UK - Court of Appeal, 26 September 2009, EN (Serbia) v Secretary of State for the Home Department & Anor [2009] EWCA Civ 630
UK - Court of Appeal, 26 September 2009, EN (Serbia) v Secretary of State for the Home Department & Anor [2009] EWCA Civ 630
| Country of Decision: | United Kingdom |
| Country of applicant: | Serbia South Africa , |
| Court name: | Court of Appeal |
| Date of decision: | 26-09-2009 |
| Citation: | [2009] EWCA Civ 630 |
| Additional citation: | [2009] INLR 459, [2010] 1 QB 633, [2009] EWCA Civ 630, [2010] 3 WLR 182, 2 ALR Intl 693 |
Keywords:
| Keywords |
|
Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
Headnote:
Art 14.4 (a) of the Qualification Directive must be interpreted in accordance with Art 33.2 of the Refugee Convention. Thus, for the provisions to be applied, the individual must (1) have been convicted by a final judgment of a particularly serious crime and (2) constitute a danger to the community. It was not compatible with either Art 14.4 (a) of the Qualification Directive or Art 33.2 of the Refugee Convention for domestic legislation to provide that the conviction of certain crimes to create a presumption, that could not be rebutted, that the provisions applied to an individual. Any such presumptions had to be capable of being rebutted by the individual.
Facts:
EN was a Serbian national who was recognised as a refugee and granted Indefinite Leave to Remain in March 2003. He was convicted of three counts of burglary and one count of being in possession of an offensive weapon. The Secretary of State sought to deport him to Serbia, certifying under domestic legislation that Art 33.2 of the Refugee Convention applied to him. EN appealed the decision to deport him.
KC was a South African national who had been recognised as a refugee under UNHCR’s mandate in Sierra Leone. He had been involved in the Mandela United Football Club and had been involved in the infamous kidnap (and subsequent murder) of Stompie Moeketsi in 1988. He had been in the UK since 2002 having periods of exceptional leave to remain. He had been convicted of the offence of wounding with intent to do grievous bodily harm and was, eventually, sentenced to 3 years imprisonment. He then applied for asylum. This was refused and the Secretary of State sought to deport him, certifying under domestic legislation that Art 33.2 of the Refugee Convention applied to him. He appealed to the Tribunal.
Decision & reasoning:
The Court examined a series of issues which arose from an assessment of the correct interpretation of domestic legislation that set out criteria for the application of Art 33.2 of the Refugee Convention and Art 14.4 (a) of the Qualification Directive. This legislation provided that a person should be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom in certain circumstances.
Art 33.2 of the Refugee Convention imposes two requirements for it to be applied: (1) the individual’s conviction by a final judgment of a particularly serious crime and (2) the individual constituting a danger to the community. The danger can arise separately from the conviction, but there will usually be a causal connection between the two.
The danger must be real, but if a person is convicted of a particularly serious crime, and there is a real risk of its repetition, he is likely to constitute a danger to the community.
Although the Refugee Convention has been incorporated into UK law for some purposes, it does not have force of statute under UK law.
The Court of Appeal, as a national court, does not have the jurisdiction to rule on whether Art 14.4 (b) of the Directive is incompatible with the Refugee Convention and, consequently, ultra vires. The Court must therefore apply the Directive, without regard to the contention that it is ultra vires.
It would be inconsistent with Art 33.2 of the Refugee Convention and Art 14.4 (b) of the Qualification Directive if domestic legislation provided that the conviction of a crime which resulted in a sentence of over 2 years created a presumption which could not be rebutted that the individual had been convicted of a serious crime and was a danger to the community. However, domestic legislation that created rebuttable presumptions in these circumstances would not be incompatible with either provision.
The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 was ultra vires and unlawful. This is because it included offences that could not reasonably be considered as so serious as to create a presumption that conviction engaged Art 33.2 of the Refugee Convention. Decisions made on the basis of this order can be appealed to the Tribunal on the basis that they are not in accordance with the law.
Art 33.2 of the Refugee Convention imposes two requirements for it to be applied: (1) the individual’s conviction by a final judgment of a particularly serious crime and (2) the individual constituting a danger to the community. The danger can arise separately from the conviction, but there will usually be a causal connection between the two.
The danger must be real, but if a person is convicted of a particularly serious crime, and there is a real risk of its repetition, he is likely to constitute a danger to the community.
Although the Refugee Convention has been incorporated into UK law for some purposes, it does not have force of statute under UK law.
The Court of Appeal, as a national court, does not have the jurisdiction to rule on whether Art 14.4 (b) of the Directive is incompatible with the Refugee Convention and, consequently, ultra vires. The Court must therefore apply the Directive, without regard to the contention that it is ultra vires.
It would be inconsistent with Art 33.2 of the Refugee Convention and Art 14.4 (b) of the Qualification Directive if domestic legislation provided that the conviction of a crime which resulted in a sentence of over 2 years created a presumption which could not be rebutted that the individual had been convicted of a serious crime and was a danger to the community. However, domestic legislation that created rebuttable presumptions in these circumstances would not be incompatible with either provision.
The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 was ultra vires and unlawful. This is because it included offences that could not reasonably be considered as so serious as to create a presumption that conviction engaged Art 33.2 of the Refugee Convention. Decisions made on the basis of this order can be appealed to the Tribunal on the basis that they are not in accordance with the law.
Outcome:
EN’s appeal was allowed and the matter was remitted to the Tribunal. The Secretary of State should consider whether to cease his refugee status.
KC’s appeal was remitted for reconsideration to the Tribunal on the basis that the reasoning on state protection was inadequate.
KC’s appeal was remitted for reconsideration to the Tribunal on the basis that the reasoning on state protection was inadequate.
Observations/comments:
Lord Justice Stanley Burnton held, obiter and contrary to the applicant’s arguments, that “Art 14.5 of the Qualification Directive expressly authorises member states to refuse refugee status to a person to whom paragraph (4) applies. Doubtless this is because the Member states considered that the application of paragraph (4) is inconsistent with refugee status, a view with which I respectfully agree... the Immigration Rules are consistent with this. It follows that if the Tribunal finds that KC committed a particularly serious crime and that he constitutes a danger to the community, he will not be entitled to refugee status even if his [ECHR] rights preclude his removal”.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| UK - House of Lords, 6 July 2000, Horvath v. Secretary of State for the Home Department [2000] UKHL 37 |
| CJEU - C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA |
| CJEU - C-314/85 Foto-Frost v Hauptzollamt Lubeck-Ost |
| CJEU - C-344/04 The Queen on the application of International Air Transport Association and European Low Fares Airline Association v Department for Transport |
| Canada - Nagalingam v The Minister of Citizenship and Immigration [2008] FCA 153 |
| UK - Boddington v British Transport Police [1999] 2 AC 143 |
| UK - Brown v Stott [2003] 1 AC 681 |
| UK - Foster v Chief Adjudication Officer [1993] AC 794 |
| UK - IH (Eritrea) [2009] UKAIT 00012 |
| UK - Post Office v Estuary Radio [1968] 2 QB 740 |
| UK - R v Asfaw [2008] 1 AC 1061 |
| UK - R v Secretary of State for the Home Department Ex p Sivakumaran (and conjoined appeals) [1988] AC 958 |
| UK - R (Adan and others) v Secretary of State for the Home Department [2001] 2 AC 477 |
| UK - R (European Roma Rights Centre & Ors) v Immigration Officer at Prague Airport & Anor [2005] 2 AC 1 |
| UK - R (Hoxha) v Special Adjudicator [2005] UKHL 19 |
| UK - Salomon v Customs and Excise Commissioners [1967] 2 QB 116 |
| UK - TB (Jamaica) [2008] EWCA Civ 977 |
Follower Cases:
| Follower Cases |
| UK - Court of Appeal, 25 February 2010, MK (Iran), R (on the application of) v Secretary of State for the Home Department [2010] EWCA Civ 115 |
Other sources:
Sir Elihu Lauterpacht QC and Daniel Bethlehem QC state in their Joint Opinion to the UNHCR The Scope and Content of the Principle of Non-Refoulement (2001, revised 2003).
The Rights of Refugees under International Law (2005).