AH (Algeria) v Secretary of State for the Home Department

In a letter dated 10^th September 2009 the Respondent explained the basis for the decision that the Appellant was excluded from refugee status under Article 1F. In summary, the letter made it clear that the exclusion of the Appellant under Articles 1F(b) and (c) was based on the findings of the French Court of Appeal.

Lord Brown summarised the position in paragraph 38, as follows:

“Put simply, I would hold an accused disqualified under Article 1F if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose.”

Lord Hope endorsed this approach: see paragraph 49 of his judgment. In paragraph 44 Lord Hope emphasised the need “for a close examination of the facts and the need for a carefully reasoned decision as to precisely why the person concerned is excluded from protection under the Convention.”

JS (Sri Lanka) was concerned with paragraph (a) of Article 1F, but this Court has decided that “the same criteria inevitably apply when it is Article 1F(c) which is under consideration”: see paragraph 47 of the judgment of Pill LJ (with whom Lord Justice Rimer and Lady Justice Black agreed) in Secretary of State for the Home Department v DD (Afghanistan) [2010] EWCA Civ 1407. In paragraphs 48 and 49 Pill LJ cited paragraphs 30, 31, and 38 of Lord Brown’s judgment (see paragraphs 10 and 11 above).

In Bundesrepublik Deutschland v B and D (Cases C-57/09 and C-101/09) [2011] Imm AR 190, the Court of Justice of the European Union (Grand Chamber) decided that the mere fact of membership of a terrorist organisation could not automatically exclude a person from refugee status under Article 12(2) of the Qualification Directive (paragraph 3 above). In paragraphs 94-98 of its judgment the Grand Chamber said:

“[94] It follows from all those considerations that the exclusion from refugee status of a person who has been a member of an organisation which uses terrorist methods is conditional on an individual assessment of the specific facts, making it possible to determine whether there are serious reasons for considering that, in the context of his activities within that organisation, that person has committed a serious non-political crime or has been guilty of acts contrary to the purposes and principles of the United Nations, or that he has instigated such a crime or such acts, or participated in them in some other way, within the meaning of Article 12(3) of Directive 2004/83.

[95] Before a finding can be made that the grounds for exclusion laid down in Article 12(2)(b) and (c) of Directive 2004/83 apply, it must be possible to attribute to the person concerned – regard being had to the standard of proof required under Article 12(2) – a share of the responsibility for the acts committed by the organisation in question while that person was a member.

[96] That individual responsibility must be assessed in the light of both objective and subjective criteria.

[97] To that end, the competent authority must, inter alia, assess the true role played by the person concerned in the perpetration of the acts in question; his position within the organisation; the extent of the knowledge he had, or was deemed to have, of its activities; any pressure to which he was exposed; or other factors likely to have influenced his conduct.

[98] Any authority which finds, in the course of that assessment, that the person concerned has – like D – occupied a prominent position within an organisation which uses terrorist methods is entitled to presume that that person has individual responsibility for acts committed by that organisation during the relevant period, but it nevertheless remains necessary to examine all the relevant circumstances.”

On behalf of the Respondent, Mr. Payne submitted that both the Supreme Court in JS and the Grand Chamber in B and D were concerned with cases where there had been no conviction. In the latter case the issue was whether membership of an organisation that was on a list of “persons, groups and entities involved in terrorist acts” compiled pursuant to Common Position 2001/931/CFSP on the application of specific measures to combat terrorism was, of itself, a sufficient ground for exclusion under Article 12(2) of the Qualification Directive. In the present case, the Tribunal’s task was far easier because the Appellant had been convicted and the Tribunal had concluded that there were no grounds for re-opening the French Appeal Court’s findings.

I readily accept that the fact of a conviction by a court may well make the task of assessing whether a person falls within Article 1F much easier, but it will do so only if the nature of the offence of which the person has been convicted and/or the findings made by the court are sufficient to enable the Tribunal to reach a conclusion as to the individual’s “own personal involvement and role in the organisation”, or the “true role” played by the individual in the acts perpetrated by the organisation: see JS and B and D (above).

In JS the claimant was a member of the LTTE. There is an obvious factual distinction between membership of a large organisation which has engaged at various times in both lawful (political) and unlawful (terrorist) activity, and the present case in which the Appellant was found to be a member of an organisation or grouping whose only purpose was terrorism, but JS makes it clear that “the nature of the organisation itself is only one of the relevant factors in play”: see per Lord Brown at paragraph 31 (paragraph 10 above); also B and D at paragraph 94 (paragraph 15 above).

If the underlying objective for the purpose of Article 1F is to establish the individual’s personal role and responsibility, the nature of the particular offence with which this Appellant was charged presents a problem. In “The Investigation and Prosecution of Terrorists Suspects in France”, an independent report commissioned by the Home Office, dated November 2006, Professor Jacqueline Hodgson says that the expanded definition of terrorism in 1996:

“widened the scope of the magistrates’ powers significantly, allowing them to open investigations into those involved with terrorist organisations (within and outside France) before any terrorist act had taken place ….This offence pushes back the boundary of criminality, enabling the judge to act very much earlier when no act has been committed, but when the ‘suspect’ is perhaps buying materials, is in the very early stages of preparation towards a terrorist act, or is simply associating with a group established to prepare acts of terrorism – even when the judge is unable to identify a specific date or terrorist target to which these activities are linked.” (emphasis added)

There can be no dispute that, as an instrument of state policy, “nipping terrorism in the bud” is eminently sensible. However, if the criminal law framed in aid of the policy foils the aspiring terrorist’s intentions well before he has undertaken any, or any significant, preparatory acts, then the consequence for the purpose of Article 1F may well be that the offence of which he is convicted, at the outer boundary of criminality, will not be an offence which is so serious as to exclude him from protection under the Convention.

Mr. Payne submitted that although the Tribunal had referred to Gurung, which was the relevant authority at the time of its determination, it had not applied the presumption: that voluntary membership of an organisation whose aims methods and activities were exclusively terrorist in nature could be presumed to amount to personal and knowing participation in the crimes in question. He submitted that the Tribunal had carefully analysed the French Appeal Court’s findings in order to determine the Appellant’s “personal involvement and role” within the conspiracy or grouping.

I do not accept that submission for two reasons. Absent the Gurung presumption, the facts found by the French Appeal Court (while adequate for the purpose of convicting the Appellant of this particular offence under French criminal law) were so sparse that they did not enable the Tribunal to determine the Appellants “personal involvement and role”, or “true role” in the grouping. The bare fact that the Appellant was knowingly part of a criminal conspiracy or grouping formed with a view to committing terrorist acts could not, unless the presumption was applied, have justified the Tribunal’s conclusion in paragraph 35 of its determination that the Appellant fell within the definition in section 54(1) of the Immigration, Asylum and Nationality Act 2006 of someone involved in the acts of instigating or encouraging or inducing others to commit, prepare or instigate terrorism. There was simply no evidence of instigation, encouragement or inducement.

Secondly, the Tribunal’s conclusion in paragraph 36 of its determination (paragraph 8 above) echoes the presumption:

“[The Appellant’s] involvement and connection with terrorist activities was voluntary and the [French] court accepted that he had knowledge of the aims of the group. His participation in and provision of assistance relating to planned acts of terrorism clearly bring him within the exclusion provisions.”

The Tribunal is not to be criticised for applying the presumption in Gurung. It was the relevant authority at the date of its determination. However, in the light of JS, as applied to Article 1F(c) cases by DD, it is now clear that this was a misdirection, and the Tribunal erred in law in this respect. This error in respect of paragraph (c) would not be material if the Tribunal did not err in concluding that the Appellant was excluded under paragraph (b) of Article 1F.

Article 1F(b)

Before the Tribunal it was submitted that the Appellant’s conduct was not so serious as to deprive him of protection under the Refugee Convention. Although the main focus of this submission was upon the Appellant’s contention that he was merely “someone who had had a nebulous connection with others who may have been involved in terrorist activities”, which was rejected by the Tribunal, it was still necessary for the Tribunal to consider whether the offence of which the Appellant had been convicted was a “serious” non-political crime for the purpose of Article 1F(b).

The UNHCR Handbook on Procedures and Criteria for Determining RefugeeStatus, reedited in January 1992, having referred to the fact that the term “crime” has different connotations in different legal systems, states that in the context of Article 1F

“a “serious crime” must be a capital crime or a very grave punishable act.”

Macdonald’s Immigration Law and Practice 8^th Edn. refers in paragraph 12.97 to the guidance in the UNHCR Handbook and observes:

“However, the Secretary of State applies a far lower threshold for the purpose of identifying what is a ‘serious non-political crime’, drawing by analogy from the definition of ‘particularly serious crime’ in the Nationality, Immigration and Asylum Act 2002, s. 72.”

The Respondent’s letter dated 10^th September 2009 referred to section 72 of the 2002 Act, and Mr. Payne accepted that the Respondent was applying a lower threshold for the purpose of determining whether a crime was a serious non-political crime than that which had been suggested by the UNHCR. He submitted that the guidance in the UNHCR’s Handbook was not binding on domestic courts; the Convention left the issue of seriousness to be determined by the domestic courts of the signatory states; and the Respondent was entitled to rely upon the rebuttable presumption in section 72 of the 2002 Act that a person convicted of an offence and sentenced to at least two years imprisonment would have been convicted of a ‘very serious crime’.

I do not accept the submission that each signatory state is free to adopt its own definition of what constitutes a serious crime for the purpose of Article 1F(b). In JS Lord Brown recorded in paragraph 18 of his judgment that it was common ground between the parties “that there can be only one true interpretation of Article 1F(a), an autonomous meaning to be found in international rather than domestic law.” This approach was endorsed by Pill LJ in DD in the context of Article 1F(c): see paragraph 47 of his judgment.

It seems to me that the same approach must apply to paragraph (b) in Article 1F. While the Convention leaves it to the domestic courts of the signatory states to decide whether, in any particular case, a non-political crime is “serious”, that determination must be founded upon a common starting point as to the level of seriousness that must be demonstrated if a person is to be excluded from the protection of the Convention by reason of his past criminal conduct.

Although the parties’ researches did not identify any binding domestic authority on the point, the proposition that signatory states do not have an unfettered discretion when deciding whether an offence is “serious” for the purpose of Article 1F(b) is supported by academic authority. In The Refugeein International Law 3^rd Edn. Professor Goodwin-Gill says:

“Each State must determine what constitutes a serious crime, according to its own standards up to a point, but on the basis of the ordinary meaning of the words considered in context and with the objectives of the 1951 Convention. Given that the words are not self-applying, each party has some discretion in determining whether the criminal character of the applicant for refugee status in fact outweighs his or her character as bona fide refugee, and so constitutes a threat to its internal order. Just as the 1951 Conference rejected ‘extradition crimes’ as an a priori excludable category, so ad hoc approaches founded on length of sentence are of little help, unless related to the nature and circumstances of the offence. Commentators and jurisprudence seem to agree, however, that serious crimes, above all, are those against physical integrity, life and liberty.” (page 176)

There would appear to be a degree of uniformity among the commentators that the Handbook sets the threshold at or about the correct degree of seriousness. Thus, Professor Grahl-Madsen concluded in “The Status of Refugees in International Law” that:

“As we see it, Article 1F(b) should only be applied in cases where the person in question is considered guilty of a major offence (a ‘crime’ in the French sense of the word), and only if the crime is such that it may warrant a really substantial punishment, that is to say: the death penalty or deprivation of liberty for several years, and this not only according to the laws of the country of origin, but also according to the laws of the country of refuge.” (page 297)

In “The Law of Refugee Status” Professor Hathaway agrees with Grahl-Madsen:

“Atle Grahl-Madsen interprets this clause to mean that only crimes punishable by several years’ imprisonment are of sufficient gravity to offset a fear of persecution. UNHCR defines seriousness by reference to crimes which involve significant violence against persons, such as homicide, rape, child molesting, wounding, arson, drugs traffic, and armed robbery. These are crimes which ordinarily warrant severe punishment, thus making clear the Convention’s commitment to the withholding of protection only from those who have committed truly abhorrent wrongs.” (page 224)

Professor Gilbert in “Current issues in the application of exclusion clauses”, a background paper commissioned by the UNHCR, points out that the statement in the Handbook is not supported by authority in international or domestic law, but suggests that while capital crimes may not in and of themselves be a sufficient test, “offences of sufficient seriousness to attract very long periods of custodial punishment might suffice to guide states as to what might fulfil Article 1F(b).” (page 449)

In a statement provided to the Grand Chamber in the B and D case, the UNHCR set out its view as to the seriousness of the acts covered by Article 1F, as follows:

“All the types of criminal acts leading to exclusion under Article 1F of the 1951 Convention involve a high degree of seriousness. This is obvious regarding Article 1F(a) and (c), which address acts of the most egregious nature such as “war crimes” or “crimes against humanity” or “acts contrary to the purposes and principles of the United Nations”. In light of its context and the object and purpose of the exclusion grounds highlighted above, a “serious non political crime” covered by Article 1F(b) must also involve a high threshold of gravity. Consequently, the nature of an allegedly excludable act, the context in which it occurred and all relevant circumstances of the case should be taken into account to assess whether the act is serious enough to warrant exclusion within the meaning of Article 1F(b) and 1F(c).” (paragraph 2.2.1)

The four questions answered by the Grand Chamber in B and D did not directly address this issue, but the Grand Chamber did say in paragraph 108 of its judgment:

“[108] Exclusion from refugee status on one of the grounds laid down in Article 12(2)(b) or (c) of Directive 2004/83, as stated in respect of the answer to the first question, is linked to the seriousness of the acts committed, which must be of such a degree that the person concerned cannot legitimately claim the protection attaching to refugee status under Article 2(d) of that directive.”

In paragraph [109] of its judgment the Grand Chamber accepted the submission of, inter alia, the UK Government, that Article 12(2) did not require a proportionality assessment, but it did so upon the basis that the competent authority would already have undertaken an assessment of the seriousness of the acts committed by the person concerned and of that person’s individual responsibility, so that “a fresh assessment of the level of seriousness of the acts committed was not required.” It is clear, therefore, that for the purpose of Article 12(2)(b) or (c) there must be an assessment of the level of seriousness of the acts committed, and the seriousness must be of such a degree that the offender cannot legitimately claim refugee status.

The Tribunal did not give separate consideration to paragraphs (b) and (c) in Article 1F. While terrorism is a grave international threat, merely labelling an offences a terrorist offence is not sufficient, of itself, to establish that the offence is a serious offence for the purpose of Article 1F(b). There is no discussion in the Tribunal’s determination of either the seriousness of this particular terrorist offence, or the appropriate threshold of seriousness for the purpose of Article 1F.

While I would accept that an offence which carries a maximum sentence of 10 years imprisonment is capable of being the kind of offence which warrants “severe” or “really substantial” punishment, or which attracts a “very long period” of custodial punishment, the fact that this Appellant was sentenced to 2 years imprisonment suggests that such facts as were found in respect of his particular offence placed it at the lower end of seriousness of this kind of offence.

I do not overlook the fact that the Appeal Court said that the original sentence of six months imprisonment was “not proportionate to the serious nature of the acts and the disruption to public order”, and was of the opinion that “by reason of the seriousness of the acts” only a non-suspended sentence was appropriate, but these observations are simply a reflection of the fact that “seriousness” is bound to be a relative concept when a domestic court is considering the appropriate sentence for a particular offence. Nor do I overlook the fact that “definitive deportation” was ordered as an additional penalty.

Taking all of these factors into account, I do not see how it could have been concluded on the basis of the very limited findings of the French Appeal Court that the particular offence of which this Appellant was convicted crossed the threshold of seriousness for the purpose of Article 1F(b), as that threshold has been variously described by the academic commentators referred to in paragraphs 32-36 (above). Further discussion of the threshold is unnecessary because there is another, fatal, flaw in the Tribunal’s reasoning.

Even if the Tribunal had considered the seriousness of the Appellant’s offence in the context of the appropriate threshold of seriousness for the purpose of paragraph (b) of Article 1F, it would have done so in the context of its conclusions in respect of paragraph (c) of Article 1F, and those conclusions – that the Appellant was someone who had been involved in acts of instigating or encouraging or inducing others to commit, prepare or instigate terrorism (paragraph 35), and was someone who had participated in and provided assistance relating to planned acts of terrorism in France (paragraph 36) – were reached, and could only have been reached, by the application of the, now discredited, Gurung presumption: see paragraphs 22-24 above. Thus, the Tribunal’s erroneous approach to paragraph (c) fatally infected its conclusion in respect of paragraph (b) of Article 1F.

Conclusion

I would allow the appeal, and invite the parties’ submissions as to the proper disposal of the appeal.

Lord Justice Rix:

I agree that, as explained by Lord Justice Sullivan, the critical flaw in the Upper Tribunal’s determination was its application of the now discredited Gurung presumption. Subject to that, I agree with Lord Justice Ward’s concerns over the question of what is “serious”. I therefore agree that the matter should be remitted to the Upper Tribunal and their expertise. Indeed, I have been left uncertain as to the gravamen of the offence of which AH was convicted by the French court of appeal. On the one hand, a sentence of two years, serious as it is (but I do not even know if it represents what in England would be a sentence of two years or four years (two years to serve)), is not at the higher end of possible sentences for terrorist activities. On the other hand, any involvement in terrorist related activity may be thought of as particularly worrisome. Yet again, I have found it hard to assess the findings of the French court. Mr Husain QC has submitted that they are to be understood as amounting to little, if anything, more than guilt by association. On another possible view, however, those findings are very serious indeed, viz that AH was not simply in close contact with but committed to assisting others, all part of a common organisation, in terrorist activities such as an attack on the Wazemmes Market: see the findings cited from the French court of appeal at para 10 of the Tribunal’s determination, set out above within para 4 of the judgment of Sullivan LJ.

Lord Justice Ward:

It may seem astonishing to many that the French courts were able to seek to exclude this appellant but that the United Kingdom may be obliged to tolerate his presence in our midst. How could that come about?

The appellant is now a stateless person, formerly of Algerian nationality. In 1993 he was convicted in Algeria of being involvement in a bombing at the Algiers Airport and in his absence he was sentenced to death. At the time of that trial he was in France. On 22nd October 1999 he was convicted in France of being a member of an association created with a view to the preparation of acts of terrorism, sentenced to two years imprisonment and made subject to an exclusion order. He arrived in the United Kingdom on 27th July 2001 and claimed asylum. That claim was rejected, not because he did not have a well-founded fear of persecution if returned to Algeria where he faced execution, but because he was excluded from the protection of the Refugee Convention by Article 1F(b) and/or (c) which provide:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)

…

(b)

he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)

he has been guilty of acts contrary to the purposes and principles of the United Nations.”

Through no fault of their own, the Senior Immigration Judges Latter and Lane erred because the decision upon which they relied and upon which they based their approach, namely, Gurung v SSHD [2003] Imm. A.R. 115, was subsequently disapproved of by the Supreme Court in R (JS) (Sri Lanka) v Home Secretary [2010] UKSC 15, [2011] 1 A.C. 184. I am therefore constrained to allow the appeal and would remit the matter back to the Tribunal for further hearing.

If we are to send it back for re-hearing, we should leave the Tribunal absolutely free to decide where the line is to be drawn and I would not wish to express any view as to whether or not the appellant falls within or outwith either limb of Article 1F. The question is whether we can give any helpful guidance as to the meaning of the words “serious crime” in Article 1F(b).

Being an international convention, it must be given an autonomous meaning. They are ordinary words and should be given their ordinary universal meaning. “Crime” surely means any illegal act punishable at law.

Furthermore, in my judgment, “serious” needs no further qualification. Where further qualification is required, the Convention gives it: compare Article 1F(b) with Article 33.2 which refers to “a refugee … who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”, with the emphasis added by me. The same distinction is drawn in the EU Qualification Directive 2004/83/EC between Article 17 (“committed a serious crime”) and Article 21 (“convicted … of a particularly serious crime”).

Although an ordinary word, “serious” has shades of meaning and the appropriate colour is given by the context in which the word is used. What may be serious for one purpose may not be serious for another. The context here is that the crime which the refugee has committed must be serious enough to justify the withholding of the protection he would otherwise enjoy as a person having a well-founded fear of persecution and owing to such fear is unwilling to avail himself of the protection of the country of his nationality or to return to the country of his former habitual residence. This seems to be the view of the Grand Chamber in Bundesrepublik Deutschland v B (C-57/09) and D (C-101/09) [2011] Imm. A.R. 190 expressed with regard to Articles 12(2)(b) and (c) of the European Directive but, it seems to me, equally apposite for the Refugee Convention:

“108.

Exclusion from refugee status on one of the grounds laid down in Article 12(2)(b) or (c) of Directive 2004/83 … is linked to the seriousness of the acts committed, which must be of such a degree that the person concerned cannot legitimately claim the protection attaching to refugee status under Article 2(d) of that Directive.”

Beyond that I would not go. Like Lord Brown of Eaton-under-Heywood at paragraph 39 of JS (Sri Lanka),

“It would not, I think, be helpful to expatiate upon Article 1F’s reference to there being “serious reasons for considering” the asylum-seeker to have committed a war crime.”

I certainly do not find it helpful to determine the level of seriousness by the precise sentence of imprisonment that may have been imposed upon the accused. Sentence is, of course, a material factor but it is not a benchmark. In deciding whether the crime is serious enough to justify his loss of protection, the Tribunal must take all facts and matters into account, with regard to the nature of the crime, the part played by the accused in its commission, any mitigating or aggravating features and the eventual penalty imposed. I would leave that decision to the good sense of the Tribunal.