Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11292/2012

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 January 2019
On 8 March 2019

Before

UPPER TRIBUNAL JUDGE ALLEN
UPPER TRIBUNAL JUDGE KOPIECZEK

Between

Hany Youssef
(anonymity direction NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Mackenzie, instructed by Birnberg Peirce & Partners
For the Respondent: Mr A O'Connor QC, instructed by the Government Legal Department

DECISION AND REASONS

Introduction

1. This matter comes to us by way of remittal from the Court of Appeal following our earlier decision involving the same parties in which we dismissed Mr Youssef's appeal against the respondent's decision excluding him from reliance on the benefit of the United Nations Refugee Convention 1951 on the basis that his activities satisfied the test in Article 1F(c) of the Convention as being "guilty of acts contrary to the purposes and principles of the United Nations". The specific ambit of the remittal is for us to consider whether the gravity or seriousness of Mr Youssef's conduct is such as to bring him within Article 1F(c).

History

2. The brief history of the proceedings is set out at paragraph 2 of the Court of Appeal's judgment at [2018] EWCA Civ 933. Mr Youssef is an Egyptian national who has been in the United Kingdom since 1994. In our decision of 12 April 2016 we dismissed his appeal against the Secretary of State's decision of 27 November 2012 that his activities excluded him from the protection of the Refugee Convention.

3. We decided that the actions of the appellant in encouraging jihadist terror in themselves amounted to acts sufficient to justify exclusion. A key issue in the appeal before the Court of Appeal was whether acts might be sufficient to satisfy the threshold for exclusion from the Convention under Article 1F(c) where those acts were neither themselves completed or attempted terrorist acts, nor could they be shown to have led to specific completed or attempted terrorist acts by others.

4. The appellant advanced three grounds to the Court of Appeal. The first was as follows:

"The Upper Tribunal erred in finding that individual responsibility for acts falling within Article 1F(c) can arise solely by way of implicit or explicit encouragement of such acts, in the absence of evidence that an offence has been committed or attempted as a consequence of anything said or done by the Applicant."

Ground 2 read as follows:

"The Upper Tribunal erred in finding that the elements of individual responsibility are not the same under all three 'limbs' of Article 1F."

Ground 3 read as follows:

"In the alternative, if (as is argued by the SSHD) the Upper Tribunal held that HY was excluded not on the basis of secondary liability but on the basis of his own conduct in publishing the speeches and sermons [?] was sufficient in itself to engage Article 1F(c), the Upper Tribunal erred in failing to make any findings:

(a) on whether mere speech could in itself be contrary to the purposes and principles of the United Nations; and/or

(b) about how HY's speech in itself (i.e. divorced from any impact it may have had on others) had the requisite impact on international peace and security."

5. The appellant was unsuccessful on grounds 1 and 2, as is set out in the conclusions at paragraphs 78 and 79 of the Court of Appeal's judgment.

6. With regard to ground 3, the court said the following:

"81. Youssef's ground 3 is broader. It is not concerned with a technical requirement for crime in international law, but with the seriousness of Youssef's conduct in a larger sense. No point can be taken about the international nature of his exhortations and incitement: that requirement is clearly satisfied. The question is whether the Tribunal considered sufficiently closely and fully the seriousness and impact of the Appellant's conduct, and reached proper conclusions on the point."

7. For reasons to which we shall return in some detail below, the Court of Appeal granted permission on ground 3, in summary on the basis that UTIAC was clearly aware of the guidance in Al-Sirri and the need to consider the "high threshold defined in terms of the gravity of the act in question". Though UTIAC dealt fully with the argument that crimes must be proved and did so correctly, there was no passage in the UTIAC's reasons which demonstrated that thereafter the Tribunal stood back and considered the gravity or seriousness of Youssef's conduct, once that argument was disposed of. The matter was remitted on that basis.

The Law

8. In Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54 the Supreme Court provided guidance on the meaning of Article 1F(c) of the Refugee Convention. Article 1F makes provision for exclusion from the provisions of the Convention of certain categories of people and the category with which the Supreme Court was particularly concerned in Al-Sirri was those falling under (c), that is to say persons in respect of whom there are serious reasons for considering that they have been guilty of acts contrary to the purposes and principles of the United Nations.

9. In its conclusions as to the general approach to Article 1F(c), the Supreme Court concluded as follows at paragraph 16:

"16. In our view, this is the correct approach. 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."

At paragraph 40 the Supreme Court emphasised that the test was whether the resulting acts have the requisite serious effect upon international peace, security and peaceful relations between states.

10. In the Court of Appeal decision remitting the specific matter back to us, the court considered the guidance laid down by the Supreme Court in Al-Sirri, noting that at paragraph 36 there was confirmation that the phrase "acts contrary to the purposes and principles of the United Nations" must have an autonomous meaning and confirmed at paragraph 37 that there was a requirement of an international dimension to the terrorism in question. The Court of Appeal summarised the guidance in Al-Sirri as follows:

"83. ? There is a high threshold before Article 1F(c) is triggered. The activity must be capable of affecting international peace and security. However, the Court concluded that 'inducing terror in the civilian population or putting such extreme pressures upon a government will also have the international repercussions referred to ?'. That is clearly an issue for specific consideration by the relevant court or tribunal. Finally, the question whether such international repercussions may be established by a person plotting in one country to destabilise another is a question of fact. The question is whether the 'resulting acts have the requisite serious effect'. In short, do the relevant acts have the necessary character and the necessary gravity?

84. In considering that guidance it is worth bearing in mind that the decision in Al-Sirri pre-dated the 2014 Security Council Resolution. I have set out the relevant terms of the Resolution in paragraph 41 above. The terms of the Resolution underscore the State's obligation to 'prevent terrorists from exploiting technology, communications and resources to incite support for terrorist acts' and 'to ensure ? that refugee status is not abused by the ? facilitators of terrorist acts', in all cases acting 'in conformity with ? international refugee law'. This Resolution is very direct in its call to action.

85. It may be helpful to consider separately the quality of the acts in question, and their gravity or severity. To adopt an illustration which arose in argument, it is easy to conceive an immature 18 year old going online from his suburban bedroom, and using the most lurid terms in calling for international jihad. The nature or quality of this would, it seems to me, satisfy the requirements of Article 1F(c). It would represent active encouragement or incitement of international terror. However, it would be unlikely, without more, to be grave enough in its impact to satisfy the approach laid down in Al-Sirri. That might well require more: evidence of wide international readership, of large-scale repetition or re-tweeting, or citation by those who were moved to join an armed struggle, for example.

86. It is obviously right, for the reasons given by the Supreme Court in Al-Sirri, that careful consideration is given to the gravity or impact of any acts relied on. This is the answer to the Appellant's arguments as to the vital importance of protection of refugees, and that such protection should not be lost for 'mere speech'. Freedom of speech is a qualified right under the United Nations Convention, as under the ECHR or the European Charter."

11. We have summarised at paragraph 1 above the relevant parts of paragraph 87 of the Court of Appeal's judgment setting out the ambit of our task on remittal.

Submissions

12. In his submissions Mr O'Connor QC developed points made in his skeleton argument. The issue that had been remitted involved the need for a value judgment concerning the appellant's conduct where it passed a particular threshold as required under Article 1F(c). It was a necessary but not sufficient requirement that it was contrary to the purposes and principles of the United Nations. It went beyond that, giving rise to issues of gravity, seriousness, severity, impact.

13. Mr O'Connor argued that there were two issues in play in particular from Al-Sirri, the first being the question of whether the conduct had the necessary international dimension or character such as to come within Article 1F(c) and the second being whether the conduct was sufficiently grave or serious to warrant exclusion under Article 1F(c). These were related but discrete questions.

14. It was clear from what had been said at paragraph 81 by the Court of Appeal that no point could be taken about the international nature of the appellant's exhortations and incitement: that requirement was clearly satisfied. The appeal concerned the second issue.

15. Mr O'Connor emphasised the importance of paragraph 16 in Al-Sirri which we have quoted above. This recognised and asserted the threshold of a degree of gravity. Paragraphs 36 to 40 of Al-Sirri set out the Supreme Court's discussion and conclusions on the relevant issues. It could be seen there that there was a discussion of whether there was an international dimension and what was needed to be shown and also language referring back to paragraph 16 and the gravity question.

16. As noted above, the Court of Appeal had accepted the international element at paragraph 81. The remaining issue was that of the seriousness and impact of the appellant's conduct. Essentially what had been remitted to the Tribunal was the issue raised at paragraph 16 in Al-Sirri.

17. In this regard Mr O'Connor argued that what was said at paragraph 19 of Mr Mackenzie's closing submissions was wrong. This involved a confusion and elision of the two questions and narrowed the question to be decided which was in fact the paragraph 16 issue together with paragraphs 38 and 40 from Al-Sirri. The case was not concerned about the international impact but was broader than that. Under paragraph 16 in Al-Sirri there was a series of considerations to be taken into account to lead to a value judgment. The international element was one issue only of these. Paragraph 16 of Al-Sirri required it to be considered separately from the gravity point and it was not just a question of international impact. Equally it was wrong to say as was set out at paragraph 2 of Mr Mackenzie's closing submissions that the ultimate issue was the impact of the appellant's acts of publishing on international peace and security. This again involved an artificial narrowing of the issues and did not reproduce what was set out at paragraph 16 of Al-Sirri.

18. It was also argued by Mr O'Connor that Al-Sirri had to read as being of its time. It was clear from what was said by Irwin LJ at paragraph 84 of [2018] EWCA Civ 933 that the decision in Al-Sirri predated the 2014 Security Council Resolution (which he set out in full at paragraph 41) expressing concern over the increased use by terrorists and their supporters of communication technology for the purpose of radicalising to terrorism, recruiting and inciting others to commit terrorist acts, including through the internet, and calling upon States to ensure that refugee status is not abused by the facilitators of terrorist acts, in all cases acting in conformity with international refugee law.

19. It was also relevant to note that the cases in play in Al-Sirri were ones where a terrorist act had actually taken place following what had been done by the appellant. They were not cases such as the instant one where nothing had occurred, and the absence of such a consequence, as had been held, did not preclude an upholding of the decision to exclude. Al-Sirri therefore had to be read as of its time. The use of the term "impact" at paragraph 16 could be seen as referring to a context where something had actually happened. It was not suggested that Al-Sirri was wrong, but paragraph 16 referred to international impact as one of a series of factors to be taken into account and the facts there should be contrasted with the facts of this case. Neither case said that there had to be impact as a formal act to fall under Article 1F(c). It was necessary to look at the range of considerations at paragraph 16. It was not a necessary element, but it was a factor. It was to do in Al-Sirri with the international dimension which it was not necessary to consider in this case, and was one of a number of factors and it did not have to be shown to have led to a final act. There was in any event evidence to which Mr O'Connor would turn, from which impact could be inferred.

20. Returning again to Mr Mackenzie's closing submissions, it was argued that it was wrong to suggest as was said there that the "gravity" or "impact" aspect was not assessed by looking at the contents of what the appellant had said. If there was consideration of the gravity of the conduct it was all to do with what the appellant had done.

21. Mr O'Connor then went on to develop the points made in his skeleton argument concerning the six features of the appellant's conduct which he said, assessed cumulatively, led to the conclusion that the Article 1F(c) threshold was passed.

22. The first of these was the nature and content of the appellant's sermons. The Tribunal was referred back to its own findings in that regard. It was argued that the timing was significant and there was a deliberate planned campaign to emphasise the Al-Qaeda message. With reference to the chronology it could be seen that there were two sermons on the day on which Osama bin Laden was killed, and again only two weeks after the death of Al-Awlaki and again on the second anniversary of the 9/11 bombings there was a sermon and on the second anniversary of Osama bin Laden's death in May 2013. The point was made that the appellant did not post just a single sermon inciting violence by Al-Qaeda but posted a whole series of such sermons over a long period of time and several of them as set out were timed to coincide with moments when interest in the Al-Qaeda message might be presumed to be at its strongest. This clearly contrasted with the single post by the teenager cited by Irwin LJ. In that regard, Mr O'Connor accepted the point made in Mr Mackenzie's closing submissions that it was a spectrum and that more needed to be shown by the Secretary of State than simply that the appellant's case was more serious than that of the teenager.

23. The second factor concerned the way in which the appellant portrayed himself as a scholar and a man of intellectual authority. Mr O'Connor referred to paragraph 14 of the Court of Appeal's judgment setting out some elements of this self-portrayal. In the bundle could be found the detailed contents of the appellant's biography published on the Al-Maqreze website, alongside his speeches and sermons. He was of great seniority within the jihadi movement. This went to the gravity of his conduct. The implications for international peace and security were therefore far more serious than those posed by the teenager in Irwin LJ's example. The implications were there from the point of publication and could not just be said to be religious writings. This was a man who wished that he had met Osama bin Laden and described him as a lion of Islam.

24. The third factor was the use of the internet itself, in light of the UN Security Council Resolution. Irwin LJ in the Court of Appeal made particular note of this point at paragraph 84. The appellant had used the internet in the way precisely condemned by the Security Council. It was also a paragraph 16 in Al-Sirri issue. It referred to the manner in which the act was organised and it was not a Hyde Park speech to a few people but had been put on the internet along with the appellant's biography and this went to the gravity and the manner of organisation.

25. The fourth point was similar, referring to the length of time during which the incitements to acts of terrorism had been made available on the internet. They had not simply been posted and deleted but had been placed and left, in the case of some of his sermons, for years.

26. The fifth factor was the evidence that his postings in fact received an extremely wide readership. The evidence before the Tribunal which emanated from the UN material was that his website had obtained hits ranging from 12,000 in a week to 80,000 over an undefined period. This was the evidence before the Tribunal. Mr Mackenzie might argue that there were other possible types of evidence that were not before the Tribunal but it had to deal with the case on the evidence before it. It was true that the ombudsperson had used a different test: the issue before her was whether the appellant was still to be on the sanctions list, and that did not affect this factual point. If there were anything wrong with the figures one could expect the appellant to correct them. It was his own website after all and it could be inferred that he had access to all the metadata and could identify the number of visitors and the number of hits. Although it was not argued on behalf of the Secretary of State that impact was relevant, it should be noted that the only evidence from the appellant was a statement made in 2010 in respect of different proceedings. He had put no evidence in for these proceedings. What he said about not being involved with terrorism went directly contrary to the Tribunal's findings and he had not challenged those findings. Also where he had referred in the statement to him wanting a court hearing to clear his name he had not produced any evidence at all. If he were not able to challenge the evidence then he could have said that he was so unable. It had always been open to him to respond to this evidence. Impact was not a decisive or necessary consideration but there was evidence that tens of thousands of people had seen this material.

27. The sixth factor was the international dimension and/or impact of his conduct, which had been recognised as such by the Court of Appeal at paragraph 81.

28. In his submissions Mr Mackenzie at the start said that he was unaware of any restrictions, i.e. any order restricting internet use, etc, on what the appellant could say, with regard to the point as to whether or not he would have been able to say anything about any ability or inability he had to comment on the number of visitors to his website or what material was viewed.

29. Mr Mackenzie argued that the issue was relatively straightforward. It was a question of whether the Secretary of State could show the appellant's actions had a serious impact on international security and whether that was shown on the evidence available. There were two questions posed by Irwin LJ, the value and quality of the acts in question and their gravity/impact. It was accepted that impact and significance were relevant to bear in mind in answering that question. They were signposts to the ultimate question of the serious effect/impact on international peace and security bearing in mind the high threshold as set out at paragraph 16 in Al-Sirri which laid out the restrictive approach. It was said at paragraph 37 that above all the principal purposes of the United Nations were to maintain international peace and security, to remove threats to that peace and to develop friendly relations among nations. The test as set out at paragraph 40 in Al-Sirri was whether the resulting acts had the requisite serious effect upon international peace, security and peaceful relations between states. What Mr Mackenzie argued about impact was a precis of that. There was no need for a direct causal relationship, but it had to be shown to be an impact on people in the real world. Nature and quality had been made out as found by the Court of Appeal, and there was an inherent level of seriousness in Article 1F(c). There had to be an attack on the basis of the international community and its coexistence and these were serious matters.

30. If one looked at paragraph 85 of the Court of Appeal's judgment there was an indication there of the kind of evidence necessary: "Evidence of wide international readership, of large-scale repetition or re-tweeting, or citation by those who are moved to join an armed struggle, for example". Impact did not necessarily involve specific acts but actual people who had read, approved of and acted on the words, and indications of public endorsement/approval. We had none of that evidence or anything of a similar character so even if this was not a checklist, there was nothing similar to what was set out in paragraph 85 that had been provided by the respondent. The respondent had been engaged with the appellant for 25 years where there were UN sanction committee issues, security services assessments and if there was no evidence to support what the Secretary of State argued, it was unbelievable that the Tribunal was asked to make inferences. It was clear what kind of evidence was needed and it was lacking. Referring to ten items of evidence over a ten year period with pronouncements was not enough. There was no expert evidence for example to say that the appellant was knowledgeable about terrorists and was known and regularly cited, and there was no police or security services assessment. If the respondent had evidence of the appellant being regarded as an intellectual inspiration then the Tribunal had not been told about it. There was no statistical evidence of any great significance. Though the figures were accepted it was unclear where they went. The size or type of audience could not be determined with any certainty. At its highest a number of people had visited his website but his preaching biography cited a very large number of sermons and it was unclear on what basis these ten items were the ones that could be said to have received all the hits. There was no basis for saying that. It was not known whether anyone had encouraged their followers to look at his sermons or that they were cited as an inspiration.

31. It was relevant that the way he expressed himself was rather dense and a long way from the kind of thing to inspire someone to go to Syria on jihad. There was no evidence that anyone saw him as an expert on Islamic law other than what he said. The six factors as set out by Mr O'Connor related to the nature rather than the impact of his words. On that basis the teenager referred to by Irwin LJ would be excluded. Mr O'Connor's paragraph 33 raising his first factor was effectively double-counting as what was referred to there was already part of the non-applicable aspect. The reference to the use of the internet was equally applicable to the teenager. The fact that the sermons had been online for a lengthy period of time did not show impact. The highest the Secretary of State's case could be put was that what had been posted had a potential and that was taken from the ombudsperson, but that was not enough. Again the teenager would be excluded on that basis. There was no evidence to make out the Secretary of State's case.

32. We reserved our decision.

Conclusions

33. The point on which this matter was remitted to us is, as both representatives agreed, a relatively narrow one, but its context is of importance. Part of that context is the Court of Appeal's conclusion, agreeing with our earlier finding, that individual responsibility for acts falling within Article 1F can arise solely by way of implicit or explicit encouragement of such acts in the absence of evidence that an offence has been committed or attempted as a consequence of anything said or done by the appellant. The issue as raised in ground 3 and accepted by the Court of Appeal was as the Court of Appeal noted at paragraph 81, not concerned with a technical requirement for crime and international law but the seriousness of the appellant's conduct in a larger sense. The question was whether we had considered sufficiently closely and fully the seriousness and impact of the appellant's conduct and reached proper conclusions on the point. It is relevant to note that the ground of appeal advanced in this regard contended that no findings had been made about how the appellant's speech in itself, i.e. divorced from any impact it may have had on others, had the requisite impact on international peace and security.

34. In our view that is how the concept of "impact" in this context has to be seen. It clearly follows on from what was said at paragraph 16 in Al-Sirri, itself borrowing from the UNHCR's background note on the application of the exclusion clauses (4 September 2003) at paragraph 47 that the high threshold is to be 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. It is in that sense that we understand the term "impact" to be used by the Court of Appeal, and indeed it is difficult to see how it can be used in any other sense in light of the rejection of the appellant's ground 1. There does not have to be shown any offence committed or attempted as a consequence of anything said or done by the appellant. We agree with Mr O'Connor that bearing in mind the terms of paragraph 16 in Al-Sirri, it is not simply a matter of the international impact of the act or acts in question but also in play are issues concerning the gravity of the act, the manner in which it is organised, its long-term objectives and the implications for international peace and security. As was said by the Court of Appeal at paragraph 83, the test is whether the "resulting acts have the requisite serious effect". That is a direct quotation from paragraph 40 in Al-Sirri.

35. We do not therefore accept that it is necessary to show that particular people have been influenced by the writings of the appellant. We see relevance to the points raised by Mr O'Connor in the context of the test which we have to apply. We found, and the Court of Appeal did not disagree, that the language used by the appellant is such that it can properly be characterised as explicit direct encouragement or incitement to acts of terrorism. It is not just a matter of a single sermon unlike the situation of the teenager, but a whole series of sermons over a lengthy period of time. We also agree that there is significance to the timing of the posting of several of these sermons for example on the day of the death of Osama bin Laden, in a tribute to Al-Awlaki two weeks after his death, and a tribute to Al-Libi, posted on the first anniversary of 9/11 and a tribute to Bin Laden posted on the second anniversary of his death. The timing can properly be regarded as careful and calibrated, as suggested by Mr O'Connor.

36. The second factor is the appellant's self-description as being a scholar and a man of intellectual authority. The Court of Appeal accepted that the context and presentation of the postings was of significance. In relation to paragraph 14 the website presented the appellant as a scholar and a man of intellectual authority with a Masters degree and a doctorate, both in respect of Islamic law, and the "character of Maqreze Centre for Historical Studies in London". It is reasonable to take his claims to seniority and authority as being intended to augment the impact of his incitements to violence on the intended audience.

37. As regards the third factor, the use of the internet, this is not an irrelevant factor albeit that it is the device that would be used by the teenager in the example. The point here is that the concerns of the Security Council in its Resolution as quoted above, involve increased use by terrorists and their supporters of communication technology for the purpose of radicalising to terrorism and recruiting and inciting others to commit terrorist acts including through the internet, must inevitably be a relevant factor. In the absence of the other factors it would of course not be determinative in the case of the teenager or indeed in anybody's case, but the fact that it would apply to him does not make it an irrelevant matter.

38. The next factor is that of the lengthy period of time during which the appellant made his incitements to terrorism available on the internet. Not only were they posted, they were left on the internet, and that is of relevance to the gravity of the appellant's conduct.

39. The next point is the evidence that his website had obtained hits ranging from 12,000 in a week to 80,000 over an undefined period. We take Mr Mackenzie's point that it is unclear who was reading what during this period, but the numbers are very significant, and the appellant, as argued by Mr O'Connor, has not taken the opportunity to try and argue for example that he has been able (or unable) to identify sources of interest and/or the posts of interest, and to say to what extent the sermons which have been found to be contentious were or were not read. His silence on the point is not without relevance. It comes back rather to the point we made earlier about the nature and meaning of the word "impact" in this context. It does not seem to us that what is involved here is something that is measurable or quantifiable but there is an abstract element to impact in this context and that is the fact of what the appellant said on a number of occasions and the longevity of those posts on his site and the number of people who visited his site and the implications of that for international peace and security. Once it is clear that it does not have to be shown that anybody ever in fact acted on the words of the appellant, there can be little if any room for any argument that anything tangible has to be seen to have been done. The impact in question is a more abstract kind of impact and this further factor, like the others in our view, is part of the cumulative impact of the appellant's words.

40. We return also to our point about the factors to be considered under paragraph 16 in Al-Sirri. The gravity of the acts in question is in our view significant given the nature of the words and the fact that they have been found to be contrary to the purposes and principles of the United Nations. The manner of organisation has been the use of the internet through posts which have had a wide reading. The long-term objectives have to be seen in the context of these matters being left on the internet for a long time and it is not irrelevant to bear in mind the timing of some of the postings. The implications for international peace and security are clearly significant. There does not, as noted, have to have been action taken by anyone in the sense of committing an offence or attempting to commit an offence as a consequence of anything said or done by the appellant but the implicit or explicit encouragement of such acts is sufficient. In our view there are clear and adverse implications for international peace and security as a consequence.

41. In conclusion therefore we consider that the gravity and seriousness of the appellant's conduct are such as to have the requisite serious effect as required by Article 1F(c) and as interpreted by the Supreme Court in Al-Sirri. Accordingly the Secretary of State's case is made out and the appellant's appeal is dismissed.

No anonymity direction is made.

Signed Date 5 March 2019

Upper Tribunal Judge Allen