Criminal offences and refugee status
July 17, 2009 by Webmaster · Leave a Comment
There have been several important judgments from the Court of Appeal in the last few weeks. I’ve been very busy and having difficulty keeping up. However, I seem to have been struck down by piggy flu and find myself with time at home on my hands. So, expect a series of case law posts over the next few days.
The first case is EN (Serbia) v SSHD [2009] EWCA Civ 630. It concerns section 72 of the Nationality, Immigration and Asylum Act 2002 and the presumption that a person has been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community if one of several conditions apply. If the presumption applies, the person is excluded from refugee status.
One of the conditions is that a person has been convicted of an offence specified by the Secretary of State in regulations. The regulations in question are the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. The Court finds that the regulations are irrational and ultra vires because they include several offences which cannot rationally be described as ‘particularly serious’:
“By way of example only, there are the following: theft, with no qualification as to the nature or value of the item or items stolen (so that theft of a bottle of milk is sufficient); an offence under section 9(1)(a) of the Theft Act 1968 (entering a building as a trespasser, intending to steal, inflict or attempt to inflict grievous bodily harm or rape), which would include someone who enters a building without permission intending to steal a bottle of milk; an offence under section 9(1)(b) of that Act (having entered a building as a trespasser, stealing or attempting to steal or inflicting or attempting to inflict grievous bodily harm), which again would include the offence committed by someone who enters a house without permission and then steals a milk bottle; an offence under section 1(1) of the Criminal Damage Act 1971 (destroying or damaging, without lawful excuse, another’s property intending to destroy or damage it or being reckless as to that), which would include the offence committed by someone who scratched the paintwork of another person’s car. The offence under section 44 of the Magistrates’ Court Act 1980, namely (aiding, abetting, counselling or procuring the commission of a summary offence, provided that the offence in question is described in Schedule 1 or 2 to the Order is specified. It is at best very difficult indeed to see how abetting the commission of a summary offence could be a particularly serious crime.”
The 2004 order is therefore struck down as a whole as the Court cannot edit the order itself. Interestingly, the Court then goes on to make the following comment about whether the Tribunal can or should examine the lawfulness of delegated legislation:
“Where a tribunal considers that there is a real prospect of a statutory instrument being ultra vires or unlawful, it should give serious consideration to adjourning its proceedings in order to give the party challenging its lawfulness an opportunity to issue judicial review proceedings before the Administrative Court, if necessary seeking an expedited hearing. It is far more appropriate that such issues be litigated before and decided by the Courts. However, this is likely to change if and when the AIT becomes part of the new tribunal structure, with an appellate structure and an Upper Tribunal of which the panel may include a High Court judge, with appeals to the Court of Appeal.”
As well as striking down the 2004 Order, the Court also holds that there are two separate presumptions in section 72, both of which are rebuttable. The first is that one has been convicted of a particularly serious crime. The other is that one is a danger to the community. Both questions have to be examined separately. The Secretary of State was contending that there was just one presumption and that conviction of what was deemed to be a particularly serious crime automatically meant that one was presumed to be a danger to the community. Evidence as to risk of reoffending is therefore important in section 72 cases.
The Court’s decision is similar to that of the Tribunal in IH (s.72; ‘Particularly Serious Crime’) Eritrea [2009] UKAIT 00012. However, the Tribunal held that the 2004 order is lawful, so I’ve filed this post under ‘Tribunal overturned again‘.
On a different but important subject, in the course of judgment the Court finds that the Refugee Convention is not in fact incorporated into English law. It is only incorporated for some purposes and does not have the force of statute. I’ve no idea as to the implications of this, but it strikes me as worthy of mention.
Source:Free Movement
Bad guy or fall guy?
June 9, 2009 by Webmaster · Leave a Comment
There has been a rush of cases in recent weeks on the subject of the Refugee Convention exclusion clauses. The exclusion clauses basically exclude some people from refugee status. In reality, human rights law has evolved to prevent removal if there is a well founded fear in such cases, but there are other benefits to refugee status for which make it worth fighting.
Shivani Jegarajah, a fellow tenant at Renaissance Chambers and a brilliant advocate, has been prominent in the Court of Appeal of late, and two of the big decisions on the exclusion clauses are ones in which she acted. By the by, she also has another big Sri Lankan Court of Appeal judgment pending after a successful hearing last week. More to follow once the judgment is available.
The first case is KJ (Sri Lanka) v SSHD [2009] EWCA Civ 292. The Appellant had been a member of and fought for the LTTE but had then fallen foul of the organisation and fled to the UK. He had not been involved with terrorist activities or attacks on civilians. The Asylum and Immigration Tribunal decided that as an active member of an organisation that carried out acts contrary to the purpose and principles of the United Nations, he was excluded from refugee status.
But, of course, one man’s terrorist is another man’s freedom fighter. Lord Justice Stanley Burnton notes that the LTTE is not just a terrorist organisation, although it certainly has carried out terrorist attacks. An active member of an organisation that only carries out terrorist activities will probably be excluded, he finds, but in cases where the organisation engages in a conventional military struggle and other activities, a more careful examination of the personal guilt of that person is required.
The second case is R (on the application of JS (Sri Lanka)) v SSHD [2009] EWCA Civ 364. The claimant had again been an active member and combatant with the LTTE and became second in command of their Intelligence Division’s combat unit. Lord Justice Toulson explores the principles of criminal liability and complicity in international criminal instruments and concludes that the tribunal has been far too readily excluding people from refugee status. He specifically disapproves the earlier ’starred’ decision in Gurung [2002] UKIAT 04870, by Dr Hugo Storey. Specifically, he finds that acquiescence is insufficient and he finds that the continuum approach in Gurung is wrong as it is simplistic and distracts from the critical question of ‘whether the evidence provides serious reasons for considering the applicant to have committed the actus reus of an international crime with the requisite mens rea’.
Both cases, and another recent case on the PKK in Turkey, MH (Syria) v SSHD [2009] EWCA Civ 226, suggest the Home Office and the tribunal have been following too expansive an approach to the exclusion clauses.
