3 The compatibility of s. 72 of the 2002
Act with the Refugee Convention
32. As we noted above, this report is confined to
the question whether the Order is compatible with the Refugee
Convention and therefore intra vires the order-making power
in s. 72(4)(a) of the 2001 Act. We have concluded that it is not.
33. In the course of our consideration of this question,
however, it has become clear to us that the very scheme of s.
72 itself may be incompatible with the Refugee Convention in a
number of respects.[27]
We have concerns, for example, about the appropriateness of a
conclusive presumption in relation to whether a crime is "particularly
serious". It is clear to us that the applicability of the
exceptions to the principle of non-refoulement in Article 33(2)
must be judged on a case-by-case basis, taking into account all
the individual circumstances of the case, including the particular
circumstances of the commission of the specified offence.[28]
There may, for example, have been significant mitigating circumstances
surrounding the offence which lessen its seriousness. By the same
token, there may be aggravating factors which make an otherwise
less serious offence more serious, for example the use of a deadly
weapon, or serious injury to people. Section 72 precludes any
consideration of such factors, because it provides for a conclusive
(i.e. non-rebuttable) presumption that certain offences are "particularly
serious crimes" for the purposes of Article 33(2).
34. We are also concerned that s. 72 of the 2001
Act reverses the burden of proof in relation to whether a refugee
is a "danger to the community". Article 33(2) appears
to presuppose that the burden is on the State to establish that
an individual, having been convicted of a particularly serious
crime, is also a danger to the community.[29]
The effect of section 72 of the 2002 Act, however, is that where
an offence of a particular kind has been committed by a refugee
or a claimant for refugee status, they are presumed both to have
committed a particularly serious offence and to be a danger to
the community, unless they can demonstrate that they are not a
danger to the community.[30]
35. We are further concerned that by adopting a rebuttable
presumption approach to the applicability of Article 33(2) of
the Refugee Convention, s. 72 of the 2002 Act precludes the application
of a proper proportionality test to the particular circumstances
of an individual case.[31]
In determining whether the exception to the principle of non-refoulement
in Article 33(2) applies in a particular case, it is necessary
for a balancing exercise to be carried out, weighing the nature
of the offence and the degree of danger to the community on the
one hand against the degree of persecution feared on the other
if the individual were to be returned. Section 72 of the 2002
Act gives effect to an approach to the application of Article
33(2) which has no regard to the individual circumstances of each
case other than to the extent that the individual can prove that
he is not a danger to the community. Even this limited opportunity
to consider the individual circumstances of the case is narrowly
circumscribed: the seriousness of the offence is not relevant
to this inquiry (see above), and the gravity of the fear or threat
of persecution is expressly ruled out as a relevant consideration.[32]
The only question is whether the individual can show that he is
not a danger to the community. If he cannot prove this, Article
33(2) is deemed to apply simply by virtue of a particular type
of offence having been committed.
36. We do not, however, go any further into the question
of the compatibility of s. 72 of the 2002 Act with the Refugee
Convention, as no purpose would be served reporting to Parliament
on the compatibility of a provision which has already been enacted
and which there is no imminent occasion for Parliament to reconsider.
We merely draw to the attention of each House our concerns
about the compatibility of s. 72 of the 2002 Act with Article
33(2) of the Refugee Convention. We may return to this question
at an appropriate juncture in the future.
27 In addition to the specific concerns which follow,
we have a more general concern that s. 72 confuses exclusion from
protection, which is dealt with by Article 1F, with exceptions
to the principle of non-refoulement, which is dealt with by Article
33(2).As the UNHCR Guidance makes clear, these are distinct provisions
with distinct purposes. Section 72 of the 2002 Act conflates them
(see eg. s. 72(1): "This section applies for the purpose
of the construction and application of Article 33(2) of the Refugee
Convention (exclusion from protection)").'Exclusion from
protection' under the Refugee Convention refers to Article 1F
not Article 33(2). Back
28
On the need for a full assessment of the individual circumstances
of the case, see Guidelines, para. 2. Back
29
Cf. the burden of proof with regard to exclusion under Article
1F rests with the State, and the applicant for refugee status
should be given the benefit of the doubt: Guidelines, para.
34. Back
30
The relevant Home Office Guidance, APU notice 5/2004, states at
para. 12: "Where a person seeks to argue that they are not
a danger to the community, the burden will be on them (not on
the Secretary of State) to show it." Back
31
On the importance of a proportionality test to ensure that the
gravity of the offence in question is weighed against the consequences
of exclusion from refugee status, see the UNHCR Guidelines,
above, at para. 24. Back
32
Section 72(8), providing that s. 34(1) of the Anti-terrorism,
Crime and Security Act 2001 (no need to consider gravity of fear
or threat of persecution) applies for the purposes of considering
whether the presumption that a person constitutes a danger to
the community has been rebutted. The Home Office guidance in APU
notice 5/2004 states at para. 18 that in a case where s. 72 applies
the refusal of the asylum claim should be made purely on s. 72
grounds and "there should be no consideration of the fear
of persecution aspect of the asylum claim within the Reasons for
Refusal Letter." Back
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