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

Article 1F(b) of the 1951 Refugee Convention creates a categorical exclusion based on objective facts. It does not invite a proportionality assessment or a merits-based evaluation of the offender. Post-offence rehabilitation, expiation, remorse, passage of time, punishment served and present danger cannot qualify the seriousness of the crime. The term serious is not equivalent to particularly serious, but denotes especially grave offending in its context. Personal participation must be assessed on all the facts. Neither mere membership in a terrorist organisation nor a fixed level of overt activity provides an automatic answer. A fair foreign conviction deserves significant respect, but the domestic tribunal must decide the exclusion issue.

The appellant, an Algerian national, had been accepted as having a well-founded fear of persecution but was excluded from refugee protection under Article 1F(b) of the 1951 Refugee Convention and the equivalent provisions of the Qualification Directive. The Upper Tribunal, on a fresh hearing following an earlier appeal reported at [2012] 1 WLR 3469, found that he had committed a serious non-political crime in France through senior participation in a terrorist criminal association.

The appeal concerned whether post-offence conduct could expiate the crime, whether serious meant particularly serious, and whether the evidence established sufficient personal involvement.

Appeal dismissed. Laws LJ gave the judgment, with Burnett LJ and Sir Colin Rimer agreeing.

1. Article 1 is a definition section. Article 1F(b) belongs to the same genus as Articles 1C, 1D and 1E. The decision-maker must establish the relevant objective facts and then apply the exclusion. The provision does not confer a discretion to evaluate the applicant’s overall merits.
2. The proposed doctrine of expiation would require an open-ended proportionality exercise involving the gravity of the offence, passage of time, punishment, remorse, rehabilitation, age and present danger. That approach was inconsistent with the text and structure of the Convention. The reasoning of the Court of Justice in Germany v B and D, concerning Article 12(2)(b) and (c) of the Qualification Directive, likewise showed that exclusion was not conditional on a fresh proportionality assessment once seriousness and individual responsibility had been assessed. The minority reasoning in Febles was not followed; the majority approach was adopted.
3. Restrictive interpretation and cautious application operate principally in assessing whether the crime is a serious non-political crime and whether there are serious reasons for considering that it was committed. The latter is a demanding threshold, but it was satisfied by the appellant’s conviction. Serious does not mean particularly serious. The distinction between crime and délit in French law, and the wording of Article 33(2), did not alter the construction.
4. A fair foreign criminal process within the European legal order deserved significant respect, while the ultimate assessment of seriousness remained for the domestic tribunal. The Upper Tribunal was entitled to consider the wider conspiracy and the appellant’s connections, forged documents, concealment and support for terrorist activity. It was entitled to conclude that he was a senior participant who knowingly supported terrorist acts, rather than an unwitting participant whose conduct was limited to document offences. No presumption that membership alone sufficed was required, and no particular level of overt activity had to be shown.

The Upper Tribunal was therefore entitled to find a serious non-political crime within Article 1F(b), and the exclusion from refugee protection and subsidiary humanitarian protection stood.

• Court of Appeal (Civil Division): On 14 October 2015, dismissed the appeal and upheld the Upper Tribunal’s exclusion decision.
• Court of Appeal (Civil Division): In the earlier appeal, reported at [2012] 1 WLR 3469, the court identified an error in reliance on Gurung and remitted the matter for a fresh hearing.
• Upper Tribunal: By determination dated 25 July 2013, upheld the Secretary of State’s decision that the appellant was excluded under Article 1F(b) and the corresponding Qualification Directive provisions.