The Refugee Definition
The definition of a refugee is normally taken to be that of the Refugee Convention
“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 his country of 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 territory of his former habitual residence….is unable or, owing to such fear, is unwilling to return to it.”
How many refugees?
In 2003 11% of applicants for political asylum (10,990 applicants) were recognised as refugees, and 22% (22,470 applicants) were granted exceptional leave to remain. In 2007 the percentages were 20% (3,592) applicants) and 9% (1616 applicants). Those refused asylum had rights of appeal so the final figures will be higher. The family members of the applicants are not counted. It is important to understand that those not formally recognised as refugees but allowed to stay will frequently have much the same thought processes as recognised refugees.
At one time recognised refugees were given settlement once recognised.
Recognised refugees are now given time limited Refugee Leave. Provided there has been no significant change in their country, and they have not reavailed themselves of the protection of their country, they can progress to settlement.
Time limited Humanitarian Protection is given to some people refused political asylum who are “temporarily” allowed to remain for various reasons usually related to the 1950 European Convention on Human Rights and Fundamental Freedoms. Most people awarded Humanitarian Protection will graduate to settlement in due course.
There is also Discretionary Leave, which is time limited and is designed for those whom the Government intends will be removed at a later date. Whether that actually will happen or not is not clear until it has actually happened.
On top of these retrospectively (see below) lawful entrants, according to Migration Watch www.migrationwatchuk.org Briefing Paper 9.15 8 May 2008[ there are between 670,000 and 870,000 illegal immigrants in the United Kingdom. This includes people who have simply come as unlawful economic migrants, overstayers, asylum seekers and failed asylum seekers.
In many cases no decision has been made, or the judicial processes of appeal are not yet exhausted. There are also large numbers of people who have exhausted the judicial process but who are still here, and others here illegally who have never claimed political asylum and who have never come to the attention of the authorities. Some of these are unrecognised refugees, and some are perfectly safe in their home country but prefer to live and work here.
There are also some people who transit the United Kingdom on their way to somewhere else who are caught using false or inadequate documentation. The documentation is removed from them but they are often not detained.
There are also foreign criminals here fleeing justice, and people lawfully here who commit crimes and who are at risk of or are ordered for deportation or removal. There are people who have angry fathers of young ladies wanting to kill them[1].
This great amorphous group I together call “illegal immigrants”. It reflects that their current immigration status is unlawful. When they have been here unlawfully for 14 years they can apply for settlement, but it may not be granted.
Awaiting a decision
All of the people mentioned above entered the United Kingdom illegally and / or now remain in the United Kingdom unlawfully. The vast majority of asylum seekers entered illegally. If they are recognised as refugees their apparently illegal entry is retrospectively made lawful and their time spent here illegally is retrospectively made lawful. Their entry to claim asylum is not lawful unless and until their application is successful, so they are illegal entrants.
Apart from very small numbers of people resettled here through the UNHCR (United Nations High Commissioner for Refugees) or the occasional exception such as was exercised for the Kosovans, there is no legal mechanism for obtaining a visa to enter the United Kingdom to apply for political asylum.
There are also economic migrants who come lawfully to work in the UK and with immigrants who come usually for family reasons. Recognised “refugees” under the Refugee definition are a matter of International Treaty. The illegal immigrants (except those who are eventually recognised as refugees), economic migration, and immigration generally are matters of national policy for government.
Refugees and domicile
So what has this to do with domicile? The leading book is Dicey Morris and Collins “The Conflict of Laws” who say (14th Edition):
“Refugees and fugitives A person who leaves a country as a political refugee, as a fugitive from criminal justice, or in order to evade his creditors, has a special reason for leaving it, but he has no special motive for entering any other particular country, nor is his residence in any other country in any sense enforced. The question which causes more difficulty in cases of this kind is whether the fugitive intends to abandon his domicile in the first country: if he does, the acquisition of a new domicile in the second country will be readily assumed. The question is one of fact in each case. If a political refugee intends to return to the country from which he fled as soon as the political situation changes, he retains his domicile there unless the desired political change is so improbable that his intention is discounted and treated merely as an exile’s longing for his native land; but if his intention is not to return to that country even when the political situation has changed, he can acquire a domicile of choice in the country to which he has fled. In the case of a fugitive from criminal justice, the intention to abandon his domicile in the country from which he has fled will readily be assumed, unless perhaps the punishment which he seeks to escape is trivial, or by the laws of that country a relatively short period of prescription bars liability to punishment. Similarly, a person who leaves a country to evade his creditors may lose his domicile there; but if he intends to return as soon as he has paid or otherwise got rid of his debts, there is no change of domicile.”
Why do they leave their country?
There is a tiny number of “refugees sur place” who happen to be in the United Kingdom at the time when there is a revolution or change of Government in their home country such that they cannot go back. An example of this is the Iranian playboys and remittance men[2] and students who were stranded here when the Shah fell. Having mentioned them, I shall henceforth ignore them as statistically irrelevant.
Almost all refugees enter the United Kingdom illegally. If they are recognised their entry becomes retrospectively legal. This does not create a defence for “facilitating illegal entry” because S25a of Immigration Act 1971 (as amended) makes it a criminal offence to assist the entry of a person who intends to claim stay in the UK under the Refugee Convention or the European Convention on Human Rights and Fundamental Freedoms.
However, in terms of domicile the manner of their entry is realistically irrelevant. Whether they are granted legal stay or not will be one piece of evidence bearing on their domicile. Far more important is the reason they left their country of origin.
Some have left with the intention never to return. People who are persecuted for their race, ethnicity, religion or sexual orientation may particularly know when they leave that they are abandoning their homeland. Those who leave because of political reasons may hope to return when the revolution happens, or even “after we win the election”. Some believe fervently that a return in triumph is just around the corner. For others, the entrenched nature of their government or society makes it unrealistic to have hope of return. Sometimes their experiences have been so awful that they would never return to that country whatever happens.
The court has to decide post facto whether the propsitus’s expectations of return or non return at the relevant date were realistic. This is more difficult because the fact that the world subsequently changed rapidly or did not change as hoped is arguably not relevant, and it is important to look at the situation faced by the person at the relevant date. It is unfair to assign predictive powers retrospectively. Who would have thought in 1915 that Lenin would be leader of Russia within two years? On the same theme, a quote I believe is from Nelson Mandela,
“Who would have imagined a year ago that the Communist Party would be legal in South Africa –and illegal in Russia!”
Milestones
Given that the United Kingdom is a relatively wealthy country, a person from a poor country who is frugal and fortunate and works hard can often find himself in a favourable economic and social position he never dreamed of. Over time, the lure of “home” recedes as he builds a new home, family, and social life around himself. The process is imperceptible but may be marked by milestones.
These milestones could be
· That he has not been to an exiles meeting for over a year, over 5 years, over 10 years.
· That he no longer reads news about his home country first when he opens a newspaper.
· That he does not rush to meet his party leader when the party leader comes to Yorkshire.
· That he no longer knows who is or even the name of the National Assembly member for his original home town
· That he has stopped giving money to his previous political party
· That entire days and then entire weeks go by when he does not talk about the political situation in his home country
· That he has stopped his subscription to a burial club
· That he does not write or telephone his home country when it would be perfectly safe to do so, except to talk to family members about family affairs.
· That he does not exercise rights to a postal vote in his home country’s elections
Note that these milestones are all essentially negative. They begin to signify an abandonment of his previous domicile, an essential element in acquiring a new domicile. To acquire a new domicile there must be active and positive indicators of a new domicile, but where that evidence is not conclusive these negative indicators may help to sway the court. The courts generally require positive actions but can be influenced by the failure to do something. A striking example of this is Winans v AG [1904] AC 287 where the failure of Mr Winans to purchase a property in England consistent with his wealth was held to be an indication of lack of intent to live permanently in England.
Land Ownership
Economic migrants have frequently “burnt their boats” in emigrating, perhaps by selling family land. They simply will not return to the low wages and low living standards of their home country.
Another problem is that in their early days many immigrants purchase land or build impressive homes “back home”. Mirpur has many “marble palaces” built on money from England in the days when their owners intended returning to Mirpur like reverse nabobs. Many of these are now mausoleums to past intention as the original owner has realised he does not want to return permanently to Pakistan but has his centre of gravity in Bradford or Birmingham. The original builder or his adult children may maintain these white elephants out of sentiment, or as a holiday home, or as a form of charity to indigent relatives and retainers –and bluntly because they are close to unsaleable because of family politics and family reputation. The fact that these properties are maintained is not evidence of domicile but that the decision maker cannot sell the property without negative consequences to his reputation and the reputation of his family.
It is also possible that the children of a refugee may have little or no attachment to their father’s country and would not move back there even if they could.
A quick acknowledgement
This article is based upon Chapter 2 of my LLM thesis “The Domicile of Illegal Immigrants and Refugees” accepted by Leeds Metropolitan University in 2008.
[1] Cyganik v. Agulian [2006] EWCA Civ 129.
[2] A “remittance man” is someone who is paid a regular income to stay away from his home country. Usually he has disgraced the family.
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