R Yasser Al-Siri v The Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Underhill,Lord Justice Phillips,Sir Stephen Irwin
Judgment Date08 February 2021
Neutral Citation[2021] EWCA Civ 113
Date08 February 2021
Docket NumberCase No: C4/2019/2729

[2021] EWCA Civ 113

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Richard Clayton QC, sitting as a Deputy Judge of the High Court

CO/4153/2018

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Underhill

(Vice-President of the Court of Appeal, Civil Division)

Lord Justice Phillips

and

Sir Stephen Irwin

Case No: C4/2019/2729

Between:
The Queen on the Application of Yasser Al-Siri
Claimant/Respondent
and
The Secretary of State for the Home Department
Defendant/Appellant

Robin Tam QC and Julie Anderson (instructed by the Treasury Solicitor) for the Appellant

Raza Husain QC and Alasdair Mackenzie (instructed by Birnberg Peirce Ltd) for the Respondent

Hearing dates: 16 and 17 June 2020

Approved Judgment

Lord Justice Phillips

Introduction

1

On 16 April 2015 the First-tier Tribunal of the Immigration and Asylum Chamber (“the FTT”) decided that the respondent (“YAS”) was not excluded from the Refugee Convention 1 (“the Convention”) under Article 1F(c) and that he was a refugee. That decision (“the FTT Decision”) was upheld by the Upper Tribunal on 17 August 2016 following an appeal by the appellant (“the Home Secretary”). On 4 August 2017 the Court of Appeal refused the Home Secretary permission to appeal.

2

On 11 July 2018 the Home Secretary decided (“the Decision”) that:

i) notwithstanding the FTT Decision, there were reasonable grounds for regarding YAS as a danger to the security of the United Kingdom within Article 33(2) of the Convention and that he therefore did not qualify for the grant of refugee status under paragraph 334(iii) of the Immigration Rules; and

ii) YAS would be granted Restricted Leave to remain in the United Kingdom, for a period of six months, on the grounds that to remove him would breach his rights under Article 3 of the European Convention on Human Rights. Such leave was subject to conditions requiring YAS to report quarterly and to obtain the Home Secretary's written consent before changing his residence, entering employment or engaging in business or enrolling on any course of study.

3

On 10 October 2018 YAS applied for judicial review of the Decision. On 14 June 2019 Richard Clayton QC, sitting as a Judge of the High Court (“the Judge”), determined that the Decision, to the extent that it refused YAS refugee status, was unlawful, there being insufficient new facts to justify a departure from the previous ruling of the FTT that he was a refugee. Further, the Judge ruled that YAS was entitled to challenge the Decision by way of judicial review proceedings rather than appealing once more to the FTT. The Judge further determined (whilst emphasising that he had very little factual information and heard limited argument on the issue) that, in any event, the conditions imposed on YAS breached the UK's obligations under the Convention even if Article 33(2) did apply to him.

4

Accordingly, by an order dated 10 October 2019, the Judge quashed the Decision.

5

The Home Secretary appealed that order on six grounds, permission being granted on all of them by Dingemans LJ. Grounds 1 to 4 challenged the finding that the refusal to grant refugee status was unlawful. Grounds 5 and 6 related to the finding that the imposition of conditions was a breach of Convention obligations and, as explained in paragraphs 10.1 and 10.2 of the Home Secretary's skeleton argument, would only arise for consideration if the Home Secretary's appeal in relation to the application of Article 33(2) to YAS was allowed.

6

YAS resisted all of the grounds until the end of the first day of the hearing of the appeal. At that point his leading counsel, Mr Husain QC, announced that YAS would not resist grounds 5 and 6 (assuming that they arose for decision).

The background

YAS's asylum claim

7

YAS is a citizen of Egypt and is a long-standing opponent of the regime of that country. In March 1994 he was convicted in his absence by the Supreme Military Court of Egypt for conspiracy to kill the then Prime Minister of Egypt (a conviction which was probably secured by the use of torture 2) and sentenced to death.

8

In April 1994 YAS arrived in the United Kingdom and claimed asylum.

The relevant provisions relating to refugees and refugee status

9

The Convention does not have the force of a statute in the United Kingdom, but has been effectively incorporated into domestic law for immigration purposes: see EN (Serbia) v Secretary of State for the Home Department [2010] 1 QB 633 at [58]. In particular, the Convention defines an asylum claim for the purposes of our law (see the current version of section 82 of the Nationality, Immigration and Asylum Act 2002 (“the NIAA”)) and has a status superior to the Immigration Rules (see section 2 of the Asylum and Immigrations Appeals Act 1993).

10

Article 1A(2) of the Convention provides that the term “refugee” applies to any person who:

“Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…”

11

However, a person who would otherwise qualify as a refugee within the above definition will be excluded from the scope of the Convention altogether if Article 1F applies, the relevant provision in this case being 1F(c):

“The provisions of [the] Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

….

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”

12

If a person is a refugee under the provisions of the Convention, Article 33(1) prohibits the expulsion or return (“refoulement”) of that person to territories where they would be at risk of persecution. However, that prohibition is qualified by Article 33(2) as follows:

“The benefit of the present provision may not, however, 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.”

13

As the Judge pointed out in paragraphs [6] and [7] of his judgment, Article 1F essentially looks backwards at what a person has done in the past and, if applicable, takes the person out of the scope of the Convention and its protections altogether. In contrast, Article 33(2) looks forward, focusing on the danger a refugee poses to the country in which he is located. If applicable, the person remains a refugee and has the protection of the Convention, save that they may be subject to refoulement.

14

Paragraph 334 of the Immigration Rules provides as follows:

“An asylum applicant will be granted refugee status in the United Kingdom if the Secretary of State is satisfied that:

(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;

(ii) they are a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii) there are no reasonable grounds for regarding them as a danger to the security of the United Kingdom; and

(iv) having been convicted by a final judgment of a particularly serious crime, they do not constitute a danger to the community of the United Kingdom;

(v) refusing their application would result in them being required to go … in breach of the [Convention], to a country in which their life or freedom would be threatened on account of their race, religion, nationality, political opinion or membership of a particular social group.”

15

Paragraph 336 provides that an application which does not meet the criteria set out in paragraph 334 will be refused.

The progress of YAS's asylum claim

16

YAS's asylum claim was eventually rejected on 11 October 2000 on the ground that Article 1F(c) applied to him. The Home Secretary accepted, however, that YAS was at risk of persecution in Egypt, engaging his Article 3 rights in relation to any return to that country. In 2004 YAS was granted discretionary leave to enter, which was thereafter extended for period of six months at a time. Under section 83 of the NIAA, a section since repealed 3, after a year of discretionary leave YAS acquired a right to appeal the decision to refuse him asylum. YAS duly appealed in September 2006.

17

On 5 December 2006 the Secretary of State issued a fresh decision letter, giving reasons for refusing YAS asylum. The letter set out that an individual is not entitled to the protection of Article 33(1) if either Article 1F or Article 33(2) applies to them. The letter concluded that Article 1F(c) was applicable to YAS, based on allegations as to his involvement with terrorist organisations and offences. No reliance was placed on Article 33(2).

18

The most important allegation was that he had conspired in the murder of General Ahmad Shah Masoud in Afghanistan on 9 September 2001, two days before the 9/11 atrocities. It was said that General Masoud had warned of an impending Al-Qaeda attack on the United States and that it was believed that his assassination may have been ordered by Osama bin Laden to cut off the most obvious source of support for US retaliation against such an attack. YAS was indicted at the Central Criminal Court for conspiracy to murder, but the charges were dismissed by the Common Serjeant on the basis that the evidence against YAS was consistent with...

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  • R (on the application of Edmir Xhelilaj) v Secretary of State for the Home Department
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    • Queen's Bench Division (Administrative Court)
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    ...in the area of public law, including immigration. The Court of Appeal applied those principles very recently in R (Al-Siri) v SSHD [2021] EWCA Civ 113. 43 That case concerned whether the Defendant could decide under paragraph 334 (iii) of the Immigration Rules that the claimant in that cas......

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