The Secretary of State for the Home Department v Yasser Toufiq Ali Al-Sirri
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY,Key |
| Judgment Date | 17 August 2016 |
| Neutral Citation | [2016] UKUT 448 (IAC) |
| Date | 17 August 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2016] UKUT 448 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE HON. Mr Justice McCloskey, PRESIDENT
UPPER TRIBUNAL JUDGE Kamara
For the Appellant: Mr J Auburn, of Counsel, instructed by the Government Legal Department
For the Respondent: Mr A Mackenzie, of Counsel, instructed by Birnberg Pierce and Partners
Al — Sirri (Asylum — Exclusion — Article 1F(c))
In every case involving exclusion of protection under Article 1F of the Refugee Convention, the onus of proof is on the Secretary of State, a detailed and individualised examination of the facts is required, there must be clear and credible evidence of the offending conduct, and the overall evaluative judgment involves the application of a standard higher than suspicion or belief.
While this is the appeal of the Secretary of State for the Home Department (the “ Secretary of State”), we shall, for convenience, continue to describe Mr Al-Sirri as the Appellant.
From Appendix 1, the “Chronology of Events”, one quickly discerns the protracted and moderately complex history of this appeal. In brief compass, the Appellant is a national of Egypt, now aged 53 years. Upon entered the United Kingdom in 1994, accompanied by his spouse and four children, the Appellant made an application for asylum which was refused some six years later on the basis that he was excluded from the protection of the Refugee Convention by reason of Article 1F(c) thereof. Some 22 years after his arrival, the Appellant continues to reside in the United Kingdom. His interaction with the U.K. legal system dates from September 2006. During the ensuing period, the landmark events in the litigation calendar have included the decision of the Supreme Court, promulgated on 21 November 2012; see Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54.
The effect of the decision of the Supreme Court was to require a fresh hearing of the Appellant's appeal by the First-tier Tribunal (the “ FtT”). The period thereafter was punctuated by case management review hearings, much inter-partes correspondence, debates about disclosure, exchanges regarding a proposed further interview of the Appellant by the Secretary of State's agents and, ultimately, a fresh decision by the Secretary of State dated 10 January 2014. This represents the current, active decision which culminated in the decision of the FtT now under appeal.
By Article 1A(2) of the Refugee Convention, a person qualifies for refugee status if –
“ …. owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, [he] 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 ….”
Article 1F provides:
“ 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.”
The operative provision in this case is Article 1F(c).
On 30 April 1994, upon arrival in the United Kingdom, the Appellant claimed asylum. His application was, ultimately, refused on 11 October 2000. By a supplementary decision dated 31 March 2004 the original decision was affirmed. This was followed by a fresh decision dated 05 December 2006. The ensuing six years were occupied by proceedings before various courts and tribunals.
The current, operative decision of the Secretary of State is contained in a letter dated 10 January 2014. This detailed letter is susceptible to the following breakdown:
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(a) The Appellant claimed that while in Egypt he was involved in Islamic charities with a view to implementing Sharia Law and establishing an Islamic regime in Egypt. This included public demonstrations and he was detained periodically.
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(b) In 1993 he was accused of the attempted murder of the Egyptian Prime Minister. This was the impetus for his flight to the United Kingdom.
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(c) The basis of the Appellant's claim for asylum is his fear that if repatriated to Egypt he will be murdered by the regime.
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(d) On 29 October 2001 he was charged with conspiracy to murder the leader of the “Afghan Northern Alliance” (whom we shall call “ASM”), who had been killed in Afghanistan on 09 September 2001, which charge was withdrawn some months later.
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(e) The decision continues:
“ It has therefore been considered whether the act of conspiracy to murder [ASM] was an act that attacked the very basis of the international community's co-existence, whether it had an international dimension and whether the crime was capable of affecting international peace, security and peaceful relations between states. This has been assessed in light of the international repercussions of the murder.”
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(f) ASM was the established leader of the anti-Taleban forces in Afghanistan and his murder was perpetrated by Al-Qaeda, a proscribed terrorist group which has been held responsible for the terrorist attacks in the United Kingdom on 11 September 2001.
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(g) Since the late 1990s, Al-Qaeda has been considered “ the most infamous worldwide terrorist organisation”.
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(h) ASM was a towering figure in the war between the Taleban and the Northern Alliance:
“ It is considered that his elimination from [this conflict] had a significant impact on the conflict and on the course of the war. The terrorist attacks in the US on 11 September 2001 and the subsequent involvement of the US in the war demonstrate not only the international impact of the conflict but, in the elimination of the most prominentanti-Taleban leader, the international impact of his murder. Therefore the event of the murder of [ASM] had a significant international dimension. The background information indicates that the impact was that it was more difficult for the US to inflict a decisive defeat against Taleban throughout Afghanistan in the absence of the unifying force and military capability of [ASM].”
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(i) The above is the preface to the following conclusion:
“ It is therefore considered that the murder of [ASM] was an act of terrorism of such gravity and international impact, committed by a terrorist group of worldwide notoriety, that it was clearly against the principles and purpose of the United Nations outlined under Article 1F(c) of the Refugee Convention, as interpreted in the judgment of the Supreme Court.”
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(j) The decision then discusses the Appellant's “ alleged role” in the murder in question:
“ It is noted that you have been accused of providing a letter of introduction to the perpetrators of the murder of [ASM]. It is considered that this allegation, if proven, amounts to organising a terrorist act. Careful consideration has been given to whether the evidence against you amounts to serious reasons for considering that you conspired to commit the murder ….
The evidence that has been included in this consideration is that which was available to the criminal court when you were charged with conspiracy to murder [ASM]. Additionally, available circumstantial evidence has been included in this consideration.”
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(k) The decision continues:
“ The evidence contained in the attached Case Research and Analysis Report has been considered and its evidence and conclusions support the conclusions set out in this letter.”
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(l) There follows a recitation of various items of documentary evidence: documents found in the possession of the assassins at the scene of the murder, which included in particular certain letters containing the Appellant's particulars and prima facie linking him with a purported journalistic exercise, the object whereof was direct access to ASM; evidence of the police examination of the Appellant's computer following his arrest on 23 October 2001; other documents found at the Appellant's home at this stage; the Appellant's statements to the police and the records of his police interviews.
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(m) Next, the decision maker notes the Appellant's admission that he provided documentation to ASM's assassins, who posed as journalists and his claim that he did so innocently without knowledge of the murder plot. The Appellant further claimed that the operation involved the creation of a broadcasting arm, Arab News International, of his organisation, the Islamic Observation Centre (“IOC”). This would provide the organisation with both news dissemination capacity and some profit. In return, the Appellant would provide the assumed journalists with letters of introduction and identity cards from IOC.
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(n) The decision maker notes that the Appellant was entirely passive in matters of broadcasting and news dissemination subsequently, thereby undermining the credibility of his explanation. The Appellant's evident failure to check the credentials of the persons concerned is also highlighted. In addition, the Appellant's failure to provide an explanation for a letter dated approximately one month preceding the murder requesting that he “ … get rid of all the letters which I sent you previously because you are aware of the circumstances” is underlined, together with his continued assistance to the person concerned subsequently. Also highlighted was the Appellant's failure to mention certain email exchanges during interview, indicative of the deliberate...
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