Chapter 14

14.2 Article 31

The appellant in R v Asfaw [2008] UKHL 31 was in a similar situation to two of the claimants in Adimi, in that she was a transit passenger through the UK, intending to seek asylum in her country of final destination (the USA in her case) but apprehended using a false passport on the way through. Controversially in terms of Article 31, she was apprehended trying to board the Virgin Atlantic flight to the USA, and thus in the course of leaving the UK, not entering it. She was prosecuted for using a false instrument with intent contrary to s.3 Forgery and Counterfeiting Act 1981 and for an attempt to obtain services (namely the air flight) by deception. The former offence was subject to the defence in s.31 immigration and Asylum Act 1999, the latter was not.

The House of Lords held by a majority of three to two that Article 31 applied to a passenger leaving the country as well as entering it. This was on the basis that she would be able to avail herself of Article 31 in her ultimate destination, and so she should not be deprived of its benefit while she was still en route – in effect – still in flight from persecution. The object of section 31, according to the Attorney General on its introduction to Parliament, was to give effect in domestic law to the protection given by Article 31. Thus, section 31 should be interpreted in accordance with article 31 and its humanitarian purpose to protect refugees from prosecution for offences necessarily committed in the course of seeking protection. It could not be interpreted to provide a defence to offences not listed in the section, as Parliament was explicit about that, but to prosecute for another offence based on exactly the same facts as one for which statute provided a defence was an abuse of process. Accordingly Ms Asfaw should not have been prosecuted to conviction for the attempt to obtain an air flight by deception.

14.3.3 Trafficking

In December 2008 the UK ratified the Council of Europe’s Convention against Human Trafficking which took effect in the UK on 1st April 2009. Implementation means that people who have been trafficked may have a 45 day reflection period in which to begin to recover from their ordeal and consider whether they wish to return home. During that period the individual can consider whether they wish to remain in the UK for a further period, which they may need or wish to do for their own safety. The standard period of leave available will be one year’s discretionary leave if circumstances warrant it. To be granted this the person is expect to co-operate with the police.

Efforts to stop trafficking have resulted in some prosecutions, and the first awards of damages have been made in the civil courts to individuals whose life and health has been damaged by being trafficked. The claim in AT, NT, ML and AK v Dulghieru [2009] EWHC 225 (QB) was based on their allegation that they were victims of an unlawful conspiracy to traffic them into the UK from Moldova for sexual exploitation and prostitution. This included making false representations, false imprisonment, battery, assault and harassment. The defendants were a married couple who had been convicted and sentenced to long terms of imprisonment. In the criminal proceedings confiscation orders had been made totalling £786,000, but no order for compensation had been made. The claimants still suffered symptoms from post traumatic disorder some years after the events. In the civil court they were awarded damages for pain, suffering and loss of amenity: £125,000, £117,000, £82,000 and £97,000 to the claimants respectively. These figures were for damages for injury to mental health. The judge awarded further sums for injury to feelings, humiliation, loss of pride and dignity and feelings of anger or resentment: £35,000 each to AT and ML and £30,000 each to NT and AK by way of aggravated damages.

14.4.1 Article 1F (a) Crimes against humanity and war crimes

In MH (Syria) and DS (Afghanistan) v SSHD [2009] EWCA Civ 226 DS had been excluded by the Secretary of State under Article 1F (a). He was a senior intelligence officer in Afghanistan. However, the Court of Appeal held that this involvement was insufficient to show complicity in crimes against humanity, and he could not be excluded under this paragraph.

14.4.3 Article 1F (c) Acts contrary to the purpose and principles of the UN

In Al-Sirri v SSHD [2009] EWCA Civ 222 the appellant had been repeatedly detained and tortured by the Egyptian police. After he fled the country he was convicted in his absence of involvement in a plot to assassinate the Prime Minister, and sentenced to death. He was initially excluded from refugee status as the Secretary of State relied on Article 1F(c). The Court of Appeal held that the indictment against Mr Al-Sirri was not evidence that he had committed the offence. The evidence that there was against him had probably been obtained by torture and should not be relied upon.

Section 54 of the Immigration Asylum and Nationality Act 2006 defined acts contrary to the purpose and principles of the UN as including acts of terrorism by reference to the Terrorism Act 2000. Although the Court accepted that individuals could be guilty of acts contrary to the purpose and principles of the UN, the UK was bound by the approach to this Article in the Refugee Qualification Directive, Article 12 of which defined acts contrary to the purpose and principles of the UN by reference to the UN Charter. The definition of terrorism used there was less inclusive than the one in the Terrorism Act. Section 54 should be read down in accordance with Article 12.

In MH (Syria) and DS (Afghanistan) v SSHD [2009] EWCA Civ 226 MH was a minor. She had been a member of the PKK but done nothing more violent than carry a gun. Her main occupation with the PKK was as a nurse and a peacekeeper. The Secretary of State applied Article 1F(c) to her, but the Court of Appeal held that she had done nothing contrary to the purpose and principles of the UN. Although the PKK was a proscribed organisation and had been involved in illegal military operations and acts of terrorism, there was no suggestion that its activities were so extreme that mere membership established complicity and could exclude a person from refugee status.

In KJ (Sri Lanka) v SSHD [2009] EWCA Civ 292 the appellant was a former member of the LTTE (Tamil Tigers). He had been detained by the security forces. The tribunal held that he would not be at risk from government forces were he to return to Sri Lanka, but that he would be at risk from the LTTE, as he was suspected of defecting to the government side. However, the Secretary of State held that he was excluded from refugee status by Article 1F (c). The Court of Appeal held that membership of the LTTE at a low level did not establish that he was complicit in acts contrary to the purpose and principles of the UN, and he could not be excluded on that ground.

14.4.5 UK legislation affecting Article 33.2

Section 72 of the 2002 Act was applied in SSHD v TB (Jamaica) [2008] EWCA Civ 977 in which the appellant had been convicted of supplying Class A drugs and served a prison sentence. After the Secretary of State gave notice of intention to deport TB, he made a claim for asylum and human rights protection. This was allowed by an immigration judge who accepted his asylum claim and that deportation would infringe his rights under Articles 2, 3 and 8 ECHR. After that decision was promulgated the Secretary of State wrote to the claimant’s solicitors to say that in view of TB’s conviction, the presumption would be applied under s.72(2) of the Nationality Immigration and Asylum Act 2002 that he constituted a danger to the community and thus pursuant to Article 33(2) he would be excluded from the protection of the Refugee Convention. Though the Secretary of State did not seek to remove TB in breach of his ECHR rights, she refused him asylum and leave to enter. After the Court of Appeal judgment in R (S) v SSHD [2006] EWCA Civ 1157 the Secretary of State was obliged to grant discretionary leave to TB, which she did for periods of six months. TB applied for judicial review, and the Court of Appeal held that if the Secretary of State had wanted to argue that his presence was a danger to the community she could always have done so at any stage of the proceedings. The immigration judge’s finding in his favour on Article 8 was inconsistent with a view that the claimant was a danger to the community. It was not open to the Secretary of State after the legal proceedings had concluded to try to use section 72 to avoid the consequences of the legal process.

In IH (s.72; ‘particularly serious crime’) Eritrea v SSHD [2009] UKAIT 00012 the tribunal held that Article 33.2 of the Refugee Convention must be given an autonomous international meaning, although this was identified by national courts. Article 21.2 of the EU Refugee Qualification Directive 2004/83 gave effect to Article 33.2 and had direct effect in the UK. Therefore, although the Refugee Convention could not override unambiguous UK statute, even if that statute was incompatible with the Convention, the Qualification Directive could do so, and could affect the meaning given to a UK statute. The meaning of ‘particularly serious crime’ in Article 33.2 and in the Qualification Directive was one which must be found by reference to the circumstances of the offence. The irrebuttable presumption in s.72 of the Nationality Immigration and Asylum Act 2002 and 2004 Specified Crimes Order that certain crimes were particularly serious did not comply with this autonomous meaning of Article 33.2. Accordingly, in order to comply with EU law, the presumption in s.72 must be read as being rebuttable.

In EN (Serbia) v SSHD [2009] EWCA Civ 630 the Court of Appeal endorsed IH in most respects. The important exception was that the Court of Appeal held that the 2004 Order, specifying certain crimes as particularly serious, was held to be ultra vires. This judgment is in line with the view of the parliamentary Joint Committee on Human Rights. The Court said that it was irrational to deem these offences particularly serious as they included, for instance, theft of goods to an unspecified value.

Reading list:

Piotrowicz, Ryszard, ‘The UNHCR’s Guidelines on Human Trafficking’ International Journal of Refugee Law 2008, vol. 20 no. 2 pp.242- 252
Symonds, Steve, ‘The Special Immigration Status’ Journal of Immigration Asylum and Nationality Law (2008) Vol.22 no. 4 pp. 333-349

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