R (on the application of ST (Eritrea)) (FC) v Secretary of State for the Home Department

For article 32(1) of the Refugee Convention, a refugee is lawfully in a contracting state only if the state’s domestic law gives the refugee a right to be there. Temporary admission while liable to detention does not suffice, even after refugee status has been determined.

The Convention requires a generous and purposive interpretation, but its text cannot be expanded to impose an obligation unsupported by its ordinary meaning, context, object and purpose. Article 33 protects every refugee against refoulement. Article 32 gives additional security against expulsion only to refugees lawfully present. It cannot prevent removal merely because the receiving country may not provide the full range of Convention rights.

The appellant, an Eritrean national formerly resident in Ethiopia, claimed asylum immediately after arriving in the United Kingdom in 1998. She was temporarily admitted under paragraph 21 of Schedule 2 to the Immigration Act 1971 but was never granted leave to enter or remain.

In 2006 the Asylum and Immigration Tribunal determined that she was a refugee with a well-founded fear of persecution in Eritrea. The Secretary of State subsequently refused leave to enter and proposed her removal to Ethiopia. The appellant sought judicial review.

The High Court allowed the claim in [2008] EWHC 3162 (Admin), but the Court of Appeal reversed that decision in [2010] EWCA Civ 643, [2010] 1 WLR 2858. The central issue was whether temporary admission, participation in the asylum process and recognition as a refugee made the appellant “lawfully in” the United Kingdom for article 32(1) of the Refugee Convention.

1. The appeal was dismissed unanimously. Lord Hope gave the leading judgment, with which Lady Hale, Lord Brown, Lord Mance, Lord Kerr and Lord Clarke agreed. Lord Dyson delivered concurring reasons and reached the same conclusion.

2. The Refugee Convention must be interpreted in good faith according to the ordinary meaning of its terms, in their context and in the light of its object and purpose. Its humanitarian character requires a generous and purposive construction. The court must nevertheless interpret the agreement actually made by the contracting states. It cannot add an obligation unless that obligation arises by necessary implication from the text or has obtained uniform acceptance among states.

3. The expression “lawfully in their territory” in article 32(1) refers to lawfulness under the domestic law of the contracting state. It assumes more than tolerated physical presence and requires a right to be there. The Convention contains no autonomous international standard for determining lawful presence. This construction also respects the sovereign power of states to decide whom to admit, exclude or expel.

4. Under section 11(1) of the Immigration Act 1971, a person temporarily admitted while liable to detention is deemed not to have entered the United Kingdom. The reasoning concerning that provision in R v Secretary of State for the Home Department, Ex p Bugdaycay; In re Musisi [1987] AC 514 was correct and directly applicable. Szoma v Secretary of State for Work and Pensions [2005] UKHL 64 concerned different legislation and did not decide removability under the 1971 Act. Recognition as a refugee and temporary admission therefore did not make the appellant lawfully present for article 32.

5. Article 33 protects every refugee against refoulement, whether lawfully present or not. Article 32 supplies the additional protection of indefinite security against expulsion, subject to national security and public order, only after the necessary lawful attachment has arisen. It could not be expanded to prevent removal solely because a third country might not provide the full range of Convention rights. Article 32 would therefore provide no bar if the appellant’s pending appeal against removal to Ethiopia failed, although other grounds against removal might remain.

1. United Kingdom Supreme Court: In R (on the application of ST (Eritrea)) (FC) v Secretary of State for the Home Department [2012] UKSC 12, the court unanimously dismissed the appellant’s appeal and affirmed the Court of Appeal’s conclusion.
2. Court of Appeal: In [2010] EWCA Civ 643, [2010] 1 WLR 2858, the court allowed the Secretary of State’s appeal and reversed the High Court. It held that article 32 applied only to a refugee granted leave to enter and stay.
3. High Court: In [2008] EWHC 3162 (Admin), the deputy judge quashed the refusal to grant refugee status and ordered the Secretary of State to recognise the appellant as a refugee and grant leave to remain.
4. Asylum and Immigration Tribunal: In a determination promulgated on 1 February 2006, the tribunal found that the appellant was a refugee with a well-founded fear of persecution in Eritrea. The Secretary of State did not appeal that determination.