EN (Serbia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Lord Justice Hooper,Lord Justice Laws |
| Judgment Date | 26 June 2009 |
| Neutral Citation | [2009] EWCA Civ 630 |
| Docket Number | Case Nos: C5/2008/0667 and C5/2008/0819 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 June 2009 |
[2009] EWCA Civ 630
Lord Justice Laws
Lord Justice Hooper and
Lord Justice Stanley Burnton
Case Nos: C5/2008/0667 and C5/2008/0819
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Manjit Gill QC and Basharat Ali (instructed by Aman Solicitors-Advocates) for EN
Tim Eicke and Alan Payne (instructed by the Treasury Solicitor) for the Secretary of State in EN (Serbia)
Tim Eicke, John-Paul Waite and Alan Payne (instructed by the Treasury Solicitor) for the Secretary of State in KC (South Africa).
Raza Hussain and Kathryn Cronin (instructed by Messrs Wesley Gryk) for KC
Hearing dates: 16, 17 and 18 March 2009
Lord Justice Stanley Burnton:
Introduction
These appeals, and KC's application for permission to appeal, have been heard together because they raise points of some importance as to the effect of section 72 of the Nationality, Immigration and Asylum Act 2002 and the statutory instrument made under it. The section creates presumptions that persons convicted of offences and sentenced to a term of imprisonment of at least 2 years have committed particularly serious offences and are a danger to the community for the purposes of Article 33(2) of the Geneva Refugee Convention (“the Convention”). In addition, the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (the 2004 Order”), made under section 72(4)(a), specifies a large number of criminal offences as offences to which the presumptions apply irrespective of the sentence imposed by the court.
Within hours after the completion of oral submissions, the Court received a letter from Mr Eicke, counsel for the Secretary of State, enclosing a copy of the determination of the Asylum and Immigration Tribunal in IH (s. 72 “Particularly Serious Crime”) Eritrea [2009] UKAIT 00012, which had been promulgated on 9 March 2009 but published by the Tribunal on 18 March 2009, the last day of the hearing before this Court. In that case the Tribunal, consisting of Deputy President Ockelton and Senior Immigration Judges Lane and Grubb, considered and decided most of the issues concerning section 72 and the Regulations that are before us. Their determination includes an extensive citation of authorities, which renders it unnecessary for us to refer to all the authorities cited to us bearing on the issues before us. We invited, and received, the parties' written submissions on IH.
There are before the Court three appeals or applications for permission to appeal:
(a) EN's appeal against the determination of Senior Immigration Judge Batiste promulgated on 21 January 2008.
(b) The Secretary of State's appeal against the determination of the President of the Tribunal, Hodge J, and Senior Immigration Judge Jordan dated 5 February 2008 in so far as they held that KC would be at risk of persecution if he was deported to South Africa.
(c) KC's application for permission to cross-appeal against that determination, which was heard on the basis that if permission were granted the appeal would be determined on the submissions and material before the court on the application.
For convenience, I shall refer to both EN and KC as the Appellants, it being unnecessary for many purposes to distinguish between their submissions.
The provisions of the Refugee Convention and section 72
In order to understand the issues in these appeals, it is necessary to set out certain provisions of the Refugee Convention as well as those of section 72, and in addition Council Directive 2004/83/EC (“the Qualification Directive”), implemented in this country by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (“the Qualification Regulations”).
The principal provisions of the Refugee Convention that are relevant are Articles 1A(2), 1C and 33:
Article 1A: For the purposes of the present Convention, the term “refugee” shall apply to any person who:
…
(2) Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Article 1C: This Convention shall cease to apply to any person falling under the terms of section A if:
………..
(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;…”
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.
Section 72 of the 2002 Act, as amended by the United Kingdom Borders Act 2007, is as follows.
72 Serious criminal
(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).
(2) 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 United Kingdom if he is—
(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least two years.
(3) 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 United Kingdom if—
(a) he is convicted outside the United Kingdom of an offence,
(b) he is sentenced to a period of imprisonment of at least two years, and
(c) he could have been sentenced to a period of imprisonment of at least two years had his conviction been a conviction in the United Kingdom of a similar offence.
(4) 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 United Kingdom if—
(a) he is convicted of an offence specified by order of the Secretary of State, or
(b) he is convicted outside the United Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a).
(5) An order under subsection (4)—
(a) must be made by statutory instrument, and
(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) A presumption under subsection (2), ( 3) or (4) that a person constitutes a danger to the community is rebuttable by that person.
(7) A presumption under subsection (2), ( 3) or (4) does not apply while an appeal against conviction or sentence—
(a) is pending, or
(b) could be brought (disregarding the possibility of appeal out of time with leave).
(8) Section 34(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (no need to consider gravity of fear or threat of persecution) applies for the purpose of considering whether a presumption mentioned in subsection (6) has been rebutted as it applies for the purpose of considering whether Article 33(2) of the Refugee Convention applies.
(9) Subsection (10) applies where—
(a) a person appeals under section 82, 83 or 101 of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground that to remove him from or to require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention, and
(b) the Secretary of State issues a certificate that presumptions under subsection (2), ( 3) or (4) apply to the person (subject to rebuttal).
(10) The Tribunal or Commission hearing the appeal—
(a) must begin substantive deliberation on the appeal by considering the certificate, and
(b) if in agreement that presumptions under subsection (2), ( 3) or (4) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a).
(11) For the purposes of this section—
(a) 'the Refugee Convention' means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and
(b) a reference to a person who is sentenced to a period of imprisonment of at least two years—
(i) does not include a reference to a person who receives a suspended sentence (unless a court subsequently orders that the sentence or any part of it is to take effect),
( ia) does not include a reference to a person who is sentenced to a period of imprisonment of at least two years only by virtue of being sentenced to consecutive sentences which amount in aggregate to more than...
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