UK - Upper Tribunal (Asylum and Immigration Chamber), AH (Article 1F(b)), [2013] UKUT 00382
| Country of Decision: | United Kingdom |
| Country of applicant: | Algeria |
| Court name: | Upper Tribunal (Asylum and Immigration Chamber) |
| Date of decision: | 25-07-2013 |
| Citation: | [2013] UKUT 00382 (IAC) |
Keywords:
| Keywords |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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Serious non-political crime
Description
"This category does not cover minor crimes nor prohibitions on the legitimate exercise of human rights. In determining whether a particular offence is sufficiently serious, international rather than local standards are relevant. The following factors should be taken into account: the nature of the act, the actual harm inflicted, the form of procedure used to prosecute the crime, the nature of the penalty, and whether most jurisdictions would consider it a serious crime. Thus, for example, murder, rape and armed robbery would undoubtedly qualify as serious offences, whereas petty theft would obviously not. A serious crime should be considered non-political when other motives (such as personal reasons or gain) are the predominant feature of the specific crime committed. Where no clear link exists between the crime and its alleged political objective or when the act in question is disproportionate to the alleged political objective, non-political motives are predominant. The motivation, context, methods and proportionality of a crime to its objectives are important factors in evaluating its political nature. The fact that a particular crime is designated as non-political in an extradition treaty is of significance, but not conclusive in itself. Egregious acts of violence, such as those commonly considered to be of a ‘terrorist’ nature, will almost certainly fail the predominance test, being wholly disproportionate to any political objective. Furthermore, for a crime to be regarded as political in nature, the political objectives should be consistent with human rights principles." |
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Terrorism
Description
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. |
Headnote:
This case concerned the meaning of “serious” in Article 1F(b): the Court had to decide whether the crime of participating in a criminal association with a terrorist aim was sufficiently serious enough to exclude the applicant from international protection.
Facts:
The appellant could not be returned to Algeria as it is accepted that his life is in danger there; however the UK refused to grant him refugee status, as it considered he was excluded from international protection under Article 1F. The basis for the exclusion was his conviction in France in 1999 of the offence of 'participation à une association de malfaiteurs en relation avec une entreprise terroriste' (‘participation in a criminal association with a terrorist enterprise’), for which he was sentenced to 2 years imprisonment and permanently excluded from French territory. The question for the court was whether this crime was sufficiently “serious”, so as to satisfy the threshold in Article 1F(b).
Decision & reasoning:
In considering exclusion under Article 1F(b), the Court noted that the test is whether there are ‘serious reasons to consider that the appellant is guilty of conduct that amounts to a serious non-political offence’. The applicant’s personal participation in acts leading to exclusion must be established to the ordinary civil standard of proof, i.e. that the material facts are more probable than not (<50%).
It held that ‘serious’ has an autonomous international meaning and is not to be defined purely by national (in this case, French) law. The level of seriousness required to engage Article 1F(b) is at a common level throughout Article 1F: guidance has been provided by the UK Supreme Court in: Al-Sirri[2012] UKSC 54.
The Court ultimately concluded that participation in a conspiracy to promote terrorist violence can amount to a ‘serious crime’ for the purpose of Article 1F(b). The relevant crime may be an agreement to commit the criminal acts (in English law a conspiracy) – it does not have to be a stand-alone (‘choate’) crime. The Court focussed on the substance of the applicant’s conduct, not the label given to it under national law. It held that while mere membership of an organisation that has committed such crimes would not be enough, the role the applicant personally played was sufficiently serious. The Court relied on the transcript of the French proceedings and determined that the applicant was a senior participant in a criminal conspiracy which concerned terrorism. It considered that his conduct, in using a false passport to travel in support of an association planning terror attacks (albeit he did not personally commit any such acts), was sufficiently “serious” within the meaning of Article 1F(b). The Court placed emphasis on the nature of the crimes involved in the conspiracy.
The Court made clear that UK courts should accord significant respect to the decisions of senior sister Courts in other EU countries; however, the ultimate question of whether certain conduct is sufficiently serious to justify exclusion is a matter for the national court (because it is the body deciding the exclusion issue as opposed to the foreign court, which was applying its own penal laws).
Outcome:
Appeal dismissed.
Cited Cases:
| Cited Cases |
| UK - Supreme Court, 17 March 2010, JS (Sri Lanka) v Secretary of State for the Home Department, [2010] UKSC 15 |
| UK - Gurung [2002] UKIAT 04870 |
| CJEU - C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D |
| UK - Court of Appeal, AH (Algeria) v Secretary of State for the Home Department, [2012] EWCA Civ 395 |
| UK - Supreme Court, Al-Sirri and another v Secretary of State for the Home Department, [2012] UKSC 54 |
Other sources:
“The Refugee in International Law “(3rd Edn) Professor Goodwin-Gill
"The Status of Refugees in International Law" Professor Grahl-Madsen (1966)
The Law of Refugee Status" Professor Hathaway
"Current issues in the application of exclusion clauses" Professor Gilbert, paper commissioned by UNHCR
Statement provided to the Grand Chamber in Bundesrepublik Deutschland v B and D (Cases C-57/09 and C-101/09) by UNHCR