Joint Committee On Human Rights Twenty-Second Report

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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