Commentary on Sections Refugee convention Section 33 Certificate that Convention does not apply
93.Section 33 introduces new arrangements for the consideration and associated appeal to SIAC of asylum claims made by certain individuals. These are individuals whom the Secretary of State has certified as being excluded from refugee status or not entitled to the protection of Article 33(1) of the Refugee Convention because Article 1(F) and/or Article 33(2) of that Convention apply, and whose removal from the UK would be conducive to the public good. Where such a certificate is made, SIAC will, in hearing the asylum appeal, be able to consider only the statements made in that certificate, and will not be able to consider whether a person has a well-founded fear of persecution.
94.Article 33(1) - often termed the non-refoulement provision - prevents the removal of a refugee where this would lead to their life or freedom being threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. Article 33(2) provides an exception to this protection where there are reasonable grounds for regarding the refugee as a danger to the security of the country. Article 1(F) states that the provisions of the Convention are not to apply to persons with respect to whom there are serious grounds for considering that they have committed an offence or action listed in that Article. These include acts contrary to the purposes and principles of the United Nations, which is taken to include terrorist acts – see, for example, Article 3(3) of UN Security Council Resolution 1373, passed on 28 September 2001, which required States to “Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts”.
95.So if either or both of Article 1(F) or 33(2) applies then a person can be removed without contravening the UK’s obligations under the Refugee Convention. The Government is therefore of the view that it is not necessary to consider whether, had a person not been so excluded, he would have qualified for refugee status based on a well-founded fear of persecution. The purpose of this section is to reflect this by enabling an asylum claim to be refused solely on the basis that the applicant is excluded from the protection of the Refugee Convention.
96.Accordingly, where SIAC upholds the Secretary of State’s certificate it must dismiss such part of the appeal as amounts to a claim for asylum. If there are other elements to the appeal SIAC would proceed to consider those elements.
97.Should SIAC allow the appeal, the case would return to the Secretary of State who would have to consider the substance of the asylum claim. If the claim was still refused any appeal would lie to the Immigration Appellate Authority in the normal way (under the Immigration and Asylum Act 1999), assuming that no public interest provision applied (in which case the appeal would go back to SIAC).
98.The section provides for appeals against decisions of SIAC to be made to the Court of Appeal (or its equivalents in Scotland and Northern Ireland). It also prevents legal proceedings being take against a decision or action of the Secretary of State in connection with a certification except through SIAC; and enables, with appropriate modifications, the clause to be extended by Order in Council to any of the Channel Islands or the Isle of Man.