 |
UNHCR comments relating to serious criminals and statutory review
Serious
Criminals - New Clause 20
1.
UNHCR is very concerned that Clause 20 suggests an approach to Article
33(2) of the 1951 Convention which is at odds with the Convention’s
objects and purposes. Clause 20 also runs counter to long-standing
understandings developed through State practice over many years,
regarding the interpretation and application of Article 33(2). In
its present form, Clause 20 creates a risk that refugees may be
sent back to face persecution contrary to the 1951 Convention. If
Clause 20 were allowed to stand, as proposed, it would be at variance
with the following precepts: that Article 33(2) should be restrictively
interpreted and applied; the principle that the applicability of
Article 33(2) has to be judged on a case-by-case basis; and the
principle that under Article 33(2), the burden of proof lies principally
on the State.
Article
33(2) should be restrictively interpreted and applied.
2. Article 33(2) is framed as an exception to the principle of non
refoulement – a principle that is the cornerstone of refugee
protection and a norm of customary international law. The interpretation
and application of Article 33(2) should therefore be subordinate
to the 1951 Convention’s overriding object, namely to ensure
that refugees receive protection and are not returned to face persecution.
As with any exception to human rights guarantees, Article 33(2)
must always be interpreted restrictively. Such an approach is particularly
warranted in view of the serious possible consequences for the individual.
Article 33(2) is, therefore, a measure of last resort, to be applied
under extraordinary circumstances.
The
applicability of Article 33(2) has to be judged on a case-by-case
basis.
3. This principle is firmly enshrined in State practice. In UNHCR’s
experience, a case-by-case approach is the best way to ensure that
the various conditions of Article 33(2) are properly established.
These conditions are, in as far as the second alternative of Article
33(2) is concerned: conviction by a final judgement for a particularly
serious crime, and a finding - on reasonable grounds - that the
refugee constitutes a danger to the community of the country. A
criminal conviction for a crime regarded as “particularly
serious” - does not per se suffice for the application of
Article 33(2). A further judgement has to be made that the particular
refugee in question poses a present or future threat to the community
of the country.
4.
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.
5.
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 that Clause 20 introduces an
irebuttable presumption that an offence is deemed “particularly
serious” exclusively on the basis of a custodial sentence
of two years or more. 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.
6.
With respect to proportionality, UNHCR is furthermore of the position
that, in each case, a rational connection between the removal of
a refugee and the elimination of the danger needs to be established,
that refoulement constitutes the last possible resort to eliminate
the danger and that the danger to the country of refuge outweighes
the risk to the refugee upon refoulement. In order for Article 33(2)
to be applied consistently with the core objects of the 1951 Convention
regime, all these elements need to be carefully assessed on a case-by-case
basis. In UNHCR’s view, this cannot be achieved by the legislative
presumption proposed by Clause 20.
Under Article 33(2), the burden of proof lies principally on
the State.
6. This follows from the general principle of law that the burden
of proving a particular fact falls upon the party asserting it.
The critical question is whether a refugee convicted of a particularly
serious crime poses such a clear and grave danger to the community
that the country of asylum is left with no choice but to return
him or her to face persecution. It is appropriate that the country
of asylum should bear the onus of establishing the relevant facts,
particularly because by applying Article 33(2), the State will be
pursuing an exception to a primary obligation under an international
human rights treaty.
7.
The presumption proposed by Clause 20 shifts the burden of proof
from the State to the refugee, as the latter is required to show
that that he or she is not a danger to the community. This is an
excessively onerous – if not impossible – burden for
a refugee to carry. It effectively requires the refugee to prove
a negative, and to do so against a Secretary of State who has already
communicated his decision to remove. Given that in any such proceedings,
the refugee will almost certainly be at a severe disadvantage, questions
should be raised as to whether requirements of due justice are fully
respected. Such questions would be especially pertinent where, as
a result of the new proposals for costs sanctions (see paragraphs
12 and 13 below), quality legal advice is not readily available
to the refugee. The result might well be that the refugee may be
removed to face persecution even where he or she does not represent
a danger to the community, thus contravening the letter and the
spirit of the 1951 Convention.
Replacement
of judicial review with statutory review and costs sanctions
8.
As indicated in its comments on Part 5 of the Bill, UNHCR welcomes
measures designed to improve the appellate system. However, we are
concerned that the proposed amendments would have a profound impact
on the quality of the appeals process and could undermine existing
procedural safeguards. We would urge the Government to proceed with
the utmost caution on this issue and to consider fully any representations
made in the consultation process. In particular, we would stress
that these proposals, which envisage fundamental changes to the
asylum procedure, ought to attract much longer periods of consultation.
Replacement
of judicial review with statutory review
9. UNHCR welcomes measures designed to shorten the length of the
asylum determination process, but is concerned at the prospect of
restricting appeal rights by making it impossible to appeal or judicially
review decisions of the High Court in proposed statutory review
cases. Many important issues relating to the interpretation of the
1951 Refugee Convention have been decided through judicial review
in the Court of Appeal and the House of Lords, such as returns of
asylum-seekers to safe third countries they have passed through
and the interpretation of the Convention ground of a particular
social group. To limit appeals in the judicial review process in
this way would be to remove the highest level of judicial scrutiny
from vital questions of interpretation in the area of refugee protection
(asylum law). Questions of interpretation are complicated matters
which often require the attention of the highest judicial offices
in the country. The United Kingdom can rightly be proud of the standards
it sets in its legal processes for interpreting and applying the
Refugee Convention. These ought to be maintained so that the United
Kingdom remains a standard-setter in refugee law and policy throughout
the world. We would urge the government to reconsider this proposal.
10.
UNHCR regrets that the proposal seeks to limit the statutory review
to review on the papers without an oral hearing. UNHCR is of the
opinion that oral hearings serve an important purpose. They often
facilitate full argument on points raised on appeal and provide
an opportunity to listen to expert argument on difficult points
of law. In UNHCR’s view the current procedure of oral hearings
in substantive judicial review cases constitutes a best practice
which should be maintained in the interests of high standards of
refugee protection.
11. UNHCR welcomes the move to speed up the appeal process and limit
the amount of time that asylum-seekers spend in uncertainty. With
regard to the ten-day appeal timetable, UNHCR would, however, urge
that provision be made for exceptions in cases where the applicant
can demonstrate reasons for not being able to comply with it. This
is particularly important in view of the fact that there is no requirement
for legal advice to be provided in accommodation centres under the
Bill. Equally, legal advice can be difficult to obtain for asylum-seekers
who have been dispersed outside London. Given the current policy
of dispersal, these individuals would also be placed at a disadvantage
if the requirement relating to time limits were enforced in all
cases without exception and flexibility.
Costs
Sanctions
12. UNHCR is concerned about the proposals to introduce a "duty
to certify" on the Immigration Appellate Authority ("IAA")
and the High Court Judge hearing a statutory review, in cases where
the IAA or the Judge are of the opinion that the applications before
them are meritless. First, this could produce a potential conflict
with the Legal Services Commission's Funding Code Criteria. Section
13 of that Code already requires the Commission to undertake an
assessment of the merits of an application when deciding whether
to grant public funding to an immigration case. There would seem
to be an obvious conflict if the IAA or a High Court Judge certified
a case as being meritless where that case had already received public
funding following a merits-based assessment by the Commission.
13.
Secondly, this could have a knock-on effect in terms of access to
quality legal advice for asylum-seekers. Cases classed as borderline
by the Commission, because difficult disputes of fact, law or expert
evidence do not make it possible to rate the prospects of success
as higher than 50%, might not be taken on by legal representatives
because of the risk of them being subsequently certified and no
payment being made for work already carried out. Many asylum-seekers
find themselves in the archetypal "borderline situation"
because of the circumstances in which they are forced to leave their
countries of origin. Paragraphs 195 to 205 of the UNHCR Handbook
on Procedures and Criteria for Determining Refugee Status stress
this point, noting that "the requirement of evidence should
[…] not be too strictly applied in view of the difficulty
of proof inherent in the special situation in which an applicant
for refugee status finds himself" (paragraph 197). In addition,
"[…] it is hardly possible for a refugee to 'prove' every
part of his case and, indeed, if this were a requirement the majority
of refugees would not be recognised" (paragraph 203). The potential
difficulty of access to legal representation could seriously undermine
the ability of asylum-seekers to challenge the refusal of the IAT
to hear an appeal against the refusal of their asylum application
and thus to obtain a proper review of their claims. In effect, this
amounts to a restriction on asylum-seekers' rights of appeal through
no fault of their own. We strongly urge the Government to reconsider
the implementation of costs sanctions.
UNHCR
London
2002
|
|
