MH (Syria) v Secretary of State for the Home Department

Exclusion under Article 1F(c) of the Refugee Convention is not confined by domestic principles of primary or secondary criminal liability. It requires an overall assessment of the claimant’s knowing and voluntary involvement, the nature of the organisation, and the practical support given to its wrongful acts.

The protected humanitarian role of medical personnel does not automatically preclude exclusion. Ordinarily, however, medical or nursing work will not itself establish complicity, and its humanitarian character is an important factor against exclusion. Low-level activities performed during childhood, for an organisation not shown to be at the extreme end of the terrorist continuum, did not provide serious reasons for considering that Article 1F(c) applied.

Two appeals concerning exclusion from the Refugee Convention were heard together.

MH, a Syrian Kurd, had joined the PKK as a child. The Asylum and Immigration Tribunal excluded her from refugee protection under Article 1F(c), but allowed her human-rights appeal on the ground that removal to Syria would breach Article 3 of the ECHR. MH appealed the exclusion decision and the Secretary of State cross-appealed the Article 3 decision.

DS, an Afghan former intelligence officer, had succeeded before an immigration judge on exclusion and risk. On reconsideration the Tribunal found no material error of law. The Secretary of State appealed, principally challenging the Article 1F findings and the grant of asylum.

1. MH’s appeal was allowed and the Secretary of State’s cross-appeal was dismissed. Article 1F(c) does not require proof that the claimant committed terrorist acts as a principal or was criminally liable as an accessory. The assessment of complicity is wider, though it must remain individual and fact-sensitive.

2. The court applied the guidance in Gurung. It rejected an automatic consequence from membership of a proscribed organisation. Relevant matters included whether membership was voluntary and informed, the organisation’s character, and the claimant’s own status and activities.

3. Medical and nursing personnel enjoy special protection under international humanitarian law, but that does not create an absolute immunity from Article 1F(c). A clinician who knowingly assists a further terrorist mission could be excluded. In the ordinary case, however, humanitarian medical or nursing work weighs against a finding of complicity.

4. The Tribunal’s exclusion of MH was unreasonable. She joined the PKK at 13, and the material activities before her injury occurred while she was a minor. The PKK had not been shown to occupy the extreme position at which membership alone could establish complicity. Her acts were minor and non-combatant: carrying a banner and a gun during transfer, camp dispute-resolution work, nursing in a refugee camp, and later teaching children. Section 54 of the Immigration, Asylum and Nationality Act 2006 reinforced the conclusion because her conduct neither committed, prepared or instigated terrorism nor encouraged or induced it.

5. The Tribunal was entitled to accept hearsay evidence and expert evidence concerning MH’s political profile in Syria. Its conclusion that she faced a real risk of Article 3 ill-treatment was sustainable and adequately reasoned.

6. In DS’s case, the Secretary of State’s appeal succeeded only as to asylum. DS accepted that the feared harm was not for a Convention reason, so the asylum appeal had to be dismissed. The court upheld the Tribunal’s conclusion that the Secretary of State had not established serious reasons for considering that DS was complicit in crimes against humanity. It also held that the immigration judge was not required to determine Article 1F(b) or (c), where the Secretary of State had presented the case only under Article 1F(a) and the further issues were not obvious points requiring determination of the court’s own motion.

• Court of Appeal (Civil Division): Allowed MH’s appeal against exclusion under Article 1F(c), and dismissed the Secretary of State’s cross-appeal on Article 3. In DS’s case, allowed the Secretary of State’s appeal only to set aside the grant of asylum and substitute dismissal of the asylum appeal.

• Asylum and Immigration Tribunal: In MH’s case, the reconsideration panel dismissed the asylum appeal under Article 1F(c) but allowed the Article 3 appeal. In DS’s case, Immigration Judge Astle allowed the appeal on 16 November 2007; Senior Immigration Judge Martin held on 25 April 2008 that there was no material error of law.