UK Legal News Analysis: When is an act contrary to the purposes and principles of the UN?
The following short piece was published by LNB News on 07 December 2012, and is publicly available online.
England; England & Wales; Wales
Geneva Convention on the Status of Refugees; European Convention on Human Rights
DD (Afghanistan) (FC) v Secretary of State for the Home Department, [2012] UKSC 54;
Immigration analysis: Exclusion clauses in the Geneva Convention on the Status of Refugees must be restrictively interpreted. Adam Pipe, barrister at No 8 Chambers considers the Supreme Court's most recent decision.
Al-Sirri (FC) v Secretary of State for the Home Department; DD (Afghanistan) (FC) v Secretary of State for the Home Department , [2012] UKSC 54, [2012] All ER (D) 235 (Nov)
The Supreme Court in two joined appeals made findings on the application of art 1F(c) of the Geneva Convention on the Status of Refugees, to the case of two appellants, who had been refused refugee status in the United Kingdom on the basis that there were serious reasons for considering that they had been guilty of acts contrary to the purposes and principles of the United Nations. One had, inter alia, convictions in Egypt and the other had been a member of a proscribed terrorist organisation.
What issues did this case raise?
In Al-Sirri the Supreme Court considered the third limb of the exclusion clause of the Geneva Convention on the Status of Refugees, art 1F(c), namely that an individual is excluded from refugee protection if there are serious reasons for considering that he has been guilty of acts contrary to the purposes of the United Nations (UN). Of the three limbs, this third one is probably the least used and therefore least well known.
It was accepted before the Supreme Court that both appellants could not be returned to their home countries as there was a real risk their European Convention on Human Rights (ECHR), art 3 rights would be breached.
There appear to have been three main issues before the Supreme Court.
The question was whether all acts of terrorism as defined by domestic law are for that reason alone acts contrary to the principles and purposes of the UN or whether such actions must constitute a threat to international peace and security or the peaceful relations between nations.
The question was whether armed insurrection is contrary to the purposes and principles of the UN if it is directed not only at the incumbent government but also against a UN mandated force supporting the government (in this case International Security Assistance Force in Afghanistan (ISAF)).
In relation to both appellants
The third issues common to both appellants was the question of the standard of proof and what is meant by the 'serious reasons for considering'.
To what extent is the judgment helpful in clarifying the law in this area?
The lead judgment of the Supreme Court was given jointly by Lady Hale and Lord Dyson with whom the other three Supreme Court Justices agreed. This growing practice of the Supreme Court giving one main judgment is most welcome in providing clarity to the law and it is a trend that Lord Neuberger is keen to continue (see his recent lecture 'No Judgment--No Justice' 20th November 2012).
The Supreme Court clarified that the Geneva Convention on the Status of Refugees, art 1F generally should be interpreted narrowly and applied restrictively. Furthermore in respect of art 1F(c) if the acts are not covered by art 1F(a) they must be of a comparable egregiousness and character. They must be acts which have been identified and accepted by the international community as being contrary to the purposes and principles of the UN. For exclusion to be justified it needs to be established that there are serious reasons for considering the person concerned had individual responsibility for acts within the scope of art 1F(c). This requires an individualised consideration of the facts of the case.
The Supreme Court found acts contrary to the purposes and principles of the UN must have an autonomous meaning. The court noted there is no internationally recognised definition of terrorism yet and the principal purposes of the UN are to maintain international peace and security, to remove threats to that peace and to develop friendly relations among nations. The court therefore adopted the definition in United Nations High Commissioner for Refugees (UNHCR) guidelines, para 17 and found that such activity must have an international dimension.
The court decided an attack on ISAF is capable of being an act contrary to the purposes and principles of the UN as the fundamental aims and objectives of ISAF accord with the first purpose stated in the United Nations Charter, art 1.
In relation to both appellants
In respect of the standard of proof the Supreme Court concluded 'serious reasons' is stronger than 'reasonable grounds' and the evidence from which those reasons are derived must be clear and credible.
Furthermore whilst it was unnecessary to import domestic standards of proof into the question it was unlikely there would be sufficiently serious reasons for considering the applicant guilty of the acts concerned unless the decision maker was satisfied on the balance of probabilities that he was.
What are the implications for lawyers?
Lawyers will unlikely come up against many cases involving the application of the Geneva Convention on the Status of Refugees, art 1F(c). However the court's general comments about the restrictive interpretation and narrow application of the exclusion clause are very helpful, as is the clarification of the standard of proof in dealing with exclusion cases. Lawyers should remind judges and decision makers of the need for strong evidence which is clear and credible in order for exclusion to be justified.
It is clear from this judgment, in exclusion cases, lawyers should particularly address the individual circumstances of their client focusing on the extent of their involvement in the acts concerned, their mental state and any possible grounds for the rejection of individual responsibility.
Are there any trends emerging in this area of law?
It appears the UK Border Agency and judges are now more alert to exclusion issues in light of the 'war on terror' and the events of the last decade. Lawyers therefore need to be ready to address exclusion issues and ensure the evidence presented against their client is robustly examined and the correct legal tests, as set out in this case, are applied.
The Supreme Court ultimately agreed with the Court of Appeal - both cases should be remitted to the Upper Tribunal. As noted above, the appellants cannot be removed in any event because of the risk their ECHR, Art 3 rights will be breached and it is the protection afforded by the ECHR that is most politically sensitive at the moment and the area in which we are likely to see developments as the tussle between Westminster and Strasbourg rumbles on.
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