Updates, commentary, training and advice on immigration and asylum law

Criminal offences and refugee status


Older content is locked

A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more


By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;

  • Single login for personal use
  • FREE downloads of Free Movement ebooks
  • Access to all Free Movement blog content
  • Access to all our online training materials
  • Access to our busy forums
  • Downloadable CPD certificates

There have been several important judgments from the Court of Appeal in the last few weeks. I’ve been very busy and having difficulty keeping up. However, I seem to have been struck down by piggy flu and find myself with time at home on my hands. So, expect a series of case law posts over the next few days.

The first case is EN (Serbia) v SSHD [2009] EWCA Civ 630. It concerns section 72 of the Nationality, Immigration and Asylum Act 2002 and the presumption that a person has been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community if one of several conditions apply. If the presumption applies, the person is excluded from refugee status.

One of the conditions is that a person has been convicted of an offence specified by the Secretary of State in regulations. The regulations in question are the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. The Court finds that the regulations are irrational and ultra vires because they include several offences which cannot rationally be described as ‘particularly serious’:

By way of example only, there are the following: theft, with no qualification as to the nature or value of the item or items stolen (so that theft of a bottle of milk is sufficient); an offence under section 9(1)(a) of the Theft Act 1968 (entering a building as a trespasser, intending to steal, inflict or attempt to inflict grievous bodily harm or rape), which would include someone who enters a building without permission intending to steal a bottle of milk; an offence under section 9(1)(b) of that Act (having entered a building as a trespasser, stealing or attempting to steal or inflicting or attempting to inflict grievous bodily harm), which again would include the offence committed by someone who enters a house without permission and then steals a milk bottle; an offence under section 1(1) of the Criminal Damage Act 1971 (destroying or damaging, without lawful excuse, another’s property intending to destroy or damage it or being reckless as to that), which would include the offence committed by someone who scratched the paintwork of another person’s car. The offence under section 44 of the Magistrates’ Court Act 1980, namely (aiding, abetting, counselling or procuring the commission of a summary offence, provided that the offence in question is described in Schedule 1 or 2 to the Order is specified. It is at best very difficult indeed to see how abetting the commission of a summary offence could be a particularly serious crime.

The 2004 order is therefore struck down as a whole as the Court cannot edit the order itself. Interestingly, the Court then goes on to make the following comment about whether the Tribunal can or should examine the lawfulness of delegated legislation:

Where a tribunal considers that there is a real prospect of a statutory instrument being ultra vires or unlawful, it should give serious consideration to adjourning its proceedings in order to give the party challenging its lawfulness an opportunity to issue judicial review proceedings before the Administrative Court, if necessary seeking an expedited hearing. It is far more appropriate that such issues be litigated before and decided by the Courts. However, this is likely to change if and when the AIT becomes part of the new tribunal structure, with an appellate structure and an Upper Tribunal of which the panel may include a High Court judge, with appeals to the Court of Appeal.

As well as striking down the 2004 Order, the Court also holds that there are two separate presumptions in section 72, both of which are rebuttable. The first is that one has been convicted of a particularly serious crime. The other is that one is a danger to the community. Both questions have to be examined separately. The Secretary of State was contending that there was just one presumption and that conviction of what was deemed to be a particularly serious crime automatically meant that one was presumed to be a danger to the community. Evidence as to risk of reoffending is therefore important in section 72 cases.

The Court’s decision is similar to that of the Tribunal in IH (s.72; ‘Particularly Serious Crime’) Eritrea [2009] UKAIT 00012. However, the Tribunal held that the 2004 order is lawful, so I’ve filed this post under ‘Tribunal overturned again‘.

On a different but important subject, in the course of judgment the Court finds that the Refugee Convention is not in fact incorporated into English law. It is only incorporated for some purposes and does not have the force of statute. I’ve no idea as to the implications of this, but it strikes me as worthy of mention.

Relevant articles chosen for you
Picture of Free Movement

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


4 Responses

  1. I was told (by a learned dude) that the finding in EN (Serbia) that the Refugee Convention hasn’t in fact been incorporated into UK law may well have the effect that the conclusion in ZN Afghanistan and DL (the horrid you lose refugee status when you become a British national judgment) must have been incorrect. In that judgment the Court found that the loss of refugee status occurred “by operation of law” – that law being Article 1 (C) (3) of the Refugee Convention.

    1. An interesting point. Perhaps that might crop up in the House of Lords at some stage. It certainly sounds like a Lords issue.

  2. FM

    Sorry to hear you have a swine of a flu.

    With time on your hands, any chance of doing a
    “SURINDER SINGH” route article?

    Could you include the implications of cases Akrich & Metock. How have EU regs incorporated the Singh case?
    What’s your veiw on entry clearance; is it compatible with Freemovement law? and any other unresolved issues to watch out for in current case law.

  3. I do find discussions on the finer points of law interesting, though I must admit in many cases beyond me.

    I wonder, freemovement, on the whole, though, whether you’d concur with Chris Hulme MP’s statement that the 3,600 new criminal offences in the 66 new criminal justice acts since 1997 constitute a bad bout of legislative diarrhoea?

    Bit tough on diarrhoea, I thought.

    Your post here suggests the quality of the legislation, whether primary or secondary, could be much improved with perhaps a lesser emphasis on quantity? Perhaps if our legislature were allowed by the whips to do a proper job of scrutiny it would make a novel change?