Case No. UKUT-00448-(IAC)

”. 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 v Secretary of State for the Home Department and UNHCR (Intervening) [2009] EWCA Civ 222. Delivering the main judgment of the Court, Sedley LJ adverted to the witness statement of Detective Chief Inspector Dingemans, who had been a Case Officer in the police investigation operation stimulated by the assassination. Reference was made in particular to a passage in his statement relating to evidence recovered during a search of the Appellant’s home – the letters of introduction, a fax, shipping orders, records of banking and money transfers in particular. Sedley LJ observed in this context, at [54]: “ The Appellant was interviewed under caution about this and much else. On the advice of his solicitor, who was present throughout, he answered some questions and declined to answer others. ” Next, he noted that while the transcripts of interviews had formed part of the evidence before the AIT, the latter “ derived no assistance from them ”. He continued, at [55]: “ For reasons to which I will be coming, it is not necessary to say more about the Dingemans ’ statement than that the desirability of seeing and evaluating primary material in preference to secondary accounts of it grows in proportion to the damaging effects of the latter … The preferable course was for the AIT to be shown the documentary material supporting the allegation, to hear what each side said about it, to consider anything relevant the Appellant had said (or, if the circumstances permitted an adverse inference to be drawn, declined to say) about it at interview and to make up its own mind about it. ” The “ primary material ” was not, however, adduced. 16.At [67] Sedley LJ returned to the issue of the police interviews: “ The record shows that, although initially his solicitor spoke for him and [the Appellant] declined to answer questions because of the generality of the investigation, as time went by the Appellant began to offer detailed explanations , all of them if accepted or acceptable, capable of dispelling the suspicion that he had been involved in terrorism …. In particular, intelligible explanations were offered of the sums of money. ” [Emphasis added.] Next, in the context of a general reference to “ the literature found in the Appellant’s possession ”, Sedley LJ stated: “ About the latter I would say a cautionary word. It is one thing to have written, say, a foreword to a book; it is another to believe all that the book says or argues. Whether the latter is the case has to depend in some degree, perhaps a large one, on what the foreword says. Equally, most literate people own books with which they do not agree. Some caution is needed in attributing to anyone, in the absence of linking evidence, the contents of the books on his shelf. ” The passages we have reproduced above are (mere) observations, discursive dicta . This is abundantly clear from the preface contained in [66]. 17.The decision of the AIT was reversed and remittal ordered on the grounds that the AIT should have attributed no weight whatsoever to the Appellant’s convictions in absentia in Egypt and should have treated the evidence of the bare US indictment against the Appellant similarly: see [44] and [56]. This explains the following passage in the concurring judgment of Arden LJ, at [79]: “ The result of this Court’s decision is that at the remittal hearing the Respondent can at best succeed on some only of the grounds that it originally placed before the AIT. ” 18.The Appellant appealed to the Supreme Court, the outcome whereof appears in the following excerpt from the judgment of Baroness Hale, at [77]: “ …. [The Appellant] was challenging certain aspects of the guidance given [by the Court of Appeal] to the Tribunal which would hear the remitted case. In that he has succeeded to some extent. ” The Supreme Court concluded, following receipt of further written submissions, that remittal to the FtT , rather than the Upper Tribunal, was appropriate. 19.The specific question of law raised by the appeal to the Supreme Court was formulated by Lady Hale in [2]: “ … The question is whether all activities defined as terrorism by our domestic law are for that reason alone, acts contrary to the purposes and principles of the United Nations, or whether such activities must constitute a threat to international peace and security or to the peaceful relations between nations. ” The Supreme Court enunciated three guiding principles: (i) First, Article 1F of the Refugee Convention is to be interpreted narrowly and applied restrictively. (ii) Second, Article 1F(c) applies to acts which, even if they are not covered by the definitions of crimes against peace, war crimes or crimes against humanity as defined in international instruments within the meaning of Article 1F(a), are nevertheless of a comparable egregiousness and character, such as sustained human rights violations and acts which have been clearly identified and accepted by the international community as being contrary to the purposes and principles of the United Nations. (iii) In determining whether there are serious reasons for considering that the person concerned had individual responsibility for acts within the scope of Article 1F(c), there must be “ 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 ”: see [15]. Lady Hale summarised the correct approach in [16], in these terms: “ In our view, this is the correct approach. The article should be interpreted restrictedly 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, its international impact and long-term objectives and the implications 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. ” 20.The Supreme Court provided the following general guidance on the construction and application of the exclusion clauses in the Refugee Convention, at [75]: “We are, it is clear, attempting to discern the autonomous meaning of the words ‘serious reasons for considering’. We do so in the light of the UNHCR view, with which we agree, that the exclusion clauses in the Refugee Convention must be restrictively interpreted and cautiously applied. This leads us to draw the following conclusions: (1) ‘Serious reasons’ 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 decision-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 to 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.” 21.The Supreme Court also examined the central tenets of the Secretary of State’s case against the Appellant. It noted the decision of the Common Serjeant, at [23], in the following pithy terms: “ 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. ” The Supreme Court approved the following passage in the UNHCR Guidelines: “[17] 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 affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights would fall under this category. ” With regards to whether the test can be set aside where a person plots in one country to de-stabilise conditions in another, the Court added, at [40]: “ The test is whether the resulting acts have the requisite serious effect upon international peace, security and peaceful relations between states. ” The decision of the FtT under appeal to this Tribunal followed upon the judgment of the Supreme Court and ensuing remittal. FIRST GROUND OF APPEAL: SECTION 8 AND ADVERSE INFERENCES 22.Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 provides, in material part: “8 Claimant's credibility (1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant's credibility, of any behaviour to which this section applies. (2) This section applies to any behaviour by the claimant that the deciding authority thinks– (a) is designed or likely to conceal information, (b) is designed or likely to mislead, or (c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant. (3) Without prejudice to the generality of subsection (2) the following kinds of behaviour shall be treated as designed or likely to conceal information or to mislead– (a) failure without reasonable explanation to produce a passport on request to an immigration officer or to the Secretary of State, (b) the production of a document which is not a valid passport as if it were, (c) the destruction, alteration or disposal, in each case without reasonable explanation, of a passport, (d) the destruction, alteration or disposal, in each case without reasonable explanation, of a ticket or other document connected with travel, and (e) failure without reasonable explanation to answer a question asked by a deciding authority. …… (7) In this section– ‘asylum claim’ has the meaning given by section 113(1) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (subject to subsection (9) below), ‘deciding authority’ means– (a) an immigration officer, (b) the Secretary of State, (c) [the First-tier Tribunal] , or (d) the Special Immigration Appeals Commission …………. …… [(9A) In paragraph (c) of the definition of a ‘deciding authority’ in subsection (7) the reference to the First-tier Tribunal includes a reference to the Upper Tribunal when acting under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.]” 23.The central thrust of this ground of appeal is that the FtT misdirected itself in law in its purported application of section 8 of the 2004 Act. The Secretary of State’s grounds of appeal advance this discrete challenge in the following terms: “[The FtT ] failed to properly apply section 8 ……. It failed to reach necessary findings on the elements of that statutory test and failed to apply a mandatory statutory consideration in that test. ” The factual substratum of this ground of appeal is uncontentous . It is based on the Appellant’s twofold failure (a) to accede to the Secretary of State’s request to undergo further interview and (b) to give evidence to the FtT . These, Mr Auburn argued, are “ at the highest possible end of actions giving rise to adverse inferences ” – to be contrasted with, for example, a (mere) failure to produce a passport. 24.Developing this ground, Mr Auburn criticised the FtT’s failure to apply section 8 to the framework of this appeal in a structured way. He submitted that the FtT considered the issue of inferences in general terms only. The proper application of section 8, he contended, would have yielded the conclusion that the Appellant had concealed and misled “immigration authorities” on “fundamental matters”, requiring a consequential evaluation which the Tribunal did not undertake. Mr Auburn submitted that the FtT erred by applying its own generalised concept of inferences rather than giving effect to what he termed the “mandatory considerations” enshrined in section 8. 25.The record of Mr Auburn’s closing submissions to the FtT, which was provided in that forum and which we have considered, discloses that the following main submission was advanced on this issue. It was contended that by reason of the Appellant’s twofold refusal (noted above), the FtT should attach little or no weight to his account and draw the adverse inference that he had no explanation for a series of issues which would have withstood the scrutiny of cross examination. The main issues detailed were the falsity of the letters of introduction, the inherent improbability that an innocent participant would be engaged by the assassins (and others) in a plot of such magnitude and sophistication; the unlikelihood that the Appellant did not know the assassins and others; the flimsy nature of the Appellant’s claims about the media production benefit to him and his organisation; the Appellant’s explanations of the “Osman letter”; and his explanations of the radical, inflammatory Islamic materials found in his possession.26.The chief riposte of Mr Mackenzie on behalf of the Appellant was that the main issue in the appeal was whether the Secretary of State had discharged the onus of proving that the Appellant should be excluded from protection. The case, he argued, was not primarily about the Appellant’s credibility and, further, the Appellant bore no onus of proof. Mr Mackenzie submitted that section 8 is directed to cases where the burden of proof is on the applicant and where the applicant’s credibility is crucial.27.Mr Mackenzie further submitted that the FtT’s approach to section 8 accorded with the leading decision of the Court of Appeal, JT (Cameroon) v Secretary of State for the Home Department [2009] 1 WLR 1411. We pause to consider this decision. 28.Pill LJ, delivering the main judgment of the Court of Appeal, noted, firstly, drawing on the Hansard Debates, that the impetus for section 8 had been the perception that those entering the United Kingdom were being advised to – “…. throw away documents or refuse to co-operate either with the process of determining their country of origin and their passage into the country or with re-documentation for return purposes.” The Court diagnosed the following error of law in the decision of the AIT, at [16]: “ …. there is a real risk that section 8 matters were given a status and a compartment of their own rather than taken into account, as they should have been, as part of a global assessment of credibility. ” At [19] Pill LJ added: “ Section 8 …. plainly has its dangers, first, if it is read as a direction as to how fact finding should be conducted, which in my judgment it is not and, in any event, in distorting the fact finding exercise by an undue concentration on minutiae which may arise under the section at the expense of, and as a distraction from, an overall assessment. Decision makers should guard against that. A global assessment of credibility is required. ” He continued, at [21]: “ Section 8 …. is no more than a reminder to fact finding tribunals that conduct coming within the categories stated in section 8 shall be taken into account in assessing credibility. ” The next passage is important, as it makes unambiguously clear that in any case where there is evidence of any of the behaviours specified in section 8, the weight to be given thereto in the overall assessment of the claimant’s credibility is a matter for the tribunal: “ …. at one end of the spectrum, there may, unusually, be cases in which conduct of the kind identified in section 8 is held to carry no weight at all in the overall assessment of credibility on the particular facts …. Where section 8 matters are held to be entitled to some weight, the weight to be given to them is entirely a matter for the fact finder. ” Laws LJ was in agreement with Pill LJ that the correct construction of section 8 involves the notional insertion of the adverb “ potentially ” immediately before the word “ damaging ” in section 8(1). 29.In [32] of its determination, the FtT noted the following aspects of the Secretary of State’s case: “ The Appellant’s refusal to be interviewed and his refusal to give evidence in his own appeal gave rise to certain inferences. Section 8 of the [2004 Act] fell to be applied and the two refusals were at the highest possible end of actions giving rise to adverse inferences, as amounting to a failure without reasonable explanation to answer a question, which was to be treated as behaviour designed or likely to conceal information or mislead. ” We pause here to observe that this is a faithful portrayal of the submission contained in the record of Mr Auburn’s closing argument. The FtT returned to this issue in [111]: “ What inferences may properly be drawn from the Appellant’s refusal to attend a substantive asylum interview and his refusal to give evidence before us? Mr Auburn submitted that his failure to answer questions was behaviour designed or likely to conceal information or mislead, falling within section 8 …. and that it would be appropriate to draw adverse inferences as a result …. The Appellant’s explanation that he had given all the information previously was insufficient. He was last interviewed by the Home Office regarding his asylum claim in 1994, years before the principal events in issue. When interviewed by the police in October 2001, he refused to answer questions before giving what Mr Auburn described as a brief, pre-prepared account on his own terms and he declined to answer any questions about individuals associated with Islamist or terrorist causes. ” We can find no trace in this lengthy passage of any distortion or misunderstanding by the Tribunal of the Secretary of State’s case on this issue. 30.In the immediately ensuing paragraph, [112], the FtT continues: “ Although we agree with Mr Auburn that public confidence in the asylum system is capable of being undermined by a refusal to co-operate with the authorities of the United Kingdom and by a refusal to give evidence in proceedings,