UKSC 12
On appeal from:  EWCA Civ 643
R (on the application of ST (Eritrea)) (FC) (Appellant) v Secretary of State for the Home Department (Respondent)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
21 March 2012
Heard on 13 and 14 February 2012
Richard Drabble QC
(Instructed by Duncan Lewis Solicitors)
Lisa Giovannetti QC
(Instructed by Treasury Solicitors)
LORD HOPE (with whom Lady Hale, Lord Brown, Lord Mance, Lord Kerr and Lord Clarke agree)
"The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order."
This provision is to be contrasted with article 33(1), which provides:
"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."
Every refugee has the protection of article 33. The protection of article 32 is more generous. Its effect is that, once a refugee has been admitted or his presence has been legalised and so long as entitlement to refugee status continues, he is entitled to stay indefinitely in the receiving state. He can only forfeit that right by becoming a risk to national security or by disturbing the public order. But he requires to have been afforded a certain degree of attachment to the receiving state before this privilege becomes available.
"I am satisfied that a determination of the 'refugee' status of the claimant in accordance with article 1 of the Refugee Convention was made by an appropriate tribunal, the AIT. The decision is binding upon the defendant and affords the claimant the protection of article 32(1). Accordingly I grant the relief sought by the claimant."
In reaching this decision the deputy judge applied the following observation of Lord Brown of Eaton-under-Heywood in Szoma v Secretary of State for Work and Pensions  UKHL 64,  1 AC 564, para 24:
"The term 'refugee' in article 32(1) of the Refugee Convention can only mean someone already determined to have satisfied the article 1 definition of that term (as for example in article 23 although in contrast to its meaning in article 33). Were it otherwise there would be no question of removing asylum seekers to safe third countries and a number of international treaties, such as the two Dublin Conventions (for determining the EU state responsible for examining applications lodged in one member state) would be unworkable."
As she saw it, therefore, the effect of the tribunal's determination that the appellant was a refugee of itself meant that she had a right to stay in this country under article 32.
"that article 32 applies only to a refugee who has been granted leave to enter and to stay in the United Kingdom. I would reject the contention that temporary admission or leave to enter for the purpose of the determination of a claim for asylum (or any other ground for claiming a right to stay) renders a stay lawful for the purpose of article 32. The purpose of article 32 is to give security of residence to a refugee who has been given the right to live in the contracting state in question."
He declined to apply Lord Brown's statement in Szoma v Secretary of State for Work and Pensions. In para 45 he acknowledged that the decision in that case was binding authority of the meaning of "lawfully present in the United Kingdom" in paragraph 4 of Part 1 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (SI 2000/636), which was the provision under consideration in that case. But he said that it was clear that Lord Brown was not deciding any question of removability under the 1971 Act. He also held that the appeal that was determined by the tribunal was not a status appeal under section 83 of the Nationality, Immigration and Asylum Act 2002, but an appeal against an immigration decision under section 82 of that Act. So it could not have the effect of a direction to the Secretary of State to grant asylum: para 58.
The legislative provisions
"A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to this Act."
In R v Secretary of State for the Home Department, Ex p Bugdaycay  AC 514, the House of Lords applied that provision to the case of Mr Musisi, an asylum seeker of Ugandan nationality who had come to this country from Kenya and had been refused leave to enter the United Kingdom. It held that, even if he were properly to be treated as a refugee from Uganda, this would not present an obstacle to his return to Kenya. The argument that he was protected by article 32 because his status as a refugee meant that he was "lawfully in" the territory was rejected. Lord Bridge of Harwich said at p 526:
"The United Kingdom was already a party to the Convention when the Act was passed and it would, to my mind, be very surprising if it had the effect contended for. But I am satisfied that the deeming provision enacted by section 11(1) makes Mr Collins's submission on this point quite untenable."
"A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter."
Paragraphs 21(1) and (2) provide (as amended by section 10 of and paragraph 10 of the Schedule to the Immigration Act 1988):
"(1) A person liable to detention or detained under paragraph 16 … above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him.
(2) So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer."
"(a) refusal of leave to enter the United Kingdom, (b) refusal of entry clearance… (g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) … or (c) of the Immigration and Asylum Act 1999 (c 33) (removal of person unlawfully in United Kingdom)…"
"a claim made by a person that to remove the person from or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention."
"An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and
(ii) he is a refugee, as defined by the [Refugee] Convention and Protocol; and
(iii) refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group."
"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention."
The Refugee Convention
"as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
a. subject to the contracting state's jurisdiction (articles 3, 5, 7(1), 7(3), and (4), 9, 12, 16(1) and (3), 17(3), 20, 22, 24(3) and (4), 29, 30, 33 and 34);
b. physical presence ["sur leur territoire"] (articles 4, 27 and 28(1));
c. lawful presence ["se trouvant régulièrement sur leur territoire] (articles 18, 26 and 32);
d. lawful stay ["résidant régulièrement sur leur territoire "] (articles 7(2), 10, 15, 17, 19, 21, 23, 24(1)-(3), 25 and 28); and
e. habitual residence ["où il à sa résidence habituelle"] (articles 14 and 16(2)).
"1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary."
"The Contracting States shall accord to a refugee lawfully in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies."
Article 26, which is headed "freedom of movement", provides:
"Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances."
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."
This approach, he said, should lead one to conclude that article 32 had a broader purpose than a study of its language, if taken on its own, might suggest. Its purpose was to ensure that a refugee who had been admitted to the appeal process of a contracting state, and had been found to be a refugee by the operation of that process, was not removed to a country that could not provide the full panoply of rights to which a refugee was entitled under the Convention.
"Lawfully in their territory"
"The high contracting parties
Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,
Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms,
Considering that it is desirable to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and protection accorded by such instruments by means of a new agreement,
Considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognised the international scope and nature cannot therefore be achieved without international co-operation,
Expressing the wish that all states, recognising the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between states,
Noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international convention, providing for the protection of refugees, and recognising that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of states with the High Commissioner…"
Support for this approach is to be found in article 31(1) of the Vienna Convention on the Law of Treaties to which Mr Drabble referred: see para 25, above. Reflecting principles of customary international law, it requires a treaty to be interpreted in the light of its object and purpose. So it must be interpreted as an international instrument, not a domestic statute. It should not be given a narrow or restricted interpretation.
"Neither under international nor English municipal law does a fugitive have any direct right to insist on being received by a country of refuge. Subject only to qualifications created by statute this country is entirely free to decide, as a matter of executive discretion, what foreigners it allows to remain within its boundaries."
There is no indication in the travaux préparatoires that the other states who were party to the framing of the Convention were minded to surrender control over those seeking entry to their territory. On the contrary, Nehemiah Robinson's analysis of the Commentary on the 1951 Convention and the most important documents which had a bearing on its interpretation, Convention relating to the Status of Refugees, its History, Contents and Interpretation (New York, 1953), pp 110-111, led him firmly to the contrary conclusion:
"'Lawfully in the country' was understood to refer to refugees either lawfully admitted or whose illegal entry was legalized but not to refugees who, although legally admitted or legalized, have overstayed the period for which they were admitted or were authorised to stay or who have violated any other condition attached to their admission or stay."
Referring to this passage, the UNHCR states in "Lawfully Staying – A Note on Interpretation" (1988) that its conclusion from the travaux is that the "lawfulness" of the stay is to be judged against national rules and regulations governing such a stay: para 8.
"Lawful presence must be defined by the sending state in good faith and in accordance with the requirements of international law. Lawful presence is in any event established not later than such time as a decision is reached on the admissibility of the protection claim."
This passage shows, as do Professor Hathaway's own writings, that some of the current thinking on the subject has developed substantially from that which appears to have been the guiding force when the wording of the Convention were under discussion over 60 years ago. But I agree with Lord Dyson that there is no consensus among the commentators that lawful presence should be given an autonomous meaning or what that meaning should be: para 63, below. So we must take our guidance from what the framers of the Convention must be taken to have agreed to, as understood by the UNCHR. The problem to which its note was addressed was that created by the practice of some states simply to tolerate a stay for long periods without regularising the status of the refugee. The UNHCR recommended that a judgment as to lawfulness should take into account all the prevailing circumstances, including the fact that the stay in question is known and not prohibited – tolerated, in other words – because of the precarious circumstances of the person: para 23. That is not the point that needs to be considered here. The national rules and regulations are being applied in this case, and it is clear that the appellant has not yet been given leave to enter or to remain in the United Kingdom. She is still liable to be detained and, in the words of section 11(1) of the 1971 Act, she is deemed not to have entered this country.
"The prohibition of the expulsion of refugees lawfully in the country means in substance that, once a refugee has been admitted or legalized, he is entitled to stay there indefinitely and can forfeit this right only by becoming a national security risk or by disturbing public order and having these grounds established in accordance with the procedure prescribed in para 2."
So one should be cautious about saying that, just because in practice the appellant is not at risk of removal for the time being, she is here "lawfully" within the meaning of that article.
"Illegal entrants who are temporarily admitted rather than detained may thus be lawfully present here in the restricted sense material to the decision in Szoma's case, but they remain without an entitlement to be here."
The "panoply of rights" argument
"If a State party extradites a person within its jurisdiction in such circumstances that as a result there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant."
This proposition may be applied equally to the responsibility that attaches to States parties under the Refugee Convention, as Catherine Phuong, "The concept of 'effective protection' in the context of irregular secondary movements and protection in regions of origin", Global Migration Perspectives No 26, April 2005, has suggested. At p 9 of her paper, having acknowledged her debt to Professor Hathaway for this thought in footnote 38, she states:
"It would surely defeat the purpose of the Convention if a state avoided its duties by merely transferring a refugee to another jurisdiction without ensuring that the receiving state protects the rights acquired by the refugee in the sending state. Refugees ought not to be deprived of the protection of their rights as defined in the 1951 Refugee Convention by virtue of the fact that another state has assumed responsibility for their protection."
"What [the Convention] seeks to achieve is the preservation of those rights and freedoms for individuals where they are denied them in their own state. Another state is to provide a surrogate protection where protection is not available in the home state. The Convention assumes that every state has the obligation to protect its own nationals. But it recognises that circumstances may occur where that protection may be inadequate. The purpose of the Convention is to secure that a refugee may in the surrogate state enjoy the rights and freedoms to which all are entitled without discrimination and which he cannot enjoy in his own state."
I am inclined to think, with respect, that the proposition in the last sentence of this passage was perhaps too widely expressed. In my own speech, at p 495, I said that the purpose of the Convention was to afford protection and fair treatment for those for whom neither is available in the home country and that, if the principle of surrogacy was applied, the criterion must be whether the alleged lack of protection in the home state was such as to indicate that it was unable or unwilling to discharge its duty to establish and maintain a system for the protection against persecution of its own nationals. Also, the issue in that case was very different from that which we are being asked to consider here. The allegation was that the applicant was at risk of violence at the hand of non-state agents whose actions the home state was unable or unwilling to control. The question whether, leaving that problem aside, the home state was in a position to provide the full panoply of rights under the Convention was not in issue.
"Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking asylum will be treated in accordance with the following principles in the third country concerned:
(a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;
(b) the principle of non-refoulement in accordance with the Geneva Convention is respected;
(c) the prohibition of removal in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law is respected; and
(d) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention."
The meaning of "lawfully in their territory" in article 32(1)
"As a starting point, the logic of deference to national legal understandings of lawful presence is clearly sensible. Not only is it correct that there is no uniform and comprehensive international standard by reference to which lawful presence can be determined but, as the debates cited above regarding temporary admission confirm, the drafters did generally intend for the third level of attachment to be determined by reference to national standards. Yet there is no indication that this deference was intended to be absolute, a proposition which—if carried to its logical conclusion—could result in refugees never being in a position to secure more than rights defined by the first two of the five levels of attachment agreed to by state parties……
Interpretation of the notion of 'lawful presence' should therefore look primarily to domestic legal requirements, interpreted in the light of the small number of international legal understandings on point, in particular those reached by the drafters of the Refugee Convention. Deference to domestic law cannot therefore be absolute. At a minimum, the domestic meaning of lawful presence should not be adopted for refugee law purposes where to do so would be at odds with the normative requirements of the Refugee Convention."
"The second consideration is that the Convention is directed to a very important but very simple and very practical end, preventing the return of applicants to places where they will or may suffer persecution. Legal niceties and refinements should not be allowed to obstruct that purpose. It can never, save in extreme circumstances, be appropriate to compare an applicant's living conditions in different countries if, in each of them, he will be safe from persecution or the risk of it."
Termination of temporary admission