UK - Court of Appeal, AH (Algeria) v Secretary of State for the Home Department, 14 October 2015

Facts:

In 1993, the applicant, AH, was convicted in absentia in Algeria of a bombing in the country. Several years later he was convicted by the Paris First Instance Court of falsifying administrative documents and was sentenced to 6 months prison. In October AH was convicted, and an acquittal overturned, by the Paris Court of Appeal of being a member of an association or grouping formed with a view to preparing acts of terrorism. He was sentenced to two years imprisonment and permanent exclusion from France. In 2001 the applicant arrived in the UK and applied for asylum. He was granted discretionary leave however the Article 1F exclusion of the 1951 Refugee Convention applied as he was “convicted of a serious criminal offence in France”. He was later given further limited leave but the Article 1F exclusion was maintained.

A later appeal against the asylum refusal was refused, however in 2010 the decision was reconsidered due to an error of law. Notwithstanding this the appellant was again excluded again under Article 1F(b) and (c). In 2013 the Upper Tribunal upheld the Article 1F exclusion.  

Decision & reasoning:

The appellant advanced the following argumentation before the Court of Appeal:

Firstly, the degree of the appellant’s involvement in a serious crime shown by the Upper Tribunal did not justify an Article 1F exclusion. Secondly, the Upper Tribunal failed to equate serious with particularly serious in Article 1F(b), which was consequently a mis-construction of said Article. Thirdly, the  Upper Tribunal had failed to take on board the facts since the commission of the offence, which served to expiate the appellant, saving him from an Article 1F(b) exclusion.

In reverse order the Court of Appeal analysed whether post-offence events are material to a decision under Article 1F(b). Detailing the purposive interpretation advanced by the UNHCR, namely that exclusion may no longer be justified where the individual has served a penal sentence, or a significant time has elapsed, the Court of Appeal, which acceded to the significant authoritative value of the UNHCR and its interpretation of the Convention, nonetheless found this to lead to an open-ended evaluative exercise. Referring to  Germany v B and D C-57/09 the Court advanced that the decision on exclusion cannot be made on the basis of a proportionality test; therefore expiation is not relevant in this regard, as it would imply a strategic evaluative exercise that amounts to a proportionality test.

Indeed, the Court goes onto hold that Article 1F is a definitional section (as is the whole of Article 1); it is not about analysing the merits of the case – nor about deciding whether the asylum seeker should obtain protection or not. Instead it is an objective assessment. The Court held that while the exclusion clauses should be interpreted restrictively and applied cautiously, this does not invite the court to legislate.

The Court continues this argumentation by highlighting that if there can be subsequent action that expiates, there must be subsequent action that exacerbates, leading to a fluctuation in the seriousness of the offence – something not contemplated by the Convention’s drafters, whose travaux preparatoires indicate that Article 1F is meant to be categorical, applying to all who have committed the relevant acts, and without State discretion.

Supporting this line of reasoning the Court refers to the Canadian Supreme Court’s judgment in Febles which rules out a balancing exercise between various factors.

Secondly the Court of Appeal found that serious crime denotes “especially grave offending” accepted by the Supreme Court in Al-Sirri and also set out by the Court of Justice of the EU in Germany v B and D; it is not necessary to add the word “particularly”. They essentially mean the same thing. Therefore, “serious” needs no further qualification.

Lastly, the Court undertakes an assessment of the applicant’s case, notably the degree of personal involvement in the serious crime on the appellant's part as to justify exclusion under Article 1F(b). Whilst agreeing that there was a lack of particularity in the allegations and findings brought forward by the French Court of Appeal as to what the applicant in fact did, the Court found that “the UT was entitled to conclude, as it did, that the appellant was giving succour to a terrorist cause, and doing so as a senior conspirator; and as such had plainly committed a “serious non-political crime” within the meaning of Article 1F(b)”.

Outcome:

Appeal denied.

Observations/comments:

The Upper Tribunal finding of 2013 elaborates on the standard required of personal participation in acts leading to exclusion under Article 1F(b), namely a civil standard of proof and not a criminal one. Importantly, the Tribunal advocates some sort of examination as to the seriousness of a committed act, including events post-commission such as a formal pardon or acquittal which could be relevant to whether exclusion is justified. However, this same evaluative technique was squarely rejected with regards to expiation by the Court of Appeal.

The Court of Appeal’s finding is important not least as it explores the interpretation to be given to the Convention, which according to the Court should be firmly rooted to a definitional rather than a purposive one. The judgment also provides insight into the interpretation given to the CJEU’s judgment in Germany v B and D.

This case summary was written by Ben Wild, a trainee solicitor with an MA in International Law from UN University for Peace in Costa Rica. 

Other sources:

Hathaway, The Law of Refugee Status, (1991)

Grahl-Madsen, The Status of Refugees in International Law (1966), Vol 1

UNHCR Guidelines on International Protection

UNHCR Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees.

The 1950 Statute of the Office of the UNHCR (annexed to UN General Assembly Resolution 428(V) of 14 December 1950)

1969 Vienna Convention on the Law of Treaties

Weis, “The Concept of the Refugee in International Law” (1960) 87 Journal du Droit International 928

Refugee Convention’s travaux préparatoires

Cornu, Vocabulaire Juridique (9th edition) 2011