Case No. UKUT-00448-(IAC)

(1) This section applies to an asylum appeal where the Secretary of State issues a certificate that the appellant is not entitled to the protection of Article 33(1) of the Refugee Convention because– (a) Article 1(F) applies to him (whether or not he would otherwise be entitled to protection), or (b) Article 33(2) applies to him on grounds of national security (whether or not he would otherwise be entitled to protection). (2) In this section– (a) ‘ asylum appeal’ means an appeal– ( i ) which is brought under [section 82 of the Nationality, Immigration and Asylum Act 2002 (c. 41)] or section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68), and [(ii) which is brought on the ground mentioned in section 84(1)(a) or (3)(a) of that Act (breach of United Kingdom 's obligations under the Refugee Convention), and] (b) ‘ the Refugee Convention’ means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951. (3) The [First-tier Tribunal] or the Special Immigration Appeals Commission must begin substantive deliberations on the asylum appeal by considering the statements in the Secretary of State's certificate. (4) If the Tribunal or Commission agrees with those statements it must dismiss such part of the asylum appeal as amounts to an asylum claim (before considering any other aspect of the case). (5) Section 72(10)(a) of the Nationality, Immigration and Asylum Act 2002 (serious criminal: Tribunal or Commission to begin by considering certificate) shall have effect subject to subsection (3) above. [(5A) Subsections (3) and (4) also apply in relation to the Upper Tribunal when it acts under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.] (6) Section 33 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (certificate of non-application of Refugee Convention) shall cease to have effect.” The certificate made by the Secretary of State is in the following terms: “ With all the evidence considered, it is concluded that there are serious reasons for considering that you committed acts contrary to the purposes and principles of the United Nations. … With all the evidence considered, for the above reasons there are serious reasons for considering that you have committed an act contrary to the principles and purposes of the United Nations and therefore you are excluded from a grant of Refugee Status as you do not qualify under Article 1F(c). ” The FtT continued: “ The effect of the certificate is that the issue we are required to determine is a narrow one. We must consider the certificate first and, if in agreement with the statements contained in it, we are required to dismiss the asylum grounds of appeal. ” The evidential matrix had two basic components. First, there was a substantial quantity of documentary evidence, certain aspects whereof we have highlighted above. Second, the FtT heard evidence from Detective Chief Inspector Dingemans . 10.The FtT also noted, inter alia, the circumstances in which the charge against the Appellant of conspiracy to murder came to a conclusion. It is evident that an application was made to have the charge dismissed on the basis that the evidence was insufficient to warrant putting the Appellant on trial. The Common Serjeant of the Old Bailey acceded to this application, as recorded in the decision of the Supreme Court, at [23]: “ The Common Serjeant concluded that the evidence was as consistent with the innocence of the Accused (who had made no secret of his authorship of the templates which could easily be traced to him and had not destroyed any of the relevant documentation in his possession) as it was with his guilt. Accordingly, on 16 May 2002, he dismissed the charge on the ground that the evidence would not be sufficient for a jury properly to convict. ” The FtT formulated its task in the following terms: “ Conscious of the need to avoid over-simplification, the critical issue between the parties is this: has the Appellant been shown to have been sufficiently involved in the assassination …. to show in turn that he falls to be excluded from the Refugee Convention under Article 1F(c) or, on the other hand, has such involvement not been shown and, further, may he be properly described as a person (one of many, perhaps) innocently duped by the real actors in the plot? ” 11.The FtT made the following specific findings and conclusions: (i)The “international dimension required for the purposes of Article 1F(c)” is present.(ii)The assassination in question was the product of “an internationally co-ordinated attack”.(iii)The evidence did not show any direct link between the assassination and the attacks in the United States two days later: however, this nexus was not necessary to demonstrate the international dimension of the assassination.(iv)There was no forensic link between the letters found at the scene of the assassination and the items recovered from the Appellant’s home subsequently. (v) The “ Osman letter” does not amount to “ significant evidence that Osman and the Appellant were involved in activities which, presumably to safeguard Osman in some way, led to the request that the Appellant destroy letters ”, particularly since the Appellant made no attempt to either destroy or conceal the documents. (vi) There was nothing sinister about the Appellant’s possession of £3,000 in cash. (vii) The letters of introduction recovered from the scene, which were of central importance in the assassination, were forgeries of the documents found at the Appellant’s home. The inclusion of particulars of the Appellant and the IOC in the documents concerned “ … falls short as reliable evidence of the Appellant’s involvement in the conspiracy as a conscious and knowing agent ”. (viii) Substantial support for the Appellant’s account was provided by the evidence of AM, which the Tribunal accepted. (ix) The evidence of the Appellant’s interviews, including his demeanour, “ falls short of showing that the Appellant was a conspirator involved in the plot, rather than an innocent dup e ”. (x) Some of the publications recovered from the Appellant’s home were undoubtedly extreme, radical and would cause outrage to many. However, this constituted at most “ circumstantial evidence of the Appellant’s sympathy for extremist views and support for Jihad but it does not go further and does not overcome the absence of reliable evidence that he was involved in the assassination …. other than indirectly and innocently ”. (xi) The same assessment of the “military manuals” was considered appropriate by the Tribunal. (xii) The Appellant gave detailed explanations during his police interviews. These were “ capable of dispelling the suspicion that he had been involved in terrorism ” as noted by the Court of Appeal: see [2009] EWCA Civ 222, at [67], per Sedley LJ. No substantial new evidence had emerged since the interviews. While the Appellant had not given evidence to the Tribunal and had refused to attend further interview by the Secretary of State’s agents, this constituted no more than “an adverse factor of modest weight ”. The appeal was allowed accordingly.