on the
application of the exclusion clauses explain that the rationale
for the exclusion clauses in Article 1F is that certain acts are
so grave as to render their perpetrators undeserving of international
protection as refugees.[23]
Their purpose is to deprive those guilty of heinous acts, and
serious common crimes, of international refugee protection and
to ensure that such persons do not abuse the institution of asylum
in order to avoid being held legally accountable for serious criminal
acts. At the same time, while these underlying purposes must be
borne in mind when interpreting the exclusion clauses, they must
be viewed in the context of the overriding humanitarian objective
of the Refugee Convention. Given the possible serious consequences
of exclusion from refugee status, the exclusion clauses should
always be interpreted restrictively and used with great caution,
and only after a full assessment of the individual circumstances
of the case.
24. The Guidelines and the Background Note go on
to give some guidance on the meaning of "serious crime"
in Article 1F(b).[24]
The most comprehensive guidance is contained in the Background
Note.
38. The term 'serious crime' obviously has different
connotations in different legal systems. It is evident that the
drafters of the 1951 Convention did not intend to exclude individuals
in need of international protection simply for committing minor
crimes. Moreover the gravity of the crime should be judged against
international standards, not simply by its characterisation in
the host State or country of origin. …
39. In determining the seriousness of the crime the
following factors are relevant
—the nature of the act;
—the actual harm inflicted;
—the form of procedure used to prosecute the
crime;
—the nature of the penalty for such a crime;
—whether most jurisdictions would consider
the act in question as a serious crime.
40. The guidance in the Handbook that a 'serious'
crime refers to a 'capital crime or a very grave punishable act'
should be read in the light of the factors listed above. Examples
of 'serious' crimes include murder, rape, arson and armed robbery.
Certain other offences could also be deemed serious if they are
accompanied by the use of deadly weapons, involve serious injury
to persons, or there is evidence of serious habitual criminal
conduct and other similar factors. On the other hand, crimes such
as petty theft or the possession for personal use of illicit narcotic
substances would not meet the seriousness threshold of Article
1F(b).
25. The Guidelines and Background Note also provide
some guidance on the relationship between Articles 1F(b) and 33(2)
of the Refugee Convention—
10. Article 1F should not be confused with Article
33(2) … Unlike Article 1F which is concerned with persons
who are not eligible for refugee status, Article 33(2) is directed
to those who have already been determined to be refugees. Articles
1F and 33(2) are thus distinct legal provisions serving very different
purposes. Article 33(2) applies to refugees who become an extremely
serious threat to the country of asylum due to the severity of
crimes perpetrated by them. It aims to protect the safety of the
country of refuge and hinges on the assessment that the refugee
in question poses a major actual or future threat. For this reason,
Article 33(2) has always been considered as a measure of last
resort, taking precedence over and above criminal law sanctions
and justified by the exceptional threat posed by the individual—a
threat such that it can only be countered by removing the person
from the country of asylum.[25]
…
44. Article 1F(b) also requires the crime to have
been committed 'outside the country of refuge prior to [the individual's]
admission to that country as a refugee'. … Individuals who
commit 'serious non-political crimes' within the country of refuge
are subject to that country's criminal law process, and in the
case of particularly grave crimes to Articles 32 and 33(2) of
the 1951 Convention; they do not fall within the scope of the
exclusion clause under Article 1F(b). The logic of the Convention
is thus that the type of crimes covered by Article 1F(b) committed
after admission would be handled through rigorous domestic criminal
law enforcement and/or the application of Article 32 and Article
33(2) where necessary.
26. The UNHCR guidance confirms what to us appears
from the wording of Article 33(2) compared to Article 1F(b): that
the phrase "particularly serious crimes" in Article
33(2) of the Refugee Convention has a narrower meaning than the
phrase "serious crimes", which can lead to the exclusion
from refugee status under Article 1F(b). Where a refugee who has
already been recognised as such commits a serious non-political
crime in the country of refuge, this should be dealt with through
the ordinary criminal law process of that country; it is only
in the case of "particularly grave crimes" that Article
33(2) applies.
Assessment of compatibility
27. We therefore have grave concerns about the compatibility
of the Order with the Refugee Convention, properly interpreted.
In our view, the crimes included in the Order go far beyond what
can be regarded as "particularly serious crimes" for
the purposes of Article 33(2). The list of crimes which are specified
for the purposes of s. 72(4)(a) of the 2002 Act includes a number
of crimes which cannot on any view be regarded as "particularly
serious crimes" as that phrase is to be interpreted in the
context of the Refugee Convention. It includes, for example, theft,
entering a building as a trespasser intending to steal, aggravated
taking of a vehicle, criminal damage, and possession of controlled
drugs. We doubt whether these offences, per se, would amount to
"serious crimes" for the purposes of Article 1F(b),
and are even more doubtful that they are capable of amounting
to "particularly serious crimes" for the purpose of
Article 33(2).
28. By specifying such offences, the Order is
in effect expanding the exceptions to the important principle
of non-refoulement, and thereby weakening the strength of that
principle. In our view this is incompatible with the Refugee Convention
properly interpreted. In view of the humanitarian purpose of that
Convention, the exceptions to the principle of non-refoulement
in Article 33(2) should be given a restrictive interpretation,
not an interpretation which expands their scope and correspondingly
weakens the principle itself. We draw this matter to the attention
of each House.
The relationship with Article
3 ECHR
29. We have considered whether, even assuming that
the Order would in principle permit refoulement in circumstances
which would be in breach of Article 33 of the Refugee Convention,
such refoulement would in practice be prevented by the operation
of Article 3 ECHR which therefore saves the Order from incompatibility
with the Refugee Convention.
30. In our view, although there is as yet no definitive
answer to the question whether the scope of protection of Article
3 ECHR is as wide as that of the principle of non-refoulement,
it seems most unlikely in practice that the Order will lead to
the return of refugees to persecution, because they will continue
to be able to rely on human rights grounds even in cases where
the machinery of s. 72 of the 2002 Act and the Order operate to
preclude consideration of their claim to protection under the
Refugee Convention.[26]
Article 3 ECHR is wider than Article 33 of the Refugee Convention
in that it requires states not to deport individuals to jurisdictions
where they will be exposed to the risk of treatment contrary to
Article 3, even if that individual poses a risk to the national
security of the state concerned: Chahal v UK. We think
it is likely that an individual who is treated as being within
the scope of Article 33(2) by operation of the Order and the statutory
presumption, would nevertheless still be protected against return
by the operation of Article 3 ECHR, provided they are aware of
their right to rely on it.. We would like to know how the Government
proposes to ensure that individuals whose asylum claims are rejected
on s. 72 grounds are aware of their right to rely on the ECHR.
31. Even assuming that such individuals will be informed
of this right, this does not mean to say that the Order is compatible
with the Refugee Convention merely because it is unlikely to lead
to refoulement given the operation of Article 3 ECHR. As explained
above, the effect of the provisions of s. 72 of the 2002 Act is
to preclude consideration of a claim to refugee status where the
statutory presumption applies, as it would in the case of an individual
who has committed any of the crimes specified in the Order. It
follows that, even if the effect of the Order is not refoulement,
it is the deprivation of an opportunity to establish refugee status,
and the various concomitant advantages which come with such status.
In short, it operates like an exclusion clause, preventing a person
who would otherwise qualify for refugee status from being recognised
as such because of their having committed certain specified offences.
The scope of the Order is such as to go beyond the category of
"serious crimes" identified in Article 1F(b). As presently
drafted, the Order will therefore exclude persons from the protection
of the Convention in more cases than envisaged by Article 1F,
and to the extent that it does so it is incompatible with the
UK's obligations under the Convention.
19 The Refugee Convention has been given legislative
effect in the UK in various ways. Section 2 of the Immigration
and Asylum Appeals Act 1993, for example, provides that "Nothing
in the Immigration Rules shall lay down any practice which would
be contrary to the Geneva Convention. "Section 84(1)(g) of
the Nationality, Immigration and Asylum Act 2002 provides that
it is a ground of appeal against an immigration decision "that
removal of the appellant from the United Kingdom in consequence
of the immigration decision would breach the United Kingdom's
obligations under the Refugee Convention." Back
20
See for example Salomon v Commissioners of Customs and Excise
[1967] 2 QB 116. The House of Lords has since gone further and
held that not only implementing legislation but executive action
which is expressly taken on the basis of an international obligation
must be based on a correct interpretation of that obligation,
and will be unlawful to the extent that it is based on a wrong
interpretation of that obligation, even where that obligation
is not incorporated as such into domestic law: see R v Secretary
of State for the Home Department, ex p. Launder [1997] 1 WLR
839 at 867 (Lord Hope). Back
21
Article 42 of the Refugee Convention Back
22
HCR/GIP/03/05, 4 September 2003. The Guidelines complement the
UNHCR Handbook on Procedures and Criteria for Determining Refugee
Status under the 1951 Convention and the 1967 Protocol Relating
to the Status of Refugees HCR/IP/4/Eng/REV.1 (re-edited, Geneva,
January 1992). This Report refers to the more up to date Guidelines
and the Background Note rather than the Handbook. Back
23
Guidelines, para. 2; Background Note, paras. 3-4 Back
24
Guidelines, para. 14; Background Note, paras. 38-40 Back
25
Guidelines, para. 4; Background Note, para. 10 Back
26
Section 72(10) only operates to preclude consideration of a Refugee
Convention ground of appeal, not a ground based on the Human Rights
Act 1998. Back
