The Secretary of State for the Home Department v Obriel Tamuka Mugwagwa

Where the facts engaging section 72 are present, the First-tier Tribunal must apply its rebuttable presumptions when deciding whether removal would breach the 1951 Refugee Convention. This duty applies even if the Secretary of State did not rely on section 72 or issue a certificate under section 72(9).

The Secretary of State may raise the point on an appeal to the Upper Tribunal. The tribunal must nevertheless conduct proceedings fairly. An unrepresented appellant may require notice of the presumptions and a proper opportunity to rebut them.

A failure to apply section 72 is not material where the evidence rebuts the presumption that the person is a danger to the community.

The Secretary of State appealed against the First-tier Tribunal’s decision allowing a Zimbabwean national’s appeal against automatic deportation. The First-tier Tribunal found that he was a refugee at risk on return and that removal would also breach article 3 of the European Convention on Human Rights.

The Secretary of State pursued only the ground that the First-tier Tribunal had failed to apply section 72(2) of the Nationality, Immigration and Asylum Act 2002. The respondent accepted that section 72 should have been considered, but contended that the presumption of danger to the community was rebutted by the OASys report.

The central issue was whether the tribunal had to apply section 72 of its own motion and, if so, whether its omission altered the outcome.

1. Appeal dismissed. The First-tier Tribunal erred in law by failing to consider section 72(2) of the Nationality, Immigration and Asylum Act 2002, but the error was immaterial because the statutory presumption that the respondent was a danger to the community was rebutted.

2. Removal breaches the 1951 Refugee Convention only where the individual is a refugee and article 33(1) prohibits refoulement. Article 33(2) removes that protection where its conditions are met. Section 72(2) supplies rebuttable presumptions that a person convicted in the United Kingdom and sentenced to at least two years’ imprisonment committed a particularly serious crime and is a danger to the community.

3. The mandatory wording of section 72 requires the First-tier Tribunal to apply its presumptions whenever their factual basis is present. The obligation does not depend upon a certificate under section 72(9), reliance on the provision in the decision letter, or an express submission by the Secretary of State. The Secretary of State may likewise rely on the point in an Upper Tribunal appeal.

4. Fairness qualifies the manner in which the issue is raised. An unrepresented appellant may need warning and an opportunity to produce evidence rebutting the presumptions. A represented appellant will less commonly need such steps, but the essential requirement is a fair hearing.

5. Here, the OASys report assessed the risk of reconviction and re-imprisonment as low and recorded no history of violence or sexual offending. The Secretary of State accepted, and the Upper Tribunal held, that this rebutted the danger-to-the-community presumption. Exception 1 in section 33(2) of the UK Borders Act 2007 therefore applied. The unchallenged article 3 finding also stood.

• Upper Tribunal (Immigration and Asylum Chamber): the Secretary of State’s appeal was dismissed. The First-tier Tribunal’s failure to apply section 72 was an immaterial error because the presumption was rebutted.
• First-tier Tribunal (Immigration and Asylum Chamber): allowed the appeal against the deportation order on Refugee Convention and article 3 grounds; no citation is stated in the judgment.