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UPPER TRIBUNAL DECIDES THAT REFUGEE STATUS IS TO BE GRANTED AFTER 20 YEARS OF LEGAL WRANGLING

Posted by: Gherson Immigration

UPPER TRIBUNAL DECIDES THAT REFUGEE STATUS IS TO BE GRANTED AFTER 20 YEARS OF LEGAL WRANGLING

In the case of Al-Sirri v SSHD the Upper Tribunal told an Appellant, who remarkably first sought asylum in the UK more than 20 years ago, that he would finally be granted refugee status.

The Appellant was alleged to have been involved in an assassination of an Afghan man by a terrorist group and the Home Office excluded him from the Refugee Convention under Article 1F(c). Article 1F(c) states that:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(c) He has been guilty of acts contrary to the purposes and principles of the United Nations

The meaning of 'serious reasons' and the scope of 1F(c) had been decided by the Supreme Court in a case that the Appellant had been party to. The Supreme Court had enunciated three guiding principles:

(i) First, Article 1F of the Refugee Convention is to be interpreted narrowly and applied restrictively.

(ii) Second, Article 1F(c) applies to acts which, even if they are not covered by the definitions of crimes against peace, war crimes or crimes against humanity as defined in international instruments within the meaning of Article 1F(a), are nevertheless of a comparable egregiousness and character, such as sustained human rights violations and acts which have been clearly identified and accepted by the international community as being contrary to the purposes and principles of the United Nations.

(iii) In determining whether there are serious reasons for considering that the person concerned had individual responsibility for acts within the scope of Article 1F(c), there must be "an individualised consideration of the facts of the case, which will include an assessment of the person's involvement in the act concerned, his mental state and possible grounds for rejecting individual responsibility."

The Appellant had been investigated by the police, in connection with of his links to the assassination attempt and charged with conspiracy to murder. They were, however, unable to prosecute the Appellant and the charges were dropped or dismissed. Despite this, the Home Office argued before the First-tier Tribunal that the Appellant should still be excluded from the Refugee Convention.

The First-tier Tribunal found that the Home Office had not discharged the burden of proof and allowed the Appellant's appeal. The Home Office applied to the Upper Tribunal on the basis that the First-tier Tribunal had erred in the way it had approached the Appellant's failure to accede to a request for a further interview and his failure to give evidence before the First-tier Tribunal; erred in it's approach to the standard of proof; and misunderstood the grounds of evidence. The Upper Tribunal rejected all three of these grounds.

The case is a particularly stark example of how protracted immigration proceedings can become, and the lengths to which the Home Office is willing to go when national security considerations are in play.

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