Part 4

Detention and Removal

Removal

Serious criminal
72
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 adjudicator, 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 at least two years of the sentence are not suspended),
ii
includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), and
iii
includes a reference to a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for two years).