The recent incident involving a chemical attack on a family in Clapham has ignited a critical examination of the United Kingdom’s asylum processes. This event raises substantial questions about the efficacy and thoroughness of the system in place for evaluating asylum claims and the subsequent ramifications when individuals granted refugee status become involved in criminal activities within the host country. However, due to the limited scope of this article, the focus will be more so on what is next.
Looking at the reactions from our top policy makers, it seems that the Home Office is going to be too busy arguing amongst themselves; once again failing to achieve anything conducive.
The case, involving an individual who entered the UK clandestinely, claimed asylum, and later committed a serious offense, highlights potential gaps in the assessment criteria and the need for a nuanced approach to ensure both the safety of the public and adherence to international obligations.
The perpetrator in question entered the UK surreptitiously, hidden in the back of a lorry. Originating from Afghanistan, he sought asylum in the UK, asserting that he was a Christian facing persecution in his homeland. His initial asylum claim was rejected by the Home Office, which cast doubt on the likelihood of discrimination upon his return. Despite this initial refusal, the individual exercised his right to appeal. The situation took a significant turn during the period between the initial refusal and the appeal hearing when he was convicted as a sex offender. However, despite this conviction, the appeal judge granted him refugee status, believing that he would face persecution if returned to Afghanistan.
In light of this, the question all over media outlet publications is why he was granted asylum despite having committed a crime. However, the question to be discussed here is whether or not he will be deported and removed back to Afghanistan.
For most cases, deportation is never an option. However, asylum cases always involve a war between protection in the UK and the security and safety of the UK public.
On the one hand, the UK has an obligation to non-refoulement – to not remove someone to a country where their lives would be at severe risk. This right is enshrined under Article 33 of the 1951 Refugee Convention. It forms one of the most essential rights of any of the refugee rights and is consequently and absolutely unsurprisingly, one of the Home Office’s and probably also in Cleverly’s personal nightmares.
This right, however, is not absolute. The UK is allowed to derogate – to its absolute pleasure – from it where the national and public security are placed at risk. In fact, in accordance with Home Office guidelines, the following instances can be applied to deport someone regardless of the persecution they may face upon return to their own country:
Individuals convicted of serious criminal offenses may face deportation. The nature and severity of the crime, as well as the sentence imposed, are crucial factors. Crimes such as violence, drug trafficking, and sexual offenses are often considered grounds for deportation.
Individuals deemed to pose a threat to national security may be subject to deportation. This can include those involved in terrorism, espionage, or other activities that jeopardize the safety of the country.
Providing false information or using fraudulent means to obtain a visa, residence permit, or refugee status can be grounds for deportation. This includes submitting forged documents or misrepresenting one’s identity.
Violating immigration laws, such as overstaying a visa or residing in the country without proper authorization, may lead to deportation. Continued non-compliance with immigration regulations is considered a breach of the terms of stay.
If an individual is deemed to pose a threat to public safety or the well-being of others, deportation may be considered. This could be based on factors such as involvement in gang activities, serious violence, or a pattern of behaviour that raises concerns.
Asylum seekers and refugees may face deportation if they breach the conditions of their asylum or refugee status. This could include engaging in criminal activities or misrepresenting information related to their refugee claim.
Individuals released from immigration detention on a temporary basis are often required to adhere to specific conditions. Failure to comply with these conditions may result in deportation.
Whether we choose to look at this objectively as lawyers should; or subjectively, as the Home Office will, points 1, 2 and 5 apply to the Clapham Chemical Attack case.
In the application of these criteria, it is impressive to see that the conclusions have been very much appropriate. In the Home Office’s official caseworker guidance on deportation, it states the following rather proudly:
“Recent court cases have shown that minor offending that more broadly contributes to societal harm does not necessarily meet the definition of serious harm. In the case of Mahmood, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Ors [2020] EWCA Civ 717 (05 June 2020), which dealt with the joint appeals of three persons subject to a deportation decision (Mahmood, Kadir and Estnerie) the Court of Appeal stated that the prevalence of (even minor) offending may cause serious harm to society, but that does not mean that an individual offence considered in isolation has done so (‘Shoplifting, for example, may be a significant social problem, causing serious economic harm and distress to the owner of a modest corner shop; and a thief who steals a single item of low value may contribute to that harm, but it cannot realistically be said that such a thief caused serious harm himself, either to the owner or to society in general’). This was reaffirmed in the case of Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 350 (IAC) (25 November 2020), in which it was concluded that ‘the contribution of an offence to a serious or widespread problem is not sufficient; there needs to be some evidence that the offence has caused serious harm’.”
An offence that has caused ‘serious harm’ means an offence that has caused serious physical, psychological, emotional or economic harm to a victim, victims or to society in general.
In the case at hand, it is very easy to conclude that someone who has been convicted as a sex offender would naturally have caused serious harm and would consequently fit the criteria to be deported.
Overall, it is appreciated that the Home Office gives appropriate regard to the balance of its non-refoulement obligations and its duty to maintain public safety. In applying legal precedents and the rules set out for its caseworkers, it must be said that it is in the Home Office’s best interests to deport the Clapham Chemical Attack perpetrator. This case merely reinforces the fact that although non-refoulement is key for refugee law, it cannot possibly overrule a country’s duty to uphold public safety and security.
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