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A Critical Examination of theExclusionary Clauses of Article
1 of the 1951 ConventionRelating to the Status of
Refugees with special referenceto the law and policy of the
United Kingdom.
International Protection ofRefugees5/12/2014
By Anthony Joseph O. Onoh
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. Introduction
Refugees are people who, “owing to well-founded fear of being
persecuted”1 for specified reasons, seek international
protection outside their country of “nationality”2 due to lack
of guarantees for such protection in their country of origin.
It is a “declaratory”3 status recognized in the 1951 Refugee
Convention that appears as “the fundamental instrument that
regulates refugee protection [of which] its relevance”4 is
contentious in light of divergent State applications.
Generally, the 1951 Convention on Refugee Protection5 and its
Protocol of 1967 establish procedural stages for determining
individual claims to refugee status.6 Hence the scholarly view
that “whilst someone is applying for this protection, they are
1 See Article 1A(2) of the 1951 Convention Relating to the Status of Refugees,under Resolution 2198 (XXI) adopted by the United Nations General Assembly,available at: http://www.unhcr.org/3b66c2aa10.html, accessed on 25/04/2014. 2 ibid. 3 G. Clayton (2012) Textbook on Immigration and Asylum Law. New York: OxfordUniversity Press, p. 403: refugee status is declaratory”. 4 G. S. Goodwin-Gill (2001) “Editorial: Asylum 2001 – A Convention and a Purpose”13 International Journal of Refugee Law 1 Goodwill-Gill, 2001, p. 234.5 Convention Relating to the Status of Refugees, 28 July 1951, United Nations,Treaty Series, vol. 189, p. 137; will be hereinafter referred to as “theConvention”. 6 See the provisions of Articles 1A, 1B, 1C, 1D, 1E and 1F of the 1951 ConventionRelating to the Status of Refugees; these articles of the Convention contain a“Definition of the Term Refugee” (Article 1A), states State Obligation (Article1B), establish Cessation Clause (Article 1C) and define Exclusionary Clauses(Articles 1D, 1E and 1F).
Page 2 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. called asylum seekers”7 until refugee status is established in
accordance with Article 1A of the Convention.
Conversely, States acquire an international obligation under
the Convention to provide protection to persons who fall under
Article 1 of the Convention, with the exception of those who
fall within Articles 1D, 1E, 1F and 33(2) of the Convention.
Often, however, some States establish a joint policy on asylum
seekers and other causes of migration which conflicts with the
Convention. According to reports, “the difficulty of
distinguishing between economic and non-economic causes of
migration is compounded by the fact that the two categories
may frequently overlap”.8 In light of the apparent overlapping
circumstances, measures that conflict with the provisions of
the Convention and actions that hinder fairness in the process
emerge within the domestic framework for refugee protection.
The scholarly view underlines State actions and “increased
eagerness to weed out the undeserving”9 from the asylum
7 ibid, no 03, p. 4038 See the House of Commons Home Affairs Committee, Session 2003-04 SecondReport, Asylum Applications, HC 218, paragraph 42.9 Dennis McNamara, Exclusion Clauses: Closer Attention Paid to the ExclusionClauses, in Refugee and Asylum Law: Assessing the Scope for Judicial Protection 68(International Association of Refugee Judges ed., 1997).
Page 3 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. process. Hence the purpose of this work is to examine
critically one of the provisions of the international
protection regime as it applies within United Kingdom10
domestic laws.
This work will, therefore, conduct a critical examination of
relevant UK legislation and the European Union dimension of
Article 1F provisions of the Refugee Convention. Several UK
Court and European Court of Human Rights11 case laws will be
examined in order to identify conflicting law segments in the
application of the Article 1F exclusion clause. Some of these
laws include humanitarian and human rights provisions, with
special scrutiny of Article 3 of the European Convention on
Human Rights (hereinafter referred to as the ECHR), which is
relevant to decisions regarding exclusion clauses. Other areas
of international obligation such as child protection and the
role of child soldiers in the interpretation of Article 1F,
especially in its reference to “any person”,12 will be examined
critically in this work.10 The United Kingdom will be hereinafter referred to as “the UK”. 11 The European Court of Human Rights will be hereinafter referred to as the“ECtHR”.12 ibid, no. 01: “The provisions of this Convention shall not apply to any personwith respect to whom there are serious reasons for considering that:..”
Page 4 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. UK Obligation under the 1951 Refugee Convention and Relevant
Domestic Legislation
Section 213 of the Asylum and Immigration Appeal Act of 1993
(hereinafter referred to as the 1993 Act) incorporated the
provisions of the Convention into the UK legal system.
Therefore, it accorded international protection such primacy
in the domestic system that the State protection regime is the
same as the International regime.14 This legislation satisfies
the UK treaty obligation as expressed in Articles 3, 4 and 5
of the Convention. Suffice it to say that refugee laws reflect
State commitment “to grant asylum [and] not the right of
asylum seekers to receive it”.15 Yet this commitment ought to
be accompanied by a measured standard of legality in
accordance with the “international minimum standard”.16 Thus,
State measures cannot conflict with the fundamental purpose of13 Section 2 of the Asylum and Immigration Appeals Act 1993, available at:http://www.legislation.gov.uk/ukpga/1993/23/section/2, accessed on 25/04/2014:“Nothing in the immigration rules (within the meaning of the 1971 Act) shall laydown any practice which would be contrary to the Convention”.14 Section 2 of the Asylum and Immigration Appeals Act 1993: “Primacy ofConvention”. 15 Atle Grahl-Madsen, the Status of Refugees in International Law: RefugeeCharacter, 1966, A.W. Sijthoff, p. 80.16 See Preamble of the 1951 Convention Relating to the Protection of Refugees; seealso Article 3 of the International Covenant on Civil and Political Rights of 1966;see also the European Union Council Directive 2005/85/EC of 1 December 2005 onminimum standards on procedures in Member States for granting and withdrawingrefugee status; and also Article 8(1) of the 1990 International Convention on theProtection of the Rights of All Migrant Workers and Members of their Families.
Page 5 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. the Convention, which is to provide protection for those
fleeing from persecution. Consequently, some UK legislation
contains stipulations which undermine the international
standard for protection. The provisions of Article 28 of the
Council Directive, which regulates the determination of
“unfounded applications”,17 may have been strayed from in the
UK legal system. The system allows such classification of
asylum application without serious consideration to “fair and
effective process”.18 Section 94(2)19 of the Immigration and
Asylum Act of 2002 grants such powers to the Secretary of
State to tag an application as “clearly unfounded”, which, in
R. v SSHD, was defined as “bound to fail”20 and an
“unarguable”21 claim. Under this provision, the decision on an
asylum application seals every scope for appeal and thereby
infringes on Article 13 of the ECHR which establishes the17 Article 28 of the Council Directive 2005/85/EC of December 2005, available at:http://www.asylumlawdatabase.eu/en/content/en-asylum-procedures-directive-directive-200585ec-1-december-2005#Art%2028, accessed on 25/04/2014. 18 UN High Commissioner for Refugees (UNHCR), Global Consultations on InternationalProtection/Third Track: Asylum Processes (Fair and Efficient Asylum Procedures), 31 May2001, EC/GC/01/12, available at:http://www.refworld.org/docid/3b36f2fca.html, accessed on 23/04/2014.19 Section 94(2) of the Nationality, Immigration and Asylum Act 2002: “A person maynot bring an appeal to which this section applies [F2 in reliance on section 92(4)(a)] if the Secretary of State certifies that the claim or claims mentioned insubsection (1) is or are clearly unfounded”.20 See Regina v. SSHD ex parte Thangarasa; Regina v. SSHD, ex parte Yogathas [2002]UKHL 36 (October 17, 2002.21 ibid
Page 6 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. right to effective remedy. An official report states that fair
and effective procedures are an essential element of the full
and inclusive application of the Convention”.22 In light of
this assertion, clauses in State legislation that establish an
abusive claim may be incompatible with the fundamental aim of
the Convention because they can “overburden asylum procedures
to the detriment of those with good grounds for requesting
asylum”.23 Hence scholars are concerned that States may be
restricting “the free immigration of persons fleeing
threatening circumstances in their home countries”.24 In most
cases, the UK system conforms to the practice of many States
that implicitly apply the exclusion clause before the
evaluation of the inclusion clause.25 In this regard, the
hospitality approach which is intended for persons under
22 ibid, no. 1823 ibid, no. 18 24 James C. Hathaway, the Evolution of Refugee Status in International Law: 1920—1950, 1984, International and Comparative Law Quarterly, Vol. 33, Issue 02, pp 348-380, p. 379.25 See Michael Bliss, Serious Reasons for Considering: Minimum Standards ofProcedural Fairness in the Application of the Article 1F Exclusion Clauses, 2000,International Journal of Refugee Law, 12 (Suppl. 1), pp. 92-132, pp. 106-108; seealso Geoff Gilbert, Current Issues in the Application of Exclusion Clauses, 2003,Cambridge University Press, p. 464; Michael Kingsley Nyinah, Exclusion UnderArticle 1F: Some Reflections on Context, Principles and Practice (2000) 12International Journal of Refugee Law 295-316, pp. 305-306.
Page 7 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. Article 1A of the Convention is preceded by the criminality
approach under the UK asylum process.
In light of this procedural approach, the detention of asylum
seekers on point of entry and the criminalization of the
application process is an element of the UK policy which is
determinant in some considerations to the exclusionary clause.
Although Article 5(1) (f) of the ECHR permits the detention of
a person in order to “prevent his effecting an authorised
entry into the country [or when] action is being taken with a
view to deportation or extradition”, it is unclear whether
asylum seekers fall into the category of persons effecting
illegal entry, because Article 18(1) of the Council Directive
2005 expressly prohibits the detention of asylum seekers. In
addition, Article 31(1) of the Refugee Convention expresses
the non-penalization of the illegal entry of asylum seekers to
the country of refuge and establishes conditions an
applicant’s compliance with State authority. One such
condition is the applicant’s notification to the authorities
of his/her presence in a reasonable timeframe.26 In contrast,26Article 31(1) of the 1951 Convention states: “The Contracting States shall notimpose penalties, on account of their illegal entry or presence, on refugees who,coming directly from a territory where their life or freedom was threatened in the
Page 8 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. Section 2(1) and 2(2) of the 2004 Act penalizes entering the
UK without a passport. Under this law the UK Border Agency has
powers derived from Section 2(10) of the 1971 Act to arrest
such individuals with the exception of European Economic Area
citizens travelling with family members and finds
justification in Section 2(4) of the 2004 Act. As mentioned
earlier, the criminalization of the process could influence
the outcome of the authority’s decision because, once
convicted, the severity of the conviction could fall under
exclusionary clause provision. In MF v. SSHD, the Court
observed that “significant weight [was given to the
applicant’s] criminality and poor immigration history”.27 This
reflects a barrier to asylum seekers under the UK Border
Agency criminality approach to asylum and immigration matters.
A UN report states that “Articles 1F(a) and 1F(c) are
concerned with crimes whenever and wherever they are
committed”.28 Hence the likelihood of an asylum seeker’ssense of article 1, enter or are present in their territory without authorization,provided they present themselves without delay to the authorities and show goodcause for their illegal entry or presence.”.27 MF (Nigeria) v. SSHD, 2013, EWCA Civ 1192 (October 8, 2013), paragraph 50 of thejudgment; see also Sections 32(1), 32(2) and 32(5) of the UK Border Act, 2007,available at: http://www.legislation.gov.uk/ukpga/2007/30/section/32, accessed on23/04/2014.28 See UN High Commissioner for Refugees (UNHCR), Guidelines on InternationalProtection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951
Page 9 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. conviction, for instance, for the crime of “dishonest
representations to obtain benefits”,29 which carries a sentence
of “six months to seven years imprisonment”, could serve as a
justification to apply Article 1F of the Convention in the
application. The object of this reasoning is that Section
28FB of the 1971 Act grants criminal prosecution powers to the
UK Border Agency in this matter. A case in point is MF v.
SSHD, wherein an asylum seeker’s conviction “of handling
stolen goods and possession”30 was used to conclude that the
applicant was “a danger to the community of the country”;31
prompting the application of Section 32(2) and 32(5) of the
2007 UK Border Act. Apparently, Article 33(2) of the
Convention consents to a State’s decision to exclude a
claimant based on such justification. Commonly, “offences of
sufficient seriousness to attract long periods of custodial
punishment might suffice to guide States as to what might
fulfil Article 1F(b)”32 and other offences that fall under the
Convention relating to the Status of Refugees, 4 September2003, HCR/GIP/03/05, available at:http://www.refworld.org/docid/3f5857684.html, accessed on 26/04/2014].29 See Section 106 of the 1999 Act: Dishonest representation to obtain benefits. 30 ibid, no. 27, paragraph 17 of the judgement.31 See Article 33(2) of the 1951 Convention Relating to the Status of Refugees.32 Geoff Gilbert, Current Issues in the Application of Exclusion Clauses, 2003,Cambridge University Press, p. 449.
Page 10 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. exclusion clause. Therefore, restrictive regulatory measures
on entrants or criminal measures against deception for asylum
seekers conflict with the fundamental purpose of the
Convention and appear as entrapment for genuine refugee
applicants. One UN report states that “committing a serious
crime in the country of refuge is subject to due process of
law [or] in extreme cases Article 33(2)”33 applies. Although
the determination of the gravity of a crime falls under the
State margin of appreciation, the application of this
provision in the aforementioned case reflects divergent
interpretative doctrines as generated by the ambiguity of the
law. Granted, the abstract nature of the international refugee
regime, which adopts a “fundamental purpose of balancing the
rights of involuntary migrants and those of the states to
which refugees flee”,34 allows States a margin of discretion in
determining how to apply Convention rights within the
regulatory framework of the EU directives that sets a common
33 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951Convention and the 1967 Protocol relating to the Status of Refugees, 1992, UnitedNations High Commissioner for Refugees, HCR/IP/4/Eng/Rev. 1, paragraph 154.34 James Hathaway, Reconceiving International Refugee Law, 1997, Martinus NijhoffPublishers, p. 116.
Page 11 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. standard of approach in conformity with regional human rights
systems and concerns.
Article 1(F) of the 1951 Refugee Convention and State
Prerogatives
One UN report observed the abstract nature of some of the
provisions of the Convention, including those of Article 1F.
It states that Article 1F(c)’s “very generally-worded
exclusion clause overlaps with the exclusion clause in Article
1 F (a)”35 and suggests that it “should be applied with
caution”.36 Scholars, however, opine that it “is framed in
mandatory language”.37 Hence the context of this provision
demands State negative duty to reject as inadmissible the
category of persons that fall within some specifics of Article
1F. Incidentally, the aforementioned comprehensive
significance of the expression “any person” in Article 1F of
the Convention does not, apparently, “distinguish between
adults and minors”.38 Herein, the subject matter is the35 Ibid, no. 33, paragraph 16236 Ibid, no. 33, paragraph 16337 Matthew Happold, Excluding Children from Refugee Status: Child Soldiers andArticle 1F of the Refugee Convention, 2002, American University International LawReview, Vol. 17, Issue No 6, pp. 1131-1176, p. 1134. 38 United Nations High Commissioner for Refugees on Child-Soldiers, reprinted inPeter J. Van Krieken, (ed.) Refugee Law in Context: The Exclusion Clause,1999,
Page 12 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. “vulnerable status and special needs of children [which ought
to] be taken into consideration”39 in the context of the
continued existence of child soldiers around the world. On
this note, UK and EU legislation provide vague protection for
children. For instance, Article 17(6) of the Council Directive
2005 expresses the prevalence of “the best interests of the
child”40 in the asylum application process but fails to define
their exclusionary status expressly. Paragraphs 350 and 351
of the UK Immigration Rules observe the “potential
vulnerability”41of child asylum seekers, stating that
“particular priority and care is to be given to the handling
of their cases”.42 Yet it states that, as with everyone else,
T.M.C. Asser Press.39 ibid, p. 4340 Council Directive 2005/85/EC of 1 December 2005 On Minimum Standards onProcedures In Member States for Granting and Withdrawing Refugee Status, publishedin the Official Journal of the European Communities OJ L 326, 13.12.2005, pp. 13–34: Article 17(6) States: “The best interests of the child shall be a primaryconsideration for Member States when implementing this Article”.41 See paragraph 350 of the Immigration Rules part 11: Asylum, Home Office and UKVisas and Immigration (13 February 2014), available at:https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/279712/Immigration_Rules_-_Part_11.pdf, accessed on 26/04/2014. 42 See paragraph 351 of the Immigration Rules part 11: Asylum, Home Office and UKVisas and Immigration (13 February 2014), available at:https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/279712/Immigration_Rules_-_Part_11.pdf, accessed on 26/04/2014.
Page 13 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. “the criteria in paragraph 33443 apply in all cases”44, thus
ignoring any mention of the status of child soldiers under
Article 1F of the Convention exclusion provision. Suffice it
to say that the UN Convention on the Rights of the Child
(UNCRC) makes no distinction between well-fed and poor
children and defines a child as “every human being below the
age of eighteen years unless, under the law applicable to the
child, majority is attained earlier”.45 Apparently, judicial
reviews of exclusion or removal cases reflect this position of
the protection for the interests of the child. In ZH
(Tanzania) v. SSHD, the Court held that “the best interests of
43 Paragraph 334 of the Immigration Rules (2014) states that: “An asylum applicantwill be granted asylum in the United Kingdom if the Secretary of State is satisfiedthat: (i) he is in the United Kingdom or has arrived at a port of entry in theUnited Kingdom; (ii) he is a refugee, as defined in regulation 2 of The Refugee orPerson in Need of International Protection (Qualification) Regulations 2006; (iii)there are no reasonable grounds for regarding him as a danger to the security ofthe United Kingdom; (iv) he does not, having been convicted by a final judgment ofa particularly serious crime, constitute a danger to the community of the UnitedKingdom; and (v) refusing his application would result in him being required to go(whether immediately or after the time limited by any existing leave to enter orremain) in breach of the Geneva Convention, to a country in which his life orfreedom would be threatened on account of his race, religion, nationality,political opinion or membership of a particular social group. 44 See paragraph 351 of the Immigration Rules part 11: Asylum, Home Office and UKVisas and Immigration (13 February 2014), available at:https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/279712/Immigration_Rules_-_Part_11.pdf, accessed on 26/04/2014.45 See Article 1 of the Convention on the Rights of the Child, 1990, available at:http://www.ohchr.org/en/professionalinterest/pages/crc.aspx, accessed on26/04/2014; see also the UN General Assembly Res. 44/25, of 20 November 1989, p.166.
Page 14 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. the child had to be a primary consideration”,46 acknowledging
the prevalence of the UNCRC child rights regime over a failed
immigration claim. Yet the absence of an inherent legal
provision that protects children (child soldiers) from the
prerogatives of the exclusionary clauses in the Convention and
in UK domestic law underpins a legal lacuna which conflicts
with international customary laws, such as Article 3 of the
International Covenant on Civil and Political Rights (ICCPR)
on the principle of non-refoulement. Generally, humanitarian
protection is granted to the excluded applicant under
paragraph 339C47 of the Immigration Rules or under the ECHR.
However, the UK’s Secretary of State discretion in determining
whether the applicant still “faces a real risk of serious
46 ZH (Tanzania) v. SSHD, 2011, UKSC 4 (February 01, 2011), paragraph 48 of thejudgement. 47 See Part 11, paragraph 339C of the Immigration Rules, which states that: “Aperson will be granted humanitarian protection in the United Kingdom if theSecretary of State is satisfied that: (i) he is in the United Kingdom or hasarrived at a port of entry in the United Kingdom; (ii) he does not qualify as arefugee as defined in regulation 2 of The Refugee or Person in Need ofInternational Protection (Qualification) Regulations 2006; (iii) substantial grounds have been shown for believing that the person concerned,if he returned to the country of return, would face a real risk of sufferingserious harm and is unable, or, owing to such risk, unwilling to avail himself ofthe protection of that country; and (iv) he is not excluded from a grant ofhumanitarian protection. Serious harm consists of: (i) the death penalty orexecution; (ii) unlawful killing; (iii) torture or inhuman or degrading treatment or punishment of a person in thecountry of return; or (iv) serious and individual threat to a civilian's life or person by reason ofindiscriminate violence in situations of international or internal armed conflict”.
Page 15 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. harm”48 could eventually lead to the application of an “order
for removal”49. Consequently, other considerations such as the
ECHR and the four Directives of the European Union take
effect.
On that note, the alignment of the Convention with other
international regimes such as human rights, humanitarian and
criminal laws is evident. The provision of Article 1F of the
Convention appears mandatory and demanding of a State negative
duty to exclude anyone that falls into its category. However,
in Chahal v. the United Kingdom,50 the ECtHR sets Article 3 of
the ECHR as a restraining factor in the State prerogative to
expel excluded persons when there are “real risks of suffering
serious harm”51 and the individual’s Article 3 of the ECHR will
be violated. The ECtHR states that “the prohibition provided
by Article 3 against ill-treatment is [...] absolute in
48 See Part 11, paragraph 339G of the Immigration Rules, Asylum, Home Office and UKVisas and Immigration (13 February 2014).49 Schedule 2, Paragraph 14(2) of the Immigration Act 1971,available at: http://www.legislation.gov.uk/ukpga/1971/77/schedule/2, accessed on02/05/2014. 50 See Chahal v. the United Kingdom, App. no. 22414/93 (ECtHR, November 15, 1996). 51 See Article 2(e) of the Council Directive 2004/83/EC, Minimum Standards for theQualification and Status of Third Country Nationals or Stateless Persons asRefugees or as Persons Who Otherwise Need International Protection and the Contentof the Protection Granted, Official Journal of the European Union (29 April 2004).
Page 16 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. expulsion cases”.52 Coincidentally, torture is attributable to
States as well as Article 6 of the 2004 Directive
classification of States as “actors of persecution”.53 The
object of this reasoning is that friendly States could
connive, politically, to return a person fleeing from
persecution to the persecutor. In Rehman v. SSHD, the Court
attempted such an approach in its interpretation of national
security, stating that “a threat to the security of one nation
is a threat to all”.54 This judgment was applied in the context
of the exclusion, on Convention grounds, of members of some
dissident groups operating against a country friendly to the
UK. In that vein, scholars disagree and assert that “an enemy
of his government is not any enemy of mankind”.55 Commonly,
States’ obligation under international law regarding Article
1F of the Convention does not simply require the exclusion of
persons described in the provision but also demands responsive
52 Ibid, no 50, paragraph 80 of the Judgment. 53 Article 6 of the Council Directive 2004/83/EC OF 29 APRIL 2004 on MinimumStandards for the Qualification and Status of Third-country Nationals or StatelessPersons as Refugees or as Persons who Otherwise need International Protection andthe Content of the Protection Granted, published in the Official Journal of theEuropean Union OJ L 304, 30/09/2004 pp. 0012–0023.54 See Rehman v. SSHD, 2001, UKHL 47 (October 11, 2001). 55 Dummett, A. and Nicol, A. G. L., Subjects, Citizens, Alliens and Others:Nationality and Immigration Law, 1990, Weidenfeld and Nicolson, p. 144.
Page 17 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. action from the authorities. According to a UN Report, States
decide whether “the person concerned [is] criminally
prosecuted or extradited”.56 Both courses of action have
discursive legal limitations. On the one hand are the changes
in criminal law with the inception of the International
Criminal Court (ICC), which has jurisdiction to “investigate
and prosecute”57 offences mentioned in Article 1F. Scholars
argue that “the use of universal jurisdiction in domestic
courts for serious international crimes has burgeoned in
recent years”.58 Therefore, repatriation of the applicant to
the home country where allegedly he/she is being persecuted is
an erroneous option. On the other hand is the option to
extradite the excluded applicant to the international Court
for prosecution, which could satisfy the Convention objective
of protecting the individual as well as providing justice as
appropriate. Scholars contend that the “service of the
sentence, or indeed a final acquittal [of an asylum applicant]
56 See UN High Commissioner for Refugees (UNHCR), Guidelines on InternationalProtection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951Convention relating to the Status of Refugees, 4 September2003, HCR/GIP/03/05, available at: http://www.refworld.org/docid/3f5857684.html,accessed on 26/04/2014], paragraph 8 of the report.57 See the Preamble of the Rome Statute of the International Criminal Court (ICC), 1July 2002. 58 Ibid, no 32, p. 430.
Page 18 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. brings the application of exclusion clause to an end”.59 Hence
the complexity of the Article 1F exclusion clause wherein a
State decision to exclude is preceded by an order for
repatriation of the individual back to the home country or a
third country.
- Evaluative Focus on Article 1F(a), 1F(b) and 1F(c) as
Reflects UK law and Policy
Further evaluation of Article 1F reveals the isolation of the
exclusion clause from the causality of refugee situations such
as criminal activities and violation of individual rights and
freedom. With the exception of Article 1F(b), which is
specific to domestic criminal legislation, the details of
Article 1F(a) and 1F(c) are prohibited under Common Article 3
of the Geneva Conventions and Article 1 of the UN Charter.
Both crimes are prosecuted and penalized under the
international jurisdiction of the ICC. Summarily, Article
1F(c) of the Convention “does not introduce any specific new
59 James Hathaway, the Law of Refugee Status, 1993, pp. 222-3; see also, Atle Grahl-Madsen, the Status of Refugees in International Law, 1966, Vol. 1, A W Sijthoff,Leyden, p. 291 or Territorial Asylum, 1980, Almquist & Wiksell Intl. and OceanaPublications, Stockholm/London/New York, p. 231.
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Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. element”60 other than a more abstract content that covers other
areas that are not contained in “the two preceding exclusion
clauses”.61 The scholarly view opines that Article 1F provision
was merely used to appease State uneasiness about providing
protection to “undesirable refugees”.62 For instance, Article
1F(b) reference to “serious non-political crime” creates
divergent legal discourse among scholars. Some scholars
sustain diverse interpretative standards of determining “what
constitutes a serious crime [for the purpose of determining]
whether the criminal character of the applicant for refugee
status in fact outweighs his or her character as a bona fide
refugee”.63 Conversely, other scholars support a more
universal mechanism of interpretation and sustain that only
offences punishable by “the death penalty or deprivation of
liberty for several years”64 qualify as justification under
Article 1F(b) of the Convention. Hence different States apply
either of the foregoing scholarly doctrines in their domestic
60 ibid, no 33, paragraph 162.61 ibid, no 33, paragraph 162.62 See James Hathaway, The Law of Refugee Status, 1993, Cambridge University Press,p. 214.63 G. Goodwin-Gill and J. McAdam, The Refugees in International Law, (2007) NewYork: Oxford University Press, p. 176.64 ibid, no 15, p. 297
Page 20 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. laws wherein most cases are applied arbitrarily against the
object meaning of this provision of the Convention. In UK
refugee law and policy, however, the criteria for
distinguishing excludible asylum seekers do not provide a
necessary guarantee of effectiveness in accordance with the
exclusion clause content of the Convention. The only criterion
for determining that an applicant falls into this group is
based on State reliance on the claimant’s statement or
information received from the alleged persecutor nation.
In this regard, the “claimant’s credibility” is important in
expounding an argument on the event that preceded his/her
arrival to the country. Section 8(2) of the 2004 Act
establishes an assessment mechanism of claimant credibility.
Notably, this assessment mechanism is based on what “the
deciding authority thinks”65 and not on “serious reasons”66 for
the determination of the person’s credibility and subsequent
exclusion from the process. Scholarly observation is that the
65 See Section 8(2) of the Asylum and Immigration (Treatment of Claimants, etc) Act(2004)66 Article 17 of the Council Directive 2004/83/EC, Minimum Standards for theQualification and Status of Third Country Nationals or Stateless Persons asRefugees or as Persons Who Otherwise Need International Protection and the Contentof the Protection Granted, Official Journal of the European Union (29 April 2004).
Page 21 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. “credibility of claimants tends to be questioned”.67 In this
context, the burden of proof seems to be shifted to the
claimants. This practice does not conform to the Convention
purpose but obeys State scepticism over the invasion of
economic migrants, the consequences of which genuine
applicants endure.
Article 1F does not operate on claimant credibility assessment
but on the factual and serious belief that the applicant
committed the act of which he or she is accused. In Gurung v.
SSHD, the apex Court ruled that “a wide range of determining
factors”68 is necessary in the application of Article 1F. Hence
it criticized the lower Court ruling, calling it “unhelpful
and overly simplistic” for allowing the exclusion clause to
apply in that context of the case. On this note, the UN High
Commissioner for Refugees (UNHCR) asserts that “mere
membership of an organisation is not sufficient to establish
liability for Article 1F crimes”.69 The offences must conform
67 Ibid, no 62, p. 85; See also, Deborah Anker, Law of Asylum in the United States,1999, p. 165. 68 See Gurung v. SSHD, 2002, UKIAT 04870, (October 14, 2002), paragraph 115.69 See UNHCR Executive Committee Note on the Exclusion Clauses, UN DocEC/47/WSC/CRP.29, paragraphs 12-15: published in Matthew Zagor, Persecutor orPersecuted: Exclusion Under Article 1F(A) and (B) of the Refugees Convention, 2000,23 UNSW Law Journal 3, 177-178, p. 175.)
Page 22 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. to the stipulations of Article 1F provision; otherwise, the
State is making use of its prerogatives in Article 33(2) of
the Convention. Article 1F, according to the Court
interpretation in AH v. SSHD, requires a threshold which
establishes that “the seriousness [of the act] must be of such
degree that the offender cannot legitimately claim refugee
status”.70 In light of the foregoing, the State could grant
“discretionary leave”71 to the person or initiate a removal
action.
Conflicting Measures for Excluding Refugee Applicants under
Article 1F
Section 55 of the 2006 Act72 provides that the Secretary of
State can issue certification to exclude persons from the
international protection regime. The conflicting issue in this
prerogative is the applicable measures which, due to lack of
established procedure, are regulated under domestic law to
apply in all cases. For instance, the vagueness of Article 1F
70 AH (Sudan) v. SSHD,2007, EWCA Civ 297 (April 04, 2007), paragraph 38 of thejudgment.71 Section 3(1)(c) of the Immigration Act of 1971. 72 Section 55, Chapter 13 of the Immigration, Asylum and Nationality Act 2006 [30March 2006], available at: http://www.legislation.gov.uk/ukpga/2006/13, accessed on02/05/2014. Hereinafter referred to as the 2006 Act.
Page 23 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. and the exceptions in Article 33(2) give rise to exclusive
criteria which align with the expulsion from the country of
unprotected persons under the Convention. Thus apart from the
intermixture of Articles 1F and 33(1) of the Convention under
Section 55 of the 2006 Act, which have different
specifications, UK policy is to apply Article 33(2) of the
Convention measures on the “ground of national security”73 as
the common measure in both cases. These provisions of the
Convention have different specifications. Article 1F applies
when the alleged crimes were alleged to have been committed
outside the receiving country prior to the application for
refugee protection. However, the Convention did not expressly
provide for excluded persons to be removed from the host
country or deported to his/her home country. Conversely,
Article 33(1) applies when a person who has been granted the
status of refugee commits a crime and the host country
considers such individual a threat to its national security.
In this case Article 33(2) applies and provides that the
individual can be removed. The consideration of the term
“serious crime” (Article 1F of the Convention) and subsequent73 Section 55(1)(b) of the 2006 Act.
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Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. measures is applied under Section 72(1) of the 2002 Act.74 This
provision makes no distinction between crimes committed
outside the country and crimes committed within the State
territory. It does not distinguish Article 1F exclusion and
Article 33(2) exceptions in determining applicable measures
for persons excluded from protection. Section 72(3) of the
2002 Act creates an overarching classification of crimes that
fall under Article 1F by juxtaposing both Article 1F mandatory
action and Article 33(2) of the Convention exceptions in
Section 76(1) of the 2002 Act as it applies or is interpreted
in Section 76(4) of the 2002 Act. The domestic legislative
provisions for determining applicable measures to exclusionary
clauses of Article 1D, 1E and 1F seem to exclude the following
options: (1) the political motivations for the alleged crimes
of the applicants; (2) the admissibility of the individual
based on Article 14(7)75 of ICCPR provision; or (3) the
exploitation of the jurisdiction of the international criminal
74 Chapter 41, Part 1, Section 72 of the Nationality, Immigration and Asylum Act2002; Hereinafter referred to as the 2002 Act. 75 See Article 14(7) of the International Covenant on Civil and Political Rights1966: “No one shall be liable to be tried or punished again for an offence forwhich he has already been finally convicted or acquitted in accordance with the lawand penal procedure of each country”.
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Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. tribunal. These options provide considerable relief from the
risk of removing an excluded person to an “unsafe country”.76
The Relevance of International Criminal Tribunals to Article
1F of the Refugee Convention
The malleable nature of refugee laws, in general, reflects the
divergent interpretative standards regarding the motivations
for asylum application and acceptable exclusion justification.
The UNHCR states that “the exclusion clauses must be
interpreted restrictively and applied with great caution”.77
The acceptable justification for the exclusion of an asylum
applicant for refugee protection under international law is on
grounds of “serious reasons”. In Al Sirri and Another v. SSHD,
the Court held that “serious reasons”78 are more weighty than
“reasonable ground”.79 The compelling question is, therefore,
the determination of appropriate measures where such “serious
76 See H. and B. v. the United Kingdom, App. nos. 70073/10 and 44539/11 (ECtHR,April 09, 2013), paragraph 5 of Judge Kalaydjieva’s dissenting opinion; see alsoVilvarajah and Others v. the United Kingdom, app. no 13163/87, 13164/87, 13165/87,13447/87, 13448/87, paragraph 108. The ECtHR expresses concern about expelling aperson to an unsafe country: “the foreseeable consequences of sending the applicantto the receiving country, bearing in mind the general situation there and hispersonal circumstances”.77 ibid, no 33, paragraph 04.78 Al Sirri (FC) and DD (Afghanistan) v. SSHD, 2012, UKSC 54 (November 21, 2012). 79 Ibid.
Page 26 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. reasons” exist that an applicant falls under Article 1F
provision. It is common knowledge that an individual who has
committed the crimes expressed or implied in Article 1F of the
Convention ought to be prosecuted if found within the borders
of another country. However, several UK case laws reflect a
repetitive action to expel or repatriate an excluded applicant
rather than seek justice within domestic or international
court jurisdiction. There have been substantial changes in
international law that allow the enforcement of criminal
prosecution without recourse to the repatriation of an
excluded applicant to an alleged country of persecution. The
scholarly view is that “the use of universal jurisdiction in
domestic courts for serious international crimes has burgeoned
in recent years”.80 The establishment of the International
Criminal Court and ad hoc war crime tribunals for Rwanda,
Yugoslavia and Sierra Leone underlines the existing changes in
international criminal law which delegitimize the purpose of
Article 1F of the Convention. If an applicant had committed a
serious crime which falls into Article 1F provisions of the
Convention, there are international mechanisms for ensuring80 ibid, no 32, p. 430
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Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. effective judicial remedies. The forceful repatriation of such
persons to the country of persecution or to a third country in
violation of Article 33(1) of the Convention is therefore
unwarranted.
- The Relevance of Article 3 of the ECHR to UK Article 1F
Enforcement Law and Policy
The European Union dimension provides four core directives
which stipulate common criteria for determining the
qualification, reception, treatment procedure of asylum
seekers and inter-State collaboration on applications. These
directives are subject to the supervisory powers of the ECtHR
under Article 19 of the ECHR. Additionally, the ECtHR is
concerned with the legality of State actions at all levels of
human rights, including refugee protection. In Saadi v. Italy,
the ECtHR states that “[States] must not resort to methods
which undermine the very values they seek to protect”.81 Part
of this ideal is the protection of the human rights and
freedom of refugee applicants. Where the rights of the State
juxtapose with the human rights of the asylum seeker, the
81 See Saadi v. Italy, App. no. 37201/06, (The ECtHR, February 28, 2008), JudgeMyjer’s concurrent opinion.
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Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. ECtHR examines the “proportionality”82 of such action. The UK
has an obligation under Article 1 of the ECHR to adhere to
these rules. A frequent area of legal contention is within the
provisions of Articles 3 and 8 of the ECHR. Given that neither
Article 1F nor Article 12 of the 2004 Council Directive states
an applicable measure for excluded refugee applicants,83 States
have used discretion in adopting measures. In UK law and
policy, the State revindication of its sovereign right “to
deport or return the alien to whatever country is prepared to
receive him”84 has been a common exercise. Article 28 of the
Convention prohibits countries from removing or repatriating
82 M Eissen, The Principle of Proportionality in the Case-Law of the European Courtof Human Rights: published in Ronald St John Macdonald, Franz Matscher and HerbertPetzold (eds), The European System for the Protection of Human Rights, 1993,Martinus Nijhoff, pp. 125-37: “the principle of proportionality constitutes generalprinciple of international law and includes elements of severity, duration andscope”. 83 Article 1F of the 1951 Refugee Convention and Article 12 of the Council Directive2004/83/EC states that: “the provisions of this Convention shall not apply”. Unlikeexceptions on the “prohibition of expulsion or return” in Article 33(2) of theConvention, the aforementioned Convention and Council Directive provisions do notspecify what actions States are required to take regarding the excluded personsfrom the refugee regime.84 See also Paul Weis, Travaux Preparatoires Analysed with A Commentary, The RefugeeConvention, 1951, available at: http://www.unhcr.org/4ca34be29.pdf, accessed on22/04/2014: “His Majesty's Government will continue to act, as they have done inthe past, in the spirit of this Article. They have in mind, however, certainexceptional cases, including those in which an alien, despite warning, persists inconduct prejudicial to good order and government and the ordinary sanctions of thelaw have failed to stop such conduct; or those in which an alien, althoughtechnically a refugee within the meaning of Article 1 of the Convention is known tobe a criminal. In such and similar exceptional cases His Majesty's Government mustreserve the right to deport or return the alien to whatever country is prepared toreceive him, even though this involved his return to his own country”.
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Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. “a refugee to the frontiers of territories where his life or
freedom would be threatened”.85 Yet, a common measure in UK
exclusion law is the “removal” of the applicant as justified
in Article 33(2) of the Convention. When exclusion from
refugee status applies, a shift towards human rights and
humanitarian considerations is triggered. Hence, the ECtHR
examines the compliance of measures with Articles 3 and 8
provisions of the ECHR. The ECtHR, in Soering v. the UK,
examined Article 3 of the ECHR and adopted the expansive
version of the standard of “non-refoulement”86 as contained in
Article 3 of the ICCPR, which establishes the absolute nature
of the State obligation to provide protection to persons
fleeing from persecution. Therein, the “Soering principle”87
was created and has since been applied in cases of the
deportation or extradition of persons from the European
territory to other countries of the world.
85 UN Ad Hoc Committee on Refugees and Stateless Persons, Ad Hoc Committee onRefugees and Stateless Persons, Third Report of the Drafting Committee on Articlesof the Draft Convention relating to the Status of Refugees (E/AC.32/L.40 andE/1703/Add.7), 23 August 1950, E/AC.32/L.42/Add.2. 86 See Article 3 of the Convention Against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment, 1984; in Sandy Ghandhi (ed), Blackstone’sInternational Human Rights Documents, 2012, Oxford University Press, p. 75. 87 See Soering v. the United Kingdom, App. no. 14038/88, (The ECtHR, July 7, 1989)..
Page 30 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. UK policy establishes strict adherence to human rights laws
which also protect excluded asylum seekers or refugee
applicants. Section 6 of the Human Rights Act imposes a duty
on “public authorities” to observe and comply with the
provisions of the ECHR. International humanitarian laws have
also been incorporated into the refugee application
consideration process. Paragraph 339C of the Immigration Rules
provides mechanisms of consideration of “humanitarian
protection”88 to applicants. However, access to these remedies
for Article 1F excluded persons under UK law is relative to
two legal assessment approaches. On the one hand is the
“domestic”89 approach, which gives consideration to whether a
person’s right has been violated by a decision of the State.
88 Part 11, paragraph 339C of the Immigration Rule, Asylum, Home Office and UK Visasand Immigration (13 February 2014): “SERIOUS HARM:The Immigration Rules: “In brief, a person is now eligible for HumanitarianProtection if the person is not a refugee and faces a real risk of suffering‘serious harm’ in the country of return. Under paragraph 339C of the ImmigrationRules, serious harm means: (1) The death penalty or execution; (2) Unlawfulkilling; (3) Torture or inhuman or degrading treatment or punishment in the countryof return; or (4) Serious and individual threat to a civilian’s life or person byreason of indiscriminate violence in situations of international or internal armedconflict”.89 See Ullah and Do (FC) v. The SSHD, 2004, UKHL 26 (June 17, 2004), paragraph 07:“In the ordinary way, a claim based on the Convention arises where a state is saidto have acted within its own territory in a way which infringes the enjoyment of aConvention right by a person within that territory. Such claims may for conveniencebe called ‘domestic cases’".
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Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. On the other is the “foreign”90 approach, which evaluates
whether a person’s right will be breached. In Ullah and Do v.
SSHD, the Court noted that “states undertook to secure” to
everyone within their jurisdiction “the rights and freedoms
defined in section 1 of the [ECHR] Convention”.91 Hence in
Saadi v. Italy, the ECtHR stated that “[States] must not
resort to methods which undermine the very values they seek to
protect”.92
- Evaluation of the Exclusionary Provisions in Article 1D
and 1E of the Convention
The application of Article 1D in UK law is with regard to
persons protected by “organs or agencies of the United
Nations” such as the United Nations Relief and Works Agency
(UNRWA). In Amer Muhammad El-Ali v. SSHD, the Supreme Court
held that “the applicant is excluded [insofar as the] UNRWA
90 Ibid, paragraph 09: “Domestic cases as I have defined them are to bedistinguished from cases in which it is not claimed that the state complained ofhas violated or will violate the applicant's Convention rights within its ownterritory but in which it is claimed that the conduct of the state in removing aperson from its territory (whether by expulsion or extradition) to anotherterritory will lead to a violation of the person's Convention rights in that otherterritory. I call these ‘foreign cases’, acknowledging that the description isimperfect, since even a foreign case assumes an exercise of power by the stateaffecting a person physically present within its territory”.91 ibid, no 89, paragraph 07. 92 ibid, no 81
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Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. continues to operate”93 to provide him with protection.
However, there is an exception in Article 1D(2) of the
Convention that explains when this exclusion clause ceases to
apply. One UNHCR report states:
if [a] person is outside UNRWA’s area of operations,he or she no longer enjoys the protection orassistance of UNRWA and therefore falls withinparagraph 2 of Article 1D, providing of course thatArticle 1C, 1E and 1F do not apply. Such a person isautomatically entitled to the benefits of the 1951Convention and falls within the competence ofUNHCR.94
The above statement by the UNHCR clarifies the contentious
question regarding the Article 1D exclusionary clause. The
term ‘ipso facto’ was subject to interpretation in the UK
definition of Article 1D. In Adan v. SSHD, the judges noted
that “the starting point must be the language itself”.95 Hence
Article 12(1)(a)(b)96 of the Council Directive provision became
93 Amer Mohammed El-Ali (Palestinians) v. The SSHD, 2002, UKIAT 00159 (July 26,2002), paragraph 17 of the judgment.94 UN High Commissioner for Refugees (UNHCR), Note on the Applicability of Article1D of the 1951 Convention relating to the Status of Refugees to PalestinianRefugees, 2 October 2002, available at:http://www.unhcr-northerneurope.org/fileadmin/user_upload/PDFdocuments/Legal/Handbooks/UNHCR_Policy_Documents_Related_to_RSD/Note%20on%20the%20Applicability%20of%20Article%201D%20of%20the%201951%20Convention%20relating%20to%20the%20Status%20of%20Refugees%20to%20Palestinian%20Refugees.pdf, accessed on 02/05/2014.95 Regina v. SSHD Ex parter Adan and Others, 1999, 1 AC 293 (July 23, 1999).96 Article 12(1)(a) of Council Directive 2004/83/EC of 29 April 2004; Article 12(1)(b) provides that: “he or she is recognised by the competent authorities of thecountry in which he or she has taken residence as having the rights and obligationswhich are attached to the possession of the nationality of that country; or rightsand obligations equivalent to those”.
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Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. relevant and impactful on Article 1D decisions in the UK and
other European States, as it provided an additional clause
that implied an automatic adhesion of the applicant into the
system of protection of the host country.97
In a different consideration, Article 1E excludes those under
application process or receiving protection in another
country. A UNCHR report states that “A central issue is that
Article 1E applies only to cases where the person is currently
recognized by the country concerned as having these ‘rights
and obligations’”. On this note, UK policy is relatively
simple compared with Articles 1F and 33(2) of the Convention
clauses. UK policy for the application of the Article 1E
exclusionary clause aligns with measures in Article 198 of the
Dublin Convention. The notable aspect of this Convention is
the uniformity of action in the application of Articles 5 and
16 of the Dublin Convention. In summary, a person seeking
97 Ibid, Article 12(1)(b) provides that: “he or she is recognised by the competentauthorities of the country in which he or she has taken residence as having therights and obligations which are attached to the possession of the nationality ofthat country; or rights and obligations equivalent to those”.98 Article 1 of Council Regulation [EC] No 343/2003, Establishing the Criteria andMechanisms for Determining the Member State Responsibility for Examining an AsylumApplication Lodged in one of the Member States by a third-country National,Official Journal of the European Union (18 February 2003). Hereinafter referred toas the Dublin Convention.
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Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. international refugee protection is required to make a claim
upon the first point of entry into the European territory.
Hence, the State of initial entry has established
responsibilities in Article 16 of the Dublin Convention
towards the asylum seeker. However, in MSS v. Belgium and
Greece, the ECtHR set limitations that apply in Article 10(1)
of the Dublin Convention. The ECtHR held that the asylum
seekers Article 3 right was violated because Belgium
“knowingly exposed him to conditions of detention and living
conditions that amounted to degrading treatment”99. Against
this background, the UK policy gains notoriety with mediocre
detention conditions and claims of Article 3 of ECHR rights
violations.
Conclusion
The task of refugee protection, as noted in this work, is
burgeoning and becoming a burden of duty on States. Notably,
there are innumerable components of interpretative mechanisms
for the assessment and application of exclusionary clauses.
This work examined several relevant areas of exclusionary99 MSS v. Belgium and Greece, App. no. 30696/09 (ECtHR, January 21, 2011) paragraph367 of the judgement.
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Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. clauses, including the mechanisms of enforcement adopted in UK
domestic laws and the common EU standard of approach under the
human rights Convention and the regional directives. The
abstract nature of the exclusion clauses was noted, as well as
the focus on criminality in this subject.
Greater emphasis is, however, placed on the exclusionary
clause of Article 1F of the Convention due to the broadness of
the actions within UK law and policy and the European Union
dimension to this question. The mini-exception in Article
33(2) of the Convention was also given relevance in this work
due to its use as justification in an overarching action
against excluded persons under Article 1F of the Convention.
The measures in UK policy are marred by evident arbitrary
decisions which are influenced by incongruity in criminal law
that permits internal rules that conflict with international
and regional regime provision. In addition, these measures –
or mechanisms of enforcement – for exclusionary clauses
receive constant disapprobation by both the domestic and
regional Courts. In light of the prevailing State enforcement
doctrine for excluded persons, which is the deportation,
Page 36 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. repatriation or removal to the home or a third country, this
is confronted by other international regimes with which it
conflicts.
Also in the findings in this work, the three exclusionary
clauses and the mini-exception (Articles 1D, 1E, 1F and 33(2)
of the Convention) contain different specifications which are
ignored in the applicable domestic mechanisms of exclusion and
expulsion. Against this background is the violation of
relevant international regimes which the UK has a commitment
to respect and uphold. Discourse on how domestic measures
infringe on Article 3 of the ECHR and the non-refoulement
right as expressed in Article 3 of the ICCPR leads to the
question of the validity, or legality, of the criminality
approach to asylum seekers in UK law and policy.
In addition, this work contends that the UK’s criminality
approach towards asylum seekers, instead of the hospitality
approach as expressed in the Convention, influences decisions
on exclusionary clause assessment criteria. Most of these
criteria conflict with international set standards and other
areas of international law. Notably, the criminalPage 37 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. investigation powers of the UK Border Agency and the criteria
for determining an applicant’s credibility undermine the core
expression of the Convention mandate for refugee protection.
The substance of UK law and policy in the exclusionary clauses
is isolated from the vague concept of the Convention, the
outstretched expressions of the four directives and the
incongruity of domestic legislation. This barrage of
applicable legal instruments in the refugee protection regime
creates discourse on the legal satisfaction of the exclusion
clauses in the Convention. A case in point is the right of
children conscripted to war as soldiers and who have committed
such crimes as defined in Article 1F. Another case in point is
the emergence of an international criminal tribunal which has
jurisdiction for prosecuting offences under Article 1F (a) and
1F(c). These observations and arguments suggest another
remedy for the protection of those excluded but who have a
“well-founded fear of being persecuted”.100
In the end, the UK policy fixation on asylum seekers’ criminal
assessment deviates from State obligation regarding the
100 Article 1A of the 1951 Refugee Convention.
Page 38 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. underlining question of the protection of refugees towards
hunting for whom to exclude from the process and remove from
the country.
Bibliography:
- Books
Anker, D., Law of Asylum in the United States, 1999, West Publishing
Company.
Clayton, G., Textbook on Immigration and Asylum Law, 2012 New York:
Oxford University Press.
Dummett, A. and Nicol, A. G. L., Subjects, Citizens, Alliens and
Others: Nationality and Immigration Law, 1990, Weidenfeld and
Nicolson.
Eissen, M., The Principle of Proportionality in the Case-Law of the
European Court of Human Rights: published in Ronald St John
Macdonald, Franz Matscher and Herbert Petzold (eds), The European
System for the Protection of Human Rights, 1993, Martinus Nijhoff,
pp. 125-37
Ghandhi, S. (ed), Blackstone’s International Human Rights Documents,
2012, Oxford University Press.
Page 39 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. Gilbert, G., Current Issues in the Application of Exclusion
Clauses, 2003, Cambridge University Press.
Goodwin-Gill, G. and McAdam, J., The Refugees in International Law,
(2007) New York: Oxford University Press.
Grahl-Madsen, A., The Status of Refugees in International Law:
Refugee Character, 1966, Almquist & Wiksell Sijthoff.
Hathaway, J., Reconceiving International Refugee Law, 1997,
Martinus Nijhoff Publishers.
Hathaway, J., The Law of Refugee Status, 1993, Cambridge University
Press.
McNamara, D., Exclusion Clauses: Closer Attention Paid to the
Exclusion Clauses, 1997, published in Refugee and Asylum Law:
Assessing the Scope for Judicial Protection, International
Association of Refugee Law Judges, Nederlands Centrum Buitenlanders.
Van Krieken, P. J., (ed.) Refugee Law in Context: The Exclusion
Clause,1999, T.M.C. Asser Press.
Weis, P., The Refugee Convention, 1951:Travaux Preparatoires
Analysed with A Commentary, 1995, Cambridge University Press.
- Cases
Page 40 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. AH (Sudan) v. SSHD,2007, EWCA Civ 297 (April 04, 2007).
Al Sirri (FC) and DD (Afghanistan) v. SSHD, 2012, UKSC 54 (November
21, 2012).
Amer Mohammed El-Ali (Palestinians) v. The SSHD, 2002, UKIAT 00159
(July 26, 2002).
Chahal v. the United Kingdom, App. no. 22414/93 (ECtHR, November 15,
1996).
Gurung v. SSHD, 2002, UKIAT 04870, (October 14, 2002).
H. and B. v. the United Kingdom, App. nos. 70073/10 and 44539/11
(ECtHR, April 09, 2013).
MF (Nigeria) v. SSHD, 2013, EWCA Civ 1192 (October 8, 2013).
MSS v. Belgium and Greece, App. no. 30696/09 (ECtHR, January 21,
2011).
Rehman v. SSHD, 2001, UKHL 47 (October 11, 2001).
Regina v. SSHD Ex parter Adan and Others, 1999, 1 AC 293 (July 23,
1999).
Regina v. SSHD, ex parte Razgar, 2003, EWCA Civ 840 (June 9, 2003).
Page 41 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. Regina v. SSHD ex parte Thangarasa; Regina v. SSHD, ex parte
Yogathas [2002] UKHL 36 (October 17, 2002).
Saadi v. Italy, App. no. 37201/06, (The ECtHR, February 28, 2008).
Soering v. the United Kingdom, App. no. 14038/88, (The ECtHR, July
7, 1989).
Ullah and Do (FC) v. The SSHD, 2004, UKHL 26 (June 17, 2004).
Vilvarajah and Others v. the United Kingdom, app. no 13163/87,
13164/87, 13165/87, 13447/87, 13448/87 (ECtHR, October 30, 1991).
ZH (Tanzania) v. SSHD, 2011, UKSC 4 (February 01, 2011).
- Charter, Conventions, Legislations and Treaties
Asylum and Immigration Appeals Act 1993, United Kingdom of Great
Britain and Northern Ireland, Chapter 23, (July 01, 1993), available
at: http://www.legislation.gov.uk/ukpga/1993/23/section/2, accessed
on 25/04/2014
Asylum and Immigration (Treatment of Claimants, etc) Act 2004,
United Kingdom of Great Britain and Northern Ireland, Chapter 19.
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment 1984, United Nations Treaty Series, Vol.
Page 42 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. 1465, p. 85, Available at:
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx,
accessed on 02/05/2014.
Council of the European Union, Council Regulation [EC] No 343/2003
of 18 February 2003: Establishing the Criteria and Mechanisms for
Determining the Member State Responsibility for Examining an Asylum
Application Lodged in one of the Member States by a third-country
National, Official Journal of the European Union, L 50/1-50/10
(February 25, 2003); (EC)No 343/2003.
Council of the European Union, Council Directive 2004/83/EC of 29
April 2004 on Minimum Standards for the Qualification and Status of
Third Country Nationals or Stateless Persons as Refugees or as
Persons Who Otherwise Need International Protection and the Content
of the Protection Granted, Official Journal of the European Union, L
304/12-304/23 (April 29, 2004); 2004/83/EC.
Council of the European Union, Council Directive 2005/85/EC of 1
December 2005 on Minimum Standards on Procedures in Member States
for Granting and Withdrawing Refugee Status, 2 January 2006, OJ L
326 (December 13, 2005), Available at:
http://www.asylumlawdatabase.eu/en/content/en-asylum-procedures-
Page 43 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. directive-directive-200585ec-1-december-2005#Art%2028, accessed on
25/04/2014.
Convention Relating to the Status of Refugees, 28 July 1951, United
Nations, Treaty Series, vol. 189, p. 137, available at:
http://www.unhcr.org/3b66c2aa10.html, accessed on 25/04/2014.
Convention on the Rights of the Child, 1989, United Nations, Treaty
Series, Vol. 1577, p. 3, available at:
http://www.ohchr.org/en/professionalinterest/pages/crc.aspx,
accessed on 26/04/2014
Immigration Act 1971, United Kingdom of Great Britain and Northern
Ireland, Chapter 77, (October 28, 1971), available at:
http://www.legislation.gov.uk/ukpga/1971/77/schedule/2, accessed on
02/05/2014.
Immigration and Asylum Act 1999, United Kingdom of Great Britain and
Northern Ireland, 1999 Chapter 33 (November 03, 1999).
Immigration, Asylum and Nationality Act 2006, United Kingdom of
Great Britain and Northern Ireland, Chapter 13 (March 30, 2006).
Nationality, Immigration and Asylum Act 2002, United Kingdom of
Great Britain and Northern Ireland, 2002 Chapter 41 (November 7,
2002).
Page 44 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. The Immigration Rules part 11: Asylum, Home Office and UK Visas and
Immigration (13 February 2014), available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data
/file/279712/Immigration_Rules_-_Part_11.pdf, accessed on
26/04/2014.
The United Nations, UN General Assembly Resolution 21/2198, 1966,
Available at: http://www.un-documents.net/a21r2198.htm, accessed on
25/04/2014.
The United Nations, UN General Assembly Res. 44/25, 1989, Available
at: http://www.un.org/documents/ga/res/44/a44r025.htm, accessed on
24/04/2014.
UK Border Act, 2007, available at:
http://www.legislation.gov.uk/ukpga/2007/30/section/32, accessed on
23/04/2014.
United Nations General Assembly, Rome Statute of the International
Criminal Court, (July 17, 1998).
United Nations General Assembly, International Covenant on Civil and
Political Rights 1966, United Nations Treaty Series, Vol. 999, p.
171, available at:
Page 45 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx,
accessed on 02/05/2014.
- Journals
Bliss, M., Serious Reasons for Considering: Minimum Standards of
Procedural Fairness in the Application of the Article 1F Exclusion
Clauses, 2000, International Journal of Refugee Law, 12 (Suppl. 1),
pp. 92-132.
Goodwin-Gill, G. S., Editorial: Asylum 2001 – A Convention and a
Purpose, 2001, International Journal of Refugee Law, Vol. 1, Ser.
13.
Happold, M., Excluding Children from Refugee Status: Child Soldiers
and Article 1F of the Refugee Convention, 2002, American University
International Law Review, Vol. 17, Issue No 6, pp. 1131-1176.
Hathaway, J. C., the Evolution of Refugee Status in International
Law: 1920—1950, 1984, International and Comparative Law Quarterly,
Vol. 33, Issue 02, pp 348-380.
Nyinah, M. K., Exclusion Under Article 1F: Some Reflections on
Context, Principles and Practice, 2000, International Journal of
Refugee Law, 12, pp. 295-316.
Page 46 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. Zagor, M., Persecutor or Persecuted: Exclusion Under Article 1F(A)
and (B) of the Refugees Convention, 2000, 23 UNSW Law Journal, Vol.
3, pp. 177-178.
- Reports
Handbook on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees, 1992, United Nations High Commissioner for
Refugees, HCR/IP/4/Eng/Rev. 1, Available at:
http://www.unhcr.org/3d58e13b4.html, accessed on 24/04/2014.
UN Ad Hoc Committee on Refugees and Stateless Persons, Ad Hoc
Committee on Refugees and Stateless Persons, Third Report of the
Drafting Committee on Articles of the Draft Convention relating to
the Status of Refugees (E/AC.32/L.40 and E/1703/Add.7), 23 August
1950, E/AC.32/L.42/Add.2.
UN High Commissioner for Refugees (UNHCR), Global Consultations on
International Protection/Third Track: Asylum Processes (Fair and
Efficient Asylum Procedures), 31 May 2001, EC/GC/01/12, available
at: http://www.refworld.org/docid/3b36f2fca.html, accessed on
23/04/2014.
Page 47 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words. UN High Commissioner for Refugees (UNHCR), Guidelines on
International Protection No. 5: Application of the Exclusion
Clauses: Article 1F of the 1951 Convention relating to the Status of
Refugees, 4 September 2003, HCR/GIP/03/05,
Available at: http://www.refworld.org/docid/3f5857684.html, accessed
on 26/04/2014].
UN High Commissioner for Refugees (UNHCR), Note on the Applicability
of Article 1D of the 1951 Convention relating to the Status of
Refugees to Palestinian Refugees, 2 October 2002,
Available at:
http://www.unhcr-northerneurope.org/fileadmin/user_upload/PDFdocumen
ts/Legal/Handbooks/UNHCR_Policy_Documents_Related_to_RSD/Note%20on
%20the%20Applicability%20of%20Article%201D%20of%20the
%201951%20Convention%20relating%20to%20the%20Status%20of%20Refugees
%20to%20Palestinian%20Refugees.pdf, accessed on 02/05/2014.
The House of Commons Home Affairs Committee, Session 2003-04 Second
Report, Asylum Applications, HC 218,
Available at:
http://www.publications.parliament.uk/pa/cm200304/cmselect/cmhaff/
218/218.pdf, accessed on 26/04/2014.
Page 48 of 49
Module: International Protection of Refugees; Module Code: 22930. Essay Title: Critically examine the Exclusionary Clauses of Article 1 of the 1951 Convention Relating to the Status of Refugees with special reference to the law and policy of the United Kingdom. By Student No. 201201810. 5,432 Words.
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