The Supreme Court – Lady Hale and Lords Hope, Brown, Mance, Kerr, Clarke and Dyson – has unanimously dismissed the appeal in this case. Delivering the leading judgment Lord Hope (Deputy President), said at para 49
There are thus no sound grounds for departing from the view that “lawfully” in Article 32(1) [“The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order”] must be taken to refer to what is to be treated as lawful according to the domestic laws of the contracting state. This is what the framers of the Convention intended by the use of this word in this context.
ST, the appellant, was an Eritrean national who, despite her nationality, never lived in Eritrea and arrived in the UK in July 1998 and claimed asylum and humanitarian protection. Prior to this she had lived in Ethiopia. She was subsequently granted temporary admission. In her asylum application ST had expressed a fear of persecution in both Ethiopia and Eritrea. The SSHD refused her application in 2004 and proposed 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. However, on 24 August 2006 the SSHD issued a fresh notice of refusal of leave to enter which proposed to remove ST to Ethiopia.
In order to protect her 2006 recognition as a refugee, ST responded by lodging an appeal against the new decision. She also brought judicial review proceedings against the fresh decision of 24 August 2006. Nichola Davies QC, sitting as Deputy High Court Judge in 2008, quashed the SSHD’s decision.
Court of Appeal
The Court of Appeal 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 (“the Convention”), and the decided authorities, supported the conclusion that ST was not entitled to the protection of Article 32. Moreover, the Court ruled that a refugee’s lawful presence in a state’s territory was determined by that state’s domestic law. An older post about the rationale adopted by the Court of Appeal is available here.
The Court ruled that Article 33 of the Convention prohibits contracting states from expelling or returning refugees to places where their lives or freedoms would be threatened on account the Article 1A(2) reasons – every refugee has the protection of that provision.
The Court explained that the greater protection of Article 32 was restricted to a category of persons who have been admitted as refugees or had their presence legalised. As long they retained refugee status, they could stay indefinitely in the receiving state – forfeiture of this right would only occur by disturbing the public order or posing a risk to national security.
In answering whether Article 32 ought to be widened to include Article 33 of the Convention, the Court found that although some academic support for ST’s argument – that the class of beneficiary referred to in Article 32 should be interpreted broadly – existed, the approach was not one which was universally accepted. Moreover, the fact that judicial authority had not decided that point directly did not bolster ST’s case. The Court was not in doubt that the Convention needed to be interpreted purposively, but its own judicial function was to interpret the agreement which the contracting parties entered into. Therefore, the Court was not authorised to provide a reading of the document which the parties would have agreed in an ideal world.
The Court highlighted that the use of the word “lawfully” (in Article 32) envisaged that the refugee is not only present in the territory of the contracting state, but is there lawfully which implied that the refugee has a genuine right to be there. Moreover, lawful presence could not be given an autonomous meaning because there was no consensus among the commentators on that point. Guidance provided by the drafters of the Convention intended “lawfulness” of the stay to be measurable against national rules and regulations governing it: in ST’s case the domestic law was section 11(1) of the Immigration Act 1971 under which ST was not deemed to have entered the UK – lawfully present – as she was temporarily admitted (while liable to detention under Schedule 2 to the 1971 Act).
The Court explained that “lawfully present” could not be deduced from the fact that there was no imminent risk of removal.
The Court saw it as implausible that the states contracting to the Convention agreed to grant refugees the freedom to choose their place of residence prior to deciding under domestic law whether to admit refugees into the contracting state’s territory in the first place. Therefore, “lawfully” in Article 32(1) must be interpreted to refer to what the domestic laws of the contracting state consider as “lawful” because this approach was also consistent with the principle that sovereign states possessed power to admit and expel foreign nationals.
It was argued on ST’s behalf that since the UK had recognised ST as a refugee, she expected not be removed to a third country that was not able to provide her with the full panoply of rights she would get as a refugee under the Convention.
For the Supreme Court, however, whether refugees benefited from the panoply of Convention rights in a territory to which they were expelled could not impact upon the question whether such refugees are lawfully present in the territory from where they are being expelled.
In the Supreme Court’s view, the problem with the panoply of rights argument – which required that a proposition must be implied into Article 32 because protection against refoulement under Article 33 alone wasn’t enough – was that it inferred a contrary meaning from the words “lawfully in their territory” that the contracting states had not signed up to. Therefore, “lawfully present” was necessarily intended to describe lawful as prescribed by the domestic laws of the contracting state.
Although it was expected that the appeal would be dismissed, it would have been more interesting if at least one dissenting opinion was contained in this judgment but alas it was not meant to be.