 |
Comments on Clause 52 of the Immigration Asylum and Nationality Bill 2005 - Refugee Convention: Construction
The Office of the United Nations High Commissioner for Refugees (UNHCR) would like to present the following comments on Clause 52 of the Immigration Asylum and Nationality Bill 2005 (IAN 2005), in the hope that our views may inform the debate on the Bill:
-
Alongside these concerns, UNHCR emphasizes the importance of States maintaining their adherence to essential refugee protection principles, with the understanding that a faithful application of the 1951 Convention will not extend protection to those who are undeserving. It should be emphasised that the 1951 Convention provides the appropriate tools to ensure that refuge is not provided to terrorists. Article 1F (c) is the third of three subsections under Article 1F of the 1951 Convention known as the exclusion clauses, which seek to deprive those guilty of heinous acts and serious common crimes of international protection as refugees. States are encouraged to use the clauses rigorously, albeit appropriately, in a manner consistent with international standards. The interrelationship between the clauses means that acts of a “terrorist” nature are likely to fall within one or more of the clauses; the generally worded clause in Article 1F (c) may overlap with the clause in Article 1F (a), while Article 1F (b) may be particularly relevant as acts of a terrorist nature are likely to be disproportionate to any avowed political objective. Furthermore, Article 2 of the 1951 Convention explicitly states that asylum seekers and refugees must conform to the laws and any public order measures of the host country, whilst Article 32 and 33 (2) make specific provisions for expulsion from the country of asylum.
-
While it is accepted that acts of terrorism may fall within the scope of Article 1F (c), provided that certain criteria (elaborated below) are met, UNHCR is concerned that Clause 52 may result in an overly broad application of Article 1F (c) with the result that certain persons, who do not fall within the scope of the exclusion clauses, are denied the benefit of international protection. It has been long-standing practice of many States party to the 1951 Convention to maintain a restrictive interpretation and application of Article 1F (c), especially given its vague nature. It thus remains UNHCR’s position that Article 1F (c) must be read narrowly.
-
We note that the interpretation of international legal obligations by national legislature may, by its nature, lead to a practice which is inconsistent with international law. In light of this, and due to both the complexity inherent in exclusion determinations, and the vagueness of Article 1F (c) in particular, UNHCR is of the view that the interpretation of the 1951 Convention in general, and Article 1F in particular, should preferably remain within the remit of the judiciary.
Material scope
- The question of whether acts of terrorism fall within the application of Article 1F (c) has become of increasing concern to the international community. UNHCR acknowledges that the UN Security Council has determined in resolutions 1373 (2001), 1377 (2001) and 1624 (2005) that acts of international terrorism are “contrary to the purposes and principles of the United Nations”. However, it must be noted that, while all three resolutions contain language to the effect that acts, methods and practices of terrorism as well as knowingly financing, planning and inciting terrorist acts are contrary to the purposes and principles of the United Nations, they do not contain definitions of “terrorism” or “international terrorism”.
Indeed, the assertion in Security Council resolutions that an act is “terrorist” in nature would not by itself suffice to warrant the application of Article 1F (c), especially, as there remains no universally accepted legal definition of terrorism at the international level. As such, the absence of such a definition further justifies the need to adopt a restrained approach in determining the applicability of Article 1F (c).
While a State has the prerogative to define terrorist acts more broadly to encompass acts which may not have an international dimension, not all acts defined as “terrorist” under national law would fall under Article 1F (c).
Personal Scope
-
As regards the personal scope of Article 1F (c), UNHCR maintains that since Articles 1 and 2 of the UN Charter essentially set out the fundamental principles that States must uphold in their mutual relations, in principle, only persons who are in positions of power in their countries or in State-like entities would appear capable of violating these provisions. UNHCR accepts that, in exceptional circumstances, the leaders of organisations carrying out particularly heinous acts of international terrorism which involve serious threats to international peace and security may be considered to fall within the scope of Article 1F (c).
Requirements for the application of Article 1 F (c)
- In order to determine whether acts fall within the scope of this Article, an examination of the circumstances and the impact of the acts in question is required. Specifically, Article 1F (c) envisages acts of such a nature as to impinge on the international plane in terms of their gravity, international impact and implications for international peace and security. It is this rationale that should guide States in designating certain acts as being against the purposes and principles of the United Nations which would, in turn, warrant the application of Article 1F (c).
-
It should further be reiterated that, in making exclusion determinations under Article 1F(c), each case will require individual consideration, taking into account the unique circumstances of the individual, his/her acts, motivation and the risks on return. As with any exception to a human rights guarantee, it is also necessary to examine the gravity of the offence against the possible consequences of exclusion, including the degree of persecution feared. While such a proportionality analysis would normally not be required in the case of acts falling within the scope of Article 1F(c) - the acts covered being so heinous that they are likely to outweigh the persecution feared - UNHCR remains concerned that an automatic and non-restrictive use of Article 1F(c) to all acts designated as “terrorist” may result in a disproportionate application of the exclusion clause, in a manner contrary to the overriding humanitarian object and purpose of the 1951 Convention.
UNHCR, London
December 2005
|
|
