Al-Sirri v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Dyson,Lord Phillips,Lord Kerr,Lord Wilson |
| Judgment Date | 21 November 2012 |
| Neutral Citation | [2012] UKSC 54 |
| Year | 2012 |
| Court | Supreme Court |
| Date | 21 November 2012 |
[2012] UKSC 54
Lord Phillips
Lady Hale
Lord Kerr
Lord Dyson
Lord Wilson
Appellant (Al-Sirri)
Edward Fitzgerald QC
Alasdair Mackenzie
(Instructed by Birnberg Peirce and Partners)
Respondent
Tim Eicke QC
Iain Quirk
Jonathan Auburn
(Instructed by Treasury Solicitor)
Appellant (DD)
Richard Drabble QC
Christopher Jacobs
Guy Goodwin-Gill
(Instructed by Lawrence Lupin Solicitors)
Respondent
Tim Eicke QC
Jonathan Auburn
(Instructed by Treasury Solicitor)
Intervener (United
Nations High
Commissioner for
Refugees)
Michael Fordham QC
Jessica Simor
Samantha Knights
(Instructed by Baker & McKenzie LLP)
Heard on 14, 15, 16 and 17 May 2012
Lady Hale AND Lord Dyson (with whom Lord Phillips, Lord Kerr and Lord Wilson agree)
These appeals are concerned with a little used provision in article 1F(c) of the Geneva Convention on the Status of Refugees ("the Refugee Convention"). This excludes from refugee status and protection "any person with respect to whom there are serious reasons for considering that … he has been guilty of acts contrary to the purposes and principles of the United Nations." For the time being at least, however, the Home Secretary accepts that these appellants cannot be returned to their home countries because they face a real risk of torture or inhuman or degrading treatment or punishment there. It is the grant of refugee status, rather than the right to stay in this country, which is in issue in these proceedings.
The issues in the two cases are different. In Al-Sirri, the question is whether all activities defined as terrorism by our domestic law are for that reason alone acts contrary to the purposes and principles of the United Nations, or whether such activities must constitute a threat to international peace and security or to the peaceful relations between nations. In DD, the question is whether armed insurrection is contrary to the purposes and principles of the United Nations if directed, not only against the incumbent government, but also against a United Nations-mandated force supporting that government, specifically the International Security Assistance Force ("ISAF") in Afghanistan. Although the issues are different, many of the relevant materials are the same, as must be the general approach to article 1F(c), and so we deal with them in one judgment to avoid unnecessary repetition. In all article 1F cases, there is also the issue of the standard of proof: what is meant by "serious reasons for considering" a person to be guilty of the acts in question?
Article 1F of the Refugee Convention excludes three types of person from the definition of refugee:
"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."
It will be apparent that a particular act may fall within more than one of these categories. In particular, terrorism may be both a "serious non-political crime" and an act "contrary to the purposes and principles of the United Nations".
Member States of the European Union are, moreover, bound to observe the standards laid down in Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted ("the Qualification Directive"). Its main objective is to ensure common standards in the identification of people genuinely in need of international protection and a minimum level of benefits for them in all Member States (recital 6). Recital 22 deals with article 1F(c):
"Acts contrary to the purposes and principles of the United Nations are set out in the preamble and articles 1 and 2 of the Charter of the United Nations and are, amongst others, embodied in the United Nations Resolutions relating to measures combating terrorism, which declare that 'acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations' and that 'knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations.'"
Article 12 of the Qualification Directive both reflects and expands slightly upon article 1F of the Refugee Convention (the changes and additions are italicised):
"2. A third country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:
(a) he or she 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 or she has committed a serious non-political crime outside the country of refuge prior to his or her admission [to that country] as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;
(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and articles 1 and 2 of the Charter of the United Nations.
3. Paragraph 2 applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein."
The Qualification Directive is transposed into United Kingdom law by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525). Regulation 2 provides that "'refugee' means a person who falls within article 1(A) of the Geneva Convention and to whom regulation 7 does not apply". Regulation 7(1) states that "A person is not a refugee, if he falls within the scope of article 1D, 1E or 1F of the Geneva Convention". The Immigration Rules provide, in paragraph 334, that a person will be granted asylum, inter alia, if "(ii) he is a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006".
However, section 54 of the Immigration, Asylum and Nationality Act 2006 ("the 2006 Act"), provides:
"(1) In the construction and application of article 1F(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 28 July 1951, and
'terrorism' has the meaning given by section 1 of the Terrorism Act 2000."
There is no need to set out the definition of terrorism contained in section 1 of the 2000 Act. The essence is the use or threat of certain dangerous actions designed to influence this or any other government or intimidate the public for the purpose of advancing a political, religious, racial or philosophical cause. But if firearms or explosives are involved, the act or threat need not be designed to influence the government or intimidate the public. Terrorism designed solely to achieve political change within the United Kingdom, with no international repercussions, is clearly covered, as is terrorism committed here with a view to achieving internal political change in another country.
The Preamble to the Charter of the United Nations recites the determination of the peoples of the United Nations to save succeeding generations from the scourge of war; "to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small"; to maintain justice and respect for international law; and "to promote social progress and better standards of life in larger freedom"; and for these ends to live together in peace, unite to maintain international peace and security, ensure that armed force is used only in the common good, and employ international machinery for the economic and social advancement of all peoples.
The purposes of the United Nations are set out in article 1 of the Charter. The first purpose is
"1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace."
The second is "to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace"; the third is "to achieve international...
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