In the United Kingdom asylum applications are subject to rigorous examination by the Home Office to uphold national security imperatives. Applications are checked against the European Criminal Records Information System (ECRIS) and the Interpol database. The issuance of an Interpol Red Notice against an individual prompts heightened scrutiny and could lead to the Home Office rejecting the application on the grounds that the applicant’s good character is tarnished or that there are serious reasons for considering that the applicant has committed a serious non-political criminal offence in another country.
This article looks at how a Red Notice can derail a genuine asylum application in the UK on the basis that the applicant has committed a serious non-political crime.
The next article in this series in this series will look at the ways a Red Notice can derail an application for UK citizenship on the basis that an applicant is not of good character.
To stay in the UK as a refugee (someone who has been granted asylum) that person must be unable to live safely in any part of their own country due to fear of persecution there. An Interpol Red Notice is a request for international cooperation from police forces to seek the location and arrest of wanted persons.
Red Notices themselves are not arrest warrants, and yet many police forces will arrest an individual on a Red Notice; this usually depends on the diplomatic relations between the two countries and whether the information included in the Red Notice is sufficient for an arrest. Whether the information is sufficient will vary from country to country. The next step after arrest, is for the requesting State to be informed and extradition proceedings may ensue. It is then for a court of law to decide whether or not the arrest warrant underlying the Red Notice is compliant with domestic and international law including human rights law.
It is easy to spot potential issues with the procedure. An individual can be arrested on a Red Notice where in fact there is no evidence of underlying criminality, either by way of conviction or reasonable grounds to suspect the alleged offence. Interpol do have a duty to check the authenticity of each Red Notice request, but as we know, several bad-faith notices slip through the net and in any event Interpol's checks are not themselves a review of the underlying case evidence.
Some Interpol Member States abuse the procedure by issuing bad-fath arrest warrants for, say money laundering, when in fact that individual is wanted by the requesting State for political offences which is prohibited by Interpol’s constitution.
There is another related issue which can be damaging for those applying for asylum on political grounds. Article 1(F) of the Refugee Convention serves the purpose of excluding individuals from the protection granted by the Convention in cases where there are substantial grounds to believe that they have committed serious crimes and are evading accountability, either on an international or national level. The intention behind this provision is to safeguard both the host state and the integrity of the asylum process, deterring potential abuse. It's important to note, however, that Article 1(F) is not meant to be punitive; rather, it should be applied judiciously, taking into consideration the humanitarian principles of the Refugee Convention and the potential consequences of exclusion for the individual concerned. Individuals excluded from refugee status under Article 1(F) will typically also be ineligible for Humanitarian Protection.
Where a bad-faith Red Notice has been entered against an individual it can become difficult to obtain indefinite refugee status on account of Article 1F(b) becoming activated by the Red Notice itself.
The 4 criteria set out by the UK Government that must be satisfied for Article 1F(b) to apply are:
there must be serious reasons for considering that the individual has committed a criminal offence in another country
the offence has to be serious
the offence has to be non–political
the offence has to have been committed outside the country of refuge prior to admission to that country as a refugee
The crime must be of a degree of severity which means that the claimant cannot legitimately claim protection under the Refugee Convention.
I have dealt with numerous asylum cases but an example of a case involving problems with article 1(f)b are highlighted by Gornovskiy in which I represented a Russian Citizen who had applied for asylum on the grounds that it was unsafe for him to return to Russia having fallen out of favour with President Putin. Mr Gornovskiy had been residing in the UK for almost two decades on temporary short-term periods of discretionary leave. His application for asylum was rejected by the Home Office on the grounds that he had committed a serious, non-political crime before coming to the UK and was therefore excluded from the protection of the Refugee Convention under Article 1F. The evidence used by the Home Office in their decision making had been the issuance by Russia of an Interpol Red Notice against Mr Gornovskiy. He was instead granted a further short-term period of discretionary leave on the basis that it would be a breach of his human rights to remove him from the UK.
In quashing the Home Office’s decision, the Upper Tribunal acknowledged that a decision to grant or refuse indefinite leave to remain should at least be a holistic one (R (Gornovskiy) v Secretary of State for the Home Department (Extradition and immigration powers) [2021] UKUT 321 (IAC). From this it can be understood that in taking a holistic approach to reviewing asylum applications, the Home Office should assess the evidence underlying any Red Notice as opposed to taking at face-value that a Red Notice indicates serious reasons for considering that a serious non-political crime has been committed in another jurisdiction by the applicant.
My next blog in this series, published later this week, will look at ways a Red Notice can derail an application for UK citizenship, as opposed to asylum, on the basis that an applicant is not of good character.
Ben Keith is a leading barrister specialising in cross-border and international cases. He deals with all aspects of Extradition, Human Rights, Mutual Legal Assistance, Interpol, Financial crime and International Law including sanctions. He is also a leading barrister in Immigration and Public law. Appointed to the Attorney General's 'A' Panel of counsel, dealing with some of the most complex cases for the UK government. He advises the Government Legal Department on a range of public law matters. He Specialises in complex asylum claims for politicians and High Net Worth individuals often linked to extradition proceedings and Interpol Red Notices.
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