BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> TB, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 3381 (Admin) (30 November 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/3381.html Cite as: [2007] EWHC 3381 (Admin) |
[New search] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand London WC2 |
||
B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF TB | (CLAIMANT) | |
-v- | ||
SECRETARY OF STATE FOR THE HOME DEPARTMENT | (DEFENDANT) |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr Robert Jay QC (instructed by Treasury Solicitor) appeared on behalf of the Defendant
____________________
Crown Copyright ©
"You claim that your removal from the United Kingdom would breach the United Kingdom's obligations under the 1951 Refugee Convention. You have not stated any reasons for this claim and we do not accept that it avails you. The decision to make a deportation order against you is maintained."
"I am writing in connection with your above named client whose appeal to the Asylum and Immigration Tribunal was allowed on both asylum and human rights grounds on 2nd September 2005. The AIT found your client to be a refugee but as you will know Article 33(2) of the Refugee Convention allows a party to the Convention to expel a refugee who 'having been convicted by a final judgment of a particularly serious crime constitutes a danger to the community of that country.' You will be aware that on 1st August 2003 Mr [B] was convicted of being knowingly involved in the supply of heroin and crack cocaine for which he was eventually sentenced to 3 years and 9 months' imprisonment.
Section 72(2) of the Nationality Immigration and Asylum Act 2002 provides that such a person will be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the UK if he is convicted in the UK of an offence and sentenced to a period of imprisonment of at least two years. This clearly covers your client. The presumption that your client constitutes a danger to the community of the UK is rebuttable, see section 72(6).
I am therefore writing to invite you to supply any evidence you wish to put forward on behalf of your client rebutting the presumption set out in section 72(2). You have until 24th February 2005 to do this. Once we have received your reply, or on 24th February 2005 if you do not reply by then, we will decide whether Article 33(2) applies to Mr [B]. We will inform you of our decision in this matter. Whatever decision we reach under Article 33(2), we are not seeking to remove or deport your client from the UK in breach of his rights under the ECHR."
"(1) What is the relationship between Article 33(2) of the Refugee Convention 1951 and section 72 of the Nationality Immigration and Asylum Act 2002? To what extent is the use of presumptions in reliance on section 72 permissible at all?(2) Whether the decision of the Home Secretary to apply Article 33(2) and section 72 in January 2006 and the timing and manner of that decision were lawful.
(3) Whether the decision of the Home Secretary to fail to give the claimant five years leave to remain in line with his policy is lawful.
(4) Whether the later decision of the Home Secretary to grant the claimant only six months' discretionary leave to remain is lawful.
(5) Whether, if the presumptions in section 72 may be applied at all, the claimant has successfully rebutted those presumptions, and whether the decision of the Secretary of State that the presumptions have not been rebutted it is unlawful."
"1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
"(1)) This section applies for the purpose of the construction and application of Article 33(2)of the Refugee Convention (exclusion from protection).
(2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is
(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least two years.
(6) A presumption under subsection (2) ... that a person constitutes a danger to the community is rebuttable by that person.
(9) Subsection (10) applies where -
(a) a person appeals under section 82 ... of this Act ... wholly or partly on the ground that to remove him from or to require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention, and
(b) the Secretary of State issues a certificate that presumptions under subsection (2) ... apply to the person (subject to rebuttal).
(10) The... Tribunal or Commission hearing the appeal-
(a) must begin substantive deliberation on the appeal by considering the certificate, and
(b) if in agreement that presumptions under subsection (2) ... apply (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)."
Paragraph 334 of the Immigration Rules, at the material time, read as follows:
"An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and
(ii) he is a refugee, as defined by the Convention or Protocol; and
(iii) refusing his application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group."
"One-stop warning. You must now state any reasons why you think you should be allowed to stay in this country. This includes why you wish to stay here and any grounds why you should not be removed or required to leave."
"You do not have to repeat any reasons you/your client has already given us but if you do have any more reasons you must now disclose them. If you later apply to stay here for a reason which you could have given us now you may not be able to appeal if the application is refused. This requirement to state your reasons is made under section 120 of the Nationality Immigration and Asylum Act 2002."