A (Iraq) v Secretary of State for the Home Department

The exclusion clauses in Article 1F of the Refugee Convention are mandatory and form an integral part of determining whether a person is a refugee. Where an adjudicator’s clear factual findings necessarily engage an exclusion clause, an appellate immigration tribunal must correct a failure to apply it, even if the Secretary of State did not raise the point below.

A new point should not be permitted on the Secretary of State’s appeal if its resolution requires findings on material facts left uncertain by the decision. Where the relevant facts are clear, however, finality does not displace the tribunal’s duty to apply the correct legal test. Voluntary participation in torture constitutes, at the least, a serious non-political crime within Article 1F(b).

An Iraqi national of Kurdish origin claimed asylum after admitting that he had voluntarily served in the Fedayeen under Saddam Hussein’s regime. He told the Adjudicator that he had participated in arrests, assaults and torture. The Adjudicator accepted his account and held that reprisals arising from those activities exposed him to persecution and treatment contrary to Article 3 of the European Convention on Human Rights.

The Secretary of State had not relied on Article 1F of the Refugee Convention before the Adjudicator. He raised it on appeal, contending that the claimant’s admitted conduct excluded him from refugee protection. The Immigration Appeal Tribunal dismissed that appeal because it considered that participation might have been compelled and that the crimes might have been political.

The central issue was whether the Secretary of State could raise Article 1F for the first time on appeal and whether the Adjudicator’s findings disclosed a clear error of law.

1. Appeal allowed unanimously. The Adjudicator’s factual findings permitted only the rational conclusion that Article 1F of the Refugee Convention applied. The Immigration Appeal Tribunal should therefore have found a clear error of law. Carnwath LJ gave the judgment, with which Dyson and Brooke LJJ agreed.

2. Article 1F is expressed in mandatory terms. Whether a person falls within its exclusion clauses is an integral part of determining whether that person is a refugee. Immigration appellate authorities must apply their knowledge of Convention law to the facts found. Where those facts lead in law to the opposite conclusion from that reached by the Adjudicator, the appellate tribunal has a duty to correct the error: R v Secretary of State ex p Robinson [1998] QB 929 and Gurung v Secretary of State [2002] UKIAT 4870 applied.

3. The court confined its decision to a case in which the face of the decision disclosed a clear error in applying the statutory definition of a refugee. It did not decide whether the Robinson principle, or a variant of it, could be invoked by the Secretary of State in other circumstances.

4. The principle of finality remains material. A new point should not be allowed on the Secretary of State’s appeal if it depends on further findings about facts left uncertain by the decision. The Immigration Appeal Tribunal could receive evidence and make findings after identifying an error of law, but that flexibility did not remove the restriction. Where the relevant facts were clear, the tribunal had to ensure that the correct legal test was applied.

5. The claimant’s latest written statement and oral evidence established voluntary participation in the Fedayeen, an elite position and personal involvement in assaults and torture. Those findings established, at the least, serious non-political crimes within Article 1F(b). There was no legal basis for treating that activity as political. The Tribunal had mistakenly proceeded on the premise that compulsion remained a live factual issue.

6. The case was remitted to the Asylum and Immigration Tribunal for reconsideration, procedural fairness requiring the claimant to have an opportunity to address the exclusion issue.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed unanimously. The Immigration Appeal Tribunal should have identified the Adjudicator’s clear error of law. The matter was remitted to the Asylum and Immigration Tribunal.
2. Immigration Appeal Tribunal: The Secretary of State’s appeal was dismissed. The Tribunal considered that the Adjudicator had been entitled not to raise Article 1F because compulsion and the possible political character of the conduct presented difficulties.
3. Adjudicator: The claimant’s appeal was allowed under the Refugee Convention and Article 3 of the European Convention on Human Rights. The Adjudicator accepted that his prior activities created a real risk of reprisals in Iraq but did not consider Article 1F.