AH (Algeria) v Secretary of State for the Home Department

Exclusion under the Refugee Convention requires an individual assessment of the person's own role and responsibility. Mere membership of, or association with, a terrorist organisation does not automatically establish exclusion. Decision-makers must examine the relevant facts, including the person's position, knowledge, contribution and opportunity to leave. A conviction assists only where the offence and findings establish the person's true role. The requirement that a non-political crime be serious has an autonomous international meaning. Domestic sentencing thresholds, sentence length and terrorist labels are not decisive. Seriousness must be assessed contextually, having regard to the nature of the offence, the person's part in it, aggravating and mitigating features and the penalty imposed. Reliance on the discredited membership presumption was a material legal error.

The Secretary of State accepted that the appellant satisfied the refugee definition in Article 1A of the Refugee Convention, but excluded him under Article 1F(b) and (c). The exclusion decision relied principally on findings of the Paris Court of Appeal, which convicted the appellant in relation to false administrative documents and found that he belonged to a group formed to prepare terrorist acts.

The Asylum and Immigration Tribunal confirmed the exclusion decision. The appellant argued that the Tribunal had relied on the presumption stated in Gurung v Secretary of State for the Home Department, had failed to examine his individual role and responsibility, and had not assessed whether his offence met the seriousness threshold in Article 1F(b). The central issues were whether the French conviction and findings were sufficient, and whether the Tribunal had applied the correct legal tests.

Appeal allowed and matter remitted for rehearing.

1. For Article 1F(c), the decision-maker must conduct an individual assessment of the specific facts showing the person's personal involvement and responsibility. Applying R (JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15, [2011] 1 AC 184, and Secretary of State for the Home Department v DD (Afghanistan) [2010] EWCA Civ 1407, the nature of the organisation is only one factor. Mere membership, even of an organisation whose purpose is terrorism, does not create a presumption of individual liability.
2. A conviction may make the assessment easier only where the offence and the convicting court's findings establish the individual's true role. The French findings were too sparse to establish instigation, encouragement, inducement, participation or any significant personal contribution. The Tribunal therefore could not properly rely on section 54(1) of the Immigration, Asylum and Nationality Act 2006.
3. Article 1F(b) has an autonomous international meaning. States have an evaluative role in deciding whether an offence is serious, but no unfettered discretion to adopt a domestic threshold. Seriousness must be assessed by reference to the nature and circumstances of the offence, the accused's part, aggravating and mitigating features and the penalty. A terrorist label and sentence length are not benchmarks.
4. The Tribunal had not separately assessed paragraphs (b) and (c). Its conclusions on both grounds depended on the discredited Gurung presumption. That error fatally infected the Article 1F(b) conclusion as well as the Article 1F(c) conclusion.
5. Lord Justice Rix agreed that the matter should be remitted. Lord Justice Ward agreed with the result and added that seriousness is an ordinary contextual concept: sentence is material but not determinative. The Tribunal was left free to decide whether either exclusion ground was established.

• Court of Appeal (Civil Division): Allowed the appeal and directed that the matter be remitted to the Tribunal for further hearing.
• Upper Tribunal (Immigration and Asylum Chamber): The judgment describes the decision under appeal as a determination of the Asylum and Immigration Tribunal dated 19 January 2010, confirming exclusion under Article 1F(b) and (c).
• Secretary of State: The asylum claim had been refused by decision dated 28 February 2006.