Briefing: Can criminals be denied refugee status?

The short answer is “yes, criminals can be denied refugee status.” There is a moral dimension to the Refugee Convention. But the criminal offence or offending must be particularly serious in nature.

The offending or behaviour must be serious in nature because denying refugee status to a person and sending them into a situation of persecution is a very serious step. The meaning of “particularly serious” is debatable and state parties can to some extent decide this form themselves, but it clearly cannot apply to every single criminal offence. On the face of it, a suspended sentence indicates a level of seriousness to the offending in question but may not qualify as particularly serious. Otherwise, what words are left to us to describe offences like rape and murder?

Human rights law is different. Multiple international conventions prohibit a state party from exposing a person to torture or inhuman or degrading treatment. As the Supreme Court recently reminded us, it’s not just the European Convention on Human Rights that does this but also the Convention Against Torture, the International Covenant on Civil and Political Rights and other international law instruments. This prohibition applies no matter what the person has done.

Unlike the Refugee Convention, human rights law is universal in application, in the sense that it applies equally to all. Including serious criminals.

Why does the Refugee Convention exclude serious criminals from protection?

The drafters of the Refugee Convention, who were working in the immediate aftermath of the horrors of the Second World War, were mindful of two considerations.

Put simply, one was that they did not want Nazis and others who had committed similarly despicable acts to be able to claim asylum. They didn’t deserve it and it might help them evade justice. This was very much a live issue at the time.

The other was that they knew the legal agreement they were working on was novel. International law barely existed at the time. The refugee convention was only the second to be negotiated and agreed; the first was the genocide convention. State parties would agree to be bound by its terms and it would to some extent interfere with their previous unbridled power to expel aliens. But signing up would be a voluntary act. In order to persuade states to do so, the impingement on state sovereignty had to be as limited as possible and be morally defensible to public opinion. This is why there is no right of admission for asylum, for example. It is why there is no clear prohibition on removal to a safe third country. And it is why serious criminals are excluded from refugee status.

It’s not just the Refugee Convention. The Universal Declaration of Human Rights of 1948 states that the right of asylum ‘may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.’

There are three mechanisms built into the Refugee Convention that operate to exclude serious criminals from refugee status.

Article 1F: exclusion for committing war crimes and similar

Article 1F of the Refugee Convention prevents a person from qualifying as a refugee in the first place, usually for acts they committed outside the country of refuge.

Article 1F is often referred to as the exclusion clause, which states that the convention does not apply at all to certain individuals considered morally unworthy of protection by the drafters of the 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.

The meaning of all these terms has been considered by judges in the UK and abroad. I’m not going to summarise all the case law but key cases here include JS (Sri Lanka) v Secretary of State for the Home Department [2010] UKSC 15 and Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54. There is a useful tribunal case summarising the current position: KM (exclusion, Article 1F(a), Article 1F(b)) [2022] UKUT 125 (IAC). There’s also a Home Office policy guidance which officials follow when interpreting and applying the exclusion clauses.

The language of Article 1F is mandatory: state parties must exclude such individuals from the benefits of the convention.

Articles 32 and 33: expulsion and refoulement of recognised refugees

As well as Article 1F operating to prevent a person being recognised as a refugee in the first place, Articles 32 and 33 of the Refugee Convention permit a state party to expel a refugee in certain circumstances, even if it would mean the refugee would be persecuted.

The two articles have different purposes but in reality Article 33 is the easier for a state party to employ if they wish to expel a refugee. Article 32 offers a higher level of protection against expulsion than Article 33 but is effectively redundant, at least according to UK state practice.

Article 32 is about expulsion generally, including to a third country. It only applies to a refugee lawfully in the territory of a state party. The Supreme Court held in the case of ST Eritrea [2012] UKSC 12 that an asylum seeker is not yet lawfully present.

Article 33 has two subclauses:

1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

The first of these is the famous prohibition on refoulement, which means sending a refugee into a situation of persecution either directly or indirectly.

But the second disapplies the first in certain circumstances. It does not strip refugee status from a person or invalidate the refugee status; it says that a refugee can be refouled even though they are a refugee.

The use of the word “or” makes clear there are two alternative grounds on which protection against refoulement can be withdrawn. In both circumstances, though, the refugee has to constitute a danger to the community of the country. One is where the refugee is a danger to the security of the country, and by implication this does not require a conviction to have occurred. The other is where the refugee has been convicted but it is for a particularly serious crime.

Home Office policy sets out where it is likely to be considered that a person represents a danger to the security of the country and therefore no criminal conviction is required. This includes on national security grounds, because of their character, conduct or associations. And it also applies to those who engage in “unacceptable behaviours”, defined non-exhaustively as:

• foment, justify or glorify terrorist violence to further particular beliefs or provoke others to commit terrorist acts
• foment other serious criminal activity or seek to provoke others to such acts or foster hatred which may lead to inter-community violence
• spread, incite, promote or seek to justify hatred on grounds of disability, gender, race, religion, sexual orientation, gender identity and/or for purposes of overthrowing democracy

The UK government legislated in 2002 to interpret ‘particularly serious crime’ as any conviction leading to a sentence of imprisonment of two years or more. This was a rebuttable presumption, although in practice it was rarely rebutted. This threshold was reduced to 12 months by the Nationality and Borders Act 2022 with effect from 28 June 2022. The presumption was also made irrebuttable.

Where a person is considered to fall outside the protection of the Refugee Convention, government policy is either to remove them or, if they cannot be removed because their human rights would be breached, to grant them short periods of leave to remain.

Human rights law: no exceptions

Unlike the Refugee Convention, no exceptions can be made under human rights law. It is never acceptable to subject a person to torture or to inhuman or degrading treatment or punishment. Even if they are a very serious criminal indeed.

Not all human rights operate in the same way. The prohibition on torture is absolute and unqualified in nature. Other human rights, such as the right to a private and family life, is qualified and interferences can be justified on certain grounds.

The absolute nature of the prohibition on torture has been exhaustively litigated and two of the leading cases involved the United Kingdom. One involved a double murderer seeking to avoid extradition to the United States, where he feared the death penalty and the death row phenomenon: Soering v United Kingdom (App no 14038/88). The other involved an alleged terrorist seeking to avoid removal, in which Strasbourg held there was no room ‘for balancing the risk of ill-treatment against the reasons for expulsion’: Chahal v United Kingdom (App no 70/1995/576/662).

This absolute bar on removal leads to periodic controversy. The most famous example is probably Abu Qatada, who was eventually deported in 2013 after years of attempts by the British government. He was protected from removal by human rights laws and was only deported once sufficient safeguards were put in place to ensure his human rights were not breached after his removal. His case actually turned on the right to a fair trial, but the issue was whether evidence obtained under torture could be admitted to his trial.

Soering and Qatada are generally held out as examples of human rights law operating how one might hope. In both cases, the person concerned was eventually removed, but only after sufficient safeguards had been put in place to prevent their fundamental human rights being breached. Both were convicted and served lengthy prison sentences.

This is not going to be possible where there is no reliable partner state available and any assurances either will not be given at all or simply cannot be trusted.

This does not mean that the person concerned cannot be removed from the country. It means they cannot be removed to a country where their human rights would be breached. If some other country were willing to receive the person, they could be sent there, as long as their human rights would not be breached there. But no country is likely to volunteer to admit a particularly serious criminal who is considered a danger to the community.