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You are here: BAILII >> Databases >> Special Immigrations Appeals Commission >> N2 v Secretary Of State For The Home Department (Rev 1) [2016] UKSIAC SC_125_2015 (1 December 2016) URL: http://www.bailii.org/uk/cases/SIAC/2016/SC_125_2015.html Cite as: [2016] UKSIAC SC_125_2015 |
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Appeal No: SC/125/2015
Hearing Dates: 8 & 9 November 2016
Date of Judgment: 1 December 2016
SPECIAL IMMIGRATION APPEALS COMMISSION
Before:
THE HONOURABLE MR JUSTICE FLAUX
UPPER TRIBUNAL JUDGE OCKELTON, VICE PRESIDENT OF THE UPPER TRIBUNAL
M S JILL BATTLEY
N2
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
For the Appellant: Mr Danny Friedman QC and Mr Edward Grieves
Instructed by: Birnberg Peirce & Partners
For the Respondent: Mr Robin Tam QC and Ms Melanie Cumberland
Instructed by: Government Legal Department
JUDGMENT
The Honourable Mr Justice Flaux:
Introduction and background
4. Various notices of liability to deportation were served on the appellant and, after a complex history which it is not necessary to recite in this judgment, on 10 July 2015 the Secretary of State served the appellant with a letter of refusal of asylum and exclusion from refugee status under Article 1F(c) of the Refugee Convention and a Deportation Order. The appellant appealed against that refusal and Deportation Order to the Commission.
5. On 15 July 2016, the Secretary of State wrote to the appellant's solicitors to inform them that she had formed the view that it was no longer appropriate to pursue the appellant's deportation to Jordan at present and the Deportation Order was withdrawn. However, the letter maintained the appellant's exclusion from refugee status and granted him six months restricted leave to remain.
6. Notwithstanding that grant of leave to remain, the appellant gave notice that he wished to pursue his appeal on asylum and humanitarian protection grounds. The single issue for determination by the Commission at this stage is whether the appellant is excluded from the protection of the Refugee Convention, pursuant to Article 1(F)(c). A finding of exclusion from the protection of the Refugee Convention pursuant to Article 1F(c) would have the necessary consequence that he would be likewise excluded from a grant of humanitarian protection pursuant to paragraph 339D(ii) of the Immigration Rules, so there is no need for us to consider the humanitarian protection ground separately.
The legal framework
Article 1F and its application in domestic law
7. Article 1(F) of the Refugee Convention excludes three types of person from the definition of refugee:
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."
8. This Article is mirrored in Article 12(2) of EU Council Directive 2004/83/EC ("the Qualification Directive") which also expands slightly on Article 1(F) (the changes and additions are italicised):
"2. A third country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:
(a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission [to that country] as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;
(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and articles 1 and 2 of the Charter of the United Nations.
3. Paragraph 2 applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein."
9. The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 transpose the Qualification Directive into domestic law. Regulation 7 of the Regulations provides that: "A person is not a refugee, if he falls within the scope of article 1D, 1E or 1F of the Geneva Convention". This has been incorporated into Rule 339D of the Immigration Rules.
10. Section 54 of the Immigration, Asylum and Nationality Act 2006 provides:
"(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 28 July 1951, and 'terrorism' has the meaning given by section 1 of the Terrorism Act 2000."
The correct approach to Article 1F
11. Mr Danny Friedman QC for the appellant devoted a significant part of his oral submissions to a series of high level submissions about principles of international law, but we consider that the applicable legal principles are not really controversial, save possibly in one respect to which we will turn later in this judgment. The general approach to be adopted to Article 1(F)(c) was established by the Supreme Court in Al-Sirri v SSHD [2012] UKSC 54; [2013] 1 AC 745 in the judgment of Baroness Hale and Lord Dyson MR at [12]-[16]:
"12 The appellants, with the support of the UNHCR, argue that article 1F must be "interpreted narrowly and applied restrictively" because of the serious consequences of excluding a person who has a well-founded fear of persecution from the protection of the Refugee Convention. This was common ground in R (JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15, [2011] 1 AC 184, in the context of article 1F(a), and must apply a fortiori in the context of article 1F(c). Concern was expressed during the drafting of the Convention that the wording was so vague as to be open to misconstruction or abuse. Professor Grahl-Madsen comments that "It seems that agreement was reached on the understanding that the phrase should be interpreted very restrictively": The Status of Refugees in International Law, 1966, p 283.
13 Secondly, article 1F(c) is applicable to acts which, even if they are not covered by the definitions of crimes against peace, war crimes or crimes against humanity as defined in international instruments within the meaning of article 1F(a), are nevertheless of a comparable egregiousness and character, such as sustained human rights violations and acts which have been clearly identified and accepted by the international community as being contrary to the purposes and principles of the United Nations. The appellants rely on Pushpanathan v Canada , Minister of Citizenship and Immigration (Canadian Council for Refugees intervening) [1998] 1 SCR 982(" Pushpanathan") per Bastarache J at para 65:
"....In my view, attempting to enumerate a precise or exhaustive list [of acts contrary to the purposes and principles of the United Nations] stands in opposition to the purpose of the section and the intentions of the parties to the Convention. There are, however, several types of acts which clearly fall within the section. The guiding principle is that where there is consensus in international law that particular acts constitute sufficiently serious and sustained violations of fundamental human rights as to amount to persecution, or are explicitly recognised as contrary to the purposes and principles of the United Nations, then article 1F(c) will be applicable."
14 On the other hand, not every act which is condemned by the United Nations is for that reason alone to be deemed contrary to its purposes and principles. In Pushpanathan itself, the majority held that international drug trafficking did not fall within article 1F(c), despite the co-ordinated efforts of the international community to suppress it, through United Nations treaties, declarations and institutions. As the UNHCR explains, in its "Background Note on the Application of the Exclusion Clauses: Article 1F..." (September 2003), at para 47:
"The principles and purposes of the United Nations are reflected in myriad ways, for example by multilateral conventions adopted under the aegis of the UN General Assembly and in Security Council resolutions. Equating any action contrary to such instruments as falling within article 1F(c) would, however, be inconsistent with the object and purpose of this provision. Rather, it appears that article 1F(c) only applies to acts that offend the principles and purposes of the United Nations in a fundamental manner. Article 1F(c) is thus triggered only in extreme circumstances by activity which attacks the very basis of the international community's co-existence under the auspices of the United Nations. The key words in article 1F(c) 'acts contrary to the purposes and principles of the United Nations' should therefore be construed restrictively and its application reserved for situations where an act and the consequences thereof meet a high threshold. This threshold should be 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. Thus, crimes capable of affecting international peace, security and peaceful relations between states would fall within this clause, as would serious and sustained violations of human rights."
15 Thirdly, for exclusion from international refugee protection to be justified, it must be established that there are serious reasons for considering that the person concerned had individual responsibility for acts within the scope of article 1F(c): see the detailed discussion at paras 50 to 75 of the UNHCR "Background Note". This requires an individualised consideration of the facts of the case, which will include an assessment of the person's involvement in the act concerned, his mental state and possible grounds for rejecting individual responsibility. As a general proposition, individual responsibility arises where the individual committed an act within the scope of article 1F(c), or participated in its commission in a manner that gives rise to individual responsibility, for example through planning, instigating or ordering the act in question, or by making a significant contribution to the commission of the relevant act, in the knowledge that his act or omission would facilitate the act. In Bundesrepublik Deutschland v B and D (Joined Cases C-57/09 and C-101/09) [2011] Imm AR 190 (" B and D") the Grand Chamber of the Court of Justice of the European Union confirmed the requirement of an individualised assessment and held that it was not justifiable to base a decision to exclude solely on a person's membership of a group included in a list of "terrorist organisations". This too is consistent with the approach adopted by this Court in R (JS (Sri Lanka)) v Secretary of State for the Home Department [2011] 1 AC 184.
16 In our view, this is the correct approach. The article 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'. And there should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character..."
12. The Supreme Court went on to conclude at [36] that the phrase: "acts contrary to the purposes and principles of the United Nations" must have an autonomous meaning and individual member states were not free to adopt their own definitions. They approved the conclusion reached by Sedley LJ in the Court of Appeal in Al-Sirri [2009] EWCA Civ 222; [2009] INLR 586 at [28]-[29]:
"28 Ours being a dualist system of law, the Refugee Convention has no domestic force save to the extent that it is adopted by national legislation. Formerly the route lay through the Immigration Rules, with their origin in the Immigration Act 1971. Since 2006 it has been through the Qualification Directive, which is given domestic force by the European Communities Act 1972. This is not merely a technical fact: by common consent it conditions and qualifies the application of s.1 of the Terrorism Act to art. 1F proceedings.
29 The reason is this. As has been seen, art 12 of the Directive, which sets minimum standards for the protection that member states are committed to give asylum-seekers, by paragraph (2)(c) reproduces the class of acts stigmatised by art. 1F(c) - acts contrary to the purposes and principles of the United Nations - and defines these by reference to paragraphs 1 and 2 of the Preamble to the Charter. Mr Eicke, on behalf of the Home Secretary, has not disputed that, even taken at its most generous, this formula does not go as wide as s.1 of the Terrorism Act 2000. It follows that the adoption by s.54(2) of the 2006 Act of the meaning of terrorism contained in the 2000 Act has where necessary to be read down in an art. 1F case so as to keep its meaning within the scope of art 12(2)(c) of the Directive."
"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."
14. At [39] and [40] the Supreme Court discussed the essence of terrorism:
"39 The essence of terrorism is the commission, organisation, incitement or threat of serious acts of violence against persons or property for the purpose of intimidating a population or compelling a government or international organisation to act or not to act in a particular way (see, for example, the definition in article 2 of the draft comprehensive Convention), as Sedley LJ put it in the Court of Appeal, "the use for political ends of fear induced by violence" (para 31). It is, it seems to us, very likely that inducing terror in the civilian population or putting such extreme pressures upon a government will also have the international repercussions referred to by the UNHCR. In this particular case, the AIT did not consider that any such repercussions were required, but commented that "if we are wrong about that we consider the killing itself to be an act of terrorism likely to have significant international repercussions, as indeed it appears to have done" (para 47). When the case returns to the Tribunal, the Tribunal will have to consider the totality of the evidence and apply the test set out above.
40 Finally, is it enough to meet that test that a person plots in one country to destabilise conditions in another? This must depend upon the circumstances of the particular case. It clearly would be enough if the government (or those in control) of one state offered a safe haven to terrorists to plot and carry out their terrorist operations against another state. That is what the Taliban were doing by offering Osama bin Laden and Al-Qaeda a safe haven in Afghanistan at the time. As the UNHCR says, this would have clear implications for inter-state relations. The same may not be true of simply being in one place and doing things which have a result in another. The test is whether the resulting acts have the requisite serious effect upon international peace, security and peaceful relations between states."
15. Mr Friedman QC on behalf of the appellant also relied upon the judgments of Lord Brown and Lord Hope in R (JS (Sri Lanka)) v SSHD [2010] UKSC 15; [2011] AC 184 and of the CJEU in Germany v B & D [2012] 1 WLR 1076, in support of the propositions that for Article 1F(c) to be engaged the person in question must have sufficient individual responsibility and must have contributed significantly to the relevant acts. Those propositions are not in doubt in an appropriate case, but we agree with Mr Robin Tam QC on behalf of the Secretary of State that they are of no relevance in the present case. Those cases were ones where the basis for exclusion was membership of a terrorist organisation. The issue was whether it was sufficient to be a member, to which the courts answered no, there had to be some element of individual responsibility for the activities of the organisation or a significant contribution to the organisation's ability to pursue its activities. However, as Mr Tam QC correctly submitted, that is not the case here. This case concerns someone who downloaded terrorist material onto his computer: it concerns his own acts, so he has individual responsibility.
16. We also agree with Mr Tam QC that the argument about significant contribution is a red herring in the present case. It derives from those cases where there had been a concluded act or series of acts by a terrorist organisation, for example the assassination of General Masoud in Al-Sirri or war crimes in Sri Lanka in JS and the issue was whether the person in question made a significant contribution to the act or series of acts. The present case is not such a case. If the appellant is excluded under Article 1F(c), it is because of his own act. There is no doubt that he made a significant contribution, only he committed the relevant act.
The principles and purposes of the United Nations
17. There is no definitive statement by the United Nations of what its "principles and purposes" are, which are being referred to in Article 1F(c). However, as Sedley LJ held at [30] of his judgment in Al-Sirri, a legitimate indicator may be relevant Security Council Resolutions. Our attention was drawn by Mr Tam QC to a number of these and to a General Assembly Resolution which must also be a legitimate indicator.
"The General Assembly
1. Strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed;
2. Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them;"
"The Security Council
Decides also that all States shall:
(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;
(d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;
(e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;"
"The Security Council
Calls upon all States to
(f) Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts;"
"5. Declares that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations;"
"The Security Council
Underlining the obligation placed upon all Member States to implement, in full, resolution 1373 (2001), including with regard to any member of the Taliban and the Al-Qaida organization, and any individuals, groups, undertakings and entities associated with the Taliban and the Al-Qaida organization, who have participated in the financing, planning, facilitating and preparation or perpetration of terrorist acts or in supporting terrorist acts, as well as to facilitate the implementation of counter terrorism obligations in accordance with relevant Security Council resolutions,"
"The Security Council
[2] Reaffirming also the imperative to combat terrorism in all its forms and manifestations by all means, in accordance with the Charter of the United Nations, and also stressing that States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights law, refugee law, and humanitarian law,
[3] Condemning in the strongest terms all acts of terrorism irrespective of their motivation, whenever and by whomsoever committed, as one of the most serious threats to peace and security, and reaffirming the primary responsibility of the Security Council for the maintenance of international peace and security under the Charter of the United Nations,
[4] Condemning also in the strongest terms the incitement of terrorist acts and repudiating attempts at the justification or glorification (apologie) of terrorist acts that may incite further terrorist acts,"
...
[8] Reaffirming that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations,
...
[15] Recalling that all States must cooperate fully in the fight against terrorism, in accordance with their obligations under international law, in order to find, deny safe haven and bring to justice, on the basis of the principle of extradite or prosecute, any person who supports, facilitates, participates or attempts to participate in the financing, planning, preparation or commission of terrorist acts or provides safe havens,"
24. Paragraph 1 of the Resolution itself provides:
"[The Security Council]
Calls upon all States to adopt such measures as may be necessary and appropriate and in accordance with their obligations under international law to: (a) Prohibit by law incitement to commit a terrorist act or acts; (b) Prevent such conduct; (c) Deny safe haven to any persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of such conduct;"
Section 57 of the Terrorism Act 2000
26. Section 57 of the Terrorism Act 2000 created the offence of possessing articles for terrorist purposes. It provides:
"57 Possession for terrorist purposes.
(1) A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.
(2) It is a defence for a person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism.
(3) In proceedings for an offence under this section, if it is proved that an article—
(a) was on any premises at the same time as the accused, or
(b) was on premises of which the accused was the occupier or which he habitually used otherwise than as a member of the public,
the court may assume that the accused possessed the article, unless he proves that he did not know of its presence on the premises or that he had no control over it."
27. The purpose and operation of section 57 were considered by a five judge Court of Appeal Criminal Division (Lord Phillips CJ, Latham LJ, Cresswell, Holland and Burton JJ) in R v Rowe [2007] EWCA Crim 635; [2007] QB 975. In that case, the appellant was convicted of two counts under section 57 of possession of a notebook containing his manuscript notes of instructions on how to assemble and operate a mortar and of a video case containing a substitution code listing components of explosives and places of a type susceptible to terrorist bombing. He had been arrested at Coquelles as he tried to enter the United Kingdom on a coach bound for Victoria Coach Station and the prosecution case was that he had been shortly to embark on a terrorist venture and that the notebook and the substitution code were held for terrorist purposes. The trial judge passed consecutive sentences of 7½ years' imprisonment on each count, a total of 15 years' imprisonment.
28. At [53] of the judgment, the Court dealt with the appropriate approach to this type of offence:
"53. The point that has caused us more concern has been Mr Mansfield's submission that the judge erred in principle in awarding consecutive sentences and that the total sentence of 15 years was greater than was justified by the overall seriousness of the appellant's conduct. This raises the question of the appropriate approach to this type of offence. Section 57 makes provision for a special type of inchoate offence in relation to terrorism. Under the Criminal Attempts Act 1981, which replaced the common law, attempting to commit an offence carries criminal liability where a person, with intent to commit an offence, does an act that is more than merely preparatory to the commission of the offence. Section 57, for good and obvious reason, makes criminal conduct that is merely preparatory to the commission of terrorist acts. While such conduct is highly culpable, it is not as culpable as attempting to commit, or actually committing, the terrorist acts in question. But the seriousness of the offence consists not merely in the culpability of the offender but the potential of his conduct to cause harm..."
29. The Court of Appeal recognised at [54] that the seriousness of an offence under section 57 may justify a very long sentence indeed, providing both punishment and protection for the public. The Court noted at [55] that the trial judge had had these considerations in mind when he commented that "there will be cases where possession of objects for a terrorist purpose will have occurred in a context which makes the offence one of a high order of gravity..." He had concluded that the maximum sentence for an offence under section 57 of 10 years was inadequate, hence the consecutive sentences he passed and the Court of Appeal noted that Parliament had no doubt been of the same view when it increased the maximum sentence to 15 years in the Terrorism Act 2006. However, in the particular circumstances of that case, the Court of Appeal reduced the overall sentence to one of 10 years' imprisonment.
31. Of course, we accept that the length of the sentence of imprisonment cannot be determinative of the issue whether the appellant should be excluded under the Refugee Convention, although it must be a material factor. As Rix LJ said at [54] of his judgment in AH (Algeria) v SSHD [2012] EWCA Civ 395; [2012] 1 WLR 3469:
32. In fairness to Mr Friedman QC, his point about these being prophylactic or preparatory offences was not so much to suggest that they were minor, (although, whilst accepting their seriousness, he submitted that they were insufficiently grave to be contrary to the purposes and principles of the United Nations within Article 1F(c)), as to reinforce a submission he made that counter-terrorism measures such as under section 57 went beyond the requirements of the United Nations and other international law initiatives against terrorism. They were measures designed to nip terrorism in the bud, but went beyond the international law obligations of the United Kingdom, like the offences under section 2 of the Terrorism Act 2006 considered by the Supreme Court in R v Gul [2013] UKSC 64; [2014] AC 1260, where in the judgment of Lord Neuberger and Lord Judge at [53] the principle was stated: "there is no rule that the UK government cannot go further than is required by an international treaty when it comes to legislating - the exercise is often known as 'gold-plating.'" Mr Friedman QC submitted that the inchoate offences created by section 57 were far broader than and went beyond any international treaty obligations of the UK. We will return to this point when we consider the application of the Security Council Resolutions by reference to the detailed circumstances of the appellant's offending.
M ust an act of terrorism have taken place?
33. Mr Friedman QC made a related point that, in order for someone to be guilty of acts contrary to the purposes and principles of the United Nations within Article 1F(c) of the Refugee Convention, acts of international terrorism must in fact have taken place and it was not sufficient that the appellant might have planned or encouraged or facilitated such acts if, as in the present case, they had never taken place. Mr Friedman QC recognised that this argument had been recently rejected by the Upper Tribunal in Youssef v SSHD [2016] UKUT 137 (IAC) but submitted that that case was wrongly decided.
34. In that case, reliance was placed by the appellant on the fact that, under the jurisdiction of the International Criminal Court , ordering, soliciting or inducing the commission of a crime only gives rise to individual criminal responsibility if a crime in fact occurs or is attempted. This contrasted with the position in domestic criminal law, under which soliciting, inducing or inciting an offence would each constitute an "auxiliary" or "inchoate" offence, regardless of whether any primary offence was committed or attempted. In R (JS (Sri Lanka)) v SSHD, a case concerned with Article 1F(a) of the Refugee Convention, the Supreme Court had upheld the view of Toulson LJ in the Court of Appeal that international criminal law should be the starting point for considering whether an applicant is disqualified from asylum by virtue of Article 1F(a). In Youssef the appellant contended that the same reasoning should apply to Article 1F(c).
35. T he Upper Tribunal rejected that contention. At [23] and [24] of the judgment they said:
"23 The point of distinction as it seems to us, is the distinction between crimes and other acts. Article 1F(a) and (b) are both concerned with crimes and it is not surprising therefore that rules emanating for example from the ICC Statute should be regarded as applicable to both of those limbs, though applicability to 1F(b) must be a matter in our view for future litigation since JS was concerned with 1F(a) only. But the fact that there may be an overlap does not in our view justify the conclusion that there is anything surprising or curious about the fact that different elements of secondary liability may apply to the different heads under Article 1F bearing in mind the different types of matter with which they are concerned. The fact that a particular act may fall within 1F(c) and at the same time fall under (a) or (b) does not in our view invest it with the necessarily criminal character of a kind which would require incorporating the ICC Statute provisions into our assessment of the Rules pertaining to 1F(c).
24 ... [Article 1F(c)] is not a provision concerned with the commission of a crime, and we do not accept Mr Mackenzie's argument that whether on the basis of what was said in JS or on any other basis can it properly be said to be a requirement of Article 1F(c)'s applicability that it is necessary to show anything beyond incitement and/or encouragement of acts of international terrorism without such acts having to be shown to have taken place."
36. Mr Friedman QC submitted that this reasoning was flawed, arguing that, in all cases under Article 1F the court or tribunal was concerned with examining criminal conduct and it would be surprising if a different standard applied to (c) than applied to the other sub-paragraphs. He relied upon [47] to [49] of the UNHCR Background Note on the Application of the Exclusion Clauses (2003), [48] and [49] of which at least suggest that only global acts of terrorism would be excluded by Article 1F(c). However, whilst of course the Commission will accord "considerable weight" to the "valuable guidance" of the UNHCR (see Recital (15) of the Qualification Directive and [36] of the Supreme Court judgment in Al Sirri), we note that in Al Sirri at [14] the Supreme Court only endorsed [47] of the Background Note and the suggestion made in [48] which underpins the reasoning in the Background Note in [49], that Article 1F(c) should be limited to "state actors", was expressly rejected by the Court of Appeal in Al Sirri (see per Sedley LJ at [36]-[39] and before the Supreme Court, the UNHCR itself accepted that the Article was not so limited (see [25(1)] of the judgment). In the circumstances, we do not consider much reliance can be placed on [48]-[49] of the Background Note.
37. Mr Friedman QC also relied upon a passage in Hathaway and Foster: The Law of Refugee Status 2 nd edition at pp 586-589 which suggests that the circumstances in which Article 1F(c) should apply to non-state actors should be strictly limited, but we agree with Mr Tam QC that the editors are expressing views as to what Article 1F(c) should or should not cover which go beyond the law as set out in Al Sirri. We were equally unimpressed by Mr Friedman QC's arguments that Youssef was wrongly decided on its facts or, if not, should be distinguished on its facts from the present case (a point to which we return towards the end of this judgment). At this stage, we are simply concerned with whether the statement of the law in Youssef is correct.
38. Although we note that the decision of the Upper Tribunal in Youssef is to be appealed to the Court of Appeal, that is no reason not to follow its reasoning if we find it compelling, which we do. We consider that the Upper Tribunal was correct to conclude that Article 1F(c) is not simply concerned with completed terrorist acts. Nothing in the wording of the provision itself compels the contrary conclusion. Furthermore, we agree with Mr Tam QC that nothing in the various Security Council Resolutions to which we were referred, justifies the conclusion that, when they condemn matters such as planning or financing acts of terrorism, that condemnation is limited to cases where an act of terrorism has subsequently taken place. Mr Tam QC gave a hypothetical example of the FBI uncovering the 9/11 plot and thwarting the terrorists in acts of preparation on 10 September 2001. He submitted that it would be absurd to suggest that what the terrorists had done before they were thwarted was not contrary to the purposes and principles of the United Nations. We agree with that submission. It seems to us that, if the Resolutions were intended to be limited to completed acts of terrorism, they would say so in terms. They do not and there is nothing in them to justify such a gloss. In the circumstances, we are quite satisfied that the "acts" referred to in Article 1F(c) are not limited to situations where acts of terrorism have actually taken place.
The correct approach to the evidence
39. Before considering the evidence in this case and whether it justifies the exclusion of the appellant under Article 1F(c) we should set out what we consider to be the correct approach to the evidence and the question whether "there are serious grounds for considering" that the appellant was "guilty of acts contrary to the purposes and principles of the United Nations".
Convictions as evidence in civil proceedings.
(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom...shall (subject to subsection (3) below) be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.
"We are, it is clear, attempting to discern the autonomous meaning of the words "serious reasons for considering". We do so in the light of the UNHCR view, with which we agree, that the exclusion clauses in the Refugee Convention must be restrictively interpreted and cautiously applied. This leads us to draw the following conclusions:
(1) "Serious reasons" is stronger than "reasonable grounds".
(2) The evidence from which those reasons are derived must be "clear and credible" or "strong".
(3) "Considering" is stronger than "suspecting". In our view it is also stronger than "believing". It requires the considered judgment of the decision-maker.
(4) The decision-maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law.
(5) It is unnecessary to import our domestic standards of proof into the question. The circumstances of refugee claims, and the nature of the evidence available, are so variable. However, if the decision-maker is satisfied that it is more likely than not that the applicant has not committed the crimes in question or has not been guilty of acts contrary to the purposes and principles of the United Nations, it is difficult to see how there could be serious reasons for considering that he had done so. The reality is that there are unlikely to be sufficiently serious reasons for considering the applicant to be guilty unless the decision-maker can be satisfied on the balance of probabilities that he is. But the task of the decision-maker is to apply the words of the Convention (and the Directive) in the particular case."
The evidence
Association with terrorists before coming to the UK
"I decline to make findings of fact in relation to Holland. It seems to me that the authorities in Holland are much better able on the material available to them to decide about your activities in that country..."
Use of multiple identities when the appellant came to the UK
"Doubts remain as to who you really are and where you really come from. In my view, the only reasonable conclusion to be drawn from these features of the case [which included: "your multiple identities, your different addresses, your coming into this country from Holland late in 2002 under an assumed name and on any fair view the...lies you told before and during the police inquiry into this case"] is that you were indeed a sleeper for some sort of terrorist organisation."
The link with Feroze
The Terrorism Act offences
Counts 2, 3, 4 and 6
"AL Qaeda Organisation
Al-Haramain Liberation Group
In the current bloodshed that Muslims are exposed to on the hands of the crusaders. In preparation to face the crusades which will extend to reach all the Islamic world. In the new crusade on Islam we aim, using this website to increase the number of Islamic organisations and parties, to fight the crusaders and establish Calipha state (Islamic state) on the ruins of the betrayal state. This website contains information on making explosives, organising cells, establishing parties, and gangs warfare. It also benefit in individual operations.
Introduction to explosives
Sensitive explosives
Semi-sensitive explosives
Stun grenades.
Splitting explosives
Detonators
Making explosives
Grenades types
How do firearms work
Silencer
Military Topography
Electronic workshop
Group of lessons
Join one of Mujahideen cells.
The prophet said, what means if two Muslims faced each other holding their swords, the killed and the killer are in hell. They asked, that is the killer why the killed? He said, he tried to kill."
89. Mr Friedman QC submitted in his written reply submissions after the hearing that the general availability on the internet of material downloaded onto the Lansdowne Road computer about how to make explosives, whilst it was irrelevant to whether the appellant had committed offences under section 57 of the Terrorism Act 2000, was relevant to any impact assessment of the appellant's conduct in relation to whether exclusion was justified under Article 1F(c). If the material in respect of which the appellant was convicted had been limited to instructions on how to make explosives which, by one means or another, were publicly available on the internet, we can see the force of the submission. However, the problem for the appellant in advancing this argument is that the totality of the material he downloaded was not limited to such publicly available material, but included the "terrorist manual" material to which we referred in [87] above, together with the organisational chart for the setting up of terrorist cells, including in the UK and elsewhere in western society, covered by count 1, dealt with below. Given the seriousness and significance of that material, we consider that the "public availability" argument is misconceived.
Count 1
"Conclusion 1 - This chart seems to have derived from many years of experience of the Mujahideen, probably in Afghanistan. It certainly echoes the structure and operations of the Afghan Mujahideen during the era of Soviet occupation from 1978 - 1988 and then since 2001. It mixes the doctrines organisations and operations of guerrilla warfare and of terrorism which in Mujahideen thinking was always part of the same campaign. Nevertheless the chart has also been upgraded and is designed also to cover urban terrorist operations in capitals and suburbs - something the Mujahideen seldom did when fighting the Soviets.
Conclusion 2 - It is a generic chart that is intended to be adapted to specific circumstances. In some ways the chart is very detailed. In others fairly general. It provides a viable organisational structure for a big operational area and makes clear that it is to cover whole countries, both large and small. It does not tell cells how to go about terrorist operations but it does provide an extensive check list of what is required to be a successful cell and encourages cells to be aware of the targets that are appropriate. It reminds cell leaders of the functions they have to ensure are performed of the skills they need to train and develop of their reporting lines to the central organisation and of their ultimate religious commitment to the Jihad.
Conclusion 3 - "All of the functions described here despite being generic and derived apparently from a rural guerrilla campaign are intrinsic to successful, prolonged terrorist campaign. They are all important and though they will be interpreted differently in various countries and environments, no ongoing terrorist campaign would be successful unless it performed all the main functions described here. This chart represents a feasible terrorist structure and organisational design.
Conclusion 4 - The chart bears many similarities to sections of the "encyclopaedia of Jihad" and many of the other "terrorist manuals and terrorist videos that circulate in Jihadi groups". It is more complete than many of them and covers all major aspects of guerrilla and terrorist structure and organisations.
Conclusion 5 - The inclusion of so many key references to the Al Ghurabaa (and a brigade not just Al Ghurabaa as "the strangers") suggest that this chart has been adapted to apply (at least organisationally) to the United Kingdom. Unless there is another grouping that goes under this name in another country of which I am not aware, I cannot draw any other inference than that this generic chart has been adapted to represent how a terrorist cell structure should be applied through Al Ghurabaa to the UK or perhaps some other western country if the "brigade" operates clandestinely somewhere else."
"As to the areas of the world to which it could apply, ...I have already indicated I think that Professor Clarke accepted that some of these entries were more appropriate to for example, Afghanistan, but that some of the entries were entirely appropriate to western societies and I don't think that I need to remind you of his evidence in that regard. He also said that the whole document that had what he called a Tac Feri theme or motive to it and that, members of the jury, brought him to refer to an organisation called "Tac Feri"... He said its attitude is violent and bizarre even by the standards of terrorism experts. It will kill its own supporters if they slip from its core requirements. It will not compromise with [other] states or opponents of its view. They advocate placing sleepers in foreign countries. After 2001, this organisation was believed to have support in Britain, France, Germany and Spain. The organisation is believed still to be current and to offer inspiration to potential terrorists. And, members of the jury, Professor Clark detected in this chart an influence in relation to that organisation.
In cross-examination he said the Tac Feri were a group of people can declare anyone who doesn't agree with them as infidels who can then be killed. That is completely alien to normal Muslim thinking [and] that Al Qaeda do hold with this ideology. The Tac Feri Group also allow suicide bombings.
His conclusions from all of this chart, members of the jury, were this, "I have no doubt at all this is an earnest and genuine attempt to inform and educate potential terrorists in relation to the planning and execution of terrorist activity.""
Count 5
96. Count 5 related to material found on a computer which the police seized from the East Bank Street address on 12 June 2006. The material in question was found in the temporary internet cache of the computer (which was on the floor in a room off the kitchen). It was not possible to say exactly how the material had got there, but it had been placed on the computer on 21 November 2004. The material might have been downloaded from one of two websites, adat8k.com or mojahedun.com, both of which were mentioned in a diagram forming part of the material but it was not possible to say that the material had been downloaded from either website. The material provided instructions on how to make and detonate a nail bomb. It ended with the words: "Peace and prayers upon the leaders of the majahedun."
Other extremist material on the computers
100. Similar extremist articles and other materials were found on the Lansdowne Road computer which was clearly the appellant's computer. As Mr Tam QC pointed out, as recently as 10 June 2006, two days before his arrest, an attempt had been made by the appellant to access an extremist website on the Lansdowne Road computer.
"Taking all this material together I have no doubt that it constitutes evidence of genuine terrorist planning and organisation. The fact that it is very disparate is typical of modern Jihadi cell organisation and the range of material may indicate more ambitious intentions than any cell is able to perform. What is not in doubt however is the intense Jihadism and hostility to those outside the framework of Jihad which is displayed consistently throughout these documents."
Proficiency with computers
The directions as to the law, the sentencing remarks and the decision of the Court of Appeal
"Now members of the jury if you are sure and of this you would need to be sure that Mr. Altimimi did select the article in the count that you are considering, and have selected it put that article on his computer knowing what it was, then he would be in possession of it, whether or not he subsequently actually brought it up on any particular computer screen, to see it or listen to it. The Crown says it is up whether you accept this that it was there available to be listened to or looked as and when the need arose. In other words what the Crown's case against Mr. Altimimi is that he was effectively a "sleeper" and had the material available to him to bring up as and when the need arose. I hope I make it clear to you members of the jury exactly what it the prosecution must prove in relation to the allegation that Mr. Altimimi was in possession of this in Count 1 of the chart. Exactly the same considerations apply can I make it clear, to the allegations of possession in relation to Counts 2,3,4,5 and 6.
106. In sentencing the appellant the trial judge said this:
"Having been convicted by the jury, on the basis of what I have to say seemed to me to be the clearest possible evidence, you now fall to be sentenced for 6 offences contrary to Section 57 of the Terrorism Act of 2000 and for two offences contrary to the Proceeds of Crime Act 2002. The offences contrary to the Terrorism Act are, in my view, amongst the most serious of their kind likely to come before the courts, although one can never discount the possibility that yet more serious cases might emerge. I say this, because taken together the material which you had in your possession on two different computers at two different addresses consisted of an organisational chart for the establishment of terrorist cells and detailed and genuine instructions in relation to the making of harmful chemicals, explosive substances, detonators, explosive devices and bombs and the placing of such devices and the targeting of particular premises, public places and public figures.
Your possession of this material has to be seen in the context of other features of the case. One, is the additional material also found on your computer at Lansdowne Road, but part of the background is formed also by your multiple identities, your different addresses, your coming to this country from Holland, late in 2002 under an assumed name and, on any fair view, the end also lies which you then told before and during the police inquiry into this case.
Doubts remain as to whom you really are and where you really come from. In my view the only reasonable conclusion to be drawn from these features of your case is that you were indeed as the prosecution contended, a sleeper for some sort of terrorist organisation."
107. Between the sentencing of the appellant on 6 July 2007 and the hearing before the Court of Appeal Criminal Division on 6 November 2008, the Court of Appeal Criminal Division decided R v Zafar and others [2008] EWCA Crim 184; [2008] QB 810. In that case, the appellants were convicted of offences of possessing articles for a purpose connected with the commission, preparation or instigation of an act of terrorism, contrary to section 57 of the Terrorism Act 2000. The articles in question were documents, compact discs or computer hard drives on which material had been electronically stored, which included ideological propaganda as well as communications between the appellants and others which the prosecution alleged showed a settled plan under which the appellants would travel to Pakistan to receive training and thereafter commit a terrorist act or acts in Afghanistan.
"27. There was considerable debate at the hearing of the appeal as to the effect of the words "connected with" in section 57. Did those words give the section a wider ambit than if it had provided that 'a person commits an offence if he possesses an article...for the purpose of the commission, preparation or instigation of an act of terrorism'? Mr Edis submitted that in the present case the prosecution had proceeded on the basis that they had to prove that the possession of the articles was "for the purpose of the commission, preparation or instigation of acts of terrorism" and the jury had been directed on that basis. None the less, he submitted that the addition of the words "connected with" did enlarge the ambit of the section. This is a matter that we must address, for an issue has been raised as to whether the ambit of the section is too uncertain to satisfy the requirements of legality.
28. We can exemplify the problem in this way. It was the prosecution case that the appellants were party to a plan that involved the following three stages:
i. travelling to Pakistan;
ii. training in Pakistan;
iii. fighting against the government in Afghanistan.
Only the third stage would amount to 'acts of terrorism'. One could, however, say that travelling to Pakistan and training were "connected with the commission of acts of terrorism". We asked Mr Edis whether possession of an air ticket for travel to Pakistan would constitute "possession of an article for a purpose connected with the commission of acts of terrorism". He answered that it would. What then, we asked, of the cheque book that was to be used to pay for the air ticket? Mr Edis conceded that we were getting into difficult territory. The reality is that the phrase "for a purpose in connection with" is so imprecise as to give rise to uncertainty unless defined in a manner that constrains it.
29. We have concluded that, if section 57 is to have the certainty of meaning that the law requires, it must be interpreted in a way that requires a direct connection between the object possessed and the act of terrorism. The section should be interpreted as if it reads:
"A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that he intends it to be used for the purpose of the commission, preparation or instigation of an act of terrorism.""
110. The Court of Appeal rejected that application on the basis that, even if the trial judge had had the benefit of seeing the judgment in Zafar, it would have made no difference to the verdict of the jury. At [10]-[11] of the judgment ( R v Altimimi [2008] EWCA Crim 2829) the Court held as follows:
"10. We have considered that submission in the light of the material with which the court was concerned at this trial. The prosecution case, as expressed by the judge in the summing up, was that this material indicated that the applicant was what was described as a "sleeper"; in other words, he was a person who had the material on his computer ready to be used if and when either he or others considered it appropriate for that material to be used. That was implicit in the way the case was put to the jury and it was essentially the way that the prosecution sought to establish that the applicant possessed that material.
11. It seems to us, in those circumstances, that the inevitable consequence of the jury's verdicts in this case is that the only conclusion that could be reached from possession of the material was indeed that it would be used in the way that the prosecution were seeking to persuade the jury. It follows that although the judge did not direct the jury as he might have done had he had the advantage of seeing the judgment in Zafar, it can make no difference to the ultimate verdict in this case, bearing in mind that what the jury would have to be satisfied of was that the circumstances of possession gave rise to a reasonable suspicion that he intended to use it."
111. Before the Commission, Mr Friedman QC placed emphasis on the fact that a judgment of the Court of Appeal Criminal Division on a renewed application for permission to appeal is of no precedential value and should not be cited in other cases. With respect, that submission completely misses the point, which is that the judgment is the decision of the Court of Appeal Criminal Division in the appellant's own case, not some other case and, as such, it is of critical importance to the central issue in this case in relation to Article 1F(c) of the Refugee Convention. The Court of Appeal Criminal Division concluded, in the passage we have quoted above from its judgment, that the jury must have found the appellant guilty on the basis that they were satisfied, to the criminal standard of proof, that the appellant was indeed a sleeper for a terrorist organisation, who downloaded the terrorist material so that it would be ready to be used by him or others as and when it was considered appropriate for it to be so used. Clearly, that was the motive for downloading the material, not some idle curiosity.
Post-conviction evidence
Analysis and conclusions on the evidence and whether Article 1F(c) is satisfied
(1) Before he came to the UK from Holland the appellant was associating and living with people he knew to be terrorists who were members of international Al Qaeda or Al Qaeda-related terrorist groups and, in all probability was responsible for a money transfer to one such terrorist in Thailand ([45]-[56] above).
(2) The appellant came to the UK in September 2002 and claimed asylum on a fraudulent basis using one of his identities and over the next four years he used multiple identities with a constantly changing story as to his nationality and history ([57]-[69] above).
(3) Whilst living at the East Bank Street address the appellant associated with Feroze, another terrorist involved in an Al Qaeda bomb plot ([70]-[72] above).
(4) In November 2003, little more than a year after arriving in the UK, the appellant downloaded terrorist material onto the Lansdowne Road computer using a secret code that in all probability he was given by someone else within the terrorist organisation ([74]-[78] above).
(5) That material went beyond instructions on how to make explosives which could have been obtained publicly on the internet but included instructions on how to hide explosives in public places and how to blow up buildings and bomb Embassies, in effect what we have described as a "terrorist manual" ([81]-[89] above).
(6) In December 2004, the appellant then downloaded the organisational chart for setting up terrorist cells which had been adapted for use in the UK and, whether it emanated from Al Qaeda or an Al Qaeda-related or associated organisation, clearly emanated from an organisation dedicated to violent terrorist activity against Western society ([90]-[95] above).
(7) In November 2004, the appellant downloaded material on how to make and detonate a nail bomb onto his other computer at the East Bank Street address ([96] above).
(8) The appellant continued to use the computers in 2005 (and in the case of the Lansdowne Road computer right the way until just prior to his arrest in June 2006) to access extremist material glorifying terrorism, including at least one Al Qaeda propaganda video ([97]-[101] above).
(9) The appellant lied persistently and repeatedly to the police in the interviews about his identity, his history and his conduct ([62]-[64] above).
(10) The appellant did not give evidence at his criminal trial and in his witness evidence served since he fails to deal adequately or at all with any of the matters set out above and he did not attend the hearing before the Commission to be cross-examined ([112]-[116] above).
123. Turning to the issue whether the acts of which he is guilty are "contrary to the purposes and principles of the United Nations" within the meaning of Article 1F(c) of the Refugee Convention, in our judgment, consideration of the various Resolutions of the Security Council which we set out at [19] to [24] above demonstrates clearly that the acts of which the appellant is guilty were contrary to the purposes and principles of the United Nations. As we have held, the totality of the evidence does demonstrate that the appellant was a sleeper for a terrorist organisation which if not Al Qaeda itself, was related to or associated with or inspired by Al Qaeda and that the material downloaded onto his computer was ready to be used if and when either he or others considered it appropriate for that material to be used for terrorist purposes. Contrary to the submissions of Mr Friedman QC that this is all too remote from terrorist acts to be contrary to the purposes and principles of the United Nations, we consider that the appellant's conduct clearly amounted to the planning and/or facilitation of acts of terrorism. As we said at [120] above, the contrary would simply be unarguable, if a terrorist attack had eventuated as a consequence of the organisation using the material he had downloaded and, in our judgment, it can make no difference to the quality of the appellant's acts as planning and/or facilitation of terrorist acts that no terrorist attack eventuated. Furthermore, as we also held at [34]-[38] above, Article 1F(c) does not require that an act of terrorism has in fact taken place and Youssef was correctly decided.
129. In his submissions, Mr Friedman QC emphasised the commentary of the UNHCR in relation to preambular paragraph [8] in its "Note on the Impact of Security Council Resolution 1624 (2005) on the Application of Exclusion under Article 1F of the 1951 Convention relating to the Status of Refugees" quoted (with emphasis supplied) by the Supreme Court at [31] of the judgment in Al Sirri:
"The focus should . . . continue to be on the nature and impact of the acts themselves. In many cases, the acts in question will meet the criteria for exclusion as 'serious non-political crimes' within the meaning of article 1F(b). In others, such acts may come within the scope of article 1F(a), for example as crimes against humanity, while those crimes whose gravity and international impact is such that they are capable of affecting international peace, security and peaceful relations between states would be covered by article 1F(c) of the 1951 Convention. Thus, the kinds of conduct listed in [preambular paragraph] 8 of Resolution 1624 - i.e. 'acts, methods and practices of terrorism' and 'knowingly financing, planning and inciting terrorist acts' - qualify for exclusion under article 1F(c), if distinguished by these larger characteristics." (Emphasis supplied)"
130. As Mr Friedman QC correctly points out, the Supreme Court approved this analysis by the UNHCR in [40] of the judgment, which we cited at [14] above. It follows from that and the approval of the Supreme Court at [38] of the judgment of the "appropriately cautious and restrictive approach" of the UNHCR that, in order to lead to exclusion of the appellant under Article 1F(c), his acts must have an international dimension and be capable of affecting international peace, security and peaceful relations between states.
131. Mr Friedman QC submits that the conduct of the appellant here, however serious his criminality, lacks that international dimension or larger international characteristic, essentially because, whilst he may have been planning or facilitating terrorist acts, this was all at a preparatory stage and no terrorist attack ever eventuated. Leaving aside the point about whether Article 1F(c) applies only where a terrorist attack or act has eventuated and, as we have held, we consider that Youssef was correctly decided in relation to that issue, we also consider that Mr Tam QC is correct in his submission that Mr Friedman QC's submissions significantly understate the seriousness and significance of the appellant's criminal conduct.
134. In this context, in his submissions about Youssef, Mr Friedman QC submitted that, even if that case was rightly decided, there were important points of distinction between that case and the present, so that, just because the acts of the appellant in that case were sufficiently serious to justify exclusion under Article 1F(c), it did not follow that the same was true of the present appellant. The appellant there was assessed by the Security Service to be a senior figure in Egyptian Islamic Jihad. He had published sermons and other material on the internet praising Osama bin Laden, including what Mr Friedman QC described as a "glorification ode" on the day of his death. The Upper Tribunal considered the language used by the appellant to be explicit direct encouragement or incitement to acts of terrorism and so within the exclusion in Article 1F(c). Mr Friedman QC submitted that a man with that status within an Islamist organisation who was inciting violence had a far more significant degree of proximity to acts of terrorism than the appellant in the present case. The appropriate analogy would be if Youssef had left his glorification ode at home and not published it.
136. Mr Friedman QC also sought assistance from the case of Al Sirri when it was heard in the First Tier Tribunal, after it had been remitted by the Supreme Court. From the judgment of the First Tier Tribunal of 13 April 2015 at [25] and [26] it emerges that on Al Sirri's premises were found some 2,000 copies of a book (which he admitted publishing and writing the foreword) entitled: "Bringing to Light some of the Judgments of the Peak of the Summit of Islam" which espoused the killing of Jews, quoting from the Quran in justification, together with military manuals on making explosives. This material was relied upon by the Secretary of State in support of her case that Al Sirri was a conspirator and involved in the assassination plot. The First Tier Tribunal held at [108] that whilst this material was circumstantial evidence of his sympathy was extremist views and support for jihad, it did not advance the case that he was a conspirator and at [109] that, as the Secretary of State accepted, this material showing associations with terrorists was insufficient in itself to bring the appellant within Article 1F(c).
137. In our judgment, this does not assist the appellant in the present case. Obviously, if the only evidence against the appellant were his association with terrorists in Holland and with Feroze in the UK and the presence on his computers of the other extremist material (other than the material which was the subject of the six counts under the Terrorism Act), which would be the appropriate comparison, one could see that it would be difficult to sustain a case for exclusion under Article 1F(c). However, that would be to ignore the serious criminality of which he was convicted. His associations with terrorists did not lead to any criminal charges and however unpleasant and inflammatory the other extremist material found on his computer, he was never charged in relation to that, just as, once the Common Sergeant dismissed the criminal charges against Al Sirri, he was not subject to any criminal charges, however extremist and inflammatory his views.
138. The critical difference between this case and those of Al Sirri and Youssef is that the appellant in this case was tried and convicted of terrorist offences which the trial judge described as: "amongst the most serious of their kind likely to come before the courts". It does seem to us that many of Mr Friedman QC's submissions on this part of the case do involve downplaying how serious this offending was or, as Mr Tam QC put it, trivialising the offending. In our judgment, the trial judge's assessment of the seriousness of the criminality of the appellant (with which the Court of Appeal clearly agreed) was entirely correct. When it is put in the context of the totality of the evidence against the appellant, which we have sought to summarise in earlier sections of this judgment, the case under Article 1F(c) is amply made out. Even interpreting the Article narrowly and applying it restrictively as the Supreme Court held it should be, we consider that the case is clear that there are serious reasons for considering that the acts of which the appellant was guilty were contrary to the purposes and principles of the United Nations.
Conclusion
139. It follows that, for all the above reasons, the appellant's appeal against his exclusion from the protection of the Refugee Convention by reason of the application of Article 1F(c) and against his exclusion from humanitarian protection is dismissed.