Appendix 1: Memorandum from the
Refugee Legal Centre
INTRODUCTION
1. This paper is produced to draw the Joint Committee's
attention to the Refugee Legal Centre's concerns arising out of
section 72 of the Nationality, Immigration and Asylum Act 2002
("the section") and the Nationality, Immigration and
Asylum Act 2002 (Specification of Particularly Serious Crimes)
Order 2004 SI 191 0/2004 ("the Order").
2. Hereafter the section and Order are collectively
referred to as "the UK legislation".
HOW SECTION
72 OPERATES
3. In brief, the section operates so as to exclude
consideration of a refugee claim. Section 72(2), (3) and (4) establish
circumstances in which a person may be presumed to:
(a) "have been convicted of a particularly
serious crime"; and
(b) "constitute a danger to the community
of the United kingdom."
4. If the Secretary of State issues a certificate,
under section 72(9)(b) that any of section 72(2), (3) or (4) apply,
any appeal before the Immigration Appellate Authority or Special
Immigration Appeals Commission shall exclude consideration of
Refugee Convention grounds of appeal unless either body disagrees
that the presumption applies.
5. The section makes express that its purpose is
for "the construction and application of Article 33.2 of
the Refugee Convention",[34]
by which a refugee may be returned to a country in which he is
at risk of persecution if:
"... there are reasonable grounds for regarding
[him] as a danger to the security of the country in which he is,
or [I having been convicted by a final judgment of a particularly
serious crime, [he] constitutes a danger to the community …
"
THE PURPOSE
OF THE
ORDER
6. The Order now lists several hundred offences,
of which conviction in the UK will engage the presumption in the
section.
WHO IS
NOW CAUGHT
BY THE
SECTION
7. A person may be certified, and presumed to be
precluded from consideration of their claim to be a refugee, if:
(a) convicted of one of the offences listed in the
Order;[35]
(b) convicted of any offence in the UK and sentenced
to at least two years imprisonment;[36]
(c) convicted of any offence outside the UK and sentenced
to at least two years imprisonment if he could have been sentenced
to a period of two years if convicted of a similar offence in
the UK;[37]
or
(d) convicted of an offence outside the UK and the
Secretary of State certifies that the offence is in his opinion
similar to an offence specified by the Order.[38]
THE RELATIONSHIP
BETWEEN THE
UK LEGISLATION AND
THE REFUGEE
CONVENTION
8. On its face the UK legislation is simply an implementation
of one aspect of the Refugee Convention. However, that impression
is simply inaccurate. Consideration of the Convention demonstrates
that far from implementing Article 33.2, the UK legislation goes
far beyond the scope of the Convention and, indeed, appears to
have very little at all to do with the Convention.
9. If implementing Article 33.2, one would expect
that the UK legislation would mirror Article 33.2, which is one
provision among several with a particular purpose which must be
understood by reference to the other Convention provisions.
10. Thus, Article 2 enunciates an obligation upon
refugees to respect the laws of the country in which they find
refuge. This requirement does not need, and no requirement is
stated, that mere failure to abide by such laws will or should
lead to loss of status as opposed to prosecution as any other
offender would expect.
11. Article 9 recognises that there may be a need
for a state to introduce measures in respect of refugees, who
have sought or been provided refuge within its borders, that are
essential to national security. This provision does not envisage
loss or denial of status or refuge.
12. Article 32 sets out a very different regime than
Article 33 for refugees lawfully resident in the state. It may
be arguable that Article 32 would apply to sur place refugees,
which if correct indicates certain persons may be subject to the
UK legislation, who would not be subject to the Convention provision
the legislation purports to implement.
13. The UK legislation, by being so broad, also empowers
the Secretary of State to exclude consideration of a claim to
refugee status on the grounds of an offence, which constitutes
expression of the refugee's political activity at the heart of
his refugee claim (consider paragraphs 7(c) and (d) of these notes).
Thus, the reason the refugee is at risk of persecution may under
the UK legislation provide the reason why he is precluded from
establishing his refugee status.
14. Moreover, Article 33.2 is not an exclusion clause.
Whereas Articles 1D and 1F provide for exclusion from refugee
status, Article 33.2 provides circumstances where the country
of refuge may remove a refugee. Thus the effect of the UK legislation
is outwith the ambit of the Convention since the UK legislation
effectively precludes determination of a refugee's status.[39]
The consequences of this over-reach of the UK legislation are
discussed further below.
15. It should also be recalled that the relevant
appeal right has always been on grounds 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".[40]
Consideration there is to the whole of the Convention. Accordingly,
Article 33.2 was effectively within the scope of the appeals provisions
in any event, so no implementing legislation was required.
16. Further fundamental discrepancies between the
UK legislation and the Convention provisions are addressed in
the following four sections of this paper.
FAILURE TO
HAVE ANY
REGARD TO
PROPORTIONALITY
17. Proportionality is an implicit aspect within
human rights legislation, including the Refugee Convention. Thus
the concepts of what constitutes a particularly serious crime
and when a person constitutes a danger to the community ought
to be interpreted in any particular case in such way as is proportionate
to the risk entailed in removing a refugee.
18. The principle of proportionality within the Convention
was a matter approved by the delegates and appears within the
Travaux Preparatoires. It is also a concept clearly identified
by leading academic writers upon the Convention.[41]
19. That principle finds no expression within the
UK legislation. Moreover, the extent of the offences caught by
the Order is remarkable and, on its face, manifestly disregards
any principle of proportionality.
20. That is further confirmed by considering the
effect of the Order in relation to section 72(4)(b), the provisions
of which are identified at paragraph 7(d) of this paper. The power
of the Secretary of State to apply a certificate to preclude consideration
of a person's refugee claim, where that person has committed an
offence outside the UK which the Secretary of State considers
to be similar to one listed by the Order, is potentially of very
wide application. Again, such breadth of potential application
is wholly outwith any principle of proportionality.
21. The application of proportionality may be further
considered by reference to European Community law[42]
and the European Convention on Human Rights.[43]
FAILURE TO
ENSURE THAT
OFFENCES CAUGHT
CONSTITUTE PARTICULARLY
SERIOUS CRIMES
22. The Refugee Convention itself recognises a difference
between particularly serious crimes and serious crimes. Article
1 F(b) excludes from the Convention persons in respect of whom
there are:
"serious reasons for considering that... he
has committed a serious non-political crime outside the country
of refuge prior to his admission to that country ..."
23. However, the extent of the list introduced by
the Order leaves no realistic room for a distinction between crimes,
serious crimes and particularly serious crimes. On its face, this
observation indicates that the UK legislation is not, as it purports,
simply implementation of Article 33.2.
24. Similarly, the power of the Secretary of State
to certify convictions outside the UK as being in his opinion
similar to those listed reveals a scope far beyond Article 33.2.
FAILURE TO
GIVE EFFECT
TO THE
APPLICATION OF
"DANGER TO
THE COMMUNITY"
25. Similar to concerns indicated in the preceding
two sections, is the observation that the very wide extent of
the Order, and the potential for the Secretary of State to certify
offences outside the UK as similar to an offence listed within
the Order, allows on its face for inclusion of persons who it
is difficult to see could constitute a realistic danger to the
community having regard to the particular offence. For example:
— A graffiti artist may be guilty of criminal
damage, and caught by the Order, but it is difficult to see how
such a person constitutes a danger to the community.
— A person guilty of infanticide (where
the crime is clearly directed at the offender's children) will
have committed a very serious and appalling crime in the eyes
of the community, but having regard to the nature of the crime
it is again difficult to see how he constitutes a danger to
the community.
REVERSAL OF
THE BURDEN
OF PROOF
26. Article 33.2 (see paragraph 5 of these notes)
provides that there must be "reasonable grounds" for
believing that the person has committed a particularly serious
offence and constitutes a danger to the community.
27. However, the operation of presumptions is a blanket
response and fails to respect that need for "reasonable grounds".
Effectively, the Secretary of State has reversed the burden of
proof because he has evaded his responsibility to have reasonable
grounds for believing someone to be a danger, or for believing
their offence to be particularly serious and has introduced
a presumption, which the refugee claimant must rebut on appeal.[44]
HUMAN RIGHTS
CONSEQUENCES OF
THE UK LEGISLATION
28. It is firstly objectionable that the UK legislation,
unlawfully by reference to the terms of the Convention, effectively
excludes a person from establishing their refugee status. However,
it must be recognised that in all, but perhaps the most exceptional
of cases, the individual will retain protection against removal
by virtue of Article 3 of the Human Rights Convention.[45]
29. However, the exclusion of refugee status determination
has further consequences.
30. A refugee caught by the UK legislation will not
be recognised as such. This is of importance because other statuses,
which may provide protection to a person seeking asylum in the
UK, fall outside the Immigration Rules. Thus Humanitarian Protection
and Discretionary Leave are not, despite earlier stated intentions,
recognised by the Immigration Rules.
31. A person is, therefore, precluded from appealing
to an Adjudicator on the grounds that failure to recognise or
grant these statuses is "not in accordance with Immigration
Rules".[46]
Even if a person may be able to prevent removal on Article 3 grounds,
they may be disadvantaged in not being able to secure a particular
status, with the attendant rights and entitlements that go with
this (e.g. to work, to study, to claim benefits, if settled to
seek family reunion etc.).
32. Moreover, even if status is granted, it would
appear from the Asylum Policy Instructions that, once labelled
a danger, such a person would be limited to 6 months Discretionary
Leave, at the expiry of which a further 6 months could be applied
for. No greater degree of settlement could be applied for until
10 years of such 6 months blocks of Discretionary Leave had been
completed.
33. This would effectively preclude family reunion.
34. Moreover, it would create a situation for the
refugee where his position was so unsettled that seeking to establish
or develop an ordinary private life would be very difficult. It
would likely interfere with his ability to form settled relationships,
start a family, obtain work, undertake study or pursue certain
health regimes.
35. These constitute unnecessary and disproportionate
interferences with a person's private and family life (Article
8) rights.
36. Moreover, insofar as the UK legislation is beyond
the scope of the Refugee Convention, it is arguable that these
interferences are unlawful.
NON-REFUGEES
37. It is noted that the UK legislation has consequences
for non-refugees also. In the preceding section the application
of Discretionary Leave for those thought to be undesirable by
reason of their "character, conduct or associations"[47]
is considered. However, if the crimes listed in the Order become
established as sufficient to include refugees within such an 'undesirable'
category, it must be expected that this approach to what is undesirable
will extend to others seeking protection on Human Rights grounds.
INTRODUCTION OF
ARBITRARINESS
38. Having regard to the very wide, and too wide,
extent of the UK legislation, it may be thought unlikely that
the Secretary of State will use his powers in many, perhaps even
the great majority, of cases potentially falling within the UK
legislation's ambit.
39. That, however, is of no comfort. On the contrary,
if correct, it merely speaks of the great potential for arbitrariness
in the use of these powers. At worst, it is feared that press
headlines in particular cases, or arising out of apparently similar
facts to any particular case, would be likely to influence the
application of a certificate in the future.
40. Doubtless these fears would be rejected by the
Secretary of State. However, having regard to how wide is the
extent of the offences listed in the Order and of the UK legislation
generally, it is otherwise difficult to see why the Secretary
of State should be accruing such power to himself.
JUDICIAL PROTECTION/LEGAL
SAFEGUARDS
41. It has previously been noted that the introduction
of a rebuttable presumption reverses the burden of proof and immediately
renders less than adequate ordinary legal safeguards.
42. These concerns are dramatically increased by
reason of recent events. The tribunal system through which decisions
will be reviewed is shortly to be significantly curtailed. The
provision of legal aid, and consequently access to good legal
representation, has recently also been curtailed. The effect is
that very wide, and unnecessary, powers are being accrued to the
Secretary of State to deny a person the opportunity of establishing
their refugee status at the very time that the legal safeguards,
which might militate against such powers, have been greatly reduced.
43. Moreover, it is right to note that the general
tendency in matters of what constitutes "danger to the community'
is that a decision-maker will defer to the Secretary of State.
Such deference is likely to be all the more the case as regards
matters litigated within a tribunal system rather than before
the senior judiciary, and where access to the senior judiciary
(whether in the High Court or Court of Appeal) has become increasingly
restricted.
44. Moreover, given the curtailment of appeal rights,
there must be increased scope for inconsistent decision-making
as to what are the circumstances, in which a person does or does
not constitute a danger to the community.
MINIMUM REQUIREMENTS
TO ADDRESS
THESE CONCERNS
45. Having regard to the concerns outlined previously,
we would consider the following to be minimum requirements:
— Reconsideration of what constitutes a
particularly serious crime, so as to give proper effect to the
terms particularly and indeed serious.
— Clear guidance upon when a person can
be considered to constitute a danger to the community, which should
reflect European standards ensuring that dangers must be genuine,
serious and of proportionate magnitude.
— Preservation of the burden of proof as
resting upon the Secretary of State to establish there to be "reasonable
grounds" for believing an offence to have been committed,
for it to be particularly serious and for the person to constitute
a danger to the community requires revision of the legislation.
7 October 2004
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