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UNHCR comments on Clause 52 of the Immigration Asylum and Nationality Bill 2005
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 forthcoming debate on the Bill:
- UNHCR recognises the legitimate interests of States to safeguard
their national security and endorses efforts directed at eliminating
and effectively combating international terrorism. UNHCR also shares
the concern of States to ensure that there should be no avenue for
those committing or aiding the commission of terrorist acts to secure
access to their territory.
- Alongside
these concerns, UNHCR emphasises 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.
- UNHCR’s “Guidelines on International Protection: Application
of the Exclusion Clauses: Article 1F of the 1951 Convention relating
to the Status of Refugees” of September 2003 set out UNHCR’s
position on the interpretation of the exclusion clauses in
greater depth. An instructive approach to Article 1 F (c)
is to delineate its
material and personal scope of application. UNHCR would like
to take this opportunity to clarify our views on these two
elements of the
analysis.
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.
December 2005
UNHCR London
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