Nationality, Immigration and Asylum Act 2002

72 Serious criminal U.K.

(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from [F1 prohibition of expulsion or return]).

(2) A person [F2 is] convicted by a final judgment of a particularly serious crime F3 ... if he is—

(a) convicted in the United Kingdom of an offence, and

(b) sentenced to a period of imprisonment of at least [F4 12 months].

(3) A person [F5 is] convicted by a final judgment of a particularly serious crime F6 ... if—

(a) he is convicted outside the United Kingdom of an offence,

(b) he is sentenced to a period of imprisonment of at least [F7 12 months], and

(c) he could have been sentenced to a period of imprisonment of at least [F8 12 months] had his conviction been a conviction in the United Kingdom of a similar offence.

(4) A person [F9 is] convicted by a final judgment of a particularly serious crime F10 ... if—

(a) he is convicted of an offence specified by order of the Secretary of State, or

(b) he is convicted outside the United Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a).

(5) An order under subsection (4)—

(a) must be made by statutory instrument, and

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

[F11 (5A) A person convicted by a final judgment of a particularly serious crime (whether within or outside the United Kingdom) is to be presumed to constitute a danger to the community of the United Kingdom.]

(6) A presumption under subsection [F12 (5A)] that a person constitutes a danger to the community is rebuttable by that person.

(7) A presumption under subsection [F13 (5A)] does not apply while an appeal against conviction or sentence—

(a) is pending, or

(b) could be brought (disregarding the possibility of appeal out of time with leave).

(8) Section 34(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (no need to consider gravity of fear or threat of persecution) applies for the purpose of considering whether a presumption [F14 under subsection (5A)] has been rebutted as it applies for the purpose of considering whether Article 33(2) of the Refugee Convention applies.

(9) Subsection (10) applies where—

(a) a person appeals under section 82 F15 ... of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground [F16 mentioned in section 84(1)(a) or (3)(a) of this Act (breach of the United Kingdom's obligations under the Refugee Convention), and]

(b) the Secretary of State issues a certificate that [F17 a presumption under subsection (5A) applies] to the person (subject to rebuttal).

(10) The F18 . . . Tribunal or Commission hearing the appeal—

(a) must begin substantive deliberation on the appeal by considering the certificate, and

(b) if in agreement that [F19 a presumption under subsection (5A) applies] (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).

[F20 (10A) Subsection (10) also applies in relation to the Upper Tribunal when it acts under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.]

(11) For the purposes of this section—

(a) “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and

(b) a reference to a person who is sentenced to a period of imprisonment of at least [F21 12 months] —

(i) does not include a reference to a person who receives a suspended sentence [F22 (unless a court subsequently orders that the sentence or any part of it is to take effect)],

[F23 (ia) does not include a reference to a person who is sentenced to a period of imprisonment of at least [F24 12 months] only by virtue of being sentenced to consecutive sentences which amount in aggregate to more than [F24 12 months],]

(ii) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), and

(iii) includes a reference to a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for [F25 12 months]).

Textual Amendments

F1 Words in s. 72(1) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(2), 87(5)(d) (with s. 38(13))

F2 Word in s. 72(2) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(3)(a)(i), 87(5)(d) (with s. 38(13))

F3 Words in s. 72(2) omitted (28.6.2022) by virtue of Nationality and Borders Act 2022 (c. 36), ss. 38(3)(a)(ii), 87(5)(d) (with s. 38(13))

F4 Words in s. 72(2)(b) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(3)(b), 87(5)(d) (with s. 38(13))

F5 Word in s. 72(3) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(4)(a)(i), 87(5)(d) (with s. 38(13))

F6 Words in s. 72(3) omitted (28.6.2022) by virtue of Nationality and Borders Act 2022 (c. 36), ss. 38(4)(a)(ii), 87(5)(d) (with s. 38(13))

F7 Words in s. 72(3)(b) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(4)(b), 87(5)(d) (with s. 38(13))

F8 Words in s. 72(3)(c) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(4)(c), 87(5)(d) (with s. 38(13))

F9 Word in s. 72(4) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(5)(a), 87(5)(d) (with s. 38(13))

F10 Words in s. 72(4) omitted (28.6.2022) by virtue of Nationality and Borders Act 2022 (c. 36), ss. 38(5)(b), 87(5)(d) (with s. 38(13))

F11 S. 72(5A) inserted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(6), 87(5)(d) (with s. 38(13))

F12 Word in s. 72(6) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(7), 87(5)(d) (with s. 38(13))

F13 Word in s. 72(7) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(8), 87(5)(d) (with s. 38(13))

F14 Words in s. 72(8) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(9), 87(5)(d) (with s. 38(13))

F15 Words in s. 72(9)(a) omitted (20.10.2014) by virtue of Immigration Act 2014 (c. 22), s. 75(3), Sch. 9 para. 31(a); S.I. 2014/2771, art. 2(e) (with arts. 9-11) (as amended (2.3.2015 and 6.4.2015) by S.I. 2015/371, arts. 1(2)(3), 7, 8; and with transitional provisions and savings in S.I. 2014/2928, art. 2 (which S.I. is revoked (6.4.2015) by S.I. 2015/371, arts. 1(3), 9))

F16 Words in s. 72(9)(a) substituted (20.10.2014) by Immigration Act 2014 (c. 22), s. 75(3), Sch. 9 para. 31(b); S.I. 2014/2771, art. 2(e) (with arts. 9-11) (as amended (2.3.2015 and 6.4.2015) by S.I. 2015/371, arts. 1(2)(3), 7, 8; and with transitional provisions and savings in S.I. 2014/2928, art. 2 (which S.I. is revoked (6.4.2015) by S.I. 2015/371, arts. 1(3), 9))

F17 Words in s. 72(9)(b) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(10), 87(5)(d) (with s. 38(13))

F18 Word in s. 72(10) omitted (4.4.2005) by virtue of Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19), ss. 26, 48(1)-(3), Sch. 2 para. 17; S.I. 2005/565, art. 2 (with savings in arts. 3-9)

F19 Words in s. 72(10)(b) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(11), 87(5)(d) (with s. 38(13))

F20 S. 72(10A) inserted (15.2.2010) by The Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 (S.I. 2010/21), art. 1, Sch. 1 para. 21 (with Sch. 4)

F21 Words in s. 72(11)(b) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(12)(a), 87(5)(d) (with s. 38(13))

F22 Words in s. 72(11)(b)(i) substituted (1.8.2008) by UK Borders Act 2007 (c. 30), ss. 39(2), 59(2); S.I. 2008/1818, art. 2(b)

F23 S. 72(11)(b)(ia) inserted (1.8.2008) by UK Borders Act 2007 (c. 30), ss. 39(3), 59(2); S.I. 2008/1818, art. 2(b)

F24 Words in s. 72(11)(b)(ia) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(12)(b), 87(5)(d) (with s. 38(13))

F25 Words in s. 72(11)(b)(iii) substituted (28.6.2022) by Nationality and Borders Act 2022 (c. 36), ss. 38(12)(c), 87(5)(d) (with s. 38(13))

Modifications etc. (not altering text)

C1 S. 72 applied (with modifications) (31.1.2020) by The Immigration (Citizens Rights Appeals) (EU Exit) Regulations 2020 (S.I. 2020/61), reg. 1(2), Sch. 2 paras. 1-3

C2 S. 72(10)(a) restricted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 55(3)(5), 62; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Commencement Information

I1 S. 72 wholly in force at 1.4.2003; s. 72 not in force at Royal Assent see s. 162(2); s. 72(1)-(8)(11) in force at 10.2.2003 by S.I. 2003/1, art. 2, Sch.; s. 72(9)(10) in force at 1.4.2003 by S.I. 2003/754, art. 2, Sch. 1