Criminal Justice and Immigration Act 2008

Criminal Justice and Immigration Act 2008

2008 CHAPTER 4

The Act

Commentary on Sections

Part 10: Special immigration status

Section 131: “Foreign criminal”

769. This section defines the term “foreign criminal” as it is used in section 130.

770. Subsection (1) provides that a “foreign criminal” is a person who is not a British citizen, and who satisfies one or more of the conditions set out in subsections (2) to (4).

771. The condition in subsection (2) (Condition 1) is that section 72(2)(a) and (b) or (3)(a) to (c) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) applies to the person. This applies where a person has been convicted of an offence, either in the United Kingdom or abroad, and has been sentenced to a period of imprisonment of at least two years. If the conviction was outside the United Kingdom, there is a further requirement that the person could have been sentenced to a period of imprisonment of at least two years had his conviction been in the United Kingdom for a similar offence.

772. The condition in subsection (3) (Condition 2) is satisfied where section 72(4)(a) or (b) of the 2002 Act applies to a person and the person has been sentenced to a term of imprisonment of any length. Section 72(4)(a) applies where a person is convicted of an offence specified by order of the Secretary of State, and section 72(4)(b) where a person 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 section 72(4)(a).

773. Subsection (4) specifies that Condition 3 applies where Article 1F of the Refugee Convention applies to a person. Where Article 1F applies, the person concerned cannot be a refugee.

774. Subsections (5) and (6) make clear that provision for the rebuttal and non-application of the presumption that a person constitutes a danger to the community is irrelevant to the question of whether a person is a foreign criminal.