Top courts in EU and Britain on Refugee Rights

It was obvious refugees could not be deported to Rwanda and that dangerous refugee criminals are eminently deportable but not an elected MEP

Refugee decisions from the top courts in Britain and the EU were handed down thick and fast last week, each landmark in its way and each concerned with the predicament of fugitives in foreign lands in fear of returning home, real or imagined, rational or irrational, genuine or bogus.

There are refugees everywhere: in Europe, Africa, Asia, Australasia and the Americas. On one hand they are entitled to international human rights protection and on the other they are unwelcome by many of the indigenous people where they seek refuge.

So what are governments to do? The answer is in the preamble to the European Convention on Human Rights affirming the Universal Declaration of Human Rights of the UN General Assembly in 1948: effective political democracy buttressed by observance of fundamental human rights. You can’t have the one without the other and where democracy clashes with absolute rights – the right not to be subjected to torture and inhuman a degrading treatment for example – absolute rights prevail. Easier said than done if you are a politician but relatively simple if you are a judge and only concerned with finding the facts, applying the law and doing justice.

Which is exactly what the English Court of Appeal did a week ago last Friday when it held that the European judge who stopped the removal of refugees from Britain to Rwanda last summer was absolutely right in his preliminary assessment that Rwanda was not a safe country. Despite the opprobrium the judge and European Convention on Human Rights (ECHR) received in the anti European British press, it turns out that two of the finest English judges in the country reached the same conclusion.

It was as plain as a pikestaff that Rwanda was not a suitable country for a serious and civilised country like Britain to be subcontracting its obligations under international refugee and human rights law. Rwanda has done its best to rehabilitate itself after the genocide there in 1994 but as the Court of Appeal held, the fact that it agrees to receive refugees and promises to protect them is not enough without a human rights hinterland beyond assurances in MoUs. The court evaluated the evidence for itself and preferred the expert evidence of the United Nations High Commissioner for Refugees (UNHCR) that Rwanda was not a safe destination.

The present British interior minister, Suella Braverman, told the Conservative party conference last year she had a dream, the diametrically opposite of Martin Luther King’s of racial tolerance and harmony. She had a dream that one day planeloads of refugee boat people would take off from Britain bound for Rwanda. The fact that a person with such bigoted views is still in post in one of HM’s principal offices of state speaks volumes about the quality of political leadership in UK today and the sooner they are booted out the better.

That was the English Court of Appeal, but last Tuesday the Court of Justice of the EU had to rule on a refugee problem amongst members of its own parliament. In 2017 the Catalan leader, Carles Puigdemont escaped to Belgium to avoid prosecution for insurgency, sedition and misuse of public funds at the time of the Catalan independence referendum in 2017. After a tactical assessment of the limits of the European arrest warrant (EAW) system, the Spanish authorities dropped the insurgency and sedition proceedings but persisted with the warrant for the prosecution of Puigdemont for misuse of public funds – presumably because it is more likely to achieve his extradition back to Spain.

In the meantime in 2019 Puigdemont got himself elected to the European parliament, though his name was not put forward to the EU parliament by the Spanish government because he would not promise to respect the Spanish constitution. In Britain, Irish Nationalist MPs from Ulster have traditionally not taken their seats in parliament at Westminster as they refuse to swear allegiance to the British monarch.

So, the problem is not new, but in 2019 the Court of Justice of the EU held in another case that a candidate who had been officially declared elected was entitled to EU parliamentary immunity even if his name had not been notified by his government – in other words the people’s choice prevails.

In light of that decision the Spanish prosecutor sought and obtained a waiver of immunity from the president of the EU parliament in respect of Puigdemont. The court ruled that the EU parliament was not empowered to defend his parliamentary immunity or disturb the waiver of immunity as its powers were circumscribed by the immunities the legal systems provided in member states –  the system in Spain did not provide a relevant immunity.

That was a decision of the General Court and Puigdemont has a right of further appeal to the Grand Chamber. Unlike Alexei Navalny, the Russian opposition leader who returned to Russia from Germany after being poisoned only to be sent to jail on trumped up charges, Puigdemont does not have a martyr mentality and will fight for refugee protection of one kind or another.

The other case from the General Court of the EU on Thursday last week concerns the revocation of refugee status after conviction of a particularly serious crime and constitutes a danger to the community of a member state. What constitutes a particularly serious crime and danger to the community are in the first instance for member states that have a wide margin of appreciation. However, the court held in reply to questions from courts in Austria, Belgium and the Netherlands that the crime and danger to the community are two separate free-standing requirements that need to be satisfied before convicted refugees can be stripped of their status.

To end where I began, getting on a small boat to cross the Channel and claim refugee status even if criminalised is not a particularly serious crime. People smuggling, however, is a very serious crime and those engaged in it with refugee status are a danger to the community and eminently liable for expulsion.

Alper Ali Riza is a king’s counsel in the UK and a retired part time judge