KM v The Secretary of State for the Home Department

Exclusion under Article 1F of the Refugee Convention must be interpreted restrictively and applied cautiously. The state must show clear and credible or strong evidence giving serious reasons for considering that the main elements of the relevant crime are engaged. For Article 1F(a), international crimes have an autonomous meaning in international law. For post-1 July 2002 conduct, the Rome Statute is the starting point. The contextual elements in the chapeau to Article 7 are essential: serious individual acts do not amount to crimes against humanity without the required widespread or systematic attack, civilian population, policy, nexus and knowledge. For Article 1F(b), a former state agent is not automatically excluded from relying on the political exception, but serious crimes committed on behalf of an oppressive state are unlikely to fall within it.

The appellant, a Congolese national, claimed asylum after serving for more than ten years in the Police d’Intervention Rapide in the Democratic Republic of Congo. The Secretary of State sought to exclude him under Article 1F(a), alleging involvement in crimes against humanity, and later under Article 1F(b), alleging a serious non-political crime.

The First-tier Tribunal allowed the appeal on protection and human-rights grounds. The Upper Tribunal initially allowed the Secretary of State’s appeal on the exclusion issue. The Court of Appeal remitted the matter by consent. The Article 3 risk finding was preserved. The central issues were whether the evidence established serious reasons for considering that the appellant had individual responsibility for crimes against humanity or had knowingly aided and abetted torture.

1. Article 1F(a). The assessment is not a criminal trial, but the gravity of exclusion requires a sufficiently particularised case showing why the main elements of the alleged international crime are engaged. The burden remained on the Secretary of State. Mere membership of the PIR, general evidence of human-rights abuses, or suspicion that the appellant’s involvement was greater than admitted was insufficient.
2. The Rome Statute and Elements of Crime provided the starting point for post-1 July 2002 conduct. The chapeau to Article 7 was an essential part of the definition. The tribunal applied the contextual inquiry by considering the existence of an attack, its character as widespread or systematic, and the nexus and knowledge requirements. Widespread and systematic abuses arising from poor training, corruption, weak command structures and impunity did not, without more, establish a state or organisational policy directed against the civilian population.
3. The evidence concerning particular repression in Kinshasa and Bas Congo after the 2006 election was capable of engaging Article 7’s contextual elements. However, the Secretary of State had not explored whether the appellant participated in those incidents. Article 1F(a) was therefore not established.
4. Article 1F(b). No sufficiently particularised case showed that the appellant personally used unlawful force. However, the evidence established serious reasons for considering that he and officers under his command arrested many demonstrators and surrendered them to the authorities. He knew that detainees were at risk of torture or serious ill-treatment. His conduct formed an integral part of the process leading to detention and amounted to knowingly aiding and abetting torture. That was a serious crime.
5. The wording of the Convention did not exclude a state agent from relying on the political exception. Nevertheless, the majority reasoning in T v Immigration Officer [1996] UKHL 9 provided the more appropriate approach. The Convention was intended to protect those fleeing oppression, not persons who had committed serious crimes on behalf of an oppressive state under a stated political purpose.
6. The appeal was dismissed on Refugee Convention grounds and allowed on human-rights grounds. Removal remained unlawful under section 6 of the Human Rights Act 1998.

1. First-tier Tribunal: allowed the appeal on protection and human-rights grounds on 7 February 2018.
2. Upper Tribunal: found an error of law in the First-tier Tribunal’s treatment of individual criminal responsibility and initially concluded that Article 1F(a) applied.
3. Court of Appeal: granted permission and remitted the exclusion issue to the Upper Tribunal by consent.
4. Upper Tribunal: on remaking, dismissed the appeal on Refugee Convention grounds but allowed it on human-rights grounds.