23. See R v Immigration Officer at Prague Airport, ex parte European Roma Rights Centre and others [2004] UKHL 55 at [11].

24. The primary international instruments are the Convention relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) and Protocol relating to the Status of Refugees, 16 December 1966, GA res. 2198 (XXI) (entered into force 4 October 1967). (Refugees Convention and Protocol hereafter).

25. Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No 5 (entered into force 3 September 1953).

26. Eg Chahal v UK (1996) 23 EHRR 413 at [79]–[80].

27. 10 December 1984, GA res 39/46 (entered into force 26 June 1987).

28. 16 December 1966, GA res 2200A (XXI), 999 UNTS 171 (entered into force 23 March 1976).

29. Article 1F of the Refugees Convention sets out categories of excludable people who have committed very serious crimes outside the state.

30. This covers those persons not in need of protection (Articles 1D and 1E) and those undeserving of protection either at the pre-admission stage (Article 1F) or post refugee recognition (Articles 32 and 33(2)).

31. This covers persons who for practical or legal reasons cannot be removed, and it encompasses suspected international terrorists who may be prosecuted for their alleged crimes.

32. Strict evidential and procedural rules and/or an unwillingness on the part of States to reveal their intelligence sources may mean that certain persons are excluded from the 1951 Convention, non-removable (owing to human-rights based non-refoulement or an exception to extradition law) and non-prosecutable. What status they should have is unresolved in international law (p 234) and comparative practices diverge with indefinite detention one possible outcome: Al Kateb v Godwin[2004] HCA 37, cf A v Secretary of State for the Home Department[2004] UKHL 56.

33. See D v UK (1997) 24 EHRR 423.

34. Articles 2–34 of the Convention may be construed as enumerating the protection obligations owed by States to individuals recognised as refugees.

35. Recipients of human rights-based non-refoulement left in ‘legal limbo’ without access to basic means of subsistence or employment could, by analogy with cases in the UK involving destitute asylum seekers, claim breaches of certain human rights. See P Billings and R Edwards ‘Safeguarding Asylum Seekers' Dignity: Clarifying The Interface Between Convention Rights and Asylum Law’ (2004) 11 JSSL 83.

36. (1933) 159 LNTS 199.

37. GA res 217 A (III) (1948).

38. The Convention as a form of lex specialis is also taken up at p 209.

39. Article 1A(1) extends the benefits of the 1951 Convention to any person under earlier arrangements made between 1926 and 1939.

40. Recommendation E of the Final Act of the Conference of Plenipotentiaries is appended to the Refugee Convention and expresses the hope that the Convention would be applied beyond its contractual scope.

41. Council Directive 2004/83/EC 29 April 2004 of OJ L 304 ([2004]/ 12) (Member States had until 10 October 2006 to transpose the Directive into domestic law).

42. 20 November 1989, GA res 44/25 (entered into force 2 September 1990).

43. The definition excludes groups such as the Roma, who have endured a long history of persecution and discrimination within some EU States.

44. Another prescient issue covered in this chapter is the territorial reach of the ECHR.

45. See M Foster International Refugee Law and Socio-Economic Rights (Cambridge: Cambridge University Press, 2007), which considers the issue of how socio-economic deprivation may be considered as a basis for refugee status.

46. The supposed ‘liberalness’ of judicial decisions in relation to the construction of a refugee has resulted in executive and legislative interventions in Australia (see R Sackville ‘Refugee Law: The Shifting Balance’ (2004) 26 Syd LR 37 and M Crock ‘Judging Refugees: The Clash of Power and Institutions in the Development of Australian Refugee Law’ (2004) 26 Syd LR 51). Decisions on the human rights applicable to asylum seekers pending status determination have been attacked by politicians in the UK (see A Bradley ‘Judicial Independence under Attack’[2003] PL 397).

47. (1995) 183 CLR 273.

48. [2003] HCA 6.

49. [1999] 2 SCR 817.

50. Eg W Lacey ‘The Judicial Use of Unincorporated International Conventions in Administrative Law: Back-Doors, Platitudes and Window-Dressing’, in H Charlesworth et al The Fluid State: International Law and National Legal Systems (Annandale, NSW: Federation Press, 2005); D Mullan ‘Baker v Canada (Minister of Citizenship and Immigration) – A Defining Moment in Canadian Administrative Law’ (1999) 7 Reid's Admin L 145; and D Dyzenhaus ‘The Rule of (Administrative) Law in International Law’ (2005) 68 Law & Contemp Probs 127.

51. In respect of the second category the author maintains that they ought to benefit from Convention status and associated rights, but that the minimum rights articulated in this section apply in the absence of Convention status.

52. Ramzy v Netherlands, application No 25424/05, discussed at pp 137–138.

53. (1989) 11 EHRR 439.

54. The Canadian Supreme Court has interpreted the Charter of Rights and Freedoms in a way that does not exclude the remote possibility of removal to torture in exceptional cases (Manickavasagam Suresh v Minister of Citizenship and Immigration and the Attorney General of Canada 2002, SCC 1. Cf Attorney General v Zaoui[2005] NZSC 38).

55. See G Noll ‘The Democratic Legitimacy of Refugee Law’ (1997) 66 Nordic J Intl L 429, who points to the lack of democratic participation of refugees in the creation of norms relevant to their position in national and international refugee law.

56. Eg see Charlesworth et al, above n 50 and on EU asylum policy-making, S Juss ‘The Decline and Decay of European Refugee Policy’ (2005) 25 OJLS 749.

57. Eg S Blay and R Piotrowicz ‘The Awfulness of Lawfulness: Some Reflections on the Tension between International and Domestic Law’ (2000) 21 Aust Ybk Intl L 1 (commenting adversely on the unsupported reasoning employed in A v Australia, CCPR/C/59/D/560/1993, 3 April 1997), P Rishworth ‘The Rule of International Law?’ in G Huscroft and P Rishworth, Litigating Rights: Perspectives from Domestic and International (Oxford: Hart Publishing, 2002) and, J Allan “Do The Right Thing Judging” The High Court Of Australia in Al-Kateb' (2005) 24 UQLJ 1.

58. Eg J McGinnis and I Somin ‘Should International Law Be Part of Our Law?’[2007] 59 Stan LR 1175.