The Secretary of State for the Home Department v Yasser Toufiq Ali Al-Sirri

Exclusion from refugee protection under Article 1F(c) of the Refugee Convention requires the Secretary of State to prove, by clear and credible or strong evidence, serious reasons for the considered judgment that the claimant bears individual responsibility for qualifying acts. The standard is higher than suspicion or belief. The assessment must be detailed and individualised, including the person’s involvement, mental state and any basis for rejecting responsibility.

Under section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, relevant non-co-operation must be taken into account in a global credibility assessment. The fact-finder decides the consequential weight. A refusal to answer questions or give evidence may damage credibility, yet be of modest weight where the existing material permits a fair assessment and the Secretary of State retains the burden of proving exclusion.

The Secretary of State appealed against a First-tier Tribunal decision allowing Mr Al-Sirri’s asylum appeal. The Secretary of State had certified that he was excluded under Article 1F(c) of the Refugee Convention, alleging that he knowingly assisted the assassination of the leader of the Afghan Northern Alliance by providing letters of introduction to the assassins.

The fresh First-tier Tribunal hearing followed the remittal ordered after Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54. It found that the international dimension of the assassination was established, but that the evidence did not establish the appellant’s knowing participation. The Secretary of State challenged the First-tier Tribunal’s treatment of section 8, the exclusion standard, and evidence concerning the letters of introduction.

1. Appeal dismissed. The First-tier Tribunal made no error of law. Its decision allowing the asylum appeal and finding that the appellant was a refugee was affirmed.
2. The governing Article 1F(c) inquiry was whether the Secretary of State had shown serious reasons for considering that the appellant was individually responsible for acts contrary to the purposes and principles of the United Nations. Applying the Supreme Court’s guidance in the same litigation, the Tribunal held that this required an individualised assessment and clear and credible or strong evidence. The Secretary of State bore the burden throughout. The First-tier Tribunal was entitled to conclude that this threshold had not been met.
3. The First-tier Tribunal correctly applied section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. In accordance with JT (Cameroon) v Secretary of State for the Home Department [2009] 1 WLR 1411, section 8 conduct forms part of a global credibility assessment and its weight is for the fact-finder. The appellant’s refusal to undergo a further interview and to give oral evidence damaged his credibility, but the First-tier Tribunal was entitled to regard the damage as modest. His earlier detailed account remained capable of assessment, no substantial new evidence had emerged, and the Secretary of State could identify the aspects of silence said to be damaging.
4. The First-tier Tribunal did not misapply the standard of proof by requiring the appellant to disprove the case against him. It examined the evidence and competing accounts before deciding that serious reasons for considering knowing participation had not been shown.
5. The First-tier Tribunal did not misunderstand the letters of introduction. Its description of the letters recovered at the assassination scene as forgeries, or reproductions, of the appellant’s letters was consistent with the evidence and did not exclude the Secretary of State’s case that the letters could be verified through the appellant and his organisation. Its findings were not irrational in the sense identified in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State’s appeal and affirmed the First-tier Tribunal’s decision allowing the asylum appeal.
• First-tier Tribunal: in a decision promulgated in April 2015, allowed the appeal against exclusion under Article 1F(c) of the Refugee Convention and found that the appellant was a refugee.
• Supreme Court: Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54 accepted aspects of the appellant’s legal arguments concerning exclusion, but did not disturb the remittal for a fresh tribunal hearing.
• Court of Appeal: Al-Sirri v Secretary of State for the Home Department and UNHCR (Intervening) [2009] EWCA Civ 222 reversed the earlier AIT decision and remitted the case for reconsideration on the proper evidential basis.