[2024] UKUT 00323 (IAC)

‘UNHCR wishes to emphasise that its view differs from the guidance set out in section 6 of the HO’s asylum policy instruction on the revocation of refugee status in that it considers revocation of refugee status to refer only to circumstances set out in paragraph 339AC(ii) of the Immigration rules where a refugee’s subsequent conduct is so serious as to give rise to exclusion under either Article 1F(a) or 1F(c) of the 1951 Convention. UNHCR does not consider the grounds set out in subsections (i) and (ii) of paragraph 339AC (which repeat the relevant grounds in Article 33(2) of the 1951 Convention) to be pertinent to revocation proceedings. We wish to emphasise that Article 33(2) does not provide for the withdrawal of refugee status.

In making this comment, UNHCR appreciates that Article 14(4)(b) of the European Council Qualification Directive 2004/83/EC repeats the provisions of the second paragraph of Article 33(2) as a ground for States to “revoke, end or refuse to renew the status granted to a refugee”. UNHCR continues to reiterate that Article 14(4) of this Directive runs the risk of introducing substantive modifications to the exclusion and cessation clauses of the 1951 Convention, by adding the provision of Article 33(2) of the 1951 Convention as a basis for exclusion, revocation, or termination of refugee status. Assimilating the exceptions to the non-refoulement principle permitted under Article 33(2) to the exclusions clauses of Article 1F or Article 1C would therefore be incompatible with the 1951 Convention. To avoid such an outcome, “status granted to a refugee” in Article 14(4) of the Directive is therefore understood to refer to the asylum (‘status’) granted by a State rather than refugee status in the sense of Article 1A(2) of the 1951 Convention.

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UNHCR reiterates that Article 33(2) does not provide for the withdrawal of refugee status and that the exception to non-refoulement under section 72 of the NIA Act 2002 sets thresholds that differ from those intended under the 1951 Convention. Additionally, UNHCR remains concerned that the application of section 72 of the NIA Act 2002 can set the basis for the designations of persons for Special Immigration Status pursuant to Part 10 of the Criminal Justice and Immigration Act 2008. This could occur in cases where Article 33(2) standards are not being met in applying section 72 of the NIA Act 2002 and would result in the protection owed under the 1951 Convention to affected refugees being undermined. UNHCR notes that under section 130(5) of the Criminal Justice and Immigration Act 2008 “the Secretary of State may not designate a person if the secretary of state (sic) thinks that an effect of designation would breach (a) the United Kingdom’s obligations under the Refugee Convention.....” UNHCR urges the HO to take this safeguard into account when considering the designation of persons for Special Immigration Status based on the application of section 72 of the NIA Act 2002.‘