Upper Tribunal (Immigration and asylum chamber), 2022-03-09, PA/08641/2016
| Jurisdiction | UK Non-devolved |
| Date | 09 March 2022 |
| Published date | 29 March 2022 |
| Hearing Date | 21 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/08641/2016 |
Appeal Number: PA/08641/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08641/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reason Promulgated |
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On 20 - 21 July 2021 |
On 09 Mach 2022 |
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Before
UPPER TRIBUNAL JUDGE CANAVAN
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
K M
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Anonymity
Pursuant to rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and any member of his family are granted anonymity because the case involves protection issues. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant or his family members, without that individual’s express consent. Failure to comply with this order could amount to a contempt of court.
Representation:
For the appellant: Mr R. Khubber, instructed by J D Spicer Zeb Solicitors
For the respondent: Ms J. Anderson & Mr S.C. Milnes, instructed by GLD
DECISION AND REASONS
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This decision considers whether the appellant should be excluded from the protection of the 1951 Convention Relating to the Status of Refugees (‘the Convention’) because there are serious reasons for considering that he committed crimes against humanity (Article 1F(a)) or in the alternative a serious non-political crime (Article 1F(b)) during his service in the Police d’Intervention Rapide (PIR) in the Democratic Republic of Congo (DRC).
LEGAL FRAMEWORK
The Refugee Convention
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The Convention rose from the ashes of a world war in which widespread and systematic atrocities were committed, including war crimes, deliberate policies of extermination, and targeting of civilian populations.
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The Convention was designed with the highest humanitarian principles in mind. As such, ‘a large and liberal spirit’ is called for when a court is asked to interpret its provisions. The Convention is a treaty between states which must be interpreted in good faith according to the ordinary meaning of the terms read in their proper context, and in the light of the object and purpose of the treaty: see Hoxha & Anor v SSHD [2005] UKHL 19; [2005] 1WLR 1063.
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At the heart of the Convention is the principle of non-discrimination. The House of Lords in SSHD v K [2006] UKHL 46; [2007] AC 412 emphasised this basic principle as follows [10]:
‘It is well-established that the Convention must be interpreted in accordance with its broad humanitarian objective and having regard to the principles, expressed in the preamble, that human beings should enjoy fundamental rights and freedoms without discrimination and that refugees should enjoy the widest possible exercise of these rights and freedoms.’
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The purpose of the Convention and subsequent Protocol is to provide an international legal framework whereby signatory states agree to provide surrogate protection to those who are outside their country of nationality due to a well-founded fear of persecution for one of the five reasons identified, and are unable, or owing to such fear, are unwilling to avail themselves of the protection of their country of nationality or former habitual residence. A grant of status under the Convention is a declaratory act. A person is a refugee if they meet the relevant criteria contained in Article 1A(2). When a signatory state such as the United Kingdom grants leave to remain as a refugee it recognises an existing status under international law and undertakes to respect the rights and benefits associated with that status.
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The Qualification Directive (2004/83/EC) reaffirmed the Convention and Protocol as the cornerstone of the international legal regime for the protection of refugees. The recitals went on to confirm that the Directive sought to ensure full respect for human dignity and the right to asylum for applicants and their accompanying family members. Core elements of the Directive were transposed into domestic law by The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (‘the Qualification Regulations 2006’). By operation of section 2(1) of the European Union Withdrawal Act 2018, ‘EU-derived domestic legislation’, which had effect in domestic law immediately before the Implementation Period (IP) Completion Day (31 December 2020), continues to have effect after IP Completion Day. The Qualification Regulations 2006 are saved ‘EU-derived domestic legislation’ which, at the date of this decision, and until such time as they are revoked, continue to have effect in domestic law.
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If a person has not been recognised as a refugee by a signatory state, their status comes to an end as soon as they no longer meet the criteria of Article 1A(2). If a person has been formally recognised as a refugee, the Convention ceases to apply in one of the specified circumstances set out in Article 1C of the Convention (‘the Cessation Clauses’): see Hoxha.
The distinction between exclusion and expulsion
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The treaty also makes provision for certain categories of people to be excluded from the protection of the Convention (‘the Exclusion Clauses’). In the case of Article 1D this is because the person had the surrogate protection of UNHCR1 or in the case of Article 1E is not considered to need surrogate protection because the person is recognised by the host country as having the equivalent rights and obligations which are attached to the possession of the nationality of that country.
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Article 1F is the only provision which considers certain categories of people undeserving of the protection of the Convention. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (February 2019) states that the pre-war international instruments that defined various categories of refugees contained no provisions for the exclusion of criminals. It was only after the Second World War, when the memory of the trials of major war criminals was still alive, that provisions were drawn up to exclude certain people who were deemed unworthy of international protection. In The Law of Refugee Status (Cambridge University Press, 2014, 2nd ed.) Hathaway and Foster cite concerns among the drafters that serious criminals should not be able to avoid prosecution by claiming asylum. They say that the drafters were persuaded that if state parties were expected to admit serious criminals as refugees that they would not be willing to be bound by the Convention.
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In this way the humanitarian objectives of the Convention are balanced by the exclusion of those whose actions may have been the underlying cause of others having to seek international protection. In most cases the assessment under Article 1F will consider whether the past actions of a person outside the country of refuge justify exclusion from the protection of the Convention, and the rights and freedoms associated with refugee status because they pose a risk to the integrity of the system of international protection.
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Article 33(1) sets out the fundamental principle of non-refoulement. No contracting state shall expel or return a refugee (whether recognised or not) in any manner to the frontiers of territories where their life or freedom would be threatened for any of the five Convention reasons. There is general acceptance that the principle applies to applications made at the frontier of the receiving state or from within it: see R (European Roma Rights Centre & Ors) v Immigration Officer at Prague Airport & Anor [2004] UKHL 55; [2005] 2 AC 1.
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Article 33(2) provides an exception to this fundamental principle in cases where there are reasonable grounds for regarding the person as a danger to the security of the host country, or who, having been convicted of a particularly serious crime, constitutes a danger to the community of the host country. Article 33(2) is not an exclusion clause within the meaning of the Convention. Article 33(2) is more accurately described as an exception to the principle of non-refoulement. Because of the serious consequences of expelling a person who has a well-founded fear of persecution, the Convention only permits refoulement if the refugee poses a sufficiently serious danger to the community of the host country.
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Section 72(1) of the Nationality, Immigration and Asylum Act 2002 describes Article 33(2) as ‘exclusion from protection’. Article 14(4) of the Qualification Directive provides a procedural mechanism for ‘revocation’ of refugee status granted under the Directive in the same circumstances as those outlined in Article 33(2) of the Convention. In M & Others (revocation of refugee status) (C-391/16) [2019] 3 CMLR 30 the Court of Justice of the European...
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