AA (exclusion clause) Palestine
| Jurisdiction | England & Wales |
| Judgment Date | 18 May 2005 |
| Date | 18 May 2005 |
| Court | Asylum and Immigration Tribunal |
Immigration Appeal Tribunal
The Honourable Mr Justice Ouseley (President), Ms C Jarvis (Vice-President) and His Honour Judge Risius CB (Vice President)
Representation:
Mr B Lams instructed by Fitzgrahams Solicitors, for the Claimant;
Mr A Sheikh, Home Office Presenting Officer, for the Respondent.
Cases referred to:
Gurung (Refugee exclusion clauses especially 1F(b)) Nepal CG* [2002] UKIAT 04870
KK (Article 1F(c)) Turkey [2004] UKIAT 00101
Minister for Immigration and Multicultural Affairs v Singh [2002] High Court of Australia 7
R v Secretary of State for the Home Department ex parte Adan and OthersELR [1999] 1 AC 293; [1998] Imm AR 338; [1998] INLR 325
R v Secretary of State for the Home Department ex parte Robinson [1997] Imm AR 568; [1997] INLR182
T v Secretary of State for the Home DepartmentELR [1996] AC 742; [1996] Imm AR 443
WN (Surendran; credibility; new evidence) Democratic Republic of Congo [2004] UKIAT 00213; [2005] INLR 340
International instruments judicially considered:
Refugee Convention, Article 1F
Article 1F of the Refugee Convention — serious non-political crimes — acts contrary to the purposes and principles of the United Nations — Articles 3 and 8 of the ECHR
The Claimant, a Palestinian from Gaza, claimed that he had been forced to join the ‘Jihad Islamic Movement’ in Gaza, had been trained in the use of weapons and the manufacture of bombs and had prepared to carry out a suicide bombing in Israel. He was arrested and detained by the Israeli authorities before he could carry out that plan. He claimed that he had been tortured and had disclosed information about other members of the ‘Jihad Islamic Movement’. The Israeli authorities placed his name on a list of people considered to pose a threat to the peace process and asked the Palestinian Authority to imprison him for twenty-five years or to expel him. He chose expulsion. In July 1997 he was granted leave to enter the United Kingdom as a student. The following month he claimed asylum and said that he had converted to Christianity. He was not interviewed in connection with his claim until June 2003. His application was refused in July 2003.
The Adjudicator allowed his appeal on asylum grounds and under Articles 3 and 8 of the ECHR. The Secretary of State for the Home Department appealed to the Immigration Appeal Tribunal on asylum grounds and under Article 8 of the ECHR. The Secretary of State did not challenge the decision to allow the appeal under Article 3 of the ECHR.
Held, making an order for remittal (which took effect as an order for reconsideration by the Asylum and Immigration Tribunal by virtue of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005, Article 5(1) and (2)):
(1) although the Adjudicator had erred in law in concluding that the appeal should be allowed on asylum grounds and under Article 8 of the ECHR, the error was not material in view of the unchallenged decision to allow the appeal under Article 3 (paras 21, 24, 25, 27 and 28);
(2) the Adjudicator had erred in failing to consider Article 1F as excluding protection under the Refugee Convention; an Adjudicator was under a duty to consider exclusion where there was material before him which raised obvious issues under Article 1F, even if the matter were not raised in the Secretary of State's refusal letter; there was an obvious question of exclusion under Article 1F(b) on the ground of the Claimant's commission of serious non-political crimes and under Article 1F(c) on the ground of his commission of acts contrary to the purposes and principles of the United Nations: Gurung (Refugee exclusion clauses especially 1F(b)) Nepal CG* [2002] UKIAT 04870 and KK (Article 1(F)(c)) Turkey [2004] UKIAT 00101 followed (paras 46–50 and 61–68).
Determination and Reasons
Mr Justice Ouseley, President
[1] This is an appeal against the determination of an Adjudicator, Mr R J Oliver, promulgated on 2 December 2003. He allowed the Claimant's appeal on asylum and human rights grounds against the Secretary of State's decision in July 2003 to refuse asylum and to give removal directions for Palestine. The Secretary of State appeals against that decision. In granting permission to appeal, the Vice President commented that it was ‘surprising that exclusion under the Refugee Convention had not been raised’.
[2] The Claimant is a Palestinian originally resident in Gaza, born in 1975, who entered the United Kingdom in 1997 on a student visa. He was given two months' leave to enter and claimed asylum after a month. He was not interviewed until June 2003.
[3] The Claimant's case was that when he was fourteen he had been asked to join the ‘Jihad Islamic Movement’, and had no choice but to join. He underwent two years' intensive training in Islamic rules and in understanding those governments, including Israel, which did not adhere to Islamic precepts. When he was sixteen, he was taken for specialist commando-style ‘army’ training in using guns, and making bombs; he was selected for his fitness and strength.
[4] The Claimant denied that his asylum interview showed these claims to be false: the delay of six years before the interview had affected the detail of his memory; and the interpreter had been unable to translate accurately the technical language which he used to name parts of guns, and her general level of competence was very low because she came from Sudan and spoke a different dialect. The Claimant tried to elaborate on his technical knowledge to the Adjudicator in answer to questions from his own counsel.
[5] From the age of eighteen to twenty, he transported guns as required. But the Israeli inspired crackdown on Hamas in 1995 led to arrests being made by the Palestinian authorities. One of his group was arrested and, under torture, revealed the Claimant's name.
[6] In consequence, when on his way to carry out a suicide bombing mission, the Claimant was arrested at an Israeli checkpoint and thereafter routinely and severely tortured for six months. He gave away the names and details of the activities of those working with him for the Palestinian cause. The torture then stopped but he was kept in detention for a further eighteen months.
[7] An agreement between Israel and the Palestine Authority led to an exchange of prisoners. The Claimant's good conduct led him to be transferred to a Palestinian prison. His time in detention caused him to rethink his ways and to decide to leave the Jihad Islamic Movement. But he knew that because arrests had followed the information which he had given under torture, he would be regarded as a traitor and killed by the JIM.
[8] However, notwithstanding the good conduct which caused his transfer, the Israelis put his name on a list of thirteen men who were dangerous to the peace process, asking that the Palestine Authority expel him or jail him for at least twenty-five years. He accepted the expulsion option from the Palestine Authority; he could not then return. A friend of his father in the Palestine Secret Service arranged for him to receive a student visa from the British authorities in Jerusalem. He was released shortly before the visa was granted, and was given two weeks to leave the country.
[9] He claimed to be in fear of persecution now because between his arrival on 23 July 1997 and the expiry of his visa on 22 September 1997, he had converted from Islam to Christianity. He was baptised on 20 September 1997. He feared execution by Muslim fanatics. His brother and sister had disowned him.
[10] He also claimed that his disclosure under torture of the names of Palestinians involved with the JIM would mean that he would be seen as a traitor. His mother was having a hard time because of it, and he was being sought in Gaza. An imam who had helped to train him and Secret Service men were looking for him.
[11] If he returned he would be detained for at least twenty-five years or worse.
[12] He had had various jobs in the United Kingdom, mainly in private security firms including one involved in aviation. The Adjudicator was not shown the CV supplied, if any, for those posts.
[13] The Secretary of State had wholly rejected the credibility of the Claimant. The Adjudicator found him to be ‘transparently honest’, a ‘highly trained commando’, detained when he was about to attempt a suicide mission.
[14] The Adjudicator was referred to and accepted background evidence from Human Rights Watch which was said to show that Israeli soldiers repeatedly used indiscriminate and excessive force, ‘killing civilians wilfully’ and used Palestinian civilians as human shields. The Adjudicator then referred to what he called ‘tit for tat’ attacks by ‘armed Palestinians’ on Israeli settlers in the Occupied Territories.
[15] He noted that ‘armed Palestinians’ killed suspected collaborators with Israel and that there were internal strains in Palestine between various armed groups and with the Palestine Authority. There was no effective justice system. Israelis could enter the Occupied Territories at will to ‘retaliate against suicide bombings by Hamas and the JIM on its territories with impunity’.
[16] The Adjudicator accepted that the Claimant would be known in Gaza to the Israelis and had enemies in Arafat's then government. He would be arrested, and worse might follow. The Adjudicator concluded that return in those circumstances would breach Article 3.
[17] The Adjudicator then considered the background evidence about the way in...
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