EN (Serbia) v Secretary of State for the Home Department & Anor

For the purposes of Article 33(2) of the Refugee Convention, refoulement requires both a final conviction for a particularly serious crime and a real danger to the community. Neither requirement bears an additional gloss requiring very serious danger or a causal link between the conviction and the danger.

Section 72 of the Nationality, Immigration and Asylum Act 2002 must, conformably with the Qualification Directive, create rebuttable presumptions as to both seriousness and dangerousness. The 2004 Order was ultra vires because it purported to specify offences that could not rationally be treated as particularly serious without regard to their circumstances.

These conjoined appeals concerned the effect of section 72 of the Nationality, Immigration and Asylum Act 2002 and the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 upon refugees liable to deportation.

EN, a recognised refugee from Serbia, appealed the determination of Senior Immigration Judge Batiste dated 21 January 2008. The Tribunal had treated his conviction for burglary, an offence specified in the 2004 Order, as a particularly serious crime.

KC, a South African national, had been sentenced to three years’ imprisonment for wounding with intent. The Secretary of State appealed the Tribunal’s conclusion that his removal would breach Article 3 of the European Convention on Human Rights. KC cross-appealed its application of section 72 and its failure to recognise him as a refugee.

The central questions were the construction and validity of section 72 and the Order, and the lawful tests for refoulement, refugee status and sufficiency of protection.

1. EN’s appeal was allowed. The Court held that Article 33(2) of the Refugee Convention imposes two cumulative requirements: a final conviction for a particularly serious crime and danger to the community. The danger must be real, but the text does not require a further threshold of very serious danger or a causal connection between the conviction and the danger.

2. The expression particularly serious crime has an autonomous treaty meaning, but must be applied by reference to domestic criminal law at the time of refoulement. It is capable of including serious property, fraud and drug offences as well as offences against the person.

3. Section 72 is to be construed in conformity with Article 14(4) of the Qualification Directive. Accordingly, the presumptions concerning both the seriousness of the crime and danger to the community are rebuttable. A rebuttable presumption is procedurally compatible with the Convention and Directive. An irrebuttable presumption is incompatible unless the stipulated facts necessarily establish both Article 33(2) conditions.

4. The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 was ultra vires. The enabling power was confined to offences which the Secretary of State could reasonably regard as giving rise to the statutory presumptions. Unqualified theft and similarly minor conduct could not rationally meet that standard. The Court could not sever individual entries from the Order.

5. EN’s case was remitted. The Secretary of State must first decide whether to revoke his refugee status under Immigration Rule 339A(v). If status is not revoked, the Tribunal must determine, with an opportunity for rebuttal, whether his offences were particularly serious and whether he was a danger to the community.

6. The Secretary of State’s appeal and KC’s cross-appeal were allowed. The Tribunal had not adequately applied the test for sufficiency of state protection, which does not require a guarantee of safety. Its decision was set aside and remitted to a differently constituted Tribunal. KC could contest both Article 33(2) requirements and, if not excluded, would be entitled to refugee status.

• Court of Appeal (Civil Division): EN’s appeal was allowed and remitted. In KC, both the Secretary of State’s appeal and KC’s cross-appeal were allowed, and the Tribunal’s determination was set aside and remitted.

• Asylum and Immigration Tribunal: Senior Immigration Judge Batiste’s determination in EN, promulgated on 21 January 2008, upheld the section 72 certificate. The Tribunal determination in KC dated 5 February 2008 rejected the asylum appeal but allowed the appeal under Article 3 of the European Convention on Human Rights.