Secretary of State for the Home Department v NF

Article 1F(c) of the Refugee Convention requires a restrictive and cautious approach. Exclusion depends on a high threshold, assessed by the gravity and organisation of the conduct, its international impact and long-term objectives, and its implications for international peace and security.

Conduct need not amount to a completed or attempted terrorist act, or incitement of one. Possession of extremist material, a terrorist mindset and contacts with extremists may nevertheless fall short of the threshold. A tribunal which applies the correct test and evaluates the evidence in its totality may lawfully reach that conclusion.

NF, a Kenyan national, was convicted of possessing terrorist material contrary to section 58 of the Terrorism Act 2000. The Secretary of State later decided that he was excluded from refugee protection under article 1F(c) of the Refugee Convention because he had committed acts contrary to the purposes and principles of the United Nations.

The First-tier Tribunal allowed NF’s appeal, finding that his possession of extremist material, terrorist mindset and association with extremists did not meet the required threshold. The Upper Tribunal dismissed the Secretary of State’s appeal, holding that the First-tier Tribunal had not treated a completed or incited terrorist act as a necessary precondition and had reached a conclusion open to it on the evidence.

The central issue was whether the Upper Tribunal had erred in law.

Appeal dismissed. Lord Justice Lewis gave the judgment, with Lord Justices Nugee and Davis agreeing. The Secretary of State was ordered to pay NF’s costs.

1. Article 1F(c) must be interpreted restrictively and applied with caution. It imposes a high threshold. The assessment concerns the gravity of the act, the manner in which it was organised, its international impact and long-term objectives, its implications for international peace and security, and whether there are serious reasons for attributing individual responsibility. This approach was applied from Al-Sirri v Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening) [2013] 1 AC 745.
2. Conduct falling short of the commission or incitement of a specific terrorist act is capable in principle of falling within article 1F(c). The decision in Youssef and N2 v Secretary of State for the Home Department [2019] Q.B. 445 did not establish that a completed or attempted terrorist act was required.
3. The First-tier Tribunal correctly identified the issue and assessed the totality of the evidence, including NF’s possession of extremist material, terrorist mindset, contacts with extremists and criminal conduct under the Terrorism Act 2000. Its conclusion that the conduct, although serious, had not crossed the high threshold was lawfully open to it.
4. The comparison with N2 could not be made simply by observing that both cases involved downloading and retaining extremist material. N2’s case involved materially more serious conduct, including planning or facilitation, material ready for use, evidence of a sleeper role, more serious charges and a substantially longer sentence. The factual situation, gravity and impact differed.
5. The Upper Tribunal was therefore correct to find no error of law in the First-tier Tribunal’s decision. Its alternative reasoning that NF’s conduct might not have been capable of affecting international peace did not need to be determined. The Court nevertheless stated, as guidance, that such a suggestion should be approached with circumspection: sufficiently grave conduct concerning possible terrorism and support for terrorist organisations operating in other countries could have international repercussions.

• Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal against the Upper Tribunal’s decision and ordered payment of NF’s costs.
• Upper Tribunal (Immigration and Asylum Chamber): on 22 May 2019, dismissed the Secretary of State’s appeal against the First-tier Tribunal, finding no material error of law.
• First-tier Tribunal: allowed NF’s appeal against the decision excluding him from refugee protection under article 1F(c).