Exclusion from asylum

13.2.4 Article 1F(c): Acts contrary to purpose and principles of UN

Youssef v Secretary of State for the Home Department [2018] EWCA Civ 933 has given guidance on exclusion under Article 1F (c) in a case where no terrorist act had actually been committed. There were two appellants, Mr Youssef and N2.

The issue in both appeals was:

Whether acts may be sufficient to satisfy the threshold for exclusion from the Convention under Article 1F(c), where those acts were neither themselves completed or attempted terrorist acts, nor can they be shown to have led to specific completed or attempted terrorist acts by others. (CA para 33)

Mr Youssef published speeches, sermons and commentaries, and it was the content of these which led to his exclusion from refugee status. He praised and glorified the acts of named leaders of Al-Qaida and others who had been held responsible for major acts of terrorism, and encouraged others to follow them. It was not claimed that Mr Youssef had incited or encouraged any specific act of violence. It was accepted that no specific link could be made between his words and specific terrorist acts. The website on which he published received between 12,000 and 80,000 hits per week.

Mr Youssef’s grounds of appeal were

i. The Upper Tribunal erred in finding that individual responsibility for acts falling within Article 1F(c) can arise solely by…implicit or explicit encouragement… in the absence of evidence that an offence has been committed or attempted as a consequence...

ii. The Upper Tribunal erred in finding that the elements of individual responsibility are not the same under all three "limbs" of Article 1F.

iii. In the alternative, if…the Upper Tribunal held that HY was excluded…on the basis that his own conduct in publishing the speeches and sermons […] was sufficient…to engage Article 1F(c), the Upper Tribunal erred in failing to make any findings:

(a) on whether mere speech could in itself be contrary to the purposes and principles of the United Nations; and/or

(b) about how HY's speech in itself …had the requisite impact on international peace and security. (CA para 16).

N2 had been convicted on six counts of offences related to terrorism. These included possessing ‘an organisational chart for the establishment of terrorist cells and detailed and genuine instructions in relation to the making of harmful chemicals, explosive substances, detonators, explosive devices and bombs and the placing of such devices and the targeting of particular premises, public places and public figures’ (CA para 27, quoting the judge in the criminal case).

It was accepted that the acts of terrorism which must have been contemplated would have come within Article 1F(c) (and indeed Article 1F(a)). The argument centred on whether acts preparatory for, but falling short of, either attempts or completed terrorist attacks, were sufficient to satisfy the requirements of Article 1F(c) and so to exclude him from refugee status.

The Court of Appeal considered the effect of the Supreme Court’s guidance in Al-Sirri. The acts must be sufficiently serious, and ‘capable of affecting international peace and security.’ (CA para 83) 

The Court of Appeal held that exclusion under Article 1F(c) did not require criminal responsibility under international law. To require that would make Article 1F(c) the same as Article 1F(a). It required that ‘acts’ were ‘contrary to the purpose and principles of the United Nations.’  The UN Security Council declaration of 2014 was explicit about such acts. N2’s conduct clearly fell within these acts, so that it was lawful to exclude him from refugee status.

In the case of Mr Youssef, the Court held that words which had the content and requisite international effect, as his did, were capable of founding exclusion from refugee status under Article 1F(c). No actual terrorist act as a consequence of his words was necessary in order to found exclusion. They remitted the case to the Tribunal for the Tribunal to consider the seriousness of his conduct in the light of the correct approach.