9-I UKBA-SIAC Guidance Note 8 Refugee Law Issues

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    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 aretwo exceptions under the Refugee Convention which generally enable deportation ofpersons 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a refugee to be returned where they pose a danger (refoulement) Article 1F enables refugee status to be refused or withdrawn at which point they can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 seearticle 1 of the United Nations Convention relating to the Status of Refugees 1951) cannotbe returned/refouled to a country where his life or freedom would be threatened for aConvention reason unless (a) there are reasonable grounds for regarding the person tobe a danger to the security of the UK or (b) he has been convicted of a particularly seriouscrime and constitutes a danger to the community of that country (for which see section 72of the Nationality, Immigration and Asylum Act 2002) (article 33(2) of the RefugeeConvention 1951). However, article 33(2) of the Refugee Convention cannot be reliedupon 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 thecircumstances set out in article 1F of that Convention under which the Secretary of Statemust have serious reasons for considering that the person has committed certaincrimes/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 excludedunder article 1F of the Refugee Convention this may impact upon the personsappeal. (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 thatarticle 1F(c) of the Refugee Convention (acts contrary to the purposes andprinciples 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 isexcluded from the protection of the Refugee Convention by virtue of Article1F(c) (acts contrary to the purposes and principles of the UN) the Secretary ofState 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.

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    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 refugeestatus when we rely on article 33(2) to refoule someone.

    g. There is no reason why a person cant be excluded from the UK when they arerefouled, even if they are not excluded from the protection of the RefugeeConvention. However, it should be noted that the exclusion will not preventthe person returning to the UK if he remains in possession of a valid RefugeeConvention travel document. Travel documents need not be issued if thereare compelling reasons of national security or public order not to (article 28(1)Refugee Convention) and we would argue that we can withdraw a traveldocument on such grounds.

    h. Paragraphs 336 to 339BA of the Immigration Rules apply to the refusal andrevocation of asylum.

    i. A person must be given written notice that he is to be deprived of his refugeestatus: Article 38(1) of the Asylum Procedures Directive (Council Directive2005/85/EC); para 339BA of the Immigration Rules. This includes caseswhere refugee status was granted following a deception: article 14(3)(b) of theQualification Directive (2004/83/EC).

    j. Whilst there is no requirement that ILR be cancelled when refugee status isrevoked, UKBA guidance provides that it will be in most cases.

    k. Revocation of refugee status does not itself attract a right of appeal but anaccompanying immigration decision will.

    l. Persons who have refugee status cannot be subject to employment orresidence conditions. However, they can be subject to reporting (as opposedto 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 anda 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 (withHOLAB).

    September 2009