Case summaries
One cannot demand recognition of refugee status pursuant to Article 1A(2) of the Geneva Convention where protection can be provided pursuant to Article 1D of the Convention. The phrase used in the first sentence of Article 1D of the Convention – “persons who are at present receiving… protection or assistance” – relates to those Palestinians who could avail themselves of protection on the date of the Convention, i.e., on 28 July 1951., and to their direct descendants born after that date, provided they remain under the mandate of UNRWA (United Nations Relief and Works Agency). “Protection or assistance” for Palestinians is provided solely in areas under the UNRWA mandate. Therefore, exclusions from protection under the Geneva Convention relate only to those Palestinians who reside permanently in those areas.
The applicants were unlawfully detained and had no effective remedy to challenge their detention. There was a finding that they had been collectively expelled, given the context of their expulsion along with many others of the same nationality, and as their individual circumstances had not been adequately taken into consideration.
Application to give suspensive effect to a decision by the Minister for Public Order
This case concerned deportation of a recognized refugee (Articles 32 and 33 of the 1951 Convention relating to the Status of Refugees) after a conviction for a criminal offence under common law.
Immediate deportation would expose the applicant to the risk of suffering irreparable harm in the event that his application for annulment is successful. Because of the severity of that harm, moves to deport him must be given suspensive effect until there has been a final decision on his application for annulment, even though the decision to deport him was motivated by the protection of public order.
The case also considered ending the applicant's detention andreturning the refugee residence permit, which had been withdrawn, to the applicant.
The proposed deportation of the applicant to Iran would violate Article 3 ECHR, and as she was prevented from having the merits of her claim examined due to non-compliance with procedural time limits, there was a breach of Article 13 ECHR. This was because she had no chance to challenge the decision on appeal, or access to a remedy with suspensive effect.
The issue of an applicant’s nationality is integral to a claim for refugee status. In the great majority of asylum applications the nationality of the applicant is not in issue, but when it is put in doubt decision-makers must address it. Failure to do so would offend the nationality logic that underlies the refugee definition set out in Art 1A(2). The burden of proof in respect of nationality is on the applicant although the evidential burden may shift.
In assessing whether a state is a safe third country with regard to its interpretation of the 1951 Refugee Convention, it was not sufficient to assess whether the foreign state’s interpretation of the Convention was reasonable. The Secretary of State for the Home Department had to be satisfied that the foreign state applied the one true interpretation of the Convention decided upon by the UK Courts.
The Court of Appeal held that an asylum-seeker unable to return to his country of origin may indeed be entitled to recognition as a refugee provided only that the fear or actuality of past persecution still plays a causative part in his or her presence here. Further, the refusal of the State of nationality to permit return can constitute persecution.