ON APPEAL FROM THE UPPER TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE PATTEN
| AQ (Somalia)
|- and -
Secretary of State for the Home Department
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Mr Ranby De Mello & Mr Ahmed (instructed by Central Practice Law) appeared on behalf of the Respondent.
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Lord Justice Sullivan:
"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."
"(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.
(6) A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.
(9) Subsection (10) applies where—
(a) a person appeals under section 82, 83, 83A 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)."
"Section 72 of the Nationality, Immigration and Asylum Act 2002 makes a presumption that an appellant should be excluded from asylum protection in the event of having committed a particularly serious crime (defined as one which led to a sentence of more than two years of custody). However (Section 72(10)), this relies upon the respondent first issuing a certificate to the effect that Section 72 applies which the Tribunal must begin with (Section 72(10)(a)) and reject the asylum appeal if the certificate is upheld. There is no such certificate in this case. It did appear to us, however, that the question of Section 72 had been inadequately addressed and we issued directions giving leave for the parties to file and serve further written argument on the point by 13 January 2010."
"Section 72(10) requires the case to commence with consideration of a pre-issued certificate. In the absence of such a pre-issued certificate we decline to enter into consideration of exclusion of asylum save to note that serious offences are at issue but the judge sentenced on the basis of this appellant not actually having caused injury (paragraph 7) and not being a significant risk (paragraph 12). In the event of the appellant continuing with his criminal activities, the respondent will be at liberty to make a further deportation decision with a new Section 72 certificate issued prior to any appeal hearing. We therefore proceed to the substantive asylum issues."
"Digressing slightly from the pathway set by EO, the balancing exercise under paragraph 363 referred to above would not have been in the appellant's favour. He has been committing offences since within two years of arrival. He has been assessed as being of high risk of further offences and danger to the public (albeit not adopted in the sentencing remarks). Further victims may therefore be expected from his criminal behaviour…"
"It must firstly be decided whether the making of the original decision involved the making of an error on a point of law."
"4. The first substantive point in the respondent's application is at paragraph 3, which criticises the Tribunal's decision in relation to section 72 of the Nationality, Immigration and Asylum Act 2002. The respondent's criticism is not very clear, but as focused by the Presenting Officer at the hearing is to the effect that section 72(2) does not require a pre- issued certificate, as the tribunal thought. Mr Hopkin [who was the presenting officer] referred to Macdonald's Immigration Law & Practice, 6th ed., paragraph 1299, fn 8 and the Immigration (Notices) Regulations 2003, Regulation 5 […] There is no updating reference in the First Supplement of the 7th. ed. The legislative and regulatory framework is not changed.
5. I expressed the provisional view at the hearing that the presumption in s.72(2) did not depend on a pre-issued certificate. However, a full reading of s.79(9) and (10) along with Regulation 5(5) bears out the statement in the footnotes of Macdonald that the appellant must be notified of the certification and its effect along with the notice of immigration decision.
6. This point is avoided in the respondent's application, which submits that the panel 'erred in law in not adequately considering this section [72 (10)] -- without explaining how the subsection and regulation are to be interpreted in the way now sought by the respondent.
7. The presumption of exclusion in this case therefore did not arise, and the Tribunal made no error in that respect."
"In summary: the respondent has failed to show error of law in respect of the Tribunal's finding that Section 72(10) required a pre-issued certificate. There was thus no presumption to rebut."
"4(1) Subject to regulation 6, the decision-maker must give written notice to a person of any immigration decision or EEA decision taken in respect of him which is appealable."
"5(1) A notice given under regulation 4(1) is to—
(a) include or be accompanied by a statement of the reasons for the decision to which it relates; and
(b) if it relates to an immigration decision specified in section 82(2)(a), (g), (h), (i) or (j) of the 2002 Act, state the country or territory to which it is proposed to remove the person."
That was done and various other requirements as set out in regulation 5(3) and 5(4) were complied with.
"Subject to paragraph (6), where the exercise of the right is restricted by an exception or limitation by virtue of a provision of Part 5 of the 2002 Act, the notice given under regulation 4 shall include or be accompanied by a statement which refers to the provision limiting or restricting the right of appeal. "
Paragraph 6 of regulation 5 is not relevant for present purposes.
"On refusing a person asylum as a refugee the Secretary of State may issue a certificate that a presumption under this provision applies to him or her [foot note 9] and on appeal, the appellate body must begin its substantive deliberation on the appeal by considering its certificate, and if accepting that the presumption applies (having given the appellant an opportunity to rebuttal) must dismiss the appeal insofar as it relies on refugee asylum grounds."
"The applicant must be notified of the certification and its effects along with a notice of any immigration decision see Immigration (Notices Regulations) 2003 regulation 5(5)."
"Given the general wording of subsection (1), I accept that the presumptions are to be applied generally, both by the Secretary of State when making a decision on an application for asylum and by the Tribunal on the hearing of an appeal. (For present purposes, it is unnecessary to consider proceedings before the Special Immigration Appeals Tribunal separately.) In my judgment, once the facts giving rise to the statutory presumptions have been established, it would be an error of law for an Immigration Judge to fail to apply a presumption required by the section, irrespective of whether or not the Secretary of State had issued a certificate under subsection (9)(b). Indeed, Mr Jay accepted that there has been no statutory certificate in this case. The only effect of a certificate is to require the Tribunal to address the certificate and any issue as to the rebuttal of the presumption of dangerousness at the beginning of the hearing of the appeal. I assume that the certificate is of greater value where the conviction relied upon is outside the United Kingdom. An appellant may seek to displace the certificate by showing that he has not in fact been convicted of a relevant offence or to rebut the presumption of dangerousness by establishing that he does not in fact constitute a danger to the community."
"The presumptions in s.72 apply in all cases, where applicable, heard by the Tribunal (SSHD v TB (Jamaica)  EWCA Civ 977, at  per Stanley Burnton LJ). However, s.72(9) and (10) create a mechanism that may be invoked by the Secretary of State which affects the Tribunal's process when deciding asylum appeals. Section 72(9) permits the Secretary of State to issue a certificate that the presumptions under the relevant subsection of s.72 apply. When this is done, as it was in this case, s.72(10) requires the Tribunal to determine whether the presumptions do in fact apply to the asylum appeal and, if they do, dismiss the appeal. The effect is to alter the normal (and perhaps more natural) way of dealing with a case: first, deciding whether the individual is a refugee; and secondly, only if he is, deciding whether notwithstanding that he may still be refouled because Art 33(2) applies. In cases where a certificate is issued under s.72(9), the refoulement issue is decided first and only if it does not apply can the Tribunal consider whether the individual is in fact a refugee because he has a well-founded fear of persecution for a Convention reason. Of course, in practice the evidence and any risk on return would need to be considered in order to decide whether the
individual's return would breach Art 3 of the ECHR. The decision of the Panel in this appeal is one such example. Section 72(10) does not prevent this, but does prevent the Tribunal from making a finding that he is a refugee albeit one who can be refouled."
"Where the exercise of the right of appeal under Part 5 is restricted by an exception or limitation, the notice given under regulation 4 shall include or be accompanied by a statement which refers to the provision limiting or restricting the right of appeal."
The short answer to that submission is that that is not what the regulation says, it is clearly concerned with particular types of exception or limitation; that is to say those which are found in Part 5 of the Act.
Lord Justice Patten:
Lady Justice Arden:
Order: Appeal granted