Upper Tribunal (Immigration and asylum chamber), 2009-03-09, [2009] UKAIT 12 (IH (s.72, 'Particularly Serious Crime'))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Deputy President, Senior Immigration Judge Lane, Senior Immigration Judge Grubb |
| Status | Reported |
| Date | 09 March 2009 |
| Published date | 17 March 2009 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 09 September 2008 |
| Subject Matter | s.72, 'Particularly Serious Crime' |
| Appeal Number | [2009] UKAIT 12 |
IH (s.72; ‘Particularly Serious Crime’) Eritrea [2009] UKAIT 00012
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at Field House Dates of Hearing: 12 February,
3 and 9 September 2008
Before
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Lane
Senior Immigration Judge Grubb
Between
IH
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr P Draycott instructed by Paragon Law
For the Respondent: Mr P Patel instructed by the Treasury Solicitors
The presumptions in s.72 of the Nationality, Immigration and Asylum Act 2002 that in the circumstances specified a person has been convicted by a final judgment of a “particularly serious crime” for the purposes of Art 33(2) of the Refugee Convention if read as irrebuttable are inconsistent with Art 21.2 of the EU Qualification Directive (Council Directive 2004/83/EC) which gives effect to the autonomous international meaning of Art 33(2) as part of EU law. As a consequence, the presumptions in s.72 must be read as being rebuttable.
DETERMINATION AND REASONS
Introduction
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The Appellant is a citizen of Eritrea who was born on 1 April 1973. He is of mixed ethnicity: his father was Eritrean and his mother was Ethiopian. The Appellant is married to an Ethiopian citizen. They have a daughter. It seems that the Appellant’s wife and daughter are currently living in Eritrea. The Appellant arrived in the United Kingdom on 6 April 2004 and claimed asylum which was refused on 2 June 2004. The Appellant was consequently refused leave to enter. That decision was, however, subsequently withdrawn. On 12 December 2005, the Appellant was convicted of sexual assault on a female contrary to s.3(1) of the Sexual Offences Act 2003. He was sentenced to 21 months imprisonment and required to sign the Sex Offenders Register for a period of 10 years. The Trial Judge recommended that the Appellant be deported. On 30 June 2006, the Respondent decided to make a deportation order against the Appellant under s.3(6) of the Immigration Act 1971 which (by amendment on 4 October 2006) specified removal to Eritrea or Ethiopia.
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Although it was accepted that the Appellant had been in the Eritrean military, the Respondent rejected the Appellant’s account of what he claimed had happened to him whilst in the military which, it was said, gave rise to a risk of persecution or serious ill-treatment if he returned. In addition, on the basis of the Appellant’s conviction in the UK under s.3(1) of the Sexual Offences Act 2003, the Respondent concluded that the Appellant, even if a refugee, could nevertheless be returned by virtue of Art 33(2) of the Refugee Convention which provides that the non-refoulement provision in Art 33(1) does not apply if the individual has been convicted of a “particularly serious crime” and he “constitutes a danger to the community”. Applying s.72 of the Nationality, Immigration and Asylum Act 2002 (hereafter “the 2002 Act”) and the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order (SI 2004/1910) (hereafter “the 2004 Order”), the Respondent concluded that the Appellant was presumed firstly to have been convicted of a ‘particularly serious crime’ and secondly that he constituted a danger to the community which had not been rebutted on the evidence. The Respondent issued a certificate under s.72 of the 2002 Act that the presumptions in s.72(4) of that Act applied.
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The Appellant appealed against the Respondent’s decision to deport him on a number of grounds. He claimed to be a refugee (alternatively to be entitled to humanitarian protection). He also relied upon Article 3 of the ECHR and para 364 of HC 395. It was argued that Art 33(2) did not apply to the Appellant and that the 2004 Order was ultra vires as there was no power to make it under s.72 of the 2002 Act because it was incompatible with Art 33(2).
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Following a hearing on 14 December 2006, the Tribunal (Immigration Judge P J M Hollingworth and Dr Chaudhry) (hereafter “the Panel”) dismissed the Appellant’s appeal on all grounds. The Panel found the Appellant not to be credible and rejected his account of what he claimed happened during his military service in its entirety. The Panel did not accept that in 1998, whilst in the military, he was accused of being a spy and had been detained for 6 months in prison and suffered injury as a result of ill-treatment because he had criticised senior officers at a military meeting. The Panel rejected the Appellant’s claim that in February 1999 he was released and rejoined the fighting at the front. Also, the Panel rejected his claim that in April 2000 he was again detained in prison after he had questioned his wife’s deportation to Ethiopia but that 11 days later he escaped after the guards fled when the area was captured by Ethiopian troops. Further the Panel rejected the Appellant’s account that, following his escape, he travelled the 120-130 kilometres to Sudan by foot in 3 days where he stayed between May 2000 and April 2004 when he came to the UK. The Panel also concluded that the Appellant had failed to establish that he had left Eritrea illegally and thus he was not at risk on return on that basis. For those reasons, the Panel rejected the Appellant’s claim under Article 3 of the ECHR. In relation to the Appellant’s reliance upon the Refugee Convention, the Panel agreed with the Secretary of State’s certificate under s.72 that the presumptions in subsection (4) applied and thus dismissed the appeal on refugee grounds. The Panel concluded that s.72 and the 2004 Order (which it held it had no jurisdiction to decide was ultra vires) applied to the Appellant and that therefore the non-refoulement obligation in Art 33(1) of the Refugee Convention did not apply because the Appellant fell within Art 33(2).
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The Appellant sought, an order for reconsideration, which was granted by Senior Immigration Judge Goldstein on 11 May 2007.
Outline of the Issues
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We heard oral argument over 3 days in February and September 2008. The parties also put before us extensive skeleton arguments and written submissions, the final one of which was received by the Tribunal on 5 November 2008. We are grateful to the parties for the care and detail in which they presented their submissions.
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Mr Draycott, who represented the Appellant, challenged the Panel’s decision to dismiss the appeal on the refugee ground and that the Appellant’s removal would not breach Art 3 of the ECHR. We did not understand Mr Draycott directly to challenge the Panel’s decision in respect of para 364 of the Immigration Rules. We do not consider separately in any detail the Appellant’s claim for humanitarian protection because that will stand or fall with our decision in respect of the refugee claim. Mr Draycott made two principal arguments in support of his contention that the Panel had materially erred in law in dismissing the appeal.
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First, Mr Draycott submitted that the Panel was wrong in law to apply the 2004 Order to the Appellant. The 2004 Order is ultra vires, there being no power in s.72 of the 2002 Act to make an Order inconsistent with Art 33(2) of the Refugee Convention. Because the combined effect of s.72 and the 2004 Order is that certain offences are irrebutably presumed to be ‘particularly serious crime[s]’, the 2004 Order (and s.72 itself) is incompatible with the ‘autonomous’ international meaning of Art 33(2). The enabling power in s.72 has to be read subject to the requirement that it will be exercised consistently with Art 33(2). He submitted that the Tribunal has jurisdiction to decide that the 2004 Order is ultra vires. Further, Mr Draycott submitted that the 2004 Order (and perhaps even s.72 of the 2002 Act itself) could not stand in the face of Art 21 of Council Directive 2004/83/EEC “on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted” (hereafter the “Qualification Directive”) which imposes on all EU Member States a non-refoulement obligation in the exact terms of Art 33(2) and so through EU legislation gives effect to the ‘autonomous’ meaning of Art 33(2).
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Secondly, Mr Draycott submitted that the Panel’s decision in respect of Art 3 of the ECHR should be set aside. The Panel erred in reaching its adverse credibility finding that led it to reject the Appellant’s account of what happened to him in, and which caused him to leave, Eritrea. Mr Draycott subjected the Panel’s reasoning on credibility to a detailed critique which, he submitted, showed that the Panel had materially erred in law.
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Mr Patel, who represented the Respondent, essentially took a contrary stance on each of these issues. His principal submission was that there is no international ‘autonomous’ meaning to be given to Art 33(2) which the Tribunal could apply. The proper meaning to be given to the phrase “particularly serious crime” is a matter for the domestic law of each Contracting State which meant...
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