AQ (Somalia) v Secretary of State for the Home Department

The presumptions in section 72 of the Nationality, Immigration and Asylum Act 2002 apply generally once their statutory conditions are met. They do not depend on the Secretary of State first issuing a certificate under section 72(9).

A certificate has a limited procedural function. It requires the tribunal to consider the presumptions, and any rebuttal, at the start of its substantive deliberations. Regulation 5(5) of the Immigration (Notices) Regulations 2003 does not require notice of a section 72 certificate, because that regulation concerns restrictions imposed by Part 5 of the Act, whereas section 72 is in Part 4.

The Secretary of State appealed against an Upper Tribunal determination which had found no material error of law in an Asylum and Immigration Tribunal decision. The tribunal had allowed AQ, a Somali national facing deportation following serious criminal convictions, to appeal on asylum grounds.

The tribunal declined to consider exclusion from refugee protection under Article 33(2) of the Refugee Convention. It held that the section 72 presumptions could not arise without a pre-issued certificate. The Upper Tribunal upheld that approach. The central issue was whether a section 72 certificate was necessary before the statutory presumptions applied, and whether any certificate had to be notified under regulation 5(5).

Appeal allowed. Sullivan LJ, with whom Patten and Arden LJJ agreed, held that both the Asylum and Immigration Tribunal and the Upper Tribunal had materially erred in law.

1. Section 72(1), (2) and (6) of the Nationality, Immigration and Asylum Act 2002 lay down presumptions of general application. Once the statutory facts exist, the tribunal must apply them whether or not the Secretary of State has issued a section 72(9) certificate. The court accepted as correct the approach in TB (Jamaica) [2008] EWCA Civ 977.

2. Sections 72(9) and (10) create a self-contained procedural code for cases in which a certificate is issued. The certificate changes the order in which the appeal is determined: the tribunal must address the certificate and any rebuttal first. It does not create the presumptions or make their operation conditional on certification. The appellant may seek to rebut the presumptions of both dangerousness and serious criminality.

3. Regulation 5(5) of the Immigration (Notices) Regulations 2003 applies only where an exception or limitation is imposed by a provision of Part 5 of the 2002 Act. A section 72 certificate is imposed by Part 4. It therefore need not be notified in, or with, the regulation 4 notice of a deportation decision. Rule 364 could not alter the clear meaning of the primary legislation.

4. The matter was remitted to the First-tier Tribunal to decide whether AQ could rebut the section 72 presumption. The other factual findings were preserved. The finding of clan membership also entitled AQ to Article 3 protection.

• Court of Appeal (Civil Division): allowed the Secretary of State's appeal and remitted the section 72 rebuttal issue to the First-tier Tribunal: [2011] EWCA Civ 695.
• Upper Tribunal (Immigration and Asylum Chamber): by a determination dated 26 March 2010, rejected the Secretary of State's contention that the Asylum and Immigration Tribunal had made a material error of law.
• Asylum and Immigration Tribunal: by a determination dated 13 January 2010, allowed AQ's appeal against deportation on asylum grounds, but did not determine the parallel Article 3 appeal.