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Special Immigrations Appeals Commission
You are here: BAILII >> Databases >> Special Immigrations Appeals Commission >> SS v Secretary of State for the Home Department  UKSIAC 56/2009 (30 July 2010)
Cite as:  UKSIAC 56/2009
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Appeal no: SC/56/2009
Hearing Dates: 13 th & 14th July 2010
Date of Judgment: 30th July 2010
SPECIAL IMMIGRATION APPEALS COMMISSION
THE HONOURABLE MR JUSTICE MITTING (Chairman) SENIOR IMMIGRATION JUDGE GLEESON MR M G TAYLOR CBE DL
SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellants: Mr M MacKenzie Instructed by TRP Solicitors
For the Respondent: Mr S Kovats QC Instructed by the Treasury Solicitor for the Secretary of State
Special Advocate: Ms S J Farby & Mr M Goudie Instructed by the Special Advocates Support Office
The Hon. Mr Justice Mitting :
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:...
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations"
What that means in practice is difficult to ascertain. There are four sources of authority:
(i) international law, including relevant international instruments and decisions,
(ii) domestic legislation,
(iii) European Union decisions and legislation, and,
(iv) case law (including decisions of the Court of Appeal and Supreme Court).
"The Security Council,...
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...
deeply concerned that incitement of terrorist acts motivated by extremism and intolerance poses a serious and growing danger to the enjoyment of human rights, threatens the social and economic development of all states, undermines global stability and prosperity, and must be addressed urgently and proactively by the United Nations and all states, and emphasising the need to take all necessary and appropriate measures in accordance with international law at the national and international level to protect the right to life,...
recalling in addition the right to seek and enjoy asylum reflected in Article 14 of the Universal Declaration and the non-refoulement obligation of states under the Convention relating to the status of refugees adopted on 28 July 1951... and also recalling that the protections afforded by the Refugee Convention and its protocol shall not extend to any person with respect to whom there are serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations,
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,...
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 provide safe havens,
(i) 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 heaven 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"
"54. Refugee Convention: construction
(i) in the construction and application of Article 1(F)(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).
(ii) in this section - ...
"terrorism" has the meaning given by section 1 of the Terrorism Act 2000"
Section 1 of the Terrorism Act 2000 provides:
"1. Terrorism: interpretation.
(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.(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.(4) In this section -(a) "action"' includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and(d) "the government" means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom."
(set out without the amendments inserted by the Terrorism Act 2006 and by the Counter-Terrorism Act 2008).
"3. For the purposes of this Common Position, 'terrorist act ' shall mean one of the following intentional acts, which, given its nature or its context, may seriously damage a country or an international organisation, as defined as an offence under national law, where committed with the aim of:
(i) seriously intimidating a population, or
(ii) unduly compelling a Government or an international organisation to perform or abstain from performing any act, or
(iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation:
(a) attacks upon a persons life which may cause death;
(b) attacks upon the physical integrity of a person;
(c) kidnapping or hostage taking;
(d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property, likely to endanger human life or result in major economic loss;
(e) seizure of aircraft, ships or other means of public or goods transport;
(f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons;
(g) release of dangerous substances, or causing fires, explosions or floods the effect of which is to endanger human life;
(h) interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life;
(i) threatening to commit any of the acts listed under (a) to (h);
(j) directing a terrorist group;
(k) participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the group.
For the purposes of this paragraph, 'terrorist group ' shall mean a structures group of more than two persons, established over a period of time and acting in concert to commit terrorist acts. 'Structures group ' means a group that is not randomly formed for the immediate commission of a terrorist act and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure."
"Acts contrary to the purposes and principles of the United Nations are set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations and are amongst others, embodied in the United Nations Resolutions relating to measures combating terrorism, which declare that 'acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations " and that 'knowingly financing, planning and inflicting terrorist acts are also contrary to the purposes and principles of the United Nations'"
Articles 12 and 17 deal with exclusions, from being a refugee and from being eligible for subsidiary protection, respectively:
"12.2 A third country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:...
(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.
12.3. Paragraph 2 applies to persons who instigate or otherwise participate in the commission of the...acts mentioned therein'.
"17.1 A third country national or a stateless person is excluded from being eligible for subsidiary protection where there are serious reasons for considering that:...
(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...
17.2 Paragraph 1 applies to persons who instigate or otherwise participate in the commission of the...acts mentioned therein'.
Article 38 required member states to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive before 10 October 2006. The UK did so by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 SI 2006 No. 2525, which came into force on 9 October 2006 and by paragraph 339C of the Immigration Rules, which was inserted on the same date.
(i) Section 1 requires a purpose of advancing a political, religious or ideological cause. Article 1.3 does not. The reason may be that some member states wished to include within those who could commit a terrorist act, members of a powerful criminal organisation, capable of intimidating the public or influencing the government. If so, it is the EU measure which may need to be compared against international standards, not section 1.
(ii) Article 1.3(iii) includes the aim of seriously destabilising or destroying fundamental political, constitutional, economic or social structures. This is simply an example of the purposes identified in Article 1.3(i) and (ii) and Section 1(1) and is not a true difference.
(iii) Article 1.3 identifies means by which a terrorist act may be committed which to do not expressly appear in section 1(2): kidnapping and hostage taking, damaging the economic infrastructure, seizing aircraft ships and other means of public or goods transport, the manufacture etc of weapons, explosives and nuclear, biological or chemical weapons and the release of dangerous substances or causing fires etc and interference with water supply. These are mostly examples of the acts more simply stated in section 1(2). Certainly, nothing in section 1(2) goes beyond the means identified in Article 1.3.
(iv) Article 1.3 includes directing and participating in the activities of a terrorist group, including supplying information and resources and funding its activities, with requisite knowledge. Again, the definition in Article 1.3 is wider than that in Section 1. The gap is substantially closed by Section 54(1).
(v) Section 1(3) defines as terrorism the use or threat of serious violence etc "which involves the use of firearms or explosives", whether or not it is designed to influence the government or to intimidate the public or a section of the public. Article 1.3 contains no similar provisions.
We do not discern any difference between Section 1(1)(b) ('the use or threat is designed to influence the government...") and Article 1.3(ii) ('unduly compelling a government. .to perform or abstain from performing any act"). Mr Mckenzie asks rhetorically whether the words "unduly compelling" in Article 1.3 add something which is not present in Section 1(1)(b). We do not
think it does. A government would be "unduly compelled"' to perform or abstain from performing any act by all or almost all of the means identified in Article 1.3(a) to (i). All the phrase does is to emphasise that those means are illicit: a government which performed or abstained from performing an act because a person or group of persons had done any of the things there set out would be acting under undue compulsion.
"31. What then constitutes terrorism? There is no present need for an elaborate definition (which may, I accept, be needed in other contexts): terrorism here means the use for political ends of fear induced by violence'.
He went on to observe that he saw the force of the submission made by counsel for the Appellant that terrorism must have an international character or aspect to come within Article 12 of the Qualification Directive. We do not accept Mr McKenzie's submission for two reasons: Sedley LJ was not attempting a universal definition of terrorism, merely setting out a minimum definition which applied on the facts of the case. Those facts were that Al-Sirri had provided letters which he knew were intended to be used for the purpose of gaining access to and killing General Masoud, in Northern Afghanistan. The Court of Appeal accepted that those facts alone were capable of sustaining exclusion under Article 1(F)(c): paragraph 62. If that is so, it is difficult to see in what respect Sedley LJ's partial definition differs materially from the definition which we have summarised above. Indeed, he treated them as equivalent: "acts...committed with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organisation to do or abstain from doing any act' ' (our emphasis). 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 world as an identical attack financed from abroad. There is no rational basis for distinguishing between the two. In any event, most terrorist organisations of any scale, and certainly the LIFG, are internationally organised or financed or have international links. On any view of the facts of this case, the issue is academic.
We take Lord Brown to disapprove of, and do not ourselves accept, the gloss put upon the phrase by the Court of Appeal in KJ in paragraph 35:
"None the less, the crimes and acts referred to are all serious, and the seriousness of the reasons must correspond with the seriousness of the crimes and acts in question'.
If what was there proposed was a standard of proof which varies according to the seriousness of the allegations, it reintroduces the now disavowed variable standard in ordinary civil proceedings: see In re B  1 AC 11 at paragraph 13. We accept the approach of Lord Brown and have applied it.
Conclusion and procedure