Case No. UKUT-00137-(IAC)

[2012] EWCA Civ 395), which resulted in the remittal to the UT, that there was an issue in considering the standard of proof; the focus of debate was on the word “serious”. In any event, the UT at paragraph 82 correctly states the test in the first sentence. It is repeated in their conclusion at paragraph 102. The UT were able in that case to answer the question whether or not the test was met by asking themselves whether or not it was more probable than not that the appellant personally participated in the crime. That was no doubt the correct approach given the evidence in the case and the issue which was whether or not the appellant had personally participated in a serious crime. 18. Turning to the present case and adopting the analysis, it is clear in our view that the FTT did not apply the correct test. While they correctly quote the relevant passage from Al-Sirri it appears to us that they misinterpreted what it said. There is no evidence in paragraphs 18 or 34 of the determination that they applied the words of the Convention as they are required to do. Moreover they appear to have considered that the “required” test is higher than the balance of probabilities. Whatever else may be said about the comparison between the civil standard of proof and the test in Article 1F(c) there is no authority that supports such an approach. 19. Accordingly we are satisfied that there is an error of law and that the appeal by the Secretary of State should be allowed.