Al Sirri v Secretary of State for the Home Department; DD v Secretary of State for the Home Department [2012] UKSC 54
Tim Eicke Q.C., leading Iain Quirk and Jonathan Auburn of 4-5 Gray’s Inn Square and instructed by the Treasury Solicitor, successfully defended the Secretary of State in these two appeals, in which the Supreme Court handed down judgment on Wednesday, 21 November 2012.
Both cases concerned individuals whom the Secretary of State seeks to exclude from refugee status on the basis that there are “serious grounds for considering” that they have been engaged in acts of terrorism (as defined in the Terrorism Act 2000) and are therefore guilty of “acts contrary to the purposes and principles of the United Nations” within the terms of Article 1F(c) of the Refugee Convention and Article 12(2)(c) of he EU Qualification Directive. The bases for the Secretary of State’s decision in these cases were the appellants’ involvement (which he denies) in the assassination of General Masoud, Leader of the Norther Alliance, in Afghanistan on 9 September 2001 and his role in insurgent attacks on the International Security Assistance Force in Afghanistan (ISAF) respectively.
In its judgment, the Supreme Court again confirmed that there could only be “one true interpretation” of the Refugee Convention and, having heard detailed submissions on the comparative and international law and jurisprudence on Article 1F(c) of the Refugee Convention and Article 12(2)(c) of the EU Qualification Directive over four days, provided guidance on a number of important aspects of the application of these exclusion provision. These include:
- the general (restrictive) approach to such exclusion clauses and the question whether an individual falls to be excluded thereunder;
- the relationship between the various grounds of exclusion contained in Article 1F and/or Article 12(2);
- the threshold and standard of proof to be applied to the requirement of “serious reasons for considering”; as well as
- the relationship between “acts contrary to the purposes and principles of the United Nations” and the definition of “terrorism” in domestic law and the need for an “international dimension” (and the approach to that concept) necessary to engage the concept of “purposes and principles of the United Nations”.
Finally, the Supreme Court considered in some detail the submissions made by the parties (including UNHCR as an intervener) concerning the international legal regime (including international humanitarian law) governing the involvement of the international community in Afghanistan and confirmed that, as a matter of law and common sense, an attack on ISAF is in principle capable of being an act “contrary to the purposes and principles of the United Nations” sufficient to justify exclusion from refugee status.
