Joint Committee On Human Rights Twenty-Second Report


The Joint Committee on Human Rights systematically examines every Bill presented to Parliament for compatibility with the international human rights obligations by which the UK is bound. Although it does not carry out the same systematic scrutiny of all delegated legislation, it does examine statutory instruments in respect of which a significant human rights compatibility issue has been identified.

In this report, the Committee draws the special attention of each House to concerns it has about the human rights compatibility of the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes Order) 2004. The Order is made under s. 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 which states that it applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention. Article 33(2) provides for exceptions to the principle that refugees cannot be returned to persecution ("the principle of non-refoulement").

One exception is where, having been convicted of a particularly serious crime, the refugee constitutes a danger to the community of the country of refuge. Section 72 creates a presumption that a person has been convicted of a particularly serious crime and constitutes a danger to the community of the UK in certain circumstances, including if convicted of an offence specified by order of the Secretary of State. The Order specifies a wide range of offences for this purpose. The effect of the Order is that anyone convicted of such an offence will have his claim for asylum dismissed unless he can establish that he is not a danger to the community.

The Committee is concerned that the Order as drafted is ultra vires the order-making power because it includes within its scope a number of offences which do not amount to "particularly serious crimes" within the meaning of Article 33(2) of the Refugee Convention, properly interpreted. In view of the humanitarian purpose of the Convention, the exceptions to the principle of non-refoulement are to be given a restrictive interpretation. The category of "serious crimes" for the purposes of the Refugee Convention is a narrow category of offences, and the category of "particularly serious crimes" is even narrower. The inclusion of such a wide range of offences in the Order expands the exception and therefore undermines the important principle of non-refoulement. Although Article 3 ECHR, if relied on, may prevent return to persecution in such cases, claimants for asylum still suffer the detriment of being denied refugee status.

The Committee also expresses its concerns about the compatibility of s. 72 itself with the Refugee Convention.

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Prepared 3 November 2004