Payne Hicks Beach

Payne Hicks Beach

18 November 2020

Sanctions and Asylum claims following the poisoning of Navalny

The poisoning of Alexei Navalny made its way into the European Council’s agenda for discussion between 1-2 October 2020. Returning to the matter on 15 October, the EU ordered sanctions against six high-ranking Russian officials and the Russian State Research Institute of Organic Chemistry and Technology.  As soon as the decision was taken, the UK’s Foreign Secretary Dominic Raab confirmed that the UK will also be applying asset freezes and travel bans, in line with the sanctions announced by the EU. Although the sanctions target these key individuals in Putin’s entourage, many are concerned about the wider impact of the measures.

Background:

Alexei Navalny, prominent anti-corruption activist, and vocal opponent to President Vladimir Putin, was excluded from running in the 2018 presidential election after being convicted of embezzlement by Russia’s Court. Mr Navalny maintains that the convictions were unfounded and merely the Kremlin’s attempt to silence his fierce criticisms.

On 20 August 2020, Mr Navalny fell ill on a domestic flight to Moscow from Siberia, prompting an emergency landing in Omsk, where he was rushed to hospital with suspected poisoning. After falling into a coma, he was transferred to a hospital in Berlin for specialist treatment. The German military’s test results, released on 2 November 2020, revealing "unequivocal proof of a chemical nerve warfare agent of the Novichok group", demanded the EU’s attention; not least because this was the same chemical weapon used by Russian operatives in the attempted assassination of Sergei Skripal in Salisbury 2018

In the first meeting of the European Council, they called upon the Russian Federation authorities to fully cooperate with the Organisation for the Prohibition of Chemical Weapons (OPCW) to ensure the impartiality of the international investigation. On 6 October, the OPCW published their support for the findings of 3 separate international laboratories, which confirmed that the Novichok nerve agent was used in the poisoning of Mr Navalny.

The EU Sanctions:

This is not the first time that the EU has sanctioned Russian individuals for human rights matters; on 17 March 2014 the EU imposed sanctions in the form of travel bans and asset freezes against twenty-one top Russian and Crimean officials in response to the Annexation of Crimea. A further two individuals were sanctioned in relation to the poisoning of Sergei Skripal. This July, the UK also announced its first sanctions under new global human rights regime, which targets those who have been involved in some of the gravest human rights violations and abuses around the world.

The attack on Mr Navalny has prompted calls for more onerous sanctions, including scrapping Russia’s Nord Stream 2 gas pipeline to Germany and, as proposed by MEP Josep Borrell, creating a new sanctions regime named after Navalny, mirroring the American Magnitsky Act. Despite the pipeline ensuring increased dependency on Russian fossil fuels, too many member states look to benefit from its construction for the suggested abandonment to pass. The punitive effect of US sanctions which target the pipeline should be weighed up against their hopes for the EU to opt for America natural gas. As for the creation of a Member-State-wide “Navalny Act”, it would have been unprecedented for the EU to name legislation or other sanctions after individual victims of human rights violations.

Economic implications:

It has been stressed that this decision is merely a political signal of little consequence for the Russian economy. However, the measures imposed by the US under article 307 of the 1991 Chemical and Biological Weapons Control and Warfare Elimination Act (the CBW Act) may be more severe than those proliferated by the EU mechanism. The American legislation prescribes six measures, the most serious of which is a ban on lending to Russia, a mechanism which was already used in response to the Salisbury incident (Executive order No. 13883 of 01/08/2019). This notwithstanding, Treasury Secretary Mnuchin has been criticised by US senators for not wielding the full extent of such legislation, including the Magnitsky Act, and failing to cause any real damage to the Russian economy.

In contrast, by choosing sanctions that specifically address those individuals who are responsible for the poisoning, rather than Russia at large, the EU may be avoiding the parallel punishment forced upon the general population, already suffering under Russia’s failing economy. Instead, these targeted measures are branded as a bulwark against corruption, preventing the elite from profiting finically or politically from their human rights violations.

However, the impact of the sanctions should not be underestimated. Russia’s economy hasn’t shown any considerable growth in the last decade, with Putin remaining hugely dependant on loans from foreign capital markets. External borrowing from the West increased 14-fold between 2003 and 2014, but this spree came to an abrupt halt one the USA imposed unprecedented financial sanctions in response to the attack on Malaysia Airlines Flight 17 (MH17) over Donbas. The resultant slump in the rouble paired with the pressures of paying off their foreign currency debts forced Putin to turn to China for credit. However, the scale of the Chinese financial system did not save Russia from their consequent economic stagnation.

If Putin had hoped for improved fiscal relations with the west that the key political substitutions envisaged throughout the coming years, from the 2020 US election to Angela Merkel’s anticipated retirement in 2021, these sanctions are the nail in the coffin for Russia’s financial isolation. Despite the sanctions affecting named individuals rather than the state as a whole, they are likely to have far reaching financial and political consequences. And given the officials targeted include both members of Putin’s secret service and his political wing, the message of condemnation sent to the Kremlin is clear.  

Potential Asylum Claim

According to Article 1 of the 1951 United Nations Convention and Protocol Relating to the Status of Refugees, a refugee is a person who “… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.”  The granting of asylum is thus dependent on the applicant being able to demonstrate a genuine fear of persecution, political or otherwise.

In light of the international consensus that the Russian state ordered Navalny’s poisoning, he would have a good prospect of satisfying this test. A central member of Navalny’s Progress party, and executive director of the Navalny anti-corruption fund, Vladimir Ashurkov, has already received political asylum in the UK.  . In fact, both France and Germany have publicly declared their willingness to provide him with asylum protection - even though he has stressed his determination to return to Russia and resume his political activism once he has recovered.

As to the question of whether other Russian nationals who fear persecution in Russia are likely to be granted asylum in the UK, the picture is mixed. A House of Commons briefing paper this year recorded that  of the 11,220 Russian’s who claimed asylum in the UK, 2,525 applications were granted; only 23%. However, an applicant’s prospects of success are increased substantially if represented by a legal team which understands the nuances of the political environment in Russia. 

Our Citizenship & Immigration Team has assisted with many highly confidential, complex asylum claims from Russia and the CIS region, and will be able to provide a high quality and discrete service on these matters.

Article by Georgina Rea, Paralegal in the Citizenship & Immigration Department at Payne Hicks Beach. For further information please contact either Georgina Rea by email or telephone on 020 7465 4300, or alternatively your usual contact in the Citizenship & Immigration Department

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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.

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