AH v The Secretary of State for the Home Department [2013] UKUT 382 (IAC)

[2013] UKUT 00382 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 30 October 2012
THE IMMIGRATION ACTS
Before
THE PRESIDENT, THE HON MR JUSTICE BLAKEUPPER TRIBUNAL JUDGE GLEESONUPPER TRIBUNAL JUDGE KING
Between
AHAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentNaina Patel, instructed by Luqmani Thompson & Partners for AppellantPaul Greatorex, instructed by Treasury Solicitors for Respondent
[1]In considering exclusion under Article 1F(b), the test is whether there are ‘serious reasons to consider that the appellant is guilty of conduct that amounts to a serious non-political offence’. ‘Serious’ in this context has an autonomous international meaning and is not to be defined purely by national law or the length of the sentence. Guidance on the meaning of ‘serious’ in relation to Article 1F(c) may be found in the decision of the Supreme Court in Al-Sirri and another v Secretary of State for the Home Department [2012] UKSC 54 at paragraph [75]. Arts 1F(a) and (c) serve to illustrate the level of seriousness required to engage Article 1F(b); the genus of seriousness is at a common level throughout.[2]A claimant’s personal participation in acts leading to exclusion under Article 1F(b) must be established to the ordinary civil standard of proof, that the material facts are more probable than not. The appellant’s guilt need not be proved to the criminal standard. Personal participation in a conspiracy to promote terrorist violence can be a ‘serious crime’ for the purpose of Article 1F(b). Where the personal acts of participation by a claimant take the form of assistance to others who are planning violent crimes, the nature of the acts thereby supported can be taken into account. The relevant crime may be an agreement to commit the criminal acts (in English law a conspiracy), rather than a choate crime.[3]In the absence of some strikingly unfair procedural defect, United Kingdom courts and tribunals should accord a significant degree of respect to the decision of senior sister Courts in European Union legal systems; there is a particular degree of mutual confidence and trust between legal systems that form part of the same legal order within the European Union. However, the ultimate question of whether the conduct of which the United Kingdom court or Tribunal is satisfied is sufficiently serious to justify exclusion is a matter for the national court or tribunal.[4]The examination of seriousness should be directed at the criminal acts when they were committed, although events in the supervening passage of time may be relevant to whether exclusion is justified: a formal pardon, or subsequent acquittal, or other event illuminating the nature of the activity may be relevant to this assessment. Despite suggestions to the contrary by respected commentators, it does not appear to be the case that service of the sentence, or indeed a final acquittal, brings the application of the exclusion clause to an end. DETERMINATION AND REASONS

Introduction

[1]The appellant is an Algerian citizen who cannot return to Algeria as his life and liberty are in jeopardy and it is recognised that he has a well founded fear of persecution there. He arrived in the United Kingdom in 2001 and claimed asylum and humanitarian status. Those claims were refused because the Secretary of State concluded that the exclusion clauses applied in both cases.[2]The appellant has been granted periods of discretionary leave for six months at a time and there are no removal directions. He appealed against the refusal of status in 2006 and his appeal has not been finally resolved since. In the appeal he seeks to upgrade his status from discretionary leave to remain to that of refugee or humanitarian status under Council Directive 2004/83/EC (the Qualification Directive).[3]The basis for his exclusion was his conviction in France in 1999 of the offence of 'participation à une association de malfaiteurs en relation avec une entreprise terroriste' (‘participation in a criminal association with a terrorist enterprise’).[4]He had been acquitted of this offence by the Tribunal de Grand Instance on 30 June 1998 but given a six month sentence for a lesser offence of possession and use of false documents. The prosecutor appealed the acquittal and, on a re-hearing before the Cour d’Appel, he was convicted of the above offence and sentenced to two years’ imprisonment that had already been served on remand.[5]The particulars of charge, translated from the French, were :
‘In Paris, Nanterre, and the Lyon region, during 1994, 1995 and 1996, more precisely, until October 1995 at any rate on French territory for an unspecified length of time, having been involved in a gang formed or arrangement set up in view of the preparation- demonstrated by one or more material facts - of acts of terrorism in connection with an individual or collective undertaking which aimed to seriously disturb public order through intimidation or terror. In Paris, during 1995, at any rate on French territory for an unspecified length of time, committed a fraudulent manipulation of the truth likely to cause damage to documents issued by a public authority in view of granting a right, identity or capacity, granting a permission; in the case in point, a passport in the name of Gutierrez and an identity card in the name of Wane and having made use of those documents. With the additional circumstance that all of the above-mentioned offences were committed directly or indirectly in connection with an individual or collective undertaking which aimed to seriously disturb public order through intimidation or terror.’
[6]Article 1F of the Refugee Convention Geneva Convention relating to the Status of Refugees 1951 and New York Protocol 1967 . is in the following terms:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (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.”
[7]The Secretary of State relies principally on Article 1F(b) although she also prays in aid Article 1F(c).[8]Here, there are clearly serious reasons for considering that the appellant has committed a crime outside the country of his refuge prior to his admission to the United Kingdom; the French Cour d’Appel has convicted him of such a crime and its judgment is before us. It is not contended that this conviction was for a political crime as it was a crime committed against the law of a host state to which the appellant had fled in 1992 from Algeria. France is, of course, both a Member state of the European Union and a party to the European Convention on Human Rights.[9]The sole issue under Article 1F(b) is whether the crime of which he is convicted is a serious one. This apparently simple issue has proved difficult to resolve. It is common ground that the offence of possession/use of false identity documents alone is not sufficiently serious to lead to exclusion from the Refugee Convention, whilst personal participation in a terrorist conspiracy against the French state probably would be.[10]In 2006 the Asylum and Immigration Tribunal dismissed his appeal but reconsideration was ordered. On 19 January 2010, the AIT again dismissed the appeal, but in doing so used the concept of “membership of a group”, following Gurung (Exclusion-Risk-Maoists) Nepal[2002] UKIAT 04870 (starred) [2003] Imm AR 115, to attribute to the appellant the terrorist activities of others and found him to be excluded under both Articles 1F(c) and 1F(b).[11]The decision of the Supreme Court in R (JS (Sri Lanka)) v Secretary of State for the Home Department[2011] 1 AC 184 disapproved this approach to the application of the exclusion clause and the authority of Gurung, on which it had been based. The Court of Justice of the European Union had similarly concluded that individual participation in crime was needed in Bundesrepublik Deutschland v B and D (Cases C-57/09 and C-101/09) [2011] Imm AR 190, when it considered Article 12 of the Qualification Directive, where the same words are used as in Article 1F.

The decision of the Court of Appeal:

[12]The AIT’s second decision in the present case was set aside by the Court of Appeal on 3 April 2012 (AH (Algeria) v Secretary of State[2012] EWCA Civ 395) and the appeal remitted to the Upper Tribunal for remaking for a third time.[13]Sullivan LJ gave the leading judgment. He observed: “18. 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)[19]While it is true that the French Appeal Court did not simply find that the Appellant was in close contact with men involved in terrorist acts, it went further and concluded that he belonged to a "common organisation", it was not necessary for the French Appeal Court to form any view as to the Appellant's role in the "conspiracy or grouping formed with a view to committing terrorist acts", nor was it necessary to establish that the group had carried out any particular preparatory act: it was sufficient that the conspiracy or grouping had been "formed with a view to the preparation, taking the form of one or more material acts, of acts of terrorism …." (emphasis added).[20]It is not clear what "material acts" were relied upon by the Appeal Court in allowing the prosecutor's appeal. The only specific conduct attributed to the Appellant was that he falsified a French passport by affixing his own photograph in place of the genuine holder "…so that he could travel in connection with unlawful activities of that organisation or grouping, and where necessary to escape any investigations which might be carried out by the French police as a result of that organisation or grouping in France." The conviction relates to the falsification of administrative documents. The Appellant had also falsified a French national identity card by affixing a photograph of his brother. While the Appeal Court found his explanation for this unconvincing, it said that "the actual circumstances in which his brother in Algeria was to use this falsified document are unknown."[21]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.”[14]He then concluded: “30. 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.[1]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.[2]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 3rd 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)[3]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)[4]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)[5]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)[6]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)[7]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."
[8]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.[9]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.[10]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.[11]I do not overlook the fact that the [French] 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.[12]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.”[15]Lord Justices Rix and Ward concurred in the result but for briefer reasons: the Tribunal had erred in its approach and it was unclear, from the extracts from the judgment of the French Cour d’Appel cited by the Tribunal, precisely what overt acts the appellant had committed.[16]The appeal was heard in the Upper Tribunal on 30 October 2012, and the decision reserved, with leave to the parties to provide written closing submissions within 21 days. The appellant did not give further oral evidence. The appeal proceeded on the basis of the facts already found and the documentary material before the Upper Tribunal.

The decision of the Supreme Court in Al-Sirri

[17]On 21 November 2012, the United Kingdom Supreme Court published its decision in Al-Sirri and another v Secretary of State for the Home Department[2012] UKSC 54 and the parties were also given an opportunity to make submissions on that judgment. The case concerned whether participation in armed uprisings could amount to acts contrary to United Nations for the purposes of Article 1F(c).[18]The Supreme Court identified three issues for consideration in that decision: i. whether all activities defined as terrorism by our domestic law are for that reason alone acts contrary to the purposes and principles of the United Nations, or whether such activities must constitute a threat to international peace and security or to the peaceful relations between nations; ii. whether armed insurrection is contrary to the purposes and principles of the United Nations if directed, not only against the incumbent government, but also against a United Nations-mandated force supporting that government, specifically the International Security Assistance Force ("ISAF") in Afghanistan; and iii. what is meant by "serious reasons for considering" a person to be guilty of the acts in question?[19]The principles and purposes of the United Nations are set out in Article 1 of its Charter and summarised at paragraph 10 of the judgment:
“10. The purposes of the United Nations are set out in article 1 of the Charter. The first purpose is "1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” "The second is "to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace"; the third is "to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian nature", and in "promoting and encouraging respect for human rights and for fundamental freedoms for all"; and the fourth is to be a centre for harmonising the actions of nations in the attainment of these common ends.”
[20]The Court held that:(i) Article 1F(c) must be interpreted narrowly and applied restrictively, following in particular the commentary of Grahl-Madsen in The Status of Refugees in International Law, 1966, p 283 that such was the basis on which agreement was reached to insert the provision into Article 1F;(ii) The Article 1F(c) exclusion applies to acts which, “even if they are not covered by the definitions of crimes against peace, war crimes or crimes against humanity as defined in international instruments within the meaning of Article 1F(a), are nevertheless of a comparable egregiousness and character, such as sustained human rights violations and acts which have been clearly identified and accepted by the international community as being contrary to the purposes and principles of the United Nations”;(iii) Not every act condemned by the United Nations is to be deemed contrary to its principles and purposes. The Court looked for guidance to the UNHCR Background Note on the application of the Exclusion Clauses (September 2003) at paragraph 47:
“... [Article] 1F(c) only applies to acts that offend the principles and purposes of the United Nations in a fundamental manner. Article 1F(c) is thus triggered only in extreme circumstances by activity which attacks the very basis of the international community's co-existence under the auspices of the United Nations. The key words in article 1F(c) 'acts contrary to the purposes and principles of the United Nations' should therefore be construed restrictively and its application reserved for situations where an act and the consequences thereof meet a high threshold. This threshold should be defined in terms of the gravity of the act in question, the manner in which the act is organised, its international impact and long-term objectives, and the implications for international peace and security. Thus, crimes capable of affecting international peace, security and peaceful relations between states would fall within this clause, as would serious and sustained violations of human rights." (iv) Mere membership of a terrorist organisation is insufficient to engage the exclusion provisions of Article 1F(c). At paragraph 15 of the judgment, their Lordships held that: “Thirdly, for exclusion from international refugee protection to be justified, it must be established that there are serious reasons for considering that the person concerned had individual responsibility for acts within the scope of article 1F(c): see the detailed discussion at paras 50 to 75 of the UNHCR "Background Note". This requires an individualised consideration of the facts of the case, which will include an assessment of the person's involvement in the act concerned, his mental state and possible grounds for rejecting individual responsibility. As a general proposition, individual responsibility arises where the individual committed an act within the scope of article 1F(c), or participated in its commission in a manner that gives rise to individual responsibility, for example through planning, instigating or ordering the act in question, or by making a significant contribution to the commission of the relevant act, in the knowledge that his act or omission would facilitate the act. ...” (v) It was not appropriate to apply the criminal standard of proof of guilt although ‘considering’ was stronger than ‘believing’, which was the word Lord Brown in JS (Sri Lanka) thought at [39] it was more approximate to than ‘suspecting’. The Court concluded at [75]: “We are, it is clear, attempting to discern the autonomous meaning of the words "serious reasons for considering". We do so in the light of the UNHCR view, with which we agree, that the exclusion clauses in the Refugee Convention must be restrictively interpreted and cautiously applied. This leads us to draw the following conclusions: (1) "Serious reasons" is stronger than "reasonable grounds". (2) The evidence from which those reasons are derived must be "clear and credible" or "strong". (3) "Considering" is stronger than "suspecting". In our view it is also stronger than "believing". It requires the considered judgment of the decision-maker. (4) The decision-maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law. (5) It is unnecessary to import our domestic standards of proof into the question. The circumstances of refugee claims, and the nature of the evidence available, are so variable. However, if the decision-maker is satisfied that it is more likely than not that the applicant has not committed the crimes in question or has not been guilty of acts contrary to the purposes and principles of the United Nations, it is difficult to see how there could be serious reasons for considering that he had done so. The reality is that there are unlikely to be sufficiently serious reasons for considering the applicant to be guilty unless the decision-maker can be satisfied on the balance of probabilities that he is. But the task of the decision-maker is to apply the words of the Convention (and the Directive) in the particular case.”

The fuller translations

[21]In the course of our deliberations we discovered that there were parts of the French judgments that had not been translated into English. In the case of the Paris Cour d'Appel proceedings, the translation omitted all parts of those proceedings not directly related to the present appellant. We considered, particularly in the light of the history and issues in this case, that we should have the fullest understanding of what the French courts had decided and why, and we directed that the remaining passages be translated. The principal charges laid against the appellant and his sixteen co-defendants were conspiracy charges: many of the other defendants were found by the Cour d'Appel to have been involved, with various degrees of responsibility, in the conspiracy.[22]At our request, a full professional translation of the first instance and Cour d'Appel proceedings was provided to us in January 2013 and it is on the basis of that translation that we consider the decisions of the French courts.

Cited in 1 later judgment