Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08673/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 November 2016
On 9 November 2016

Before

THE HONOURABLE MR JUSTICE GARNHAM
UPPER TRIBUNAL JUDGE BLUM

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr FGH
(anonymity direction made)
Respondent

Representation:
For the Appellant: Mr Z Malik, Counsel, instructed by Government Legal Department
For the Respondent: Mr P Haywood, Counsel, instructed by Wilson Solicitors LLP

DECISION AND REASONS
1. On 14 July 2016 First-tier Tribunal Judge Parker allowed the appeal of Mr FGH on asylum grounds, finding that the appellant did not meet the criteria for exclusion from the protection of the Refugee Convention provided by Article 1F(b). The Secretary of State now mounts a statutory appeal against that decision.
2. In considering this appeal we have carefully reviewed the decision of Judge Parker together with the written grounds prepared on the Secretary of State's behalf by Mr Zane Malik of Counsel and the grounds prepared on behalf of Mr FGH by Mr Phil Haywood. We have also considered the documentary evidence provided by both parties and had the benefit of oral argument from both Counsel.
3. The factual background to this case may be stated shortly. It is described in rather greater length in the judge's decision. The respondent, Mr FGH, was born in Libya. In 1989 he met Saif Gaddafi, son of Colonel Muammar Gaddafi, at university and the two men became close friends. In 1994 Saif Gaddafi set up a private company called the National Service and Supply Company or "NESSCO". The appellant was appointed a director in that company and placed in charge of the company's finances. He earned the trust of Mr Saif Gaddafi on financial matters.
4. Saif Gaddafi had a 50% shareholding in NESSCO but was anxious to avoid being officially connected with the company. Accordingly, he divided his ownership between the appellant and other shareholders. A separate bank account was set up into which his share of the company's profits was deposited. There were concerns about rivalry between elements of the Gaddafi family and it was thought unwise to publicise Saif Gaddafi's connection with the company. Accordingly, the company did not use his name when seeking to win contracts in their field of endeavour, namely construction.
5. The appellant and his family left Libya in August 2011 and moved to Tunisia. In May 2012 the appellant's name was included on a list issued by the Libyan National Congress of those whose assets ought to be frozen. INTERPOL issued a red notice in January 2013 alleging that the appellant was wanted for embezzlement of public funds. It was subsequently submitted that that was a politically motivated move and INTERPOL issued caveats against the red notice. The red notice was subsequently blocked or withdrawn entirely.
6. On 6 October 2014 the Secretary of State issued her decision on FGH's application for asylum. She accepted that there was a Convention reason for the appellant's fear of persecution, namely imputed political opinion, but decided that he should be excluded from the protection of the Refugee Convention on the ground that he had committed a serious non-political crime outside the country of refuge prior to his admission to that country of refuge.
7. The substantive hearing before the First-tier Tribunal took place on 10 May this year. The judge heard Mr FGH give evidence and Mr FGH adopted his two witness statements dated 15 July 2013 and 22 February 2016. He gave oral evidence and was cross-examined. The judge then heard submissions from Mr Malik and Mr Haywood.
8. The judge's decision runs to some 93 paragraphs and covers 30 pages. It accurately summarises the Secretary of State's case against the appellant. It accurately sets out the provisions of Article 1F(b) and it addresses each of the grounds advanced by the Secretary of State for his conclusion that Mr FGH is excluded from the protection of the Convention.
9. Before us the Secretary of State advances five grounds of appeal. The first ground is that the FTT Judge misconstrued Article 1F(b) and misdirected herself in law in assuming that the Convention required the Secretary of State to prove, by producing cogent evidence, that the person concerned has in fact committed a serious non-political crime.
10. Mr Malik points to particular expressions used by the judge, notably in paragraphs 61, 65, 77, 78, 83 and 93, which he says demonstrates that the judge was applying the wrong test. Mr Malik says it is apparent from the determination when read as a whole that the judge was asking herself whether the Secretary of State had been able to show that the appellant had "actually committed a serious non-political crime"; what Article 1F requires instead is simply that there are serious reasons for considering that he has committed such a crime.
11. We reject that ground. In our judgment it is clear from a fair reading of the judge's determination that the judge has applied the correct test. The judge set out in paragraph 46 of her determination the legal framework which she had to apply to the question before her. That was at the very beginning of her analysis of the evidence. She quotes Article 1F correctly. She then refers to the leading authority on the proper interpretation of that provision, namely Al-Sirri v SSHD [2012] UKSC 54.
12. The Judge then quotes from Mr Malik's skeleton the relevant definitions taken from that Supreme Court decision. At paragraph 57 the judge indicates that her analysis "will begin by considering the evidence relied upon by the respondent in respect of the appellant's involvement with NESSCO". She then reviews the respondent's evidence relating to Saif Gaddafi's secret involvement in NESSCO, his shareholding, his alleged illegal accumulation of wealth and the INTERPOL notices. All but one of the paragraphs criticised by Mr Malik are found in this part of the decision.
13. In our judgment it is perfectly clear that what the judge was doing in this part of her determination was analysing the strength of the evidence on which the respondent relied. She was not disregarding the legal test that she had to apply, which she had set out so clearly in the preceding paragraphs. So, for example, at the end of paragraph 61 she indicates that she is not satisfied that the respondent had established "even to the lower standard" that there was a criminal or even morally negative motivation for keeping secret Saif Gaddafi's involvement in NESSCO. The reference to the lower standard is plainly a reference to the provisions of Article 1F.
14. In paragraph 65 the judge said that she was "not satisfied there is evidence of a serious non-political crime in keeping Saif Gaddafi's involvement in the company secret". If there is no evidence to that effect there is no serious reason for considering it. Similarly, in paragraph 83 the judge reminds herself that in order to establish that the appellant should be excluded from protection of the Convention there needs to be evidence of individual responsibility. She was satisfied there was no such evidence. In applying that criterion she was in our judgment doing no more than applying the guidance of the Supreme Court in Al-Sirri.
15. The judge then summarises her conclusions in paragraph 93. She explains that having considered all the evidence she found "even when considered cumulatively, it is insufficient to establish that the appellant warrants exclusion from the Refugee Convention". Given that she had set out precisely what it was necessary to establish in order to bring an individual within Article 1F(b) at the beginning of her analysis we can see no arguable error of any sort in that conclusion. That is enough to dispose of the first ground.
16. The second ground is that the judge erred in law in failing to carry out a structured and reasoned analysis of the evidence. By that Mr Malik means that the judge did not adopt his suggested structure for the decision. That structure is set out at paragraph 18 of the Secretary of State's application for permission. In our judgment the judge was not obliged precisely to follow Mr Malik's structure and contrary to Mr Malik's case the Judge's analysis was perfectly well reasoned and well explained using the judge's own structure.
17. We also note in passing that at the end of the decision the judge did in fact return to the four questions posed by Mr Malik and dealt with them. There is nothing whatever in this ground of appeal.
18. The third ground of appeal alleges that the judge's approach to the issue of financial corruption and its seriousness in the context of Article 1F(b) is inconsistent with authority. Reference is made to AH (Algeria) v Secretary of State for the Home Department [2015] EWCA Civ 1003.
19. In his written response Mr Haywood argues that "whether serious crime includes financial corruption requires the Secretary of State to demonstrate what it was that FGH was alleged to have done". Here, as he points out, the judge did not find that the Secretary of State had established a factual case that FGH was in fact corrupt. That being so, in our judgment it is impossible to argue that the judge erred in her approach to the question whether financial corruption might constitute serious crime. If it is not established that there were serious grounds for considering the appellant had acted corruptly the issue of whether such corruption constitutes a serious crime within Article 1F simply does not arise.
20. The Secretary of State's fourth ground of appeal is that the judge's "implied refusal to accept that the Libyan state apparatus and Saif Gaddafi were corrupt is not justified on the available objective evidence". It is said that the relevant evidence was completely ignored by the First-tier Tribunal Judge.
21. That ground too is simply not borne out on the facts. It is apparent from the determination read as a whole, and in particular those sections dealing with each part of the Secretary of State's case and from the conclusions at paragraphs 90 to 92, that the judge did consider the evidence and submissions relating to corruption in Libya generally and corruption by Saif Gaddafi in particular. But, as the judge correctly observed, this was not Saif Gaddafi's appeal and the issue was not whether Saif Gaddafi should be excluded from the protection of the Convention. The judge correctly focused her attention on the case against FGH and she made entirely adequate findings about the extent of FGH's involvement with Saif Gaddafi. As Mr Haywood rightly pointed out in writing, Mr FGH was not a state official and in order to make good her case the Secretary of State needed to show serious grounds for considering that FGH rather than others in the Libyan establishment were corrupt.
22. We would add in that context that the judge placed considerable reliance in analysing the respondent's case on expert evidence from a Ms Melinda Taylor and Professor Joffe. It is of some note that, as the judge observed at paragraph 64, the credentials of these experts was not challenged. It still has not been. In those circumstances the judge was entitled to rely on that expert evidence and it provided considerable support for her in the conclusions she reached.
23. Finally, the Secretary of State argues that the judge's findings in relation to the appellant's activities in Libya are "inconsistent with the appellant's own evidence and furthermore its findings in relation to this are not justified on the available evidence". We reject that argument too. In substance that is nothing more than an expression of disagreement with the judge's analysis and conclusion. It points to no error of law or error of approach. The judge had set out in detail the nature of the evidence; she had identified and considered the nature of FGH's role in Libya; and she had drawn conclusions that were properly open to her.
24. In our view, the evidence relied on by the Secretary of State undoubtedly justified suspicion of corruption but that is wholly insufficient to meet the test set out in Article 1F as considered and analysed by the Supreme Court in Al-Sirri. What was required was not suspicion but clear and credible, or strong, evidence. In our view the judge was entitled to come to the conclusion that that had not been demonstrated.
25. For those reasons this appeal is dismissed.
Notice of Decision
The appeal is dismissed.
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.

Signed Date

Mr Justice Garnham