Rajiv Shah: Interpretation of the law, rather than the law itself is stopping us from dealing with criminal refugees

Rajiv Shah was a legal special adviser to the previous Conservative Government.

Article 33(1) of the Refugee Convention creates the most important right there is in it: it protects an individual from being sent back to a country where they will face persecution. International lawyers call this the principle of non-refoulement.

However, the drafters of the Refugee Convention – generally conservative men who had seen the horrors of WWII – understood that with rights came responsibilities. So they inserted some exceptions: war criminals and those who committed crimes against humanity would not be protected, and if a refugee committed a ‘particularly serious crime’ or was a danger to their host country then they could be deported to their country of origin even if they would face persecution there.

As the leading authority on the Refugee Convention put it the drafters ‘were persuaded that if state parties were expected to admit serious criminals as refugees, they would simply not be willing to be bound to the Convention.’

Currently, UK law interprets ‘particularly serious crime’ as meaning anyone who received a custodial sentence of 12 months or more. Yesterday’s announcement by the Government would extend that to sexual offences where the offender got less than 12 months. This was prompted by the case of Abdul Ezedi, the Clapham chemical attacker, who had been given a sentence of less than 12 months for indecent exposure.

As the Supreme Court reminded us in the Rwanda case, the principle of non-refoulement is not just found in the Refugee Convention but is also present in the Torture Convention and the European Convention on Human Rights (ECHR).

The Torture Convention came into force in the 1980s and has been signed by almost all countries in the world. It has an absolute prohibition on non-refoulement, without any exception for criminals and terrorists, but it is limited only to torture cases. This means that if a terrorist would face cruel, inhumane or degrading treatment falling short of torture in their home country, then both the Torture Convention and the Refugee Convention allow for his deportation.

The ECHR does not explicitly say anything about non-refoulement but Article 3 says: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

From the early 1990s the Strasbourg Court has interpreted this as prohibiting deporting anyone to a country where they face a real risk of torture, inhumane or degrading treatment. And it held that this prohibition was absolute without any exception for criminality or terrorism even though the Refugee Convention allows for such exceptions.

The 2022 case of KM provides a vivid illustration of the problems this causes. KM was a police officer in the Congo who had been involved in torture. The Immigration Tribunal agreed with the Home Secretary that this meant he could be protected by the Refugee Convention (after all why should those who commit serious human rights abuses receive the protection of the very system they undermined?) but they also held that if sent back to the Congo he would face ill-treatment contrary to Article 3 and so whilst he was stripped of refugee status he could not be deported.

The same would have happened to Adbul Ezedi if that change in the law had been in effect then. He could have been stripped of refugee status but not actually deported because of Article 3 ECHR.

The principle of non-refoulement is not found explicitly in the text of the ECHR. This is not a surprise, the ECHR and the Refugee Convention were drafted in parallel to each other at the same time and it was understandably felt that issues relating to immigration and asylum would be addressed by the Refugee Convention and not the ECHR.

This is why for the first few decades the Strasbourg court never interpreted Article 3 as having any relevance to immigration. This reflected the principle of international law known as lex specialis: when there is a specific international norm that deals with an issue, the other bits of international law stay out of it.

One might question the correctness of the Strasbourg Court interpreting Article 3 as incorporating a principle of non-refoulement but insofar as this simply matched the obligations States had explicitly agreed in the Refugee Convention and the Torture Convention there is no real harm done.

What is wholly illegitimate is the Strasbourg Court interpreting Article 3 ECHR as protecting those which States explicitly decided not to protect in the Refugee Convention: war criminals, criminals against humanity, serious criminals and terrorists. In the 1980s States debated whether there should be any form of protection for those individuals and they decided that it should only apply vis-à-vis torture. There is no justification for the Strasbourg Court, only a few years later, to undo this careful balance which States agreed.

Without a change at the Strasbourg level, it will not be possible to deport serious sex offenders.