affiliated to the International Association of Constitutional Law
Does ‘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:
‘. 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 .’
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).