The European Court of Human Rights in K.I. v France (application no. 5560/19) has re-affirmed that refugee status is declaratory and revocation of a person’s refugee status under French and EU law does not prevent that person from continuing to be a refugee under the Refugee Convention. Authorities revoking someone’s refugee status therefore need to assess afresh whether the person would be at risk of a violation of their Article 3 rights if returned to their country of origin.
The full judgment is only available in French so we have based this article on the official press summary. We think it probably over-simplifies the exact legal issues involved, so if any French speakers have a better handle on the judgment, do get in touch and we’ll cheerfully update the article.
KI was a minor when he arrived from Russia to France in August 2011. In 2013, he was granted refugee status by the French authorities. Nine months later, he was investigated for terrorism-related activities. He was eventually convicted in 2015 by the Paris Criminal Court and sentenced to five years’ imprisonment for a conspiracy to commit an act of terrorism by travelling to a combat zone in Syria.
The French authorities decided that KI represented a threat to public safety, revoked his refugee status and ordered his deportation to Russia in November 2016. He was unsuccessful in appeals at the domestic level but successfully applied for interim measures (i.e. an injunction preventing deportation) at the Strasbourg court. After being released from prison, KI remained under a compulsory residence order and was required to report at the police station three times a day.
The European Court of Human Rights found that the actions of the French government had violated KI’s Article 3 rights because it had simply stripped him of his refugee status and ordered his deportation without assessing whether he would be at risk of harm upon return to Russia. That was contrary to Article 3 because a refugee does not stop being a refugee under the Refugee Convention simply because their formal status has been revoked in domestic law. In the words of the UNCHR handbook:
Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.
Think of it like holding a passport. You can be a British citizen by law even if you don’t hold a passport. If you lose your passport or it expires, it does not stop you being a British citizen. So too, the fact of losing refugee status does not stop someone from being a refugee. This was something the French authorities had overlooked.
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This may seem a bit circular, and in some ways it can be. If a person continues to be at risk of persecution in their country of origin but poses a threat to public safety in their country of refuge (e.g. because they’ve been convicted of serious crimes there) they can be left in legal limbo and the state may have no choice but to continue to offer them protection.
In KI’s case, the French authorities had attempted to re-detain him to ensure that deportation could take place as soon as possible when conditions altered. In the UK, almost certainly, detaining someone to speculate when the conditions in their home country would change would be unlawful and in breach of the Hardial Singh principles.
This case is an important reminder that stripping a person of their domestic refugee status on the basis of a criminal conviction is not enough. There then needs to be a judgment call looking to the future as to whether a person would be at risk of harm upon removal to their country of origin.