Al-Sirri (Appellant) v Secretary of State for the Home Department (Respondent) DD (Afghanistan) (Appellant) v Secretary of State for the Home Department (Respondent) [2012] UKSC 54
In handing down judgment in these cases on the law of refugee status, the UK Supreme Court has confirmed that there is no internationally agreed definition of terrorism and that article 1(F)(c) of the Refugee Convention should be used cautiously because the correct test for its engagement is whether the act concerned destabilised international peace. In doing so, the court has adopted the UNHCR’s Guidelines on International Protection which explain that article 1(F)(c)’s – which sets the standard of proof as “serious reasons for considering” – operability requires individual involvement in crimes capable of affecting international peace, security and peaceful relations between states and/or serious and sustained violations of human rights. In cases involving terrorism, the correct application of article 1F(c) required an assessment as to the extent to which the terrorist act(s) impinged on the international plane.
Al-Sirri (“S”, an Egyptian) raised questions as to whether acts contrary to section 1 of the Terrorism Act 2000 alone sufficed as being contrary to the purposes and principles of the UN? Or was a threat to international peace and security required: see preview. In DD’s case, see preview, the question was whether waging a military campaign against the Afghan government and International Security Assistance Force (ISAF) was contrary to the purposes and principles of the UN? Although the court was careful to delineate the differences between the issues thrown up by these appeals, apart from article 1(F)(c), events in Afghanistan remained the common factual thread running through both. DD’s case was more directly connected to the internecine conflict in that country because, as an Afghan “commander”, he had fought under the Taliban’s banner. S had been accused of facilitating Ahmad Shah Masoud’s assassination and he was also said to have ties to al Gamaa al Islamiyya and was in possession of material linked to al Qaeda.
Law
The legislative setting is as follows. Article 1F has three limbs; sub-article (c) entails exclusion from refugee status on the basis that there are serious reasons for believing that a person has been guilty of acts contrary to the UN’s purposes and principles. But behaviour caught by article 1F may be excluded under multiple limbs and “terrorism” is dually construable as a serious non-political crime (article 1F(b)) and an act which is contrary to the UN’s principles and purposes (article 1F(c)). Council Directive 2004/83/EC, or the Qualification Directive, institutes common standards for immigration and asylum in the European Union and recital 22 read with article 12 spells out article 1F(c)’s significance.
Moreover, the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) transpose the Qualification Directive into domestic law: by regulation 2 and paragraph 334 of the immigration rules asylum is to be granted unless the asylum seeker is excluded under regulation 7 for, inter alia, article 1F grounds. But section 54 (Refugee Convention: construction) of the Immigration Asylum and Nationality Act 2006 embraces the definition of terrorism espoused by section 1 of the Terrorism Act 2000: use/threat of certain dangerous actions to influence the government/intimidate the public for the purpose of advancing a political, religious, racial or philosophical cause; if weapons are used, the need to influence or intimidate is not necessary; and acts instigating domestic political change are covered as are acts committed here to advance political change abroad.
The preamble of the UN Charter (“the charter”) – non exhaustively – explains its objectives as saving humankind from war, reaffirming fundamental human rights, practising tolerance, promoting social progress/freedom/peace and maintaining international peace and security by affirming international law. Articles 1 and 2, respectively, set out the UN’s purposes and principles. Under article 1, a fourfold enumeration of the purposes includes collectively preventing/removing threats to the peace, developing friendly relations and strengthening universal peace, achieving international cooperation in solving international problems and harmonising the attainment of these common ends. Moreover, article 2 enumerates seven principles which include the sovereign equality of all members; the peaceful settlement of disputes; not to use force against any state; to fulfil obligations pursuant to the charter in good faith; to assist the UN in implementing the charter; to act in accordance with the principles to maintain international peace and security; moreover, the UN’s charter does not empower intervention in affairs essentially within the domestic jurisdiction of any state.
In §§12 – 16, the court set out the general approach to article 1F(c) and agreed with the appellants and UNHCR that the provision should be “interpreted narrowly and applied restrictively”. This was the position regarding article 1F(a) in JS (Sri Lanka) [2010] UKSC 15 and it “must apply a fortiori in the context of article 1F(c)”, §12. Sustained human rights violations and similar acts – while not caught by article 1F(a)’s requirements of crimes against peace, war crimes or crimes against humanity – were contrary to the UN’s principles and purposes, §13. In Pushpanathan [1998] 1 SCR 982 – where Canada’s Supreme Court held that international drug trafficking did not fall within article 1F(c) – Bastarache J §65 felt that enumerating a list of acts which engaged article 1F(c) was counterproductive. The guiding principle was that acts accepted in international law as being “sufficiently serious and sustained violations of fundamental human rights as to amount to persecution” or “explicitly recognised as contrary to the [UN’s] purposes and principles” fell within article 1F(c)’s reach. The approach also resonates with the UNHCR’s view that article 1F(c) was “triggered only in extreme circumstances by activity which attacks the very basis of the international community’s co-existence” and that the threshold for its engagement is “high”.
The similarity of the approaches taken by the Supreme Court in JS (Sri Lanka) [2010] UKSC 15 and by the Court of Justice of the European Union in Bundesrepublik Deutschland v B and D [2011] Imm AR 190 – where the Grand Chamber held that it was not justifiable to base a decision to exclude solely on a person’s membership of a group included in a list of “terrorist organisations” – meant that an individualised assessment of the person in question was required. Therefore, in the instant case, article 1F(c) had to be “interpreted restrictively and applied with caution”; “serious reasons for considering that the person concerned bore individual responsibility for acts” against international peace and security were required; the threshold was high, §16.
Al-Sirri
In S’s case, following the refusal (which S appealed) of asylum under article 1F(c), he was to be granted exceptional leave but was not. Instead, discretionary leave was granted. The tribunal dismissed S’s appeal against the asylum refusal but Sedley, Arden and Longmore LJJ, whose [2009] EWCA Civ 222 decision aggrieved S, remitted the matter to be determined afresh. It was common ground that S co-authored with al-Gamma al-Islamiyya, possessed Ayman Al-Zawahiri’s writings and OBL videos and was involved in remittances which he could neither explain nor afford. Yet, save an inspector’s “damaging” statement, the tribunal did not see the first hand evidence of this. S was also given (in absentia) the death penalty by an Egyptian military court: moreover, a New York court indicted S for providing material support to al-Gamma al-Islamiyya. But Sedley LJ accorded no evidential weight to these occurrences. S was also accused of conspiring to kill the anti-Taliban Afghan warlord Ahmad Shah Masoud. But in the Old Bailey, the Common Serjeant thought that the evidence in respect of Masoud’s murder was as consistent with S’s innocence as his guilt. For Sedley LJ, on the admissible evidence, the tribunal might have rejected the belief that S was excluded from asylum under article 1F(c).
S took issue with Sedley LJ’s §51 emphasis that while Masoud’s assassination was ex facie a domestic Afghan quarrel, it still fell within article 1F(c) because “if true, it involved the use of a safe haven in one state to destabilise the government of another by the use of violence.” S submitted that the act must have a have an international character to be contrary to the UN’s principles and purposes and that acts undertaken in one state to destabilise another did not necessarily bear an “international character”. S also disliked Sedley LJ’s finding that “serious reasons for considering” did not require a criminal standard of proof but later recast his argument to mean that “serious reasons” meant that “more likely than not that the appellant is guilty of the relevant acts.”
Appraising the international dimension, §§26 – 35, the Supreme Court §36 held that it is “clear that the phrase “acts contrary to the purposes and principles of the United Nations” must have an autonomous meaning. It cannot be the case that individual Member States are free to adopt their own definitions.”
In contrast to her earlier stance, in the Supreme Court the SSHD argued that member states were at liberty to define “terrorism” on an individual basis because the UN condemned it. Thus, acts thought to be of a terrorist nature domestically, without any international dimension or repercussions for international peace and security, were contrary to the UN’s purposes and principles, §26. Reliance was placed in Declaration on Measures to Eliminate International Terrorism – not binding under international law – adopted by the UN General Assembly. The court noted that although a comprehensive convention against terrorism was in the offing, to date, it did not exist. But the court still observed that conventions did exist requiring states to criminalise “certain particular aspects of terrorism” as did Security Council resolutions (such as Resolution 1624 of 2005, which nonetheless required compliance with human rights and refugee law).
From S’s viewpoint, only acts of terrorism which significantly undermined international peace/security or peaceful relations between states serious or sustained human rights violations, could be construed as being contrary to the UN’s to the purposes and principles. Interpreting article 1F in this way was also consistent with the approach adopted by the UNHCR’s Guidelines on International Protection: Application of Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees and Note on the Impact of Security Council Resolution 1624 (2005) on the Application of Exclusion under Article 1F of the 1951 Convention relating to the Status of Refugees, §§30 – 31.
Subsequent to Sedley LJ’s decision in S’s case, owing to Bundesrepublik Deutschland v B and D, S conceded that non-state actors can be guilty of such acts because the CJEU (§81, §84) held terrorist acts, even if committed with a purportedly political objective, fell to be regarded as serious non-political crimes and that member states’ authorities were able to apply article 12(2)(c) of Directive 2004/83 to someone “who, in the course of his membership of an organisation which is on the list forming the Annex to Common Position 2001/931, has been involved in terrorist acts with an international dimension.
Both sides relied on B and D. The SSHD contented that little weight could be attached to the references to “international terrorism” and “terrorist acts with an international dimension” because the CJEU’s judgment was concerned with whether mere membership of and support for a listed organisation was enough for either article 12(2)(b) or (c) to apply: the CJEU’s answer was “no”. But S maintained that in drawing a distinction between paragraphs (b) and (c) of article 12(2), the CJEU highlighted that the international element is referred to whenever reference is made to paragraph (c) but paragraph (b) did not mention an international element in the terrorist acts which could fall within it. In discussing article 12(2)(c), the CJEU also repeatedly referred to “international” terrorism.
Applying Adan [2000] UKHL 67, the Supreme Court held that “acts contrary to the purposes and principles of the United Nations” must have an autonomous meaning and “it cannot be the case that individual Member States are free to adopt their own definitions”, §36. Given that no body oversaw adherence to the Refugee Convention, applying R v Asfaw [2008] AC 1061 and Adimi [2001] QB 667 the UNHCR’s non-binding guidance is to be given significant weight.
The court held that crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights were sufficient to engage article 1F(c), §§36 – 38. It could be enough if one person plotted in one country to destabilise another. The test was whether the resulting acts had the requisite serious effect upon international peace, §40. Although the Qualification Directive echoed the UN Security Council’s views on terrorism, the absence of an agreed definition of terrorism, a comprehensive binding international convention requiring action against it, the General Assembly’s emphasis on “international” and “above all” given that the UN’s “principal purposes are to maintain international peace and security, to remove threats to that peace, and to develop friendly relations among nations”, the Supreme Court adopted §17 of the UNHCR’s guidelines by virtue of which article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international community’s coexistence. Such activity must have an international dimension.
DD (Afghanistan)
As noted above, DD’s case was also rooted in Afghanistan where he fought alongside his brother AD: a Jamiat-e-Islami warlord who ultimately threw his lot in with the Taliban. After the American invasion, both brothers fled to Pakistan where AD was assassinated (and DD injured) by elements in the Karzai government. After recovering, DD returned to Afghanistan to fight (under the Hizb-e-Islami) ISAF and the Afghan government. Later, when AD’s son was killed in Peshawar and DD’s own situation became precarious he fled, via Pakistan using an agent, to the UK where he claimed asylum but his claim was refused because of his story. Equally, his attacks on ISAF meant that article 1F(c) applied.
Though they did not accept all aspects of DD’s account, the tribunals felt that article 1F(c) did not apply in his case. The Court of Appeal (Pill LJ, Rimer and Black LJJ, read judgment, §64) ruled that DD had not perpetrated terrorism contrary to section 54 of the 2006 Act but his direct military actions against ISAF – authorised under a Security Council mandate – attracted article 1F(c).
The Supreme Court, §§49 – 58, traced the development of the UN’s role in war torn Afghanistan and found that notwithstanding the fact that ISAF was an “armed force” and that the United Nations Assistance Mission in Afghanistan (UNAMA) was a peacekeeping force their “objectives … are essentially the same, although the means by which they seek to achieve them differ” and that “in particular, they both aim to promote the Bonn Agreement and to maintain peace and security in Afghanistan, thereby reducing the threat to international peace and security posed by the situation in Afghanistan.” Security Council Resolution 1776 (19 September 2007, recital 7), for example, not only stresses the UN’s “central role” in that country, it also notes “the synergies” in UNAMA and ISAF’s “objectives” and exacted “further sustained cooperation, coordination and mutual support” between the two bodies and subsequent resolutions confirm this approach.
The court held that “an attack on ISAF is in principle capable of being an act contrary to the [UN’s] purposes and principles” because ISAF’s fundamental aims and objectives were consistent with the first purpose stated in article 1 of the charter and by attacking ISAF, DD “was seeking to frustrate that purpose”, §68. Moreover, such an approach “accords with common sense and is correct in law” and so Pill LJ was right.
As a peacekeeping force UNAMA enjoys protection under the Convention on the Safety of UN and Associated Personnel 1995 (and its 2005 protocol). Moreover, Prosecutor v Sesay, Kallon & Gbao (Case No SCSL-04-15T, 2 March 2009) confirms that the law of international conflict afforded UN peacekeepers the same protection as civilians.
A combat force authorised by the Security Council as an enforcement action under chapter VII of the charter, unlike UNAMA, ISAF did not enjoy immunity from attack, §61.
Although the differences between ISAF and UNAMA were “not in doubt”, they were immaterial to whether DD was excluded from refugee status under article 1F(c). The difference in the laws of conflict in respect of IASF and UNAMA remained “categorically different from (and irrelevant to)” to “whether an attack against either body is contrary to the [UN’s] purposes and principles”, §65. The true position was a function of all the facts and included the terms under which ISAF was mandated. At times the UN expressly condemned acts as contrary to its principles and purposes, but neither the UNHCR nor the Pushpanathan case – where the Canadian Supreme Court did not have to consider whether an attack on a UN body or UN mandated body was contrary to the principles and purposes – singled this out as necessary.
Thus, the UK Supreme Court took the view that “the principled test is that put forward by the UNHCR in para 17 of its Guidelines”, §§66 – 67. In the absence of a UN resolution clarifying attack on UNAMA as contrary to the principles and purposes, the fact that DD accepted that attacking UNAMA meant that article 1F(c) was engaged was compatible with the conclusion that an act could offend the said principles and purposes without (a) being considered to be as such under international law or (b) amounting a serious and sustained violation of fundamental human rights, §67.
Al-Sirri: Standard of Proof
Agreeing with the UNHCR’s view that the exclusion clauses in the Refugee Convention must be interpreted restrictively and cautiously, the Supreme Court (§75) clarified the meaning of “serious reasons for considering” in the following way:
(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.
In setting out the above guidelines, the court approved of Sedley LJ’s [2009] EWCA Civ 222 treatment of this issue where his Lordship (§33, that to try to paraphrase the straightforward language of the Refugee Convention is a mistake as “it clearly sets a standard above mere suspicion”) rejected the idea that a criminal standard of proof – beyond a reasonable doubt – was imported. In any event, in JS (Sri Lanka) Lord Brown felt inclined to agree with Sedley LJ.
S relied on an Australian case but W97/164 [1998] AATA 618 conflicted with Arquita [2000] FCA 1889 and in the latter case the court (§58) held while more than a prima facie case was required, “evidence could ‘properly be characterised as ‘strong’ without meeting either the criminal or the civil standard of proof”.
The UK Supreme Court also noted that Al-Sirri [2009] EWCA Civ 222 was followed by New Zealand’s Supreme Court which upheld the view that “the Refugee Convention simply means what it says” and so “adding glosses by analogy with civil litigation or criminal prosecution simply confuses matters”: Attorney General (Minister of Immigration) v Tamil X [2010] NZSC 107, §39. Similarly the Canadian courts have adopted a “lower standard of proof than the balance of probabilities.” But that said, strong evidence is still required and “suspicion and speculation” alone did not suffice: Ramirez (1992) 89 DLR; Cardenas [1994] FCJ No 139. Moreover, in BVerwG 10 C 2.10, Germany’s Bundesverwaltungsgericht or Federal Administrative Court opined that “as a rule, reasons are ‘good’ when there is clear, credible evidence that such crimes have been committed”.
Decision
Both cases were remitted to the relevant tribunal for reconsideration under the orders made by the Court of Appeal.
The court (§78) dismissed DD’s appeal because he failed to establish that his activities could not be contrary to the UN’s principles and purposes but the court observed the tribunal failed to assess the case in accordance with JS (Sri Lanka). Therefore, the UT’s reconsideration of the matter was apposite.
S was “rather different” because he challenged the remission of his case to the tribunal. Dismissing the appeal, the Supreme Court explained (§77) that:
The reality is that he was challenging certain aspects of the guidance given to the tribunal which would hear the remitted case. In that he has succeeded to some extent. Consideration will also have to be given to whether it is more appropriate for the case to be remitted to the First-tier or to the Upper Tribunal, given that the evidence will have to be examined afresh.
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