Tag Archives: Refugee Law

Greg Weeks: Comment on Australia: Protection of refugees who do not “live discreetly”

Gregory WeeksAt the political level, Australia’s lamentable record of mistreating refugees is well established and is catalogued and critiqued elsewhere, such as by my colleagues at the Kaldor Centre for International Refugee Law. Within the scope allowed by Australia’s stringent migration legislation, the judiciary has a much stronger modern record in regard to protecting the interests of refugees who seek to resettle in Australia. In particular, the High Court has repeatedly made its position clear on the issue of whether a person who otherwise satisfies the legal requirements to be classified as a refugee can be turned away on the basis that s/he could have sought refuge elsewhere, including within his or her country of origin.

This application of the “internal relocation principle” is based both on the requirement in Art. 1A(2) of the Refugee Convention that a refugee have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and on Migration Act 1958 (Cth). The internal relocation principle’s scope has been complicated by the belief that it obliges refugees, where possible, to remain in their countries of origin and “live discreetly” in order not to be persecuted. The High Court has recently rejected this understanding for the third time in just over a decade in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45, a decision which referred extensively to the earlier High Court decisions in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 and SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18.

In the landmark S395 case, a majority of the High Court rejected the reasoning that, while two homosexual men from Bangladesh may not be able to live openly as homosexuals, they would be unlikely to suffer persecution if they were “discreet” about their sexuality. This amounted to a finding that Australia owes no protection obligations to refugees who are able to cease the conduct which is has caused, or would cause, them to be persecuted for one of the reasons specified in the Refugee Convention. In separate judgments, McHugh and Kirby JJ and Gummow and Hayne JJ identified the legal error inherent in such reasoning as being that the decision-maker had failed to engage with the basic question of whether the applicants themselves had a “well-founded fear of persecution”, as opposed to whether they could mitigate such a fear by acting in accordance with an objectively reasonable standard. As Gageler J put it in SZSCA, the principle that derives from S395 is that an asylum seeker cannot be expected “hide or change behaviour that is the manifestation of a Convention characteristic”. It does not apply to a case which “does not contemplate changed behaviour to avoid persecution but to avoid creating a wrongful perception of membership of a protected class”.

The persecution feared in S395 was “general and nationwide” and the joint judgment in SZSCA noted that such was not the case in the matter they were called upon to decide. The internal relocation principle might therefore apply if the applicant were able to avoid persecution by relocating within Afghanistan, although the Refugee Review Tribunal (RRT) had not considered the issue in those terms. It found rather that the applicant was likely to be safe from the Taliban if he remained in Kabul and ceased work as a truck driver transporting building materials. SZATV was also a case in which the RRT held that the applicant, having been found to have a well-founded fear of persecution for reason of his political opinions, expressed in the course of publishing journalism critical of corruption in regional government, was able to avoid the persecution he would suffer as a journalist in Chernovtsy by working as a construction worker in Kiev.

In the course of its decision in SZATV, the High Court accepted Lord Bingham’s analysis in Januzi v Home Secretary [2006] 2 AC 426 of how the internal relocation principle fits within the Refugee Convention. Both cases agree that the internal relocation principle will apply where it is reasonable to expect an applicant to have sought refuge in another part of his or her country of origin. Indeed, in SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51, a case heard concurrently with SZATV, the High Court held by majority that the applicant should reasonably have sought refuge elsewhere within India. The application of the internal relocation principle appears to be more likely in countries of greater size.

In SZATV, the joint judgment of Gummow, Hayne and Crennan JJ accepted that that, for the purposes of assessing whether it is “reasonable” to expect an applicant to seek refuge within his or her home country, it is relevant to ask whether such a course of action would be “practicable”, which must in turn “depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”. The decision in SZATV turned upon the expectation that the applicant would “live discreetly” in another part of Ukraine, in the sense that he would cease the very activity that had caused him to suffer persecution in Chernovtsy. This is equivalent to telling the applicants in S395 that, if they must be gay, they should at least not appear to be gay. The High Court was correct to reject any such proposition.

The circumstances were different in SZSCA, in which the applicant had been a long term resident of Kabul (where the RRT held he would be safe from the Taliban) and therefore did not need to relocate to another part of Afghanistan in order to seek refuge. However, on focussing on this particular circumstance, the majority in the High Court held that the RRT failed to consider that the applicant’s living, and capacity to support himself and his family, relied on work that caused him to leave Kabul regularly. The RRT had instead assumed that the applicant could work as a jewellery-maker, as he had done previously in Jaghori. In essence, this was viewed as another expectation that a refugee should continue to “live discreetly” in his country of origin rather than seek refuge in Australia. Again, it has been swiftly rejected by a High Court majority, albeit over Gageler J’s compelling dissent. His Honour could not ascertain that the applicant belonged to a “particular social group” for Convention purposes and, consequently, saw SZSCA differently to either S395 or SZATV.

Notwithstanding the entirely reasonable concerns expressed by Gageler J, it is pleasing to see the High Court reiterate the legal position that a refugee cannot be expected to avoid persecution by ceasing the very conduct that the Convention protects. Refugees are given few breaks by Australian legislation. The continued judicial application of the principle first expressed in S395 may not redress this long-standing trend, but is in any case a welcome sign that the Refugee Convention retains importance in Australian law.


Greg Weeks is a Lecturer in the Faculty of Law, University of New South Wales and the United Kingdom Constitutional Law Blog’s Australia Correspondent. He was part of the legal team which acted for the applicant called SZATV in the High Court and subsequently represented him before the Refugee Review Tribunal.

Suggested citation: G. Weeks, ‘Comment on Australia: Protection of refugees who do not “live discreetly” U.K. Const. L. Blog (15th December 2014) (available at http://ukconstitutionallaw.org).

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Emily MacKenzie: Successful Challenge to Levels of Asylum Support – R (on the application of Refugee Action) v Home Secretary

Emily MacKenzie-Brick Court ChambersThe High Court recently upheld an important challenge in the field of asylum support. In June 2013, the Home Secretary decided that weekly cash payments to “destitute” asylum seekers in the 2013-14 financial year should remain frozen at the rate which had applied since 2011. In R (on the application of Refugee Action) v Home Secretary, Popplewell J quashed that decision, which now falls for reconsideration by the Home Secretary in light of the judgment.

The legislation provides that the cash payments are to cover “essential living needs” other than accommodation, which (including utility bills, council tax and basic furnishings) is provided for separately. However, as most asylum seekers and their dependents are prohibited from claiming benefits and from seeking work, the payments represent the sole source of income for these households.

The frozen weekly payments amount to £36.63 for a single adult, £43.94 for a single parent, £39.80 for 16-17 year olds and £52.96 for a child under 16 (although this does not apply to unaccompanied children, to whom separate provisions apply). Pregnant women and babies under the age of two receive additional payments of up to £5 weekly and pregnant women also receive a one-off maternity payment of £300.

The charity Refugee Action sought judicial review of the freeze on multiple grounds. While rejecting or declining to decide other grounds, Popplewell J upheld the claim for the following two reasons:

  1. In reaching her decision to freeze the payments, the Home Secretary left out of her consideration certain needs, which qualify as “essential living needs”.
  2. In setting the level of the payments, her analysis was flawed in several significant ways. For example, the fact that she proceeded on the “erroneous footing” that asylum support rates had increased in absolute terms by 11.5% when in fact they had decreased by that amount.

The case is an interesting read, not only on its own merits, but also because it raises at least two important constitutional issues: two-tiered standards of review and NGOs as judicial review claimants.

1. A two-tiered standard of review

In setting the level of asylum support, the Home Secretary had to conclude that the payments are adequate to meet “essential living needs”. It was therefore necessary for her to identify what living needs are “essential”. The claimants challenged her assessment, asserting that she had left out of consideration various items, which should be considered to qualify as “essential living needs.”

Faced with this challenge, the first question for the court is who gets to decide what is an “essential living need”? Is it an objective question (and thus suitable for the Court to define), or is it to be subjectively judged by the Secretary of State?

Popplewell J’s answer that it was both – and thus he outlined a two-tiered approach to reviewing the Home Secretary’s assessment.

It was an objective question insofar as the area had been the subject of an EU Directive, which imposes “minimum reception conditions” for countries receiving asylum seekers. The Marleasing principle (that national legislation must be interpreted in a manner which gives effect to EU law) therefore required that “[p]rovision for essential living needs . . . be interpreted as including, as a minimum, provision of the minimum reception conditions required by the Directive,” which conditions constitute an objective standard (para 85).

However, this is an example of a Directive setting a baseline minimum of protection. Essentially all that is required is that asylum support ensures respect for human dignity, maintenance of an adequate standard of health and that subsistence living needs are met. Most countries, including the U.K., go further in terms of providing for the destitute.

Popplewell J considered that once you exit the territory of the Directive and provide further guarantees, the question of what is an “essential” living need becomes a matter for the subjective assessment of the Home Secretary (para 90). The reason given is that what is “essential” (beyond the bare minimum, on which we can all agree) is “a criterion on which views may differ widely” and thus involves the making of a “value judgment”, which function has been conferred by Parliament on the executive.

The result of this is that, outside the territory of the Directive, the Home Secretary’s decision as to what constitutes essential living needs is only open to challenge on the Wednesbury standard of review.

The present case is an example, though, of a situation where the notoriously high Wednesbury hurdle was overcome because the Home Secretary had failed to take into account relevant considerations to a sufficient extent to vitiate her decision. Counsel for the Home Secretary accepted that certain items (including washing powder, cleaning materials and non-prescription medication) were essential living needs (para 99), yet the evidence was that they were not considered by the Secretary of State in her decision (para 100). Similarly, the provision of certain equipment for babies and new mothers was implicitly accepted as being essential because the governments asserted (incorrectly, the Judge concluded) that it was provided for by the extra payments made to pregnant women and children under the age of 2.

Further, Popplewell J was able to find that costs associated with the asylum application not covered by legal aid (para 104) and the cost of participating in social, cultural and religious life (para 113-116) fall within the ambit of the “minimum” conditions imposed by the Directive and thus are certainly deserving of consideration by the Secretary of State, if not precise delimitation by the court.

The case is thus an example of a two-tiered approach to review. Basic guarantees are not discretionary, meaning that the court can flex its interventionist muscles if it disagrees with the executive’s conclusion as to what is included. However, beyond that we are in the realm of discretionary decision-making, where the courts will back off and defer to the executive in the absence of irrationality.

This bifurcated approach to review is not particularly controversial, but is likely to structure future challenges in this sector. It will also make it very difficult to challenge a decision in the discretionary realm in a case where a proper process has been followed and errors such as were abundant on the facts of this case have been avoided.

  1. Judicial review challenges brought by NGOs

This case is an example of a successful claim by an NGO. The Government has been strident in its opposition to NGOs acting as claimants in judicial review (see Justice Secretary Chris Grayling’s most recent comments on the matter in The Telegraph). The Government’s earlier proposals for judicial review reform would have seen NGOs denied standing to bring judicial review claims. Fortunately, that proposal has been abandoned in the Criminal Justice and Courts Bill, but the latter still introduces numerous reforms to the costs regime that will cripple the ability of many organisations to take on the risk of litigation (see this earlier UK Constitutional Law Association Blog post by Ben Jaffey and Tom Hickman).

However, one should be careful before deploying this case as an example of why squeezing NGOs out of judicial review would be a bad thing. At several stages, Popplewell J makes clear that, in his view, the challenge was hampered by the fact that it was “general” in nature, as opposed to being “brought by an individual whose personal circumstances were in evidence” (para 43). For example, he ascribes the difficulties he has in determining what local authorities provide to asylum seekers as being:

“no doubt the result of the general nature of the present challenge, which led in the course of argument to hypothetical examples of particular individual circumstances giving rise to particular needs. Such hypothetical examples would have been easier to address on a case by case basis with the assistance of the specific applicable powers and duties of local authorities, and, importantly, evidence of how they were applied as a matter of policy and practice. Local authorities might have wished to be heard on some aspects. The result is that the following analysis has been undertaken on a less well informed basis and at a higher level of generality than I would have liked, and than would have been possible in a challenge by an individual whose personal circumstances were in evidence.” (Para 43)

Similarly, the Judge was unwilling to engage in the hypothetical that some asylum seekers might fall into a “gap” in protection in the absence of evidence that an actual person in that situation existed, concluding:

“there is no evidential basis on the current generic challenge for concluding that there are infirm children of asylum seekers whose additional non accommodation related essential living needs are not being met by local authorities and whose circumstances are not to be categorised as exceptional.” (Para 82)

If this case is used, as it should be, to illustrate the role of NGOs in bringing to light faulty decision-making by the government, it is likely that these dicta will be cited in an attempt to show that NGOs should not be using judicial review in this way. The criticisms can, however, be answered.

Part of the answer lies in the judgment itself. Whilst suggesting in the passages cited above that an individual challenge would have presented fewer difficulties, Popplewell J also criticises other parts of the evidence as coming from too few affected individuals. This is in relation to material that the claimant served evidencing the problems asylum seekers encounter under the current payments, such as having to miss meals and being unable to afford adequate clothing (para 133). Popplewell J commented that:

“…it is a partial body of relevant evidence, in both senses of the word. It can not properly be regarded as conclusive. The Claimant’s survey was based on the responses of a relatively small group and did not paint a homogenous picture. None of the material could be treated as demonstrably representative or beyond doubt.” (Para 134)

What this shows is that both evidence relating to the situations of specific individuals and wide-ranging survey evidence can be useful in challenging policy decisions in this sector. An NGO such as Refugee Action is best placed to collect both kinds of evidence. It is clearly more capable of collecting the wide-ranging “demonstrably representative” evidence than an individual challenger would be. However, arguably, it is also just as – if not more – capable of collecting evidence relating to the situations of a specific individual because it is more likely to be able to locate the relevant person. Indeed, the publicity attendant with bringing the claim in the first place might bring individuals out of the woodwork, whose situations would otherwise have remained unknown to the court.


This case has been lauded by some commentators as a “damning” judgment for the Home Secretary (see, for example, this post by Chris Yeo on the Free Movement Blog). Not only is it a landmark decision in this subject-area, it is well worth reading for its contribution to the discussion surrounding the appropriate standard of review in relation to policy decisions. And –perhaps most importantly – it is the latest example of a successful claim by an NGO bringing to light manifest failures in government decision-making that affects some of the most vulnerable in our society.

Emily MacKenzie is a barrister at Brick Court Chambers and is currently working as an International Law Fellow at the American Society of International Law

(Suggested citation: E. MacKenzie, ‘Successful challenge to levels of asylum support – R (on the application of Refugee Action) v Home Secretary’ U.K. Const. L. Blog (8th May 2014) (available at: http://ukconstitutionallaw.org/).

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Colin Harvey: Who ‘Deserves’ to be a Refugee?

harveylargecroppedDoes ‘status’ really matter? In the global age of human rights it seems that being a ‘person’ is all that should count.  Human rights apply to everyone. As we know, from recent political debates in the UK (noted here by Gavin Phillipson), this includes terrorist suspects. Successive UK governments, and Prime Ministers, have expressed frustration about the implications of human rights law for deportation. Often portrayed as the example of the excesses of rights-talk, it is in fact frequently little more than the result of fairly conservative institutions (national and European courts) consistently applying mundane and accepted legal principles. You would not think it.

Has the cosmopolitan, post-national human rights era thus arrived? A glance reveals that categories still determine our lives. Who you are, where you live, and where you are from matters; labels will dictate your treatment by states and by others. Even on the move, we remain situated selves. In a world where human displacement is the norm, the reality of need is often presented through refugee movements. Here, the ‘humanity’ in human rights arises in several senses. The obvious one is the plight of those effectively stripped of the notional embrace of the citizen-state bond – human persons seeking asylum. Recognising ‘humanity’ also carries something more: the complexities and agency of real people. Those in flight may be doing so precisely because of their active political involvement and deliberate actions elsewhere – another dimension of ‘being fully human’. The tricky part for some is holding to the position that the behaviour, conduct or actions of the person are irrelevant to the assessment of the application of a particular right – no one (jurisdictionally included) is, for example, ‘undeserving’ of the rights contained in Article 3 of the European Convention. Governmental disbelief that the behaviour of the person cannot be ‘factored in’ is not disguised; on this thinking perhaps some are less deserving that others of the guarantee of non-refoulement?

International refugee law is a bit different. An international regime of protection emerged based around the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (with international institutional support from the UN High Commissioner for Refugees). It is a system that balances the instrumental needs of states (how could it not?), with the humanitarian imperatives of international refugee protection. It does so by defining refugee status (well-founded fear of being persecuted for a Convention reason), and including a range of protections for refugees. The ‘inclusion clause’ of refugee law also comes with provisions for ‘exclusion’; practically incorporating the notion of ‘deserving’ and ‘undeserving’. Now, compare this with the much discussed implications of Article 3 of the European Convention, noted above.  From Chahal v UK to Saadi v Italy to Ramzy v the Netherlands and beyond, the European Court of Human Rights (much to the irritation of several governments, including the UK) consistently holds to the ‘absolute’ nature of the Convention’s non-refoulement guarantee, even in national security cases. The sole issue – for Article 3 purposes only – is whether there are substantial grounds to believe there is a real risk of ill-treatment, irrespective of the individual’s conduct, actions or behaviour. No one is thus excluded for those reasons. Plus, there is no need to demonstrate that the ill-treatment must be feared for any specific reason, as in refugee law. So, is refugee law redundant? Not quite. Although other forms of humanitarian protection have arisen, in recognition of these developments in human rights law, it still tends to matter substantively whether a person is a refugee or not. Being granted refugee status brings more robust guarantees with it – thus exclusion remains meaningful.

The Supreme Court recently addressed this in Al-Sirri v Secretary of State for the Home Department; DD (Afghanistan) v Secretary of State for the Home Department. The exclusion clauses of refugee law are found in Article 1F of the 1951 Convention:

 ‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

 (a) 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;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.’

Article 1F(c) was at issue in both these cases (it was already accepted that return was not an option for human rights reasons), and they must be viewed in the context of the provisions of the EU Qualification Directive, and the linkage to ‘terrorism’ made in s.54 of the Immigration, Asylum and Nationality Act 2006.

In Al-Sirri the essential questions related to this connection to ‘terrorism’, and the standard of proof to be applied in Article 1F cases (his asylum claim in the UK was refused for Article 1F(c) reasons due to alleged involvement in terrorism). Are all actions defined as ‘terrorism’ in domestic law automatically contrary to the purposes and principles of the UN?  Does the international condemnation of terrorism (but absence of an agreed international definition) mean that states have discretion – for refugee law purposes – to interpret these provisions as they wish, or do the terms  have a ‘true’ and autonomous meaning tied to international peace and security?  If the exclusion clauses are simply equated with expansive notions of ‘terrorism’ will they be co-opted into a worrying global counter-terrorism framework to the detriment of international refugee protection?

Following closely the approach outlined by UNHCR, the Supreme Court here attempted to ensure that the imperatives of international refugee protection are respected in these assessments by requiring a narrow interpretation and applying it restrictively. It did so by insisting that although not ‘war crimes’ or ‘crimes against humanity’ (as in Article1F(a)) the acts must be similarly serious, states are not free to adopt their own definitions, and while there is no international adjudicative body for refugee law, UNHCR views should be given ‘considerable weight’. UNHCR’s Guidance was expressly endorsed, the link to international peace, security and peaceful relations between states underlined, and the Supreme Court noted (following Sedley LJ in the Court of Appeal) that the adoption of the ‘terrorism’ definition in s. 54(2) of the 2006 Act should be read down to ensure it remains within the confines of Article 12 of the Qualification Directive (reflecting and elaborating on Article 1F). However, although referencing the lack of an agreed international definition, the Court stated:

 ‘[39]. The essence of terrorism is the commission, organisation, incitement or threat of serious acts of violence against persons or property for the purpose of intimidating a population or compelling a government or international organisation to act or not to act in a particular way…it is, it seems to us, very likely that inducing terror in the civilian population or putting such extreme pressures upon a government will also have the international repercussions referred to by the UNHCR’.

The Supreme Court stressed that not all acts which sought to destabilise another country would fall within this clause. Again, this should be context dependent and should ‘have the requisite serious effect upon international peace, security and peaceful relations between states [40].’

The term ‘serious reasons for considering’ governs the standard to be applied in Article 1F cases. What does it mean? Should we think about this in domestic criminal or civil terms?  Again following Sedley LJ in the Court of Appeal, the Supreme Court rejected the domestic analogies, expressly noting that the criminal standard does not apply. The favoured approach is to use the words of the Convention, with the guidance that ‘serious reasons’ are stronger than ‘reasonable grounds’, the evidence must be ‘clear and credible’ or ‘strong’ and that ‘considering’ is stronger than ‘suspecting’ or ‘believing’. This was of especial concern in Al-Sirri because criminal charges of conspiracy to murder had been dismissed against him, yet the Asylum and Immigration Tribunal had concluded there were serious reasons for considering he had been engaged in activity which fell within Article 1F(c).

In DD the issue was an armed insurrection in Afghanistan against the International  Security Assistance Force (ISAF), and whether such action would be ‘contrary to the purposes and principles of the UN’. Holding again to the independent interpretation of the refugee law provisions, and rejecting the argument that this would only apply to attacks on the UN Assistance Mission in Afghanistan and not ISAF, the Court held that the exclusion clause would apply to such acts.  Even the narrow and restrictive reading endorsed by the Supreme Court thus had its evident limits.

For refugee law purposes, status continues to matter. Who is a ‘refugee’ is contested in case law around the world, and the law insists that – however narrowly or restrictively interpreted – there will be some who will not merit ‘refugee status’, even if a well-founded fear of persecution exists. This does not mean return is permissible – human rights law may well rule it out – but it will impact on the standard of treatment the person can expect.

In cases such as Al-Sirri and DD we see a judicial attempt to ensure a careful, contextual, case-by-case assessment; one that resists excessive and blanket approaches that would enlist the exclusion clauses within an ill-defined global counter-terrorism policy. As is apparent from both cases, it still leaves room for their considered application. As states urge more and more interpretative flexibility in national security contexts, there is always a real risk that the ambitions and ‘logic’ of counter-terrorism policy will colonise other fields of humanitarian protection. International refugee law accommodates the national security concerns of states amply; too much in fact for many. Further erosion of refugee rights through an overly inclusive reading of the exclusion clauses – pressed hard by government here – would be unwelcome, and the Supreme Court has evidently rejected this route.

Perhaps these cases should draw our attention once again not simply to the ongoing and at times obsessive focus on return, but exactly what guarantees we should expect for all those who ‘enjoy’ various forms of international protection or who join the ranks of ‘non-returnable persons’?

Colin Harvey is Professor of Human Rights Law, Queen’s University Belfast

Suggested citation: C. Harvey, ‘Who ‘Deserves’ to be a Refugee?’ UK Const. L. Blog (30th November 2012) (available at http://ukconstitutionallaw.org).

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