Secretary of State for the Home Department v DD (Afghanistan)

JurisdictionEngland & Wales
JudgeLord Justice Pill,Lord Justice Rimer,Lady Justice Black
Judgment Date10 December 2010
Neutral Citation[2009] EWCA Civ 222,[2010] EWCA Civ 1407
Docket NumberCase No: C5/2008/2765,Case No: C5/2007/2372,([2009] EWCA Civ 222)
CourtCourt of Appeal (Civil Division)
Date10 December 2010

[2009] EWCA Civ 222

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Sedley

Lady Justice Arden and

Lord Justice Longmore

Case No: C5/2007/2372

AA/10668/2006

Between
Yasser Al-Sirri
Appellant
and
Secretary of State for the Home Department
Respondent
and
United Nations High Commissioner for Refugees
Intervener

Mr Andrew Nicol QC and Mr Simon Cox (instructed by Messrs Deighton Guedalla) for the Appellant

Mr Tim Eicke and Mr Iain Quirk (instructed by Treasury Solicitors) for the Respondent

Ms Samantha Knights (instructed by Messrs Baker & McKenzie) for the Intervener

Hearing dates: Thursday 27 and Friday 28 November 2008

Lord Justice Sedley

Lord Justice Sedley

The appeal

1

Yasser Al-Sirri is an Egyptian national, now in his mid-forties, whose application for asylum has been turned down, first by the Home Secretary and then by the AIT, under art. 1F(c) of the 1951 Refugee Convention.

2

When the Convention was drawn up in Geneva in 1951, one of the concerns of the states parties was that use might be made of it by individuals guilty of the kinds of conduct against which the Convention was designed to afford protection. Article 1F accordingly provided as follows:

…..

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.

3

This appeal raises two questions, one of law and one of fact. The question of law is whether art. 1F(c) reaches individual acts of terrorism. The question of fact is whether, if it does, there are “serious reasons for considering” that the appellant has been guilty of such acts.

4

We have had the advantage not only of oral argument from Andrew Nicol QC (with Simon Cox) for the appellant and Tim Eicke for the Home Secretary but of the United Nations High Commissioner for Refugees, whose written intervention, prepared pro bono by Samantha Knights and Alexis Martinez, has provided the court and the parties with much valuable material.

History

The Egyptian convictions

5

The appellant, who is a committed Islamist, was repeatedly arrested and tortured by the Egyptian police between 1981 and 1988. In the latter year, warned of another impending arrest, he fled from Egypt to Jordan and then to Yemen, where he worked for some four years as a school inspector, making visits to Pakistan and Saudi Arabia. Then in 1993 an abortive attempt was made on the life of the Egyptian prime minister. The appellant learnt that he was suspected of being implicated in the plot and fled with his wife and children to Sudan. In his absence, in March 1994, he was found guilty by the Egyptian Supreme Military Court of participating in the plot and was sentenced to death. Five co–accused were also sentenced to death and hanged.

6

From Sudan Mr Al-Sirri came with his family in April 1994 to the United Kingdom. He claimed asylum on arrival, identified himself and admitted travelling to the UK on a false passport. He was detained and was not bailed until the end of the year. The following year, again in his absence, he was found guilty by the Egyptian Supreme Military 0Court of belonging to a terrorist organisation and sentenced – perhaps superfluously – to 15 years' hard labour. This was followed in 1999 by a further sentence, this time of life imprisonment, for membership of an illegal jihadi movement and for planning attacks on state personnel.

7

Having been here for five years without a decision on his asylum claim, Mr Al-Sirri in October 1999 applied for leave to remain under the Home Office's backlog clearance policy. This was refused under art. 1F on the basis of the first two of his Egyptian convictions. A decision was taken to grant him and his dependants exceptional leave to remain for a limited period pursuant to ECHR art 3, but no such grant was in the event made. Towards the end of 2000 the appellant began to manage his brother-in-law's Islamic and Arabic bookshop in west London.

The Old Bailey indictment

8

On 9 September 2001 (two days before the attack on the World Trade Center and the Pentagon), the Afghan vice-president and defence minister, General Masoud, was assassinated by two Taliban suicide bombers posing as journalists. They had gained access to him using fake credentials for which, it turned out, the appellant had knowingly or inadvertently provided the template by writing letters of introduction. He was indicted at the Central Criminal Court on the following counts:

(1) Conspiracy to murder General Masoud.

(2) Inviting support for a proscribed organisation, Al-Gamm'a al-Islamiya [the Islamic Group, or IG].

(3) Soliciting funds for terrorist purposes.

(4) Arranging to make property available for terrorist purposes.

(5) Publishing material likely to stir up racial hatred.

9

The Crown's case summary, when served, related only to counts 1 and 5. Counts 2, 3 and 4 were not proceeded with, and the fifth count was eventually dropped because no translation of the material publication had been obtained. On 16 May 2002 the Common Serjeant, exercising the power contained in §2 of Sch.3 to the Crime and Disorder Act 1998, dismissed the first count on the ground (in the statutory wording) that the evidence would not be sufficient for a jury properly to convict the accused. This was because, in his judgment, the evidence was as consistent with innocence as with guilt.

The US indictment

10

On the same day, however, Mr Al-Sirri was rearrested on an extradition request made by the United States government, pursuant to an indictment handed down by a New York grand jury. The indictment in substance charged him with providing material support to a terrorist organisation, namely IG, and solicitation of crimes of violence.

11

By virtue of art. IX of the Treaty which was given effect by the United States of America (Extradition) Order 1976, extradition could at that date be granted “only if the evidence be found sufficient according to the law of the requested Party … to justify the committal for trial of the person sought …” No evidence whatever was tendered in support of the request by the US authorities. In consequence the Home Secretary on 29 July 2002 declined to give authority to proceed, and the appellant was discharged.

The asylum claim

12

Between 2004 and 2006 the Home Secretary granted the appellant three periods of discretionary leave to remain. These, by reaching a total of more than a year, triggered a right under s.83 of the Nationality, Immigration and Asylum Act 2002 to appeal to the AIT against the art. 1F refusal of asylum which had occurred in October 2000. It is against the adverse outcome of that appeal that the present appeal is brought.

The law

13

Article 1F of the 1951 Refugee Convention is set out in paragraph 2 above.

14

Section 54 of the Immigration, Asylum and Nationality Act 2006 provides:

Refugee Convention: construction

(1) In the construction and application of Article 1(F)(c) of the Refugee Convention the reference to acts contrary to the purposes and principles of the United Nations shall be taken as including, in particular—

(a) acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence), and

(b) acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence).

(2) In this section—

“the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and

“terrorism” has the meaning given by section 1 of the Terrorism Act 2000 (c. 11).

15

Section 1 of the Terrorism Act 2000 as amended provides:

Terrorism: interpretation

(1) In this Act “terrorism” means the use or threat of action where—

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government [or an international governmental organisation] or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious, [racial] or ideological cause.

(2) Action falls within this subsection if it—

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person's life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4) In this section—

(a) “action” includes action outside the United Kingdom,

(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and

(d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

(5) In this Act a reference to action taken for the...

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