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When is a refugee not a refugee? (20 April 2012)

Date: 20/04/2012
Duncan Lewis, Public Law Solicitors, When is a refugee not a refugee?

Following the judgment of the Supreme Court in the case of R oao Saba Tesfamichael v Secretary of State for the Home Department, [2012] UKSC 12, handed down on the 21 March 2012, the Supreme Court have given further guidance following Hoxha and B v Secretary of State for the Home Department, [2005] UKHL 19.

Ms ST is a person who had lived her whole life in Ethiopia, but was a citizen of Eritrea, though descent. She left Ethiopia, and fled to the United Kingdom, once here she spent a considerable period of time waiting the outcome of her claim for asylum, which culminated in the refusal of her asylum claim by SSHD in 2006, who therefore set directions for her removal to Eritrea. This decision was appealed to the Tribunal, which initially refused her appeal however the matter was later remitted to the Tribunal for further consideration. At this later appeal hearing the SSHD accepted that the Claimant was indeed a Refugee so far as Eritrea was concerned, but stated that she would re-set removal directions to Ethiopia, her Country of former habitual residence. The Tribunal allowed the appeal and found that the Claimant was a refugee.

The Claimant sought her status papers following this decision and eventually a further decision was made, again refusing the Claimant’s asylum claim in identical terms to the original one, but setting removal to Ethiopia, rather than Eritrea.

The Claimant sought a Judicial Review of the failure to provide her with a status document and further the decision to set further removal directions. The Claimant, to protect her position also appealed to the Tribunal. The Judicial Review came before Mrs. Justice Davis, who allowed the Judicial Review on the basis that the Claimant had been found to be a refugee , and as such was entitled to refugee status.

The Court of Appeal in turn found that the Claimant was not entitled to refugee status as whilst she had factually been found to be a refugee from Eritrea, there was still the issue of whether she could be returned to another country where the Claimant would not be persecuted for a convention reason. The case turns on the distinction between a person being a refugee (as defined under the UN Convention) and that person being granted refugee1 status by an authorised body.

Article 32 and Article 332 of the Convention provide protection from expulsion to refugees. There was no debate that Article 33 applied, but the Court of Appeal held that the Claimant had not been ‘lawfully present’ within the United Kingdom whilst her asylum claim was determined. and thus she could be expelled even if she had been found to be a refugee as not meeting the criteria for protection under Article 32.

The Supreme Court heard this mater on the 13 and 14 February 2012, giving a final order dismissing the matter on the 21 March 2012.

They held that at the time of ST’s original asylum decision the Tribunal were not an authority that could recognise a person as a refugee; they could only allow an appeal against a decision to remove someone on the basis that they faced persecution in that specific country and not declare that the person was a refugee generally. At that time recognising a person as a refugee, which has the effect of making them ‘lawfully present’ in the United Kingdom, was reserved to SSHD.

The Claimant may rely upon Article 33, in that she will not be returned to a state or place were she will suffer persecution, but the wider Article 32 could only apply to a refugee lawfully present (post formal recognition). For the purposes of the convention this did not include ‘lawfully present’ did not include a person on Temporary Admission and as such the Claimant could not claim the protection of Article 32.

Whilst the Supreme Court accepted that the Convention must be interpreted purposefully and as far as possible in accordance with generally agreed standards but in the instant case, as is often the case on refugee law, there was no consensus between the contracting parties on the effect of the protection within Article 32.

Future developments



This position has no doubt changed since the implementation of the ‘Qualification Directive’ 2004/83/EC, and it appears that if a similar issue arose today the Claimant would have been a refugee at the time the Tribunal allowed her appeal subject to any further appeal.

The matter now rests again with the Tribunal to decide whether the return of ST, this time to Ethiopia would be in breach of the Convention ;and whether in light of the considerable stay and her family life in the United Kingdom, it would be reasonable and lawful for the Claimant to be returned to a county she has never known.


1A refugee is a person who ‘owing to a 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 to or, owing to such fear, is unwilling to avail himself of the protection of that country…’ (Definition quoted from the 1951 Refugee Convention)

2 Article 32. - Expulsion
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

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.

By Adam Tear


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