Joint Committee On Human Rights Twenty-Second Report

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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