Al-Sirri v Secretary of State for the Home Department

Article 1F(c) of the Convention relating to the Status of Refugees must be interpreted restrictively and applied cautiously. It is reserved for extreme conduct which attacks the basis of international coexistence. Gravity, organisation, international impact, long-term objectives and implications for international peace and security inform the required high threshold.

A domestic classification of conduct as terrorism is insufficient. The conduct must have the requisite international dimension. An attack on a United Nations-mandated force may qualify where it frustrates a United Nations purpose, but all relevant facts and the individual’s responsibility must be examined.

“Serious reasons for considering” requires clear, credible or strong evidence and a considered judgment. It does not import a domestic standard of proof, although exclusion will rarely be justified unless responsibility is established on the balance of probabilities.

The court heard conjoined appeals concerning exclusion from refugee status under article 1F(c) of the Convention relating to the Status of Refugees.

Al-Sirri v Secretary of State for the Home Department concerned an Egyptian national alleged to have supported terrorism and participated in the conspiracy to murder General Ahmad Shah Masoud. The Court of Appeal, in [2009] EWCA Civ 222, set aside the Asylum and Immigration Tribunal’s determination and remitted the asylum appeal. Al-Sirri appealed against aspects of the legal guidance governing that reconsideration.

DD (Afghanistan) v Secretary of State for the Home Department concerned an Afghan national who had commanded fighters engaged in operations against the Afghan government and the International Security Assistance Force. The Court of Appeal, in [2010] EWCA Civ 1407, allowed the Secretary of State’s appeal and remitted the case for reconsideration of DD’s individual responsibility.

The central questions concerned the international dimension required by article 1F(c), attacks upon a United Nations-mandated force, individual responsibility and the meaning of “serious reasons for considering”.

1. Disposition. The court unanimously dismissed both appeals. The remittals ordered by the Court of Appeal remained necessary, although the tribunal reconsidering Al-Sirri’s case was required to apply the Supreme Court’s corrected guidance.

2. Article 1F(c) of the Convention relating to the Status of Refugees must be interpreted restrictively and applied with caution. It is triggered only in extreme circumstances by activity attacking the basis of international coexistence. The threshold is assessed by reference to the gravity and organisation of the conduct, its international impact and long-term objectives, and its implications for international peace and security. Exclusion also requires serious reasons for considering that the individual bore personal responsibility, assessed through the person’s participation, mental state and any grounds negating responsibility.

3. The expression “acts contrary to the purposes and principles of the United Nations” has an autonomous meaning. A state cannot make every act falling within its domestic definition of terrorism an article 1F(c) act. Section 54 of the Immigration, Asylum and Nationality Act 2006, including its adoption of section 1 of the Terrorism Act 2000, must therefore be read consistently with article 12(2)(c) of the Council Directive 2004/83/EC.

   Terrorist conduct must possess an international dimension. The decisive inquiry concerns the nature and effects of the resulting acts. Merely acting in one state with consequences in another is not invariably sufficient, although one state’s provision of a safe haven for terrorism against another may plainly have the necessary implications.

4. An attack upon the International Security Assistance Force was in principle capable of falling within article 1F(c). That force was mandated to maintain security in Afghanistan and thereby further the maintenance of international peace and security, a primary purpose in article 1 of the Charter of the United Nations. The different rules of international humanitarian law applying to combat forces and United Nations peacekeeping personnel did not determine whether an attack frustrated the purposes and principles of the United Nations. The tribunal nevertheless had to examine all relevant facts and DD’s individual responsibility.

5. “Serious reasons” is stronger than reasonable grounds, and “considering” is stronger than suspecting or believing. The evidence must be clear and credible or strong, but proof beyond reasonable doubt is unnecessary. Domestic civil and criminal standards should not be substituted for the Convention’s language. Nevertheless, serious reasons will rarely exist unless the decision-maker can be satisfied on the balance of probabilities that the individual committed the relevant conduct; they cannot ordinarily exist where it is more likely than not that the individual did not do so.

6. DD’s remittal to the Upper Tribunal therefore stood. Al-Sirri’s case also remained subject to reconsideration on the admissible evidence, with the appropriate tribunal and the precise form of order to be determined after written submissions.

1. United Kingdom Supreme Court: In Al-Sirri v Secretary of State for the Home Department and the conjoined appeal of DD (Afghanistan) v Secretary of State for the Home Department, the court dismissed both appeals. It maintained the remittals and supplied authoritative guidance on article 1F(c).
2. Court of Appeal — Al-Sirri: In [2009] EWCA Civ 222, the court set aside the Asylum and Immigration Tribunal’s determination and remitted the asylum appeal for fresh determination. Al-Sirri appealed against aspects of its guidance.
3. Court of Appeal — DD: In [2010] EWCA Civ 1407, the court allowed the Secretary of State’s appeal. It held that attacks upon the International Security Assistance Force were capable of engaging article 1F(c), but remitted the case because individual responsibility had not been properly examined.
4. Asylum and Immigration Tribunal: The tribunal dismissed Al-Sirri’s appeal. In DD’s case, the tribunal allowed the asylum and article 3 appeals and found article 1F(c) inapplicable.