Hany El-Sayed El-Sebai Youssef v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Irwin,Lady Justice Rafferty |
| Judgment Date | 26 April 2018 |
| Neutral Citation | [2018] EWCA Civ 933 |
| Date | 26 April 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/3163 — Youssef |
[2018] EWCA Civ 933
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UT Judges Allen and Kopieczek
AA/11292/2012
Case No: T2/2017/0034 — N2
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
Mr Justice Flaux, Judge Ockleton and Ms Jill Battley
SC/125/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
Lord Justice McCombe
and
Lord Justice Irwin
Case No: C5/2016/3163 — Youssef
Edward Fitzgerald QC and Alasdair Mackenzie (instructed by Birnberg Peirce Limited) for Youssef
Andrew O'Connor QC (instructed by the Government Legal Department) for The Secretary of State for the Home Department
Danny Friedman QC and Edward Grieves (instructed by Birnberg Peirce Limited) for N2
Robin Tam QC and Melanie Cumberland (instructed by the Government Legal Department) for The Secretary of State for the Home Department
Hearing dates: 17 and 18 January 2018
Judgment Approved
Introduction
In these linked cases, the Respondent argues that each Appellant was properly excluded from reliance on (and the benefit of) the United Nations Refugee Convention 1951 [“the Refugee Convention”], as their differing activities were sufficient to satisfy the test in Article 1F(c) of the Convention: each “has been guilty of acts contrary to the purposes and principles of the United Nations”.
The Appellant Youssef is an Egyptian national, who arrived in the United Kingdom in 1994. He has a complex background, which has included the accusation (now no longer maintained for the purposes of these proceedings) that he has been involved in Islamic terrorist activities. However, it is said that he has published many sermons and other material on the internet glorifying Al Qaeda, and past and present leaders of Al Qaeda. Although there are competing submissions as to the proper emphasis and understanding to be applied to this material, there is little or no dispute as to the content. In a decision of the Upper Tribunal (Immigration and Asylum Chamber) [“UTIAC”] of 17 October 2014, they promulgated an error of law decision in relation to the determination of the First-tier Tribunal of 3 March 2014, and directed that the appeal should remain in UTIAC. In the substantive decision of UTIAC on 12 April 2016, they dismissed the appeal against the Respondent's decision of 27 November 2012, that the Appellant's activities excluded him from the Refugee Convention.
The Appellant N2 is thought to be a Jordanian national. He entered the United Kingdom, it is believed in 2002, on a false passport. His asylum claim was refused later that year as being fraudulent, and his appeal dismissed in 2003. Nevertheless, he remained in the UK. In 2007, he received a total of nine years' imprisonment for offences contrary to the Terrorism Act 2000. He was sentenced on the basis that he was a sleeper for a terrorist organisation. His applications for permission to appeal against conviction and sentence were dismissed by the Court of Appeal (Criminal Division) in November 2008. There followed a complex history of immigration dispute and litigation, which need not concern us. On 10 July 2015, the Respondent served the Appellant with a letter of refusal of asylum and exclusion from refugee status under Article 1F(c). The Appellant appealed, his case being certified so that his appeal was heard by the Special Immigration Appeals Commission [“SIAC”], because of the implications for national security of some of the evidence relied on. SIAC considered the exclusion issue and ruled against the Appellant on 1 December 2016.
By section 7(1) of the SIAC Act 1997, appeals from SIAC to this Court are confined to matters of law.
In neither of these cases will a sustained finding that the Appellant is excluded from the Refugee Convention mean that he faces immediate removal or deportation from the UK. In the case of Youssef, he has been granted successive six-month periods of restricted leave to remain. In the case of N2, the Respondent indicated in the decision letter of 8 July 2015 that she intended to deport the Appellant to Jordan, once suitable assurances were obtained from the Jordanian authorities as to his treatment. However, in July 2016 the Respondent informed the Appellant that it was no longer appropriate to seek deportation at present, and he too was granted six months' restricted leave to remain.
The Refugee Convention: Article 1F
The Convention was promulgated in 1951 and entered into force in 1954. It has been amended only once, by the 1967 Protocol, which removed geographic and temporal limits, and gave the Convention universal coverage.
Article 1 endorses a single definition of the term “refugee”. The fundamental protection represented by the Convention is that preventing the expulsion or return “of the refugee, against his or her will, to the territory where he or she fears threats to life or freedom”. The acknowledged importance of that protection lends emphasis to the exclusion provisions in Article 1F which read:
“F. 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.”
This case is focussed on the third limb, Article 1F(c).
Youssef: the “acts” found
In the substantive appeal before UTIAC, the Respondent sought to sustain the decision on a narrower basis than below. Mr O'Connor QC, who appeared in this case for the Secretary of State before us and below, clarified the approach to the Tribunal, who recorded:
“2. …the essence of her case, which is: that the appellant has knowingly incited and encouraged acts of international terrorism contrary to the purposes and principles of the United Nations and as a consequence he is excluded under Article 1F(c) from the protection the Convention would otherwise afford him.”
It is important to note that it is not alleged that this Appellant incited or encouraged any specific piece of violence, or that any specific act of terrorism can be shown to be linked to the incitement or encouragement. It is accepted that no such specific link can be made. Rather it is argued that, in a sustained fashion over a long period, this Appellant has praised Al Qaeda and its leaders, often by individual name, and encouraged others to follow them and support them.
UTIAC identified the material relied on as “largely speeches, sermons, commentaries, etc … made between 2004 and 2014” [paragraph 27]. Mr O'Connor suggested the material fell into three categories: firstly, praise for and glorification of the activities of leading Al Qaeda terrorists (including Osama bin Laden, Dr Ayman al-Zawahiri (the successor to bin Laden as leader of Al Qaeda), Anwar Al-Awlaki, Nidell Malik Hasan (the perpetrator of the Fort Hood shootings), and others).
The second category consists of material “applauding the international reach and aspirations of Al Qaeda, particularly the targeting of attacks on the US” [UTIAC paragraph 37]. For example, bin Laden was praised as follows:
“—- this hero went forth and stood in defence of his Ummah. He established this idea that has grown strong hands, thanks be to Allah, and these arms that are in Iraq, Afghanistan, Chechnya, Indonesia, Somalia, or Mali and now in Syria! These arms are blessings from this martyr, as we count him to be, and from his pious and devout brethren.”
The third category of material was advanced as amounting to “an implicit encouragement to his audience to emulate” the leaders of violent Al Qaeda terrorism. In this category UTIAC cited:
“38. …the interview of 2 May 2011 the appellant described bin Laden as having “handed over the banner to a generation that will eliminate this falsehood” and asserted that: “the Muslims will be victorious in Afghanistan and Iraq, otherwise how do you explain the Islamic state of Iraq currently in Iraq and the existing Jihadi movements”.
39. In his encomium to bin Laden posted on the same day the appellant said: “If you have killed one Osama, the womb of the Ummah still contains a thousand times a thousand Osamas!”
And also
“Rest in peace, Abu Abdullah! You shall remain an inspiration to ordinary Muslims in the mountains of the Hindu Kush, of Khorosan and of Chechnya, and in the villages, hamlets, rural areas and towns of Iraq, Egypt, Somalia, the land of the two holy sites, the Peninsula, Yemen, Oman, Sudan, Libya, Tunisia, Algeria, the Maghreb, Mauritania, and elsewhere!”
40. In his eulogy to Al-Awlaki of 14 October 2011 the appellant said:
“They imagine that by killing the person, by ending his life and suppressing his spirit, he will disappear and his words will die. They do not know that such words have been taken up by thousands of young people, who are a thousand Al-Awlakis. The womb of the Ummah is fruitful, praise be to Allah. Indeed, one better than Al-Awlaki has been killed and martyred. Was the Sheikh of Islam, the Holy Warrior, Osama bin Laden not martyred last May? Did the Jihad stop? Did the wheels of Jihad ground to a halt? Has the Ummah died? Does the Ummah die with the death of its leaders?”
41. Finally there is to be found in the appellant's remarks following the death of Al-Libi posted on 11 September 2012 the following:
“Our slain are in paradise, Allah...
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