Appendix 2: Letter from the Chair to Des
Browne MP, Minister of State, Home Office
My Committee has agreed a Report on the above Order,
which we expect to publish next week. We carried out an initial
examination of the Order which has caused us to have serious concerns
that as drafted it is incompatible with the UK's obligations under
the Refugee Convention, and is therefore ultra vires the
order-making power, because it includes within its scope a number
of offences which do not amount to "particularly serious
crimes" within the meaning of Article 33(2) of the Convention
properly interpreted.
The question which concerns the Committee is whether
an Order which purports to bring such a wide range of offences
within the scope of "particularly serious offences"
in Article 33(2) of the Refugee Convention is compatible with
the proper interpretation of that Article.
In light of the UNHCR Guidelines on International
Protection: Application of the Exclusion Clauses: Article 1F of
the 1951 Convention relating to the Status of Refugees[48]
and the accompanying Background Note which forms an integral
part of the Guidelines, the exceptions to the principle of non-refoulement
in Article 33(2) of the Refugee Convention should be interpreted
restrictively. Whether a crime is a "serious crime"
for the purposes of the Refugee Convention depends on a number
of factors, including the nature of the act, the actual harm inflicted,
the form of procedure used to prosecute the crime, the nature
of the penalty for the crime, and whether most jurisdictions would
consider the act in question to be a serious crime. The category
of "particularly serious crimes" for the purposes of
Article 33(2) is an even narrower category.
The Committee is concerned that, in light of the
overall humanitarian purpose of the Refugee Convention, and the
UNHCR's Guidance on its interpretation, the Order's specification
of such a wide range of offences, including, for example, theft,
entering a building as a trespasser intending to steal, aggravated
taking of a vehicle, criminal damage, and possession of controlled
drugs, is incompatible with the Refugee Convention properly interpreted,
because it effectively expands the exceptions to the principle
of non-refoulement, and thereby weakens the protection afforded
by the principle itself.
In view of these concerns we would be grateful for
your response to the following questions:
Question 1:
In relation to each of the offences specified in the Order, which
of the factors identified in para. 14 of the UNHCR's Guidelines
and para. 39 of the Background Note are relied on as indicating
that the offence in question amounts to a "serious crime"?
Question 2:
What additional criteria have been relied on by the Government
to determine that the specified offences are not only "serious
crimes" within the meaning of the Refugee Convention, but
particularly serious crimes within the meaning
of Article 33(2)?
Question 3:
Which of the specified offences are triable on indictment only?
Question 4:
Which of the specified offences carry a maximum sentence of life
imprisonment?
Question 5:
How will the particular circumstances of an offence committed
by an individual be taken into account in deciding under the Order
whether a "particularly serious crime" has been committed
for the purposes of deciding whether Article 33(2) applies?
Question 6:
Who will bear the burden of proof on the issue of whether an individual
is a danger to the community?
Question 7:
How will the gravity of the fear or risk of persecution be taken
into account in deciding whether Article 33(2) applies?
Question 8:
In light of the clear distinction between Article 1F(b) of the
Refugee Convention, which deals with serious crimes committed
outside the country of refuge, and Article 33(2) which deals with
particularly serious crimes committed within the country of refuge,
does the Secretary of State intend to exercise his power under
s. 74(2)(b) of the 2002 Act to certify that in his opinion an
offence committed outside the UK is similar to an offence specified
by the Order?
Question 9:
In light of the above, how does the Government consider the Order
to be compatible with the UK's obligations under the Refugee Convention,
interpreted in accordance with its object and purpose, and under
Article 26 of the Vienna Convention on the Law of Treaties, to
perform binding treaty obligations in good faith?
Question 10:
In light of the guidance given in Asylum Policy Unit instruction
5/2004 para. 11, that where s. 72 of the 2002 Act applies an asylum
claim should be refused without any substantive consideration,
how does the Government propose to ensure that the individual
concerned is aware of their right to rely on Article 3 ECHR?
The Committee would be grateful for a reply to these
questions by 10 November. If you are able to get a response to
us sooner than that, if possible before the 8 November debate
on a prayer to annul the Order to be held in the House of Lords,
that would be extremely helpful.
27 October 2004
48 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). Back
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