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UNHCR Comments on the The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004
Introduction
The Nationality, Immigration and Asylum Act 2002 (‘NIAA’) (Specification of Particularly Serious Crimes) Order 2004 (‘the Order’) was laid before Parliament on 22 July and came into force on 12 August 2004. The compatibility of this Order with the UK’s international human rights obligations has been scrutinised by the House of Lords and House of Commons Joint Committee on Human Rights in a report published on 27 October 2004 (1). This issue is now to be debated in the House of Lords and House of Commons to determine whether the Order should be annuled.
In line with the supervisory role of the Office of the United Nations High Commissioner for Refugees (‘UNHCR’) under Article 35 of the 1951 Convention relating to the Status of Refugees (‘the 1951 Convention’) and UNHCR’s Statute, the Office presents here its considerations regarding the compatibility of the Order with the 1951 Convention and concerns that arise in relation to the impact the Order may have on the protection of refugees. Given that the purpose and application of the Order are set out in Section 72 NIAA and the administrative guidelines APU Notice 6/2004, these are also considered in our comments more generally, although the Office understands that Section 72 is not subject to amendment at this time.
GENERAL COMMENTS
Balancing security concerns and obligations under the 1951 Convention
Security concerns have gained particular urgency, particularly in the environment of post 11 September 2001. UNHCR fully shares the security concerns of governments. It believes that these can be addressed adequately within the existing international refugee law framework. The 1951 Convention contemplated major and very serious security concerns when it was conceived in the wake of the Second World War as the Cold War set in. The Convention therefore offers a system with checks and balances that takes full account of the important security interests of States and host communities while protecting the rights of persons who unlike other foreigners no longer enjoy the protection of their country of origin. Asylum-seekers and refugees must conform to the laws and regulations of the host country, as well as to measures taken for the maintenance of public order. This is explicitly stated in Article 2 of the Convention.
Where an asylum-seeker has been involved in serious criminal activities prior to arrival, Article 1F(a), (b) and (c) can be applied. Where an asylum-seeker or refugee is involved in serious criminal activities after arrival, he or she is fully subject to prosecution and criminal law enforcement measures in the host country or potentially in third countries. Additionally, the commission of 1F(a) or (c) crimes may lead to revocation of refugee status. The 1951 Convention also allows for the expulsion of refugees as an exception to the non-refoulement principle, provided there are appropriate procedural safeguards in place. In Article 32, the 1951 Convention authorises States to expel refugees on national security or public order grounds. As a measure of last resort, return to the country of origin is even envisaged in Article 33(2) if the only way to address the security threat or danger to the community, caused by the presence of the individual, is to send the person back to his or her country of origin.
In view of the severe consequences as a result of application of Articles 1F, 32 and 33(2), their application must be consistent with the highest possible standards of fairness in decision-making. Fairness requires, among other things: that all available and relevant facts are carefully and comprehensively assessed; that where competing considerations arise, for example in issues relating to complicity, culpability, and mitigating or aggravating circumstances, all such considerations are carefully balanced; and that applicants are given a full opportunity to present their claims.
In UNHCR’s view, both Section 72 NIAA
(2) and the Order set thresholds for an exception to the non-refoulement principle that are not in line with the letter and spirit of the 1951 Convention, and do not meet the criteria as set out in Article 33(2) of the 1951 Convention.
Article 33(2) - Exception to the principle of non-refoulement under the 1951 Convention
Section 72 NIAA provides an interpretation of this article for ‘the purpose of construction and application’. Section 72(2) sets a conviction in the UK warranting two years imprisonment as indicative of a particularly serious crime which creates a presumption of a danger to the community, 72(3) extends this to comparable crimes and sentences committed overseas and 72(4) allows the Secretary of State to specify crimes in the form of an order (the NIAA Specification of Particularly Serious Crimes Order) for which a conviction would be sufficient to raise such a presumption regardless of duration of the sentence. The recent guidelines APU Notice 6/2004 issued by the Immigration and Nationality Directorate for the application of Section 72 NIAA extend the range of Home Office powers yet further to deny access to protection to people seeking asylum in the UK, thus applying Section 72 NIAA as an automatic ground for denying access to a substantive examination of the claim. This section therefore sets out UNHCR’s understanding of Article 33(2) of the 1951 Convention.
The principle of non-refoulement is enshrined not only in the 1951 Convention, but also in international human rights law, and is generally recognised as a norm of customary international law. Under the 1951 Convention, Article 33(2) provides that: “the benefit of the [non-refoulement] provision may not […] be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
Article 33(2) applies to refugees who become an extremely serious threat to the country of asylum due to the severity of crimes perpetrated by them in the country of asylum. It aims to protect the safety of the country of refuge and hinges on the assessment that the refugee in question poses a major actual or future threat. For this reason the Article 33(2) mechanism has always been considered as a measure of last resort, taking precedence over and above the application of criminal sanctions and justified by the exceptional threat posed by the individual – a threat such that it can only be countered by removing the person from the country of asylum, including, if necessary, to the country of origin.
“danger to the security of the country"
In determining whether a “danger to the security of the country” has been made out, a decision-maker applying article 33(2) should be required to assess whether the danger to the security constitutes both a sufficiently serious danger and whether this is specific to the country of refuge, as well as whether the refoulement of the refugee is a proportional response to this danger.
No definition of serious danger is provided, but the travaux préparatoires indicate that the drafters were concerned only with significant threats to national security. The types of concerns considered are captured in the following statement by the United Kingdom representative:
Among the great mass of refugees it was inevitable that some persons should be tempted to engage in activities on behalf of a foreign power against the country of their asylum, and it would be unreasonable to expect the latter not to safeguard itself against such a contingency.
“particularly serious crime”
UNHCR recognises that the term “serious crime” may have different connotations in different legal systems. In UNHCR’s understanding, the gravity of the crimes should be judged against international standards, not simply by its categorisation in the host State or the nature of the penalty. Crimes such as petty theft or the possession for personal use of illicit narcotic substances would not meet the threshold of seriousness. Examples of a “serious crime”, inter alia, include murder, rape, arson and armed robbery. Certain other offences could be considered serious if they are accompanied by the use of deadly weapons, involve serious injury to persons, or there is evidence of serious habitual criminal conduct. Factors to be considered include the nature of the act, the actual harm inflicted, the form of procedure used to prosecute the crime, and whether most jurisdictions would consider the act in question as a serious crime. The qualification “particularly serious” indicates that only crimes of a particularly serious nature should be considered egregious enough to warrant an exception to the non-refoulement principle.
"danger to the community"
Conviction of a particularly serious crime in and of itself is not sufficient. The person concerned must, in view of this crime, also present a danger to the community. In UNHCR's opinion, the second provision of Article 33(2) should not be applied solely by reason of the existence of a past crime but on an assessment of the present or future danger posed by the wrong-doer. It is therefore not the acts the refugee has committed, which warrant his expulsion, but that these acts may serve as an indication of his future behaviour and thus indirectly justify his expulsion to the country of persecution.
The burden of proof is on the State to prove that one or several convictions are symptomatic of the criminal, incorrigible nature of the person and that he is likely to do it again. As Article 33(2) is concerned with the present and future more that with the past, it seems that the authorities ought to give a refugee fair warning and a chance to mend his ways, before expulsion to a country of persecution is seriously considered.
Linkage to Article 1F – the exclusion grounds of the 1951 Convention
Unlike Article 1F which concerns exclusion from refugee status, Article 33(2) is directed to those who have already been recognised as refugees, and should therefore not be applied to asylum-seekers. Articles 1F and 33(2) are thus distinct legal provisions serving very different purposes.
Article 1F of the 1951 Convention states that the provision of the Convention “shall not apply to any person with respect to whom there are serious reasons for considering that
- he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
- he has committed a serious non-political crime outside the country of refuge prior to this admission to that country as a refugee;
- he has been guilty of acts contrary to the purposes and principles of the United Nations.”
Their primary purpose is to deprive those guilty of heinous acts, and serious common crimes, of international refugee protection and to ensure that such persons do not abuse the institution of asylum in order to avoid being held legally accountable for their acts.(3)
Article 1F should therefore not be confused with Article 33(2) which provides an exception to the benefit of the non-refoulement provision of the 1951 Convention. Any expansion of the Article 1F exclusion clauses would in effect modify the 1951 Convention and the 1967 Protocol in a manner which is not permissible under international law since the international refugee instruments do not foresee such exclusion or termination criteria or mechanisms and do not allow any such deviation between some Contracting States only.
Article 33(2) should therefore not be used as a further ground for exclusion. Even in the application, given the severe consequences for an individual and its exceptional nature, it is essential that rigorous procedural safeguards in this regard are built into the asylum procedure. Its applicability should not be considered in admissibility or accelerated procedures, but within the regular refugee status determination procedure, which permits the reasons justifying refugee status to be assessed alongside the factors pointing towards exclusion. Such an approach is justified by the often complex nature of the crimes to be considered and the nature of the persecution feared on the other, where proportionality considerations arise.
SPECIFIC CONCERNS ON THE NIAA SPECIFICATION OF PARTICULARLY SERIOUS CRIMES ORDER
The low threshold for exceptions to refoulement
As stated, the 1951 Convention provides for exceptions to refoulement only in extraordinary cases (a refugee who constitutes a danger to the security of the country or who constitutes a danger to the community having been convicted by a final judgment of a particularly serious crime). If it is generally understood that a “serious crime” is a capital or a very grave crime normally punished with long imprisonment, it follows that a “particularly serious crime”, must belong to the gravest category. Section 72 NIAA and the Order include a wide range of offences that seem incompatible with the definition of “particularly serious” and present a particularly low threshold for an exception to refoulement to apply. The Order includes for example shoplifting (s1(1) Theft Act 1968, Schedule 2), graffiti (s.1(1) Criminal Damage Act 1971, Schedule 2), and offences under the Road Traffic (Northern Ireland) Order 1995 [68] (Schedule 5). UNHCR is concerned that this list represents an inappropriate interpretation of Article 33(2) of the 1951 Convention.
Crimes committed outside of the United Kingdom
The extension of applicable offences to ones of a similar nature committed overseas lends itself to potentially questionable results. As an element of their persecution refugees can face illegitimate prosecution at the hands of oppressive authorities and political opponents, where due process guarantees do not apply. Further, the crime committed should not only be particularly but also present a danger to the community in the country of refuge..
Importance of individual assessment and proportionality
A judgement on the potential danger to the community necessarily requires an examination of the circumstances of the refugee as well as the particulars of the specific offence. Relevant considerations include whether the refugee may be regarded as incorrigible in light of prior convictions for grave offences, and the prospects for the refugee’s reform, rehabilitation and reintegration into society. Where the refugee has responded to rehabilitative measures, or where there are indications that the refugee can be reformed, Article 33(2) should not apply because the potential threat to the community would have been (or could be) removed. Other relevant considerations would include the refugee’s behaviour while serving his earlier sentence, the fact that they are released on parole, and the refugee’s co-operation in reform programs.
The particulars of the offence are crucial pointers as to whether the convicted refugee poses or is likely to pose a danger to the community. UNHCR is very concerned more generally that Section 72 NIAA provides for a presumption that an offence is deemed “particularly serious” exclusively on the basis of a custodial sentence of two years or more.5 This is not appropriate inasmuch as it completely excludes from judicial consideration the overall context of the offence, including its nature, effects and surrounding circumstances, the offender’s motives and state of mind, and the existence of extenuating (or aggravating circumstances). In UNHCR’s view, it is imperative that contextual factors such as these should be considered carefully if Article 33(2) is to be properly applied.
With respect to proportionality, UNHCR has consistently advocated for the need to weigh up the gravity of the offence for which the individual appears to be responsible against the consequences of refoulement. In UNHCR’s view, the proportionality text is necessary in order to ensure that the exception is applied in manner consistent with the overriding humanitarian object and purpose of the 1951 Convention. Although the concept of proportionality is not expressly mentioned in the 1951 Convention, it is a fundamental principle in international human rights and international humanitarian law (for example, in the jurisprudence of the European Court of Human Rights, as well as in the context of the International Covenant on Civil and Political Rights). UNHCR therefore recommends that proportionality considerations be taken into account when reaching a decision leading to application of Article 33(2).
Burden of Proof
It is a general principle of law that the burden of proving a particular fact falls upon the party asserting it. In the case of Article 33(2), the burden of proof is on the State to prove that one or several convictions are symptomatic of the criminal, incorrigible nature of the person and that he is likely to do it again, thereby constituting a danger to the community. Both Section 72 NIAA and the list of offences in the Order shift the burden of proof from the State to the refugee to prove that he is not a danger to the community. Such a presumption is, however, excessively onerous and virtually impossible to rebut.
Certification as a particularly serious criminal who represents a danger to the community
Persons who are deemed to fall within the provisions under Section 72 NIAA, including due to offences committed which are listed in the Order, will be certified as particularly serious criminals, representing a danger to the community. Given that the person will already have a conviction, the additional certification may present a particular additional burden with no time limitation.
SPECIFIC CONCERNS OVER THE ADMINISTRATIVE GUIDELINE APU NOTICE 6/2004
While Section 72 NIAA specifies that it applies for the purpose of the construction and application of Article 33(2) of the 1951 Convention, the administrative guideline APU Notice 6/2004seeks to apply the same definitional standards to deny the claims of persons who are seeking asylum in the United Kingdom. Thus, where an asylum seeker commits a crime that brings them within the scope of Section 72, and where they do not rebut the presumption that they are a danger to the community, their asylum claim will be refused on the basis of Section 72 without any substantive consideration of the asylum claim. This non-substantive refusal of asylum claims may lead to the refoulement of persons who are protected under the 1951 Convention. It should be noted that all persons have the right to seek asylum and to undergo individual refugee status determination. Each claim must be determined on its own merits.
CONCLUSION
In UNHCR’s view, the broad regime set out by the Order and Section 72 NIAA is not necessary or appropriate. UNHCR considers the compilation of a list that removes the need to consider individual cases to be generally undesirable and the long list set out in the Order to be particularly alarming. As outlined above, the analysis to apply Article 33(2) is a two-step process: the first one to establish whether there is a conviction for a particularly serious crime and then whether by this fact, the refugee presents a danger to the community.
In line with general principles of law, the exception to the non-refoulement principles contained in Article 33(2) should be interpreted restrictively. The large number of offences listed in the Serious Crimes Order and the wide discretionary powers granted to the Secretary of State regarding analogous offences committed abroad, instead increase the scope of interpretation. The creation through various pieces of legislation of open-ended exceptions to the rule against non-refoulement, weaken it for all intents and purposes and seriously impair the good-faith application of the 1951 Convention in the United Kingdom.
This is additionally undermined by the use of an administrative instruction extending this wide ranging qualification of particularly serious crimes to deny examination of an asylum claim in substance altogether.
footnotes:
1. House of Lords, House of Commons, Joint Committee on Human Rights, the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004, HL Paper 190, HC 1212, 27 October 2004.
2. In 2002 UNHCR submitted its view that Section 72 NIAA may be inconsistent with the letter and the spirit of the 1951 Convention.
3.Where information comes to light that Article 1F would have been applicable to a refugee at the time of recognition this may lead to the cancellation of refugee status. The refugee status of those who engage in conduct falling within the scope of Article 1F(a) or 1F(c) subsequent to recognition may be subject to revocation.
UNHCR London
November 2004
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