Case No. UKUT-00137-(IAC)

1. The appellant is a national of Egypt . We note that an earlier anonymity order was rescinded on 5 May 2015, on the appellant's request. In a decision dated 26 November 2012 the respondent decided that he should be excluded from the protection of the Refugee Convention under Article 1F (c) , and also from humanitarian protection in accordance with paragraph s 33 6 and 339D of HC 395. I t was also decided that he would currently be at risk of torture or inhuman or degrading treatment or punishment in breach of Article 3 of the European Convention on Human Rights if he were to be returned to Egypt at the present time, and as a consequence he was granted limited leave to remain. 2. He appealed against that decision and that appeal was allowed by a panel of the First-tier Tribunal. A subsequent challenge to that decision was successful be for e a panel of the Upper Tribunal, which found an error of law in the First-tier Tribunal’s decision in its application of the test required in respect of Article 1F(c). A copy of that decision is attached to this judgment. The Upper Tribunal directed that the appeal should remain in the Upper Tribunal and hence the hearing before us today. As a consequence of a direction made by the Upper Tribunal, the respondent clarified, on 10 August 2015, the essence of her case , which is : that the appellant has knowingly incited and encouraged acts of international terrorism contrary to the purposes and principles of the United Nations and as a consequence he is excluded under Article 1F(c) from the protection the Convention would otherwise afford him. 3. The essence of the appellant’s history is set out at paragraph s 3 to 5 of Mr Mackenzie’s skeleton argument. The appellant claimed asylum on 6 May 1994 on the basis that he had been a defence lawyer in Egypt , working on behalf of political prisoners, and had been a political activist in his own right. He was detained and tortured on two occasions in 1981 and 1982. I n 1983 he was pressured by the S tate to speak out against his clients and when he refused to do so his office was destroyed and his files were stolen. He has been in the United Kingdom since 6 May 1994. He claimed asylum on arrival. On 13 September 1998 he was detained under the Prevention of Terrorism (Temporary Provisions) Act 1989, released four days later but rearrested on release on the basis that his detention pending a decision on his asylum claim was necessary in the interests of national security. On 23 December 1998 his claim for refugee status was rejected. The respondent acknowledged that his case was one which might ordinarily have led to a grant of asylum, but declined to do so on the basis that the appellant had been involved in terrorist activity. The UK Security Services assess ed him as being a senior member of Egyptian Islamic Jihad. On 18 April 1999 it was announced that he had been sentenced by an Egyptian military court to life imprisonment with hard labour, as one of the leaders of a revolutionary organisation. He has always denied these charges. His contention is that the conviction was tainted by the probable use of evidence obtained by torture. The rest of his immigration history is set out in detail at paragraphs 17-20 of the judgment of the Court of Appeal at [2014] EWCA Civ 1082. The essence of the conduct relied on b y the respondent to justify exclusion is that the appellant has incited and encouraged acts of terrorism, in particular, sermons and other ma terial that has been published o n the internet. 4. In essence there are two central issues before us, the latter contingent on the former. The first is a question of law. Much of the law in relation to this case is common ground, and we will set out that law shortly. The point of contention is, in essence the matter set out at paragraph s 29 to 33 of Mr Mackenzie’s skeleton argument as amplified by him in oral submissions. This is the argument that, in contending that the appellant “knowingly incited and encouraged” acts contrary to the purposes and principles of the United Nations, it is necessary to show that such acts have actually been committed or attempted. Mr O’Connor QC on behalf of the respondent disagrees entirely with this submission. If Mr Mackenzie is right, there is no need to go and consider the further issue, which we may for convenience describe as the evidential issue, that is whether the evidence relied on by the respondent (it being accepted that the respondent cannot show that relevant acts have actually been committed or attempted as a consequence of what has been said by the appellant) amounts to knowing incitement and encouragement to commit act s contrary to the purposes of the principles of the United Nations .