by Mark Henderson & Alison Pickup
Advising your clients
Presenting new information about activities with armed groups
14.2 The circumstances in which refugee status can be denied under article 1F of the Refugee Convention are deliberately narrow. The Tribunal has stated that art.1F must be interpreted restrictively, and that judges should not equate it with a simple anti-terrorist provision or adopt an 'exclusion culture' (Gurung (Exclusion - Risk - Maoist) Nepal  UKIAT 04870), see also AA (Exclusion Clause) Palestine  UKIAT 00104. In SSHD v R (JS (Sri Lanka))  UKSC 15, it was common ground before the Supreme Court that "because of the serious consequences of exclusion for the person concerned the article must be interpreted restrictively and used cautiously"; see too Al-Sirri and DD (Afghanistan) v SSHD  UKSC 54 at paragraphs 12 and 16.
14.2A The Tribunal in Gurung  UKIAT 04870 nevertheless encouraged the Home Office to allege art 1F exclusion more widely than the handful of cases in which it was then raised and, in recent years, the Home Office has indeed become much more proactive about doing so. This has led to a proliferation of caselaw, with two Supreme Court cases, four in the Court of Appeal and five in the Upper Tribunal in the last five years. The detailed substantive law of exclusion is beyond the scope of this work; what follows is no substitute for a careful consideration of the leading cases such as JS (Sri Lanka)  UKSC 15, Al-Sirri  UKSC 54, T v SSHD  UKHL 8  AC 742 and the CJEU case of B and D (C-57/09 and C-101/09) in any case where art 1F may be raised. The Tribunal case of Gurung, which stood as the leading authority on exclusion for several years, has now been qualified by the higher courts (see especially paras 29-32 of JS (Sri Lanka)). The key legislative provisions and extracts from JS and B and D are set out in appendices to the Upper Tribunal's decision in MT (Article 1F (a) – aiding and abetting) Zimbabwe  UKUT 00015 (IAC) and paras 95-103 and 116-119 of its decision contain useful summaries of the main principles. The decision in AH (Article 1F(b) – 'serious') Algeria  UKUT 00382 (IAC) contains a useful summary of the principles to be derived from Al-Sirri at para 30 and applies those principles to the assessment of whether a crime is a 'serious' non-political crime such as to lead to exclusion under Art 1F(b).
14.2B Exclusion from refugee status is also addressed by Article 12(2) and (3) of the Qualification Directive (implemented in domestic law by Regulation 7 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006). Art 12(2) substantially repeats the text of Art 1F of the Refugee Convention, although with additional clarification as to the meaning of "particularly serious crime" in Art 1F(b) and as to the sources of the "purposes and principles of the United Nations" in Art 1F(c). The Qualification Directive itself must be interpreted consistently with the Refugee Convention, and with the fundamental rights and principles recognised in the EU Charter of Fundamental Rights: B and D (C-57/09 and C-101/09) The Qualification Directive also provides for exclusion from Subsidiary Protection on significantly broader grounds, implemented by para 339D of the Immigration Rules in relation to Humanitarian Protection - see chapter 41.
14.2C If an individual is shown to be at real risk of a breach of Articles 2 or 3 ECHR on return to their home country, the ECHR precludes their removal regardless of the application of the exclusion clauses. In such cases, Home Office policy is to grant 'restricted leave', which is normally granted for only six months at a time, and will normally be subject to conditions similar to those granted under temporary release such as residence, reporting and restrictions on employment and education. Settlement is only possible, if at all, after a continuous period of at least 10 years. An appellant will in such cases be protected from refoulement contrary to the ECHR, but there are very significant differences between restricted leave granted to those who are excluded, and leave to remain as a refugee or on humanitarian protection grounds. Most important among these are the right to family reunion, the availability of travel documents and the right to return to the UK during the currency of leave, as well as the sense of stability which the longer period of leave entails and which can be critical for the recovery of survivors of torture, sexual violence and other trauma.
14.3 Gurung  UKIAT 04870 held that the Tribunal could raise the matter of its own motion where there was evidence indicating potential art 1F exclusion and, in an obvious case, should consider exclusion before assessing risk (Gurung pre-dates s. 55 of the 2006 Act (see below) and it follows that even where an appeal is not certified under s. 55, in an obvious case the Tribunal should still consider exclusion first). In A (Iraq) v SSHD  EWCA Civ 1438, the Court of Appeal confirmed that the Tribunal is under a duty to consider exclusion if the facts warrant it but it also noted the statement in Gurung that where exclusion has not been raised by the Home Office, 'the allegation needed to be put precisely to the claimant' (para 26). While the parties must be warned that the Tribunal is raising the point and an adjournment may be appropriate in those circumstances, the Tribunal is entitled to have regard to the extent that membership of an armed organisation was raised in the refusal letter (even where art 1F exclusion was not alleged). In MH (Syria) and DS (Afghanistan) v SSHD  EWCA Civ 226, the Court of Appeal was asked by the Home Office to consider the application of Articles 1F(b) and (c) in a case which had previously been pursued solely on the basis of Article 1F(a). Richards LJ observed that:
75 I readily accept that the Secretary of State might have had a case against DS under Article 1F(b) or (c) had the evidence and argument been presented in that way. But that was not the case advanced. The case was put squarely on participation in crimes against humanity, within Article 1F(a) . That was the basis of the Secretary of State's original decision and of her case before the immigration judge. That was the issue to which the evidence and submissions on behalf of DS were addressed. In order to pursue a case under Article 1F(b) or (c) , the Secretary of State would have had to give notice of the precise way in which the case was put, and DS would have had to be given an opportunity to obtain additional expert evidence and make further submissions. That was not done. The issues arising under Article 1F are potentially complex and the immigration judge could not sensibly reach a view on the application of Article 1F(b) or (c) simply on the basis of evidence and submissions directed to Article 1F(a) . If, despite the way in which the Secretary of State's case was put, the immigration judge considered that Article 1F(b) or (c) ought to be considered, it would have been open to her to invite the parties to deal with the issues, granting an appropriate adjournment for the purpose. But it cannot be said that she was required to go down that line, let alone that she was required to determine the case under Article 1F(b) or (c) on the basis of the existing material. Even if the Secretary of State is entitled to rely on the Robinson principle in relation to an issue such as this, which it is unnecessary to decide, the applicability of Article 1F(b) and (c) was not an obvious point (one with a strong prospect of success) such as to engage the principle and to require the immigration judge to take the point for herself.
In MT (Article 1F(a) – aiding and abetting) Zimbabwe  UKUT 00015 (IAC), the Upper Tribunal decided in response to these observations that it was open to it to raise Art 1F(b) of its own motion in a case which the Home Office had presented as one on Art 1F(a), particularly where it had given notice to the parties and "the Article 1F(b) point in her case was one which we viewed potentially as having strong prospects of success". It continued:
We would, however, observe that subject to issues of procedural fairness and of real prospects of success, we doubt that a judge tasked with deciding whether mandatory exclusion clauses apply can fail to reach a decision on each of them, particularly in a case in which the only reason for finding that an appellant was not caught by Article 1F(a) was because he or she failed to meet the chapeau requirements of the latter (viz. the requirement that acts falling with Article 7(1)(a)-(k) be "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack"). An alternative approach would run the risk of exempting from exclusion even a person who had committed a crime that was patently a serious non-political crime, e.g. murder, torture, rape. On this issue we regard Gurung, paras 38, 47, 92 and Secretary of State for the Home Department v A (Iraq)  EWCA Civ 1438, paras 27-30 as being still good law. (para 98)
14.3A Where the Home Office alleges that article 1F applies, or that article 33(2) applies on grounds of national security, it may issue a certificate to that effect under s.55 of the 2006 Act. If so, s.55 provides that the Tribunal 'must begin substantive deliberations on the asylum appeal by considering the statements in the Secretary of State's certificate' and if it 'agrees with those statements it must dismiss such part of the asylum appeal as amounts to an asylum claim (before considering any other aspect of the case).' Note that the Home Office will only certify under s.55 if credibility is not disputed. The Asylum Instruction on Exclusion: Article 1F of the Refugee Convention states that:
Cases will arise where an individual's claims concerning potential Article 1F crimes or acts are not credible but were those claims true, they would amount to serious crimes or acts within the scope of Article 1F.
Accounts which are not credible do not provide "serious reasons for considering that" the individual has committed the crime or act which would bring him within Article 1F. If the individual does not have protection needs, the application should be refused without recourse to exclusion, and these cases should not be certified under section 55 of the 2006 Act. However, following the assessment of credibility and consideration under Article 1A(2), the case owner should set out briefly why, if the relevant statements in the claim were true, the individual should be excluded under Article 1F. (Section 3.8)
There is no equivalent certification procedure in relation to exclusion from humanitarian protection. AS (s.55 "exclusion" certificate - process) Sri Lanka  UKUT 00571 (IAC), the Tribunal explained the correct procedure as summarised in the Headnote:
1. Section 55 of the Immigration, Asylum and Nationality Act 2006 does not require a decision on exclusion from asylum to be made at the outset of a hearing and prior to consideration of any other matters.
2. The effect of s.55 is to require a Tribunal in its written determination to decide exclusion from asylum first, before proceeding to address any other head of claim.
3. Deciding exclusion first is merely common sense, regardless of whether a s.55 certificate has been made by the respondent as it determines whether substantive consideration of the asylum claim is necessary.
4. There is no statutory provision akin to s.55 that can be applied when an applicant makes a claim for Humanitarian Protection. However, given the exclusion criteria in paragraph 339D of HC 395 (the Immigration Rules), which are very similar to those in Article 1F(a), a Tribunal should also decide on exclusion from Humanitarian Protection before substantive consideration of that claim.
14.3B However exclusion is raised, it is clear that the burden lies on the Home Office to establish that an individual falls within the exclusion clauses. In Al-Sirri  UKSC 54, the Supreme Court held that the previously understood standard of proof that the Home Office must satisfy to establish exclusion had been set to low. The Tribunal in Gurung  UKIAT 04870 had held that "The test specified in Art 1F of "serious reasons for considering" that a barred act had been committed was one requiring a lower standard of proof than ... the balance of probabilities." (para 151(2)) In JS (Sri Lanka)  UKSC 15, Lord Brown had endorsed the guidance of Sedley LJ in the Court of Appeal in Al-Sirri  EWCA Civ 222 who said simply that the test was "above mere suspicion". Lord Brown suggested the approximation "believing" (JS, para 70). Lady Hale and Lord Dys on (with whom the other members of the Court in Al-Sirri agreed) held that:
75. We are, it is clear, attempting to discern the autonomous meaning of the words "serious reasons for considering". We do so in the light of the UNHCR view, with which we agree, that the exclusion clauses in the Refugee Convention must be restrictively interpreted and cautiously applied. This leads us to draw the following conclusions: (1) "Serious reasons" is stronger than "reasonable grounds". (2) The evidence from which those reasons are derived must be "clear and credible" or "strong". (3) "Considering" is stronger than "suspecting". In our view it is also stronger than "believing". It requires the considered judgment of the decision-maker. (4) The decision-maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law. (5) It is unnecessary to import our domestic standards of proof into the question. The circumstances of refugee claims, and the nature of the evidence available, are so variable. However, if the decision-maker is satisfied that it is more likely than not that the applicant has not committed the crimes in question or has not been guilty of acts contrary to the purposes and principles of the United Nations, it is difficult to see how there could be serious reasons for considering that he had done so. The reality is that there are unlikely to be sufficiently serious reasons for considering the applicant to be guilty unless the decision-maker can be satisfied on the balance of probabilities that he is. But the task of the decision-maker is to apply the words of the Convention (and the Directive) in the particular case.
14.3C In AA-R (Iran) v SSHD  EWCA Civ 835, the Court of Appeal explained the effect of the Supreme Court's guidance as being that "It is for the Secretary of State to prove on the balance of probabilities that an individual should be excluded: Al-Sirri." (para 7) In AH (Article 1F(b) - 'serious') Algeria  UKUT 00382 (IAC), the Tribunal confirmed in the Headnote (which is approved by the Reporting Committee) that following Al-Sirri  UKSC 54, "A claimant's personal participation in acts leading to exclusion under Article 1F(b) must be established to the ordinary civil standard of proof." Older authorities may need to be read in the light of the erroneously low standard of proof which was previously understood to be sufficient to establish exclusion. Note also that at time of writing, the Home Office's Asylum Instruction on Exclusion: Article 1F of the Refugee Convention has not been updated since May 2012 and continues to advise caseworkers to apply the old lower standard of proof.
14.4 Claims involving exclusion will often be the subject of 'Research and Analysis' reports from the Special Cases Directorate, previously known as the War Crimes Unit. These reports will be appended to decision letters and contain length legal and factual discussions of the arguments in favour of exclusion. Where you need to dispute the factual basis for exclusion, these will require careful analysis. They often quote selectively from background materials without any attempt to assess the reliability of the sources, and may cite material which is not relevant to the period when your client was involved in the organisation concerned. You may need to remind the Tribunal that the Special Cases Directorate report is not in itself evidence, and nor is it an expert report which complies with the Tribunal's practice directions. It should be treated as an extension of the refusal letter, setting out the Home Office's case on the application of the exclusion clauses to the appellant.
14.4A If a report is referred to in the refusal letter but has not been disclosed (as sometimes happens), you should consider whether you want to press the Home Office for disclosure or seek directions from the Tribunal for it to be provided in advance (see Chapter 9). Since the Home Office bear the burden of proof in exclusion cases, it might sometimes be tactically better not to press for such disclosure, although there is still a risk that the Home Office will produce the report at or shortly before the hearing. Similarly, consider whether you need to ask for disclosure of any documents referred to in the report which are not readily available in the public domain (and whether you will want to serve copies of those which are, so that the Tribunal can place any quotations in the Special Cases Directorate report in their proper context). These should have been provided by the Home Office in accordance with rule 24 and if they are not, you may alternatively wish to argue that the Home Office should be assumed no longer to rely on them (see chapter 10).
14.5 An appeal under the 2002 Act cannot be 'brought or continued' if the Home Secretary issues a certificate under s.97 of the 2002 Act to the effect that the person's removal from the UK is in the interests of 'national security' or 'the relationship between the United Kingdom and another country' or the decision was taken
wholly or partly in reliance on information which in his opinion should not be made public -
(a) in the interests of national security,
(b) in the interests of the relationship between the United Kingdom and another country, or
(c) otherwise in the public interest.
If a certificate is issued under this section, the asylum/human rights appeal must be heard by SIAC. Appeals to SIAC (which are uncommon) are governed by the Special Immigration Appeals Commission Act 1997 and are outside the scope of this text.
Involvement in war crimes
14.5A If the allegation is that the appellant has committed war crimes or crimes against humanity and should be excluded under Art 1F(a), SSHD v R (JS (Sri Lanka))  UKSC 15 establishes that the starting point should be the Rome Statute of the International Criminal Court (assuming that the crimes are not too old to be covered by the Rome Statute). The key provisions are:
- Article 7 – meaning of 'crimes against humanity'
- Article 8 – meaning of 'war crime'
- Article 25 – scope of "individual responsibility" for crimes
- Article 30 – the 'mental element'
- Article 31 – defences
14.5B As well as the text of the Rome Statute itself, and the "Elements of Crimes" which it treats as a primary source of law (both are available on the ICC's website), you will need to consider the jurisprudence of the ICC and of the various ad hoc tribunals established to try international crimes in the context of particular conflicts, notably the International Criminal Tribunals for the former Yugoslavia ('ICTY') and for Rwanda ('ICTR'). You should consult academic texts, in particular there are a number of accessible and authoritative commentaries on the Rome Statute which refer extensively to the jurisprudence of the ad hoc tribunals. In MT (Zimbabwe)  UKUT 00015 (IAC), the Upper Tribunal referred itself to Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court, 2nd ed, 2008; another such commentary is William Schabas, The International Criminal Court: A Commentary on the Rome Statute, OUP, 2010.
14.5C In JS (Sri Lanka)  UKSC 15, Lord Hope observed that the "critical question [is] whether the evidence provides serious reasons for considering the applicant to have committed the actus reus of an international crime with the requisite mens rea" (para 45). Now that it is apparent that the burden is on the Home Office to establish the claimant's criminal liability on the balance of probabilities, it is all the more important to focus the argument in the appeal upon what criminal liability the Home Office is alleging and whether it can establish the essential elements that are required under international criminal law in order to establish that individual criminal responsibility.
Allegations of terrorist activity
14.5D Allegations of involvement in terrorist activity abroad can result in exclusion under Arts 1F(b) (serious non-political crime) or (c) (acts contrary to the purposes and principles of the United Nations). In the case of Art 1F(c), the Supreme Court decided in Al-Sirri and DD (Afghanistan) v SSHD  UKSC 54 that it should adopt the UNHCR's view that:
Article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international community's co-existence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights would fall under this category.
14.5E Section 54 of the 2006 Act seeks to impose a substantially wider statutory interpretation of the exclusion clause in Article 1F(c). Section 54 came into force on 31 August 2006 but in SSHD v DD (Afghanistan)  EWCA Civ 1407, the Court of Appeal expressed the view that it is "concerned with the decision making process" and applied to acts committed before it came into force (para 60-61). However, in Al Sirri  UKSC 54, the Supreme Court decided that section 54 must be read down where necessary to comply with Article 12(2)(c) of the Qualification Directive and ensure that the interpretation of Article 1F(c) of the Convention is in conformity with the correct interpretation under the Refugee Convention, which has an autonomous international meaning and does not depend on domestic statutory provisions.
Section 54 provides that
(1) In the construction and application of Article 1(F)(c) of the Refugee Convention the reference to acts contrary to the purposes and principles of the United Nations shall be taken as including, in particular -
(a) acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence), and
(b) acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence).
Section 54(2) provides that "terrorism" has the same meaning given to it by section 1 of the Terrorism Act 2000. That is exceptionally broad. It includes action which:
a. involves serious violence against a person or serious damage to property or endangers another person's life or creates a serious risk to the health or safety of the public or a section of the public or is designed to interfere with or seriously disrupt an electronic system, if
b. the use or threat of the use of such action is made for the purpose of advancing a political, religious or ideological cause, and either it
i. is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, or
ii. involves the use of firearms or explosives.
Section 54 does not apply to the criteria for exclusion from Humanitarian Protection which do not refer to Article 1F of the Refugee Convention.
14.6 UK anti-terrorist legislation can create fear and confusion. The Terrorism Act 2000 poses a serious and indeterminate risk to appellants. A large number of organisations are banned under the Act, including armed opposition groups with widespread support in major refugee producing countries and among UK refugee communities. The legislation is on its face of wide scope, criminalising mere membership of proscribed organisations even abroad. One of the most invidious aspects of the legislation is that those who are entitled to asylum as a result of their activities may be frightened into concealing them and thereby exposed to refoulement.
14.7 Section 3 of the Terrorism Act 2000 permits the Home Office to proscribe organisations 'concerned in terrorism', a term which includes promoting and encouraging terrorism. The power was expanded in 2006 to encompass organisations involved in or associated with the 'glorification' of terrorism (see s.3(5A-C) of the 2000 Act). At present, over 50 international terrorist organisations (ie not including Irish organisations) are proscribed under the 2000 Act. The Home Office's view of the relevance of involvement in proscribed organisations when considering exclusion is set out at para 14.25C below.
14.8 Several organisations have been involved in legal challenges to their proscription. Who is, and as importantly, who is not on the list appears to owe as much to the Government's political priorities as a genuine assessment of the world's most violent and least legitimate organisations. Why, for example, was the People's Mojahedin Organisation of Iran banned for its armed opposition to the Iranian regime when the US State Department had declared the Iranian regime the world's number one terrorist sponsor? On 30th November 2007, the Proscribed Organisations Appeal Commission allowed an appeal against its proscription (Lord Alton v SSHD (PC/02/2006)).
14.9 A wide range of activities are criminalised by the Terrorism Act 2000. These include:
• membership or professing membership - penalty up to 10 years imprisonment (s.11)
• inviting support for a proscribed organisation - up to 10 years (s.12)
• arranging or managing (or assisting in arranging or managing) a meeting of more than three people (public or private) which he knows is either to support a proscribed organisation, to further its activities, or is to be addressed by someone who is or professes to be a member - up to 10 years (s.12)
• addressing a meeting, where the purpose of the address is to encourage support for the proscribed organisation or its activities - up to 10 years (s.12)
• wearing in a public place any item of clothing or carrying or displaying any item which arouses reasonable suspicion that he is a member or supporter of a proscribed organisation - up to 6 months (s.13)
• inviting funds, receiving funds, and using, possessing or providing money or property, where the person intends or has reasonable cause to suspect that the funds will be used to support a proscribed organisation - penalty up to 14 years imprisonment (s.15 - 16, 22)
14.10 The offences under s.12-13 apply only if the acts were done in the UK but the other offences listed above can be committed even outside the UK. The Terrorism Act 2006 introduces further offences, including one of 'encouragement of terrorism' (s.1) which encompasses 'glorification' of terrorism. In certain circumstances, these offences can also be committed outside the UK.
14.11 The offences of fund-raising (and also money laundering under s.18) apply not only to any assistance to a proscribed organisation, but also to fund-raising for any other organisation if the person intends or has reasonable cause to suspect that the funds are to be used for 'purposes of terrorism'. These are very widely defined in the Act (s.1).
14.12 That definition will include the activities of almost any armed opposition group and may include activities carried out by many organisations who would not reasonably merit the description 'terrorist'. Any involvement in fund-raising or providing funds for any organisation engaged in such activities is criminalised.
14.12A However, in Al-Sirri  EWCA Civ 222, it was agreed before the Court of Appeal that the definition of "acts contrary to the purposes and principles of the United Nations" in Art 12(2)(c) of the Qualification Directive, by reference to the Preamble and Articles 1 and 2 of the UN Charter, is narrower than that contained in s. 1 of the Terrorism Act 2000. Accordingly,
...the adoption by s.54(2) of the 2006 Act of the meaning of terrorism contained in the 2000 Act has where necessary to be read down in an art. 1F case so as to keep its meaning within the scope of art 12(2)(c) of the Directive. (para 29)
This conclusion was described as correct by the Supreme Court which further held that:
39 The essence of terrorism is the commission, organisation, incitement or threat of serious acts of violence against persons or property for the purpose of intimidating a population or compelling a government or international organisation to act or not to act in a particular way (see, for example, the definition in article 2 of the draft comprehensive Convention), as Sedley LJ put it in the Court of Appeal, "the use for political ends of fear induced by violence": para 31. It is, it seems to us, very likely that inducing terror in the civilian population or putting such extreme pressures upon a government will also have the international repercussions referred to by the UNHCR. ...
40 Finally, is it enough to meet that test that a person plots in one country to destabilise conditions in another? This must depend upon the circumstances of the particular case. It clearly would be enough if the government (or those in control) of one state offered a safe haven to terrorists to plot and carry out their terrorist operations against another state. That is what the Taliban were doing by offering Osama bin Laden and Al-Qaeda a safe haven in Afghanistan at the time. As the UNHCR says, this would have clear implications for inter-state relations. The same may not be true of simply being in one place and doing things which have a result in another. The test is whether the resulting acts have the requisite serious effect upon international peace, security and peaceful relations between states.
14.12B A distinction, however, is drawn by the cases between terrorism and conventional military activity in the context of a civil war which, while technically falling within this definition, cannot in fact be regarded as contrary to the purposes and principles of the United Nations (see KJ (Sri Lanka) v SSHD  EWCA Civ 292, paras 34-40; DD (Afghanistan)  EWCA Civ 1407, para 55; and SS (Libya) v SSHD  EWCA Civ 1547, paras 28-37). However, in DD (Afghanistan), the Court of Appeal held that even conventional military action against forces mandated by the United Nations in the maintenance of international peace and security amounted to acts contrary to the purposes and principles of the United Nations. That conclusion was upheld by the Supreme Court in Al-Sirri  UKSC 54.
14.13 Conviction of an offence in the UK carries an added risk by virtue of s.72 of the 2002 Act. In certain circumstances, this enables the Home Secretary to issue a certificate to the effect that there is a presumption that the appellant has been convicted of a 'particularly serious crime and constitute(s) a danger to the community of the United Kingdom' and so is excluded from protection against refoulement under the Refugee Convention by art. 33(2). It is for the appellant to rebut the presumption (both limbs of which are rebuttable: EN (Serbia) v SSHD  EWCA Civ 630). Unless a certificate has been issued under s.55 of the 2006 Act (in which case, s.55(5) provides that it should be considered before the s.72 certificate), the Tribunal must begin the appeal by considering the certificate and, if the appellant cannot rebut the presumption, must dismiss the asylum appeal. (Although it must still go on to consider the question of whether removal will breach the appellant's ECHR rights).
14.14 It is also an offence for any person who receives information in the course of a trade, profession, business or employment not to disclose to the police any belief or suspicion he forms on the basis of that information that a person has been involved in fund-raising for a proscribed organisation or other terrorist purposes (as defined above). Privileged information obtained by a professional legal adviser is excluded by s.19(5) and s.21A(5) of the Terrorism Act 2000. Section 38B creates a further offence relating to failure to disclose information about acts of terrorism which has no express provision for information protected by legal professional privilege. However, the Law Society's Anti-terrorism practice note (24th October 2011) advises that in the absence of express words overriding legal professional privilege, it continues to apply so that lawyers remain prohibited from disclosing information about acts of terrorism to which legal professional privilege applies. The Law Society note advises that the defence is unlikely to apply to information which is merely confidential rather than privileged. That defence may not extend to others who receive information which would normally be privileged, such as medical and other experts and interpreters. There is also no obvious reason why it should apply to HOPOs or even judges.
14.15 If your client's organisation has been engaged in armed activities (and particularly if it is proscribed under UK anti-terror legislation), you may find that she has been prevailed upon by previous representatives, interpreters, or community leaders to downplay or lie about the extent of her involvement. She may have been told that she risked being refouled if she reveals her true activities, or that she risks prosecution or indefinite detention without charge under anti-terror legislation.
14.16 You must advise her as to the risks and merits of disclosure. Many clients, once the law has been explained to them, will prefer to minimise the risk of refoulement by disclosing all the matters putting them in danger, despite any risks posed by art 1F and the legislation described above. (You will of course have to explain that while it is ultimately a matter for your client what she chooses to disclose, you cannot continue to represent her if she gives evidence to the court which she has instructed you is false.) As discussed above (para 14.2C), if your client is found credible and to be at risk, Article 3 ECHR will protect her from refoulement even if she is excluded from refugee status or humanitarian protection.
14.17 It is very difficult to advise clients properly on the risks posed by the Terrorism Act. It is not possible or proper to ignore the Act when you are proposing to disclose information which will incriminate your client in respect of a criminal offence carrying a heavy penalty. On the other hand, there have as yet been no known prosecutions based on information provided in asylum/human rights appeals. You must obtain specialised advice for your client if you are not in a position to provide it yourself.
14.19 If the original advice not to disclose her activities came from someone associated with the armed organisation, your client may well be reluctant to follow the usual advice to give as much detail as possible about the guidance she was given (see para 13.17). In that case, you may wish to make early applications as discussed in chapter 32 so as to seek to reassure her as to the confidentiality of the information.
14.20 Where initial non-disclosure resulted from your client's fears of the consequences of admitting involvement with an armed organisation, it will often be useful to remind the Tribunal of the reasonableness of your client's fears. That is especially so where an armed organisation has recently become more acceptable to western governments. It is surprising how easy (and convenient) it is to forget the condemnation which the organisation previously attracted. For example, if representing someone after NATO occupied Kosovo who had only recently revealed his involvement in armed resistance to the Serb authorities in Kosovo, you would probably have to remind the Tribunal that while NATO had fought alongside the KLA to oust the Serbs, the KLA had not long previously been stigmatised by western governments as a terrorist organisation.
14.21 Remember also that the pendulum may have swung the other way. If the Home Office is attacking your client on the basis of her involvement in a terrorist organisation, it may be possible to point to past governmental support. (For example, the PMOI referred to at para 14.8 were proscribed not long after they were invited to the Labour Party's annual conference.)
14.22 Although corroboration will always be useful where credibility is under attack (see chapter 16 on documents and chapter 15 on witnesses), armed organisations do not generally provide documentation, and it may be difficult to persuade witnesses to come forward. In those circumstances, a very detailed statement from the client is the best (and quite possibly the only) means of overcoming the credibility problems created by late disclosure.
14.23 A statement which simply notes that 'Contrary to my earlier account, I have actually been very involved at a very high level in guerrilla operations', provides far less protection against an adverse credibility finding than an account that goes into great, even verging on tedious, detail about her activities. Rather than the above bland sentence, you really do benefit from a blow by blow account: How did she get involved? How did she rise up through the ranks? How did she win sufficient trust to be given such high-level activities? Why was she chosen? How did she have (or gain) the necessary skills? Why did she take the risks? How did she get her instructions? Where did she go? How did she manage to travel? What exactly was her role? Who did she deal with?
14.24 Your client may obviously be unwilling to divulge details of names and places, particularly if her organisation is still involved in armed operations and/or is viewed antagonistically by western governments. However, while your client's initial reaction may be that she cannot reveal anything about her activities, if you talk it through with her, she may decide that she can give a fairly compelling account without divulging any information that would incriminate others. For example, she might be able to explain how a particular operation was carried out, but not the names or locations involved. In fact, a discussion of the former may establish her credibility far more effectively than the provision of names that the Tribunal will have no means of checking. If you do not make an effort to provide this sort of persuasive detail, you may have little else to bring to bear on credibility.
14.25 You will also want the statement to pre-empt so far as possible any points that may be taken against you on art 1F. You should bear in mind, however, that the burden of proof is on the Home Office. You do not need to make their case for them, but where they have produced sufficient evidence to raise a case against your client, you will need to deal with the points which are adverse to her. Presenting such a statement will involve a careful balance between disclosing sufficient detail to give your client's account the ring of truth, and not making unnecessary admissions. The reported cases contain examples of Tribunals finding that appellants have 'downplayed' the extent of their involvement in a given organisation (see, for example, MT Zimbabwe and SK (Article 1F(a) – Exclusion) Zimbabwe  UKUT 327 (IAC)). In Gurung (Exclusion - Risk - Maoist) Nepal  UKIAT 04870, the Tribunal said that:
[I]n deciding whether a person's membership of an organisation amounts to complicity in any crimes or acts proscribed by Art 1F, it is of crucial importance to examine the particular circumstances, taking account not only of factors concerning the individual and his specific role in the organisation but also that organisation's place and role in the society in which it operates. The more an organisation makes terrorist acts its modus operandi, the more difficult it will be for a claimant to show his voluntary membership of it does not amount to complicity.
14.25A In SSHD v R (JS (Sri Lanka))  UKSC 15, Lord Brown was critical of Gurung for suggesting that there was a category of terrorist organisations mere membership of which could give rise to a presumption of criminal complicity (paras 29-31). At paragraph 30 he set out what he considered to be the relevant factors when considering whether membership of an organisation could give rise to individual criminal responsibility for any acts of the organisation which fall within Article 1F(a):
…principally (in no particular order) (i) the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum-seeker was himself most directly concerned, (ii) whether and, if so, by whom the organisation was proscribed, (iii) how the asylum-seeker came to be recruited, (iv) the length of time he remained in the organisation and what, if any, opportunities he had to leave it, (v) his position, rank, standing and influence in the organisation, (vi) his knowledge of the organisation's war crimes activities, and (vii) his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes.
For a critique of the Home Office's attempt to apply these factors to a case of alleged involvement in the PKK, see R (Polat) v SSHD  EWHC 3445 (Admin), paras 87-102.
14.25B In B and D (C-57/09 and C-101/09), the CJEU emphasised that
...even if the acts committed by an organisation on the [EU common list of terrorist groups] because of its involvement in terrorist acts fall within each of the grounds for exclusion laid down in Article 12(2)(b) and (c) of Directive 2004/83, the mere fact that the person concerned was a member of such an organisation cannot automatically mean that that person must be excluded from refugee status pursuant to those provisions (para 88).
What is required is an "individual assessment" involving consideration of:
...the true role played by the person concerned in the perpetration of the acts in question; his position within the organisation; the extent of the knowledge he had, or was deemed to have, of its activities; any pressure to which he was exposed; or other factors likely to have influenced his conduct.(para 97)
In AH (Algeria) v SSHD  EWCA Civ 395, the Court of Appeal held that the appellant's conviction in France for an offence committed by being a knowing part of a criminal conspiracy or grouping formed with a view to committing terrorist acts was not a sufficient basis to find that s. 54(1) applied to him in the absence of any evidence of actual instigation, encouragement or inducement of terrorist acts (para 23). The fact that the appellant was a member of an organisation whose sole purpose was the commission of terrorist acts was only one of the relevant factors (para 17). Accordingly the French conviction was not in itself sufficient to exclude the appellant under Art 1F(b) or (c).
14.25C The AI on Exclusion states that
63 Membership of Terrorist Organisation (Including Proscribed) Organisations
An asylum applicant may claim at interview or in correspondence that they are a member or an active supporter of a terrorist organisation or any other proscribed organisation.
Proscribed organisations are listed on Home Office website and in Schedule 2 to 2000 Act, as amended.
Claims of this kind may sometimes be false and intended to enhance an applicant's asylum claim. Where, however, the applicant makes a credible claim of membership, it will be necessary to consider whether the applicant can be held individually responsible for committing terrorist acts or serious crimes. The fact that an individual may be on a list of terrorist suspects or be a member of an organisation designated as terrorist does not mean that the exclusion clauses are automatically assumed to apply but may be evidence of such involvement.
Adapting the test set down by JS (Sri Lanka) to terrorist cases, the question would be as follows: has the individual voluntarily contributed in a significant way to the organisation's ability to pursue its purpose of committing acts of terrorism/serious crime(s), aware that the assistance will in fact further that purpose? ...
Case owners should therefore take these factors into account when making a decision on whether members of a proscribed organisation can be considered to fall within 1F(c). Case owners should consider exclusion particularly carefully where there is evidence that an individual has been convicted of an offence under section 11 of the Terrorism Act 2000 (belonging, or professing to belong, to a proscribed organisation).
14.26 The Courts have also recently emphasised that the precise nature of the individual's role in the organisation may be relevant: some of the proscribed organisations, such as the LTTE, are not engaged solely in terrorist acts. In the case of the LTTE, in KJ (Sri Lanka) v SSHD  EWCA Civ 292, the Court of Appeal emphasised that a distinction had to be drawn between the LTTE's conventional military strategy against the government of Sri Lanka, and its involvement in terrorist acts. Having accepted that in the case of a person who is "an active member of [an] organisation that promotes its objects only by acts of terrorism", "there will almost certainly be serious reasons for considering that he has been guilty of acts" falling within Article 1F(c) (para 37), Stanley Burnton LJ observed that:
However, the LTTE, during the period when KJ was a member, was not such an organisation. It pursued its political ends in part by acts of terrorism and in part by military action directed against the armed forces of the government of Sri Lanka. The application of art 1F(c) is less straightforward in such a case. A person may join such an organisation, because he agrees with its political objectives, and be willing to participate in its military actions, but may not agree with and may not be willing to participate in its terrorist activities. Of course, the higher up in the organisation a person is the more likely will be the inference that he agrees with and promotes all of its activities, including its terrorism. But it seems to me that a foot soldier in such an organisation, who has not participated in acts of terrorism, and in particular has not participated in the murder or attempted murder of civilians, has not been guilty of acts contrary to the purposes and principles of the United Nations. (paragraph 38).
14.27 The exclusion clauses apply to children as well as to adults. In R (ABC) v SSHD  EWHC 2937 (Admin), the Court was referred to Home Office guidance which indicated that:
Children are not exempt from the exclusion clauses. However, it is important that (the SSHD) carefully consider the specific context of each case, for example the child's age and maturity, when considering how far the individual should be deemed liable for their actions. It is always important to treat each case on its own merit. Personal circumstances, such as age or psychological functioning, may be relevant when investigating the level of knowledge a person had of what they were participating in as well as the child's ability or power to take alternative action.
(See also MH (Syria) v SSHD  EWCA Civ 226, in which the Court held that the fact that MH had joined the PKK when she was 13 years old was "a highly relevant consideration" in the application of Art 1F(c)). In ABC  EWHC 2937 (Admin), the Court observed that:
What might be right for an adult is not always replicated for a child or young person. A carefully calibrated decision needs to be made depending upon the age and maturity of the child or young person in question coupled with an analysis of the factual and circumstantial matrix taken as a whole. ... (para 33)
It quashed the Home Office's decision to exclude the Claimant from humanitarian protection on the grounds of Art 1F(b), holding that its assessment of whether the Claimant had committed a "serious crime" was seriously flawed, not least because of a failure to take into account the welfare principle in s. 55 of the 2009 Act.