Secretary of State for the Home Department v DD (Afghanistan)

Article 1F(c) of the Refugee Convention may apply to an individual’s direct military action against forces operating under a United Nations Security Council mandate. The United Nations Charter is to be read in light of subsequent United Nations activity. Such action may be contrary to the purposes and principles of the United Nations, although violence against all persons associated with the United Nations does not automatically have that character.

Military action directed at government forces is not, without more, terrorism. Individual exclusion does not require proof of a particular identified crime. The decision-maker must assess the person’s role, contribution and knowledge. Section 54 of the Immigration, Asylum and Nationality Act 2006 applies to decisions made after its commencement and permits consideration of earlier conduct.

The respondent, an Afghan national, succeeded before the Asylum and Immigration Tribunal after reconsideration of the Secretary of State’s refusal of asylum and human-rights protection. The Tribunal found a real risk of persecution and article 3 ill-treatment on return. It also found that he had been a Hizb-e-Islami fighter and commander who fought Afghan government and foreign forces.

The Tribunal nevertheless held that article 1F(c) of the Refugee Convention did not exclude him. It treated section 54 of the Immigration, Asylum and Nationality Act 2006 as prospective only and found insufficiently specific evidence of his conduct. The Secretary of State appealed, challenging the Tribunal’s approach to terrorism, personal participation, United Nations-mandated forces and the temporal operation of section 54.

1. Appeal allowed and remitted. Pill LJ, with whom Rimer and Black LJJ agreed, held that the Tribunal had made material errors of law. The case was remitted to the Tribunal for a reconsideration limited to whether the respondent’s conduct included action contrary to the purposes and principles of the United Nations.
2. The court followed [2009] EWCA Civ 292. Military action against government armed forces does not, simply by that fact, amount to terrorism or conduct contrary to the purposes and principles of the United Nations. The Tribunal had not found paradigm terrorist conduct, such as indiscriminate violence, random bombings or attacks on civilians. It was therefore not open to the court to find terrorism on the existing findings.
3. However, a specific identifiable terrorist crime need not be proved. Applying the personal-responsibility approach in [2010] UKSC 15, the Tribunal’s findings of prolonged involvement, command responsibility, offensive operations and fighting against United Nations-mandated forces were capable of establishing significant voluntary contribution with the requisite awareness. The Tribunal erred in treating the absence of greater specificity as legally decisive.
4. Article 1F(c) has a broader operation than the restrictive UNHCR approach. The Charter is a living instrument, and individual conduct can be contrary to its purposes and principles. Direct military action against ISAF forces acting under a Security Council mandate is capable of attracting exclusion because those forces act to secure the United Nations’ humanitarian and reconstruction work. Each situation nevertheless requires specific analysis.
5. Section 54 of the Immigration, Asylum and Nationality Act 2006 is a statutory aid to the construction of article 1F(c). From its commencement it governed the decision-making process and permitted assessment of conduct before commencement. That was not unfairly retrospective. It had no direct application on the existing findings because terrorism had not been found. Fresh findings of terrorism were excluded from the remitted inquiry as unfair to the respondent.

• Court of Appeal (Civil Division). The Secretary of State’s appeal was allowed to the extent stated, and the case was remitted to the Tribunal: [2010] EWCA Civ 1407.
• Asylum and Immigration Tribunal. On 27 August 2008, following reconsideration, Immigration Judge EN Simpson allowed the respondent’s appeal against the refusal of asylum and human-rights protection.