Secretary of State for the Home Department v NF
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lord Justice Nugee,Lord Justice Davis |
| Judgment Date | 11 January 2021 |
| Neutral Citation | [2021] EWCA Civ 17 |
| Date | 11 January 2021 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2019/1925 |
[2021] EWCA Civ 17
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
(UPPER TRIBUNAL JUDGES OCKLETON, VICE-PRESIDENT, AND O'CONNOR
PA/02636/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Lord Justice Lewis
and
Lord Justice Nugee
Case No: C5/2019/1925
Robin Tam QC (instructed by the Government Legal Department) for the Appellant
Amanda Weston QC and Anthony Vaughan (instructed by Luqmani Thompson and Partners) for the Respondent
Hearing date: 14 December 2020
APPROVED JUDGMENT
INTRODUCTION
This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 22 May 2019 dismissing an appeal against a decision of the First-tier Tribunal.
In brief, the respondent, NF, is a Kenyan national. He had downloaded a considerable quantity of material which demonstrated an obsessive interest in Islamic extremism and terrorism and sympathies with a terrorist organisation known as Al Shabaab. He had had contact with extremists. The appellant, the Secretary of State for the Home Department, decided that NF been guilty of acts contrary to the purposes and principles of the United Nations within the meaning of article 1F(c) of the Convention relating to the Status of Refugees (“the Refugee Convention”) and so was excluded from protection under that Convention. The First-tier Tribunal allowed an appeal against that decision.
The Secretary of State submitted that, in allowing the appeal, the First-tier Tribunal erred in law by concluding that NF's actions could not fall within article 1F(c) as NF had not been involved in any completed or attempted terrorist act. Alternatively, the Secretary of State submitted that the only conclusion that the First-tier Tribunal could lawfully have reached on the facts of the present case was that NF was responsible for acts contrary to the purposes and principles of the United Nations. In those circumstances, the Upper Tribunal had erred in dismissing the appeal. NF submitted that the Upper Tribunal was correct to find that the First-tier Tribunal had properly directed itself to the question of whether NF's acts were sufficiently serious to fall within article 1F(c) and reached a conclusion that it was entitled to reach on the evidence before it.
NF has been granted leave to remain in the United Kingdom as the Secretary of State accepts that he cannot at present be returned to Kenya as he would face a real risk there of treatment contrary to Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). This case is not, therefore, about whether NF should be deported to Kenya. The Secretary of State has decided that he cannot be deported at present. The only issue in this appeal is whether the Upper Tribunal was correct in holding that there was no error of law in the decision of the First-tier Tribunal.
THE FACTUAL BACKGROUND
NF came to the United Kingdom on 6 October 2007 with leave to enter as a student in order to study aerospace engineering. His wife was granted leave to enter as his dependant.
Following his return from a visit to Kenya in December 2013, NF was found to be in possession of downloaded material demonstrating an interest in Islamic terrorism. The material included photographs of armed members of a terrorist organisation, Al Shabaab, and speeches by three individuals supporting terrorism. Searches of NF's home revealed large quantities of downloaded material showing an interest in terrorism. In addition, NF had deleted many thousands of files from a computer at his home.
NF was charged with three offences of collecting or making a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, contrary to section 58 of the Terrorism Act 2000. Count 1 related to material containing instructions for constructing pressure cooker bombs of a type used by others in bombings in Boston in the United States. Count 2 related to a manual entitled 39 Ways to Serve and Participate in Jihad. Count 3 related to a document entitled physical planning. No information about the third document was provided to this court.
On 14 March 2013, NF was convicted on count 2 but acquitted of the other two offences. He was sentenced to nine months' imprisonment and the judge recommended that he be deported. In sentencing NF, the judge observed that the 39 Ways to Serve and Participate in Jihad manual was “best described as a terrorists' manual”.
NF applied for asylum. On 2 November 2015, the Secretary of State decided that NF was not entitled to protection under the Refugee Convention as he had done acts contrary to the purposes and principles of the United Nations. The decision letter referred to the quantity of material downloaded by NF, its nature which indicated a terrorist mindset on the part of NF, and the fact that NF was believed to have sent significant sums of money in response to requests from extremists for funds. Although the Secretary of State considered that NF was not entitled to protection, she accepted that NF could not be returned to Kenya at that stage as there was a real risk that he would be subjected to treatment there which would be contrary to Article 3 of the Convention. The Secretary of State, therefore, granted NF discretionary leave to remain in the United Kingdom.
The Appeal to the First-tier Tribunal
NF appealed to the First-tier Tribunal against the decision that he was excluded from protection. At paragraph 18 of its judgment, the First-tier Tribunal said:
“18. In this appeal I must give careful fact specific consideration to the circumstances of [NF]'s conduct to consider whether there are “serious reasons” for considering if [NF] has engaged in acts contrary to the purposes of the United Nations and whether the acts relied upon by the [Secretary of State] had the requisite gravity and international dimension to justify exclusion from Refugee Convention protection”.
The judgment recorded a summary of the evidence given and found the following facts. First, NF had downloaded considerable quantities of material demonstrating an obsessive interest in Islamic extremism and terrorism. NF was not a credible witness and did not give credible explanations for the possession of this material. The material included all three of the items that had formed the subject matter of the criminal charges. Secondly, NF must have developed sympathies with Al Shabaab, a terrorist group in Kenya. Thirdly, NF had had been in contact with individual extremists. Fourthly, however, there was no evidence that NF had been a member of any terrorist group and no evidence that he had incited others to engage in terrorist acts.
The First-tier Tribunal recorded that the Secretary of State relied primarily on the possession of terrorist material and the contacts with extremists as evidencing acts contrary to the purposes of the United Nations. The Secretary of State no longer relied upon the allegation that NF was either sending or receiving money from extremists. It recorded the submissions made on behalf of NF.
At paragraph 59 of its judgment, the First-tier Tribunal said this:
“59….. The question that I have to ask in this appeal is whether [NF]'s possession of all this material at a time when he must have had the “mindset” of a terrorist or the very least a sympathiser with these groups, when viewed with his association with “known extremists” was enough to constitute “serious reasons” for believing that [NF]'s conduct was capable of constituting an act or acts contrary to the purposes of the UN. This begs the question whether the possession of this material and [NF]'s mindset at the time he collected all of this and his association with “known extremists” and sympathy with Islamic terrorism is enough to meet this test. I have had difficulty, notwithstanding the serious concern anyone would have about someone downloading and storing all of this when in contact with known extremists, in elevating [NF]'s conduct to a level that could properly be called an act or acts contrary to the purposes of the UN. The totality of the evidence before me suggests that [NF] was of a mindset that would have helped explain any act of terrorism committed by [NF] had [NF] so behaved. The problem faced by [the Secretary of State] is that [NF] has not taken this disturbing interest further into the realms of terrorism or incitement to terrorism. If he had then Article 1F(c) would certainly apply.”
The First-tier Tribunal then discussed the principles to be drawn from relevant case law before setting out the submissions of the Secretary of State. It concluded as follows:
“65. After considering all of the evidence before me and the authorities above I find myself in agreement with the skeleton argument provided by [counsel for NF] that [the Secretary of State] has failed to establish that the exclusionary criteria above has been met to exclude [NF] from refugee status under Article 1F(c). The evidence relied upon by the [Secretary of State] does not meet the high threshold. Notwithstanding the volume of evidence to show that [NF] possessed what Detective Sergeant Horrocks has described as a “terrorist mindset” there is a paucity of evidence to show that [NF] has actually committed any criminal offence, other than the three counts on the indictment that he was charged with. I have taken as my starting...
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Table of Cases
...Secretary of State for the Home Department v Nasseri, [2009] UKHL 23 ........688 Secretary of State for the Home Department v NF, [2021] EWCA Civ 17 ........569 Secretary of State for the Home Department v Rehman, [2001] UKHL 47 ......614 Secretary of State for the Home Department v TB (Jam......
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Exclusion - 1F(b) and 1F(c)
...to the ones set out in the legislation mentioned above. 647 Ibid at para 38. 648 Secretary of State for the Home Department v NF , [2021] EWCA Civ 17 at paras 34Ǻ38. 649 KK (Article ɞF(c), Turkey) , [2004] UKIAT 00101, and AA (Exclusion clause) Palestine , [2005] UKIAT 00104. 650 AA (Exclus......