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United Kingdom Asylum and Immigration Tribunal
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Cite as:  UKIAT 00036,  UKIAT 36,  UKAIT 00036
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SB (cessation and exclusion) Haiti UKIAT 00036
Date of hearing: 14 June 2004
Date Determination notified: 7 February 2005
|Secretary of State for the Home Department||RESPONDENT|
"13. By a majority (the Chairman and Mrs Lloyd JP), the IAT was of the view that returning the appellant to Haiti would breach the UK's obligations under the 1951 Convention. They did so having received evidence from the Deputy UNHCR Representative in London. They did so also because they believed that the appellant would be seen as pro-President Aristide, in part because of the appellant's connections with the USA and in part because of his association with St Joseph's Boys' Home with which President Aristide was associated. They did not accept that his alleged fear as a former Ton Ton Macoute amounted to a well-founded fear for a 1951 Convention reason. That was considered in the context of the violent and corrupt state of Haiti."
"He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality."
"16. With the elapse of seven years, it is even less likely that the appellant would face any risk of persecution for a Convention reason on account of that alleged past association than he did in January 1995 when the Tribunal heard his case. As a supporter of President Aristide, real or perceived, there is no reason for him to fear persecution by the authorities in Haiti. Were opponents of the President to attempt to persecute him, I am satisfied that, despite the state of Haitian society and made plain in the objective reports, he could look to the authorities for protection. Nothing in the evidence satisfies me that the government would be unable or unwilling to afford it to him. Indeed, the objective reports including that of Dr Marshrons refer to the policy of 'zero tolerance' of crime by the Aristide regime. I am, therefore, satisfied on a balance of probabilities that the circumstances now prevailing in Haiti are such that the grounds on which asylum was granted have ceased to exist and that the appellant can no longer refuse to avail himself of the protection of his own country."
"The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
This removes the protection against non-refoulement from refugees.
"The appellant committed not one but several serious crimes. They ranged from attempted deception through burglary to crimes of violence including actual bodily harm and wounding. He has been in prison a number of times. Two of the offences were committed after the 1997 trial judge's recommendation for deportation. The latest pre-sentence report of March 2002 assessed the risk of re-0ffending at a moderate level and said that the appellant wished to settle down. Despite that, his whole history is one of repeated re-offending. Moreover, he appears to have been less than truthful with the Probation Officer, suggesting that he lived in a stable relationship with his wife. Mrs Belvue told the Trainee Probation Officer that she considered the relationship at an end and that she wanted nothing more to do with him. He also appears to have given the Probation Officer the impression that his 'immigration status was stable' and that one attempt to deport him had been unsuccessful. That was despite the order signed on 31 July 2000 and the removal directions of 21 August 2000 of both of which he must have been aware. The appellant, in my judgment and in the words of the UNHCR Deputy Representative in his letter relied upon by Miss Naik is covered by the words,
'one or several convictions are symptomatic of the criminal, incorrigible nature of the person against which Article 33(2) action is contemplated.'
I am satisfied that the offences for which the appellant was convicted and in particular that of wounding which led to the recommendation for deportation are of a serious nature. I do not accept that those before 1997 should be excluded from consideration. There is no doctrine of estoppel in immigration law and, in my judgment, the respondent is entitled to regard them as pointing to a pattern of incorrigible criminality which taken with the serious wounding offence placed the appellant, even if he is still at risk of persecution in Haiti for a 1951 Convention reason, outwith the protection of that Convention as an exception under Article 33(2).
As the UNHCR says, what is required in applying Article 33(2) is a balancing exercise. I am satisfied from the evidence before me that the appellant is a danger to the community of the United Kingdom by virtue of his incorrigible criminality. I am also satisfied that the situation he as an individual would face if returned to Haiti is such that he would not face persecution on account of a 1951 convention reason and in particular not for the reason for which refugee status was originally granted following the determination of his appeal in 1995 by the Immigration Appeal Tribunal. The appeal on the grounds that the appellant is not outwith Article 33 of the 1951 Convention is dismissed."
"This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).
"A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is-
(a) convicted in the United Kingdom, and
(b) sentenced to a period of imprisonment of at least two years."
"Section 34(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (no need to consider gravity of fear or threat of persecution) applies for the purpose of considering whether a presumption mentioned in subsection (6) has been rebutted as it applies for the purpose of considering whether Article 33(2) of the Refugee Convention applies."
"Articles 1(F) and 33(2) of the Refugee Convention (exclusions: war criminals, national security, &c.) shall not be taken to require consideration of the gravity of-
(a) events or fear by virtue of which Article 1(A) would or might apply to a person if Article 1(F) did not apply, or
(b) a threat by reason of which Article 33(1) would or might apply to a person if Article 33(2) did not apply."
"82. But the general principle is that if a new Act affects substantive rights, as distinct from procedure, it will not apply to proceedings which have already commenced unless a clear intention is manifested: see Colonial Sugar Refining Company Ltd v Irving  AC 369 and Attorney-General v Vernazza  AC 965.
83. In the former case, an Act removing the right of appeal to the Privy Council did not affect an appeal in litigation pending when the Act was passed and decided after its passing, on the ground that '[t]o deprive a suitor in pending litigation of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure'. In the latter case, during the pendency of an appeal against an order restraining a vexatious litigant from commencing proceedings, an Act was passed adding to the court's power to restrain vexatious litigants from commencing proceedings a power to restrain them from pursuing existing proceedings. The Act was held to be procedural on the basis that it did not deprive the litigant of a right to bring proper proceedings and even if it had been regarded as substantive, Lord Denning said that it was retrospective (at 977). The effect of a contrary decision would simply have been to require the Attorney-General to bring fresh proceedings."
MR JUSTICE OUSELEY