Case Preview: Al-Sirri in Supreme Court

The extremely interesting of case of Al-Sirri (FC) (Appellant) v Secretary of State for the Home Department (Respondent) UKSC 2009/0036 will be heard in the UK Supreme Court by Lady Hale and Lords Phillips, Kerr, Dyson and Wilson. The Court will be interpreting the true meaning of the phrase “acts contrary to the purposes and principles of the United Nations” as set out in Article 1F(c) of the 1951 Geneva Convention relating to the Status of Refugees: UNCHR is intervening in the matter. The hearing will be viewable live online here on Monday 14 May 2012 (11 am to 4 pm) and Tuesday 15 May 2012 (10:30 onwards)!   

Background

In March 2009 the Court of Appeal (Sedley, Arden and Longmore LJJ) unanimously allowed Yasser Al-Sirri’s (hereafter “Y”) appeal and remitted it to the Asylum and Immigration Tribunal (as it then was) for redetermination: see Sedley LJ (as he then was) at [61]–[73], read judgment here. Nevertheless, Y wants the Supreme Court to clarify and interpret the exclusion provisions in Article 1F(c)

F. 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. [As provided for in the Preamble and Articles 1 and 2 of the UN Charter which, inter alia, calls for maintaing international peace and security and for the suppression of acts of aggression and other breaches of the peace ... ]

Equally, under Article 12, Council Directive 2004/83/EC reiterates the above.

Facts

Y is an ardent Egyptian Islamist with a history of repeated arrest and torture (1981–1988) by the former Mubarak regime. Subsequently, Y fled to Jordan and then to Yemen from where he visited Pakistan and Saudi Arabia. Following the attempted assassination (in 1993) of Egypt’s longest serving prime minister Atef Sedki, in 1995 the Egyptian Supreme Military Court found Y guilty of belonging to a terrorist organisation and sentenced him to 15 years’ hard labour; in 1999 this punishment was supplemented by a sentence of life imprisonment for illegal membership of a jihadi group which attacked state personnel. Knowing that he was suspected of being involved in the assassination attempt on Sedki, Y fled with his family to Sudan from where he arrived in the UK, using a false passport, in April 1994: he claimed asylum on arrival.

Since his asylum claim remained undecided for 5 years, Y applied for leave to remain under the Home Office’s backlog clearance policy. Y’s Egyptian criminal record caused his application to be refused under Article 1F(c). Although a decision was taken to grant Y and his dependants exceptional leave to remain for a limited time, the leave was never granted. Instead, between 2004 and 2006 Y was granted three periods of discretionary leave which provided him with a statutory right of appeal against the Article 1(F)(c) refusal of asylum in late 2000. The appeal was not decided in Y’s favour and he appealed to the Court of Appeal: see Sedley LJ at [7] & [12].

Two days prior to the event that changed world forever – 9/11 – a pair of Taliban suicide bombers posing as journalists assassinated Afghanistan’s vice-president and defence minister General Ahmad Shah Masoud (acclaimed, for resisting the Soviet occupation, as the redoubtable Lion of Panjshir – see picture below). Y was indicted on five counts at the Central Criminal Court which ranged from conspiring to murder Masoud, soliciting support and funds for a proscribed organisation (al-Gamm’a al-Islamiya), arranging to make property available for terrorist purposes and publishing material likely to stir up racial hatred.

However, the Crown proceeded only on the first and the last count and on 16 May 2002 the Common Serjeant of London (at the time, Mr Peter Beaumont QC) dismissed the first count because it appeared to him that the evidence against Y was not sufficient for a jury properly to convict him. Owing to an extradition request made by the United States, Y was rearrested for supporting terrorists and soliciting crimes of violence but the American government failed to provide evidence and Y was discharged because on 29 July 2002 the SSHD declined to give authority to proceed with Y’s extradition.

The Tribunal

In 2007, Y appealed against the Article 1F(c) refusal of his asylum claim but the AIT dismissed his appeal because it thought that there were serious reasons for concluding that Y had been guilty of acts contrary to the purposes and principles of the United Nations. In making its decision the AIT considered the evidence before the Central Criminal Court and also took the American indictment into account. The Egyptian convictions were considered unfair – and “little” or “no significant” weight was accorded to them – because the evidence was probably obtained by torture.

The Court of Appeal

Sedley LJ, at [3], explained that the appeal before the Court raised the questions (1) whether Article 1F(c) applied to individual acts of terrorism; and if it did (2) whether there were “serious reasons for considering” that Y had been guilty of such acts. Although there was a presumption of innocence in Article 1(F) proceedings, there was “no logical reason” requiring Y to be treated as “irrebuttably innocent” because the presumption of innocence was “always rebuttable” (at [26]). Given the terms of UN Security Council Resolution 1624, it was “beyond argument” that terrorism was contrary to the UN’s principles (at [30]). An elaborate definition of terrorism was not needed Y’s case – “it meant the use for political ends of fear induced by violence … If the evidence here reaches the necessary standard, it has a clear international dimension.” (at [31] & [32]).

In the part of the judgment headed “international terrorism?” the Court further stated

51. This on the face of it was therefore a domestic Afghan quarrel, notwithstanding the Taliban’s international links. The international repercussions of the assassination, to which the AIT refer, are not described. But what in my judgment gives the appellant’s suspected or alleged involvement a dimension which brings it within the purposes and principles of the United Nations is that, if true, it involved the use of a safe haven in one state to destabilise the government of another by the use of violence.

For Sedley LJ, attempts to “paraphrase” the Refugee Convention’s “straightforward language” was a “mistake” because “it has to be treated as meaning what it says”; moreover, the parallel French phrase “des raisons sérieuses de penser” did not import any “additional weight into the verb ‘consider’ in the English text” (at [33] & [34]). His Lordship found that “guilty” did not import a criminal standard of proof and simply meant “responsible for” (at [35]).

The submission that Article 1F was aimed exclusively at state actors and did not apply to Y (who was a private individual) was rejected by the Court and Sedley LJ’s opinion resonated with the approaches of the AIT in KK (Turkey) [2004] UKIAT 00101 and the Supreme Court of Canada in Pushpanathan v Canada [1998] 1 S.C.R. 982. Both decisions held that there was no difficulty in applying Article 1F(c) to private individuals and thus Sedley LJ said

39. I would adopt the same approach. Once again the need is to give effect to the words on the page, bearing in mind the scope and purpose of the provision but without fixed or prior limitations other than those contained in the text itself. I would accordingly not regard it as a requirement of Article 1F that the asylum-seeker must have been deploying state powers if his claim is to be impugned. As the outcome in Pushpanathan illustrates, this does not mean that every reprehensible act with international ramifications (in that case, major drug trafficking) falls within Article 1F(c). The purposes and principles of the UN will always be central to the adjudication.

His Lordship also noted that the AIT had been ambiguous in the way it dealt with Y’s Egyptian convictions. The only “principled way” to “deal with” these, once torture was in contemplation, “was to accord them no evidential weight at all” (at [44], applying A v SSHD (No. 2) [2005] UKHL 71). Sedley LJ clarified that a bare indictment (which did not possess the character or evidential force of a conviction following a fair trial), like the one returned by a New York grand jury in Y’s case, enjoyed “no evidential weight whatever” in relation to his asylum claim being defeated by Article 1F(c) (at [60], Arden and Longmore LJJ concurred at [75] & [80] respectively).

Therefore, the AIT erred in law by both admitting and giving weight to the American indictment because it was merely an accusation based on evidence: the argument of which Y, the AIT and the SSHD knew nothing.

Remitting the case back to the tribunal, Sedley LJ summed up the situation by observing that

64. The question then is whether there is any realistic possibility that a tribunal of fact, confining itself to the admissible evidence, might have rejected the submission that there were serious reasons for considering that Mr Al-Sirri had been guilty of promoting or assisting international terrorism. In my judgment there is.

Given the clarification sought from the Supreme Court, Y’s concern is that he has not – by virtue of a fair legal process and a jury – been convicted of a crime that disqualifies him from the protection of the Refugee Convention. Y contends that the Court of Appeal was unclear about the way it interpreted international terrorism in [51].

Ahmad Shah Masoud (September 2, 1953 – September 9, 2001)

Masoud’s untimely death was a huge blow to anti-Taliban forces in Afghanistan.

In relation to Y’s part in Masoud’s killing, the Common Serjeant had noted that although the letters of reference originating from the Islamic Observation Centre used in the attack were traceable to Y, they were careful and elaborate forgeries of the letters which Y had originally given to Masoud’s killers.

Thus, Y was an “innocent fall guy”. He didn’t know that a pair of suicide bombers would tamper with the letters he had written and then use the resulting forged documents to accomplish their mission by assassinating Masoud. In any event, Y had been frank with the police about the letters he had written and, although the letters were easily traceable to him, he did not try to destroy the evidence.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Asylum, Cases, Sedley LJ, Terrorism, Tribunals, UKSC and tagged , , , , , . Bookmark the permalink.

6 Responses to Case Preview: Al-Sirri in Supreme Court

  1. mkp says:

    COUNCIL DIRECTIVE 2004/83/EC, the Qualification Directive, Article 12 and section 54 of the Immigration Asylum and Nationality Act 2006 are also important in this case:

    By section 54 the Act
    54 Refugee Convention: construction

    (1)In the construction and application of Article 1(F)(c) of the Refugee Convention the reference to acts contrary to the purposes and principles of the United Nations shall be taken as including, in particular—
    (a)acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence), and
    (b)acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence).
    (2)In this section—
    “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and
    “terrorism” has the meaning given by section 1 of the Terrorism Act 2000

    By Article 12 the Qualification Directive

    Article 12
    Exclusion

    1. A third country national or a stateless person is excluded from being a refugee, if:
    (a) he or she falls within the scope of Article 1 D of the Geneva Convention, relating to protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees. When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Directive;
    (b) he or she is recognised by the competent authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country; or rights and obligations equivalent to those.
    2. A third country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:
    (a) he or she 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 or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;
    (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.
    3. Paragraph 2 applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein.

  2. mkp says:

    Ed Fitzgerald QC said B (Area of Freedom, Security and Justice) [2010] EUECJ C-101/09 http://www.bailii.org/eu/cases/EUECJ/2010/C10109.html

  3. mkp says:

    Preamble only “gives colour” to Arts 1 and 2 of the UN Charter

  4. mkp says:

    The European Directive “prevails over” section 54 IANA, says Ed Fitzgerald QC

  5. mkp says:

    SS (Libya) v SSHD http://www.bailii.org/ew/cases/EWCA/Civ/2011/1547.html

    24. While I agree respectfully with the end result of that statement, it is perhaps not strictly accurate to speak of the Qualification Directive as a “route” for incorporation of the Refugee Convention. Each has separate force in domestic law, and is (in theory at least) subject to different rules:
    i) The Refugee Convention continues to have effect under immigration law. However, for domestic purposes, the application of article 1F(c) is qualified by section 54 of the 2006 Act, which in turn brings in the definition of “terrorism” in the Terrorism Act 2000.
    ii) The Qualification Directive takes effect in domestic law by a different route; that is, under the European Communities Act 1972, by virtue of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006/2525. Neither the 2006 Act (nor by the same token the 2000 Act definition of terrorism), has any direct application. However, as the judge rightly said, authoritative guidance as to the meaning of terrorism in this context is to be found in the European Council’s Common Position 2001/931/CSFP, a usage approved by the CJEU Grand Chamber in B and D v Germany para 90.

    25. Although these different sources may seem confusing at first sight, it is important not to over-complicate the practical task of applying them. For the reasons given by Sedley LJ, in so far as the protection under the Refugee Convention (with or without the 2000 Act definition) is less generous than under the Qualification Directive, the latter must prevail. In any event, as the judge said, the common ground is far greater than the differences. In my view he was entitled to start from a “fundamental definition” derived from both, the essence of which was (in his words):
    “the use or threat of action designed to influence a government or to intimidate a population by serious acts of violence and some acts of economic disruption.” (para 15)

    26. The issue in this case turns not on the accuracy of that general definition, as such, but on a much narrower question: that is, the extent to which it requires refinement, in the light of the two Court of Appeal cases, to exclude either (a) “non-international” activities (Al Sirri), or (b) “legitimate” forms of violence, typically military action KJ (Sri Lanka).
    The CA cases

    27. I see nothing in the argument based on Al Sirri for the suggested requirement for an “international” dimension. As the panel observed, Sedley LJ did not need to express a definitive view for the purpose of the case before him. It is not clear precisely what this expression is intended to connote. In any event, like the panel (para 21), I am unable to accept that it is a necessary part of the definition of “terrorism”. Furthermore (subject to the issue of fairness to which I will come), the finding that LIFG was sufficiently “international” to meet any such test was, in my view, a finding of fact not open to challenge in this court.

  6. mkp says:

    Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982

    http://scc.lexum.org/en/1998/1998scr1-982/1998scr1-982.html

    63 What is crucial, in my opinion, is the manner in which the logic of the exclusion in Article 1F generally, and Article 1F(c) in particular, is related to the purpose of the Convention as a whole. The rationale is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a Convention designed to protect those refugees. As La Forest J. observes in Ward, supra, at p. 733, “actions which deny human dignity in any key way” and “the sustained or systemic denial of core human rights . . . se[t] the boundaries for many of the elements of the definition of ‘Convention refugee’”. This purpose has been explicitly recognized by the Federal Court of Appeal in the context of the grounds specifically enumerated in Article 1F(a) in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, where Linden J.A. stated (at p. 445): “When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. International criminals, on all sides of the conflicts, are rightly unable to claim refugee status.”

    64 This brings me back to the second point to be taken from the declarations of the French delegate referred to earlier. In the light of the general purposes of the Convention, as described in Ward, and elsewhere, and the indications in the travaux préparatoires as to the relative ambit of Article 1F(a) and F(c), the purpose of Article 1F(c) can be characterized in the following terms: to exclude those individuals responsible for serious, sustained or systemic violations of fundamental human rights which amount to persecution in a non-war setting.

    C. What Acts Are “Contrary to the Purposes and Principles of the United Nations”?

    65 Determining the precise content of this phrase is significantly easier having defined a discrete purpose which Article 1F(c) was intended to play within the structure and purposes of the Convention. The parties before us presented various alternatives as to what should be included within the section and sought to do so with a high degree of particularity. In my view, attempting to enumerate a precise or exhaustive list stands in opposition to the purpose of the section and the intentions of the parties to the Convention. There are, however, several types of acts which clearly fall within the section. The guiding principle is that where there is consensus in international law that particular acts constitute sufficiently serious and sustained violations of fundamental human rights as to amount to persecution, or are explicitly recognized as contrary to the purposes and principles of the United Nations, then Article 1F(c) will be applicable.

    66 Several categories of acts fall within this principle. First, where a widely accepted international agreement or United Nations resolution explicitly declares that the commission of certain acts is contrary to the purposes and principles of the United Nations, then there is a strong indication that those acts will fall within Article 1F(c). The Declaration on the Protection of All Persons from Enforced Disappearance (GA Res. 47/133, 18 December 1992, Article 1(1)), the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (GA Res. 3452 (XXX), 9 December 1975, Article 2), and the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism (GA Res. 51/210, 16 January 1997, Annex, Article 2), all designate acts which are contrary to the purposes and principles of the United Nations. Where such declarations or resolutions represent a reasonable consensus of the international community, then that designation should be considered determinative.

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