HAA v The Secretary of State for the Home Department

Where section 72 of the Nationality, Immigration and Asylum Act 2002 is invoked in relation to an overseas conviction, the statutory gateway must first be established. Section 72(3) requires proof of the foreign conviction and a sentence of at least two years, together with the required comparison to a similar United Kingdom offence. Section 72(4) requires the Secretary of State’s certificate that the foreign offence is similar to a specified offence.

A tribunal cannot uphold a purported section 72(4) certificate where the evidence does not identify the foreign offence or demonstrate the required certification. The statute does not require certification to appear in the refusal letter. Material non-disclosure which affects credibility findings makes the hearing unfair and ordinarily requires the decision to be set aside for a fresh hearing.

The appellant, a Somali national, appealed against the Secretary of State’s decision of 6 September 2011 to remove him to Somaliland, Somalia or Mexico following refusal of his asylum claim. The First-tier Tribunal dismissed the appeal, finding that section 72 of the Nationality, Immigration and Asylum Act 2002 excluded him from Refugee Convention protection and, alternatively, that he faced no relevant risk on return.

On appeal, the Secretary of State disclosed further United States information which supported the appellant’s account that he had previously been granted refugee status there. The Upper Tribunal considered whether the non-disclosure had rendered the earlier hearing unfair and whether the available material established the statutory conditions for applying section 72 to the appellant’s overseas convictions.

1. The appeal was allowed. The First-tier Tribunal’s determination involved an error of law. It was set aside and the appeal was remitted for a fresh hearing.

2. The failure to disclose information showing that the appellant had been granted refugee status in the United States rendered the earlier proceedings unfair. The information supported an aspect of his credibility which the Immigration Judge had rejected because supporting documents had not been produced. A procedurally unfair judicial decision should not ordinarily stand merely because its outcome might have been the same.

3. Section 72 must be considered before the substantive refugee claim where the Secretary of State has certified exclusion. However, the statutory conditions must be proved. For an overseas conviction, section 72(3) requires a conviction, a sentence of at least two years, and an offence that could have attracted such a sentence in the United Kingdom. Section 72(4) requires a conviction for an overseas offence and a certificate that, in the Secretary of State’s opinion, it is similar to a specified offence.

4. Certification under section 72(4) concerns the similarity of the constituent elements of the foreign and specified offences, rather than the particular circumstances of offending. The refusal letter did not clearly identify the United States offence, address the specified-offence list, or contain the requisite certification. The First-tier Tribunal therefore erred in treating an assumed English equivalent as if it established the foreign conviction and supplied a certificate.

5. The Tribunal also noted that, following EN (Serbia) v SSHD and SSHD v KC (South Africa) [2009] EWCA Civ 630, the statutory presumptions do not remove the need to investigate the individual’s actual criminality and the risk posed to the United Kingdom. Certification need not be contained in the refusal letter or made at a specified time. The Secretary of State was directed to clarify and evidence any reliance on section 72 and to disclose all information obtained about the overseas convictions.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the case for a fresh hearing.

• First-tier Tribunal: Immigration Judge Hart dismissed the appeal against the removal decision of 6 September 2011.