AS v The Secretary of State for the Home Department

Section 55 of the Immigration, Asylum and Nationality Act 2006 requires the Tribunal to consider a certified exclusion issue first in its written substantive deliberations. It does not require a separate decision at the beginning of the hearing, before evidence and submissions on other issues. The Tribunal may hear the evidence as a whole, subject to ordinary safeguards of fairness.

Where exclusion under Article 1F(a) is established, the asylum claim must be dismissed before other claims are addressed. Although no equivalent statutory sequence governs humanitarian protection, exclusion under paragraph 339D of the Immigration Rules should also be determined before its substantive merits.

The appellant, a Sri Lankan former police officer, appealed from a decision of the First-tier Tribunal dismissing his asylum, humanitarian-protection and human-rights claims. The respondent had certified that he was excluded from Refugee Convention protection under Article 1F(a).

The Upper Tribunal had previously found a material error of law in the First-tier Tribunal's failure to address the certificate first in its deliberations. It set that determination aside entirely and remade the appeal.

The central procedural question was whether section 55 required exclusion to be decided at the outset of the hearing, before evidence and submissions on all other issues. The substantive issues were whether the appellant had knowingly assisted crimes against humanity, whether duress applied, and whether he faced an Article 3 risk on return.

1. The First-tier Tribunal's determination was set aside and the appeal was remade. The Upper Tribunal dismissed the appellant's asylum, humanitarian-protection and human-rights claims.

2. Section 55(3) of the Immigration, Asylum and Nationality Act 2006 concerns the Tribunal's assessment after the hearing. Its reference to beginning substantive deliberations does not require exclusion to be determined at the beginning of the hearing. Section 55(4) likewise requires the written determination to resolve exclusion from asylum before any other head of claim. It does not impose a procedural division of the hearing.

3. The Tribunal may hear the evidence as a whole. The exclusion issue and the substantive protection claim may rest on the same evidence, and it would often be artificial to make findings on them separately. Fairness is protected by an adjournment or by refusing a late point where appropriate.

4. There were serious reasons for considering that the appellant had knowingly aided and abetted crimes against humanity. The country material established a widespread or systematic attack on civilians, particularly Tamils. The appellant knew of that attack and that persons arrested by his clandestine unit were likely to be tortured or killed. His arrests and handovers made a significant contribution to those crimes. His evidence did not establish the imminent threat required for duress.

5. The same facts excluded him from humanitarian protection under Article 17 of the Qualification Directive and paragraph 339D of the Immigration Rules. No exclusion applies to Article 3, but the appellant had not shown a real risk of prohibited treatment on return. The evidence did not establish adverse interest from the Sri Lankan authorities or any other actor.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision was set aside for material error of law and the appeal was remade and dismissed.

• First-tier Tribunal: First-tier Tribunal Judge Mensah, by a determination dated 20 January 2012, upheld the section 55 certificate and dismissed the appeal on all grounds.