SS (Libya) v Secretary of State for the Home Department

For exclusion under article 1(F)(c) of the Refugee Convention, terrorism does not require an international dimension. The relevant inquiry is whether serious violence, or its threat, is designed to influence a government or intimidate a population; the military-action qualification recognised in KJ (Sri Lanka) [2009] EWCA Civ 292 does not extend to violence against police or government officials. The Refugee Convention and the Qualification Directive have separate domestic legal routes, but the more generous Directive prevails where Convention protection is narrower. In closed-material proceedings, an appellant is entitled to consistency between the open and closed cases. A significant extension of the case cannot be justified by cross-examination or inferred from undisclosed material.

SS, a Libyan national, appealed to the Court of Appeal from SIAC’s decision of 30 July 2010 in SC56/2006. SIAC had accepted that he was at risk in Libya but excluded him from refugee protection under article 1(F)(c) because of his membership and support of the Libyan Islamic Fighting Group. Its conclusion relied determinatively on closed material.

The appeal challenged the definition of terrorism, the relevance of Al-Sirri and KJ (Sri Lanka), the relationship between the Refugee Convention and the Qualification Directive, disclosure under article 47 of the EU Charter, and findings said to exceed the Secretary of State’s open case. The central issue was whether SIAC had determined the exclusion lawfully and fairly.

Disposition. The appeal was allowed on ground (ii), concerning findings outside the Secretary of State’s open case. All other grounds were dismissed. The case was remitted to SIAC for redetermination, including consideration of any further disclosure.

1. Domestic framework. The meaning of article 1(F)(c) should principally be found in international law, but it must operate through domestic legal mechanisms. The Refugee Convention and the Qualification Directive have separate domestic routes. Section 54 of the Immigration etc Act 2006 brings in the definition in the Terrorism Act 2000 for Convention cases, while the Directive operates through the relevant Regulations. Where Convention protection is narrower than the Directive, the more generous Directive prevails. The court accepted the fundamental definition of terrorism as serious violence, or its threat, designed to influence a government or intimidate a population.
2. Authorities and application. Terrorism under article 1(F)(c) does not require an international character. The observations in Al-Sirri [2009] EWCA Civ 222 did not establish such a requirement. SIAC was wrong to treat KJ (Sri Lanka) as per incuriam. That case remained authority distinguishing military action against government armed forces from terrorism, but its qualification did not extend to attacks on police, officials or other non-military targets. The reported LIFG attacks, including attacks on police stations and assassination attempts, were capable of being treated as terrorist acts.
3. Individual responsibility. Exclusion requires close examination of the individual’s own role and serious reasons for considering that the person voluntarily contributed significantly to the organisation’s ability to pursue the relevant purpose, with awareness that the assistance would further it. The appellant no longer pursued the challenge to the finding of significant individual contribution, so that issue did not arise for determination.
4. Fairness. A further reference to the CJEU under article 47 was not necessary. The appellant knew the general case concerning his LIFG links, the reasons for treating LIFG as terrorist were available in open material, and the credibility problem would have remained. However, SIAC had overlooked the temporal limits of the open case, which focused principally on activity after 2001. Reliance on LIFG activity in the 1990s and equivocal Al-Qaeda links materially extended the case without adequate notice. The appellant was entitled to consistency between the open and closed cases. Cross-examination about historic links did not cure the defect, and no adverse inference should be drawn from the Special Advocates’ silence.
5. Closed material. By way of guidance for future cases, inspection of closed material by the Court of Appeal should occur sparingly and only when truly necessary to resolve an issue of law. Notice of any application should be given as soon as practicable after permission to appeal. An application made for the first time at the hearing is unlikely to succeed absent special reasons.

• Court of Appeal (Civil Division) — Appeal allowed on ground (ii), all other grounds dismissed, and case remitted to SIAC.
• Special Immigration Appeals Commission — On 30 July 2010, SIAC dismissed the asylum appeal by applying article 1(F)(c) to exclude the appellant from refugee protection.