Part 2: Asylum Chapter 8: Removal to safe third country Section 38: Article 33(2): Particularly Serious Crime
Overview: This section reduces the threshold at which a refugee is considered to have committed a particularly serious crime. It reduces the threshold from a period of imprisonment of at least two years to a period of imprisonment of at least 12 months.
	Background: Under the Refugee Convention, a refugee is defined as a person who, "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it" (Article 1A(2)).
	One of the core principles of the Refugee Convention is non-refoulement, which stipulates that a state must not expel or return 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 (see Article 33(1)).
	Article 33(2) of the Refugee Convention provides an exception to non-refoulement and allows signatories to the Convention to remove refugees where there are reasonable grounds for regarding them as a danger to the security of the country of refuge or where, having been convicted by a final judgement of a particularly serious crime, they constitute a danger to the community of that country.
	The Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") was enacted for the purpose of applying Article 33(2) of the Refugee Convention. Section 72(2) of the 2002 Act sets out the UK’s interpretation of "particularly serious crime". It currently provides that, where a person has been convicted in the UK of an offence and sentenced to a period of imprisonment of at least two years, they are considered to have committed a particularly serious crime. The individual can rebut the presumption that their "particularly serious crime" means that they pose a danger to the community of the UK, and if successful, the exception to non-refoulement will not apply. Likewise, this section also provides that where an individual has been convicted of an offence outside the UK which would have attracted a sentence of at least two years if convicted in the UK of a similar offence, they will be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community. This section also confers a power to the Secretary of State to make an order specifying which offences are considered to constitute a particularly serious crime, including where offences have been committed outside the UK.
	There is currently ambiguity in this section as to what elements of this test in section 72 an individual may seek to rebut. Specifically whether the rebuttable presumption applies to both the assertion that a crime attracting a particular sentence is therefore particularly serious, and the presumption that, as a result of being convicted for a particularly serious crime, the individual poses a danger to the community of the UK.
	This section is intended to lower the criminality threshold in section 72 meaning that crimes which attract a sentence of 12 months or more will be considered to be particularly serious. This is to ensure that all those who commit serious crimes can be considered for removal from the UK.
	Additionally, this section intends to clarify that the rebuttable presumption applies only to whether an individual constitutes a danger to the community of the UK. The fact that a crime is considered to be particularly serious based on the sentence passed by the Court, is not rebuttable.
	Subsection 1 provides for the amendment of Section 72 of the Nationality, Immigration and Asylum Act 2002, which outlines when a person is considered to have committed a particularly serious crime for the purpose of applying Article 33(2) of the Refugee Convention.
	Subsection 2 amends the wording in section 72(1) to clarify that a person would not be denied status under the Refugee Convention, but rather would lose their immunity from return to their country of nationality or removal from the UK.
	Subsections 3 to 5 amend sections 72(2), (3) and (4).
	The rebuttable presumption, as currently drafted, has been construed as having two limbs: 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. This section amends the wording in these subsections of section 72, so that the rebuttable presumption applies only to the fact that someone who has committed a particularly serious crime, constitutes a danger to the community
	These subsections also amend what is considered to be a particularly serious crime. Crimes attracting a 12-month sentence or more are to be considered particularly serious crimes, rather than crimes attracting a prison sentence of at least two years.
	Subsection 6 creates new subsection 5A, which serves to clarify that those convicted of a particularly serious crime are to be considered a danger to the community. This is not rebuttable.
	Subsections 7 to 11 make consequential amendments to reflect new subsection 5A.
	Subsection 12 amends wording to reflect the reduced threshold from two years to 12 months.
	Subsection 13 stipulates that the amendments made by this section apply only in relation to a person convicted on or after the date on which this section comes into force.