AH (Algeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Rix,Lord Justice Ward |
| Judgment Date | 02 April 2012 |
| Neutral Citation | [2012] EWCA Civ 395 |
| Docket Number | Case No: C5/2011/1301 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 April 2012 |
[2012] EWCA Civ 395
Lord Justice Ward
Lord Justice Rix
and
Lord Justice Sullivan
Case No: C5/2011/1301
AA/03394/2006
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
SENIOR IMMIGRATION JUDGE LATTER AND
SENIOR IMMIGRATION JUDGE P.R. LANE
Royal Courts of Justice
Strand, London, WC2A 2LL
Raza Husain QC and Amanda Weston (instructed by Messrs Luqmani Thompson & Partners) for the Appellant
Alan Payne (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 30 th & 31 st January 2012
Introduction
This is an appeal against the determination dated 19 th January 2010 of the Asylum and Immigration Tribunal (Senior Immigration Judges Latter and Lane) confirming on reconsideration the Respondent's decision that the Appellant is excluded from the Refugee Convention under Articles 1F(b) and (c).
Article 1F
Article 1 of the Refugee Convention defines the term "Refugee". The Respondent accepts that the Appellant falls within the definition of a refugee in Article 1A. Article 1F provides:
"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."
The Qualification Directive
Article 12(2) of Council Directive 2004/83/EC ("the Qualification Directive") excludes a third country national or a stateless person from being a refugee
"where there are serious reasons for considering that;
a) he or she 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 or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;
c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.
3. Paragraph 2 applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein."
Factual Background
The Tribunal summarised the material facts as follows in paragraphs 4 – 11 of its determination:
"4…The appellant was born in 1963 and is a citizen of Algeria. In August 1992 there was a bombing at Houari Boumediene Airport in Algiers. In October 1992 the appellant left Algeria for France on business. He was told that the Algerian authorities were seeking him for questioning in connection with the bombing and in 1993 he was convicted in Algeria in his absence of complicity in, or involvement in the explosions and sentenced to death.
5. The appellant remained in France. In November 1994 he was granted a UN Stateless Person's Document but the French authorities refused to recognise it. He was subsequently advised by the Val de Marne Prefecture that he could seek asylum. The appellant attended the offices of OFPRA to make his application. In August 1995 he returned to the Prefecture to present his new OFPRA asylum seeker card. Two officials from the DST (Division Securite du Territoire) attended and arranged to interview him. The appellant claims that when interviewed in August 1995 he was pressured to become an informant and threatened with deportation. As he was in fear of being deported he obtained a false passport but on 3 October 1995 he was arrested of suspicion of possessing false documents and imprisoned on remand.
6. He was charged with the following offences (taken from the translation of the judgment of the Paris Court of Appeal, more fully set out in paragraph 2 [of the Tribunal's determination]
"At Paris, Nanterre, and in the Lyon region, in the course of 1994, 1995, 1996, specifically until October 1995 and in any event in France since an unspecified time, been a member of an association created or a grouping formed with a view to the preparation, taking the form of one or more material acts, of acts of terrorism relating to an individual or collective enterprise intended to seriously disrupt public order by intimidation or terror; in Paris, during 1995, and in any event since an unspecified time, made a fraudulent representation such as to adversely affect documents issued by a department of the public administration for the purpose of attesting a right, an identity or a capacity or to grant an authorisation, namely a passport in the name of Gutierrez and an identity card in the name of Wane and with using the aforementioned document.
All of which offences referred to above were committed as or in connection with an individual collective enterprise intended seriously to disrupt public order by intimidation or terror.
7. The appellant was tried with others in June 1998 at the Tribunal de Grande Instance de Paris. He was convicted of the offence of falsifying administrative documents and sentenced to six months in prison but acquitted of the offence of being a member of an association or grouping formed with a view to preparing acts of terrorism. However, the prosecution appealed against the Tribunal's decision and the appeal was heard by the Paris Court of Appeal. The Court overturned the acquittal and substituted convictions as imposing a total sentence of two years with an order that the appellant leave France.
8. It made the following findings in respect of the appellant. It noted from the chronology of events that the appellant, after arriving in France, waited until his tourist visa had expired before obtaining a residence permit. He did not make an asylum application until August 1995. After the filing of that claim deportation was prohibited and, in the court's view, there was therefore no justification for the possession of false documents. The appellant had admitted having taken steps to obtain false documents, a false passport for himself and a false identity card for his brother, before the expiry of his residence permit, the making his asylum application and his interview with the officers of the DST in August 1995. It was the court's finding that it was clear that the appellant was to use the false documents to travel clandestinely within and outside France and that the reason why he subsequently entrusted the documents to his cousin was his fear that the French police would attend his home as a result of his activities in France since his arrival in October 1992.
9. The appellant had said that he knew no one by the name of Ali Drif but the court found that this was untrue because there was evidence of contact between the appellant, Ali Drif and another man, Mehdi Ghomri. The appellant had also claimed not to know Ghomri but he was forced to admit that he recognised him when Ghomri had admitted that he knew the appellant. The Court rejected the appellant's claim that he only had a remote relationship with Ghomri, because that appeared to be inconsistent with the appellant's anxiety to make contact with him. Ghomri was found to be in contact with a member of the Lyons GIA group. The appellant had admitted having tried to obtain information about the circumstances of Ali Ben Fattoum, who had been questioned in relation to the investigation of Karim Koussa, a member of the Lille GIA group assigned to commit an attack on the Wazemmes Market. The appellant had not disputed that he was in contact with Ali Touchent, the main leader of the group assigned to commit an attack on the market.
10. The Court held that:
"Although it is true, as the trial court stated in the judgment appealed from, that the finding that AH was involved in and possibly guilty of the attack on Algiers Airport in 1992 is not within the competence of the French courts, and (although it is true) that his involvement cannot serve to establish that he was a party to a conspiracy relating to a terrorist enterprise operating in France in 1994 and 1995, this Court must find, contrary to the trial court, that [the appellant] was indeed during that period and whilst he was in France, in close contact with men implicated in terrorist acts committed in the Lyon region and in the north of France, and that his concern to ascertain whether his summons was in connection with those of Ghomri and Kheder shows that they belonged to a common organisation.
The Court therefore does not share the analysis of the trial court which led it to acquit him of the charge of being party to a conspiracy or to a grouping formed with a view to committing terrorist acts, and it was so that he could travel in connection with unlawful activities of that organisation or grouping, where necessary to escape any investigations which might be carried out by the French police as a result of acts committed by that organisation or grouping in France, that the acts of falsification of administrative documents and use of falsified administrative documents found by the trial court were committed.
The terms of the judgment appealed from relating to the guilt...
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Table of Cases
...AH (Algeria) v Secretary of State for the Home Department, [2012] EWCA Civ 395 .............................................................509, 514, 689 AH (Algeria) v Secretary of State for the Home Department, [2015] EWCA Civ 1003 ...............................................................