 Roeddwn i'n mynd i gynnwys ystafell ar ei adeiladau. Rwy'n credu'n fawr i'w cymryd yma i'w cyfrifio'r llef. Mae'r objec yw i'r ffordd o'r ffordd yn y fifio cymryd yma, felly mae'n cymryd yw'r defnyddio'r llef. Mae'r gwirioneddau yw ymgyrchu'r llef yn y fifio cynyddiadau byddai'r hystau gwirioneddau a'r hynge. Mae'r cyfrifio a'r cymryd yw'r hynge i'w hynge i'w cyfrifio'r llef, a'r cyfnod o'r cyfnod i gyntaf i'r cyfnod i ddygol, oherwydd, yn ddych i ddiwrnod Cymru, dwi'n cael ein cyfrifedol sydd wedi'i gweithio'r cyfnod at y bydd Milfiwn Bridge, wedi'i ddod o'r cyfnod i'r cyfrifedol i'r cyfiwnod i'r cyfrifedol. Beth yna'n meddwl o'r mwyaf, mae'n meddwl iawn yn ei ddwyf o'r methau, sy'n meddwl yma'r meddwl hefyd, ac mae'r ideaeth o hynny, ond yn ymgyrchio'n meddwl. Mae gweld yma fel y gwbl yn y mynd i ddwyllio'n gweithio, rydych chi'n gwybod y fawr yn gyhoeddus, mae nid i gael sicrhau gallu eu bod yn oed i chi'n ymweld eu bod yn dod i sмаe. Rydyn ni'n mwyaf i'r rhagleniaf, mewn gwirioneddau o'r syllaf â'r gwaith mewn gwirioneddau i'r posibl mewn gwirioneddau a mynd i'r gwaith. Yma, yn y dyfodol, y dyfodol, y cyfrannu lleidiau sydd, and Fall, or we might call it, so called, low standard of proof. Standard of proof is one of those issues that is of great significance to the common law tradition, though one could probably conduct this lecture in theatres around the world, in the civil jurisdictions, and they would hardly be concerned at all about the standard of proof, it's very much an artefact and obsession of the common law. But it is nevertheless a convenient tool, certainly for judges and in theory, and other decision makers, iawn i'r gweithio a ddydd i'r llwyso'r meddwl o'r ffath oherwydd ar hyn o'r chyfnodau prognostiogau ar y brif Weinidol yn y Cymru. Dwi'n edrych i'r cyfrifau cyfrif rhaid o'r cyfrif yma o'r law cyfrif. Mae cyfrif yma o'r cyfrif yma hwnnw wedi'n cael ei cyfrifau o'r cyfrif sy'n goch ar y cyfrif, y Llywodraeth Cymru o'ch ddau'r cyfrifysgol gyda'r ystod o bethau a'r ddiad o'r ddau'r cyfrifysgol a'r ddau'r memo. Mae'r cyfrifysgol yn y Llywodraeth Cymru yw'r cyfrifysgol yn y Gweithio. Fyddai'n ymddir i'r rhagorau. Mae'r cyfrifysgol yn y cyfrifysgol yn dda'r rhagorau ar gyfer y dyfodol o'r rhagorau a'r ddau. A mae'n ddau'r rhagorau. Yr ddau'r rhagorau a'r ddau'r rhagorau i'r cyffredin o gynhyrchu gyda Rhaid B ac Rhaid D ar ymwneud. Rhaid Ddau Cymru yn y gyrfaen o'r cyffredin yn y Llyfrgell Llyfrgell, ac mae'n rhaid i'r gynhyrch yn gynhyrch gwybod yn ymddangos, ond mae'r cyffredin yn gwybod yn ysgolig yng nghymru, mae'r cyffredin yn 32 ddylch. Rwy'r gyrfaen o'r cyffredin yn y gyrfaen o'r cyffredin, mae'n rhaid i'r gyrfaen o'r cyffredin, Yn 1985, beth yr Edrychi Siones yn... Tych yn ddyn nhw. yw'r rau'r rai sydd eich oed o ddiwylliant electrifant o'r ond eistedd ymweithio mewn darllen y ffскойig. Ie, mae'r rhag concerns flwyddyn er mwyn lle'r wrth i'r rai rai rai ond a'i gweithio fel dweud, a dweud fel ddiwylliant ag ysgronaf, felly dyna'r ddysgyn cenderfyn ddim yn cael i'r ddysgu sydd rai'r amser ac y dyma'r rai sgolion yn cael eu ddysgu ystafell i'w gwnaeth o'r sefydliadau a i gael ei chael a gael gen i gweld o brydau hynny, rhan mewn gwirionedd gwrth bwrdd. Felly, y exclubau'r adeiladau, ac modd pobl yn fawr, yn ystod yn sicr mae'n wych yn fawr hyn y llegau y rhan o'r twyl yn ddechrau oherwydd yau'r ddau ffîl iawn o gwbl, ond o'r ddau fawr ac yw'r ddau yn ddechrau. Mae'n neud, wedi'i ei chyfnwys o'r arf Minister i fynd, ond nad yw y unrhyw o'u ddau i fynd. Yn gynyddu, mae'r cyfrifol yn gwybod, mae'r gyfnodd y tribunol yn ei hunain ffordd yn y dyfodol ar gyfer cyfrifol yng Nghymru. Yn rhaid, mae'n sgolwch â'r wyf. A hynny, mae'r cyfrifol Scottish QC yn ffusio'r ddigon o'r ddigonau sy'n bwysig o bwysig. Ac ydych yn fwynt y panel o'r drosig yng Nghymru, Professor Madison, Professor Jackson and I suppose it would have been a lay member, possibly Mr Kumar. This panel sat and they cogitated upon the issues and they decided that logically there could only be a single standard approved for risk assessment and the assessment of future risks. That was the upshot of their thinking. They said that it should be anathema in the asylum regime to separate out part events from establishing the risk in the future. There was a probability in an asylum claim of greater than normal uncertainty when considering the historical facts, it would be a rare decision maker who was never uncertain about some aspects of the evidence. That was a majority decision. For this panel split and Mr Madison, he wrote, there was no reason on a common sense basis or in law the burden of proof should be any lower than the normal civil standard. The appellant is simply required to tell the truth. It was that for some years the card to tribunal, the majority approach held sway. An interesting feature of it is that although we all very glibly refer these days to the low standard of proof, query whether we are right to do so. As was pointed out in the landmark decision that was to follow, Karen Akron, Carger never themselves, that tribunal never said that there is a low standard of proof for historic fact finding. All they said was that there should be a positive role for uncertainty. They never said the bounds of probabilities should not apply to asylum fact finding. That may be something that we come to hear more of as the standard of proof is litigated in the years to come. Anyway, the next event in between Carger and Karen Akron is the decision of Horvath. Horvath is a case about the Roma community from Eastern Europe and the problems they had at the hands of the skinhead population and their allies in the local police forces. That was the case about state protection primarily. Beyond that, it prompted some musings by the Court of Appeal, Stuart Smith and Ward, Lord Justices, about the standard of proof for measuring historic facts. They put the matter firmly in issue. They said that in their opinion the standard of proof should probably be the bounds of probabilities, but the matter wasn't live in front of them and they thought the Court of Appeal should consider the issue at the earliest possible opportunity. I apprehend they had in mind that they would be considering it, but little did they know that the day before they handed down their judgement, the court said the Brooke and someone else had risen in the internal relocation case of Karen Akron. They recalled the advocates in order to beat the Conservatives for Inc. of the Court of Appeal to the Jaw in terms of giving a ruling on what the standard of proof should be for eons to come, they hoped. As they put it, we ought to take this early opportunity to resolve the issue. As I'm sure they would be the first to acknowledge, we have had the benefit of very much fuller argument on all these issues that are available to the Horvath Court. And so they go on and they quote a series of hugely insightful decisions. Gow, Shang Lang, others decisions. Raja Lingham from the Australian Court, which managed to make even more of a meal of standard of proof in asylum than the English Court ever did. Perhaps nine or ten major precedent decisions fell from the Australian Court over the course of a decade. And the learning that they handed down was this, that there should be a positive role for uncertainty, that the risk of error, given the gravity of issues involved, should always be acknowledged. And really, possibility should only be discounted when assessing fears of persecution if one was in no real doubt that they were rightly to be rejected. They also said that civil litigation was an inapt analogy. And this is something that the English judges, Brooke, and said they ran with very much. They said that the asylum forum is not an adversarial process in the normal sense. It's not a trial between equal parties. Essentially an asylum appeal, one side puts up a case and the other tries to knock it down, but with no affirmative evidence of their own most of the time at all. So they said that civil litigation was an inapt analogy. So the conclusions then in Karen Akeran, a drawing on the Australian learning, was that decision makers weren't constrained by rules of evidence in civil litigation. Decision makers shouldn't feel obliged to find certain facts as proved. They shouldn't exclude any matters of consideration when assessing the future. And only at the last moment is a residual balance of probabilities test applied, even in most other forms of litigation. Anyway, then we have the statutory intervention in section 32 of the 22 Act, which introduces that thing, the very heresy that was identified in Carger, the two-stage test. That has been firmly brought onto the statute book now. And indeed the worst of it, in a sense, is not simply the adoption of the balance of probabilities, but the insistence of a two-stage test. Because if all we had was balance of probabilities alone, all that rich Australian learning and the contributions from Sidley Brook and Jackson, all that material would be available for us to freely draw upon whatever the label attached to the standard of proof overall. It's the compartmentalisation, the partitioning into two parts, which is the real vice-critics, would say, of section 32. And so what section 32 says is that when assessing fear and whether or not someone has a characteristic causing them to fear persecution, the balance of probabilities is to be adopted. And when determining risk and internal relocation, the low standard of proof, uncontroversially, is to be adopted. But a caveat to all this, obviously I no doubt this will be the subject of litigation to come, an interesting caveat is that UK VI guidance, as published, I think remarkably, still version one, not tinkered with over full nine months, I think, on assessing credibility. And it says, and this is post 22 act cases, you must consider whether to apply the benefit of the doubt to any material facts which remain in doubt after you have reviewed all the evidence in the round. So it seems that remarkably, whatever they may have achieved by legislation, some minds at the home office still want to enshrine the carger and cow and acro an approach by the back door of guidance and a long head hat guidance survive. A final point before moving on to my next topic, my topics probably get shorter as they go on if you're watching the clock, is that the richness of the common law, judges always waffle on about the richness of the common law. I look for a reference of it, in fact I drowned in references, in fact if you're speaking of the richness of the common law on Bailey. And one example, you read the dead language of section 32 of the 22 act compared to the richness of the consideration by the multiple divisions of the tribunal court of appeal and Australian judges who looked at the issue and it's a sad comparison really. And the moment at which one division of the court of appeal swoops to take the legal morsel out of the mouth of another, activist lawyers, you tell me. Next topic, second moment, persecution and human rights, the moment at which English law possibly turned its back on the full majesty of the human rights approach to assessing persecution. So long ago, in fact it was the same decision upon which we've already touched, Jonah back in 1985 in the days where there really was hardly any epistemology around refugee law, say for the UNHCR handbook, Professor Hathaway's book on one or two bits of case law, back in the days of Jonah, that decision not only dealt with standard proof but also looked at the question of the definition of persecution and it said that persecution was an ordinary word in the English language and therefore the dictionary definition should be adopted to pursue with malignancy or injurious action to oppress for holding a heretical opinion or belief. And before too long, we've just met, we've already met David Jackson, who's the author of the Carger decision, possibly English law's first great refugee law judge. Now we meet the second one, Geoffrey Cair. And Geoffrey Cair was responsible for the decision in Gachi, which was a response to the very large numbers of asylum claims emanating from the former Yugoslavia from Kosovo Nationals seeking asylum in the UK. And it was decided that a test case was needed, a kind of general ruling was going to be needed in order to deal with all these cases or set down some form of precedent in one go. Geoffrey Cair, like to say, at the venerable age of 94, graced the stage at the conference in Hague of the International Association of Refugee Judges last week, 94, and also in the same month published his new book on refugee law, the Galilee Bell, dealing with Church Asylum. So his great contribution anyway in the case of Gachi was that the Preamble of the Refugee Convention was an important star by which to navigate. And the Preamble says that considering the charter of the United Nations, the Universal Declaration of Human Rights too, has affirmed the principle that human beings will enjoy fundamental rights and freedoms without discrimination. And so given that Preamble intention clearly stated in the recitals of the Refugee Convention, he said that that was a green light, a green light to adopt a human rights approach rather than a dictionary definition approach to the calculation of persecution. And indeed he went further. He adopted Professor Hathaway's three categories, or maybe even four categories of varying forms of human rights, which depending on their legal foundations in the international law of human rights had various forces to them. First category rights were those which were completely inviolable. Second category rights were those which were deroggable in times of emergency. Third category rights were those which should be implemented in a non-discriminatory way, but were otherwise okay to violate. Okay, so that was Gachi and for some time, Gachi held sway and indeed surprisingly, effectively approved by the Horvath litigation, the sepparton bull bull litigation. And so things stood right up to the time when we entered the lespash of the European Union's common European asylum system and the qualification directive entered force. I'll be saying more about the qualification directive era in due course, but for now, we're just looking at the issue of persecution and the QD then it says that at article nine it addresses the issue of persecution and it does so in two stages. Nine one deals with gravity. Acts of persecution must be sufficiently serious by their nature or repetition to be a severe violation of basic human rights, in particular those which deroggation can't be made, or can be an accumulation of various measures. So nine one deals with or of equivalent severity. So nine one deals with gravity, nine two deals with examples and it gives examples such as discriminatory prosecution, discriminatory sentencing, military service in breach of international norms as a species of conduct which could be seen as persecution. In this law then in due course looked at the meaning of those provisions in order to decide whether or not the gashy approach still survived and it did so in the cases of those who we might style a Palestinian three, MA, MT and SH, Palestinian territories, three cases which made their way through the court at a very similar time and represented an early effort by the UK courts to deal with the difficulties posed by the Palestinian issue. In these cases there were two factual issues largely in play. One issue was the possibility of getting back into one's homeland and secondly was the question of how bad the discrimination be once one was there. I want to start off with the second point first then discrimination and this is the critically really issue about the Palestinian three. The court in astonishingly compressed piece of reasoning for an issue of dramatic significance over the ages in a few paragraphs, Lord Justice Scott Baker really addresses the point and he says that the objective of Article 9 was harmonisation which suggested a narrow reading. He also said that the phrase in particular, remember it said, so act of persecution must be sufficiently serious, et cetera, in particular to be a breach of the non-derogable rights. He says that in particular must be exhaustive. It couldn't possibly mean for example. He makes one or two other points of semantic import. A couple of things to say about that. The refugee convention is primary law as became increasingly clear throughout the period in which we were a party to the system and the court of justice time and time again announces that refugee convention is a primary law source, that is to say it sees it as a constitutional instrument. So when we saw Mr Care deal with the preamble to the refugee convention as a legal foundation for a rights based, a broad rights based approach to persecution, one might equally have taken the same approach as a matter of European Union law treating the refugee convention preamble as part of the constitutional materials available to it. So query whether or not the right answer has got there but also another query is that in particular, if we read the usage of the phrase in particular across the common European asylum system, procedures directive, reception directive, half the uses are in fact, for example, they patiently are, they're not designed to delineate there's the be all and end all of an inquiry. I mean, for example, the procedures directive talks about relying on country evidence to specify to identify safe countries but it doesn't mention general human rights reports but it refers to the whole bunch of sources as in particular. The reception directive talks about the need to follow the charter of fundamental rights in particular articles 2 and 18 but there's no way the reception directive intended to exclude the rest of the charter of fundamental rights and play. And so, you know, one is always very slow to criticize judgment of the Court of Appeal but there was an issue, you know, there are issues about the cases of the Palestinian Free before leaving that topic, a live issue on persecution which remains open is the other half of those cases, the other aspect, the question of return. Now, the case born refugee convention is strong in that for nationals, people who hold nationality of a particular country of origin, if they're denied return then that is persecution, the loss of the entire basket of rights by the denial, see Lazarevich and the line of authority thereafter. The stateless did not get such a good deal. The cases of the Palestinian Free are astute to note that you can't really complain about something you never had and if you didn't have nationality rights in the first place, then why complain about their absence now? It's a continuation of a previous misfortune but it's not an act of persecution. Well, it was pointed out in the advocacy in the cases of the Palestinian Free that if you read the ICCPR, International Covenant on Political Rights, et cetera, at article 12 it talks about rights to enter one's own country and it points out that country here was broader than state in article 12.4 and therefore it would seem that in some scenarios that while nationals do have the strongest right to return, for individuals who have close and enduring connections with particular territories, there's an argument that they fall between the two extremes. That is to say those with the entitlements that some would assert for the Palestinian cause might not fall to be treated simply as bare stateless individuals. Anyway, that's an unresolved issue though the Court of Appeal took one look at it and said it was difficult, controversial and too politically sensitive to resolve those issues are then available. Third moment, the protection of civilians in wartime and in both in times of national and international armed conflict. Two quotes from history, yeah? General Marius, Roman warlord and first individual to threaten the sanctuary of the Roman Republic. He says famously, in the clash of arms the laws are silent and that is what he says when it suggested that he should row in his troops from the worst of their excesses in the clash of arms the laws are silent. Lord Atkin in his landmark dissent in the 1940s in Llywosig and Anderson Lord Atkin says the law is not silent in the clash of arms which can only be an intentional reference to his warlord predecessor. So, but the truth is I think that if we look at the response of international protection law over time to the plight of civilians caught up in armed conflict the laws have often fallen silent and left something by way of a protection gap. And this is even though often as acknowledged for example in KH Iraq the plight of civilians caught up in armed conflict and it's not getting any better affronts our common humanity. So, when the UK courts came to deal with this in the context of the Civil War in Somalia in the early 90s Lord Lloyd and his other judges found it very difficult to see a way into the refugee convention for these individuals. He said that it was obvious that civil wars were probably fought on on convention reason grounds born of politics or religion or whatever but you needed something else a differential impact over and above the ordinary risks of clown warfare at least until one side achieves supremacy and persecuted the vanquished. So, the case of Adam was the foundation for a drawing back of potential international protection for the victims of civil war for some years. Adam is a case now that looks and the upper tribunal has said this in the past it looks rather old fashioned in AM and AM Somalia a strong revision of the upper tribunal noted that it was showing its age and it was very hard to imagine given the general embrace of international humanitarian law by the English courts since Adam that exactly the same decision would be made were the case to be re-encountered by a supreme court in this country and Adam received criticism around the world the New Zealand court were critical of it the Ibrahim court in the High Court in Australia said the text rationale and purposes of the convention did not justify the Adam conclusions the House of Lords relied on academic commentary from Professor Hathaway but if one reads that commentary it appears to be lesser embrace or analysis of the present system and just a description of a state of affairs that was by no means perfect and when Hathaway and his colleagues leading academics around the world revisited the issue shortly after Adam they produced the Michigan guidelines on convention nexus and said no special rule governs the cordial nexus standard in the case of war or other large scale violence or oppression in reality of course the heat was taken out of the Civil War pressure cooker because of the arrival of article 15c of the qualification directive which vested subsidiary protection on those who might otherwise have got refugee status and of course at least for so long as the rights were identical of course they no longer are in the United Kingdom but as long as they were identical no one really cared what form of international protection they received and article 15c is put in these terms subsidiary protection will follow if there is a serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict quite a piling up of words Lord Justice said they remarked upon it when the case reached the Court of Appeal in QD Iraq he pointed out there were a whole series of contradictions implicit in that text the most obvious one is the requirement of an individual threat arising from indiscriminate violence and no doubt the reason why that phrase was put into the qualification directive was that Member States could not agree they could not agree on the full embrace of the victims of armed conflict as something that went beyond executive discretion and could receive status as of legal right and so they inserted words to sabotage the original intent of the European Union Commission a number of courts have looked at article 15c KH Iraq is the most creative approach where the UK's tribunal in a massive piece of impressive scholarship sought to demonstrate that you could best give life to article 15c as a way of expanding civilian protection beyond what you would get from article 3echR they said you could achieve that expansion best if you incorporated international humanitarian law into the qualification directive they said that was legitimate because the preambles of the qualification directive draw on state practice and international humanitarian law is indubitably a piece of state practice and they also suggested that phrase threat to a civilian's life or person when read with the introductory phrase which required a real risk of a threat to a civilian's life or person demonstrated that there was a lesser form of harm envisaged by this provision than might be the case for example with article 3echR Mike Fordham as he then was was to say in his submissions in one of the later 15c cases he was designed to protect civilians who lived under the shadow of violence sadly for all the efforts of the tribunal in KHR which was a problematic decision in some ways no doubt it didn't survive the gaze of the Court of Appeal when it went onward and the Court of Appeal said that IHL had no real role to play in the qualification directive protection regime they said that regime had to stand on its own two legs and could not incorporate other legal regimes and since then the law has struggled the judges have struggled to find any meaningful role for article 15c qualification directive that would not simply have been found in good old article 3echR ok good right let's move on to the fourth moment fourth moment is departure from the European Union and the process of deharmonisation with European Union law so we've already seen some features of the qualification directive over the last few minutes in some ways the qualification directive was the high point the high point of the humanitarian initiatives in favour of refugees it was a rare opportunity for a supernatural institution the European Union Commission and the rest of the EU's legislature to look at the processes and practices around the world adopt many of the best ones and give life to something that would never otherwise have existed now it's true of course not every directive that formed part of the common European asylum system necessarily had that motivation but the qualification directive I would suggest probably represents the high point in terms of the protection given to refugees in many ways also of course you only have to look at it to realise that much of it was crystallised UK case law all the stuff on social group political opinion, state protection even internal relocation could have been taken straight from the decisions in extent UK case law in the early 2000s and now of course we're going to enter an era an interesting and difficult era where we depart from the shadow of the court of justice Eleanor Sharpton former UK advocate general to the court of justice it says that taking taking legal provisions out of the court of justice regime is like taking a delicate plant out of the soil that nourishes it she says that inevitably it won't flourish it will die in that scenario we will see what the richness of common law has to say about that but there is obviously an issue that we no longer know these provisions which have been now de-retained by moving them from a retained law into the sections of the 22 act that happened last June we will have to see how they are to be interpreted one point on interpretation though is that the court of justice of the European Union takes a distinctive approach to looking at the refugee convention as I've already touched on increasingly it awarded it increasing normative intensity as time went on it gave more and more weight to the value of the refugee convention itself as I say it saw it as a constitutional document time and time again it calls it primary law it also looks at the compatibility in at least in cases of ambiguity of the qualification directive with a charter of fundamental rights and the European convention on human rights it also has other quirks that is the fact it searches for the best it searches for the most shared meaning between the different language versions where there is some difference between them and other quirks a member states it seems could actually be liable to an interpretation born of directives which it hadn't signed up to when interpreting a directive which it had signed up to so the court of justice is a court that has a very distinct interpretive approach so to give an example better take the concept of protection the concept of state protection and obviously I'm about to talk about Brexit law and that comes to the health warning that these are waters in which to sail and as happened perhaps to the Supreme Court in G&G not so long ago it's easy to capsize in those waters but anyway this is my best effort to explain the approach to European Union law which still matters because there's a significant period where this EU retained law was still on the statute book and what to say what is the right approach let's take a concept like protection so obviously protection before October 2006 was governed by the case law of Horvath Horvath basically said that protection did not have to be effective the whole point of the rooting in Horvath was that the tribunal had effectively found that Mr Horvath and his Slovakian peers faced a real risk of persecution of being beaten up a real risk of being beaten up at the hands of skinheads and their uniformed accomplices but the court in Horvath managed to say that that wasn't enough to achieve refugee status because you also had to show that there was no machinery and no adequate machinery in place to diminish the risks you faced now when the qualification directive came out of the legal laboratories in in Brussels they injected some humanity into that and they said they took the Horvath test the requirement for a working machinery of justice but they added to it the requirement that it be both effective and accessible an example of the positive work that the commission did in developing the qualification directive so they achieved that little humanitarian flourish so that's the test that we had and that's the test that we had right up until June 2022 effectively however once Brexit happened and the implementation period ended i 31 December 11pm 2020 the regime changed because there was then a period where we had the 2006 protection regulations which gave the same definition the very same definition of protection which I've just mentioned protection has to be effective and accessible same definition now for court of justice case law that was decided pre December 2020 it would be binding interpreting those provisions and if it was decided post December 2020 there is merely a matter to which you may have regard as a judge the individual promoting that legislation Mr Raab, Government Minister as he then was Mr Raab promoting that legislation said there was no wish to fossilise court of justice decision making and he wanted judges to have a real English judges to have an opportunity to revolutionise it whenever required the the parliamentary orders in section 6 of the 2018 act that addressed the approach to be taken to retain DU law basically say that higher courts should depart from it when they consider it right to do so and as Professor Feldman at Cambridge remarked that didn't really help very much because presumably whatever else you might do you wouldn't depart from the case if you thought it was wrong to depart from it and so telling you you used to do so if it was right to depart from it didn't give an enormous amount of legal content doesn't give an example of this so in January 2021, so right on the cusp of the implementation period finishing but as after it finished these court of justice in OA Somalia come up with a decision on clans Somali clans and the English court for some years had said that clans could provide protection against persecution but the court of justice said that the social and financial support provided by private actors be they family or clan could not suffice because it would not pass the requirements for state protection in the qualification directive so that decision would from December of January 2021 until June 2022 have been a matter to which regard should have been had of course now since June 2022 we have firmly repatriated refugee law and the other sequelae of the qualification directive like humanitarian protection repatriated it largely into the 2022 nationality and borders act and so the question arises what approaches to be taken by the English courts to court of justice authorities were to considering exactly the same text the internal relocation text the social group test the state protection test here is all verbatim the same between the 22 act and the qualification directive what approach is the English courts to take to that the legal certainty is a significant principle in English law the US Supreme Court talks about the cement of legal principle Alan Patterson in his book the law lords says that the reality is that over the last 30 or 40 years the House of Lords has departed from its own decisions or it avoided departing from them where legitimate expectations should not be upset where people had arranged their affairs relying on extant law departure should be reserved for circumstances where great uncertainty has been caused by the existing pronouncements of the court given the delphic pronouncements of the court of justice it might pass that test with some ease anyway they say the past is a foreign country so there's a real live question though to what extent we have left the foreign country which is the European Union and for how long the court of justice's shadow will cast over us my final topic then briefly and that is common affairs common affairs so 70 years worth of at least in form respect but most of the norms within the refugee convention is presently jeopardised some critics say by legislation speedily going through the parliament at present and in so doing damaging protections with the speed of parchment going up in a flame and so what does this statue do this isn't a CPD court about the interstices of what the new legislation says and goodness knows how much it will change before it passes but in short the most interesting provisions for present purposes are the provisions which put asylum claims on hold and the idea is that anyone who's arrived in the UK from 7th of March 2023 who didn't come here directly I passed through or stopped in another country where their life or liberty is not threatened their claims will be rendered inadmissible and that will be the case whether or not they make a protection claim a modern slavery claim a human rights claim and whether or not they receive a decision on a judicial review and there are fairly complicated provisions about how all that is to be dealt with going forwards UNHR obviously the best commentator to go to on this point they say by seeking to close its borders to people fleeing persecution and to require them to seek protection elsewhere they should be retreating from the principles of international cooperation on which the global refugee system is based and acting inconsistently with the object and purpose of the refugee convention imposing an even more disproportionate responsibility on those countries as well as others through which refugees may travel and which are closest to refugee producing zones and threaten the capacity and willingness of those countries in turn to provide protection and long term solutions it is when hosting capacity is overwhelmed that onward movement often ensues the majority of those claiming asylum will be left in indefinite limbo while the government seeks arrangements with third countries for removal for which there are currently no viable arrangements in place the strain on housing, medical care and schools will increase rather than diminish the bill all but extinguishes the right to claim asylum in the UK 96% of refugees asylum seeking others in need come from the 108 countries whose nationales require entry clearance to come to the UK this is a rejection of the principles of international cooperation on which refugee law is founded it would be inconsistent with the right to seek and enjoy asylum a basic human right under article 141 of the UDHR so no doubt about what side of the fence UNHR are on in this debate so given the points they might make objective bystanders might question the wisdom of the legislation Henry VIII is on record as saying when presented with a particularly obscure writ by his legal advisers I know his law for my lawyers so tell me but my reason digestific not perhaps that observation might be made of some critics of the proposed legislation at the moment obviously there are problems with it such as lawyers which UNHR identify so clearly but also Lord Bingham when Lord Bingham writes his book Rule of Law he says that key features of the rule of law rights and liability being resolved by law rather than discretion an equality of application of the law absent any objective justification and obviously lifting the protection of the law in the way that's being proposed from a class of individuals for example by depriving them of the full access to judicial review is a distinct step to take which has to be thought of thought about carefully are there any legal norms that might stand in the way of these measures and here we find ourselves casting around somewhat because you know the UK of course is a dualist country we only we don't incorporate conventions into our national law merely by signing up to them we have to have the additional step or fully incorporating them to some extent that has been done in a particular way by the sophisticated way vis-a-vis the European Convention on Human Rights it hasn't been done at all with the Statelessness Convention it was sort of done but rode back on quite recently for the Trafficking Convention and vis-a-vis the Refugee Convention all we really have is the statement that the immigration rule should not be inconsistent with anything in the Refugee Convention obviously the whole point of putting this stuff on the statute book rather than in the form of rules is to emphasise the sovereignty of Parliament the preamble of the Refugee Convention says that considering the charter of the UN and the UN of UDHR have affirmed the principles that human beings will enjoy fundamental rights and freedoms without discrimination the UN has manifested its profound concern for refugees so the preamble obviously is a potential source of law but it isn't incorporated into the English system so John Law famously did rely on the preamble at least to back up his existing thinking in separate and bull bull when he said that taking a narrow approach to military service evaders would confine the scope of convention protection in a straight tack jacket so tight as to mock the words of the recital the very recital that I just read out but the truth was he was already home and dry on more classic legal norms the principle of good faith UNHR would probably have it that the approach of the UK government proposed in the current legislation is not necessarily fully in good faith and the Vienna Convention on Article 26 Paxton Savannah says that treaties shall be performed and interpreted in good faith but again as the English courts have been very clear Brown and Stott, Roma writes there's nothing to stop a party interpreting a treaty as meaning what it says and declining to go any further in adamant in maintaining the question of entry in particular entry of foreign nationals is something which falls to each nation to resolve for itself International Court of Justice says in the Nicaragua case that the good faith principle is not of itself a sort of obligation when none would otherwise exist so it is a very difficult situation of course there are other legal norms in the human rights convention and so forth that may mean that leaving alleged refugees in Limbo Dante's first circle of hell for an extended period may be rights violative and it may well be that actions can be brought on that score but it's really quite difficult to see what it is in the refugee convention as operative in a dualist system like the United Kingdom that would prevent the measures so hopefully those pessimistic comments will be proved wrong now I was hoping to find a positive note to finish on because most of this has been negative here is my positive note so a quotation much loved by Barack Obama who actually changed it to make it more digestible to the American market I think but originally for Martin Luther King it is said that the arc of the moral universe is long but it bends towards justice and so we might hope we might hope that the common sense advanced by UNHR will prevail and who knows that the experiments that we're seeing in the asylum and the voluntary that is in the United Kingdom at the moment won't all come to pass or will be attempted and in due course abandoned thank you very much