Government loses bid to lower bar for exclusion of extremists from refugee status

The Secretary of State for the Home Department v NF [2021] EWCA Civ 17 (11 January 2021) 

The Court of Appeal has dismissed the government’s appeal as to the lowering of the high threshold for the engagement of article 1F(c) of the Refugee Convention 1951 and Davis, Lewis, Nugee LJJ decided that despite disturbing evidence that “NF” had been in contact with known extremists, the threshold established by the Supreme Court was high as established by the Supreme Court in Al-Sirri v SSHD [2013] 1 AC 745. The Court of Appeal concluded that that possessing large amounts of terrorist-related material and contact with extremists might amount to “acts contrary to the purposes and principles of the United Nations” in article 1F(c) so as to exclude certain individuals from the protection of refugee status and if the person’s conduct was sufficiently grave it could cross the high threshold established by Al-Sirri. NF was a Kenyan who entered the UK as a student to study aerospace engineering, accompanied by his wife as his dependent. He downloaded large quantities of material relating to Islamic extremism and terrorism, and was in contact with extremists. So he was charged with three terrorism offences in relation to those actions. He convicted on one count of possession of a terrorist manual and received a  nine month sentence, the sentencing judge recommended his deportation. He subsequently applied for asylum. The SSHD accepted that NF could not be returned to Kenya where he would face a real risk of ill-treatment contrary article 3 of the ECHR

However, the SSHD considered that his actions amounted to acts contrary to the purposes and principles of the United Nations under article 1F(c) and considered him to be excluded from the protection of refugee status. The FTT concluded that he did not fall within the provision in article 1F(c) and the UT upheld the decision. The SSHD granted NF leave to remain owing to the article 3 issues and this case did not concern whether NF ought to be deported to Kenya. The only issue turning on the appeal was whether the UT was correct in holding that there was no error of law in the decision of the FTT. Subsequent to a visit to Kenya in 2013, downloaded material showing an interest in Islamic terrorism was found to be in NF’s possession. The downloaded material included photos of armed members of Al Shabaab, a terrorist organisation and also speeches by three individuals supporting terrorism. Searches of his home revealed large quantities of downloaded material showing an interest in terrorism. He had deleted many thousands of files from his home computer. He was charged with three offences of collecting or making a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, contrary to section 58 of the Terrorism Act 2000. He was convicted of having a manual entitled 39 Ways to Serve and Participate in Jihad.

The appeal

The SSHD appealed Ockelton VP and UTJ O’Connor’s decision on two grounds. First of all that the UT erred in law by ruling that NF’s conduct in possessing terrorist materials on his computer was incapable of engaging article 1F(c) of the Refugee Convention and its ruling was inconsistent with the decision of the Special Immigration Appeal Commission (SIAC) and the Court of Appeal in the case of Youssef and N2 v SSHD [2019] QB 445. Second, that the UT erred in concluding that the decision of the FTT in NF’s case was consistent with the subsequent decision of the Court of Appeal in Youssef and N2

The SSHD submitted that the FTT had erred by concluding that NF’s actions could not fall within article 1F(c). Alternatively, the SSHD argued that the only conclusion that the FTT could lawfully have reached on the facts was that NF was responsible for acts contrary to the UN’s purposes and principles.

The judgment in Youssef and N2 was handed down after the FTT’s decision in NF’s case. N2, had in his possession material describing how to establish a jihadist organisation and how to make viable explosive devices and on the placing of these devices and the targeting of particular premises, public places and public figures. N2 had multiple identities and had travelled to the UK under an assumed name. He had lied consistently to the police. N2 was described as a sleeper for a terrorist organisation. However, there was no evidence to show that N2 had been involved in the commission, preparation, or instigation of a specific act of terrorism. Irwin LJ, with whom McCombe and Rafferty LJJ concurred, concluded that acts contrary to the purposes and principles of the United Nations were not restricted to committing specific terrorist acts. N2’s conduct was in principle capable of falling within article 1F(c) of the Refugee Convention and they dismissed his appeal. 

The Court of Appeal

Lewis LJ decided that two grounds were closely linked and the court found it convenient to deal with them together. The court first addressed the FTT’s decision and it then turned its attention to the issue of NF’s conduct and whether it fell within the ambit of article 1F(c). 

In Al-Sirri, one Mr Yasser Al-Sirri, was excluded from refugee status. He was in possession of certain books and videos, and the authorship of the foreword to a book. Mr Al-Sirri was also convicted in absentia in Egypt for conspiracy to kill the then Egyptian Prime Minister and for membership of a terrorist organisation. His convictions had probably been secured by the use of torture. Secondly, there was an indictment in the US accusing Mr Al-Sirri of certain activities there but which could not be proceeded with. The Supreme Court (Lady Hale and Lords Phillips, Kerr, Dyson, Wilson) approached article 1F(c) by observing that “the acts must have an international dimension, that is they must be contrary to the purposes and principles of the United Nations” and  “the test is whether the resulting acts have the requisite serious effect upon international peace, security and peaceful relations between states”.

In NF’s case, the FTT correctly directed itself as to the relevant principles and the FTTJ identified correctly the question he had to ask itself, and identified the relevant core facts, namely NF’s possession of extremist material, his terrorist mindset and his association with extremists. In considering that question, it was satisfied that NF had committed all of the offences in the indictment, and took into account “the disturbing evidence that” he was “in contact with known extremists” but it found that “it is not enough to meet the threshold set out … by the Supreme Court in Al-Sirri v SSHD”. Lewis LJ held that:

35. Read as a whole, therefore, the judgment of the First-tier Tribunal does not, as Mr Tam submitted, proceed on the basis that acts falling short of the commission or incitement of a specific act of terrorism could not fall within the scope of article 1F(c) of the Refugee Convention. Rather it asked whether the acts committed by NF were sufficiently serious and grave to cross the high threshold necessary for acts to fall within the scope of article 1F(c). 

Lewis LJ found that in considering that question the FTT was satisfied that NF committed all of the offences in the indictment, but it determined that it was not enough to meet the threshold set out in the Supreme Court in Al-Sirri. The FTT did not proceed on the basis that acts falling short of the commission or incitement of a specific act of terrorism could not fall within the scope of article 1F(c). It instead asked whether the acts committed by NF were sufficiently serious and grave to cross the high threshold necessary. 

Further, Lewis LJ said that the facts of NF’s case were distinct from N2’s case and it was quite clear from SIAC’s decision in N2’s case, N2 was “engaged in the planning and/or facilitation of acts of terrorism”. He had material on his computer “ready to be used if and when either he or others considered it appropriate for that material to be used”. There was clear, credible and strong evidence demonstrating that N2 had indeed been “a sleeper for a terrorist organisation”. The acts relied upon included the possession of instructions for the making and placing of bombs, instructions on how to establish terrorist cells, the use of multiple identities, association with other terrorists, and persistent lies to the police. N2 was charged with more serious offences than NF (possession of an article giving rise to a reasonable suspicion that possession was for a purpose connected with the commission, preparation or instigation of an act of terrorism contrary to section 57 of the Terrorism Act 2000). N2 was sentenced to nine years’ imprisonment (as compared with the nine months’ imprisonment to which NF had been sentenced). All that reflected the more serious nature of N2’s criminal conduct as compared with NF’s criminal conduct. In light of this, Lewis LJ held that: 

36. … It is too simplistic to say that the cases of both N2 and NF involved the downloading and retention of extremist material and that, therefore, the essential quality of the two men’s conduct was the same so that, if N2’s conduct fell within article 1F(c) so must NF’s. The factual situation, the gravity of the conduct and the impact in the two cases are very different. What the First-tier Tribunal had to do, and did, was consider whether NF’s conduct amounted to acts contrary to the purpose and principles of the United Nations following the guidance established by the Supreme Court in Al-Sirri.

37. I would also reject the submission that there was only one conclusion that the tribunal could reasonably reach in the present case. It is clear from Al-Sirri that article 1F(c) establishes a high threshold in terms of the gravity of the act, the manner in which the act is organised, and its international impact and long-term objectives. This was a difficult case, as the First-tier Tribunal recognised, given the nature of the material that NF had downloaded and retained, his mindset and his contacts with other extremists. On the facts as found by the First-tier Tribunal, however, it could legitimately conclude that the acts, although serious, had not crossed the high threshold necessary for exclusion from protection under the Refugee Convention.

The Court of Appeal held that the UT was correct to find that the FTT had not misdirected itself. It was correct to conclude that the FTT had applied its mind to the relevant matters and reached a conclusion on the evidence which was open to it. It was right, therefore, to dismiss the appeal. Yet, other tribunals should approach the suggestion that NF’s conduct might not have been capable of affecting international peace with circumspection. If his conduct had been sufficiently grave and serious, a tribunal could have been satisfied that it would have had an effect on international peace, security and relations between states. 

Lewis LJ added that the material downloaded concerned possible terrorism and support for terrorist organisations operating in other countries. It was extremely likely that acts of terrorism involving violence for the purpose of inducing terror in the civilian population, or compelling a government or international organisation to act in a particular way would also have international repercussions and this was dealt with by the Supreme Court in Al-Sirri at paragraph 16. Overall, Lewis LJ accordingly dismissed the appeal for the reasons given and Nugee and Davis LJJ concurred in the result. 

Comment 

Despite the FTT’s determination that at the time that he had the materials, NF possessed a terrorist mind-set was very concerning for the Court of Appeal but as their Lordships said the bar is set high for excluding a person from protection under the Refugee Convention in light of article 1F(c) as expounded by the Supreme Court in Al-Sirri. Thus by carefully and thoroughly assessing the totality of the evidence placed before it, the FTT had been right in  reaching the conclusion that NF did not fall within the provision in article 1F(c). 

Thus NF’s conviction for terrorism offences alone did not meet the bar set for exclusion from refugee status as it was too simplistic to say that the cases of N2 and NF involved the downloading and retention of extremist material and so the essential quality of the two men’s conduct was the same. The court accepted the submission that despite being quite alarming, NF’s case was factually different from that of N2. 

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Africa, Al-Shabab, Appeals, Asylum, Court of Appeal, Kenya, Refugee Convention, Somalia, Terrorism, UKSC and tagged , , , , , , . Bookmark the permalink.

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