Case No. UKUT-00448-(IAC)

must be clear and credible evidence of the offending conduct, and the overall evaluative judgment involves the application of a standard higher than suspicion or belief. DECISION AND REASONS INTRODUCTION 1.While this is the appeal of the Secretary of State for the Home Department (the “Secretary of State”), we shall, for convenience, continue to describe Mr Al-Sirri as the Appellant.2.From Appendix 1, the “Chronology of Events”, one quickly discerns the protracted and moderately complex history of this appeal. In brief compass, the Appellant is a national of Egypt, now aged 53 years. Upon entered the United Kingdom in 1994, accompanied by his spouse and four children, the Appellant made an application for asylum which was refused some six years later on the basis that he was excluded from the protection of the Refugee Convention by reason of Article 1F(c) thereof. Some 22 years after his arrival, the Appellant continues to reside in the United Kingdom. His interaction with the U.K. legal system dates from September 2006. During the ensuing period, the landmark events in the litigation calendar have included the decision of the Supreme Court, promulgated on 21 November 2012; see Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54.3.The effect of the decision of the Supreme Court was to require a fresh hearing of the Appellant’s appeal by the First-tier Tribunal (the “FtT”). The period thereafter was punctuated by case management review hearings, much inter-partes correspondence, debates about disclosure, exchanges regarding a proposed further interview of the Appellant by the Secretary of State’s agents and, ultimately, a fresh decision by the Secretary of State dated 10 January 2014. This represents the current, active decision which culminated in the decision of the FtT now under appeal. THE REFUGEE CONVENTION 4.By Article 1A(2) of the Refugee Convention, a person qualifies for refugee status if – “ …. owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, [he] is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …. ” Article 1F provides: “ The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes. (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. (c) He has been guilty of acts contrary to the purposes and principles of the United Nations. ” The operative provision in this case is Article 1F(c). THE SECRETARY OF STATE’S DECISIONS 5.On 30 April 1994, upon arrival in the United Kingdom, the Appellant claimed asylum. His application was, ultimately, refused on 11 October 2000. By a supplementary decision dated 31 March 2004 the original decision was affirmed. This was followed by a fresh decision dated 05 December 2006. The ensuing six years were occupied by proceedings before various courts and tribunals.6.The current, operative decision of the Secretary of State is contained in a letter dated 10 January 2014. This detailed letter is susceptible to the following breakdown: (a) The Appellant claimed that while in Egypt he was involved in Islamic charities with a view to implementing Sharia Law and establishing an Islamic regime in Egypt . This included public demonstrations and he was detained periodically. (b) In 1993 he was accused of the attempted murder of the Egyptian Prime Minister. This was the impetus for his flight to the United Kingdom . (c) The basis of the Appellant’s claim for asylum is his fear that if repatriated to Egypt he will be murdered by the regime. (d) On 29 October 2001 he was charged with conspiracy to murder the leader of the “Afghan Northern Alliance” (whom we shall call “ASM”), who had been killed in Afghanistan on 09 September 2001, which charge was withdrawn some months later. (e) The decision continues: “ It has therefore been considered whether the act of conspiracy to murder [ASM] was an act that attacked the very basis of the international community’s co-existence, whether it had an international dimension and whether the crime was capable of affecting international peace, security and peaceful relations between states. This has been assessed in light of the international repercussions of the murder. ” (f) ASM was the established leader of the anti-Taleban forces in Afghanistan and his murder was perpetrated by Al-Qaeda, a proscribed terrorist group which has been held responsible for the terrorist attacks in the United Kingdom on 11 September 2001. (g) Since the late 1990s, Al-Qaeda has been considered “ the most infamous worldwide terrorist organisation ”. (h) ASM was a towering figure in the war between the Taleban and the Northern Alliance : “ It is considered that his elimination from [this conflict] had a significant impact on the conflict and on the course of the war. The terrorist attacks in the US on 11 September 2001 and the subsequent involvement of the US in the war demonstrate not only the international impact of the conflict but, in the elimination of the most prominent anti-Taleban leader, the international impact of his murder. Therefore the event of the murder of [ASM] had a significant international dimension. The background information indicates that the impact was that it was more difficult for the US to inflict a decisive defeat against Taleban throughout Afghanistan in the absence of the unifying force and military capability of [ASM].” (i) The above is the preface to the following conclusion: “ It is therefore considered that the murder of [ASM] was an act of terrorism of such gravity and international impact, committed by a terrorist group of worldwide notoriety, that it was clearly against the principles and purpose of the United Nations outlined under Article 1F(c) of the Refugee Convention, as interpreted in the judgment of the Supreme Court. ” (j) The decision then discusses the Appellant’s “ alleged role ” in the murder in question: “ It is noted that you have been accused of providing a letter of introduction to the perpetrators of the murder of [ASM] . It is considered that this allegation, if proven , amounts to organising a terrorist act. Careful consideration has been given to whether the evidence against you amounts to serious reasons for considering that you conspired to commit the murder …. The evidence that has been included in this consideration is that which was available to the criminal court when you were charged with conspiracy to murder [ASM] . Additionally, available circumstantial evidence has been included in this consideration. ” (k) The decision continues: “ The evidence contained in the attached Case Research and Analysis Report has been considered and its evidence and conclusions support the conclusions set out in this letter. ” (l) There follows a recitation of various items of documentary evidence: documents found in the possession of the assassins at the scene of the murder, which included in particular certain letters containing the Appellant’s particulars and prima facie linking him with a purported journalistic exercise, the object whereof was direct access to ASM; evidence of the police examination of the Appellant’s computer following his arrest on 23 October 2001; other documents found at the Appellant’s home at this stage; the Appellant’s statements to the police and the records of his police interviews. (m) Next, the decision maker notes the Appellant’s admission that he provided documentation to ASM’s assassins, who posed as journalists and his claim that he did so innocently without knowledge of the murder plot. The Appellant further claimed that the operation involved the creation of a broadcasting arm, Arab News International, of his organisation, the Islamic Observation Centre (“IOC”). This would provide the organisation with both news dissemination capacity and some profit. In return, the Appellant would provide the assumed journalists with letters of introduction and identity cards from IOC. (n) The decision maker notes that the Appellant was entirely passive in matters of broadcasting and news dissemination subsequently, thereby undermining the credibility of his explanation. The Appellant’s evident failure to check the credentials of the persons concerned is also highlighted. In addition, the Appellant’s failure to provide an explanation for a letter dated approximately one month preceding the murder requesting that he “ … get rid of all the letters which I sent you previously because you are aware of the circumstances ” is underlined, together with his continued assistance to the person concerned subsequently. Also highlighted was the Appellant’s failure to mention certain email exchanges during interview, indicative of the deliberate withholding of information concerning his involvement in the alleged murder conspiracy. (o) The decision maker then draws attention to the Appellant’s alleged failure to avail himself of opportunities to account for his conduct and the documents found in his possession and to answer the evidence against him, in particular by failing to give evidence at the initial tribunal hearing and refusing to attend a proposed interview with the Home Office. 7.The case against the Appellant is encapsulated in the following passage: “ As such it is considered that you deliberately provided documents for individuals posing as journalists to gain access to [ASM] . It is considered that your knowledge that they were not genuine journalists yet wanted to gain access to him means that you were aware that they wished to cause him harm. Therefore, it is considered that you conspired with others to murder [ASM].” The decision maker then considers evidence of the Appellant’s conduct in the publication and distribution of texts supporting terrorist. Attention is also drawn to the discovery in the Appellant’s home of a substantial quantity of press articles concerned an American military base in Saudi Arabia which was bombed in 1996, together with documents relating to two suspects which included passports and photographs, coupled with the Appellant’s refusal to answer questions about these documents during his police interview and to account for aerial photographs of an oil well in California and envelopes addressed to California and Texas, giving rise to a negative inference. Furthermore, he failed to account for the discovery at his home of military manuals and related documents, giving rise to the negative inference that he had in his possession material relating to terrorism for a sinister purpose. In addition, the decision alleged that the Appellant’s associates include the leadership of Gama Al Islamiya, a proscribed terrorist organisation and that through the IOC platform he defended one of those convicted in the United States of seditious conspiracy in relation to the 1993 World Trade Centre bombing.8.The decision expresses the following conclusion: “ 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). ” This is followed by an adverse assessment of the Appellant’s credibility under the auspices of section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. The decision maker made two further conclusions, namely that the principal decision did not entail any infringement of the Appellant’s rights under Article 8 ECHR and that discretionary leave was not considered appropriate. DECISION OF THE FtT 9.By its decision promulgated on 13 April 2015 the First-tier Tribunal (“FtT”) allowed the Appellant’s appeal. At the outset of its decision, the Tribunal noted the Secretary of State’s decision under section 55 of the Immigration, Asylum and Nationality Act 2006. Section 55 provides: “55 Refugee Convention: certification (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. PERMISSION TO APPEAL 12.Permission to appeal to this Tribunal was granted on the basis that all of the grounds of appeal are arguable. The grounds are the following: (i) The FtT erred in its approach to adverse inferences from the Appellant’s failure to answer questions or give evidence, adopting the wrong approach to section 8 of the 2004 Act. (ii) The FtT erred in law in its approach to the standard of proof, formulating the test correctly but applying it incorrectly. (iii) The FtT misstated and misunderstood certain material aspects of the evidence. PREVIOUS JUDICIAL DECISIONS 13.The Appellant was charged with conspiring with others unknown to murder ASM, contrary to section 1(a) of the Criminal Law Act 1977. An application was made to dismiss the charge. This resulted in a ruling by the Common Serjeant of the Old Bailey, dated 16 May 2012. The test applied was formulated thus: “ In short, the Court is required to take into account the whole of the evidence against the applicant and to decide whether it is satisfied that it is sufficient for a jury properly to convict. ” The first part of the ruling was that there was a sufficiency of evidence from which the jury could find proven that ASM was murdered by persons identified as Touzani and Bakkali and, further, that the letter of introduction emanating from the Appellant’s organisation, the Islamic Observation Centre (“IOC”), played a part in securing the interview at which the assassination was carried out. The Common Serjeant then posed the following question: “ Third, the question remains – and it is determinative of the application – is the [ there ] evidence of the writing of the letters of introduction by the [Appellant] – strictly speaking, the creation of them by means initiated by him …. sufficient to permit the interference to be drawn, so that the jury is sure, that in doing so he was a knowing party to the murder … that is to say, at the time of writing them or, as indicated, causing them to be written he knew that they were intended for use in securing an interview with the General at which it was intended that the General should be killed? ” To this question the Judge supplied a negative answer. He ruled that the evidence was insufficient. He considered that inferences consistent with the Appellant’s innocence could not be safely excluded. In particular, the conclusion that the Appellant was “ an innocent fall guy ” could not be disregarded. The Common Serjeant identified two additional factors of significance. First, the Appellant’s position as “ a highly visible figure in the Muslim world, thus providing a trail which led back to him ”. Second, the Appellant had made no attempt either to abscond or to destroy documentary evidence at his home and office potentially incriminating of him. 14.Given the thrust of the Secretary of State’s appeal, it is necessary to draw attention to two further passages in the ruling of the Common Serjeant. First: “ … The two letters in fact carried by the assassins are proved to be, as [Counsel] characterised them, careful and elaborate forgeries of the letters that the [Appellant] created …. ‘Elaborate’ because they included the use of the forged rubber stamps … ‘Careful’ because they involved – the forgery that is – back dating what was created in order to fit into a forged trail that had been created for [the assassins] in their passports, supported by the visas within them. ” And in a later passage: “ …. It is common ground that the [Appellant] cannot have created his letters before, at the earliest, 28 July, and more likely 29, it is in my judgment consistent with [the assassins] using the letters created by the [Appellant] as the template for the documentation that they were to forge, thus using the [Appellant] as an innocent fall guy and furthermore one who could, if necessary, provide very similitude to the cover that was created for the assassins, as it is with the irresistible inference that at the time he provided his letters, by inference, he …. knew that they were intended to be used for the purpose of killing [ASM] by the persons or through the medium of the persons for whom he was providing those letters by way of introduction. ” We draw attention to these passages because, as will appear infra , one of the grounds of appeal to this Tribunal is that the FtT misunderstood the case which the Secretary of State was making as regards the letters of introduction, specifically in relation to the issue of forgery. 15.In 2009 the Court of Appeal became seized of the Appellant’s appeal against the decision of the AIT which had affirmed the Secretary of State’s decision to refuse protection to the Appellant under Article 1F(c) of the Refugee Convention: see Al-Sirri