How serious must a person’s “extremism” be to justify exclusion from the Refugee Convention? Three years ago, the Court of Appeal in Youssef & N2 v Secretary of State for the Home Department lowered the bar for exclusion from the Convention’s protection by disqualifying an asylum seeker for “general” promotion of terrorism. 

This week, in the case of Secretary of State for the Home Department v NF [2021] EWCA Civ 17, the same court rejected an attempt by the Home Office to lower that bar even further. 

The Court of Appeal confirmed that there is a high threshold for exclusion from the Convention, and made clear that a terrorism-related conviction alone may not be enough to justify it. Any exclusion assessment needs to consider how serious the “extremists” acts were.

Background

NF, a Kenyan citizen, was denied refugee status for what the Court of Appeal called his “obsessive interest in Islamic extremism” and sympathies with the fundamentalist group Al Shabaab.

In 2013, he was convicted for downloading material prohibited under the Terrorism Act 2000 and sentenced to nine months’ imprisonment. At his criminal trial, the judge recommended him for deportation to Kenya. 

NF claimed asylum, but the Home Office excluded him from protection under Article 1F(c) of the Refugee Convention, asserting he had “done acts contrary to the purposes of the United Nations”. Officials referred to examples other than just his conviction which were said to demonstrate his “terrorist mindset”.

Due to the media frenzy his terrorism conviction stirred up, however, the Home Office conceded that NF now had a public profile as a “terrorist” and so was at risk of ill-treatment in Kenya. As such he was (reluctantly) granted discretionary leave to remain on human rights grounds. 

Appeals before the tribunals

NF appealed the exclusion decision to the First-tier Tribunal. The First-tier judge noted the high threshold for exclusion under Article 1F(c), and asked whether NF’s conduct had the “requisite gravity and international dimension” to meet the 1F(c) threshold. The judge held that while NF’s conduct was indeed concerning, his actions were not really so serious to be called “contrary to the purposes of the United Nations” and so allowed the appeal.

The Home Office went to the Upper Tribunal, framing the First-tier decision as implying that acts falling short of the commission or incitement of terrorism could not “as a matter of principle” fall under Article 1F(c), which contradicted what was said in Youssef (see above).

The Upper Tribunal didn’t agree that was what the First-tier judge was saying. As it noted, the Home Office’s complaint essentially came down to two sentences of the First-tier judge’s reasoning, stripped from their context. The Upper Tribunal agreed with the First-tier judge and dismissed the appeal. 

Look at the conduct, not just the conviction

The Court of Appeal also found in NF’s favour:

Read as a whole… the judgment of the First-tier Tribunal does not… proceed on the basis that acts falling short of the commission or incitement of a specific act of terrorism could not fall within the scope of article 1F(c) of the Refugee Convention. Rather it asked whether the acts committed by NF were sufficiently serious and grave to cross the high threshold necessary for acts to fall within the scope of article 1F(c). 

The court went on, at paragraph 36, to distinguish NF’s case from the appellants’ in Youssef & N2:

It is too simplistic to say that the cases of both N2 and NF involved the downloading and retention of extremist material and that, therefore, the essential quality of the two men’s conduct was the same so that, if N2’s conduct fell within article 1F(c) so must NF’s. The factual situation, the gravity of the conduct and the impact in the two cases are very different. 

The take-home message is that a conviction for terrorism isn’t enough for someone to be excluded under Article 1F(c). It is the underlying conduct which gave rise to the conviction that needs to be considered. Only if that conduct was sufficiently grave and serious, and was capable of affecting international peace and security, can someone be excluded from Convention protection.