Immigration Solicitors

By Adam Tear

On the 10 December 2010, the Court of Appeal, promulgated *is*Secretary of State for the Home Department v DD (Afghanistan)*ie* [2010] EWCA Civ 1407. This is a fundamental review of the law in relation to exclusion under the Geneva Convention on Refugees under Article 1F(c).

The central premises is that in the aftermath of World War II the drafting parties to the convention, were still trying and punishing persons who had committed some of the worst atrocities ever recorded. It was obvious to these parties that some of those that were being punished could if released claim that they were suffering persecution and claim asylum in other countries, therefore three exclusion clauses were agreed between the states. These were exclusion of:

1. persons who are suspected of committing crimes against peace, war crimes, or crimes against humanity. Article 1F(a);
2. persons committing serious, none political crimes outside of the country of refuge prior to admission to that county. Article 1F(b); and
3. persons who have committed acts contrary to the purposes and principles of the UN. Article 1F(c).

The Court in DD *is*(Afg)*ie* turned its attention to analysis of several recent cases dealing with exclusion and the UNHCR Guidelines in relation to Article 1F.

*is*JS (Sri Lanka) v Secretary of State for the Home Department *ie*[2010] UKSC 15

This case whilst dealing with Article 1F(a), brought some assistance with the identification of the criteria to be applied by the Courts when dealing with Article 1F(c). The Court affirmed that exclusion clauses must be dealt with in a restrictive manner, and that more than mere membership of an organisation is required. The consideration must be given to the personal role of an individual within an organisation.

*is*KJ (Sri Lanka) v Secretary of State for the Home Department*ie* [2009] EWCA Civ 292

This case turned on whether simple membership of an organisation such as LTTE would invoke Article 1F(c), the Court finding that there is a real need to analyse the organisation, and the individual’s personal involvement in that organisation. Should the organisation sole purposes be to carry our acts of terrorism, then the harder it would be to avoid being labelled as a terrorist your self. Simple military action against the government does not make an action terrorist in nature.

*bis*Regina v F [2007] QB 960 *bie*
In this criminal case the Court of Appeal, found there was no difference between actions against a tyrannical government or a democratically elected government, the simple actions of bring terror were enough to bring the case within Section 1 of the 2000 Act.

KK (Article 1F(c)) (Turkey) [2004] UKAIT 0010

This case from the Tribunal points us towards the purposes and principles of Article 1F(c), the Tribunal suggested that whilst the wording might be clear in the matter, the Court should consider the purposes and principles of the Convention. The document is a living document and as such cannot be confined to its exact words.

*is*SS v Secretary of State for the Home Department*ie* (SC/56/2009, 30 July 2010)

This SIAC case considered the definition of terrorism, and whether an act of terrorism simple within the domestic sphere was capable of bring the Appellant within the scope of Article 1F(c). The Tribunal found it did, on the basis that the assassination of a leader of a country from within could just as easily unbalance international security as any other act of terrorism from outside the country.

UNHCR GUIDELINES ON INTERNATIONAL PROTECTION: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees Sep 2003.

This guidance document sets out the type of conduct that will cause a state or the UN to exclude a person from Refugee Protection. It suggest that the triggering act for Article 1F(c) only happens in extreme circumstances, such activity having an international dimension. In principle only persons in a position of power in a state, or state like organisation would be capable of falling within this definition.

***The Decision of the Court of Appeal. **
The Court in *is*DD (Afg)*ie* found that acts directed against the UN forces are acts contrary to the purposes and principles of the United Nations. However it does not follow that violence against anyone bearing the UN colours would bring you within the exclusion, each situation requires its own consideration. The Respondent, had been found to have carried our actions against the UN mandated forces, as such the decision of the Tribunal which pre-dated the decision of the Supreme Court in *is*JS (Sri Lanka)*ie* must be reconsidered.

The Secretary of State for the Home Department appeal in *is*DD (Afg)*ie* has been allowed, and the matter is to be remitted to the Tribunal for further enquires and consideration of Article 1F(c). Permission to appeal to the Supreme Court is still awaiting consideration.