New Judgment: R (ST (Eritrea)) v Secretary of State for the Home Department  UKSC 12
21 Wednesday Mar 2012
On appeal from  EWCA Civ 643
The question in this case was whether Article 32 of the 1951 Refugee Convention applied only to a refugee who has been given the right under domestic law lawfully to stay in the contracting state, or whether the words “lawfully present in the territory” must be given an extended and autonomous meaning, so that a refugee who has not yet been given a right to remain in the territory is afforded protection under Article 32 that extends beyond the basic obligation under Article 33 not to expel or return to a territory where his life or freedom would be threatened for a Convention reason.
Article 32 and 33
Article 33 of the Refugee Convention states that:
“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
The protection of article 32 is more generous:
“The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.”
The meaning of “lawfully”
The Court held that there is no doubt that the Convention should be given a generous and purposive interpretation. However, it must be remembered that the Court’s task is to interpret the document to which the contracting parties have committed themselves by their agreement. It has no warrant to give effect to what they might, or in an ideal world would, have agreed. The context in which the word “lawfully” appears in Article 32 is important. The phrase in which it appears contemplates that the refugee is not merely present in the territory of the contracting state, but that he is there lawfully. It implies that his presence is not just being tolerated, but he has a right to be there. There is no consensus among the commentators that lawful presence should be given an autonomous meaning or what that meaning should be. “Lawfulness” of the stay is to be judged against national rules and regulations governing such a stay. In this case, the relevant national rule is the Immigration Act 1971, s 11(1), which provides that a person who has not otherwise entered the UK shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to the Act. Under that provision, the Appellant is deemed not to have entered this country. It seems unlikely that the contracting states would have agreed to grant to refugees the freedom to choose their place of residence and to move freely within their territory before they themselves had decided, according to their own domestic laws, whether or not to admit them to the territory in the first place.
There are thus no sound grounds for departing from the view that “lawfully” in Article 32(1) must be taken to refer to what is to be treated as lawful according to the domestic laws of the contracting state. This is what the framers of the Convention intended by the use of this word in this context.