9-I_SIAC Guidance Note 8: Refugee Law issues

1. As a general rule a refugee will not be deported or excluded from the UK. But there are two exceptions under the Refugee Convention which generally enable deportation of persons who are suspected of being a national security risk, even if they are refugees:   Article 33(2) permits a refugee to be returned where they pose a danger (refoulement) Article 1F enables refugee status to be refused or withdrawn at which point they can be deported.

In either case, once outside the UK, the individual can be excluded from the UK. Non-refoulement 2. A person who benefits from the protection of the Refugee Convention (for which see article 1 of the United Nations Convention relating to the Status of Refugees 1951) cannot be returned/refouled to a country where his life or freedom would be threatened for a “Convention reason” unless (a) there are reasonable grounds for regarding the person to be a danger to the security of the UK or (b) he has been convicted of a particularly serious crime and constitutes a danger to the community of that country (for which see section 72 of the Nationality, Immigration and Asylum Act 2002) (article 33(2) of the Refugee Convention 1951). However, article 33(2) of the Refugee Convention cannot be relied upon to justify deportation where the deportation would be contrary to article 3 ECHR (see SIAC Guidance Note 6: Safety on Return in Deportation Cases). Exclusion from the Refugee Convention 3. A person can be excluded from the protection of the Refugee Convention in the circumstances set out in article 1F of that Convention under which the Secretary of State must have „serious reasons for considering‟ that the person has committed certain crimes/acts. 4. Points to note: a. People who are excluded from the protection of the Refugee Convention are not necessarily also excluded from the UK (often they are not). b. Where the Secretary of State issues a certificate that the person is excluded under article 1F of the Refugee Convention this may impact upon the person‟s appeal. (For more information on appeal rights see “SIAC Guidance Note 3: Who Has an Immigration Appeal and How is it Brought before SIAC?”.) c. Section 54 of the Immigration, Asylum and Nationality Act 2006 provides that article 1F(c) of the Refugee Convention (acts contrary to the purposes and principles of the UN) shall be taken as including acts relating to terrorism. d. The House of Lords has accepted that when determining whether a person is excluded from the protection of the Refugee Convention by virtue of Article 1F(c) (acts contrary to the purposes and principles of the UN) the Secretary of State can take into account actions of that individual committed after his arrival in the UK: RB (Algeria) and another and OO (Jordan) v SSHD [2008]UKHL 10 paras 128-129.

e. Article 33(2) Refugee Convention cannot be relied upon to permit deportation where the deportation would be contrary to article 3 ECHR. f. The test in article 33(2) is different to that in article 1F of the Refugee Convention. This means that it may not always be possible to remove refugee status when we rely on article 33(2) to refoule someone. g. There is no reason why a person can‟t be excluded from the UK when they are refouled, even if they are not excluded from the protection of the Refugee Convention. However, it should be noted that the exclusion will not prevent the person returning to the UK if he remains in possession of a valid Refugee Convention travel document. Travel documents need not be issued if there are compelling reasons of national security or public order not to (article 28(1) Refugee Convention) and we would argue that we can withdraw a travel document on such grounds. h. Paragraphs 336 to 339BA of the Immigration Rules apply to the refusal and revocation of asylum. i. A person must be given written notice that he is to be deprived of his refugee status: Article 38(1) of the Asylum Procedures Directive (Council Directive 2005/85/EC); para 339BA of the Immigration Rules. This includes cases where refugee status was granted following a deception: article 14(3)(b) of the Qualification Directive (2004/83/EC). j. Whilst there is no requirement that ILR be cancelled when refugee status is revoked, UKBA guidance provides that it will be in most cases. k. Revocation of refugee status does not itself attract a right of appeal but an accompanying immigration decision will. l. Persons who have refugee status cannot be subject to employment or residence conditions. However, they can be subject to reporting (as opposed to police registration) requirements (although this has not been done to date). 5. The fact that an individual has claimed asylum is subject to a duty of confidentiality and a very high level of protection is afforded by the law of confidentiality in this context. Nonetheless, that duty is subject to an overriding public interest requiring disclosure. For discussion see advice of Robin Tam April 2008 and note of con of 1 July 2008 (with HOLAB).

September 2009