T v Secretary of State for the Home Department (T v Immigration Officer)

For the purposes of article 1F(b) of the Refugee Convention, a crime is not political merely because it was committed with a political motive or against a background of struggle with the state. A court must ask whether the offence was committed for a political purpose and whether there was a sufficiently close and direct link between the offence and that purpose.

Indiscriminate violence against civilians, especially bombings intended or likely to create terror among the public, may fall outside the political exception even where the offender seeks to overthrow or pressure a government. Such conduct may properly be treated as a serious non-political crime, with the result that the protection against refoulement under article 33 does not apply by reason of article 1F(b) of the Convention relating to the Status of Refugees.

An Algerian national entered the United Kingdom illegally and claimed asylum. By the time of the appeal, it was accepted that, unless excluded by article 1F(b) of the Refugee Convention, he had a well-founded fear of persecution if returned to Algeria and would fall within paragraph 334 of HC 394.

The issue was whether his participation in an airport bombing in which 10 people were killed, and his involvement in an armed attack on barracks, amounted to a serious non-political crime outside the country of refuge prior to admission as a refugee. The Special Adjudicator and the Immigration Appeal Tribunal rejected the asylum claim. The Court of Appeal dismissed a further appeal, holding that the airport bombing was grossly disproportionate and insufficiently connected to any genuine political objective.

The appeal to the House of Lords concerned the meaning of article 1F(b), and in particular whether indiscriminate terrorist violence committed in the course of a struggle against a government could still be characterised as political.

Held

1. The appeal was dismissed. The House affirmed the order of the Court of Appeal. The appellant was excluded from the protection of the Refugee Convention because there were serious reasons for considering that he had committed a serious non-political crime within article 1F(b).

2. Per Lord Lloyd of Berwick, whose speech was expressly agreed with by Lord Keith of Kinkel and Lord Browne-Wilkinson, the phrase serious non-political crime in article 1F(b) should be read in the light of extradition law. A crime is political only if it is committed for a political purpose, namely to overthrow, subvert or change the government of a state or induce a change of policy, and if there is a sufficiently close and direct link between the crime and that purpose.

3. Per Lord Lloyd, in determining whether that link exists, the court may consider the means used and whether the offence was directed at military or governmental targets or at civilians, and whether it was likely to involve indiscriminate killing or injury to members of the public. Political motivation does not by itself convert every serious offence into a political crime.

4. Per Lord Mustill, the older incidence-based cases were insufficient by themselves to resolve modern asylum cases involving terrorism. He rejected remoteness, causation, proportionality and atrocity as reliable standalone tests, but accepted that terrorism could deprive conduct of political protection. He adopted the 1937 League of Nations formulation of terrorism as criminal acts directed against a state and intended or calculated to create terror in particular persons or the public.

5. Per Lord Slynn of Hadley, acts of violence intended or likely to create terror in persons unconnected with the government were capable of amounting to serious non-political crimes without recourse to fine distinctions of remoteness or proportionality. Indiscriminate bombings killing innocent citizens were outside the Convention’s protection.

6. Applying those principles, the appellant’s involvement in the airport bombing satisfied article 1F(b). Although the airport could be described as a governmental target, the method used was indiscriminate and almost bound to kill members of the public. Lord Lloyd held that the link between the offence and the political objective was therefore too remote. Lord Mustill and Lord Slynn treated the bombing as terrorism falling outside the political exception.

7. Lord Mustill also considered that the Tribunal could properly reach the same conclusion regarding the barracks attack. Lord Lloyd found it unnecessary to decide that point. The Secretary of State was therefore not bound by article 33(1) to refrain from returning the appellant to Algeria, although he might still be sent elsewhere if another state would receive him.

1. House of Lords: appeal dismissed; order of the Court of Appeal affirmed; petition and appeal dismissed: [1996] AC 742.

2. Court of Appeal: appeal from the Immigration Appeal Tribunal dismissed on 3 November 1994. The court held that the airport bombing was an atrocious act, grossly out of proportion to any genuine political objective, and insufficiently linked to the alleged political purpose.

3. Immigration Appeal Tribunal: appeal dismissed. The Tribunal found that the appellant was directly involved in planning an attack causing one death and involved in, with prior knowledge of, a bomb attack causing 10 deaths, and held that article 1F(b) applied.

4. Special Adjudicator: appeal against removal directions dismissed under section 8(4) of the Asylum and Immigration Appeals Act 1993.

5. Secretary of State / Immigration Officer: asylum claim refused and directions given for removal to Algeria under the immigration legislation.