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During the course of this week the Supreme Court heard two cases involving the interpretation and application of article 1F(c) of the 1951 Geneva Convention Relating to the Status of Refugees (Refugee Convention) in Al-Sirri v Secretary of State for the Home Department UKSC 2009/0036 and DD (Afghanistan) v Secretary of State for the Home Department UKSC 2011/0003.

Article 1(F)(c) of the Refugee Convention provides that the provisions of the Convention will not apply 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.”

The rationale of article 1F(c), as expressed by Bastarache J in the Canadian Supreme Court in Pushpanathan v Canada, Minister of Citizenship and Immigration Control (Canadian Council for Refugees intervening) [1999] INLR 36 and cited in the Court of Appeal in DD(Afghanistan), 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.”

Background to the Al-Sirri appeal

Al-Sirri is an Egyptian national who arrived in the UK with his family in 1994. In the same year he was sentenced to death for his alleged involvement in a plot to kill the Egyptian Prime Minister. In 1995 he was further convicted, again in his absence, of belonging to a terrorist organisation. In 2000 his application for asylum was refused on the basis that he was excluded by article 1(F)(c) of the Refugee Convention.

Between 2004 and 2006, Al-Sirri was granted three periods of discretionary leave to remain, which triggered a right to appeal to the Asylum and Immigration Tribunal (AIT) against the decision to refuse asylum in 2000. The Court of Appeal allowed an appeal against an adverse decision of the AIT and remitted the case to the Tribunal for reconsideration: see Al-Sirri v Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening) [2009] EWCA Civ 222. However, Al-Sirri petitioned the Supreme Court seeking clarification of the correct interpretation of article 1(F)(c).

In the course of its judgment the Court of Appeal determined that it was “beyond argument” that terrorism fell within article 1(F)(c) (per Sedley LJ at paras. 29 and 30). It accepted that UN Security Resolution 1624 made it clear that “acts, methods and principles of terrorism are contrary to the purposes and principles of the United Nations” (at para. 18). It rejected submissions that, because the purpose of the UN Charter was to regulate relations between states, article 1(F) was directed solely at state actors or those deploying state powers (at paras. 36-38).

However, it held that, in construing article 1(F)(c) in the domestic context, the meaning of terrorism was not as wide as that provided for in section 1 of the Terrorism Act 2000 (at para. 29). This is because article 1(F)(c) is given domestic effect by article 12(2)(c) of Council Directive 2004/83/EC (the Qualification Directive), which provides that:

A third country national or 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 purpose and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations. (Emphasis added).

This has a knock-on effect for the interpretation of s54 of the Immigration, Asylum and Nationality Act 2006 which provides that “acts contrary to the purposes and principles of the UN” include acts of committing, preparing or instigating terrorism (or encouraging or inducing others to the same). Article 54(2) provides that the term “terrorism” shall have the meaning given by s1 of the 2000 Act. The Court concluded that article 54(2) “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” (at para. 29).

Background to the DD(Afghanistan) appeal

DD is an Afghan national who arrived in the UK in 2007. Similarly to Al-Sirri, his application for asylum was rejected on the basis of the exclusions provided by article 1(F)(c). DD was the younger brother of a prominent commander of Jamiat-e-Islami, YD, who was assassinated in Pakistan in 2004. DD later joined Hizb-i-Islami and was engaged in armed activity against both the Afghan government and NATO forces. In this case the Secretary of State appealed against a decision of the AIT allowing DD’s appeal on the grounds that there was a “lack of specificity of evidence” in relation to DD’s conduct and that s54 of the 2006 Act did not apply to conduct before 31 August 2006.

The Court of Appeal rejected both of these findings. Significantly it held that it was not necessary to identify a “specific identifiable crime or act of terrorism” but that it was sufficient that “the tribunal found a genus of activity by [DD], over a prolonged period, which is capable of disentitling him to the protection of the Convention”: see DD(Afghanistan) v SSHD [2010] EWCA Civ 1407 per Pill LJ at para. 57.

The Court went on to consider how this “activity” should be classified for the purpose of determining whether it fell within the exemptions of article 1(F). No doubt controversially, applying KJ (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 292, it held that “military actions against the Afghan government, even if conducted by proscribed organisations, are not necessarily terrorist in nature” (at para. 56). It declined to follow Mitting J in SS v Secretary of State for the Home Department (SC/56/2009, 30 July 2010) that the observations in KJ were per incuriam.

The Court did, on the other hand, conclude that acts against UN-mandated NATO forces (ISAF) amounted to conduct contrary to the principles and purposes of the UN. While it noted the views of the UNHCR that would “confine the application of the article to acts impinging on international planes”, it held that “individual conduct is capable of being conduct contrary to the principles and purposes of the United Nations and I accept that military action against ISAF is action contrary to those purposes and principles” (per Pill LJ at para. 63).

Issues for consideration

These cases highlight an existing lack of clarity about what “acts contrary to the purposes and principles of the United Nations” actually means. Consequently, the Supreme Court was asked consider in Al-Sirri:

What is the correct interpretation of ‘acts contrary to the purposes and principles of the United Nations’, commission of which acts provides a basis for exclusion from refugee status under Article 1(F)(c) of the 1951 Geneva Convention Relating to the Status of Refugees?

And, in a separate hearing, in DD(Afghanistan):

Whether absent evidence of criminal conduct, flagrant human rights abuses or terrorism, participation in military activity against Afghan and UN mandated NATO forces as a member of an insurgent group amounts to conduct contrary to the principles and purposes of the United Nations and thus brings him within the exclusion in Article 1(F)(c) of the Refugee Convention (Article 12(2)(c) of the Qualification Directive).