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Asylum - Refugee - Temporary admission
R (on the application of ST (Eritrea)) v Secretary of State for the Home Department: Supreme Court (Lords Hope DP, Brown, Mance, Kerr, Clarke and Dyson, Lady Hale): 21 March 2012
Section 11(1) of the Immigration Act 1971, provides: 'A person arriving in the UK by ship or aircraft shall for purposes of this act be deemed not to enter the UK unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the UK so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the UK shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by schedule 2 to this act.'
Article 32(1) of the Refugee Convention 1951 provides: 'The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.' Article 32 of the 1951 Geneva Convention relating to the Status of Refugees (1951) prohibited contracting states from expelling a refugee 'lawfully in their territory save on grounds of national security or public order'. The issue in the instant appeal concerned the question of whether an appellant was 'lawfully' in the UK. The appellant in question was of Eritrean nationality.
She had never lived in Eritrea and was formerly resident in Ethiopia. On 3 July 1998, the appellant came to the UK. She immediately claimed asylum on the ground that she feared persecution in both Eritrea and Ethiopia. She was granted temporary admission into the UK under paragraph 21 of schedule 2 to the 1971 act. The appellant's claims were refused by the respondent secretary of state.
The appellant was informed that the secretary of state proposed to give directions for her removal to Eritrea. The appellant appealed to an adjudicator. The adjudicator dismissed the appeal on the basis that the appellant could safely be returned to Ethiopia. The appellant appealed to the Asylum and Immigration Tribunal (the tribunal). The senior immigration judge held that the adjudicator had erred, that the appellant was a refugee and that she was entitled to international protection as her fear of persecution in Eritrea for the purposes of the Convention was well founded.
He further found that the appellant's removal to Eritrea would be unlawful as it would lead to her ill-treatment contrary to her protected rights under article 3 of the Convention. The secretary of state did not appeal against that decision. In August 2006, the secretary of state issued a 'fresh reasons for refusal' letter and a new notice of decision to refuse the appellant leave to enter (the August decision). Despite being recognised to be a refugee from Eritrea, the appellant was told that her claims had been examined on the basis that she was an Ethiopian national. The appellant was refused leave to enter the UK and she was notified that directions would be given for her removal to Ethiopia.
The appellant started proceedings for judicial review of the August decision. The deputy judge of the High Court quashed the decision declining to grant the appellant refugee status and ordered the secretary of state to recognise her as a refugee and grant her leave to remain ( All ER (D) 221 (Dec)). In reaching that decision the deputy applied Szoma v Secretary of State for Work and Pensions  1 All ER 1, which held that the term ‘refugee’ in article 32(1) of the Convention meant someone already determined to have satisfied the article 1 definition of that term. Accordingly, the deputy judge found that the effect of the tribunal’s determination that the appellant was a refugee of itself meant that she had a right to stay in the UK under article 32 of the Convention. The Court of Appeal reversed the deputy judge's decision, having found that article 32 applied only to a refugee who had been granted leave to enter and to stay in the UK. The appellant appealed to the Supreme Court.
The issue to be considered was whether the protection of article 32 of the Convention extended to a refugee, such as the appellant, who had been temporarily admitted to the UK according to the rules of its domestic law and had engaged with the processes that its legislation provided to determine his status, but had not yet been given leave to enter or to remain in the UK.
In other words, whether article 32 applied only to a refugee who had been given the right lawfully to stay in the contracting state, as its domestic law would answer that question, or whether the words 'lawfully present in the territory' were to be given an extended and autonomous meaning, so as to ensure that a refugee who had not yet been given a right to remain in the territory was afforded protection under article 32 that extended beyond the basic obligation under art 33 not to expel or return to a territory where his life or freedom would be threatened for a Convention reason. The appeal would be dismissed.
The word 'lawfully' in article 32(1) of the Convention had to be taken to refer to what was to be treated as lawful according to the domestic laws of the contracting state. There was nothing in article 32(1) of the Convention which required section 11(1) of the act to be disapplied. It followed that a refugee, who was given temporary admission pending determination of her status, was not lawfully in the UK (see , ,  of the judgment). That interpretation was consistent with the fundamental principle that the power to admit and expel was a power of the sovereign state (see ,  of the judgment).
In the instant case, the appellant was not lawfully in the UK. It was clear that she had not yet been given leave to enter or to remain in the UK. She was still liable to be detained and, in the words of section 11(1) of the act, she was deemed not to have entered the country. It followed that the appeal would be dismissed (see , ,  of the judgment). Adan v Secretary of State for the Home Department  2 All ER 453 applied; Bugdaycay v Secretary of State for the Home Department  1 All ER 940 considered; T v Immigration Officer  2 All ER 865 considered; Szoma v Secretary of State for the Department of Work and Pensions  1 All ER 1 distinguished. The Court of appeal, Civil Division  4 All ER 314 affirmed.
Richard Drabble QC, Eric Fripp and Emma Daykin (instructed by Duncan Lewis Solicitors) for the appellant; Lisa Giovannetti QC and Rory Dunlop (instructed by the Treasury solicitor) for the secretary of state.
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