T v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Lloyd of Berwick,Lord Browne-Wilkinson,Lord Mustill,Lord Slynn of Hadley |
| Judgment Date | 22 May 1996 |
| Date | 22 May 1996 |
| Court | House of Lords |
[1996] UKHL J0522-1
Lord Keith of Kinkel
Lord Browne-Wilkinson
Lord Mustill
Lord Slynn of Hadley
Lord Lloyd of Berwick
House of Lords
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend Lord Lloyd of Berwick, which I have read in draft and with which I agree, I would dismiss this appeal.
My Lords,
For the reasons given by my noble and learned friend Lord Lloyd of Berwick I too would dismiss the appeal.
My Lords,
During the 19th century those who used violence to challenge despotic regimes often occupied the high moral ground, and were welcomed in foreign countries as true patriots and democrats. Now, much has changed. The authors of violence are more ruthless, their methods more destructive and undiscriminating; their targets are no longer ministers and heads of state but the populace at large; and their aims and ideals are frequently no more congenial to the countries in which they take refuge than those of the regimes whom they seek to displace. The unsympathetic call them terrorists, and their presence is seen as both an affront and a danger. These fundamental changes in method and perception have not been matched by changes in the parallel, although not identical, laws of extradition and asylum. These laws were conceived at a time when political struggles could be painted in clear primary colours largely inappropriate today; and the so-called "political exception" which forms part of these laws, and which is the subject of this appeal, was a product of Western European and North American liberal democratic ideals which no longer give a full account of political struggles in the modern world. What I regard as the exceptional difficulty of this appeal is that the courts here, as in other legal systems, must struggle to apply a concept which is out of date.
The appeal arises as follows. The appellant, identified throughout as Mr. T., is an illegal immigrant, having entered the United Kingdom under a false name and papers. He is a national of Algeria, and a member of a group named F.I.S. which, according to the account given in evidence on his behalf, was cheated of success in a democratic election and had recourse to violent means aimed at displacing the ruling powers. Amongst the activities of this group in which the appellant played a part was the detonation of a bomb at an airport in Algeria. Ten people were killed, none of them having, so far as is known, any connection with the opponents of the appellant's group, or with the struggle in which the group was engaged. Unfortunately the way in which this apparently random violence might have served the ends of the group was not explored in these proceedings. We have little more than one or two statements by the appellant in evidence that the objective of the bomb was to hit the national economy rather than to kill people. He also admitted to some degree of involvement in an attack on an army barracks.
These were the circumstances in which the appellant, having been arrested and served by the Secretary of State with a notice that he would be returned to Algiers, appealed to a Special Adjudicator, and thence to the Immigration Appeal Tribunal and the Court of Appeal. He has failed at each stage, and now appeals to your Lordships' House.
I.
Four points of cardinal importance must at once be made. The first is that the appeal is concerned with asylum, not with extradition. Algeria does not demand the return of the appellant. There is no treaty of extradition which would permit such a demand, and the United Kingdom would be in breach of no international obligation owed to Algeria if it allowed the appellant to remain within its territories, or sent him somewhere else.
Secondly, and this is a most unusual feature, there is here no dispute, of the kind which has become a common feature of the present flood of applications for asylum, about the treatment which the asylum-seeker can expect if removed to another country. It is no longer questioned that if the appellant is returned to Algeria his life or freedom would be threatened "on account of his � membership of a particular social group or political opinion".
Third, although it is easy to assume that the appellant invokes a "right of asylum", no such right exists. Neither under international nor English municipal law does a fugitive have any direct right to insist on being received by a country of refuge. Subject only to qualifications created by statute this country is entirely free to decide, as a matter of executive discretion, what foreigners it allows to remain within its boundaries. Under the law of asylum the United Kingdom can choose to allow the appellant to reside here, rather than return him to Algeria to face the consequences of his admitted crimes. Conversely, it can expel him and cause him to be transported to whatever country is willing to accept him. The Secretary of State has made it plain that if the appellant can find a country other than Algeria which will accept the appellant he will be sent there. No such country has been suggested by the appellant. The Secretary of State does not wish to send the appellant back to Algeria, but as things now stand there is nowhere else for him to go.
Fourth, although a refugee has no direct right to insist on asylum there are certain statutory restrictions on the Secretary of State's freedom of choice as to the destination to which a person refused permission to remain may be sent, which may in practice achieve the same result. I will presently come to the statutory provisions in detail. For the moment it is sufficient to say that the United Kingdom is under an international and municipal duty derived from Article 33.1 of the Geneva Convention of 1951 Relating to the Status of Refugees (United Nations Treaty Series, Vol 189, page 137: hereafter the "Refugee Convention") not to return a fugitive to a place (like Algeria in the present instance) where he is liable to be persecuted. This duty, to which effect is given in English municipal law by Rule 334 (ii) of the Immigration Rules (HC 394), is subject to an exception, whereby the protection against "refoulement" (as it is called) is disapplied where the fugitive has, before coming to this country, committed a "serious non-political crime", within the meaning of Article 1F( b) of the Refugee Convention. This expression is the source of the present appeal. That the bombing at the airport was a serious crime, and that the appellant took pan in it, is beyond doubt. The question is whether the crime was "political" in character. If it was, the appellant must be given leave to remain. If not the Secretary of State may return him to Algeria, if all else fails.
II.
On these simple facts the appellant founds a simple argument. If the elections had been allowed to run their course the incoming government would have been chosen by a contest between two or more parties or factions, plainly a political process. The undemocratic interference with this process left the appellant's associates with no choice but to adopt radically new methods to achieve the same political ends. True, these methods did not resemble those of the Western democracies, but Algeria is not a democracy, and the Western model is not, and never has been, the only way of conducting politics. True also, that the methods were criminal, but an act may be none the less political for being criminal, as the expression "non-political crime" itself recognises. And the degree of criminality is material only to the "serious" element of the description "serious non-political". For the latter purpose it can logically make no difference how many people suffered, or who they were. No doubt this bears on the acceptability of the fugitive's conduct to the ethical and social ideals of the receiving nation, but the test is not moral, and in any event is not to be judged by conditions and concepts remote from those of the place where the offence took place. Nor does it help to characterise the appellant as a terrorist, since as often remarked yesterday's terrorist is today's freedom fighter and perhaps tomorrow's head of state. In reality, so the argument concludes, the general character of the activities of F.I.S. was unchanged. It was as political after the abortive election as it had been before, and this character invests crimes committed under the aegis of F.I.S. with a character different from that which they would have had if committed, for example, in the course of criminal gang warfare.
This is a powerful argument, the more so because it warns against the assumption that political action should be equated with the activities permitted to rival parties or groups seeking power under a parliamentary system of government such as exists in Europe and North America, and under other systems based on the same model. This being acknowledged, I believe that the appellant's argument goes too far, for it assumes that society, and the struggles within it, have stood still for more than a century. Those who were intended to benefit from the political exception had taken up arms, having no other means, to relieve from oppression those who could not fend for themselves. The human rights of the individual who sought refuge in fear of persecution therefore coincided with those of the oppressed, and the evil of violence could be tolerated without threat to the world order in the greater interests of making the world a better place. Whether this was sound thinking no longer matters, for the scene has changed. Those who use violence and fear to struggle against oppression may themselves be oppressors, causing as much suffering to the defenceless as those...
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