UK - Court of Appeal, 10 December 2010, Secretary of State for the Home Department v DD (Afghanistan) [2010] EWCA Civ 1407

Facts:

The applicant was a 34 year old Afghan male who had claimed asylum in the UK on arrival on 18 January 2007.  He had a history of involvement with Jamiat-e-Islami, the Taliban and Hizb-e-Islami. By the time that the case reached the Court of Appeal it was accepted that he was at risk of persecution or serious harm in Afghanistan.  The issue was whether he should be excluded from the Refugee Convention under Article 1F(c).

Decision & reasoning:

The Court allowed the Secretary of State’s appeal and remitted the appeal to the Tribunal for further consideration.

The Secretary of State argued that the applicant was guilty of acts contrary to the purposes and principles of the United Nations and should be excluded under Article 1F(c) of the 1951 Refugee Convention. It was argued that terrorist acts are contrary to the purposes and principles of the United Nations and, secondly, that acts against forces mandated by a resolution of the UN Security Council, such as ISAF in Afghanistan, are acts contrary to those purposes and principles.

The Court considered the inter-relationship between acts of terrorism and acts contrary to the purposes and principles of the UN. UK legislation makes specific provision in this area. Immigration, Asylum and Nationality Act 2006, section 54 provides that:

"(1) In the construction and application of Article 1F(c) of the Refugee Convention the reference to acts contrary to the purposes and principles of the United Nations shall be taken as including, in particular-

(a)  acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence), and

(b)  acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence).

(2) In this section- 
'the Refugee Convention' means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and 'terrorism' has the meaning given by section 1 of the Terrorism Act 2000."

It therefore applied the definition of terrorism contained in Terrorism Act 2000 section 1, which provides that:

"(1) In this Act 'terrorism' means the use or threat of action where

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person's life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system."

The Court held that military action against the armed forces of a government, such as the action that the applicant was involved with against the Afghan government, do not as such constitute terrorism or actions contrary to the purposes and principles of the United Nations.  However, such action was capable of constituting terrorism or acts contrary to the purposes and principles of the United Nations.

Actions against ISAF in Afghanistan could constitute acts contrary to the purposes and principles of the United Nations, because of the mandate that ISAF forces has from the United Nations Security Council.   However, it did not follow that actions against “anyone bearing UN colours” is necessarily action contrary to the purposes and the principles of the United Nations. Situations will differ and require specific analysis.

The Court further held that, in considering the application of Article 1F(c) of the 1951 Refugee Convention it was not necessary for the Tribunal to identify a specific crime or act of terrorism that the applicant had committed. Rather, the finding that an applicant had undertaken actions of a type, such as offensives against the Afghan Government or UN mandated forces was sufficient. That said, following JS (Sri Lanka), the level of the applicant’s participation in the alleged acts had to be assessed. The Tribunal had not made this assessment and so the matter should be remitted for consideration of this issue.

Outcome:

The Court of Appeal allowed the Secretary of State’s appeal and remitted the appeal to the Tribunal for it to consider the extent of the appellant’s conduct and participation in events that might merit the appellant’s exclusion. In particular the Tribunal should conduct such enquiries as are necessary to decide whether the conduct of the respondent includes action contrary to the purposes and principles of the United Nations.

Other sources:

UN Charter, draft League of Nations Convention of 1937

UN Security Council. Resolution 1373 (2001) (28 September 2001)

UN Security Council Resolution 1624 (2005) (September 2005)

Security Council Resolution 1386 (2001) (20 December 2001)

Security Council Resolution 1510 (2003)

UNHCR Guidelines on International Protection in relation to article 1F of the Refugee Convention (4 September 2003)