Joint Committee On Human Rights Twenty-Second Report

1 Introduction


1. We systematically examine every Bill presented to Parliament for compatibility with the international human rights obligations by which the UK is bound. Although we do not carry out the same systematic scrutiny of all delegated legislation, we do examine statutory instruments in respect of which a significant human rights compatibility issue has been identified.[1]

2. The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004[2] ("the Order") has been made by the Secretary of State under s. 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The Order was made on 20 July 2004, laid before Parliament on 22 July 2004, and came into force on 12 August 2004. It is subject to annulment in pursuance of a resolution of either House.[3] The Joint Committee on Statutory Instruments considered the Order in its Twenty-ninth Report of 2003-04 and determined that the special attention of both Houses did not require to be drawn to it.[4]

3. We have received written representations about the compatibility of the Order with the Refugee Convention[5] from the Refugee Legal Centre.[6] The United Nations High Commissioner for Refugees (UNHCR), whose task it is to supervise the application of the provisions of the Convention, has also expressed its concern to some of our members. We consider these to be serious concerns and have therefore decided to scrutinise the Order for compatibility with the UK's international human rights obligations.[7]

4. Lord Lester has prayed against the Order and it will be debated in the House of Lords on 8 November 2004. A Prayer has been tabled against the Order in the House of Commons by the Liberal Democrats (Early Day Motion 1775).

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.

1   See for example Sixteenth Report of Session 2002-03, Draft Voluntary Code of Practice on Retention of Communications Data under Part 11 of the Anti-terrorism, Crime and Security Act 2001, HL Paper 181, HC 1272, scrutinising the draft Code of Practice and draft Order laid before Parliament pursuant to s. 103 of the Anti-terrorism, Crime and Security Act 2001. Back

2   SI 2004 No. 1910 Back

3   Section 72(5)(b) Nationality, Immigration and Asylum Act 2002 Back

4   Joint Committee on Statutory Instruments, Twenty-ninth Report of Session 2003-04, HL Paper 174, HC 82-xxix (15 October 2004). Back

5   UN Convention Relating to the Status of Refugees, 1951, 189 UNTS 137, UK Treaty Series No. 39 (1954), Cmd. 9171. Back

6   Appendix 1 Back

7   The representations we have received also raise wider questions about the compatibility of s. 72 of the 2002 Act itself with the UK's obligations under the Refugee Convention. We consider this briefly below, but this report is mainly confined to the narrower question of whether the Order itself is compatible with the Refugee Convention and therefore within the scope of the Order-making power conferred by s. 72(4)(a) of the 2002 Act, in order to assist each House to decide whether or not to annul the order pursuant to s. 72(5)(b) of the 2001 Act. Back

8   Section 72(1) Back

9   The statutory presumption also applies where a person has been convicted outside the UK of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by the Order: s. 74(2)(b). Back

10   Section 72(6) of the 2002 Act Back

11   Or the new single-tier appeal tribunal when the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 is brought into force. Back

12   Section 72(9) Back

13   Section 72(10) Back

14   Asylum Policy Unit notice 5/2004, available on the Home Office website Back

15   Para. 2. The schedules to the Order reflect the differing territorial extent of offences: offences that apply throughout the UK (Sched. 1); offences that apply only in England and Wales (Sched. 2); offences that apply only in Scotland (Sched. 3); offences that apply only in Northern Ireland (Sched. 4): offences that apply only in England and Wales and Scotland (Sched. 5); and offences that apply only in England and Wales and Northern Ireland (Sched. 6). Back

16   Under the Terrorism Act 2000, the Anti-terrorism, Crime and Security Act 2001, and the Taking of Hostages Act 1982. Back

17   For example under the Explosive Substances Act 1883, the Biological Weapons Act 1974, the Nuclear Materials (Offences) Act 1983, the Chemical Weapons Act 1996. Back

18   For example the Aviation Security Act 1982, the Aviation and Maritime Security Act 1990, and the Channel Tunnel (Security) Order 1994. Back

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