Case Comment: KC (South Africa) (FC) (Appellant) v SSHD (Respondent) – UKSC 2009/0188

The issues for the Supreme Court

In KC (South Africa) (FC) (Appellant) v Secretary of State for the Home Department (Respondent)Case ID UKSC 2009/0188, the following questions arise for the UK Supreme Court (i) whether Article 14 of Council Directive 2004/83/EC is ultra vires Article 78 (ex Article 63 TEC) of the TFEU; (ii) whether the issue should be referred to the Court of Justice pursuant to Article 267 (ex Article 234 TEC) of the TFEU; (iii) whether refugee status may be awarded to those convicted of particularly serious criminal offences; and (iv) what is the correct sufficiency of protection test under Article 3 ECHR.

The Court of Appeal did not grant permission to appeal in this case and in the UKSC, consideration of permission to appeal was adjourned by Lords Philips, Mance and Clarke in the oral hearing which took place on 15 March 2010. KC’s case is on the UKSC’s current cases list and it has a fascinating history. The procedural and legal points in the case, however, are not for the fainthearted.

Case history

KC, a South African national, was a member of Mrs Winnie Mandela’s cabal. During his membership of the “Mandela United Football Club” (MUFC), KC acted on Mrs Mandela’s instructions and committed atrocious acts against perceived opponents and informers. He witnessed alleged police informer Stompie Moeketsi’s murder on 31 December 1988. KC has accused Mrs Mandela of having stabbed the victim twice. In 1989 Mr Richardson was charged with Moeketsi’s murder and KC was charged for kidnapping and assault. By 1990 Mrs Mandela was facing the same charges that KC did. In May 1991 a first instance court convicted Mrs Mandela on both counts (kidnapping and assault) and sentenced her to six years’ imprisonment. However, on appeal Mrs Mandela’s conviction for assault was quashed and her sentence for kidnapping was reduced to a suspended term of 2 years (and a fine).

However, in February 1991 KC was forcibly transported and imprisoned in Zambia. In December 1993 KC was released and moved by the UNCHR (which recognised him as a mandate refugee) to Sierra Leone. Since then KC has given evidence against Mrs Mandela in the UK where he arrived in 1995 on a visitor visa. In 1997 KC returned to South Africa to give evidence to the South African Truth and Reconciliation Commission which found ANC members responsible for his incarceration in Zambia.

KC’s leave to remain has been extended several times. Having made an in time ILR application he was last granted ELR for a year in January 2004. Nevertheless, KC applied for ILR again in December 2003.

In June 2004 KC was convicted for wounding with intent to do grievous bodily harm. (He was sentenced to community punishment and a rehabilitation order for charges brought against him in August 2003.) KC’s subsequent violation of the rehabilitation order resulted (in December 2004) in him being re-sentenced to three years’ imprisonment for wounding plus an additional two months’ imprisonment for possessing a bladed article.

In August 2006 KC applied for asylum. In March 2007 the SSHD refused the application on its merits and also within the meaning of section 72 (“Serious Criminal”) of the Nationality Immigration and Asylum Act 2002 (as amended by the United Kingdom Borders Act 2007). An order for deportation followed in April 2007. KC’s appeal was dismissed by the Tribunal which held that KC had not rebutted the presumption that he posed a danger to the community and therefore he failed to qualify for asylum or humanitarian protection.

Following an order for reconsideration, in the first stage reconsideration the Tribunal found that first Tribunal had materially erred in law. At the second stage reconsideration, KC’s appeal under the Refugee Convention failed in the Tribunal but his appeal under Article 3 of the ECHR succeeded. However, the Tribunal found that KC was not entitled to asylum or humanitarian protection as he, by virtue of his offending, posed a danger to the UK’s community or security.

The SSHD appealed to the Court of Appeal because of the Tribunal’s failure to (i) consider the sufficiency of protection which KC would be afforded in South Africa; and (ii) provide reasons why it came to establish that KC would be at risk. Moreover, KC’s grounds of appeal were that the Tribunal (i) erred in determining his refugee status; (ii) was wrong to make the findings on the basis of section 72 NIAA 2002; and (iii) was also incorrect in its view that KC constituted a danger to UK’s community or security.

The matter in the Court of Appeal

In the Court of Appeal, inter alia, the parties made the following submissions:

I.

For KC it was argued that the Refugee Convention is informally incorporated in English law.

It was argued by the SSHD’s counsel that this was so only to the qualified extent provided for by the Asylum and Immigration Appeals Act 1993.

II.

KC – For refoulement (or deportation), Article 33(2) of the Refugee Convention dually required that a conviction should be for a particularly serious crime and the offender should constitute a danger to the community.

SSHD – Article 33(2) only requires a person to constitute a threat to the community. A danger to the community can be presumed when a person is convicted of a particularly serious crime.

III.

KC – Section 72 NIAA 2002 operated to allow refoulement but did not entitle depravation of refugee status. Where refoulement is not achievable (owing to international or domestic law) refugee status remained unaffected. Hence, the Tribunal should have recognised KC’s refugee status. Council Directive 2004/83/EC is directly enforceable by individuals in English law but Article 14(5) within it is ultra vires because it permits Member States to refuse refugee status to persons convicted of a particularly serious crime whereas Article 33(2) of the Refugee Convention concerns itself exclusively with refoulement. The presumptions in section 72 are incompatible with the Convention and the Directive as they place the burden of proof (which legally rests with the state) on the individual: section 72 should be read down so as to achieve compatibility with the two instruments. The NIAA 2002 (Specification of Particularly Serious Crimes Order) 2004 is ultra vires as it allows crimes to be classified as particularly serious (which is outside the SSHD’s statutory powers): the Order is also incompatible with the Convention and Directive.

SSHD – The section 72 presumptions are compatible with the Refugee Convention and the Council Directive both of which are procedurally silent on the individual requirements of cases. Since the presumptions are rebuttable, the individual’s interest has been safeguarded. The relevant provisions of the Qualification Directive are directly effective. Moreover, section 72 is in conformity with the ECJ’s decided authorities; it is also naturally compatible with the Directive; and it does not limit the Tribunal’s jurisdiction to determine refugee status. The Convention and the Directive do not confer a right of refugee status on a person if the conditions for refoulement have been satisfied under these two instruments.

The Court of Appeal’s conclusions

Although KC had relied upon the on the Bethlehem and Lauterpacht Joint Opinion to the UNHCR (2003) and Professor Hathaway’s (2005) authoritative text The Rights of Refugees under International Law, Lord Justice Stanley Burnton rejected the submission that Article 33(2) required danger to be particularly serious danger because the authorities added “an unjustified gloss to Article 33(2)” – see at [43] and [45]. For Stanley Burnton LJ, only “the plain and clear words … subject to any applicable mandatory statutory provision” mattered (at [51]).

Stanley Burnton LJ rejected that the Refugee Convention had informally been incorporated into domestic law; he also concluded that the Convention “does not have the force of statute under our law” (at [59]). However, the Court accepted that the Convention’s definition of an asylum claim had been incorporated into domestic law. Moreover, the Convention enjoyed “a status superior to the Immigration Rules” (at [58] – Stanley Burnton LJ explained that the rules were “something rather less” than law; this is slightly old fashioned considering what Sedley LJ said in Pankina (at [17]) about recognising that the rules having a status “akin to the law”).

Stanley Burnton LJ answered the question of the Directive’s incompatibility with the Convention (which is in turn adopted by Article 78 (ex Article 63 TEC) of the TFEU) by explaining that the Directive had to be applied irrespective of whether it was ultra vires because no Article 267 (ex Article 234 TEC) application for referral to Luxembourg was sought from him and in any event an appeal of his decision to the Supreme Court was possible (at [65]); the Court also explained its inability to invalidate an act of the Community (at [64]).

In relation to the section 72 NIAA 2002, the Court said that it was for the SSHD to establish that a person had been convicted of a particularly serious crime. Following that the person could then go on to prove that the crime was not particularly dangerous. However, Stanley Burnton LJ (at [68]) clarified that if the irrebuttable presumption arises from facts which do not satisfy Article 33(2) and it induces those deciding that Article 33(2) is engaged (and but for the presumption they would not have found it to be engaged), then such an irrebuttable presumption is incompatible with the Convention and the Directive.

Moreover, in relation to the “true construction” of subsection 72(6) – “A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person” – the Court (at [80]) found the legislation to create rebuttable presumptions in relation to both elements of Article 33(2), i.e. in relation to the seriousness of the crime and in relation to posing a danger to the community.

The NIAA 2002 (Specification of Particularly Serious Crimes Order) 2004 contained several serious and non-serious offences.  The Order was declared ultra vires and unlawful by Stanley Burnton LJ (see at [81] – [83]) because Parliament had not empowered the SSHD to specify any offence she wanted as one giving rise to the statutory presumptions, irrespective of the seriousness of the offence – for example where the crime is one of theft, how much was stolen? The Court (at [81]) felt that the language of the Order was such that a mere “bottle of milk” was sufficient for inclusion by the SSHD (under the Order).

The Court of Appeal (at [109]) took the view that the Tribunal applied the wrong legal test to assess sufficiency of protection, that its determination was insufficiently reasoned and that it did not appropriately address the factual contentions advanced by the SSHD; therefore, the SSHD’s appeal was allowed.

Owing to the fact that the Court (at [112]) allowed the SSHD’s appeal on the Tribunal’s error of law, the Court of Appeal also allowed KC’s cross-appeal and remitted the matter back to a differently constituted Tribunal for reconsideration where KC would be at liberty to dispute the seriousness of his crimes and his dangerousness to the community. (See at paragraph 8 of the Court of Appeal’s Order which is available below.)

Immigration cases in the Supreme Court

Since the UKSC opened its doors for business on 1 October 2009, the Court has heard permissions to appeal in thirty-eight immigration cases. The Court has granted permission to appeal in thirteen of these cases. One case was withdrawn and KC’s case, which is a very interesting one, has been adjourned. A list of permissions to appeal in immigration cases in the Supreme Court is available here – PTA.

KC’s future

KC’s case has not been referred to Luxembourg and the ECJ’s Press and Information Service explained to me that  “it does not appear that the UK Supreme Court has referred any questions to the Court of Justice. There is no record of a reference being lodged for this case.”

In fact, quite curiously, the case has been remitted back to the Court of Appeal to determine the issues which were contained in paragraph 8 of the Order which it made. The UKSC’s registry has confirmed this to me on the telephone. They also confirmed that the matter had not been referred to Luxembourg. The Court of Appeal’s order in KC’s matter is available below. It should be interesting how the Tribunal decides his case.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 3, Asylum, Cases, Court of Appeal, ECHR, Immigration Law, Pankina, Persecution, South Africa, UKSC and tagged , , , , , . Bookmark the permalink.

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