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)!
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 –, 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.
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  & .
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.
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 , 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 ). Given the terms of UN Security Council Resolution 1624, it was “beyond argument” that terrorism was contrary to the UN’s principles (at ). 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  & ).
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  & ). His Lordship found that “guilty” did not import a criminal standard of proof and simply meant “responsible for” (at ).
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)  UKIAT 00101 and the Supreme Court of Canada in Pushpanathan v Canada  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 , applying A v SSHD (No. 2)  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 , Arden and Longmore LJJ concurred at  &  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 .
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.