Refugee Convention and lawful presence?

Update – The UKSC handed down its judgment in this case on 21 March 2012 and the most recent post in relation to this case is available here

R (on the application of ST (Eritrea))(FC) (Appellant) v Secretary of State for the Home Department (Respondent) is scheduled for a hearing in the UK Supreme Court on 13 February 2012. The case raises very important issues in refugee law. The Supreme Court will consider the following questions. Firstly, what is the true meaning of Article 32 of the UN Convention on Refugees? Does the protection of Article 32 (to not expel refugees except on grounds of national security or public order) extend to a person who is not “lawfully” present in the UK? Moreover, does the nature of the UK’s obligations under the Refugee Convention and/or the Qualification Directive preclude the expulsion of a person who has been recognised as a refugee by the Asylum and Immigration Tribunal (as it used to be) but was not granted asylum? In finding in favour of the SSHD did the Court of Appeal err in interpreting as incorrect or inapplicable the House of Lords’ decision in Szoma v Secretary of State for the Department of Work and Pensions [2005] UKHL 64?

The appellant, Saba Tesfamichael (ST), is an Eritrean national. Despite her nationality she has never lived in Eritrea. She came to the UK in July 1998 – claimed asylum and humanitarian protection – prior to which she had lived in Ethiopia. She was subsequently granted temporary admission. In her asylum application, ST had expressed a fear of persecution if returned to either Ethiopia or Eritrea. The SSHD refused her application in 2004 and proposed to give directions for her removal to Eritrea. Upon appeal in 2006 the AIT recognised ST’s refugee status; it also found that her removal would be contrary to her rights protected by Article 3 of the ECHR. Unimpressed, on 24 August 2006 the SSHD issued a fresh notice of refusal of leave to enter which proposed to remove ST to Ethiopia.

ST responded by lodging an appeal against the new decision to protect her recognition as a refugee in 2006. She nevertheless also brought judicial review proceedings against the fresh decision of 24 August 2006 and in 2008 relying on the Szoma case Nichola Davies QC (sitting as Deputy Judge of the High Court) decided that refugee status should be granted to ST. The judge remained unmoved by the submission on the SSHD’s behalf that ST’s judicial review claim was an “abuse of process” and (at paragraph 19) she emphasised that:

It is clear that hearings as part of the AIT process have been adjourned to allow for the judicial review determination. The issue raised in the proceedings is fundamental to the claimant’s position as a refugee … I reject the claim that these proceedings amount to an abuse of process.

The Court of Appeal (Sir Anthony May, Longmore and Stanley Burnton LJJ) unanimously reversed the High Court’s decision. They held that unless she had been granted the right of lawful presence in the UK, the drafting of the Refugee Convention, and the decided authorities, supported the conclusion that ST was not entitled to the protection of Article 32 (expulsion) – the text of Article 32(1) is: “The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.” Moreover, the court explained that the question of a refugee’s lawful presence in the territory of a state was determined by that state’s domestic law.

The distinction was made, however, that any refugee was entitled to the protection of Article 33 (prohibition of expulsion or return – “refoulement”)  despite the legal status of their presence under UK law. To interpret Article 32 by applying it to any person who was recognised as a refugee was wrong because this interpretation entailed giving a different interpretation to the term “refugee” in adjacent provisions of the Refugee Convention and resulted in the words “lawfully in their territory” in Article 32 having no meaning or effect. Hence, interpreting Article 32 as limited to refugees who had been granted a right of residence but simultaneously construing Article 33 as applicable to all refugees was sensible and the AIT’s recognition of ST’s refugee status had no impact on the application of Article 32.

The Court of Appeal also explained that it was bound by the authority of JA (Ivory Coast) v SSHD [2009] EWCA Civ 1353, to hold that the ratio of Szoma – where a Polish national of Roma origin claimed asylum on arriving in the UK – was confined to social security benefits and thereby Article 32 only applied to a refugee who had been granted leave to enter and stay in the UK.

The court took the view that temporary admission or leave to enter aimed at the determination of a pending asylum claim did not make ST’s stay in the UK lawful for the purposes of Article 32. It, therefore, followed that the SSHD could remove ST to Ethiopia without breaching the Refugee Convention because she could live there without fear of persecution.

By the same token the court held that recognition as a refugee did not of its own accord confer any right on ST to remain in the UK. Hence, it followed that the grant of asylum was a decision over and above the recognition that ST was a refugee.

According to the Court of Appeal the immigration rules required that paragraph 334(v) needed to be satisfied where a person recognised as a refugee was entitled to asylum and that in ST’s case that paragraph was not considered by the AIT because the issue of return to Ethiopia was known to be outstanding and it made no finding on it (at paragraph 53). The AIT’s determination did not produce the effect of the SSHD being directed to grant asylum: Saad & Ors v SSHD [2001] EWCA Civ 2008 distinguished (at paragraph 58).

Stanley Burnton LJ crucially observed that although the AIT did not specify which provision of the Refugee Convention was engaged, in his Lordship’s view it had to be Article 33 and not Article 32 because the tribunal’s determination did not make a direction under section 87 of the Nationality Immigration and Asylum Act 2002 for the SSHD to grant ST asylum, nor did it preclude ST’s removal to Ethiopia (at paragraph 56).

Finally, it was also explained by the court (at paragraph 58) that ST’s appeal as determined by the AIT was not a status appeal under section 83 of the NIAA 2002. Rather it was an appeal against an immigration decision under section 82 of that Act which could not produce the unintended effect of a direction to the SSHD to grant asylum. Therefore, logically ST’s appeal against removal directions under section 82 ought to be determined by the tribunal.

Apart from Refugee Convention issues this appeal raises other issues connected to Articles 2 and 3 of the ECHR because ST was found to be a refugee by the AIT and that despite that finding, the SSHD wants to remove her to Ethiopia rather than Eritrea.

In the Court of Appeal, along with the French text of Article 32(1) of the Refugee Convention – “régulièrement sur la territoire”, Stanley Burnton LJ relied equally upon Professor Hathaway’s seminal work The Rights of Refugees under International Law (and other similar authoritative works by others) in allowing the SSHD’s appeal.

Stanley Burnton LJ explained that in Hoxha v Special Adjudicator [2005] UKHL 19, (at paragraph 59) Lord Brown endorsed paragraph 28 of the 1979 UNHCR Handbook (“he does not become a refugee because of recognition, but is recognized because he is a refugee”).

Moreover, in Szoma Lord Brown ruled on the meaning of “lawfully present” in the UK for the purposes of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 and not the Refugee Convention which meant that the phrase “lawfully upon their territory” in Article 32 is not a “surplusage” because it was clear from Lord Brown’s opinion that he was not deciding any question of irremovability under the Immigration Act 1971.

Lady Hale and Lords Hope, Brown, Mance, Kerr, Clarke and Dyson will hear the case for two days starting 13 February 2012 and it will be really great to watch it live on Supreme Court TV now that the Revolution is routinely being televised.

Case details on the Supreme Court’s website are available here.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Asylum, ECHR, Eritrea, Ethiopia, Human Rights, Persecution, Refugee Convention and tagged , , , , . Bookmark the permalink.

13 Responses to Refugee Convention and lawful presence?

  1. mkp says:

    Does lawfully present mean that same thing as being lawfully within a state’s territory?

    Defect in Court of Appeal: no distinction between lawful presence and lawful stay

  2. mkp says:

    The distinction may be fine but it is real, says R Drabble QC

  3. mkp says:

    Art 32 should be read in a way which is compatible with the RC

  4. mkp says:

    Tail wagging the dog says UKSC

  5. mkp says:

    More certainty in argument is required says the court ….

  6. mkp says:

    What if she was a Canadian? Substitute Canada for Ethiopia? Drabble QC says same result

  7. mkp says:

    Lady Hale wants the Scheme of The Submissions … Now

  8. mkp says:

    No copy of 2004 Act! Lady Hale wants more precision in the submissions !

  9. mkp says:

    Lisa Giovannetti QC citing authority very precisely (of course)

  10. mkp says:

    The SSHD’s day?

  11. mkp says:

    If i’m not mistaken Stanley Burnton LJ in the Court of Appeal said that Lord Brown had got this one wrong !

  12. mkp says:

    Aha, Richard Drabble QC eyes Lisa Giovannetti QC’s submission with suspicion

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