[2024] UKUT 00323 (IAC)

A fundamental principle of the Refugee Convention is that a person becomes a refugee as soon as they meet the relevant criteria contained in Article 1A(2) i.e. to be outside their country of nationality or former habitual residence owing to a well-founded fear of persecution for one of the five Convention reasons (‘Convention Refugee Status’).

A person who satisfies the criteria is a refugee whether or not they have been formally recognised as such by a Contracting State. If a person has not been recognised as a refugee by a Contracting State, their status comes to an end as soon as they no longer satisfy the criteria of Article 1A(2).

A grant of status is a declaratory act. When a Contracting State such as the United Kingdom grants leave to remain as a refugee it is recognising an existing status under international law. As a signatory to the Convention, and in accordance with the rule of law, the United Kingdom undertakes to respect the rights and benefits associated with that status as outlined in the Convention. However, the Convention is silent as to how that status is to be recognised or what mechanism should be used to ensure that the rights and benefits of refugee status are respected.

A person is no longer a refugee if one of the specified circumstances set out in the cessation clauses contained in Article 1C apply: see Hoxha & Anor v SSHD [2005] UKHL 19; [2005] 1WLR 1063.

If information comes to light to show that there are serious reasons for considering that a person should be excluded from the protection of the Convention Article 1F might apply: seeJS (Sri Lanka) v SSHD [2010] UKSC 15; [2011] AC 184, Al-Sirri v SSHD [2012] UKSC 54; [2013] 1 AC 745, and KM (exclusion; Article 1F(a); Article 1F(b)) DRC [2002] UKUT 00125 (IAC).

As the United Nations High Commissioner for Refugees (‘UNHCR’) has pointed out in its submissions in this case (see [65] below), the Refugee Convention contains no principle of ‘revocation’ of refugee status. If a person has been formally recognised as a refugee by a Contracting State, and either the cessation or the exclusion clauses apply, a grant of leave to remain recognising refugee status can be cancelled or withdrawn (the wording generally used by the UNHCR (Footnote: ¹)). In practical terms, any leave to remain recognising Convention Refugee Status might then be ‘revoked’ (the wording generally used in domestic immigration law and previously used in the Qualification Directive (2004/83/EC)).

Article 33(1) of the Convention sets out another key tenet, the principle of non-refoulement. No contracting state shall expel or return a refugee (whether recognised or not) in any manner to the frontiers of territories where their life or freedom would be threatened for any of the five Convention reasons: see R v SSHD, ex parte Bugdaycay [1986] UKHL 3; [1987] AC 514 and R (on the application of AAA (Syria) and Ors) v SSHD [2023] UKSC 42; [2023] 1 WLR 4433.

Article 33(2) provides an exception to this fundamental principle in cases where there are reasonable grounds for regarding the person as a danger to the security of the host country, or who, having been convicted of a particularly serious crime, constitutes a danger to the community of the host country. Article 33(2) is not an exclusion clause within the meaning of the Convention. Article 33(2) is more accurately described as an exception to the principle of non-refoulement.

In contrast to cessation or exclusion, Article 33(2) is not a mechanism by which Convention Refugee Status is cancelled or withdrawn. It is a mechanism designed to allow a host state to remove a refugee who has committed a particularly serious crime and who poses a current danger to the community. If the criteria contained in Article 33(2) are applied properly according to the intended purpose of the Convention, the person does not lose their status as a Convention refugee but they become a ‘removable refugee’.

Because of the serious consequences of expelling a person who has a well-founded fear of persecution, the Convention only permits an exception to the principle of non-refoulement if the refugee poses a sufficiently serious danger to the community of the host state.

It should become clear from this analysis that the exception to the principle of non-refoulement outlined in Article 33(2) is of a different nature to the cessation and exclusion clauses. The application of Article 33(2) does not involve the loss of Convention Refugee Status within the meaning of Article 1A(2). In contrast, Article 1C involves the cessation of status because a person no longer satisfies the criteria contained in Article 1A(2) and Article 1F involves exclusion from refugee status even if a person still satisfies the criteria contained in Article 1A(2).