Upper Tribunal (Immigration and asylum chamber), 2019-05-22, PA/02636/2015 & AA/13171/2015
| Jurisdiction | UK Non-devolved |
| Date | 22 May 2019 |
| Published date | 22 July 2019 |
| Hearing Date | 17 October 2018 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/02636/2015 & AA/13171/2015 |
Appeal Number: PA/02636/2015
AA/13171/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/02636/2015
AA/13171/2015
THE IMMIGRATION ACTS
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Heard at Field House On 17 October 2018 |
Decision & Reasons Promulgated On 22 May 2019 |
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Before
MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE O’CONNOR
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
NF
KKA
(Anonymity directionS made)
Respondents
Representation:
For the SSHD: Ms M Bayoumi, instructed by the Government Legal Department
For NF: Ms A Weston QC, instructed by Luqmani Thompson & Partners For KKA: Ms R Chapman, instructed by Birnberg Pierce & Partners
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, NF and KKA (the respondents herein) are granted anonymity. No report of these proceedings shall directly or indirectly identify the respondents or any of their family members. Failure to comply with this direction could lead to contempt of court proceedings.
DECISION AND REASONS
Introduction
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NF is the husband of KKA and both are nationals of Kenya. These appeals are brought before the Upper Tribunal by the Secretary of State for the Home Department (“SSHD”) challenging decisions of the First-tier Tribunal (“FtT”) allowing the appeals of NF and KKA.
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The SSHD accepted before the FtT that removing NF and KKA to Kenya would lead to a breach of Article 3 ECHR.
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The central issue in NF’s appeal before the FtT was whether he should be excluded from the protection of the Refugee Convention by application of Article 1F(c) thereof. The FtT found in NF’s favour on this issue, concluding that he “is a refugee”.
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The issues before the FtT in KKA’s appeal were (i) whether the requirements of Article 1A(2) of the Refugee Convention were met and (ii) whether she should be excluded from a grant of Humanitarian Protection pursuant to application of paragraph 339D(iii) of the Immigration Rules. The FtT found for KKA on both issues and allowed her appeal on Refugee Convention grounds.
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The appeals before the Upper Tribunal centre on the approach by the FtT to application of Article 1F(c) of the Refugee Convention (in relation to NF) and paragraph 339D(iii) of the Immigration Rules (in relation to KKA). For this reason, consideration of the appeals by the Upper Tribunal was stayed pending a decision from the Court of Appeal in Youssef & N2 v SSHD [2018] EWCA Civ 933, which was handed down on 26 April 2018, and the writing of this judgment was delayed with the intention of being able to take into account the decision of the Upper Tribunal on that remitted appeal.
Factual Background
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NF entered the United Kingdom on 6 October 2007 with leave to enter to study aerospace engineering. His leave was subsequently extended so as to expire on 15 December 2012. KKA was granted leave in line with her husband.
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On 4 December 2011 both were stopped at Heathrow airport on returning to the UK from Kenya. A property search revealed an iPod containing images of armed persons with flags associated with Al Shabaab, and also included photographs featuring both male and female ‘terrorists’ training on a beach with weapons. None of the photos said to feature Al Shabaab also featured either NF or KKA. The iPod also contained a large number of audio files that suggested to the interviewing officer that NF had an “extremist mindset”. It is said that some of the audio files were produced directly by Al Qaeda and were considered to be motivational in nature and designed to encourage/glorify suicide operations, giving advice on conducting Jihad.
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NF stated in interview that he had downloaded these photographs from the internet approximately four months earlier because he was curious about why so many Somali people were coming over the border into Kenya and he thought Al Shabaab were responsible for this migration. The Kenyan Army were fighting against Al Shabaab and he was “very keen on events” involving his country. He had downloaded the speeches of Dr Omar Bakri in 2008. Dr Bakri was a “visiting Sheikh” who had given a talk about understanding prayer. NF had “curiosity about this person”. KKA stated that the iPod in her husband’s possession had been found by him in Africa and that anything found on this iPod was not her husband’s responsibility.
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It was later discovered that on the day NF and KKA returned home after being released from the airport, NF deleted many thousands of files from a computer registered to KKA’s name. KKA asserted that she said she had never used this computer.
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On 17 April 2012, the police searched the family residence. Detective Sergeant Anthony Horrocks, of the North West Counter-Terrorism Unit, and his team seized various electronic devices including KKA’s mobile telephone, NF’s mobile telephone, KKA’s laptop, the iPod previously examined at Heathrow Airport and a digital hard drive. The material discovered on these devices was described by Detective Sergeant Horrocks, as seeking to “glorify, explain, justify or otherwise encourage acts of terrorism”.
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NF was charged on three counts of possessing information useful to terrorism contrary to section 58(1)(b) of the Terrorism Act 2000:
Count 1 – Possessing a document referred to as “Inspire 2”, which contained instructions that were used by others recently to make the pressure cooker bombs that were detonated in the Boston, USA attacks. It also contained practical instructions on encrypting sensitive terrorist information. Encryption software had been downloaded and used by NF as per these instructions.
Count 2 – Possessing a document referred to as “39 Ways to Serve and Participate in Jihad”, the details of which are set out in the FtT’s decision.
Count 3 - possession a document referred to as “Physical Planning”.
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KKA was not charged with a criminal offence, although her telephone was found to contain a contacts list which included an entry relating to a “a convicted terrorist” and another relating to “a leading figure in Muslims Against Crusaders”. KKA was also said to be in contact with (i) the wife of a leading member of Supporters of Taweed, such person having himself been convicted of supporting proscribed organisations, and (ii) Ruksana Begum, a person who received a 12 month sentence for possessing documentation useful for terrorism and who’s brothers are respectively serving sentences of 16 and 12 years imprisonment for engaging in conduct in preparation for a terrorist act.
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NF pleaded not guilty to all three counts on the indictment but was convicted on 14 March 2013 at the Central Criminal Court on Count 2. NF was acquitted on Counts 1 and 3 of the indictment. In respect of Count 2, NF was sentenced to nine months’ imprisonment and recommended for deportation. In sentencing, the judge commented:
“You have been convicted by the jury of one count of possessing a record containing information likely to be useful to a person committing or preparing an act of terrorism. The material in question consisted of a version of 39 Ways to Serve and Participate in Jihad, best described in my view as a terrorists manual. It is available over the net which is how you got it and it is right to say you are not the first person to be convicted in the courts of this country for possession or versions of it. …
It was, as far as you are concerned, part of a very substantial quantity of material that you had downloaded and stored on your computer and external hard drive. I make clear, however, that despite the volume this is not put forward and never has been put forward as a specimen charge, although there was other material of an encouraging to Jihad nature which of course is not an offence under the section. …
… Parliament has determined that such is the need to protect the public or sections of it anywhere in the world from acts of terrorism that even possessing material that may help those contemplating terrorism in a practical way should be against the law and those doing it should be punished, in particular in order to deter others. There remains the question of deportation in your case since the sentence is one of less than twelve months and I have considered whether or not I should make such a recommendation. In my view such is the need to protect the public that looking at all the circumstances of your conduct it is proper to make that recommendation.”
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On 24 April 2013, NF was served with a ‘notice of decision to deport’, but this decision was withdrawn on 7 June 2013in order to allow the SSHD to consider NF’s asylum claim. A subsequent negative decision was also withdrawn, and both NF and KKA were given 6-months discretionary leave (pursuant to the SSHD’s Restrictive Leave policy) - it being acknowledged by the SSHD that each would be at risk of ill treatment if returned to Kenya.
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On 2 November 2015, the SSHD made a decision excluding NF from Refugee Convention protection. On the same date a decision was made in relation to KKA refusing her Refugee Convention...
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