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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v DD (Afghanistan)  EWCA Civ 1407 (10 December 2010)
Cite as:  EWCA Civ 1407
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ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL
Immigration Judge EN Simpson
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LADY JUSTICE BLACK
| Secretary of State for the Home Department
|- and -
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Christopher Jacobs (instructed by Duncan Lewis) for the Respondent
Hearing date : 6 October 2010
Crown Copyright ©
Lord Justice Pill :
"(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."
"What is crucial, in my opinion, is the manner in which the logic of the exclusion in Art 1F generally, and Art 1F (c) in particular, is related to the purpose of the Convention as a whole. The rationale is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a Convention designed to protect those refugees."
"1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace."
Article 2 imposes on states which are members of the United Nations an obligation to act in accordance with certain principles. These include:
"2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.
3. . . .
4. . . .
5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action."
"(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."
"'acts' of terrorism means criminal acts directed against a state and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public."
Lord Mustill was content to adopt that definition of terrorism.
". . . 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."
". . . its unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed."
All states were called on "to take urgent steps to implement fully resolution 1373" and to "intensify their efforts to eliminate the scourge of international terrorism".
"(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 (c 11)."
"150. Section 54 of the Immigration, Asylum and Nationality Act 2006 came into effect on 31 August 2006. It contained no transitional provisions. It appears to have effected a substantive change of law. I consider, as a matter of natural justice, therefore, that it applies only to acts occurring after it came into force, that is, from September 2006.
151. Having regard to the combined lack of specificity of evidence of the Appellant's [now the respondent] conduct with Hizb-e-Islami and the highly reasonable likelihood, given the chronology, that his involvement with Hizb-e-Islami was at its end stage after September 2006 and the coming into effect of Section 54, I find in sum there are not serious grounds for considering he committed a barred act(s). I find Article 1F(c) does not apply."
"The true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears."
Lord Nicholls added, at paragraph 19:
"Thus the appropriate approach is to identify the intention of Parliament in respect of the relevant statutory provision in accordance with this statement of principle."
"44. As to what the Appellant did in Kunar, he reported directly to Kashmir Khan and was involved in fighting. Hikmatyir commanded Kashmir Khan. He fought people that Kashmir Khan called the enemy, foreigners or Afghans. He had ten to fifteen people, and there were two Arabs and one Afghan training them. As to whether he fought NATO forces:
'I was fighting anyone who tried to take over the area in Kunar, whether it was NATO or Afghan forces. I was told to resist the occupation and by fighting I was doing just that'.
45. It was easy to tell the difference between foreign forces and Afghan forces, and he referred to appearance, and also foreign forces were well-protected, and with weapons he had not seen before."
"114. The Appellant at interview consistently gave an account of having been with his older brother from a young age. There was an age difference between the two. In the context of Afghanistan and its politics, inter-ethnic and like civil conflicts, international conflict, the prevalence of warlords/commanders, and in the light of the evidence of the prominence of Commander YD and his shifting allegiances I consider it is not without reasonable likelihood that he would seek to have close to him from an early age a younger brother, whereby sibling loyalty would continue to be inculcated."
The Tribunal added:
"120. Altogether in the context of the above background evidence I consider plausible that Commander YD would have gathered close to him those who he could trust, and having a brother younger than him would reasonably have had that brother close to him from a young age, increasingly assisting him in all ways, and with time and experience being given increasing responsibilities, including the position of deputy. It was the consistent evidence of the Appellant that he was simply 'always' with his brother, and it was effectively when interviewed and in detail when specifically asked about his role in respect of the brother that the evidence emerged that 'at the end' of his brother's time in Jamiat he was his deputy commander."
"125. I consider the Appellant gave a substance of plausible detail of the background of Commander YD's departure from Jamiat/Northern Alliance and joining the Taliban and remaining with the Taliban until after its fall in 2001.
126. . . .
127. With regard to the credible detail of the Appellant's evidence as to his familiarity with military matters I consider to be the familiar ease he had in describing the differing modes of fighting as between the Mamiat-e-Islami and the Taliban, and the dynamic of the Taliban in its small group fighting, seeking to ensure that individual commanders do not have command of large numbers of men, and furthermore those men of whom they have command not necessarily including their own militia.
128. . . . I consider that the Appellant did give a continuing credible account of his activities with the Taliban, and in describing himself as a fighter in his first statement, and when interviewed that he was deputy commander and commanded up to twenty men that these are not exclusive statements, but credible facets of what was in all likelihood from 1996 to 2001, some five years, a complicated, changing and diverse period for the Appellant.
129. . . .
130. . . . the evidence of Commander YD's efforts to regroup the Taliban, and the evidence of increasing Taliban activity in Afghanistan after its fall, Commander YD reputed to have responsibility for the provinces of Parwan, Kapisa, Wardak and Kabul, that is effectively in opposition to the incipient central government, actual battles recorded in 2003 in Afghanistan, led by Commander YD, and mention of the increasing presence of Hezb-e-Islami Hekmatayar I find this altogether to form a credible background of building adverse interest in YD. . . ."
"133. In the context of Afghanistan and its deeply patriarchal society with groups invariably drawn along ethnic-religio/political lines, and the close involvement I find of the Appellant with his brother and in fighting, I accept the reasonable likelihood of the Appellant's claim that in seeking vengeance and the 'settling of scores', that in such a context this would include not only the primary individuals but the male members of their immediate family.
134. . . .
135. I find altogether that the Appellant did show and to the lower standard of proof that he was the brother of Commander YD, and he was closely involved with his brother from his time with Jamiat-e-Islami followed by the Taliban, and that when the brother was killed there is a reasonable likelihood that, as his brother and close associate, that this was an attempt on the Appellant's life too."
"138. I consider altogether there is a reasonable likelihood in his continuing close association with his brother that like his brother the Appellant did continue to have a presence in Afghanistan with the Taliban and prior to his brother's assassination.
139. Although differing organisations or movements the various background evidence does show degrees of association between the Taliban and Hizb-e-Islami Hekmatayar, and also the presence of Hizb-e-Islami Hekmatayar led by Kashmir Khan in Kunar. The Appellant described methods of organisation and fighting in Hezb-e-Islami not dissimilar to the Taliban, which would be consistent with their degree of association. Having faced and been in the thick of the assassination of his older brother with whom he had spent much of his life, I do not consider inconsistent that having faced this mortal risk in Pakistan, that he sought, together with others from their village, to return to Afghanistan and its isolated areas and seek the protection of a military grouping. I accept that the Appellant therefore did show to the lower standard he became involved with Hizb-e-Islami in Afghanistan.
140. . . .
141. Having regard to his close association with Commander YD, a prominent member both in Jamiat-e-Islami followed by the Taliban, I consider that the Appellant's involvement in Hizb-e-Islami has to be evaluated against that history, and that there is a reasonable likelihood that he would have as he claimed a high profile."
"The Respondent invoked Article 1F(c) of the Refugee Convention (incorporated in the Protection Regulations), that the protection of the Convention does not apply where a refugee has committed an act contrary to the purposes and principles of the UN, and further relying on resolutions of the UN Security Council (variously 1373 (2001), 1377 (2001) and 1707 (2006) reaffirming previous resolutions in Afghanistan). More particularly that coalition forces in Afghanistan operated in pursuance of the UN resolutions and that the UN had determined that 'acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations'."
"146. I accept that the Appellant was a fighter with Hizb-e-Islami Hekmatayar in the province of Kunar in Afghanistan prior to leaving Afghanistan. As to the period of involvement there appeared some uncertainty concerning its duration but I do consider the Appellant's estimate of some five to six months reasonably likely to be low and given in an effort to minimize his involvement, having regard to his earlier evidence at interview to have gone to Kunar to Hizb-e-Islami after recovering from being shot in Ramadan 2004.
147. The Appellant's evidence was that they were fighting both Afghan government forces and also foreign forces, that is the UN authorised forces. The Appellant was clearly familiar with the differences between the two sets of forces. There was no positive evidence that Hizb-e-Islami Hekmatayar actions were not against the international forces, rather Hizb-e-Islami actions were about resisting Afghan government forces and the 'occupation'. The Appellant described at certain stages his military involvement with Hizb-e-Islami as being defensive. However having regard to the evidence of increasing counter-insurgency in Afghanistan I consider this to be implausible. I found the appellant credibly to have a longstanding history of military involvement in Afghanistan, including at a high level, deputy to his Commander brother, and independently a commander in Hizb-e-Islami Hekmatayar in Kunar. I consider that there are prima facie grounds for considering that his actions with Hizb-e-Islami Hekmatayar in Afghanistan were both offensive and defensive. However I accept neither at interview or in cross-examination was there elicited any specificity about his actions or incidents.
148. Under UK law Hizb-e-Islami Hekmatayar is a proscribed terrorist organisation. . . ."
It was proscribed under s1, Schedule 2, to the 2000 Act, as amended, as from October 2005.
"The recency of his involvement in Hizb-e-Islami, and his historical involvement with his brother in the Taliban, following double-crossing Jamiat-e-Islami."
(a) On the Tribunal's findings, to what extent, if at all, are the acts of the respondent acts of terrorism within the meaning of the 2000 Act?
(b) Are these acts contrary to the purposes and principles of the United Nations?
(c) To what extent, if at all, do those acts contravene article 1F(c) of the Refugee Convention?
(d) Do the respondent's acts, even if capable of being acts of terrorism and/or acts contrary to the purposes and principles of the United Nations, fail, by reason of lack of specificity, to attract the application of article 1F(c)?
(e) Was the respondent's personal involvement and role in the organisations he was supporting such as to contribute in a significant way to the organisation's ability to pursue terrorist purposes and/or activities contrary to the purposes and principles of the United Nations?
(f) If so, was he aware that his assistance would further such purposes and/or activities?
(g) Does section 54 of the 2006 Act apply only to acts done after the section came into operation on 31 August 2006?
The general question which arises from those specific questions is whether the Tribunal erred in law in its findings at paragraphs 150 and 151.
KJ (Sri Lanka)
"36. Lastly, so far as paragraph (c) is concerned, it is common ground that acts of terrorism, such as the deliberate killing of civilians, are contrary to the purposes and principles of the UN.
37. The application of Article 1F(c) will be straightforward in the case of an active member of organisation that promotes its objects only by acts of terrorism. There will almost certainly be serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations.
38. However, the LTTE, during the period when KJ was a member, was not such an organisation. It pursued its political ends in part by acts of terrorism and in part by military action directed against the armed forces of the government of Sri Lanka. The application of Article 1F(c) is less straightforward in such a case. A person may join such an organisation, because he agrees with its political objectives, and be willing to participate in its military actions, but may not agree with and may not be willing to participate in its terrorist activities. Of course, the higher up in the organisation a person is the more likely will be the inference that he agrees with and promotes all of its activities, including its terrorism. But it seems to me that a foot soldier in such an organisation, who has not participated in acts of terrorism, and in particular has not participated in the murder or attempted murder of civilians, has not been guilty of acts contrary to the purposes and principles of the United Nations.
39. It remains to apply these principles to the case of KJ. In my judgment, the Tribunal failed to focus on the crucial question: were there serious reasons for considering that he had personally been guilty of acts contrary to the purposes and principles of the United Nations? . . ."
"40. . . . The Tribunal failed to define what acts that were not terrorist in nature were acts contrary to the purposes and principles of the United Nations, and did not identify any facts that constituted serious reasons for considering that KJ had been guilty of them. The word "complicit" is unenlightening in this context. In my judgment, the facts found by the Tribunal showed no more than that he had participated in military actions against the government, and did not constitute the requisite serious reasons for considering that he had been guilty of acts contrary to the purposes and principles of the United Nations. I would therefore allow his appeal on this issue."
An important distinction from the present case is the absence of the involvement in Sri Lanka of UN mandated military operations.
"For exclusion to be justified, individual responsibility must be established in relation to a crime covered by article 1F. Specific considerations in relation to crimes against peace and acts against the purposes and principles of the UN have been discussed above. In general, individual responsibility flows from the person having committed, or made a substantial contribution to the commission of the criminal act, in the knowledge that his or her act or omission would facilitate the criminal conduct. The individual need not physically have committed the criminal act in question. Instigating, aiding and abetting and participating in a joint criminal enterprise can suffice."
"Given the broad, general terms of the purposes and principles of the United Nations, the scope of this category is rather unclear and should therefore be read narrowly. Indeed, it is rarely applied and, in many cases, Article 1F(a) or 1F(b) are anyway likely to apply. 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. Given that Articles 1 and 2 of the United Nations Charter essentially set out the fundamental principles States must uphold in their mutual relations, it would appear that in principle only persons who have been in positions of power in a State or State-like entity would appear capable of committing such acts. In cases involving a terrorist act, a correct application of Article 1F(c) involves an assessment as to the extent to which the act impinges on the international plane – in terms of its gravity, international impact, and implications for international peace and security."
"Merely to state that position is to show how difficult it would be to adopt it. It appears to us that the major difficulty in accepting the UNHCR's reasoning is its confining of the identification of the purposes and principles of the United Nations to those set out in Articles 1 and 2 of the Charter, without any real recognition, in the way we have described above, of subsequent Acts of the organs of the United Nations. To fail to give full effect to these Acts is not merely to ignore the Vienna Convention: it is to prevent the Charter of the United Nations being regarded as a living instrument, capable of being adapted by interpretation and use, by agreement and endorsement, to the circumstances of changing ages."
Further doubting in that case the applicability of the UNHCR stance, the Tribunal referred, at paragraph 70, to the opening words of article 1F stating that the provisions of the Refugee Convention shall not apply to any person "with respect to whom there are serious reasons for considering" that article 1F has been infringed.
"Where, therefore, there are serious reasons for considering that an act contrary to the purposes and principles of the United Nations has been committed, it does not matter when or where it was committed, or whether it is categorised by municipal law as a crime. It leads to exclusion from the Refugee Convention. For acts of a political character which are not contrary to the principles and purposes of the United Nations, however, there is no exclusion, and the individual is protected internationally by the Refugee Convention, although the application of Article 32 or 33 may lead to his expulsion from the host country."
"A Treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty and their context and in the light of its object and purposes."
"3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties."
SS v SSHD
"The common ground between the two instruments is far greater than the differences. The fundamental definition of terrorism in both is the use or threat of action designed to influence a government or to intimidate a population by serious acts of violence and some acts of economic disruption.
16. We have not been referred to and are not aware of any widely accepted international definition of terrorism which differs in any essential respect from that summarised above . . . but we doubt that any international organisation or reputable commentator would disagree with a definition of terrorism which had at its heart the use or threat of serious or life threatening violence against the person and/or serious violence against property, including economic infrastructure, with the aim of intimidating a population or influencing a government, except when carried out as lawful act of war."
"We are satisfied that [the acts] fall within the definition of terrorism in section 1 Terrorism Act 2000, article 1.3 of the Council's common position, and the core of any generally accepted definition of terrorism."
". . . Secondly we do not accept that terrorism must have an international character or aspect in order to come within Article 1(F)(c). As Security Council Resolution 1624 makes plain, it is the duty of states to deny safe haven to those who have committed a terrorist act. The assassination of a political leader by a national of the same state pursuant to a plot entirely organised and financed within that state can be just as much capable of disturbing the peace of the word as an identical attack financed from abroad. There is no rational basis for distinguishing between the two."
The conclusion of SIAC, at paragraph 26, was "that there are serious reasons for considering that SS had been guilty of acts contrary to the principles and purposes of the United Nations and so is excluded from recognition as a refugee . . ."
JS (Sri Lanka)
"It is common ground between the parties (i) that there can only be one true interpretation of article 1F(a), an autonomous meaning to be found in international rather than domestic law; (ii) that the international instruments referred to in the article are those existing when disqualification is being considered, not merely those extant at the date of the Convention; (iii) that because of the serious consequences of exclusion for the person concerned the article must be interpreted restrictively and used cautiously; and (iv) that more than mere membership of an organisation is necessary to bring an individual within the article's disqualifying provisions. The question is, I repeat, what more?"
Those propositions may be applied in this case when assessing the respondent's involvement in events.
"30. Rather, however, than be deflected into first attempting some such sub-categorisation of the organisation, it is surely preferable to focus from the outset on what ultimately must prove to be the determining factors in any case, principally (in no particular order) (i) the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum-seeker was himself most directly concerned, (ii) whether and, if so, by whom the organisation was proscribed, (iii) how the asylum-seeker came to be recruited, (iv) the length of time he remained in the organisation and what, if any, opportunities he had to leave it, (v) his position, rank, standing and influence in the organisation, (vi) his knowledge of the organisation's war crimes activities, and (vii) his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes.
31. No doubt, as Stanley Burnton LJ observed in KJ (Sri Lanka), at para 37, if the asylum-seeker was
'an active member of [an] organisation that promotes its objects only by acts of terrorism, [there] will almost certainly be serious reasons for considering that he has been guilty of [relevant] acts'.
I repeat, however, the nature of the organisation itself is only one of the relevant factors in play and it is best to avoid looking for a 'presumption' of individual liability, 'rebuttable' or not. As the present case amply demonstrates, such an approach is all too liable to lead the decision-maker into error."
"Returning to the judgment below with these considerations in mind, I have to say that paragraph 119 does seem to me too narrowly drawn, appearing to confine article 1F liability essentially to just the same sort of joint criminal enterprises as would result in convictions under domestic law. Certainly paragraph 119 is all too easily read as being directed to specific identifiable crimes rather than, as to my mind it should be, wider concepts of common design, such as the accomplishment of an organisation's purpose by whatever means are necessary including the commission of war crimes. Put simply, I would hold an accused disqualified under article 1F if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation's ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose."
Lord Kerr of Tonaghmore JSC stated, at paragraph 59, that it was not an "automatic consequence" that membership of LTTE equated to complicity.
R v F
". . . We can see no reason why, given the random impact of terrorist activities, the citizens of Libya should not be protected from such activities by those resident in this country in the same way as the inhabitants of Belgium or the Netherlands or the Republic of Ireland. More important, we can see nothing in the legislation which might support this distinction.
27. What is striking about the language of s1, read as a whole, is its breadth. It does not specify that the ambit of its protection is limited to countries abroad with governments of any particular type or possessed of what we, with our fortunate traditions, would regard as the desirable characteristics of representative government. . . . Terrorism is terrorism, whatever the motives of the perpetrators."
"In the context of the ECHR, we draw attention to Article 2, and the right to life, and the obligation on the state to take appropriate steps to safeguard life and, for that purpose, to ensure an effective system of criminal law. By its nature terrorism is indiscriminate. An assassin may target an individual national leader. If Mr Robertson is right it may then be argued that his fatal stroke would not amount to terrorism for the purposes of the Act. It was however open to Parliament to decide that because of the evils of terrorism and the manifold dangers that terrorist activities create, it should impose a prohibition on the residents of this country from participating or seeking to participate in terrorist activities, which may have a devastating impact wherever in the world they occur."
Analysis and Conclusions
Lord Justice Rimer :
Lady Justice Black :