Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00234/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 December 2016
On 07 March 2017

Before

UPPER TRIBUNAL JUDGE KOPIECZEK
DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

Secretary of State for the Home Department
Appellant
and

ND
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr D Clarke, Home Office Presenting Officer
For the Respondent: Mr A Bandegani Counsel instructed by Fountain Solicitors

DECISION AND REASONS
1. Although the appellant in these proceedings is the Secretary of State, for convenience we refer to the parties as they were before the First-tier Tribunal (“FtT”).
2. The appellant is a citizen of Algeria born in 1971. On 22 December 2014 the respondent made a decision to refuse a claim for asylum and to exclude the appellant from the protection of the Refugee Convention pursuant to Article 1F of the Refugee Convention in the light of the appellant’s conviction in January 1999 in France, for what is described in the decision letter as “terrorist offences”.
3. The appellant’s appeal against the respondent’s decision came before First-tier Tribunal Judge Parkes (“the FtJ”) on 17 September 2015, whereby he allowed the appeal. The only issue that the appeal dealt with was in relation to exclusion from refugee protection.
4. The immigration history given by the respondent at the front of her bundle, refers to the appellant having been arrested on 8 November 1994 by the French authorities and charged with being a member of the Armed Islamic Group (“GIA”). It then states that he was detained in prison until January 1998 when he was released provisionally on bail, claiming to have left France and entering the UK illegally in March 1998 (or March 1999), (having absconded after being granted bail). It goes on to state that in January 1999 he was convicted in absentia in France for terrorist offences and receiving a sentence of four years’ imprisonment and banned from French territory for life.
5. The respondent’s decision letter refers to the offence that the appellant was convicted of, as stated in the appellant’s application form (presumably for asylum), as “Association de Malfaiteurs”. The decision letter states that this translates as “conspiracy or criminal conspiracy”, although noting that the translation given by the appellant in his ‘HPDL’ application form, and as set out in the decision letter, is “Participation in an association of malefactors in relation to a terrorist enterprise”.
6. The appeal before the Upper Tribunal was originally heard before a Deputy Upper Tribunal Judge on 18 March 2016. However, he was unable to complete a written decision within a reasonable time of that hearing. Accordingly, a transfer order was made, transferring the appeal to be heard by a differently constituted Tribunal. Thus, the appeal came before us.
The decision of the First-tier Tribunal
7. The FtJ referred to the decision in Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54, and stated that it was for the respondent to show that the appellant is to be excluded from refugee protection. He noted that the issue of exclusion was to be approached restrictively and with caution. Again referring to Al-Sirri, he said that the Court of Appeal had decided that in the absence of facts underlying a conviction, it should be accorded no weight.
8. At [8] the FtJ said that the appellant’s personal history was not “particularly good”, referring to his having absconded in France following his release on bail, and having been convicted in his absence. It followed, he said, that the appellant took no part in the French proceedings and would appear to have put up no defence.
9. At [9] he observed that the Secretary of State had had more than enough time within which to obtain information that might be thought relevant, referring to a period of six and a half years between the letter of representations by the appellant in relation to exclusion, and the Secretary of State’s response. He said that an approach could have been made to the French government for information but no such approach had been made and no information was provided about the offence.
10. Noting that the decision letter states that the appellant’s conviction in France was viewed “extremely seriously”, he observed that despite that, no supporting evidence had been provided. He said that the case against the appellant (in France) appeared to have been of a general nature, involving association with others, and that there was no evidence of what the appellant is said to have done specifically.
11. He also referred to concerns having been raised about the conduct in other cases of the judge concerned in this appellant’s conviction “which raise further concerns about the nature and reliability of the conviction itself”.
12. He concluded that the Secretary of State had not shown that the appellant was to be excluded from refugee protection. He found that there was no evidence of the appellant’s “personal knowledge and acts which are required” and that he therefore attached “no weight” to the conviction in France.
13. At [12] he said that the appellant “was assisted” by his lengthy time in the UK with leave of various types during which time there had been no suspicions of involvement in activities that led to the conviction in France. He went on to conclude that
“That itself may suggest that the Appellant was not involved in the GIA as the French court found and reinforces the point following from attaching no weight to the French conviction.”
The grounds and submissions
14. The grounds, to summarise, contend that the FtJ failed to apply the guidance in Al-Sirri in terms of the “serious grounds” for considering that the appellant comes within one of the grounds for exclusion. Furthermore, his conviction in France is sufficient in itself and it was not open to the FtJ to find that the appellant was not guilty of the offence which would lead to his exclusion. It is asserted that it was also wrong for the FtJ to place “no weight” on the conviction in France for terrorism offences.
15. The second, related, ground is to the effect that it was irrational of the FtJ to conclude that because the appellant has not been shown to have been involved in further terrorist activities in the UK, that indicates that the conviction in France is unsafe.
16. In submissions, Mr Clarke indicated that it was Article 1F(b) that was relied on (serious non-political crime), rather than 1F(c) (acts contrary to the purposes and principles of the UN). Both parties agreed that the offence of which this appellant was convicted was the same as that of the appellant in AH (Article 1F(b)-‘serious’) Algeria [2013] UKUT 00382 (IAC).
17. Mr Clarke agreed that it was “puzzling” as to why no further information had been obtained by the Secretary of State in relation to the appellant’s conviction in France. Nevertheless, it was submitted that the FtJ had erred in law as set out in the grounds. The appellant’s conviction in France was different from the circumstances of the appellant in Al Sirri, as can be seen from [21] and [23] of the Supreme Court’s decision.
18. Although there was nothing unreasonable about the FtJ considering other matters apart from the appellant’s conviction, the taking into account that he had not been involved in terrorist-related activities in the UK since he had arrived was an error. Article 1F(b) was not looking to the future but what an individual had done in the past. In addition, it was wrong for the FtJ to suggest that his conduct post-conviction was relevant to whether he was in fact guilty of the offence of which he had been convicted. As was said by the Upper Tribunal (“UT”) in AH (Algeria), a significant degree of respect should be afforded to the decision of the French court.
19. Furthermore, the Court of Appeal’s decision in AH (Algeria) v Secretary of State for the Home Department [2012] EWCA Civ 395 made it clear that the only evidence was that that appellant had been found guilty of using fraudulent documents, as could be seen from [18] of that decision. The UT in AH (Algeria) took into account that the appellant had received a substantial sentence of imprisonment (two years); less than that of the appellant in this appeal.
20. Mr Bandegani relied on his skeleton argument and ‘rule 24’ response. It was submitted that the reliance on the conviction and sentence could never be enough for exclusion, as was clear from all the decisions. The offence for which the appellant was convicted was broadly worded and open textured. The particulars of the offence and the evidence in support of the conviction needed to have been provided.
21. Even if the FtJ had been wrong to attach ‘no weight’ to the conviction in France, that is not a material error of law. It was not the case however, that the FtJ had suggested that the appellant was not guilty of the offence for which he was convicted in France. Mr Bandegani accepted however, that if that is what the FtJ had meant to convey, that was an error of law, although again not a material error of law.
Conclusions
22. Article 1F of the 1951 Convention provides as follows:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”
23. Although the respondent’s decision dated 22 December 2014 puts the basis of exclusion as being Article 1F(b) and (c), Mr Clarke confirmed that Article 1F(c) was not relied on, and that the case was put only on the basis of Article 1F(b).
24. It must be said that we have found the respondent’s approach to the question of exclusion in relation to this appellant rather puzzling, to say the least. The basis of the respondent’s case as put to the Upper Tribunal, namely with reference to Article 1F(b), is a further illustration of that approach. As regards the basis of exclusion, we have already observed that the decision letter puts the case on the basis of Article 1F(b) and (c). The grounds of appeal to the Upper Tribunal, and therefore the basis upon which permission was sought, are in terms of Article 1F(c).
25. The apparent uncertainty in relation to the respondent’s own view of how her case should be put tends to undermine her case for exclusion. In addition, and more importantly, the lack of detail in support of the respondent’s case is a striking feature of it, which again undermines the case for exclusion.
26. The Supreme Court in Al-Sirri said as follows at [75] of its judgment:
“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.”
27. Earlier, at [15], it was said (in relation to Article 1F(c)) that there must be:
“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”.
28. The Supreme Court in JS (Sri Lanka) v Secretary of State for the Home Department [2011] 1 AC 184 adopted the same approach in relation to Article 1F(a).
29. It is clear that the need for an “individualised consideration” in all its circumstances is also necessary in an assessment of exclusion with reference to Article 1F(b). So much is clear from, for example, the Court of Appeal’s decision in AH (Algeria), at [36]. Further, at [54] of that decision Ward LJ said that:
“I certainly do not find it helpful to determine the level of seriousness by the precise sentence of imprisonment that may have been imposed upon the accused. Sentence is, of course, a material factor but it is not a benchmark. In deciding whether the crime is serious enough to justify his loss of protection, the Tribunal must take all facts and matters into account, with regard to the nature of the crime, the part played by the accused in its commission, any mitigating or aggravating features and the eventual penalty imposed. I would leave that decision to the good sense of the Tribunal.”
30. Nor is it sufficient to rely simply on the fact of a conviction and the sentence imposed. Such cannot be the case in circumstances where it is clear that there must be an examination of all the circumstances, and it is an approach which is inconsistent with both the ‘restrictive’ and ‘cautious’ approach highlighted by the Supreme Court in Al-Sirri. Furthermore, it is apparent that this was also the view of the Court of Appeal in AH (Algeria), for example at [16] where Sullivan LJ said that:
“I readily accept that the fact of a conviction by a court may well make the task of assessing whether a person falls within Article 1F much easier, but it will do so only if the nature of the offence of which the person has been convicted and/or the findings made by the court are sufficient to enable the Tribunal to reach a conclusion as to the individual's "own personal involvement and role in the organisation", or the "true role" played by the individual in the acts perpetrated by the organisation…”
We have already referred to [54] of that decision which is also relevant in this context.
31. It is also worth noting in the context of what this appellant had been convicted of, that the FtJ at [4] described the conviction as being for “membership of the GIA”. This, we consider, is an error. As agreed by the parties at the hearing before us, the offence was the same as that in AH (Algeria) (in the Upper Tribunal) at [3]), being an offence of 'participation à une association de malfaiteurs en relation avec une entreprise terroriste' (‘participation in a criminal association with a terrorist enterprise’). However, his former solicitors made the same error in describing the offence in early correspondence (see letter from Birnberg Pierce and Partners dated 28 March 2002 to UK visas, page 37 of supplementary bundle).
32. Having considered the authorities against the background of this appellant’s conviction, we do nevertheless consider that the FtJ erred in law in attaching “no weight” to the fact of the appellant’s conviction in France. There was evidence before the FtJ, as set out in the supplementary bundle, in relation to what could broadly be described as the ‘unfairness’ inherent in the trial process in relation to the offence for which the appellant was convicted, and in relation to the trial itself, known as the Chalabi case, which involved other accused. However, whilst we consider that the FtJ may, perhaps even would, have been entitled to conclude that little weight should be given to his conviction, we consider that attaching no weight to it went too far.
33. Furthermore, we do not agree with the contention advanced before us that the FtJ did not seek to convey that he considered that there was reason to believe that the appellant was not guilty of the offence. At [12] the FtJ said that his time in the UK without suspicion of terrorist activity may suggest that he was not involved with the GIA “as the French court found” and that reinforced the attaching of no weight to the conviction.
34. As was said in AH (Algeria) in the Upper Tribunal at [96], in the absence of some strikingly unfair procedural defect, a significant degree of respect should be accorded to [a] decision of the French court in the light of the particular degree of mutual confidence and trust between legal systems that form part of the same legal order within the European Union. It is also to be remembered that this appellant has not apparently sought to appeal against his conviction.
35. Similarly, we also consider that the FtJ fell into error in deploying the lack of criminal/terrorist activity or suspicion since being in the UK as a reason to doubt the appellant’s guilt in relation to the French conviction, apart from, as we say, the underlying error in suggesting his innocence of that offence in the first place. The lack of suspicion/activity in the UK is hardly a basis for the view that he had not so acted in the past.
36. The appellant refers in the skeleton argument to ‘expiation’, a point considered by the Court of Appeal in AH (Algeria) v Secretary of State for the Home Department & Anor [2015] EWCA Civ 1003 (AH (Algeria) No.2), a decision post-dating the decision of the FtJ. However, that is a different point (relating to the application of exclusion, taking into account, for example, previous punishment, the passage of time, and remorse), and is not directly relevant to the question of post-conviction behaviour reflecting on the question of guilt or innocence of the offence.
37. We do conclude therefore, that the FtJ did err in law in the respects to which we have referred (‘no weight’ to the conviction; suggestion that he is not guilty of the offence; no similar activity in the UK).
38. However, we do not consider that those errors of law are such as to require the decision to be set aside. There is no need to repeat the effect of the authorities on the issue of exclusion in terms of what has to be proved and the necessary level of detail required. We consider that the FtJ was entirely correct to conclude, in summary, that the respondent had not discharged the burden of proof in establishing that the appellant should be excluded from protection under Article 1F.
39. In Al - Sirri (Asylum - Exclusion - Article 1F(c)) [2016] UKUT 448 (IAC) the Presidential panel decided that:
“in every case involving exclusion of protection under Article 1F of the Refugee Convention, the onus of proof is on the Secretary of State, a detailed and individualised examination of the facts is required, there must be clear and credible evidence of the offending conduct, and the overall evaluative judgment involves the application of a standard higher than suspicion or belief.”
40. We consider that the FtJ’s decision is, in its final conclusion, entirely in accordance with that guidance, which of course post-dates the FtJ’s decision, but which syntheses the effect of the relevant authorities. We have seen surprisingly little, if any, evidence of any significant effort on the part of the respondent to provide the information and level of detail necessary to advance a realistic case for exclusion in relation to this appellant.
Decision
41. The decision of the First-tier Tribunal involved the making of an error on a point of law. However, its decision is not set aside and the decision of the First-tier Tribunal to allow the appeal, therefore stands.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Upper Tribunal Judge Kopieczek 3/03/17