AN (Afghanistan) v Secretary of State for the Home Department

Article 1F exclusion requires the stringent standard of “serious reasons for considering” that an applicant committed the relevant international crime. The evidence must be clear, credible or strong, and the decision-maker will ordinarily need to be satisfied on the balance of probabilities. A prior tribunal decision which used a less demanding formulation contains no material error where its actual findings established each relevant factual component to at least that standard.

An order quashing a tribunal decision in its entirety leaves incorporated issues formally open unless its terms expressly restrict the remittal. Reconsideration of an otherwise final issue remains subject to abuse-of-process principles.

The appellant, an Afghan national and senior Hizb-i-Islami commander during the 1990s, claimed asylum after fleeing Afghanistan. The Secretary of State and the Asylum and Immigration Tribunal concluded that he was excluded from refugee protection by Article 1F because he was complicit in war crimes committed by Hizb-i-Islami. He nevertheless succeeded under Article 3 of the European Convention on Human Rights.

Following a consent order quashing an earlier Upper Tribunal decision, the Upper Tribunal reconsidered both issues. It allowed the Article 3 appeal but dismissed the Article 1F appeal. It held that the Supreme Court’s later formulation of the Article 1F standard of proof made no material difference to the original factual findings. The Court of Appeal considered both the scope of the remittal and whether that conclusion was correct.

1. Appeal dismissed. Sales LJ, with whom Ryder LJ and Gloster LJ agreed, upheld the Upper Tribunal’s dismissal of the Article 1F appeal.

2. The Court rejected the Secretary of State’s respondent’s-notice contention that the Upper Tribunal lacked jurisdiction to consider Article 1F. The Court of Appeal’s order of 12 April 2012 quashed IJ Barton’s decision in its entirety, including the incorporated Article 1F decision. Its express direction to redetermine Article 3 did not contain limiting language excluding Article 1F. The Upper Tribunal was therefore entitled to proceed on the basis that it had formal jurisdiction, while limiting reconsideration to avoid abuse of process.

3. The substantive ingredients of complicity in war crimes were not reopened. Those issues had previously been considered in light of R (JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15. The Court reserved its opinion on whether the original findings were sufficient to establish those ingredients, because the point was neither live nor argued.

4. The live issue was the effect of the revised standard in Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54. Although that decision replaced the less demanding approach in Gurung, it did not affect the result here. IJ Aziz had found as facts that Hizb-i-Islami committed war crimes, that the appellant knew of them, that he maintained security within its captured area, and that this enabled others to commit the crimes at the front line. The evidence for each finding was regarded as sufficient at least to the balance-of-probabilities standard.

5. Accordingly, application of the stricter Article 1F standard would plainly have produced the same exclusion decision. No material error of law was established.

• Court of Appeal (Civil Division) Dismissed the appeal and upheld the Upper Tribunal’s Article 1F decision: [2015] EWCA Civ 684.

• Upper Tribunal (Immigration and Asylum Chamber) By a decision promulgated on 24 September 2013, allowed the appeal under Article 3 but dismissed it under Article 1F.

• Court of Appeal (Civil Division) By consent order of 12 April 2012, quashed IJ Barton’s decision of 2 February 2011 and remitted the Article 3 issue for redetermination.

• Asylum and Immigration Tribunal On 23 October 2008, rejected the Article 1F appeal but allowed the appeal under Article 3.