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Court of Appeal rejects attempt by Secretary of State to broaden refugee exclusion categories

Tuesday 12 January 2021

Amanda Weston QC of Garden Court Chambers and Anthony Vaughan of Doughty Street Chambers represented NF, instructed by Jawaid Luqmani of Luqmani Thompson Solicitors.

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NF, a Kenyan national came to the UK on limited leave as a student (following the expiry of which it would have been open to the Secretary of State to remove him if he did not depart voluntarily). NF was however convicted in the UK of downloading material prohibited by s 58 Terrorism Act 2000 and sentenced to 9 months’ imprisonment. He claimed asylum and the Secretary of State had to accept that as a consequence of the ‘terrorist’ profile he had been given by the UK authorities and the publicity associated with his conviction he was now at risk of persecution in Kenya. However, the Secretary of State sought to exclude him from the protection of the Refugee Convention under article 1F(c) i.e. that he was guilty of acts contrary to the purposes and principles of the United Nations. 

The First-tier Tribunal rejected the Secretary of State’s argument that this form of ‘passive’ conduct was sufficient to meet the threshold of sufficient gravity for exclusion and allowed NF's appeal. The Upper Tribunal agreed and rejected the Secretary of State’s appeal.  The Court of Appeal granted permission to the Secretary of State but was ultimately unpersuaded that either Tribunal got it wrong. Although framed as an argument that the FTT had asked itself the 'wrong question’ this was in truth an attempt to broaden significantly the types of conduct that can justify exclusion under article 1F(c) and the scope of the principles set out by the Supreme Court in Al-Sirri. 

The court in rejecting the Secretary of State’s appeal re-iterated the principle that the gravity and seriousness of the conduct in question and not only the type of conviction must be carefully considered, Consequently a conviction for an offence labelled as “terrorist” was not of itself sufficiently grave and serious such that it could have had an effect upon international peace, security and relations between states and the label of the type of offence is not of itself sufficient to warrant exclusion from protection.

The full judgment can be read here.

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