Upper Tribunal (Immigration and asylum chamber), 2022-03-09, [2022] UKUT 00125 (IAC) (KM (exclusion, Article 1F(a), Article 1F(b)))
| Judge | UPPER TRIBUNAL JUDGE CANAVAN, UPPER TRIBUNAL JUDGE O’CALLAGHAN |
| Status | Reported |
| Published date | 06 May 2022 |
| Date | 09 March 2022 |
| Hearing Date | 21 July 2021 |
| Appeal Number | [2022] UKUT 00125 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | exclusion, Article 1F(a), Article 1F(b) |
Nuetral Citation: [2022] UKUT 00125 (IAC)
KM (exclusion; Article 1F(a); Article 1F(b)) Democratic Republic of Congo
Upper Tribunal
(Immigration and Asylum Chamber)
Heard at Field House
THE IMMIGRATION ACTS
On 20 and 21 July 2021
Promulgated on 9 March 2022
Before
UPPER TRIBUNAL JUDGE CANAVAN
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
K M
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. We find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Representation:
For the appellant: Mr R. Khubber, instructed by J D Spicer Zeb Solicitors
For the respondent: Ms J. Anderson & Mr S.C. Milnes, instructed by GLD
Exclusion under Article 1F(a)
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Decision-makers considering protection claims are not required to conduct an assessment akin to a criminal trial, but given the grave nature of an allegation that a person has committed an international crime, and the potentially serious consequences of exclusion, a decision to exclude a person from the protection of the Refugee Convention should be sufficiently particularised to show why there are serious reasons for considering that the main elements of crime are engaged.
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Whether there are serious reasons for considering that a person has committed a crime against peace, a war crime, or a crime against humanity for the purpose of exclusion under Article 1F(a) of the Refugee Convention should be interpreted with reference to the autonomous meaning of those terms in international law.
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In relation to acts committed before 01 July 2002 (the date when the jurisdiction of the International Criminal Court came into force) the autonomous meaning of war crimes or crimes against humanity may need to be drawn from earlier sources of customary international law. Those sources might include the Geneva Conventions, the London Charter, the Tokyo Charter, the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Statute of the International Criminal Tribunal for Rwanda (ICTR), the Statute of the Special Court for Sierra Leone (SCSL), and any relevant case law arising from those courts and tribunals.
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In relation to acts committed on or after 01 July 2002, the Supreme Court has made clear that the Rome Statute of the International Criminal Court should be the starting point when considering whether a person is excluded with reference to Article 1F(a): see JS (Sri Lanka) v SSHD [2010] UKSC 15; [2011] AC 184.
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The chapeau of Article 7(1) of the Rome Statute sets out the contextual elements of crimes against humanity and should be read with Article 7(2)(a) and the Elements of Crime. It is an essential part of the definition. The crimes listed in Article 7(1)(a)-(k), although serious, do not constitute crimes against humanity if they are not ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’. An ‘attack’ meaning ‘a course of conduct involving the multiple commission of acts… pursuant to or in furtherance of a State or organizational policy.’
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At [32] of this decision the Upper Tribunal summarises the main principles drawn from the terms of the Rome Statute, the Elements of Crime, and relevant International Criminal Court case law when assessing whether there are serious reasons for considering that the contextual elements of the chapeau of Article 7 of the Rome Statute are engaged.
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Domestic decisions that have considered the issue of individual criminal responsibility under customary international law should now be read in the context of the developing case law of the International Criminal Court.
Exclusion under Article 1F(b)
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Nothing in the wording of the Refugee Convention excludes the possibility of a former state agent arguing that a serious crime comes within the political exception. However, the majority view in T v Immigration Officer [1996] UKHL 9; [1996] AC 742, that the political exception is likely to apply to offences committed with the ’object of overthrowing or subverting or changing the government of a state or inducing it to change its policy’, sits more comfortably with the intended purpose of the Convention. The Convention was not intended to protect those who had committed serious crimes on behalf of an oppressive state, even if committed with a stated political purpose.
DECISION AND REASONS
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This decision considers whether the appellant should be excluded from the protection of the 1951 Convention Relating to the Status of Refugees (‘the Convention’) because there are serious reasons for considering that he committed crimes against humanity (Article 1F(a)) or in the alternative a serious non-political crime (Article 1F(b)) during his service in the Police d’Intervention Rapide (PIR) in the Democratic Republic of Congo (DRC).
LEGAL FRAMEWORK
The Refugee Convention
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The Convention rose from the ashes of a world war in which widespread and systematic atrocities were committed, including war crimes, deliberate policies of extermination, and targeting of civilian populations.
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The Convention was designed with the highest humanitarian principles in mind. As such, ‘a large and liberal spirit’ is called for when a court is asked to interpret its provisions. The Convention is a treaty between states which must be interpreted in good faith according to the ordinary meaning of the terms read in their proper context, and in the light of the object and purpose of the treaty: see Hoxha & Anor v SSHD [2005] UKHL 19; [2005] 1WLR 1063.
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At the heart of the Convention is the principle of non-discrimination. The House of Lords in SSHD v K [2006] UKHL 46; [2007] AC 412 emphasised this basic principle as follows [10]:
‘It is well-established that the Convention must be interpreted in accordance with its broad humanitarian objective and having regard to the principles, expressed in the preamble, that human beings should enjoy fundamental rights and freedoms without discrimination and that refugees should enjoy the widest possible exercise of these rights and freedoms.’
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The purpose of the Convention and subsequent Protocol is to provide an international legal framework whereby signatory states agree to provide surrogate protection to those who are outside their country of nationality due to a well-founded fear of persecution for one of the five reasons identified, and are unable, or owing to such fear, are unwilling to avail themselves of the protection of their country of nationality or former habitual residence. A grant of status under the Convention is a declaratory act. A person is a refugee if they meet the relevant criteria contained in Article 1A(2). When a signatory state such as the United Kingdom grants leave to remain as a refugee it recognises an existing status under international law and undertakes to respect the rights and benefits associated with that status.
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The Qualification Directive (2004/83/EC) reaffirmed the Convention and Protocol as the cornerstone of the international legal regime for the protection of refugees. The recitals went on to confirm that the Directive sought to ensure full respect for human dignity and the right to asylum for applicants and their accompanying family members. Core elements of the Directive were transposed into domestic law by The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (‘the Qualification Regulations 2006’). By operation of section 2(1) of the European Union Withdrawal Act 2018, ‘EU-derived domestic legislation’, which had effect in domestic law immediately before the Implementation Period (IP) Completion Day (31 December 2020), continues to have effect after IP Completion Day. The Qualification Regulations 2006 are saved ‘EU-derived domestic legislation’ which, at the date of this decision, and until such time as they are revoked, continue to have effect in domestic law.
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If a person has not been recognised as a refugee by a signatory state, their status comes to an end as soon as they no longer meet the criteria of Article 1A(2). If a person has been formally recognised as a refugee, the Convention ceases to apply in one of the specified circumstances set out in Article 1C of the Convention (‘the Cessation...
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