Hany Youssef v The Secretary of State for the Home Department

For exclusion under Article 1F(c) of the Refugee Convention, knowingly inciting or encouraging acts of international terrorism does not require proof that anyone committed or attempted such acts. Article 1F(c) concerns acts contrary to the purposes and principles of the United Nations, rather than crimes. The criminal-liability rules in the Rome Statute therefore do not govern that question.

The exclusion clause must be interpreted restrictively and applied cautiously. It nevertheless applies where clear and credible evidence gives serious reasons for considering that a person’s words, viewed in their full context, explicitly or implicitly encourage an audience to emulate terrorist activity.

The appellant, an Egyptian national, had been granted limited leave because return to Egypt would breach article 3 of the European Convention on Human Rights. The Secretary of State nevertheless excluded him from refugee protection under Article 1F(c) of the Refugee Convention, relying on internet speeches, sermons and statements said to encourage international terrorism.

A First-tier Tribunal panel allowed his appeal. An earlier Upper Tribunal decision found an error of law in that panel’s application of Article 1F(c), retained the appeal, and directed a further hearing.

The central issues were whether incitement or encouragement required a resulting completed or attempted terrorist act, and whether the appellant’s published statements met the applicable exclusion threshold.

1. Appeal dismissed. The Secretary of State established serious reasons for considering that the appellant had knowingly incited and encouraged acts of international terrorism contrary to the purposes and principles of the United Nations. He was therefore excluded from refugee protection by Article 1F(c) of the Refugee Convention.

2. Article 1F(c) is not confined to completed, attempted or inchoate crimes. The criminal-liability approach in R (on the application of JS) (Sri Lanka) v Secretary of State for the Home Department [2010] UKSC 15, and the Rome Statute provisions concerning crimes, did not require proof that terrorism had occurred or been attempted. Article 1F(c) addresses acts, not crimes. Article 12(3) of the Qualification Directive extends exclusion to instigators and participants, but does not require identical rules of secondary liability for each limb of Article 12(2).

3. Following Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54, exclusion must be construed restrictively and cautiously. It requires a high threshold, an international dimension, and individual responsibility. “Serious reasons for considering” require clear and credible or strong evidence and the decision-maker’s considered judgment, without importing a criminal standard of proof.

4. The Tribunal assessed the evidence as a whole, including the full translations of the appellant’s material. It did not rely on the Ombudsperson’s report because that report applied a different test, evidence base and standard. The appellant’s repeated praise of leaders of violent Al-Qaeda terrorism, his celebration of Al-Qaeda’s reach, and statements presenting further followers as successors were, in their context, at least implicit and in places explicit encouragement to emulate terrorist activity. They crossed the Article 1F(c) threshold. No anonymity direction was made.

• Upper Tribunal (Immigration and Asylum Chamber): after an earlier Upper Tribunal decision identified an error of law in the First-tier Tribunal’s approach to Article 1F(c), the appeal was retained and re-determined. The appeal was dismissed.
• First-tier Tribunal: a panel allowed the appellant’s appeal on asylum and human-rights grounds.