El-Sayed El-Sebai Youssef v Secretary of State for the Home Department

Article 1F(c) of the United Nations Refugee Convention 1951 is not confined to completed or attempted terrorist acts, or to conduct amounting to an international crime. Incitement, encouragement, planning or preparation may in principle constitute acts contrary to the purposes and principles of the United Nations.

Exclusion nevertheless has a high threshold. The act must have an international dimension and sufficient gravity, including a serious effect on international peace, security or peaceful relations between states. The quality of terrorist incitement and its actual gravity or impact are separate questions.

These linked appeals concerned exclusion from refugee status under Article 1F(c) of the United Nations Refugee Convention 1951.

Youssef, an Egyptian national, had published internet sermons and other material praising Al-Qaeda and encouraging jihadist terrorism. The Upper Tribunal dismissed his appeal against the Secretary of State’s exclusion decision. N2, thought to be a Jordanian national, had been convicted of possessing detailed terrorist material and was found to have been a sleeper for a terrorist organisation. The Special Immigration Appeals Commission dismissed his appeal against exclusion.

Neither appellant was alleged to have completed or attempted a particular terrorist attack, nor was a causal link established between Youssef’s publications and a particular attack. The common issue was whether conduct falling short of a completed or attempted terrorist act could satisfy Article 1F(c).

1. Youssef’s appeal was allowed and remitted to the Upper Tribunal; N2’s appeal was dismissed. Article 1F(c) has a distinct scope from Articles 1F(a) and 1F(b). It is directed to “acts”, rather than only international crimes. It can therefore apply to a person’s own acts of knowingly inciting or encouraging international terrorism without proof that a particular terrorist crime was completed or attempted.

2. The rules governing individual criminal responsibility under the Rome Statute did not confine Article 1F(c). The Supreme Court’s reasoning in JS (Sri Lanka) concerned Article 1F(a), not Article 1F(c). It was neither surprising nor erroneous for different forms of individual responsibility to apply to criminal conduct under Articles 1F(a) and 1F(b), and to other acts under Article 1F(c).

3. The court applied the restrictive guidance in Al-Sirri [2012] UKSC 54. Article 1F(c) is engaged only in extreme circumstances. The conduct must have an international dimension and be capable of affecting international peace, security and peaceful relations between states. In terrorism cases, a tribunal must assess the nature of the act and its gravity, including its serious international impact.

4. Active internet encouragement of international terrorism may satisfy the qualitative character of Article 1F(c). It will not necessarily satisfy the gravity threshold. An isolated online exhortation might be active incitement but lack sufficient impact. Matters such as a wide readership, repeated dissemination, or evidence that readers were influenced to join an armed struggle may bear on gravity.

5. The Upper Tribunal correctly rejected the proposition that Youssef’s conduct had to amount to an international crime or be linked to a completed or attempted attack. It did not, however, clearly stand back and assess the gravity and impact of his conduct after resolving that issue. Its decision was therefore set aside and remitted for that limited reconsideration. N2’s seriousness and international-impact grounds were not before the court, so his appeal failed.

• Court of Appeal (Civil Division): In the present linked appeals, Youssef’s appeal was allowed on the limited ground that the gravity of his conduct had not been adequately assessed, and was remitted to the Upper Tribunal. N2’s appeal was dismissed: [2018] EWCA Civ 933.
• Special Immigration Appeals Commission: On 1 December 2016, SIAC dismissed N2’s appeal against the Secretary of State’s decision to exclude him from refugee status under Article 1F(c).
• Upper Tribunal (Immigration and Asylum Chamber): On 17 October 2014, the tribunal found an error of law in the First-tier Tribunal’s determination of 3 March 2014 and retained the appeal. On 12 April 2016, it dismissed Youssef’s appeal against exclusion under Article 1F(c).