When asylum seekers commit war crimes

17 December 2010 by Catriona Murdoch

Secretary of State for the Home Department v DD (Afghanistan) [2010] EWCA Civ 1407 (10 December 2010) – Read judgment

It is a sometimes controversial aspect of immigration law that asylum seekers facing a real risk of persecution will nevertheless be denied the protection of the Refugee Convention, through the application of Article 1F of that Convention.  One of the bases for exclusion from protection is Article 1F(c), which applies where a person “has been guilty of acts contrary to the principles of the United Nations”. How does a court decide such cases?

The Court of Appeal has reversed the decision of the Asylum and Immigration Tribunal (AIT) in a case involving an Afghani asylum seeker. The AIT had ruled that Article 1F did not apply, and so DD was entitled to refugee status.  The AIT’s conclusion was reached despite DD admitting a history of involvement with organisations engaged in violent activities against the Afghan Goverment and UN-mandated forces:  Jamiat-e-Islami, the Taliban, and Hizb-e-Islami. The Home Secretary’s appeal was allowed and the case was remitted to the AIT for a limited reconsideration.

DD, the Respondent, is a citizen of Afghanistan who arrived in the UK in 2007. His claim before the AIT was based on the fact that were he to be returned to Afghanistan he would face a real risk of harm amounting to persecution in breach of both the Geneva Convention relating to the Status of Refugees (1951) (the “Refugee convention”) and contrary to Article 3 of the European Convention on Human Rights (ECHR) which prohibits torture, inhuman or degrading treatment.  The AIT found that both aspects of his claim (i.e. under the Refugee Convention and the ECHR) were made out, in that there were substantial grounds for believing that he would be exposed to serious harm on return, amounting to both persecution in breach of the Refugee Convention and mistreatment in breach of Article 3.  That finding was not not challenged by the Secretary of State.  The point on appeal was purely as to whether Article 1F excluded the claim under the Refugee Convention.  It seems clear that, regardless of the outcome of that dispute, the AIT’s unchallenged findings mean that return would be prevented by the operation of the ECHR.

The Refugee Convention provides that it shall not apply in circumstances prescribed in Article 1F, one of which is if a person is guilty of having committed:

“[a]cts contrary to the purposes and principles of the United Nations.” (Article 1F(c) of the Convention)

The principle behind the exemptions provided in Article 1F generally, and Article 1F(c) in particular, is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of an instrument designed to protect those refugees.

Several terrorist organisations

DD had freely admitted to a history of involvement with organisations such as the Taliban, Jamiat-e-Islami and Hizb-e-Islami. These organisations were fighting both the Afghan Government forces and foreign forces including UN authorised forces. He was the brother of a prominent Commander in Afghanistan who was killed in an attack in Pakistan in 2004, and this was a significant factor in leading the AIT to conclude that there were:

“[r]eal fears about risk to himself or facing serious harm from his family’s political history more particularly his elder brother with Jamiat-E-Islami followed by the Taliban, and that the “settling of scores” remained unfinished”.

The Secretary of State relied upon the Immigration, Asylum and Nationality Act 2006 which further clarified that terrorist acts (committing, preparing or instigating) will be taken to be contrary to the purposes and principles of the United Nations. The thrust of SSHD’s submissions was that DD had committed terrorist acts and had therefore “disentitled himself to protection”.

Counsel for DD argued that his involvement in military action ceased before the 2006 act came into force as legislation in this country and therefore should not have a retrospective effect.

In addition they argued, and the AIT agreed, that there was no specific evidence about DD’s actions or incidents. DD claimed he was merely following orders to forcefully resist occupation, against both Afghan forces and UN forces.  Counsel for DD sought to rely on this to show that there is a clear distinction between military activity and terrorism and that not all incidents of military action will be deemed to be contrary to the purposes and principles of the United Nations. (see KJ (Sri Lanka) v Secretary of State for the Home Department)

The Court of Appeal was prepared to accept that KJ (Sri Lanka) was authority for the proposition that military action against the armed forces of the Government does not as such constitute terrorism or acts contrary to the purposes and principles of the UN (para 55 of the judgment).  It considered that the AIT had made no findings of terrorist acts, as distinct from armed action against the authorities.

Contrary to UN principles

It then remained for the Court to rule whether non-terrorist acts directed against UN forces are acts contrary to the purposes and principles of the UN as defined in the Refugee Convention. It was argued by the Respondent, relying upon United Nations High Commission for Refugees Guidelines, that to be held responsible for an act deemed contrary to the UN’s purposes and principles, a respondent would have to make a “substantial contribution”. In addition these guidelines state:

“Given the broad, general terms of the purposes and principles of the United Nations, the scope of this category is rather unclear and should therefore be read narrowly… Article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international community’s existence”. (UNHCR Guidelines on International Protection in relation to article 1F of the Refugee Convention. (4 September 2003)

The Court of Appeal disagreed and held that:

“[t]he UN Charter is a living instrument and that the range of activities subsequently conducted under the auspices of the United Nations requires that the words be given a less limited construction”.

Accordingly the Court of Appeal found that military action against the International Special Assistance Force in Afghanistan, a force mandated to assist in maintaining security in Afghanistan, would be contrary to the purposes and principles of the UN, and so lead to the application of Article 1F(c). The Court stated that this was not a general principle that “violence against anyone bearing UN colours anywhere is necessarily action contrary to the purposes and principles of the United Nations” as situations will differ, and each will require specific analysis (paragraph 65 of the judgment).

The Court of Appeal has sent the case back to the AIT to reassess DD’s conduct and decide whether the Respondent’s conduct was contrary to the purposes and principles of the UN.  That reconsideration did not extend to revisiting the issue of whether DD had been involved in terrorism, that issue having been determined in his favour by the Court of Appeal’s view of the findings made by the original AIT.

A hard call

It is not possible to derive from this case any clear principle that action against UN forces will inevitably constitute conduct within Article 1F(c).  Nevertheless, in practice, it seems likely that it will do so, notwithstanding the Court of Appeal’s indication that different situations will each require specific analysis.  However, the future may hold further debates (even in Afghanistan, as and when the political situation changes) as to what it means for an act to be “contrary to the principles” of the United Nations.

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