Julian the Asylum Seeker

How could Julian Assange claim asylum? Ecuador is a signatory to the 1951 Refugee Convention. Under Article 1A(2) of the Convention, a person is a ‘refugee’ and must be granted asylum if

…owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

If the Ecuadorean authorities interpret the Convention consistently with international norms, Mr Assange will have to show the following:

(i)             he has a fear of being persecuted

(ii)           his fear is well-founded

(iii)          he will be persecuted by reason of one or more of

(a) his race (ie ethnicity);

(b) his religion;

(c) his nationality;

(d) his membership of a particular social group;

(e) his political opinion.

(He is not some one who does not have a nationality – is stateless – and so the final clause does not apply to him.) But let’s see if he can bring himself within any of the other categories that would entitle him to the protection of the Ecuadorian government.

(i)             He may subjectively think that he is being persecuted. Many people, often with no formal mental illness, experience prosecution as persecution. It’s not fun, even when due process is fully observed and you are on bail. In Assange’s case, the extradition proceedings have been going on since December 2010 when the Swedish prosecutor issued a European Arrest Warrant against him. That’s a long time and anyone would find it  extremely wearing and stressful – probably a bit like having a long illness with an uncertain prognosis. However…

(ii)           An individual’s subjective fear must be ‘well founded’: that means, there must be objective reasons to find that the treatment complained of or feared, really is persecution. The Refugee Convention does not define ‘persecution’ but under Article 33

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.

So the acts said to be acts of persecution need to be serious enough to threaten Mr Assange’s life or freedom, but also include serious breaches of his human rights. Professor James Hathaway, (in the leading textbook The Law of Refugee Status) defined persecution as ‘the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community’. The UK courts have adopted this definition (Ullah http://tinyurl.com/c9wgcuv, House of Lords).

(iii)          Then, the reason for the persecutory treatment (whatever form it takes) must be a ‘Convention reason’: Mr Assange’s race, his religion, his nationality,  his membership of a particular social group, or his political opinions.

Let’s assume that he does not fear persecution for being a white Australian of some or no religion; he is unlikely to belong to a particular social group, mere membership of which is enough to lead to persecution (such as being a woman in Pakistan, or homosexual in Iran – groups which the UK Courts at least have so defined for purposes of asylum law).

He must be relying on ‘political opinion’ – an extremely broad category, that includes activities, writing and speech, and beliefs that lead to persecution. He made a statement from the Ecuadorean Embassy in London on 20th June 2012 in which he said he was claiming ‘political asylum’.

Who does he think his persecutors are? In most asylum cases, they will be hostile agents of the claimant’s own state, or ‘non-state actors’ whom the state cannot or will not control. Mr Assange is apparently seeking protection from the British authorities in the first instance, and perhaps also from Sweden (although if he feared the Swedes only, he could in theory apply for asylum in the UK…there’s a thought).

The difficulty he is likely to face, if the Ecuadoreans assess his case under normal asylum law principles, is that he has been subjected to due process of law in the UK. His human rights have been considered. He has been ably represented by the most distinguished human rights lawyers in the country. He has made use of his appeal rights and the panoply of English Courts have examined his case with the most careful scrutiny. He has been at liberty for almost the whole time, with limited restriction on his movements and none on his right to say what he pleases. In Sweden, the prosecution authorities want to question him about serious criminal allegations. Sweden is a signatory to the European Convention of Human Rights, and other international human rights instruments. It is a democracy whose legal system is independent and meets international norms.

If he fears that the Swedish prosecutor is merely a cat’s paw for the US government, who will demand his extradition when he arrives in Sweden, he has to take account of Section 58 of our Extradition Act 2003: if the Swedes want to extradite him to the USA, they have to obtain the consent of the British Home Secretary first. That rule derives from Article 28 of the 2002 EU Council Framework Decision (2002/584/JHA), which binds the Swedish government. After the investigation and any criminal proceedings in Sweden end, that restriction also ends and the Swedes can extradite him without reference to the UK government. But neither Sweden and the UK will extradite anyone to a country where the accused is in peril of the death sentence if convicted of an offence, or where prison conditions are so bad as to breach his rights under Article 3 of the ECHR (‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’).

The European Arrest Warrant, controversial though it may be, is the product of decisions made or at least ratified by elected representatives, and subjected to usual legislative process. As Assange’s case has shown, it is not exempt from scrutiny by the Courts.

So where is the persecution? Prosecution (including extradition proceedings) by due process in a democratic country with an independent legal system isn’t persecution. It may well be that powerful people here and elsewhere dislike – even violently dislike – his ‘political opinions’ as expressed in his work with Wikileaks; there may be people in the USA who think he should be tried for capital crimes, convicted, and executed. But while he remains in the jurisdiction of the UK or Sweden, that’s not going to happen.

So he may struggle to show that he faces treatment in the UK or in Sweden to amount to persecution, on an objective view.

According to the UNHCR’s latest report (http://tinyurl.com/nfh7lr), Ecuador, with a population of about 14.5 million, currently has over 123,000 refugees, of whom more than 21,000 have made asylum applications. The UNHCR says that in 2011 the authorities introduced new rules for admissibility in order to reduce the number of manifestly unfounded claims. If Mr Assange has to join the queue, he may find himself in Hans Crescent for some time.

POSTSCRIPT 16/08/2012

The Ecuadorian government granted Mr Assange political asylum today. The foreign minister, Senor Ricardo Patino, gave three reasons: (i) the British government failed to guarantee that Mr Assange would not face extradition from Sweden to the USA; (ii) the Swedish government failed to give the same guarantee; (iii) the US government failed to guarantee that he would not face criminal proceedings in the USA.

In the UK, the theme of recent criminal justice policy has been to put the rights of the victims of crime at the heart of the system. Whether that is the policy in Sweden or not, two women have made complaints of serious sexual offences including rape against Mr Assange. They remain unproven allegations.  Any woman making such a complaint in her own country should not have to find that the government of a second country, under pressure by the government of a third country, has prevailed on her government in effect to call the case off. Is this what the Ecuadorians want to happen? It has been suggested that  the Swedish prosecutors could question Mr Assange in the Ecuadorian embassy in London – or, I suppose, by Skype; that would not advance matters if they decided to charge him, as he would still have to go to Sweden and submit to due process there.

The Foreign minister’s statement is silent as to why Ecuador thinks that Mr Assange’s claim for asylum is based on a well-founded fear of persecution in Sweden or elsewhere for a Refugee Convention reason (see the original posting). If he knows more about this than Mr Assange disclosed to the UK Courts, it would be of great interest to hear about it. What is worth remembering is that during his legal challenge to the extradition Mr Assange did not argue that his extradition to Sweden would lead on to treatment in the USA that would breach his rights under the Refugee Convention or the European Convention of Human Rights. If you don’t believe me, read the judgments by the Chief Magistrate, the Administrative Court, and the Supreme Court. It simply was not the case that he put forward. Courts can only work on evidence; if he had evidence of a US plot to get him, try him and kill him, he had the opportunity to put it in front of the Courts. They would have considered it on its merits, and if they thought he was right, they would have halted his extradition. No such evidence was forthcoming. He failed to persuade the Chief Magistrate that a trial in Sweden would not comply with Article 6 of the European Convention; that was as far as it went and he did not challenge the adverse finding when he appealed the decision.

Asylum is precious. In the UK we are accustomed to barrages of abuse directed at asylum seekers in general, because some of them make false claims. We have a system that is meant to assess claims individually, and by a fair process to reject those that don’t stand up. Ecuador’s own system may well be the equal of ours, or better. Mr Assange may have abundant evidence to support his claim, which for his own reasons he has not disclosed to anyone but the Ecuadorians. If the Americans, the Swedes and the British are engaged in a sinister plot to deny him his rights, by subverting proper legal processes, then the founder of Wikileaks has a duty to tell us, in detail, what is going on and what is being done in our name.


New Immigration Laws: Miaow!

The Home Office’s Statement of Intent: Family Migration (June 2012) sets out the Government’s plans to reduce the number of immigrants coming to the UK from outside the European Economic Area (and those staying here, especially if they have committed crimes), to be enacted in a revision of the Immigration Rules in July. It makes no reference to domestic pets, but includes a major change in the approach to the right to family and private life in Article 8 of the European Convention of Human Rights. The new rules, it is said, will expressly incorporate the requirements of Article 8 into the Immigration Rules. But much is left unexplained, in particular the role of the Judges in determining Article 8 appeals. The intention appears to be to stop Judges using their own discretion when they think that an official has made the wrong decision in an Article 8 case.

Since the Human Rights Act 1998 came into force, something like a parallel jurisdiction has evolved in Article 8 cases in immigration law (with echoes of the availability of remedies in equity where none existed at common law). An applicant who fails to comply with the requirements of the Immigration Rule that applies to her case may still succeed if she can show that she has formed a family or private life, and the state cannot prove that removal or a refusal to allow entry is justified and proportionate on public policy grounds. A large body of case law has grown up around the way in which ‘decision makers’, including judges, should look at Article 8. It was originally thought that it could only apply to claimants themselves, and not family members who would be affected by adverse decisions. That changed when the House of Lords ruled in Beoku-Betts v SSHD [2008] UKHL 39 that decision makers should take account of the impact of a person’s removal upon those sharing family life with him as well as its impact upon him directly. In the leading case of Huang [2007] UKHL 11 they held that there is no requirement for an appellant to prove exceptionality, although they thought that cases in which removal was otherwise lawful, but are found not to comply with Article 8, would be rare:

“…the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.” [20]

They held that the task of a Tribunal considering an Article 8 appeal was ‘to decide for itself’ whether the challenged decision is unlawful as incompatible with a Convention right, or compatible and lawful. They referred at para. 18 to the State’s ‘negative duty to refrain from unjustified interference with a person’s right to respect for his or her family’ and also its ‘positive duty to show respect for it’; they went on to describe the ‘core value’ which Article 8 exists to protect:

“…Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant. The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved. Proportionality is a subject of such importance as to require separate treatment.” (emphasis added)

The trend has been for the UK Courts, taking the lead from not only from the European Court of Human Rights in Strasbourg but also from decisions by the European Court, applying EU law, to make it easier for Article 8 claims to succeed, by emphasising the state’s ‘positive duty to show respect’ for family life. The welfare of children is pre-eminent in cases where a parent faces removal, and if a child’s welfare is likely to suffer, removal of the parent may be impossible. This applies across the board, notoriously to cases in which ‘foreign criminals’ (doubly bad!) rely on their family rights to avoid deportation.

The Home Secretary’s infamous ‘cat’ speech merely gave infelicitous expression to a view that too many people were being let in (and too many criminals were being allowed to stay) through Article 8, and that it was somehow an abuse. The Home Office now intend that the new Immigration Rules will supersede the separate consideration of claims under Article 8 in all but the most exceptional cases:

The new rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. [7]

What happens at present is that the Home Office (or Visa Officer or Entry Clearance Officer in an embassy abroad) will assess an application with family/private life elements under the relevant Immigration Rule, and then again under Article 8. The ‘refusal letter’ will typically set out both assessments. A failure to consider Article 8 at all will almost certainly cause a Tribunal to find that the decision was ‘not in accordance with the law’ for the purposes of Section 84(i)(f) of the Nationality Immigration & Asylum Act 2002, and new a decision will have to be taken – usually by the Tribunal itself.

So in a sense, the government is merely doing a tidying-up exercise, reuniting the Immigration Rules with the principles of Article 8 – so that ‘equity’ and ‘law’ are one in this area.

But Article 8 will not go away, and the extensive jurisprudence on it – from the Strasbourg and UK courts – will not go away either.  According to the Statement of Intent

This does not mean that the Secretary of State and Parliament have the only say on what is proportionate. The Courts have a very clear role in determining the proportionality of the requirements in the Immigration Rules. It is for the State to demonstrate that measures that interfere with private and family life are proportionate. But a system of rules setting out what is or is not proportionate, outside of exceptional circumstances, is compatible with individual rights, as has been accepted by the Courts in other spheres, e.g. housing law. Where the rules have explicitly taken into account proportionality, the role of the Courts should shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules. [37]

This is a puzzling statement. It suggests that the ‘Courts’ – including the Asylum and Immigration Tribunal? – will not look at whether ‘individual administrative decisions’ are proportionate in Article 8 terms. The experience of Immigration Judges is that sometimes those decisions are wrong because officials have failed to give due weight to matters that show that the proposed interference with Article 8 rights is disproportionate: for example, where the official failed to appreciate that in a relationship between adult family members there are exceptionally close emotional ties, and real, committed and effective personal support – enough to bring the relationship within the protection of Article 8. The government appear to think that only a challenge to the rules themselves will be possible. It is not the role of the Tribunal to ‘review the proportionality of the rules’ – whatever this means. If the rules themselves do not comply with the ECHR, that is a matter for the higher courts to consider. Hitherto, the Tribunal has been required to determine each case on its own facts, and has the duty to make its own findings of fact – including findings about whether an adverse Article 8 decision was ‘proportionate’. If the plan is to restrict the Tribunal’s independent fact-finding and its ability to reach its own decisions on proportionality, it is arguable that appellants would be deprived of an ‘effective remedy’ for breaches of their human rights – something guaranteed under Article 13 of the Convention.

It’s almost as if the Home Office don’t trust the Judges.