As part of my catch-up campaign on major cases not yet covered on the blog, I thought it would be helpful to post up some extracts from a case note I’ve written for the Immigration, Asylum and Nationality Law journal. The full case note will be in the next edition (subscription information here).

The case is that of Al-Sirri v Secretary of State for the Home Department; DD (Afghanistan) v Secretary of State for the Home Department [2012] UKSC 54, handed down by the Supreme Court on 21 November 2012.

The case arose through a combination of the Upper Tribunal’s expansive approach to excluding refugees from the refugee convention and the last government’s attempt to limit and define the meaning of an international instrument with some ham-fisted domestic legislation in the form of section 54 of the Immigration, Asylum and Nationality Act 2006. This sought to define Article 1F of the refugee convention by reference to section 1 of the Terrorism Act 2000 which includes both (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).

One would have thought that the last government would have had enough of meddling with definitions in international law, but apparently not. I remember being at a lobbying meeting with then Minister Tony McNulty and making the point that this wasn’t a good idea, but it was all a colossal waste of time. It should be obvious that if every country decided to define the meaning of international treaties then international treaties would not remain international for very long.

In a single judgment written by Lady Hale and Lord Dyson with which the other judges agreed, the Supreme Court held that the correct approach to the interpretation of Article 1F is a cautious one:

16. The article should be interpreted restrictively and applied with caution. There should be a high threshold “defined in terms of the gravity of the act in question, the manner in which the act is organised, its international impact and long-term objectives, and the implications for international peace and security”. And there should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character.

On the question of where on the spectrum of standards of proof fell ‘serious reasons for considering’ the Court followed a similar approach to Karanakaran, holding that domestic notions of the standard of proof are not applicable. See paragraph 75.

Individual responsibility is considered with reference to the cases of Bundesrepublik Deutschland v B and D (Joined Cases C-57/09 and C-101/09) [2011] Imm AR 190 and R (JS (Sri Lanka)) v Secretary of State for the Home Department [2011] 1 AC 184 and the Supreme Court concludes as follows:

15. … for exclusion from international refugee protection to be justified, it must be established that there are serious reasons for considering that the person concerned had individual responsibility for acts within the scope of article 1F(c): see the detailed discussion at paras 50 to 75 of the UNHCR “Background Note”. This requires an individualised consideration of the facts of the case, which will include an assessment of the person’s involvement in the act concerned, his mental state and possible grounds for rejecting individual responsibility. As a general proposition, individual responsibility arises where the individual committed an act within the scope of article 1F(c), or participated in its commission in a manner that gives rise to individual responsibility, for example through planning, instigating or ordering the act in question, or by making a significant contribution to the commission of the relevant act, in the knowledge that his act or omission would facilitate the act.”

The Court also held that an international dimension is required, adopting paragraph 17 of the UNHCR Guidelines (I couldn’t work out from the judgment which ones, unfortunately):

Article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international community’s coexistence. 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.

The closest the court comes to giving a straight answer is at paragraph 40:

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 … 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.

In the DD case on Afghanistan, the court accepted entirely that UNAMA was very different to ISAF in terms of legal basis and relationship with the United Nations but concluded that this mattered not in the context of Article 1F(c) and the facts of the case:

We conclude that there is no basis for the view that … an attack [on a United Nations body or a United Nations-mandated body] can only be regarded as an act contrary to the purposes and principles of the United Nations in circumstances where (i) it is by consensus in international law explicitly recognised as being contrary to these purposes and principles, or (ii) it amounts to a serious and sustained violation of fundamental human rights…

In short, an attack on ISAF is in principle capable of being an act contrary to the purposes and principles of the United Nations. The fundamental aims and objectives of ISAF accord with the first purpose stated in article 1 of the United Nations Charter. By attacking ISAF, the appellant was seeking to frustrate that purpose. To hold that his acts are in principle capable of being acts contrary to the purposes and principles of the United Nations accords with common sense and is correct in law.

The Supreme Court endorses the approach of Sedley LJ in the court below in Al-Sirri and effectively discounts the attempt in the 2006 Act to modify and broaden in domestic law the meaning of Article 1F of the Refugee Convention, albeit using the more polite language of ‘reading down’. The Court reminds itself of the importance of an international approach to international treaties and accordingly gives ‘considerable weight’ to the views of UNHCR. This will be reassuring for believers in international law and it is nice to see UNHCR not being sidelined for a change.

It is hard to disagree with Colin Harvey’s assessment over on the UK Constitutional Law Group blog:

In cases such as Al-Sirri and DD we see a judicial attempt to ensure a careful, contextual, case-by-case assessment; one that resists excessive and blanket approaches that would enlist the exclusion clauses within an ill-defined global counter-terrorism policy. As states urge more and more interpretative flexibility in national security contexts, there is always a real risk that the ambitions and ‘logic’ of counter-terrorism policy will colonise other fields of humanitarian protection. International refugee law accommodates the national security concerns of states amply; too much in fact for many. Further erosion of refugee rights through an overly inclusive reading of the exclusion clauses – pressed hard by government here – would be unwelcome, and the Supreme Court has evidently rejected this route.