Case No. UKUT-00137-(IAC)

v Secretary of State for the Home Department [2012] UKSC 54 , the Supreme Court provided helpful guidance on the nature and ambit of Article 1F(c). Having considered a number of authorities including Pushpanathan v Canada, Minister of Citizenship and Immigration (Canadian Council for Refugees I nterve ning) [1998] I S CR 982 and Bundsrepublik Deutschland B and D (joined cases C-57/09 and C-109/09), [2011] Imm AR 190, the court set out some conclusions as to the correct approach to Article 1F(c) as follows: “ 16. In our view , this is the correct approach. T he a rticle should be interpreted restrictively and applied with caution. There should be a high threshold ‘defined in terms of the gravity of the act in question, the manner in which the act is organised, it s international impact and long- term objectives , and the implication for international peace and security’. And there should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character.” 10. The court went on at paragraph 36 to emphasis that it is clear that the phrase “a cts contrary to the purposes and principles of the United Nations ” must have an autonom ous meaning, emphasising that it could not be the case that individual member states were free to adopt their own definitions. Guidance given by the UNHCR was not binding but should be accorded considerable weight. The court endorsed what had been said by Sedley LJ in the Court of Appeal [2009] EWCA Civ 222 that: “ the adoption by s ection 54(2) of the 2006 Act of the meaning of terrorism contained in the 2000 Act has where n ecessary to be read down in an a rticle 1F(c) case so as to keep i ts meaning within the scope of a rticle 12(2)(c) of the Directive”. 11. The court thought it appropriate to adopt paragraph 17 of the UNHCR guidelines: “Article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international community’s co-existence. Such activity must have an international dimension. Crimes capable of a ffecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights would fall under this category.” 12. At paragraph 39 the Supreme C ourt went on to note that the essence of terrorism was the commission, organisation, incitement or threat of serious acts of violence against persons or property for the purpose of intimidating a population or compelling a government or international organisation to act or not to act in a particular way. The court thought it was very likely that inducing terror in the civilian population or putting such extreme pressures upon a government would also have the international repercussions referred to by the UNHCR. 13. Subsequently, in its attempt to discern the autonomous meaning of the words “serious reasons for considering” the court drew the following conclusions, at p aragraph 75: “(1) ‘S erious r easons’ is stronger than ‘reasonable grounds’. (2) The evidence from which those reasons are derived must be “clear and credible” or ‘ strong ’ . (3) ‘Considering’ is stronger than ‘ suspecting ’ . In our view it is also stronger than ‘believing’. It requires the considered judgment of the decision - maker. (4) The decision- maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law. (5) It is unnecessary to import our domestic standards of proof into the question. The circumstances of refugee claims, and the nature of the evidence available, are so variable. However, if the decisio n- maker is satisfied that it is more likely than not that the applicant has not committed the crimes in question or has not been guilty of acts contrary to the purposes and principles of the United Nations, it is difficult to see how there could be serious reasons for considering that he had done so. The reality is that there are unlikely to be sufficiently serious reasons for considering the applicant t o be guilty unless the decision- maker can be satisfied on the balance of probabilities that he is. But the task of the decision maker is to apply the words of the Convention (and the Directive) in the particular case.” 14. It is also relevant to note what was said about individual responsibility at paragraph 15 in Al-Sirri . The court said that in establishing that there are serious reasons for considering that the person concerned had individual responsibility for acts within the scope of Article 1F(c), this requires 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. As a general proposition, individual responsibility arises, it was said, where the individual committed an act within the scope of Article 1F(c) or participated in its commission in a manner that gives rise to individual responsibility, for example through planning, instigating or ordering the act in question, or by making a significant contribution to the commission of the relevant act, in the knowledge that the act or o mission would facilitate the act. 15. Mr Mackenzie argued that exclusion must be based on an intention not only to carry out or contribute to a particular act but also to carry out or contribute to an act of a quality which bring s it within Article 1F. He went on to argue that the Supreme Court in Al-Sirri c ould not have been indicating that incitement falling short of active involvement in a completed or attempted crime could come within Article 1F(c). 16. In t his regard Mr Mackenzie attached weight to the position in intern ational criminal law, and to what was said by the Supreme Court in