UK - Supreme Court, Al- Sirri v Secretary of State for the Home Department, [2012] UKSC 54

Country of Decision:
Country of Applicant:
Date of Decision:
21-11-2012
Citation:
[2012] UKSC 54
Additional Citation:
[2013] 1 AC 745, [2012] 3 WLR 1263, [2013] 1 All E.R. 1267, 34 BHRC 69, [2013] Imm AR 330; [2013] INLR 665, [2012] WLR(D) 333
Court Name:
Supreme Court
National / Other Legislative Provisions:
UK - Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525, Regulation 2, 7(1)
UK - Nationality
Immigration and Asylum Act 2002
UK - Nationality, Immigration and Asylum Act 2002, Section 83
UK - Immigration
Asylum and Nationality Act 2006
UK - Immigration, Asylum and Nationality Act 2006, Section 54
UK - Terrorism Act 2000
_Section 1
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Headnote: 

These joint cases concern Article 1F(c) of the Refugee Convention. The Court considered what acts fall within the exclusion and what is meant by "serious reasons for considering" a person to be guilty of acts contrary to the purposes of the United Nations (“UN”). 

Facts: 

Both appellants were denied refugee status under Article 1F(c). Al-Sirri had been found to be in possession of materials relating to proscribed terrorist organisations, and was alleged to have been involved in an assassination in Afghanistan (which he denied), and DD had been engaged in attacks against a UN force (ISAF) in Afghanistan.

In the case of the applicant Al-Sirri, the question for the Court was whether all activities defined as terrorism by UK domestic law are acts ‘contrary to the purposes and principles of the UN’, or whether there must also be a threat to international peace. In the case of the applicant DD, the question was whether armed insurrection against the International Security Assistance Force ("ISAF") in Afghanistan constituted acts contrary to the purposes of the UN.

Decision & Reasoning: 

The Court emphasised that Article 1F(c) should be interpreted restrictively and applied with caution. There should be a high threshold "defined in terms of the gravity of the act in question, the manner in which the act is organised, its international impact and long-term objectives, and the implications for international peace and security". There should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character. "Serious reasons" was stronger than "reasonable grounds" and the evidence from which those reasons were derived had to be clear and credible or strong. "Considering" was stronger than suspecting or believing but the decision-maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law. However, if the decision-maker was satisfied that it was more likely than not that the applicant had not committed the acts in question, it was difficult to see how there could be serious reasons for considering that he had done so. In reality, there were unlikely to be sufficiently serious reasons for considering the applicant to be guilty unless the decision-maker could be satisfied of his guilt on the balance of probabilities.

The Court rejected the UK government’s argument that any act defined in domestic law as “terrorism” would suffice for Article 1F(c), stating that there can only be one interpretation of an international treaty. Instead the Court adopted UNHCR’s definition in para. 17 of its Guidelines on International Protection: Application of Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees", 2003: “Article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international community's coexistence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights would fall under this category.”

The Court noted that the ISAF force DD had been fighting did not attract the same protection under international law as peacekeeping forces, however the fundamental aim of the force was to assist in maintaining international peace and security, which is one of the purposes of the UN as set out in the UN Charter. The Court confirmed that, as a matter of law and common sense, an attack on ISAF is thus in principle capable of being an act “contrary to the purposes and principles of the United Nations” sufficient to justify exclusion from refugee status.

Outcome: 

The applicants’ cases fall to be re-determined at first instance, in light of the Court’s findings as to the correct legal test to apply.

Subsequent Proceedings : 

The effect of the decision of the Supreme Court was to require a fresh hearing of the Appellant's appeal by the First-tier Tribunal, whose decision was appealed by the State to the Upper Tribunal. The Upper Tribunal gave its judgment on the 17 August and dismissed the Secretary of State's appeal by holding that the applicant should not be excluded under Article 1F and that the applicant is a refugee. The Upper Tribunal further stated that in every case involving exclusion of protection under Article 1F of the Refugee Convention, the onus of proof is on the Secretary of State, a detailed and individualised examination of the facts is required, there must be clear and credible evidence of the offending conduct, and the overall evaluative judgment involves the application of a standard higher than suspicion or belief.

Other sources cited: 

Charter of the United Nations, Preamble, Article 1, 2

Grahl-Madsen The Status of Refugees in International Law (1966) p 283.

UNHCR "Background Note on the Application of the Exclusion Clauses: Article 1F…" (September 2003), para 47, 50 – 75

General Assembly of the United Nations Resolution 49/60, annexed Declaration on Measures to Eliminate International Terrorism (1994), Article 1, 2, 3, 5(f)

General Assembly Resolution 49/60 (1994), “Declaration on Measures to Eliminate International Terrorism”

General Assembly Resolution 51/210 (1996), Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism (1996), Article 3

Security Council Resolution 1624 of 2005, Paragraphs 2 and 8 of the Preamble

UNHCR “Guidelines on International Protection: Application of Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees" (2003), Paragraph 17