AH (Article 1F(B) - "Serious") Algeria [Asylum and Immigration Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | The Hon Mr Justice Blake,Gleeson,King,Blake J,King UTJ,Gleeson UTJ |
| Judgment Date | 05 August 2013 |
| Neutral Citation | [2013] UKUT 382 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 05 August 2013 |
[2013] UKUT 382 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The President, The Hon Mr Justice Blake
Upper Tribunal Judge Gleeson
Upper Tribunal Judge King
For the Appellant: Naina Patel, instructed by Luqmani Thompson & Partners
For the Respondent: Paul Greatorex, instructed by Treasury Solicitors
AH (Article 1F(b) — ‘serious’) Algeria
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1. In considering exclusion under Article 1F(b), the test is whether there are ‘serious reasons to consider that the appellant is guilty of conduct that amounts to a serious non-political offence’. ‘Serious’ in this context has an autonomous international meaning and is not to be defined purely by national law or the length of the sentence. Guidance on the meaning of ‘serious’ in relation to Article 1F(c) may be found in the decision of the Supreme Court in Al-Sirri and another v Secretary of State for the Home Department [2012] UKSC 54 at paragraph [75]. Arts 1F(a) and (c) serve to illustrate the level of seriousness required to engage Article 1F(b); the genus of seriousness is at a common level throughout.
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2. A claimant's personal participation in acts leading to exclusion under Article 1F(b) must be established to the ordinary civil standard of proof, that the material facts are more probable than not. The appellant's guilt need not be proved to the criminal standard. Personal participation in a conspiracy to promote terrorist violence can be a ‘serious crime’ for the purpose of Article 1F(b). Where the personal acts of participation by a claimant take the form of assistance to others who are planning violent crimes, the nature of the acts thereby supported can be taken into account. The relevant crime may be an agreement to commit the criminal acts (in English law a conspiracy), rather than a choate crime.
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3. In the absence of some strikingly unfair procedural defect, United Kingdom courts and tribunals should accord a significant degree of respect to the decision of senior sister Courts in European Union legal systems; there is a particular degree of mutual confidence and trust between legal systems that form part of the same legal order within the European Union. However, the ultimate question of whether the conduct of which the United Kingdom court or Tribunal is satisfied is sufficiently serious to justify exclusion is a matter for the national court or tribunal.
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4. The examination of seriousness should be directed at the criminal acts when they were committed, although events in the supervening passage of time may be relevant to whether exclusion is justified: a formal pardon, or subsequent acquittal, or other event illuminating the nature of the activity may be relevant to this assessment. Despite suggestions to the contrary by respected commentators, it does not appear to be the case that service of the sentence, or indeed a final acquittal, brings the application of the exclusion clause to an end.
1. The appellant is an Algerian citizen who cannot return to Algeria as his life and liberty are in jeopardy and it is recognised that he has a well founded fear of persecution there. He arrived in the United Kingdom in 2001 and claimed asylum and humanitarian status. Those claims were refused because the Secretary of State concluded that the exclusion clauses applied in both cases.
2. The appellant has been granted periods of discretionary leave for six months at a time and there are no removal directions. He appealed against the refusal of status in 2006 and his appeal has not been finally resolved since. In the appeal he seeks to upgrade his status from discretionary leave to remain to that of refugee or humanitarian status under Council Directive 2004/83/EC (the Qualification Directive).
3. The basis for his exclusion was his conviction in France in 1999 of the offence of ‘participation à une association de malfaiteurs en relation avec une entreprise terroriste’ (‘participation in a criminal association with a terrorist enterprise’).
4. He had been acquitted of this offence by the Tribunal de Grand Instance on 30 June 1998 but given a six month sentence for a lesser offence of possession and use of false documents. The prosecutor appealed the acquittal and, on a re-hearing before the Cour d'Appel, he was convicted of the above offence and sentenced to two years' imprisonment that had already been served on remand.
5. The particulars of charge, translated from the French, were :
‘In Paris, Nanterre, and the Lyon region, during 1994, 1995 and 1996, more precisely, until October 1995 at any rate on French territory for an unspecified length of time, having been involved in a gang formed or arrangement set up in view of the preparation- demonstrated by one or more material facts - of acts of terrorism in connection with an individual or collective undertaking which aimed to seriously disturb public order through intimidation or terror. In Paris, during 1995, at any rate on French territory for an unspecified length of time, committed a fraudulent manipulation of the truth likely to cause damage to documents issued by a public authority in view of granting a right, identity or capacity, granting a permission; in the case in point, a passport in the name of Gutierrez and an identity card in the name of Wane and having made use of those documents. With the additional circumstance that all of the above-mentioned offences were committed directly or indirectly in connection with an individual or collective undertaking which aimed to seriously disturb public order through intimidation or terror.’
6. Article 1F of the Refugee Convention1. is in the following terms:
“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.”
7. The Secretary of State relies principally on Article 1F(b) although she also prays in aid Article 1F(c).
8. Here, there are clearly serious reasons for considering that the appellant has committed a crime outside the country of his refuge prior to his admission to the United Kingdom; the French Cour d'Appel has convicted him of such a crime and its judgment is before us. It is not contended that this conviction was for a political crime as it was a crime committed against the law of a host state to which the appellant had fled in 1992 from Algeria. France is, of course, both a Member state of the European Union and a party to the European Convention on Human Rights.
9. The sole issue under Article 1F(b) is whether the crime of which he is convicted is a serious one. This apparently simple issue has proved difficult to resolve. It is common ground that the offence of possession/use of false identity documents alone is not sufficiently serious to lead to exclusion from the Refugee Convention, whilst personal participation in a terrorist conspiracy against the French state probably would be.
10. In 2006 the Asylum and Immigration Tribunal dismissed his appeal but reconsideration was ordered. On 19 January 2010, the AIT again dismissed the appeal, but in doing so used the concept of “membership of a group”, following Gurung (Exclusion-Risk-Maoists) Nepal [2002] UKIAT 04870 (starred) [2003] Imm AR 115, to attribute to the appellant the terrorist activities of others and found him to be excluded under both Articles 1F(c) and 1F(b).
11. The decision of the Supreme Court in R (JS (Sri Lanka)) v Secretary of State for the Home Department [2011] 1 AC 184 disapproved this approach to the application of the exclusion clause and the authority of Gurung, on which it had been based. The Court of Justice of the European Union had similarly concluded that individual participation in crime was needed in Bundesrepublik Deutschland v B and D ( Cases C-57/09 and C-101/09) [2011] Imm AR 190, when it considered Article 12 of the Qualification Directive, where the same words are used as in Article 1F.
12. The AIT's second decision in the present case was set aside by the Court of Appeal on 3 April 2012 (AH (Algeria) v Secretary of State [2012] EWCA Civ 395) and the appeal remitted to the Upper Tribunal for remaking for a third time.
13. Sullivan LJ gave the leading judgment. He observed:
“18. If the underlying objective for the purpose of Article 1F is to establish the individual's personal role and responsibility, the nature of the particular offence with which this Appellant was charged presents a problem. In “The Investigation and Prosecution of Terrorists Suspects in France”, an independent report commissioned by the Home Office, dated November 2006, Professor Jacqueline Hodgson says that the expanded definition of terrorism in 1996:
“…widened the scope of the magistrates’ powers significantly, allowing them to open investigations into those involved with terrorist organisations (within and outside France) before any terrorist act had taken place. …This offence pushes back the boundary of criminality, enabling the judge to act very much earlier when no act has been committed, but when the ‘suspect’ is perhaps buying materials, is in the very early stages of preparation towards a terrorist act, or is simply associating with a group established to prepare acts of terrorism – even when the judge is unable to identify a specific date or terrorist target to which these activities are...
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