Youssef -v Secretary of State for the Home Departmen

Factual and Procedural Background

These linked cases concern appeals by two appellants against decisions excluding them from protection under the United Nations Refugee Convention 1951 ("the Refugee Convention") pursuant to Article 1F(c), on the basis that they were guilty of acts contrary to the purposes and principles of the United Nations.

The first Appellant, referred to as Appellant Y, is an Egyptian national who arrived in the United Kingdom in 1994. He was previously accused of involvement in Islamic terrorist activities, an accusation no longer maintained for these proceedings. However, he published sermons and materials glorifying Al Qaeda and its leaders on the internet. The Upper Tribunal (Immigration and Asylum Chamber) ("UTIAC") dismissed his appeal against exclusion from the Refugee Convention in 2016.

The second Appellant, referred to as Appellant N, believed to be a Jordanian national, entered the UK on a false passport in 2002. His asylum claim was refused, and he was convicted in 2007 under the Terrorism Act 2000 for offences related to terrorism, being sentenced as a sleeper agent for a terrorist organisation. His appeal against exclusion was heard by the Special Immigration Appeals Commission ("SIAC") due to national security concerns, which ruled against him in 2016. Appeals from SIAC to this Court are confined to matters of law.

Neither exclusion decision results in immediate removal or deportation. Both appellants have been granted restricted leave to remain in the UK under six-month periods, with deportation currently not pursued.

Legal Issues Presented

1. Whether acts falling short of completed or attempted terrorist acts, and without proven causation of such acts by others, can satisfy the exclusion threshold under Article 1F(c) of the Refugee Convention.
2. Whether individual responsibility under Article 1F(c) requires that the acts in question constitute crimes under international law or whether broader acts contrary to the purposes and principles of the United Nations suffice.
3. Whether the elements of individual responsibility are uniform across all limbs of Article 1F.
4. Whether the Upper Tribunal adequately considered the seriousness and international impact of the appellant’s conduct in applying Article 1F(c).

Arguments of the Parties

Appellant Y’s Arguments

• Individual responsibility under Article 1F(c) must arise from substantive criminal acts or attempts, not merely from encouragement or incitement absent evidence of resulting terrorist acts.
• The elements of individual responsibility should be consistent across all limbs of Article 1F, requiring proof of criminal conduct under international law.
• The Upper Tribunal erred in failing to assess whether mere speech, divorced from its impact on others, could itself be contrary to the purposes and principles of the United Nations.
• Argued that incitement or encouragement without evidence of effect is insufficient to justify exclusion.

Respondent’s Arguments

• Acts contrary to the purposes and principles of the United Nations under Article 1F(c) extend beyond crimes defined by international criminal law and include incitement, encouragement, planning, and financing of terrorism.
• Article 1F(c) is a distinct limb allowing exclusion for acts not necessarily constituting crimes under Article 1F(a) or (b).
• Legislative provisions, including the Immigration, Asylum and Nationality Act 2006 and the EU Qualification Directive, explicitly support a broad interpretation of acts contrary to the purposes and principles of the United Nations.
• The Upper Tribunal correctly found that the appellant’s conduct, including sustained internet postings glorifying and encouraging terrorism, met the exclusion threshold.

Appellant N’s Arguments

• Contended that exclusion under Article 1F(c) should not apply absent a completed or attempted terrorist act.
• Challenged the sufficiency of preparatory acts or possession of terrorist material to meet the threshold for exclusion.
• Relied on jurisprudence to argue that the gravity and international impact of acts must be carefully assessed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the scope of Article 1F(c) by reference to the text of the Refugee Convention, relevant UN Charter provisions, Security Council Resolutions, and UNHCR Guidelines. It acknowledged the high threshold required for exclusion, emphasizing that acts must fundamentally offend the purposes and principles of the United Nations and have an international dimension affecting peace and security.

The court rejected the appellant’s submission that exclusion under Article 1F(c) requires that the acts be crimes under international criminal law, noting that Article 1F(c) is distinct from Article 1F(a) and (b) and contemplates a broader range of acts including incitement and encouragement of terrorism.

In considering the conduct of Appellant Y, the court noted that his sustained internet postings glorifying and encouraging terrorism constituted acts contrary to the purposes and principles of the United Nations. However, it found that the Upper Tribunal had not sufficiently considered the gravity and international impact of these acts as required by the Supreme Court’s guidance in Al-Sirri. Accordingly, the court allowed Appellant Y’s appeal on this narrow procedural ground and remitted the matter for reconsideration.

Regarding Appellant N, whose conduct involved possession of detailed terrorist material and a conviction for terrorism offences, the court found no error in SIAC’s decision to exclude him under Article 1F(c). His appeal was dismissed.

The court also addressed the effect of EU and domestic legislation, recognizing the Qualification Directive and the Immigration, Asylum and Nationality Act 2006 as supporting a broad interpretation of Article 1F(c) in English law, but reaffirmed that the Convention must retain a single autonomous meaning.

Overall, the court emphasized the need for a fact-specific, rigorous assessment of the seriousness, international impact, and gravity of the acts relied upon for exclusion under Article 1F(c).

Holding and Implications

The court made the following rulings:

• Appellant Y’s appeal is ALLOWED on the narrow procedural ground that the Upper Tribunal did not sufficiently consider the gravity and international impact of his conduct before applying Article 1F(c). The case is REMITTED to the Upper Tribunal for reconsideration consistent with this judgment.
• Appellant N’s appeal is DISMISSED, affirming SIAC’s decision to exclude him under Article 1F(c).

The direct effect is that Appellant Y’s exclusion from the Refugee Convention requires further assessment of the seriousness and international repercussions of his conduct, while Appellant N remains excluded. No new legal precedent is established beyond clarification of the application of Article 1F(c) and the requirement for careful consideration of the gravity of acts in exclusion cases.