Article 31 and inadmissibility under Part 4A Nationality, Immigration and Asylum Act 2002

Many practitioners will be aware that the Secretary of State for the Home Department's ("SSHD") "Rwanda plan" met with the Court of Appeal's disapproval recently in a majority decision in AAA (Syria) & Ors, R (On the Application Of) v Secretary of State for the Home Department [2023] EWCA Civ 266 (on appeal from the High Court: AAA v Secretary of State for the Home Department (Rwanda) [2022] EWHC 3230). The Court found that any attempt to remove refugees to Rwanda whose claims the SSHD adjudged to be inadmissible would breach the non-refoulment provisions of Article 33 of the 1951 Refugee Convention ("RC") and thereby also Article 3 of the 1950 European Convention of Human Rights ("ECHR").

Article 33 prevents signatory states from "refouling" (from the French "to push back") refugees to their country of nationality or origin when they have a well-founded fear of persecution there; recall also that refugee status recognition by State parties is merely that, i.e., recognition of a pre-existing state and therefore declaratory.

However, as I discuss below, an intriguing possibility remains that refugees might be able to argue that a decision by the SSHD to adjudge a status recognition claim inadmissible under Part 4A of the Nationality, Immigration and Asylum Act 2002 Act ("the 2002 Act") is a breach of Article 31 of the Refugee Convention without reference to removal, despite comments to the contrary by the courts in AAA.

It is worth noting at this point the statutory scheme for inadmissibility decisions has altered since the decisions under appeal in AAA were made, and since 28 June 2022 these decisions are made under Part 4A of the 2002 Act (specifically ss 80B and 80C) and paragraph 327F of the Immigration Rules.

RC Article 31 provides, insofar as is relevant:

Article 31 - refugees unlawfully in the country of refugee

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly [1] from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

This article is directed squarely at the non-penalisation of refugees who are illegal entrants to signatory states, and as such, naturally lacks the "...lawfully present..." qualifying condition of Article 32 which, along with Article 33 is concerned with expulsion.

Penalties for the purposes of Article 31 are not however solely limited to criminal penalties associated with the act of unlawful physical entry into the signatory state [2] – in fact, within scope are any penalties imposed as a result of the unlawful entry, too. This means that, for example, a refugee cannot be denied entry to a complete refugee status assessment because an unlawful entry [3] nor indeed can they be prevented from applying for asylum because they are the receipts of signatory state domestic law removal orders [4].

From reading the introduction to the SSHD's own Part 4A inadmissibility guidance to her caseworkers (cited below) it seems eminently arguable that inadmissibility itself is punitive, and intentionally so (emphasis added) [5]:

The UK is committed to providing protection to those who need it, in accordance with its international obligations. Irregular migration from those already in safe countries undermines efforts to help those most in need. Controlled resettlement via safe and legal routes is the best way to protect those in need of protection and disrupt the organised crime groups that exploit migrants and refugees.

The inadmissibility process is intended to support safety of asylum seekers, the integrity of the border and the fairness of the asylum system, by encouraging asylum seekers to claim protection in the first safe country they reach and deterring them from making unnecessary and dangerous onward journeys to the UK.

In broad terms, asylum claims may be declared inadmissible and not substantively considered in the UK, if the claimant was previously present in or had another connection to a safe third country, where they claimed protection, or could reasonably be expected to have done so, provided there is a reasonable prospect of removing them in a reasonable time to a safe third country.

Consequently, it therefore also seems at least arguable that the SSHD's current scheme for inadmissibility offends against the non-penalisation provisions of Article 31 since inadmissibility applies to "irregular" migrants seeking protection in the UK (i.e., unlawful entrant refugees who have entered the UK seeking recognition as such) and results in intentional non-consideration of their asylum claim.

It is important to be clear that: (a) under this inadmissibility statutory scheme, a decision of the executive to adjudge the claim as inadmissible is an essential precursor to removal to a safe third State (including Rwanda before AAA) and (b) therefore as matter of principle and practicality, the penalty under Article 31 is not the removal itself, but rather it is the failure to substantively consider the refugee's claim to be recognised as such before removal.

Nevertheless, how did the Courts deal with this issue in AAA, since Article 31 did feature in the claimants' arguments?

In short, there appears to have been a measure of confusion about the ambit of Article 31, perhaps understandably in view of the focus on conditions in Rwanda and therefore removal and the refoulment prohibition under Article 33, but also because what looks like an unfortunate misunderstanding of this quote from Professor James C. Hathaway in his magisterial "The Rights of Refugees under International Law":

"... As such, the Irish Court of Appeal's worry that Art. 31 might interfere with the operation of an orderly system to accommodate asylum responsibilities is in fact answered by that article itself: a "first country of arrival" rule cannot be successfully attacked under Art. 31, as the sanction imposed under such systems is precisely expulsion to another non-persecutory state." [6]

The High Court in AAA found that neither inadmissibility alone nor inadmissibility preceding removal is a breach of the RC [7] seemingly on the basis of Professor Hathaway's accurate observation (cited above) that Article 31 does not prohibit expulsion of a refugee from a signatory state, as follows:

"125. There is, therefore, a clear consensus. Article 31 does not prevent a state expelling a refugee. States must not act in breach of article 33; removal that is not contrary to article 33 is not a penalty for the purposes of article 31. On this basis, neither decisions on inadmissibility under paragraph 345A of the Immigration Rules, nor decisions under paragraph 345C on removal to Rwanda are contrary to the Refugee Convention..."

The Court seems to have mistakenly assumed that the only relevant Article 31-prohibited penalty would be removal contrary to the non-refoulment provision in Article 33 – I argue here that this is not so, and it is not, I believe, what Professor Hathaway implied in the underlined passage (above) in "The Rights of Refugees under International Law". What is being said there is simply that Article 31 cannot be interpreted as applying to removal in a stand-alone capacity, because it is simply directed at excluding the refugee from signatory state domestic penalties. It does not logically follow, however, that the SSHD does not also breach Article 31 by failing to consider a refugee's claim for recognition under Part 4A of the 2002 Act, as explained above.

This point seems to a have been taken, by Raza Hussain KC in AAA in the Court of Appeal as follows, with direct reference to the Canadian case B010:

326. Both counsel relied on the decision of the Supreme Court of Canada in B010 v Canada [2015] 3 SCR 704. The case concerned a Canadian statutory provision – section 37 (1) of the Immigration and Refugee Protection Act 2001 – which rendered a person "inadmissible", which effectively denied them access to refugee determination procedures, if they had engaged in "in the context of transnational crime, activities such as people smuggling". The issue was whether on its true construction that provision applied to illegal migrants who had assisted other illegal migrants but had not done so in return for any financial or other benefit. The Court held that it did not. As part of her reasoning in support of that construction McLachlin CJ, delivering the judgment of the Court, held that "omitting a financial or other benefit limitation" would be inconsistent with article 31 (1) of the Convention: see para. 62 of her judgment. At para. 57 she sets out article 31 (1) and adopts a statement in a textbook that:

"an individual cannot be denied refugee status – or, most important, the opportunity to make a claim for such status through fair assessment procedures – solely because of the way in which that person sought or secured entry into the country of destination"

and that

"[o]bstructed or delayed access to the refugee process is a 'penalty' within the meaning of art. 31(1) …".

At para. 63 she says:

"The respondents contend that art. 31(1) of the Refugee Convention refers only to criminal penalties. This interpretation runs counter to the purpose of art. 31(1) and the weight of academic commentary: J. C. Hathaway, The Rights of Refugees Under International Law (2005), at pp. 409-12; Gallagher and David, at pp. 164-68; G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law (3rd ed. 2007), at p. 266. The generally accepted view is that denying a person access to the refugee claim process on account of his illegal entry, or for aiding others to enter illegally in their collective flight to safety, is a 'penalty' within the meaning of art. 31(1). The law recognizes the reality that refugees often flee in groups and work together to enter a country illegally. Article 31(1) thus does not permit a state to deny refugee protection (or refugee determination procedures) to refugees solely because they have aided others to enter illegally in an unremunerated, collective flight to safety. Rather, it targets those who assist in obtaining illegal entry for financial or other material benefit."

327. Mr Husain relied on the words that I have italicised [here, underlined] and submitted that they were directly applicable to the present case. He acknowledged that the Court in B10 was not concerned with a situation where the migrant would be being removed to a safe third country, but he submitted that that was immaterial. I do not agree. In my view it is a crucial distinction. The views endorsed by McLachlin CJ in paras. 57 and 63 of her judgment are concerned with denial of, or obstructions or delay to, access to the refugee determination process for a migrant who is in the country. They are not concerned with expulsion, as to which, as I have sought to show in connection with ground 10, the Convention imposes no restrictions save for the duty of non-refoulement imposed by article 33.

It is unfortunate that the Court did not go on to make findings on the SSHD's pre-28 June 2022 inadmissibility decisions' compliance with the Article 31 non-penalisation provision, in line with the learning of McLachlin CJ in B010, but focused instead on removal. It may be that this discrete issue is open to further clarification in future proceedings arising from a post-28 June 2022 inadmissibility decision.

The author wishes to thank Julian Wells for valuable comments on a draft of this article.

[7] Paragraphs 124 and 125