AH v The Secretary of State for the Home Department

For exclusion under Article 1F(b), there must be serious reasons to consider that the claimant personally participated in conduct amounting to a serious non-political crime. Seriousness has an autonomous international meaning. It is assessed by the substance and context of the conduct, rather than domestic labels or sentence length alone.

Personal participation may consist of knowingly assisting a conspiracy to promote terrorist violence. The relevant crime may be the agreement or conspiracy itself. The facts need ordinarily be established on the balance of probabilities, although criminal proof is unnecessary. A foreign conviction of a senior court within the European Union should receive significant respect unless there is a striking procedural unfairness. The tribunal must nevertheless decide for itself whether the established conduct warrants exclusion.

The appellant, an Algerian national with a recognised well-founded fear of persecution in Algeria, sought refugee status and subsidiary humanitarian protection. The Secretary of State relied principally on his 1999 French conviction for participation in a criminal association connected with a terrorist enterprise.

An Asylum and Immigration Tribunal decision had attributed the terrorist acts of others to the appellant through his membership of a group. The Court of Appeal set that decision aside in AH (Algeria) v Secretary of State [2012] EWCA Civ 395 and remitted the appeal for remaking. It held that the earlier tribunal had not properly considered the appellant’s individual role or whether his particular offence met the Article 1F(b) threshold.

The Upper Tribunal obtained fuller translations of the French proceedings. The central issue was whether there were serious reasons to consider that the appellant had personally committed a serious non-political crime before entering the United Kingdom.

1. Appeals dismissed. The Tribunal held that the appellant was excluded from refugee status and subsidiary humanitarian protection under Article 1F(b) of the Convention relating to the Status of Refugees 1951.

2. The correct inquiry is whether there are serious reasons to consider that the claimant is guilty of conduct amounting to a serious non-political crime. The Tribunal adopted an autonomous international meaning of “serious”. Domestic offence labels and sentence length may be relevant, but are not determinative. Articles 1F(a) and 1F(c) illustrate the common high level of seriousness required.

3. “Serious reasons for considering” requires more than reasonable suspicion and does not require proof to the criminal standard. In practice, serious reasons will ordinarily require the Tribunal to be satisfied on the balance of probabilities that the claimant personally participated in the relevant conduct.

4. Mere membership of an organisation or association is insufficient. A conspiracy to promote terrorist violence can, however, be a serious crime. A claimant who knowingly assists persons planning violent crimes may be responsible for the agreement or conspiracy, even if the claimant did not personally execute the intended terrorist acts.

5. The French appellate conviction was entitled to significant respect. The appellant had participated in the proceedings and no strikingly unfair procedural defect was shown. The Tribunal nevertheless retained responsibility for deciding whether the conduct found by the French court was sufficiently serious for Article 1F(b).

6. On the French court’s findings and the wider evidence, the appellant was a senior participant in a terrorist conspiracy. He used false documents to move clandestinely in support of associates planning and carrying out terrorist violence, knew of and supported that violence, and concealed his connections. Those acts went substantially beyond possession of false documents and met the required threshold.

• Upper Tribunal (Immigration and Asylum Chamber): The remitted appeal was remade and dismissed. The appellant was held excluded under Article 1F(b) of the Convention relating to the Status of Refugees 1951.
• Court of Appeal: In AH (Algeria) v Secretary of State [2012] EWCA Civ 395, the Court set aside the Asylum and Immigration Tribunal’s second decision and remitted the appeal because it had not properly addressed personal participation and seriousness.
• Asylum and Immigration Tribunal: The appeal was initially dismissed in 2006. Following reconsideration, it was again dismissed on 19 January 2010.