AE (Iraq) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Birss,Lord Justice Warby,Lady Justice Elisabeth Laing |
| Judgment Date | 22 June 2021 |
| Neutral Citation | [2021] EWCA Civ 948 |
| Date | 22 June 2021 |
| Docket Number | Case No: C5/2020/1036/AITRF |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 948
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judges Perkins and Craig
Appeal Number: PA/11488/2017
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Elisabeth Laing
Lord Justice Birss
and
Lord Justice Warby
Case No: C5/2020/1036/AITRF
Alasdair Mackenzie (instructed by Migrant Legal Action) for the Appellant
Carine Patry (instructed by Government Legal Department) for the Respondent
Hearing date: 20 May 2021
Approved Judgment
Introduction
The appellant is a national of Iraq. On New Year's Eve 2007, aged 15, she arrived in the United Kingdom with her mother and sisters to join her father, who was already here. In due course, she was granted discretionary leave to remain. During that period, she posted online statements encouraging jihad. These led to a sentence of imprisonment of 3 1/2 years. The respondent (the SSHD) decided to deport the appellant and, when she claimed asylum, refused her application. The SSHD has granted her Restricted Leave to remain, on the basis that returning her to Iraq would expose her to a risk of ill-treatment contrary to Article 3 of the European Convention on Human Rights. But the SSHD determined that the appellant's criminal conduct meant that she did not enjoy the protection of the Geneva Convention on the Status of Refugees (the Refugee Convention). This appeal concerns her claim to protection as a refugee.
The First-Tier Tribunal (FTT) allowed an appeal against the SSHD's decision to refuse protection. The Upper Tribunal (UT) allowed an appeal by the SSHD. On this second appeal, brought by permission of my Lady, Elisabeth Laing LJ, the appellant contends that the UT was wrong. The first ground of appeal is excess of jurisdiction: the FTT was the primary decision-maker; the UT was not entitled to interfere with the FTT's decision unless it identified an error of law, which it failed to do; it was not enough that the UT disagreed with the FTT decision, which should have been allowed to stand.
For the reasons that follow, I would allow the appeal on that ground and restore the decision of the FTT. I would reject the SSHD's interpretation of the UT's judgment, which is that in substance the UT held that the FTT's decision was irrational. If I were wrong about that, I would allow the appeal on the second ground of appeal: that the UT's decision involved a misunderstanding of the evidence and a misapplication of the relevant test. In my judgment, the FTT's decision was rational and in all other respects lawful, and the UT was wrong in law to interfere with it.
The legal framework
As a foreign national sentenced to imprisonment for 12 months or more the appellant is a “foreign criminal” within the meaning of s 32 of the UK Borders Act 2007 (UKBA). Section 32(5) of the UKBA requires the SSHD to make a deportation order in respect of a foreign criminal, but s 33(2)(b) provides that this obligation does not apply where removal would breach the United Kingdom's obligations under the Refugee Convention.
Generally, the Refugee Convention prohibits the compulsory return of a refugee to a territory where they risk persecution (refoulement). A refugee, for this purpose, is someone who is outside their country of nationality owing to a well-founded fear of being persecuted there for a reason set out in the Convention, and who is unable or owing to such fear unwilling to avail themselves of the protection of that country: Article 1A. It has been accepted by the SSHD throughout that the appellant satisfies this criterion. The issues have been whether the appellant is excluded from the protection of the Convention by Article 1F(c) or falls within the exception to protection provided for by Article 33(2).
Article 33(2) provides that protection from refoulement under the Convention may not be claimed by
“a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
It will be unnecessary to consider this provision in any detail. The SSHD has never suggested that the appellant is a danger to national security. It was suggested that she is a danger to the UK community, but the FTT held that she is not. The UT dismissed the SSHD's appeal against that decision, and there is no further appeal. We are concerned solely with Article 1F(c).
Article 1F(c) provides that an individual is excluded from the protection of the Convention altogether if there are
“… serious reasons for considering that … [s]he has been guilty of acts contrary to the purposes and principles of the United Nations”.
As this wording makes clear, Article 1F(c) is not concerned with present danger but is entirely backward-looking. There has been no issue at any stage of these proceedings about the right approach to be adopted as a matter of law, when applying this provision. The governing principles are identified in three decisions: Al-Sirri v Secretary of State for the Home Department [2009] EWCA Civ 222, [2009] Imm AR 624 ( Al Sirri (CA)); the same case in the Supreme Court, [2012] UKSC 54, [2013] AC 745 ( Al-Sirri (SC)); and Youssef v Secretary of State for the Home Department [2018] EWCA Civ 933 ( Youssef).
In Al-Sirri (SC) [16] the Supreme Court approved the approach set out by the United Nations High Commission for Refugees in a Background Note of 2003, in these terms:
“The article should be interpreted restrictively and applied with caution. There should be a high threshold ‘defined in terms of the gravity of the act in question, the manner in which the act is organised, its international impact and long-term objectives, and the implications for international peace and security’. And there should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character.”
Lady Hale and Lord Dyson went on to say this, at [37–38]:-
“37. The United Nations Security Council has declared that ‘acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations’ and this is repeated in recital 22 to the Qualification Directive. But it has done so in a context where there is as yet no internationally agreed definition of terrorism, no comprehensive international Convention binding Member States to take action against it, and where the international declarations adopted by the General Assembly are headed ‘Measures to eliminate international terrorism’. Above all, however, the principal purposes of the United Nations are to maintain international peace and security, to remove threats to that peace, and to develop friendly relations among nations. It is also noteworthy that the CJEU, despite recital 22 to the Directive, consistently referred to international terrorism, when discussing article 12(2)(c) in B and D.”
38. In those circumstances, it is our view that the appropriately cautious and restrictive approach would be to adopt para 17 of the UNHCR Guidelines:
‘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. Crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights would fall under this category.’”
The Supreme Court also confirmed that this approach is unaffected by domestic legislation on the topic. Although s 54 of the Immigration, Asylum and Nationality Act 2000 would appear on its face to expand the notion of terrorist activity for this purpose, an international instrument such as the Refugee Convention is autonomous; its scope cannot be defined by domestic legislation; and to read s 54 literally would be inconsistent with Article 12(2)(c) of the EU Qualification Directive, which mirrors Article 1F(c): see Al-Sirri (SC) [36], approving the observations of Sedley LJ in Al-Sirri (CA) [28–29]. When pressed on this point in her oral submissions, Ms Patry accepted on behalf of the SSHD that this was the position.
In Youssef, this Court considered and applied the principles identified in Al-Sirri (SC) to the case of an Egyptian national resident in the UK, who was said to have disseminated online statements supportive of terrorism over a 10-year period. It was not alleged that he had incited or encouraged any specific piece of violence, and it was accepted that no link could be shown between his conduct and any specific act of terrorism. But in sermons and other material on the internet which had received hits ranging between 12,000 in a week to 80,000 over an undefined period he had glorified Al Qaeda and its past and present leaders, applauded the organisation's international reach and aspirations, particularly attacks on the US, and implicitly encouraged his audience to emulate the leaders of Al Qaeda: see Youssef [2], [10–15]. The UT accepted the case for the SSHD, that the incitement and encouragement of terrorism “in itself” was contrary to the purposes and principles of the UN, and serious enough to cross the Article 1F(c) threshold: [17–21]. The issue before this Court was whether the UT had “considered sufficiently closely and fully the seriousness and impact of Youssef's conduct, and reached...
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Table of Cases
...AE (Iraq) v Secretary of State for the Home Department, [2021] EWCA Civ 948 .........................................................................................567 AH (Algeria) v Secretary of State for the Home Department, [2012] EWCA Civ 395 .................................................