The effect of the Order
5. Section 72 of the Nationality, Immigration and
Asylum Act 2002 states that it applies for the purpose of the
construction and application of Article 33(2) of the Refugee Convention.[8]
6. Article 33(2) provides for an exception to the
general prohibition on the expulsion or return ("refoulement")
of a refugee in Article 33(1). Article 33 provides—
Article 33 - Prohibition of expulsion or return
('refoulement')
1. No Contracting State shall expel or return ('refouler')
a refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social
group or political opinion.
2. The benefit of the present provision may not,
however, be claimed by a refugee whom there are reasonable grounds
for regarding as a danger to the security of the country in which
he is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community
of that country.
7. Section 72 of the 2002 Act provides that a person
shall be presumed to have been convicted by a final judgment of
a particularly serious crime and to constitute a danger to the
community of the UK in certain circumstances, including, under
s. 72(4)(a), if "he is convicted of an offence specified
by order of the Secretary of State".[9]
A presumption that a person constitutes a danger to the community
is rebuttable by that person.[10]
8. The Secretary of State may issue a certificate
that the presumption applies to a person who is appealing to the
Immigration Appellate Authority[11]
or the Special Immigration Appeals Commission on the ground (wholly
or partly) that to remove him from or to require him to leave
the UK would be in breach of the Refugee Convention.[12]
Where such a certificate is issued, the tribunal hearing the appeal
must begin substantive deliberation on the appeal by considering
the certificate, and if it agrees that the presumption applies
(having given the appellant an opportunity to rebut the presumption
that he constitutes a danger to the community), must dismiss the
appeal in so far as it relies on Refugee Convention grounds.[13]
9. The effect of the s. 72 presumption applying is
therefore to exclude substantive consideration of a refugee claim.
The Home Office instruction which provides guidance on the application
of s. 72 states—
11. … where an asylum seeker commits a crime
that brings them within the scope of section 72, and where they
do not rebut the presumption that they are a danger to the community
their removal from the United Kingdom is not contrary to the Refugee
Convention. As such, their asylum claim should be refused on the
basis of section 72 alone, without any substantive consideration
of the asylum claim.[14]
10. The Order specifies that an offence described
in any of the six Schedules to it is specified for the purposes
of s. 72(4)(a) of the 2002 Act.[15]
The Order specifies both a very large number and a very wide range
of offences. They include terrorism offences[16]
and related offences concerning material which might be used for
terrorist purposes[17]
or the security of particular modes of transport.[18]
They also include, however, a considerable number of lesser offences,
including drugs offences, immigration offences, customs and excise
offences, offences against the person including a wide range of
sexual offences, and offences against property such as theft and
criminal damage.
11. The effect of the Order, therefore, is that conviction
of any one of these offences will now trigger the statutory presumption
that the person concerned has been convicted of a particularly
serious crime and is a danger to the community, and can therefore
have his Refugee Convention claim or ground of appeal dismissed,
unless he can establish to the satisfaction of the decision-maker
or appellate tribunal that he is not a danger to the community.
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