COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LORD JUSTICE STANLEY BURNTON
| EN (Serbia)
|- and -
|The Secretary of State for the Home Department
|The Secretary of State for the Home Department
|- and -
|KC (South Africa)
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Tim Eicke and Alan Payne (instructed by the Treasury Solicitor) for the Secretary of State in EN (Serbia)
Tim Eicke, John-Paul Waite and Alan Payne (instructed by the Treasury Solicitor) for the Secretary of State in KC (South Africa).
Raza Hussain and Kathryn Cronin (instructed by Messrs Wesley Gryk) for KC
Hearing dates: 16, 17 and 18 March 2009
Crown Copyright ©
Lord Justice Stanley Burnton:
(a) EN's appeal against the determination of Senior Immigration Judge Batiste promulgated on 21 January 2008.
(b) The Secretary of State's appeal against the determination of the President of the Tribunal, Hodge J, and Senior Immigration Judge Jordan dated 5 February 2008 in so far as they held that KC would be at risk of persecution if he was deported to South Africa.
(c) KC's cross-appeal against that determination.
The provisions of the Refugee Convention and section 72
Article 1A: For the purposes of the present Convention, the term "refugee" shall apply to any person who:
(2) 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.
Article 1C: This Convention shall cease to apply to any person falling under the terms of section A if:
(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;..."
Article 33 – Prohibition of expulsion or return ('refoulement')
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.
72 Serious criminal
(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).
(2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is—
(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least two years.
(3) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if—
(a) he is convicted outside the United Kingdom of an offence,
(b) he is sentenced to a period of imprisonment of at least two years, and
(c) he could have been sentenced to a period of imprisonment of at least two years had his conviction been a conviction in the United Kingdom of a similar offence.
(4) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if—
(a) he is convicted of an offence specified by order of the Secretary of State, or
(b) he is convicted outside the United Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a).
(5) An order under subsection (4)—
(a) must be made by statutory instrument, and
(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.
(7) A presumption under subsection (2), (3) or (4) does not apply while an appeal against conviction or sentence—
(a) is pending, or
(b) could be brought (disregarding the possibility of appeal out of time with leave).
(8) Section 34(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (no need to consider gravity of fear or threat of persecution) applies for the purpose of considering whether a presumption mentioned in subsection (6) has been rebutted as it applies for the purpose of considering whether Article 33(2) of the Refugee Convention applies.
(9) Subsection (10) applies where—
(a) a person appeals under section 82, 83 or 101 of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground that to remove him from or to require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention, and
(b) the Secretary of State issues a certificate that presumptions under subsection (2), (3) or (4) apply to the person (subject to rebuttal).
(10) The Tribunal or Commission hearing the appeal—
(a) must begin substantive deliberation on the appeal by considering the certificate, and
(b) if in agreement that presumptions under subsection (2), (3) or (4) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a).
(11) For the purposes of this section—
(a) 'the Refugee Convention' means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and
(b) a reference to a person who is sentenced to a period of imprisonment of at least two years—
(i) does not include a reference to a person who receives a suspended sentence (unless a court subsequently orders that the sentence or any part of it is to take effect),
(ia) does not include a reference to a person who is sentenced to a period of imprisonment of at least two years only by virtue of being sentenced to consecutive sentences which amount in aggregate to more than two years,
(ii) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), and
(iii) includes a reference to a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for two years).
The insertions made by the 2007 Act are underlined.
4. Member States may revoke, end or refuse to renew the status granted to a refugee by a governmental, administrative, judicial or quasi-judicial body when:
(a) there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present;
(b) he or she, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that Member State.
5. In situations described in paragraph 4, Member States may decide not to grant status to a refugee, where such a decision has not yet been taken.
6. Persons to whom paragraphs 4 or 5 apply are entitled to rights set out in or similar to those set out in Articles 3, 4, 16, 22, 31 and 32 and 33 of the Geneva Convention in so far as they are present in the Member State.
EN: the facts in outline and the Tribunal proceedings
(a) refused EN's renewed application for permission to advance the grounds in relation to which he had been previously refused permission;
(b) rejected his grounds of appeal on the basis that:(i) EN had been convicted of a crime specified in the the 2004 Order as a particularly serious crime for the purposes of Article 33(2) of the Convention; and(ii) any error in the consideration of the issue of refoulement was immaterial given the AIT's conclusion that EN did not face a real risk of persecution on return to Serbia.
(a) S. 72 of the 2002 Act is ultra vires section 2 of the Asylum and Immigration Appeals Act 1993.
(b) The AIT erred in relation to its construction of "particularly serious crime" under section 72 of the 2002 Act because the Appellant had not been sentenced to a sentence of imprisonment of two years or more.
(c) The 2004 Order is ultra vires its enabling section "because many of the offences contained in that order are not particularly serious".
KC: the facts in outline and the Tribunal proceedings
The requirements of Article 33(2) of the Refugee Convention and of section 72: the submissions of the parties
(a) The Refugee Convention has been incorporated into English Law, albeit informally.
(b) Article 33(2) should be given a narrow construction, consistent with its being an exception to the general right of international protection created by the Convention. It lays down two conditions to be satisfied by the country of refuge: a conviction for a particularly serious offence and danger to the community.
(c) The effect of the application of section 72 is to permit the country of refuge to refoule (i.e., deport) a refugee. It does not deprive him of refugee status. If, therefore, the country of refuge is unable to deport the refugee, whether because of other international obligations or a provision of its internal law or because it is not practical to do so, his refugee status is unaffected.
(d) In the case of KC, he had a right to have his refugee status recognised, and the Tribunal had erred in failing to find that he was a refugee.
(e) The Qualification Directive is directly enforceable by the individual under English Law. It is however ultra vires because it is inconsistent with the requirements of the Convention in permitting a Member State not to grant refugee status to a person who has been convicted of a particularly serious crime and constitutes a danger to the community of that Member State. This provision, in Article 14(5) of the Directive, fails to reflect the fact that Article 33 of the Convention is concerned only with refoulement and does not affect the status of an individual as a refugee or his right to be recognised as such.
(f) Any presumption such as those in section 72(2) is incompatible with the Convention and the Directive, even if rebuttable, because it imposes a burden of proof on the individual when those instruments require it to be satisfied by the state.
(g) Any irrebuttable presumption is incompatible with both instruments since it results in a deemed satisfaction of a Convention requirement which has not in fact been satisfied.
(h) If the submission referred to at (f) is not well founded but that at (g) is well founded, and if section 72 provides for the presumption in subsection (2) as to conviction of a particularly serious crime to be irrebuttable, in order to render the section compatible it must be read down so as to permit both that presumption and that referred to in subsection (6) to be rebutted by the individual.
(i) The 2004 Order is ultra vires, because it renders crimes that cannot reasonably be regarded as particularly serious into particularly serious crimes for the purposes of deportation, and is therefore outside the statutory power conferred on the Secretary of State by subsection (4) properly construed, and also because it is incompatible with the Refugee Convention and the Qualification Directive.
(a) The Refugee Convention has not been incorporated into English Law, save to the qualified extent provided in section 2 of the Asylum and Immigration Appeals Act 1993.
(b) This Court cannot find that the Directive is ultra vires: only the European Court of Justice is competent so to find.
(c) The effective requirement for refoulement under Article 33(2) is that the individual constitutes a threat to the community. If he does not, he cannot be refouled in breach of Article 33(1) even if he has been convicted of a particularly serious crime.
(d) Furthermore, the two requirements in Article 33(2) are connected: on its proper construction, a conviction for a particularly serious crime gives rise to a presumption that the offender constitutes a danger to the community.
(e) Presumptions such as those in section 72 are compatible with both the Convention and the Directive, which say nothing about the procedure for establishing whether their requirements are satisfied in any particular case.
(f) In these circumstances, section 72 is compatible with both the Convention and the Directive. The individual is sufficiently protected by the fact that the presumption normally arising from his conviction is expressly made rebuttable.
(g) She accepted, for the purposes of these appeals, that the relevant provisions of the Qualification Directive are directly effective, and that section 72 is therefore to be interpreted in conformity with the interpretative obligation described in judgments of the European Court of Justice, and in particular Case C-106/89 Marleasing  ECR I-4135. It was however unnecessary to have recourse to this principle, since the natural and ordinary meaning of section 72 is compatible with the Directive.
(h) Section 72 does not limit the jurisdiction of the Tribunal to find that a person is a refugee.
(i) However, neither the Convention nor the Directive confers a right on an individual to have his refugee status recognised if the conditions for his refoulement under Article 33(2) of the former and Article 14.4(b) of the latter are satisfied.
The requirements of Article 33(2) of the Refugee Convention and of section 72: the issues
(a) What are the requirements of Article 33(2) apart from those imposed by section 72?
(b) What are the requirements of the Directive and the Regulations?
(c) Can this Court consider whether the Directive is ultra vires?
(d) Are presumptions such as those imposed by section 72(2) compatible with (i) the Refugee Convention and (ii) the Qualification Directive?
(e) Has the Refugee Convention been incorporated into English Law?
(f) Interpretation: on the true construction of section 72, leaving aside the application of the Marleasing principle, is the only presumption that is rebuttable the second presumption in section 72(2), namely that the person constitutes a danger to the community of the United Kingdom, or is the presumption that he has committed a particularly serious offence also rebuttable?
(g) Is the Marleasing principle applicable to section 72, and if so what is the proper construction of the section?
(h) Is section 72, properly construed, compatible with (i) the Refugee Convention and (ii) the Qualification Directive?
(i) Is the 2004 Order ultra vires in whole or in part?
The requirements of Article 33(2) of the Refugee Convention: discussion
186. This double qualification – particularly and serious – is consistent with the restrictive scope of the exception and emphasises that refoulement may be contemplated pursuant to this provision only in the most exceptional of circumstances …'
191 … Regarding the word "danger", as with the national security exception, this must be construed to mean very serious danger. This requirement is not met simply by reason of the fact that the person concerned has been convicted of a particularly serious crime. An additional assessment is called for which will hinge on an appreciation of issues of fact such as the nature and circumstances of the particularly serious crime for which the individual was convicted, when the crime in question was committed, evidence of recidivism or likely recidivism, etc.
… the Refugee Convention accepts that in extreme and genuinely exceptional cases, the usual considerations of humanity must yield to the critical security interests of the receiving state. Thus, if the demanding criteria of Art. 33(2) are satisfied, an asylum state may, assuming there is no other option, remove a refugee convicted of a particularly serious crime who poses a danger to the host community's safety – even if the only option is to send the refugee to his or her country of origin.
In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept.
85 It is one thing to invite this House to construe the Convention as a living instrument generously and in the light of its underlying humanitarian purposes; quite another to urge your Lordships effectively to rewrite it so as to create a fresh entitlement to refugee status based upon no more than historic fear and present compelling reasons for non-return, with no need at all for any current fear of persecution. That would be to distort entirely the language and structure of the text and in my judgment do a serious disservice to the cause of human rights generally.
Has the Refugee Convention been incorporated into English Law?
The United Kingdom having acceded to the Convention and Protocol, their provisions have for all practical purposes been incorporated into United Kingdom law. Rules 16, 73 and 165 of the Statement of Changes in Immigration Rules (1983) (H.C. 169) (made under section 3(2) of the Immigration Act 1971) provide:
"16. Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmd. 9171 and Cmnd. 3906). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments...."
In this Act-
"the 1971 Act" means the Immigration Act 1971;
"claim for asylum" means a claim made a by a person (whether before or after the coming into force of this section) that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave, the United Kingdom; and
"the Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol of that Convention.
2. Primacy of Convention
Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.
 Under rule 16 of the Statement of Changes in Immigration Rules (1983)(HC 169) it was formerly provided:
"Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmd 9171 and Cmnd 3906). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments …"
Despite this somewhat informal mode of incorporation Lord Keith of Kinkel, in R v Secretary of State for the Home Department, Ex p Sivakumaran  AC 958, 990, observed that the provisions of the Convention and Protocol had for all practical purposes been incorporated into United Kingdom law. But in 1993 steps were taken to strengthen the mode of incorporation by providing in primary legislation, in section 2 of the Asylum and Immigration Appeals Act 1993, headed "Primacy of Convention", that "Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention" [defined to mean the 1951 Convention and the Protocol]. Plainly the Rules cannot provide for asylum applications to be handled less favourably to the applicant than the Convention requires.
40. …. In R v Secretary of State for the Home Department, Ex p Singh The Times, 8 June, 1987, the Divisional Court held that the Refugee Convention had "indirectly" been incorporated under English law. Later in the same year in R v Secretary of State for the Home Department, Ex p Sivakumaran  AC 958, 990 Lord Keith of Kinkel observed that "The United Kingdom having acceded to the Convention and Protocol, their provisions have for all practical purposes been incorporated into United Kingdom law." Lord Bridge of Harwich, Lord Templeman and Lord Griffiths agreed with the opinion of Lord Keith. The difficulty is, however, that Immigration Rules are not law but merely instructions to immigration officers. By themselves they cannot effect an incorporation.
41 Against this background, Parliament decided to make reference to the Refugee Convention in primary legislation. Parliament was informed that the new provision was to be "an additional safeguard": Hansard, Standing Committee A, 19 November 1992, col 151. Section 2 of the Asylum and Immigration Appeals Act 1993 provides: "Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention." It is necessarily implicit in section 2 that no administrative practice or procedure may be adopted which would be contrary to the Convention. After all, it would be bizarre to provide that formal immigration rules must be consistent with the Convention but that informally adopted practices need not be consistent with the Convention. The reach of section 2 of the 1993 Act is therefore comprehensive.
42 Parliament must be taken to have been aware, in enacting the 1993 Act, that the courts had treated references in the immigration rules to the Refugee Convention as "indirectly" or "for practical purposes" incorporating it into domestic law: Bennion , Statutory Interpretation , 4th ed (2002), p 469. In the context of the decisions of the Court of Appeal and House of Lords in 1987 Parliament must have intended that the strengthened reference to the Refugee Convention in primary legislation would be treated by the courts as an incorporation of the Refugee Convention into domestic law. Moreover, the heading of section 2 is "Primacy of the Convention". This is a relevant and significant pointer to the overriding effect of the Convention in English law: R v Montila  1 WLR 3141, paras 31-37, per Lord Hope of Craighead. It is true, of course, that a convention may be incorporated more formally by scheduling it to an enactment, e g the Carriage of Goods by Sea Act 1971 which enacted the Hague-Visby Rules. But there is no rule specifying the precise legislative method of incorporation. It is also possible to incorporate a treaty in part, e.g. the European Convention on Human Rights was incorporated into our law without article 13: see Human Rights Act 1998. In my view it is clear that the Refugee Convention has been incorporated into our domestic law.
29. The appellant sought to address this disparity by submitting that the Convention had been incorporated into our domestic law. Reliance was placed on observations of Lord Keith of Kinkel in R v Secretary of State for the Home Department, Ex p Sivakumaran  AC 958, 990g ; Lord Steyn in R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Comr for Refugees Intervening)  2 AC 1, paras 40-42; section 2 of the Asylum and Immigration Appeals Act 1993; and rule 328 of Statement of Changes in Immigration Rules (1994) (HC 395). It is plain from these authorities that the British regime for handling applications for asylum has been closely assimilated to the Convention model. But it is also plain (as I think) that the Convention as a whole has never been formally incorporated or given effect in domestic law. While, therefore, one would expect any government intending to legislate inconsistently with an obligation binding on the United Kingdom to make its intention very clear, there can on well known authority be no ground in domestic law for failing to give effect to an enactment in terms unambiguously inconsistent with such an obligation.
Lord Hope of Craighead agreed with Lord Bingham. He added:
69. … The giving effect in domestic law to international obligations is primarily a matter for the legislature. It is for Parliament to determine the extent to which those obligations are to be incorporated domestically. That determination having been made, it is the duty of the courts to give effect to it.
Lord Carswell agreed with both Lord Bingham and Lord Hope.
The status of the Qualification Directive
63. The Council, acting in accordance with the procedure referred to in Article 67, shall … adopt:
1. measures on asylum in accordance with the Geneva Convention ….
It follows, it is submitted, that if and to the extent that the Directive is not "in accordance with the Geneva Convention" it is outwith the power conferred by Article 63.
27. It is settled case-law that national courts do not have the power to declare acts of the Community institutions invalid. The main purpose of the jurisdiction conferred on the Court by Article 234 EC is to ensure that Community law is applied uniformly by national courts. That requirement of uniformity is particularly vital where the validity of a Community act is in question. Differences between courts of the Member States as to the validity of Community acts would be liable to jeopardise the very unity of the Community legal order and undermine the fundamental requirement of legal certainty (Case 314/85 Foto-Frost  ECR 4199, paragraph 15; Case C-27/95 Bakers of Nailsea  ECR I-1847, paragraph 20; and Case C-461/03 Gaston Schul Douane-expediteur  ECR I-0000, paragraph 21). The Court of Justice alone therefore has jurisdiction to declare a Community act invalid (Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest  ECR I-415, paragraph 17, and Case C-6/99 Greenpeace France and Others  ECR I-1651, paragraph 54).
28 Article 234 EC does not constitute a means of redress available to the parties to a case pending before a national court and therefore the mere fact that a party contends that the dispute gives rise to a question concerning the validity of Community law does not mean that the court concerned is compelled to consider that a question has been raised within the meaning of Article 234 EC (see, to this effect, Case 283/81 Cilfit  ECR 3415, paragraph 9). Accordingly, the fact that the validity of a Community act is contested before a national court is not in itself sufficient to warrant referral of a question to the Court for a preliminary ruling.
29 The Court has held that courts against whose decisions there is a judicial remedy under national law may examine the validity of a Community act and, if they consider that the arguments put forward before them by the parties in support of invalidity are unfounded, they may reject them, concluding that the act is completely valid. In so doing, they are not calling into question the existence of the Community act (Foto-Frost, paragraph 14).
30 On the other hand, where such a court considers that one or more arguments for invalidity, put forward by the parties or, as the case may be, raised by it of its own motion (see, to this effect, Case 126/80 Salonia  ECR 1563, paragraph 7), are well founded, it is incumbent upon it to stay proceedings and to make a reference to the Court for a preliminary ruling on the act's validity.
Article 234 shall apply to this title under the following circumstances and conditions: where a question on the interpretation of this title or on the validity or interpretation of acts of the institutions of the Community based on this title is raised in a case pending before a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, if it considers that a decision on the question is necessary to enable it to give judgement, request the Court of Justice to give a ruling thereon.
There is a judicial remedy under national law against the decisions of this court, namely by way of appeal to the House of Lords. In these circumstances, it seems to me that this Court must apply the Directive without regard to the contention that it is ultra vires.
Are presumptions such as those imposed by section 72(2) compatible with (i) the Refugee Convention and (ii) the Qualification Directive?
The interpretation of section 72
Mr Gill and Miss Rothwell [counsel for the Respondent individual] accept that the presumptions in section 72(2), (3) and (4) as to what convictions are of "particularly serious" crimes are irrebuttable. This is, I assume, because subsection (6) provides only that the presumption of dangerousness in those subsections is rebuttable, and, to use the Latin maxim, expressio unius est exclusion alterius. I have assumed that this is correct, notwithstanding that the words in parentheses in subsection (9)(b) are unqualified.
… In 1950 there was a convention between many of the European countries. … I think we are entitled to look at it, because it is an instrument which is binding in international law: and we ought always to interpret our statutes so as to be in conformity with international law. Our statute does not in terms incorporate the convention, nor refer to it. But that does not matter. …
Diplock LJ said, at 143:
… The Convention [on the Valuation of Goods for Customs Purposes of December 15, 1950] is one of those public acts of state of Her Majesty's Government of which Her Majesty's judges must take judicial notice if it be relevant to the determination of a case before them, if necessary informing themselves of such acts by inquiry of the appropriate department of Her Majesty's Government. Where, by a treaty, Her Majesty's Government undertakes either to introduce domestic legislation to achieve a specified result in the United Kingdom or to secure a specified result which can only be achieved by legislation, the treaty, since in English law it is not self-operating, remains irrelevant to any issue in the English courts until Her Majesty's Government has taken steps by way of legislation to fulfil its treaty obligations. Once the Government has legislated, which it may do in anticipation of the coming into effect of the treaty, as it did in this case, the court must in the first instance construe the legislation, for that is what the court has to apply. If the terms of the legislation are clear and unambiguous, they must be given effect to, whether or not they carry out Her Majesty's treaty obligations, for the sovereign power of the Queen in Parliament extends to breaking treaties (see Ellerman Lines v. Murray; White Star Line and U.S. Mail Steamers Oceanic Steam Navigation Co. Ltd. v. Comerford  A.C. 126; sub nom. The Croxteth Hall; The Celtic, 47 T.L.R. 147, H.L.(E.) , and any remedy for such a breach of an international obligation lies in a forum other than Her Majesty's own courts. But if the terms of the legislation are not clear but are reasonably capable of more than one meaning, the treaty itself becomes relevant, for there is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred. Thus, in case of lack of clarity in the words used in the legislation, the terms of the treaty are relevant to enable the court to make its choice between the possible meanings of these words by applying this presumption.
… there is a presumption that the Crown did not intend to break an international treaty (see Salomon v. Commissioners of Customs and Excise), and if there is any ambiguity in the Order in Council, it should be resolved so as to accord with the provisions of the Convention in so far as that is a plausible meaning of the express words of the order. …
…, it should be observed that, as the Court pointed out in its judgment in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen  ECR 1891, paragraph 26, the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.
The italics are mine.
Many parts of the Directive do not require implementation as consistent provision is already made in existing domestic legislation.
If section 72 is not construed compatibly with the Directive, this country would be in breach of its obligation to implement it; if it is applied consistently with the Directive, no question of a breach arises. Hence, the Marleasing principle must be applied.
A person may rebut the presumption that they have committed a particularly serious crime and are a danger to the community.
We were told that this was an error, corrected by the Minister during the course of the Parliamentary proceedings on the Bill.
The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004
92. Were it not for the decision in Foster and another decision of the House to which we were referred, Boddington v British Transport Police  2 AC 143, we would have no hesitation in rejecting Mr Draycott's submissions and accepting those of Mr Patel to the effect that the Tribunal has no power to disregard a statutory instrument such as the 2004 Order because it considers it to be ultra vires. The Tribunal only has statutory jurisdiction (so far as relevant for these purposes) to determine whether an immigration decision is "not in accordance with the law" (s.84(1)(e) and s.86(3)(b)). That "law" includes any statutory instrument unless and until it is held to be invalid by the High Court. The legal 'metewand' by which the Tribunal determines the legality of the 'immigration decision' is that "law". A challenge that entails the argument that the "law" itself is unlawful is a more deep-rooted and fundamental challenge going beyond the legality of the 'immigration decision' itself. It is not one which we consider to be contemplated by the 2002 Act. It is properly the domain of judicial review. It is true that in AA and others  UKAIT 00003 the Tribunal took the view that the ground of appeal in s.84(1)(e) permitted challenges based upon public law principles, for example of fairness and legitimate expectation (see especially at ). That, however, was intended as a general statement of the scope of the statutory ground: it did not purport to deal with the issue in this appeal. The Tribunal was not concerned with the vires of a statutory instrument or of an immigration rule. Indeed, at para  the Tribunal specifically noted that such challenges fell exclusively within the jurisdiction of the Administrative Court (or Court of Session). That is also, in our view, a complete answer to Mr Draycott's reliance upon the dicta in E v SSHD  2 WLR 1351 where the Court of Appeal stated that the grounds of challenge in a case on appeal on a point of law were the same as those available on judicial review. The Court simply did not have in mind the issue raised here.
112. … it is difficult to avoid the conclusion as a result of Foster that if a decision-maker (or lower tribunal) in the social security context errs in law by applying "law" derived from an ultra vires statutory instrument, so too, it would seem, the decision-maker acts "not in accordance with the law" in applying ultra vires "law" in the immigration or asylum context. We recognise the significance of this if correct. It would not, however, be our view unless we were driven to reach it by Foster. For the reasons we are about to develop, it is not necessary for us to reach any concluded view in this appeal on the impact of Foster to the AIT's jurisdiction because we have concluded that the 2004 Order is not in fact ultra vires the enabling power in s.72 of the 2002 Act.
The Tribunal's decision in IH
The consequences of these conclusions for the appeal of EN
(a) Should his refugee status be revoked under Article 1.C (5) of the Convention and the materially identically worded Article 11.1(e) of the Directive?
(b) If so, subject to (d), is his deportation in the public interest?
(c) If his refugee status has not been revoked, are the requirements of Article 33(2) of the Convention and Article 14.4 of the Directive satisfied?
(d) If the answers to (a) and (b), or those to (b) and (c) are affirmative, will his deportation infringe his rights under the European Convention on Human Rights, and in particular Articles 2, 3 and 8?
Revocation or refusal to renew a grant of asylum
339A. A person's grant of asylum under paragraph 334 will be revoked or not renewed if the Secretary of State is satisfied that:
(v) he can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of nationality;
(ix) there are reasonable grounds for regarding him as a danger to the security of the United Kingdom; or
(x) having been convicted by a final judgment of a particularly serious crime he constitutes danger to the community of the United Kingdom.
In considering (v) and (vi), the Secretary of State shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be regarded as well-founded.
Where an application for asylum was made on or after the 21st October 2004, the Secretary of State will revoke or refuse to renew a person's grant of asylum where he is satisfied that at least one of the provisions in sub-paragraph (i)-(vi) apply.
339B. When a person's grant of asylum is revoked or not renewed any limited leave which they have may be curtailed.
339BA. Where the Secretary of State is considering revoking refugee status in accordance with these Rules, the person concerned shall be informed in writing that the Secretary of State is reconsidering his qualification for refugee status and the reasons for the reconsideration. That person shall be given the opportunity to submit, in a personal interview or in a written statement, reasons as to why his refugee status should not be revoked. If there is a personal interview, it shall be subject to the safeguards set out in these Rules.
135. "Circumstances" refer to fundamental changes in the country, which can be assumed to remove the basis of the fear of persecution. A mere -- possibly transitory -- change in the facts surrounding the individual refugee's fear, which does not entail such major changes of circumstances, is not sufficient to make this clause applicable. A refugee's status should not in principle be subject to frequent review to the detriment of his sense of security, which international protection is intended to provide.
The third flaw in Mr. Ali's submission arises under article 33 in itself and upon the unchallenged findings of fact by the Tribunal in this case. Article 33 (1) provides that no contracting states shall refoule 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. The findings of the Tribunal were that the circumstances in Serbia have changed dramatically for the better since the Appellant was granted indefinite leave to remain, and he would not now be at real risk on return. It follows therefore that his life and freedom will not be threatened for a Convention reason on return to his home country.
However, the point of Article 33 is that a state may refoule a refugee if its requirements are satisfied even though he will be the subject of persecution on return. If its requirements are satisfied, it is the European Convention on Human Rights that precludes refoulement if there is a risk of ill treatment on return.
KC: the Secretary of State's appeal
(iv) The presence in South Africa of those who would benefit from the appellant's continued silence, including those involved in the kidnapping and assault of Stompie Moeketsi who were never questioned, arrested or prosecuted and might be apprehensive that, in the process of securing indemnity for himself, the appellant would implicate them ….
(vi) The fact that the purpose of the appellant's abduction was not only to prevent the appellant testifying against Mrs Mandela but others as well.
That in the event of threats, there is likely to be inadequate protection, [paragraphs 20 and 27].
20. Mr Pigou (a witness called by KC who had been an investigator for the Truth and Reconciliation Commission in South Africa) also points out that neither Mrs Mandela nor other members of the Football Club have been questioned or charged about other credible allegations of misconduct including the kidnapping and the disappearance of Lolo Sono and Sibusio Tshabalala. He accepts that the South African authorities might try to afford some protection to the appellant if he were threatened or intimidated. He advocates, however, a sense of realism: whatever witness protection program currently exists, he considers that it is likely to be very limited.
27. (Mr Bridgland, a witness called by KC who had been involved with him for a considerable time and written a book about him) also points out that the appellant was given special police protection for the period of his return to South Africa in recognition of the risk that he faced of attack. He was provided with a safe house to ensure his safety and quickly taken out of the country after he had given his evidence. It is his view that the appellant would not enjoy such protection as a deportee from Britain. Mrs Mandela, despite the implication of her involvement in serious crime, still has strong supporters and a considerable residual sympathy: "she remains a reduced but still powerful and influential player." On his return, it is Mr. Bridgland's view that the appellant would have no safe haven from which he could escape attention.
To sum up therefore … the obligation to afford refugee status arises only if the person's own state is unable or unwilling to discharge its own duty to protect its own nationals."
A question arises, and it has been canvassed in some detail in the oral and written submissions before us, as to the level of protection which is to be expected of the home state. This was identified by the applicant as the third of three issues which he set out in his case. Priority was however given to it in the useful written submission which was provided on behalf of the Refugee Legal Centre, who regarded it as the principal issue in the appeal. I do not believe that any complete or comprehensive exposition can be devised which would precisely and comprehensively define the relevant level of protection. The use of words like "sufficiency" or "effectiveness", both of which may be seen as relative, does not provide a precise solution. Certainly no one would be entitled to an absolutely guaranteed immunity. That would be beyond any realistic practical expectation. Moreover it is relevant to note that in Osman v United Kingdom (1998) 29 EHRR 245 the European Court of Human Rights recognised that account should be taken of the operational responsibilities and the constraints on the provision of police protection and accordingly the obligation to protect must not be so interpreted as to impose an impossible or disproportionate burden upon the authorities. At the least, as is noted in condition (iii) in rule 334 which I have quoted earlier, the person must be able to show that if he is not granted asylum he would be required to go to a country where his life and freedom would be threatened. There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case.
It seems to me that the formulation presented by Stuart-Smith LJ in the Court of Appeal may well serve as a useful description of what is intended, where he said  INLR 15, 26, para 22:
"In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders."
And in relation to the matter of unwillingness he pointed out that inefficiency and incompetence is not the same as unwillingness, that there may be various sound reasons why criminals may not be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the state is unwilling to afford protection. "It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy." The formulation does not claim to be exhaustive or comprehensive, but it seems to me to give helpful guidance.
115. … It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.
116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.
In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person (see paragraph 115 above), it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life (see paragraph 107 above). Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2 (see, mutatis mutandis, the above-mentioned McCann and Others judgment, p. 45, § 146). For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.
The italics are mine.
72. … we are satisfied that the Tribunal was correct in applying the presumption that this was a serious crime.
Clearly, the Tribunal whose determination was under appeal had correctly applied the presumption arising from KC's conviction that had resulted in a sentence of three years' imprisonment, although the presumption is of a conviction for a crime that is particularly serious. On appeal the Tribunal did not in the section of the determination dealing with the Secretary of State's certificate under section 72 give consideration to the issue whether KC was a danger to the community. However, at , when considering whether he was excluded from humanitarian protection under paragraph 339D of the Immigration Rules, the Tribunal found that without applying a presumption his offending established such a danger.
Lord Justice Hooper
Lord Justice Laws:
"In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure."
"the Convention does not have the force of statute under our law. I reject the Appellants' submission that the Convention has been informally incorporated. It has not. Indeed, I doubt that there can be such a thing as informal incorporation."
So, with great respect, do I. A treaty may only be incorporated into the domestic law of the United Kingdom by legislation, and therefore expressly. It is important to remember that under our Constitution, subject to certain arcane exceptions, the Executive is not a source of law save as the maker of subordinate legislation which, however, must be authorised by Act of Parliament. Since treaties are entered into by the Executive, there must be a distinct legislative act if any such measure is to take its place in the body of English law. This is particularly important where the treaty's provisions are sought to be relied on as conferring rights in our courts. The source of the domestic law relied on must be clear.