Section 72: Serious criminal, Nationality, Immigration and Asylum Act 2002

This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from prohibition of expulsion or return).

A person is convicted by a final judgment of a particularly serious crime ... if he is—

convicted in the United Kingdom of an offence, and

sentenced to a period of imprisonment of at least 12 months.

A person is convicted by a final judgment of a particularly serious crime ... if—

he is convicted outside the United Kingdom of an offence,

he is sentenced to a period of imprisonment of at least 12 months, and

he could have been sentenced to a period of imprisonment of at least 12 months had his conviction been a conviction in the United Kingdom of a similar offence.

A person is convicted by a final judgment of a particularly serious crime ... if—

he is convicted of an offence specified by order of the Secretary of State, or

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).

An order under subsection (4)—

must be made by statutory instrument, and

shall be subject to annulment in pursuance of a resolution of either House of Parliament.

A person is to be presumed to have been convicted by a final judgment of a particularly serious crime if—

the person is convicted in the United Kingdom of an offence listed in Schedule 3 to the Sexual Offences Act 2003, and

the person is not, by virtue of the conviction, a person falling within subsection (2).

A person is to be presumed to have been convicted by a final judgment of a particularly serious crime if—

the person is convicted outside the United Kingdom of an offence,

the act constituting the offence would have constituted an offence listed in Schedule 3 to the Sexual Offences Act 2003 had it been done in any part of the United Kingdom, and

the person is not, by virtue of the conviction, a person falling within subsection (3).

A person convicted by a final judgment of a particularly serious crime (whether within or outside the United Kingdom) is to be presumed to constitute a danger to the community of the United Kingdom.

A person presumed to have been convicted of a particularly serious crime by virtue of subsection (5ZA) or (5ZB) is to be presumed to constitute a danger to the community of the United Kingdom.

A presumption under subsection (5ZA) or (5ZB) that a person has been convicted by a final judgment of a particularly serious crime or under subsection (5A) or (5B) that a person constitutes a danger to the community is rebuttable by that person.

A presumption under subsection (5ZA), (5ZB), (5A) or (5B) does not apply while an appeal against conviction or sentence—

is pending, or

could be brought (disregarding the possibility of appeal out of time with leave).

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 under subsection (5A) or (5B) has been rebutted as it applies for the purpose of considering whether Article 33(2) of the Refugee Convention applies.

Subsection (10) applies where—

a person appeals under section 82 ... of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground mentioned in section 84(1)(a) or (3)(a) of this Act (breach of the United Kingdom's obligations under the Refugee Convention), and

the Secretary of State issues a certificate that a presumption under subsection (5ZA), (5ZB), (5A) or (5B) applies to the person (subject to rebuttal).

The . . . Tribunal or Commission hearing the appeal—

must begin substantive deliberation on the appeal by considering the certificate, and

if in agreement that a presumption under subsection (5ZA), (5ZB), (5A) or (5B) applies (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).

Subsection (10) also applies in relation to the Upper Tribunal when it acts under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

For the purposes of this section—

"the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and

a reference to a person who is sentenced to a period of imprisonment of at least 12 months —

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),

does not include a reference to a person who is sentenced to a period of imprisonment of at least 12 months only by virtue of being sentenced to consecutive sentences which amount in aggregate to more than 12 months,

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

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 12 months).

Section 72: Serious criminal

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