Joint Committee On Human Rights Twenty-Second Report


Appendix 1: Memorandum from the Refugee Legal Centre


1. This paper is produced to draw the Joint Committee's attention to the Refugee Legal Centre's concerns arising out of section 72 of the Nationality, Immigration and Asylum Act 2002 ("the section") and the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 SI 191 0/2004 ("the Order").

2. Hereafter the section and Order are collectively referred to as "the UK legislation".


3. In brief, the section operates so as to exclude consideration of a refugee claim. Section 72(2), (3) and (4) establish circumstances in which a person may be presumed to:

(a)  "have been convicted of a particularly serious crime"; and

(b)  "constitute a danger to the community of the United kingdom."

4. If the Secretary of State issues a certificate, under section 72(9)(b) that any of section 72(2), (3) or (4) apply, any appeal before the Immigration Appellate Authority or Special Immigration Appeals Commission shall exclude consideration of Refugee Convention grounds of appeal unless either body disagrees that the presumption applies.

5. The section makes express that its purpose is for "the construction and application of Article 33.2 of the Refugee Convention",[34] by which a refugee may be returned to a country in which he is at risk of persecution if:

"... there are reasonable grounds for regarding [him] as a danger to the security of the country in which he is, or [I having been convicted by a final judgment of a particularly serious crime, [he] constitutes a danger to the community … "


6. The Order now lists several hundred offences, of which conviction in the UK will engage the presumption in the section.


7. A person may be certified, and presumed to be precluded from consideration of their claim to be a refugee, if:

(a) convicted of one of the offences listed in the Order;[35]

(b) convicted of any offence in the UK and sentenced to at least two years imprisonment;[36]

(c) convicted of any offence outside the UK and sentenced to at least two years imprisonment if he could have been sentenced to a period of two years if convicted of a similar offence in the UK;[37] or

(d) convicted of an offence outside the UK and the Secretary of State certifies that the offence is in his opinion similar to an offence specified by the Order.[38]


8. On its face the UK legislation is simply an implementation of one aspect of the Refugee Convention. However, that impression is simply inaccurate. Consideration of the Convention demonstrates that far from implementing Article 33.2, the UK legislation goes far beyond the scope of the Convention and, indeed, appears to have very little at all to do with the Convention.

9. If implementing Article 33.2, one would expect that the UK legislation would mirror Article 33.2, which is one provision among several with a particular purpose which must be understood by reference to the other Convention provisions.

10. Thus, Article 2 enunciates an obligation upon refugees to respect the laws of the country in which they find refuge. This requirement does not need, and no requirement is stated, that mere failure to abide by such laws will or should lead to loss of status as opposed to prosecution as any other offender would expect.

11. Article 9 recognises that there may be a need for a state to introduce measures in respect of refugees, who have sought or been provided refuge within its borders, that are essential to national security. This provision does not envisage loss or denial of status or refuge.

12. Article 32 sets out a very different regime than Article 33 for refugees lawfully resident in the state. It may be arguable that Article 32 would apply to sur place refugees, which if correct indicates certain persons may be subject to the UK legislation, who would not be subject to the Convention provision the legislation purports to implement.

13. The UK legislation, by being so broad, also empowers the Secretary of State to exclude consideration of a claim to refugee status on the grounds of an offence, which constitutes expression of the refugee's political activity at the heart of his refugee claim (consider paragraphs 7(c) and (d) of these notes). Thus, the reason the refugee is at risk of persecution may under the UK legislation provide the reason why he is precluded from establishing his refugee status.

14. Moreover, Article 33.2 is not an exclusion clause. Whereas Articles 1D and 1F provide for exclusion from refugee status, Article 33.2 provides circumstances where the country of refuge may remove a refugee. Thus the effect of the UK legislation is outwith the ambit of the Convention since the UK legislation effectively precludes determination of a refugee's status.[39] The consequences of this over-reach of the UK legislation are discussed further below.

15. It should also be recalled that the relevant appeal right has always been on grounds that "removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention".[40] Consideration there is to the whole of the Convention. Accordingly, Article 33.2 was effectively within the scope of the appeals provisions in any event, so no implementing legislation was required.

16. Further fundamental discrepancies between the UK legislation and the Convention provisions are addressed in the following four sections of this paper.


17. Proportionality is an implicit aspect within human rights legislation, including the Refugee Convention. Thus the concepts of what constitutes a particularly serious crime and when a person constitutes a danger to the community ought to be interpreted in any particular case in such way as is proportionate to the risk entailed in removing a refugee.

18. The principle of proportionality within the Convention was a matter approved by the delegates and appears within the Travaux Preparatoires. It is also a concept clearly identified by leading academic writers upon the Convention.[41]

19. That principle finds no expression within the UK legislation. Moreover, the extent of the offences caught by the Order is remarkable and, on its face, manifestly disregards any principle of proportionality.

20. That is further confirmed by considering the effect of the Order in relation to section 72(4)(b), the provisions of which are identified at paragraph 7(d) of this paper. The power of the Secretary of State to apply a certificate to preclude consideration of a person's refugee claim, where that person has committed an offence outside the UK which the Secretary of State considers to be similar to one listed by the Order, is potentially of very wide application. Again, such breadth of potential application is wholly outwith any principle of proportionality.

21. The application of proportionality may be further considered by reference to European Community law[42] and the European Convention on Human Rights.[43]


22. The Refugee Convention itself recognises a difference between particularly serious crimes and serious crimes. Article 1 F(b) excludes from the Convention persons in respect of whom there are:

"serious reasons for considering that... he has committed a serious non-political crime outside the country of refuge prior to his admission to that country ..."

23. However, the extent of the list introduced by the Order leaves no realistic room for a distinction between crimes, serious crimes and particularly serious crimes. On its face, this observation indicates that the UK legislation is not, as it purports, simply implementation of Article 33.2.

24. Similarly, the power of the Secretary of State to certify convictions outside the UK as being in his opinion similar to those listed reveals a scope far beyond Article 33.2.


25. Similar to concerns indicated in the preceding two sections, is the observation that the very wide extent of the Order, and the potential for the Secretary of State to certify offences outside the UK as similar to an offence listed within the Order, allows on its face for inclusion of persons who it is difficult to see could constitute a realistic danger to the community having regard to the particular offence. For example:

—  A graffiti artist may be guilty of criminal damage, and caught by the Order, but it is difficult to see how such a person constitutes a danger to the community.

—  A person guilty of infanticide (where the crime is clearly directed at the offender's children) will have committed a very serious and appalling crime in the eyes of the community, but having regard to the nature of the crime it is again difficult to see how he constitutes a danger to the community.


26. Article 33.2 (see paragraph 5 of these notes) provides that there must be "reasonable grounds" for believing that the person has committed a particularly serious offence and constitutes a danger to the community.

27. However, the operation of presumptions is a blanket response and fails to respect that need for "reasonable grounds". Effectively, the Secretary of State has reversed the burden of proof because he has evaded his responsibility to have reasonable grounds for believing someone to be a danger, or for believing their offence to be particularly serious and has introduced a presumption, which the refugee claimant must rebut on appeal.[44]


28. It is firstly objectionable that the UK legislation, unlawfully by reference to the terms of the Convention, effectively excludes a person from establishing their refugee status. However, it must be recognised that in all, but perhaps the most exceptional of cases, the individual will retain protection against removal by virtue of Article 3 of the Human Rights Convention.[45]

29. However, the exclusion of refugee status determination has further consequences.

30. A refugee caught by the UK legislation will not be recognised as such. This is of importance because other statuses, which may provide protection to a person seeking asylum in the UK, fall outside the Immigration Rules. Thus Humanitarian Protection and Discretionary Leave are not, despite earlier stated intentions, recognised by the Immigration Rules.

31. A person is, therefore, precluded from appealing to an Adjudicator on the grounds that failure to recognise or grant these statuses is "not in accordance with Immigration Rules".[46] Even if a person may be able to prevent removal on Article 3 grounds, they may be disadvantaged in not being able to secure a particular status, with the attendant rights and entitlements that go with this (e.g. to work, to study, to claim benefits, if settled to seek family reunion etc.).

32. Moreover, even if status is granted, it would appear from the Asylum Policy Instructions that, once labelled a danger, such a person would be limited to 6 months Discretionary Leave, at the expiry of which a further 6 months could be applied for. No greater degree of settlement could be applied for until 10 years of such 6 months blocks of Discretionary Leave had been completed.

33. This would effectively preclude family reunion.

34. Moreover, it would create a situation for the refugee where his position was so unsettled that seeking to establish or develop an ordinary private life would be very difficult. It would likely interfere with his ability to form settled relationships, start a family, obtain work, undertake study or pursue certain health regimes.

35. These constitute unnecessary and disproportionate interferences with a person's private and family life (Article 8) rights.

36. Moreover, insofar as the UK legislation is beyond the scope of the Refugee Convention, it is arguable that these interferences are unlawful.


37. It is noted that the UK legislation has consequences for non-refugees also. In the preceding section the application of Discretionary Leave for those thought to be undesirable by reason of their "character, conduct or associations"[47] is considered. However, if the crimes listed in the Order become established as sufficient to include refugees within such an 'undesirable' category, it must be expected that this approach to what is undesirable will extend to others seeking protection on Human Rights grounds.


38. Having regard to the very wide, and too wide, extent of the UK legislation, it may be thought unlikely that the Secretary of State will use his powers in many, perhaps even the great majority, of cases potentially falling within the UK legislation's ambit.

39. That, however, is of no comfort. On the contrary, if correct, it merely speaks of the great potential for arbitrariness in the use of these powers. At worst, it is feared that press headlines in particular cases, or arising out of apparently similar facts to any particular case, would be likely to influence the application of a certificate in the future.

40. Doubtless these fears would be rejected by the Secretary of State. However, having regard to how wide is the extent of the offences listed in the Order and of the UK legislation generally, it is otherwise difficult to see why the Secretary of State should be accruing such power to himself.


41. It has previously been noted that the introduction of a rebuttable presumption reverses the burden of proof and immediately renders less than adequate ordinary legal safeguards.

42. These concerns are dramatically increased by reason of recent events. The tribunal system through which decisions will be reviewed is shortly to be significantly curtailed. The provision of legal aid, and consequently access to good legal representation, has recently also been curtailed. The effect is that very wide, and unnecessary, powers are being accrued to the Secretary of State to deny a person the opportunity of establishing their refugee status at the very time that the legal safeguards, which might militate against such powers, have been greatly reduced.

43. Moreover, it is right to note that the general tendency in matters of what constitutes "danger to the community' is that a decision-maker will defer to the Secretary of State. Such deference is likely to be all the more the case as regards matters litigated within a tribunal system rather than before the senior judiciary, and where access to the senior judiciary (whether in the High Court or Court of Appeal) has become increasingly restricted.

44. Moreover, given the curtailment of appeal rights, there must be increased scope for inconsistent decision-making as to what are the circumstances, in which a person does or does not constitute a danger to the community.


45. Having regard to the concerns outlined previously, we would consider the following to be minimum requirements:

—  Reconsideration of what constitutes a particularly serious crime, so as to give proper effect to the terms particularly and indeed serious.

—  Clear guidance upon when a person can be considered to constitute a danger to the community, which should reflect European standards ensuring that dangers must be genuine, serious and of proportionate magnitude.

—  Preservation of the burden of proof as resting upon the Secretary of State to establish there to be "reasonable grounds" for believing an offence to have been committed, for it to be particularly serious and for the person to constitute a danger to the community requires revision of the legislation.

7 October 2004

34   Section 72(1) Back

35   Section 72(4)(a) Back

36   Section 72(2) Back

37   Section 72(3) Back

38   Section 72(4)(b) Back

39   Following Saad, Diriye and Osorio [2001] EWCA Civ 2008, the IAA is now firmly established as empowered to determine refugee status Back

40   Section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002; but it is noted that previous appeal provisions were to the same effect and in very similar terms. Back

41   See for example, Professor Guy Goodwin-Gill The Refugee in International Law (2nd ed.) OUP at p. 140 (" … the application of Article 33(2) ought always to involve the question of proportionality, with account taken of the nature of the consequences likely to befall the refugee on return") and fn 107. Back

42   See ECJ, Case 36/75 Rutili [1975] ECR 1 concerning expulsion of EU citizens on public order grounds: justification for expulsion must at a minimum be that the person constitutes a genuine and sufficiently serious threat to public security; where it may be suggested that EU citizens should be treated differently, it must be recalled that: (a) the UK has an international obligation towards refugees; and (b) the risk of expelling a refugee are likely of a far greater magnitude than returning an EU citizen to his country of nationality. Back

43   See Chahal v UK (1996) 23 EHRR 413 Back

44   Section 72(6) Back

45   This is, of course, itself heavily ironic because the only action by the country of refugee allowed for under Article 33.2 of the Refugee Convention (which the UK legislation purports to be implementing) is the very thing that Article 3 of the Human Rights Convention will prevent: removal. Back

46   Appeals on these grounds may be brought under Section 84(1)(a) of the Nationality, Immigration and Asylum Act 2002 Back

47   See API's on Humanitarian Protection and Discretionary Leave Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2004
Prepared 3 November 2004