The Supreme Court’s 21 November 2012 judgment throws light on the issue of who should be denied protection as a refugee and on what grounds
The issue of who is a terrorist is as intensely political as the relationship between political exiles and the countries that have hosted them. In the UK, late nineteenth-century extradition law provided protection to exiles accused by their home governments of political crimes – and the ‘political exception’ was recognised and carried forward in the 1951 Refugee Convention, the instrument which purported to consolidate and rationalise the protection of the international community for victims of persecution.
The Convention’s exclusion clause, Article 1F, denied recognition as refugees to those in respect of whom there were serious reasons for considering they were guilty of war crimes and crimes against humanity; of ‘serious non-political crimes’, or of acts ‘contrary to the principles and purposes of the United Nations’. The first and third categories of exclusion were clearly based on the notion that perpetrators of persecution should not themselves receive protection, and perhaps the second category too, excluding as it did those committing serious crimes such as homicide, rape or robbery. But implicit in the formulation was that those committing serious political crimes were protected by the Convention from return to persecuting states.
This caused no problems while refugees were few in number and were coming from Iron Curtain or other ‘enemy’ states. But with the demise of the Cold War, the growth in the numbers of refugees seeking protection in Europe from the 1980s on, including many supporters of political or ethnic struggles in Turkey, Sri Lanka and the Maghreb, the grant of protection to those guilty of crimes in their own countries in support of a liberation struggle or political movement came under increasing attack, in parallel with the increasing cooperation between the UK and US security services and those of the countries of origin of many of the refugees. In the 1990s France and Germany banned Algerian and Kurdish movements respectively and deported activists.
In the UK, the Terrorism Act 2000 came up with a definition of terrorism so broad as to encompass street protest. That Act also banned 21 organisations, from Al Qaida to movements with mass support including the PKK and LTTE – creating insoluble dilemmas for thousands of ‘ordinary’ asylum seekers whose claims were based on support for those who were fighting for their right to exist.
Terrorism as ‘non-political crime’
Four years earlier, in 1996, the UK House of Lords had declared that terrorist crime was ‘non-political’ even though purportedly political, because of the disproportion between means and ends. Further legislation criminalised conspiracies in the UK to commit crimes abroad. By now the right to self-determination proclaimed by the UN Charter appeared to have been virtually obliterated by its re-drawing as ‘terrorist violence’ which could not only attract criminal penalties in countries of supposed refuge but could also found exclusion from refugee protection. (Those excluded from refugee protection cannot legally be returned to a country where they risk torture, since the European Court of Human Rights has upheld, in theory at least, the absolute prohibition on return to torture in the Human Rights Convention in the face of sustained attack by European governments including the UK.)
Is membership of a banned organisation enough for exclusion?
Over the past decade, battles have raged in the courts over just what acts can disqualify someone fleeing persecution from refugee status. The Home Office, along with European counterparts, has argued that mere membership of a proscribed organisation, even historic membership, is enough to disqualify. The courts have disagreed, holding consistently that there must be more than mere membership; individual responsibility for terrorist acts must be attributable to the asylum seeker before he (invariably) can be excluded. (But of course inferences of individual responsibility can be drawn from command positions in terrorist organisations.)
The European Court of Justice[i] upheld this interpretation in a 2010 case[ii] involving two asylum seekers in Germany who had been members of Kurdish liberation organisations and had supported armed struggle. Neither support for a proscribed organisation nor support for armed struggle was enough, ruled the court, to provide ‘serious reasons for considering’ that they had committed serious non-political crimes or acts contrary to the purposes and principles of the United Nations.
What such ‘purposes and principles’ are is another area of controversy. And yet a further issue which has vexed the court is that of proof. To exclude someone from refugee protection, the excluding government must have ‘serious reasons for considering’ the person to be guilty of the prohibited acts. What does this mean? All these issues were canvassed in the Supreme Court in the case of Al-Sirri and the companion case of DD (Afghanistan), in which judgment was given on 21 November.
The allegations: Al-Sirri
The reasons for excluding the Egyptian from refugee protection were as follows:
· he published and wrote a foreword to a book by a member of al-Gamma al-Islamiyya, an organisation proscribed under the Terrorism Act;
· he possessed an unpublished manuscript on jihad by Ayman Al-Zawahiri, a former leader of the organisation, Egyptian Islamic Jihad;
· he possesses books and videos on Al Qaida and Osama bin Laden;
· he had transferred relatively large sums of money abroad;
· he had been convicted in absentia by Egyptian courts of conspiracy to kill the prime minister and of membership of a terrorist organisation, and on a US indictment on charges of providing material support to a terrorist organisation;
· he had been indicted at the Old Bailey for conspiracy to murder General Masoud, the Northern Alliance leader killed in Afghanistan by suicide bombers posing as journalists two days before the 9/11 attacks, a charge which the judge dismissed on the basis that the evidence was equally consistent with guilt and innocence.
Of these, the first four were not contested, but the Court of Appeal ruled that in themselves these allegations could not support a decision that he had acted against the purposes and principles of the United Nations. The Egyptian convictions in absentia were ultimately excluded because they had been obtained by torture of others. The US indictment was excluded too, because the US authorities had provided no evidence in support. That left the Old Bailey indictment. Al-Sirri’s lawyers argued that the charge could not give rise to exclusion for two reasons: first, conspiracy to kill a general in Afghanistan was not of itself contrary to UN purposes and principles; and second, that (as the judge had found) the evidence pointed to innocence and guilt as equally likely, and ‘serious reasons for considering’ meant more than that.
The allegations against DD
Al-Sirri’s case was joined in the Supreme Court with the case of DD (Afghanistan). DD had been involved in fighting UN-mandated troops ISAF) in Afghanistan as a sub-commander in Jamat-e-Islami, which allied itself with the Taliban. He fled to Pakistan with his brother when the US invaded Afghanistan but then returned after an assassination attempt which killed his brother, and fought until he felt equally at risk from his former colleagues as from Karzai’s troops, when he came to the UK and claimed asylum. The Court of Appeal ruled that fighting against International Security Assistance Force (ISAF) troops mandated by the UN (although not directly controlled by it) to provide security and to protect and support the UN’s work in Afghanistan was contrary to its purposes and principles, justifying DD’s exclusion from refugee protection, although the issue of individual responsibility had to be addressed. DD’s lawyers argued that he had been engaged in armed insurrection, which is not in itself contrary to the purposes and principles of the United Nations.
‘Purposes and principles of the UN’
Both cases raised the question: what is the meaning of the phrase ‘acts contrary to the purposes and principles of the UN’. At first glance you would think it could apply only to state actors, since the UN Charter and its founding principles are all about relations between nation states and securing international peace. In the 2010 case involving the Kurdish separatists, the European Court of Justice decided that non-state actors could in principle commit acts contrary to the UN’s purposes and principles, and the Home Office position was that all terrorism was caught by the provision, relying on UN declarations and resolutions secured by western governments in the 1990s to the effect that acts of terrorism were in principle contrary to the UN’s purposes and principles. Al-Sirri’s lawyers argued that such acts must have an international dimension and must be capable of affecting international peace and security. It would not be enough, they argued, that actions are taken in one state to destabilise the government of another (the alleged motivation for the conspiracy to kill General Masoud).
The Supreme Court accepted that to qualify as ‘contrary to the purposes and principles of the UN’, an act would have to impinge on the international plane, in terms of gravity, international impact and implications for international peace and security. But as the Tribunal had held, the killing of Masoud had had such international impact, so it was legitimate to categorise it as it had been. In relation to DD, the Supreme Court ruled that while armed insurrection per se would not necessarily be contrary to UN purposes and principles, attacking ISAF was frustrating the purposes of the UN and in principle fell within the exclusion clause (subject to issues of gravity, international dimension and individual responsibility).
‘Serious reasons for considering’
The last issue in Al-Sirri’s case was how to assess the evidence. Did the charges have to be proved? Clearly, the phrase indicated that decision-makers did not need to be convinced of guilt in order for the exclusion clauses to apply. But did the decision-maker (and the court) need to believe it was more likely than not that the allegations were true? If so, the Old Bailey charges could not found exclusion.
The Supreme Court was reluctant to lay down a hard and fast rule – but gave some pointers. Evidence giving rise to serious reasons for considering that someone was guilty of the acts in question had to be clear, credible and strong. ‘Considering’ was stronger than ‘suspecting’ or ‘believing’. If it was more likely than not that the person had not committed the act in question there could not be serious reasons for considering that he did. And finally, the sentence which could be decisive:
‘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.’
According to the judgment, the Home Secretary accepts that neither Al-Sirri nor DD could be returned to their countries because of the real risk of torture. But the difference between non-return and the grant of refugee status is the difference between the recognition of a status and the civil and social rights which go with it, and a precarious, contingent life where planning a future is impossible. Both cases will now return to the Tribunal for further rulings in accordance with the Supreme Court’s guidance. But it is hard to see how the Tribunal could now refuse to recognise Al-Sirri as a refugee, in the absence of further evidence of terrorist involvement.
Frances Webber is a former barrister who specialised in immigration, refugee and human rights law until her retirement in 2008. She co-edited Macdonald’s Immigration Law and Practice (5th edition, 2001, 6th edition 2005) and Halsbury’s British Nationality, Immigration and Asylum (4th edition, 2002 reissue). She lectures part-time at Warwick University and Birkbeck College and speaks and writes on migration and human rights issues. She is currently working on a book, Borderline justice: the fight for refugee and migrant rights (Pluto, October 2012)
[i] The EU Qualification Directive sets out criteria for refugee status, roughly in line with the Refugee Convention, and the ECJ rules on member states’ implementation of the Directive.