The government’s tabloid-driven policy to get tough on refugees who commit minor criminal offences has been dealt a blow by a recent legal ruling.
For the past few years, human rights lawyers and refugee support groups have expressed increasing concern over Home Office policy to treat refugees who commit minor offences as ‘foreign national criminals’ and deport them. Now, the Court of Appeal has held that regulations issued by the Home Office authorising deportation of refugees for relatively minor offences are illegal. A legal challenge was brought by a Serbian national, EN, who was a child when he arrived in the UK and was granted refugee status.[1] When he was sentenced to twelve months in a young offenders’ institution for burglary, the Home Office told him they proposed to deport him despite his status as a refugee, and the Asylum and Immigration Tribunal dismissed his appeal. The Court of Appeal allowed EN’s appeal and sent his case back to be reconsidered.
The Refugee Convention, to which the UK and most other countries are signatories, says that those recognised as refugees should not be sent home unless they are convicted of a ‘particularly serious’ crime and are a danger to the community of the country in which they live. The issue has been who defines what is a particularly serious crime. Refugee law experts, including one of the original drafters of the Convention and a judge on the International Court of Justice (the only legal body with the authority to interpret the Convention), say that only extremely serious crimes, such as murder, would justify withdrawing the protection of the Refugee Convention. But in 2002, parliament passed the Nationality, Immigration and Asylum Act, which deemed as ‘particularly serious crime’ any offence attracting a punishment of two years’ imprisonment or more, or any offence specified in Home Office regulations. In 2004, the Home Office issued the Specification of Particularly Serious Crime Regulations, which listed offences from genocide and hijacking to theft and criminal damage (which could be stealing a milk bottle or scratching the paintwork of a car) as ‘particularly serious crimes’.
In its recent ruling, the Court of Appeal said that these trivial offences could not rationally be considered ‘particularly serious’, and struck down the regulations as unlawful. The judges made the further point that even an offence carrying two years’ imprisonment may not be ‘particularly serious’ – so that the presumption of the section could be rebutted by the proposed deportee, like the further presumption that he or she represented a danger to the community. A presumption which could not be rebutted would, they said, not be compatible with the Refugee Convention.
The ruling offers hope to a considerable number of young refugees who have been threatened with deportation on the strength of petty crimes – which themselves are frequently an unacknowledged by-product of the traumas which caused them and their families to flee their countries of origin.