An appalling case is reported today, 8 October 2012,
in the Daily Mail Online. It is the story of a Sudanese
African whose identity is not disclosed, who in the course of a number of BBC
interviews said that he was between 2003 and 2006 a fighter in the Janjaweed
militia which was responsible for the slaughter of an estimated 300,000 people
during the war in Darfur. In 2006 he
deserted and came to Britain to claim asylum but his case was not decided until
2011. In 2008 he gave interviews to The
Times and to BBC’s Newsnight, in which his anonymity was preserved, and claimed
to have shot large numbers of innocent people.
His claim for asylum was rejected on the ground that he was a war
criminal and therefore in accordance with the provisions of Article 1(F)(i) of
the Refugee Convention was not entitled to international protection. Also he could take advantage of what is known
as “internal flight” by moving to another part of the Sudan where his identity
would not be known. His first appeal was
allowed, but when the Home Office appealed to the Upper Tier of the Immigration
and Asylum Chamber the asylum claim was dismissed but his appeal succeeded on
human rights grounds.
The Senior Immigration
Judge who disposed of the appeal ruled that his identity could well have become
known because of his appearance on Newsnight and he was therefore protected by
Article 2 of the ECHR which protects the right to life and prohibits killing
without exceptions other than in self-defence, effecting a lawful arrest or in
the course of lawful action taken for the purpose of quelling a riot or disturbance. By contrast, Article 8, the right to family
life, does allow in general terms of lawful exceptions. The scope of these in relation to deportation
decisions on cases of convicted criminals has now been clarified by recent
amendments to the Immigration Rules which are explained in Briefing Paper
8.39
The UKBA has expressed its frustration at this result
and has had to accept that the man will now be allowed to remain in the UK
indefinitely but states that he cannot lawfully claim benefits, work or study
but can be subjected to regular reporting requirements.
Harry Mitchell QC
Honorary Legal Adviser
Migration Watch
8 October 2012