Opinion of Lord Stewart in the Petition of M S K for Judicial Review of a Decision by the UKBA [2012] CSOH 179, 27 November 2012

By Dr Noelle Quenivet. ILHRU. UWE, Bristol.


On 27 November 2012 Lord Stewart was asked to review the case of a 52-year old Ugandan visa overstayer. Whilst his task could have been an easy one it turned out that the petitioner claimed he had refugee status and thus was entitled to stay in the United Kingdom (this blog only focuses on this part of the claim). In this instance, refugee law is the appropriate legal framework to deal with such a claim. The petitioner’s argument is that Article 32(1) of the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol denies the United Kingdom the possibility to deport him, for the provision spells out that “The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.” The crux is whether the petitioner, MSK, falls within the category of a “refugee lawfully in [the] territory” of the United Kingdom.

MSK was accepted as a refugee by UNHCR in 1982 in Kenya and the same year moved to Ghana to pursue his studies. He travelled to Ghana on a 1951 Convention travel document where he obtained refugee status too. He lived in Ghana for over 20 years, got married and had four children. He travelled on several occasions to the UK having applied for a multi entry visitor visa and then for a student visa. He was employed in the UK until his employer realised that he did not have leave to remain in the UK. In 2008 MSK was served with form IS151A directions for removal as an overstayer and consequently placed in immigration detention, thereupon he applied for asylum. As his claim for asylum was denied he was served with directions for removal to Uganda or Ghana which after appealed were limited to removal to Ghana. Yet MSK stayed in the UK and re-emerged in the UK judicial system in 2011 after he was asked to leave the UK without delay failing which his removal might be enforced.

Lord Stewart clearly rejects the petitioner’s view that he is “a refugee lawfully in the territory” of the United Kingdom (para 12) and puts forward four reasons. First Lord Stewart explains that “the lawful presence of a refugee depends on the refugee having official permission, in some sense, to be in the host state as a refugee.” (para 12, italics in original) In other words when entering the country a refugee who wishes to later invoke Article 32(1) must made the State aware that he has been previously granted refugee status. This is certainly a sound argument as for the State to know that it owes duties towards a refugee it must know that the individual is a refugee in the first instance. Much of the ensuing discussion revolves around the discussion on the concept of “lawful presence”. Based on the opinion voiced in the ST case (R (on the Application of ST (Eritrea)) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2012] UKSC 12, paras 32-33), and heavily relying on a secondary literature that comments on the travaux préparatoires of the Convention Lord Stewart first rejects the distinction between “physical presence”, “lawful presence”, “lawful stay or residence” and “habitual residence” and then states that “lawful presence” does not cover overstayers: the individually must be lawfully in the country. After reviewing secondary literature as well as the abovementioned case, Lord Stewart concludes that no autonomous 1951 Convention meaning can be given to the expression “lawful presence” (see also R (On the Application of ST (Eritrea)), para 55).

This neatly brings Lord Stewart to discuss his second point, that is that the expression “lawful presence” must be determined by UK domestic law (para 15). Again, Lord Stewart correctly applies the law as the 1988 UNHCR Lawfully Staying – A Note on Interpretation, explains that the “lawfulness” of the stay [is] to be judged against national rules and regulations governing such a stay” (para 8). After examination of the Immigration and Asylum Act 1999 Lord Stewart stated that as of 7 January 2004 the appellant had been unlawfully in the country. Third, Lord Stewart quickly dismissed the artificial distinction between “leave to enter” and “leave to remain” (para 17).

In his fourth point, Lord Stewart goes back to interpreting the Convention, this time adopting a contextual approach to Article 32 by explaining that Articles 31, 32 and 33 appear to form a whole system of non-refoulement protection for refugees present in the host State: Article 31 applies to refugees whose presence is irregular, have presented themselves without delay and explained their presence, Article 32 deals with refugees whose presence is regular and cannot be expelled (barring on the grounds of national security and public order), and Article 33 applies to all refugees (irrespective of the lawfulness of their presence in the country) as they cannot be returned to territories where their lives or freedom would be threatened (para 18). To bolster up his opinion Lord Stewart examines the terminology used in the French version of the Convention as required by Article 33 of the 1969 Vienna Convention on the Law of Treaties when “the text is equally authoritative in each language.” Clearly the use of the adjectives “regular” and “irregular” in Articles 31 and 32 respectively show that the two categories are mutually exclusive. As MSK’s presence in the UK is deemed to be unlawful he falls within the Article 31 category which, in turn, means that he can be sent back to a safe third country, i.e. Ghana. This is in line with the UNHCR Commentary on the 1951 Refugee Convention that specifies that “[o]nly refugees who are not or no longer ‘lawfully in the territory’ of a Contracting State, may be subjected to ‘return’ or ‘refoulement’, to a country of persecution under the terms of Article 33 […].” (Commentary on Article 32)

A question raised and answered by Lord Stewart in the negative is whether once granted refugee status an individual can “go asylum-shopping elsewhere” (para 2). Clearly Lord Stewart does not think so. Indeed, once refugee status is gained, the individual is deemed safe. If he/she wishes to leave his/her country of protection he/she can do so by following the immigration procedure of the State or asking for resettlement. Yet, the expression “asylum-shopping” is misused by Lord Stewart as it usually refers to asylum-seekers who apply in several countries or target the country where they wish to apply for refugee status. MSK was an individual who had decided to move (on) after being granted refugee status in Ghana.

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