YS (Egypt) v Secretary of State for the Home Department

Laws LJ refused permission to appeal the determination in this matter of the Asylum and Immigration Tribunal of 2 August 2007 in a single sentence, saying that the determination seemed to him to be sound in every respect. That may in the end turn out to be correct. But I have decided upon this oral renewal that permission should be granted for the following brief reasons.

The applicant, YS, an Egyptian national arrived in the United Kingdom on 29 April 1994 and claimed asylum. On 17 March 1994 he had been found guilty in his absence by the Supreme Military Court in Egypt of taking part in a plot to assassinate the then Egyptian Prime Minister, Dr Sidqui. He was sentenced to death. Subsequently in November 1995 and January 1999 he was sentenced in Egypt to 15 years’ hard labour and life imprisonment with hard labour respectively for what may broadly be termed terrorist activity. On 11 October 2000 in a short letter the Secretary of State refused his application for asylum under Article 1F of the Refugee Convention by which the provisions of the Convention do not apply to a person with respect to whom there are serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations.

The decision was made with reference to his convictions in Egypt. There was, however, a decision to grant him and his dependents a period of exceptional leave to remain under Article 3 of the European Convention on Human Rights. The refusal of asylum under article 1F was again made in the Secretary of State’s letter of 5 December 2006, against which the applicant appealed to the Asylum and Immigration Tribunal, whose adverse determination of 20 July 2007 is now the subject of this application for permission to appeal. In the briefest of summaries the Tribunal held that acts of personal terrorism as defined in section 1 of the Terrorism Act 2000 were acts contrary to the purposes and principles of the United Nations and that there were serious reasons for considering that the applicant had been guilty of such acts. For this purpose the Tribunal discounted the Egyptian convictions on which the Secretary of State had originally relied in the original refusal of asylum but the Tribunal accepted other matters relied on in the refusal of December 2006.

There are a variety of grounds of appeal, which include: challenges to the Tribunal’s determination as to what may constitute serious reasons and whether personal terrorism may properly be regarded as contrary to the purposes and principles of the United Nations. Taken alone, these are largely lawyers’ points of some subtlety but little superficial persuasion. There are, however, in my view at least two matters arising from the facts which to my mind make this proposed appeal fairly arguable.

First, the applicant was apparently indicted by a Grand Jury in the United States with membership of, and association with, a terrorist organisation proscribed under the Terrorism Act 2000. Lengthy terms of the United States indictment are given in paragraph 37 of the Tribunal’s determination. The Tribunal accepted that the Grand Jury would not have so indicted the applicant without being persuaded that there was sufficient evidence that there was probable cause to consider that the applicant had committed the offence charged.

The Tribunal regarded the indictment as serious grounds for believing that the applicant had been guilty of acts contrary to the purposes and principles of the United Nations. In so concluding, the Tribunal considered but discounted extradition proceedings in this jurisdiction on account of the matters charged in the United States indictment which were not proceeded with on the basis of lack of evidence to support the allegations. They rejected the submission that the United States indictment could not therefore be regarded as serious grounds for considering that the applicant might be guilty of the indicted offences. The Tribunal had not been given any details in relation to the extradition proceedings (see paragraph 41 of the determination) yet felt able to reject the submission upon speculation that a good deal of the evidence relied on by the Grand Jury will have been obtained by telephone intercepts, which would probably not have been admissible in an English court. In my view it is properly arguable that it was erroneous for the Tribunal to rely on the United States Grand Jury indictment in respect of which English extradition proceedings failed for lack of evidence to support the allegations as evidence of serious grounds for belief for the purpose of Article 1F.

Second, the Secretary of State relied on the fact that the applicant had been charged in this jurisdiction on 29 October 2001 with conspiracy to murder General Masoud, the leader of the Afghan Northern Alliance, who was killed by two suicide bombers posing as journalists on 9 September 2001. The applicant accepted that he provided the bombers with documents intended to be used as credentials. However, an application in respect of this and other charges to dismiss the allegations subsequently succeeded before the Common Sergeant at the Central Criminal Court under paragraph 2 of Schedule 3 of the Crime and Disorder Act 1998. The Common Sergeant did not accept that it could properly be inferred that the applicant knew that his letters were intended to secure an interview with the General at which he would be killed. The Tribunal noted that the standard of proof in criminal matters was not the same as that required for Article 1F of the Refugee Convention. They decided that the applicant being charged with offences for which he was subsequently discharged nevertheless comprised evidence which seriously pointed to some knowing involvement by him in the events which led to the death of General Masoud. So here again the respondent relies on charges which were not established against the applicant in this jurisdiction and the Tribunal’s decision was that the unproved allegations were sufficient to amount to serious grounds for considering under Article 1F of the Refugee Convention that the applicant had been involved in terrorist activity.

In my view it is properly arguable that the Tribunal erred in law in accepting as serious grounds allegations which had been proved to no standard at all and which, in the case of the matter before the Grand Jury, had been where the extradition proceedings had not proceeded for want of evidence to support the allegations. I would therefore grant permission. I note in doing so that there was also reliance on a statement of acting Detective Inspector Dingemans about which I say nothing for present purposes. The other matters feature sufficiently largely in the Tribunal’s determination to require investigation.

I would also stand back from disentangling grounds of appeal which by themselves may be less persuasive whilst encouraging the appellant, as he will shortly become, to concentrate on those matters which I have indicated do have a prospect of success.

For these reasons I would grant permission.

So would I.