Upper Tribunal (Immigration and asylum chamber), 2013-09-09, AA/05707/2007

CourtUpper Tribunal (Immigration and Asylum Chamber)
Publication Date05 November 2013
Appeal NumberAA/05707/2007
Date09 September 2013
StatusUnreported

Appeal Number:

AA/05707/2007




Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: AA/05707/2007



THE IMMIGRATION ACTS



Heard at Field House

Determination Promulgated

On 26th June 2013

On 9th September 2013





Before


UPPER TRIBUNAL JUDGE WARR

UPPER TRIBUNAL JUDGE PETER LANE


Between


DD

(ANONYMITY DIRECTION MADE)

Appellant

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Appearances:


For the Appellant: Christopher Jacobs, instructed by Lawrence Lupin Solicitors

For the Respondent: Jonathan Auburn, instructed by the Treasury Solicitor



DETERMINATION AND REASONS


Introduction


1. Article 1F of the Geneva Convention Relating to the Status of Refugees 1951 and New York Protocol 1967 provides that the provisions of that Convention shall not apply in three specified sets of circumstances. The effect of Article 1F is that a person who would otherwise be recognised as a refugee under the Convention, with all that that entails, must not be given that recognition if he or she falls within one or more of paragraphs (a), (b) and (c) of Article 1F.


2. Our task in the present case is to determine whether the appellant falls to be excluded by reason of Article 1F(c). This entails making a finding as to whether there are serious reasons for considering that the appellant “has been guilty of acts contrary to the purposes and principles of the United Nations”. As we shall describe in more detail, the Court of Appeal ([2010] EWCA Civ 1407) remitted the appellant’s appeal to the Tribunal for it to perform that task; and the Supreme Court agreed (Al Sirri v Secretary of State for the Home Department; DD (Afghanistan) v Secretary of State for the Home Department [2012] UKSC 54.


3. We should, however, make it plain that, irrespective of our finding on this issue, there is no current prospect of the appellant being removed from the United Kingdom to Afghanistan, the country of his nationality. In 2008, Immigration Judge E M Simpson found that such removal would be reasonably likely to violate the appellant’s rights under Article 3 of the ECHR, whereby no one is to be subjected to torture or to inhuman or degrading treatment or punishment. Being recognised as a refugee under the 1951 Convention, however, carries various benefits, both under the Convention itself and by reason of the operation of various policies of the respondent. These include the ability to have certain family members join the refugee in the United Kingdom, even though this would entail additional burdens on public funds. In addition, a refugee is accorded a significantly longer period of leave to enter or remain in the United Kingdom, compared with a person to whom Article 1F applies.


The Supreme Court’s description of the facts of the appellant’s case


4. At this stage, it is convenient to set out [41] to [46] of the judgment of Lady Hale and Lord Dyson in Al-Sirri and DD (with whom Lord Phillips, Lord Kerr and Lord Wilson agreed). Though there appears to have been no issue before the Supreme Court that these were, indeed, the salient facts of the appellant’s case, the appellant has, as we shall see, sought to resile from them:-


[41] The appellant is a citizen of Afghanistan. He arrived in the United Kingdom on 18 January 2007 and applied for asylum on the same day. The basis of his claim was that he feared persecution because of his association with his brother AD, who was a well known Jamiat-e-Islami commander in Afghanistan. Following the fall of the Najibullah government in 1992, the appellant’s brother became responsible for other commanders in the north of Afghanistan and formed a number of strategic alliances, ultimately allying himself with the Taliban. The appellant acted as his deputy and commanded between 50 and 300 men. He was later demoted and reduced to the command of no more than 20 men.


[42] Following US military intervention in Afghanistan, the appellant and his brother fled to Pakistan. In 2004, the appellant’s brother was assassinated in Pakistan by his enemies who held positions in the Karzai government of Afghanistan. The appellant was also a target of the assassination attempt and sustained gunshot injuries. After about a month, he returned to Afghanistan and sought protection from his enemies by joining a military grouping, Hizb-e-Islami. He commanded 10-15 people and engaged in both offensive and defensive military operations against both the Afghan government and the forces of ISAF.


[43] The appellant’s nephew (the son of his deceased brother) was killed in Peshawar in about September 2006. The appellant was ordered to fight in his home area. He decided that it would be too dangerous for him to do so as he had enemies there who were high ranking members of the Karzai government. He fled once again to Pakistan and arrangements were made through an agent for him to travel from there to the United Kingdom. He claimed asylum saying that he feared that, if he were returned to Afghanistan, he would be killed by his deceased brother’s enemies or by Hizb-e-Islami as a traitor.


[44] By letter dated 27 April 2007, the Secretary of State refused the claim on the grounds that the appellant’s account was not credible. In particular, he did not accept the account that he gave of his role in Hizb-e-Islami. By letter dated 6 August 2007, the Secretary of State gave supplementary reasons for the refusal. These were that, even if the appellant’s claimed activities in Afghanistan were substantiated, he was not entitled to asylum in any event. This was because his claim that he had fought against ISAF, if accepted, meant that he had been guilty of acts contrary to the purposes and principles of the United Nations and was therefore excluded from the definition of refugee by reason of article 1F(c) of the Refugee Convention.


[45] The appellant appealed to the Asylum and Immigration Tribunal (‘AIT’). IJ Morgan found the appellant to be credible and allowed his appeal under the Refugee Convention and under Article 3 of the European Convention on Human Rights (‘ECHR’). He had a well-founded fear of persecution by his brother’s enemies some of whom were members of the Karzai government. The judge was not persuaded that the appellant had been guilty of acts contrary to the purposes and principles of the United Nations. For reasons that are immaterial to the present appeal, a second stage reconsideration was ordered by SIJ Moulden.


[46] The second stage reconsideration was conducted by IJ Simpson who, by a determination promulgated on 28 August 2008, allowed the appellant’s appeal on both asylum and Article 3 of the ECHR grounds. The judge found the appellant to be credible, except that she rejected his assertion that his actions with Hizb-e-Islami in Afghanistan were defensive. He had a longstanding history of military involvement in Afghanistan, ‘including at a high level, deputy to his Commander brother, and independently a Commander in Hizb-e-Islami Hekmatayar in Kunar’. There were prima facie grounds for considering his actions were both offensive and defensive. As regards article 1F(c), the judge concluded that section 54 of the 2006 Act (see para 7 above), which came into effect on 31 August 2006, appeared to have effected a substantive change in the law and that, as a matter of natural justice, it applied only to acts after it came into force, that is from September 20061. She concluded at para 151:


Having regard to the combined lack of specificity of evidence of the appellant’s conduct with Hizb-e-Islami and the highly reasonable likelihood, given the chronology, that his involvement with Hizb-e-Islami was at its end stage after September 2006 and the coming into effect of section 54, I find in sum there are not serious grounds for considering he committed a barred act(s). I find article 1F(c) does not apply.’”


The issues in the Court of Appeal


5. In its judgments, the Court of Appeal ([2010] EWCA Civ 1407) held that section 54 of the 2006 Act was, in law, capable of covering events prior to the date on which it came into effect; but, on the findings of Judge Simpson, the appellant had not, in fact, committed any acts of terrorism within the meaning of that section. The Court held that the issue of whether the appellant fell to be excluded under the Convention by reason of Article 1F(c) nevertheless remained. In its judgment:-


The UN Security Council has mandated forces to conduct operations in Afghanistan. The...

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