Criminal liability – Refugees – Terrorism – Convention relating to the Status of Refugees
MH (Syria) v Secretary of State for the Home Department: DS (Afghanistan) v Secretary of State for the Home Department: CA (Civ Div) (Lords Justice Ward, Richards, Jackson): 24 March 2009
The appellant (H) appealed against a decision of the Asylum and Immigration Tribunal dismissing her asylum appeal.
H was born in Syria into a Kurdish family which suffered constant harassment from the Syrian authorities. When she was 13, she became a member of the PKK, a proscribed organisation under the Terrorism Act 2000. She remained a member of the PKK for some 11 years. During that time, she carried a banner at a demonstration, resolved disputes between refugees at a camp on behalf of the PKK, worked as an assistant nurse and taught the Kurdish language to primary school children. Dismissing her asylum appeal, the tribunal found that there were serious reasons for considering that she had been guilty of acts contrary to the purposes and principles of the UN, so that she was excluded by article 1F(c) of the Convention relating to the Status of Refugees 1951 (United Nations) from the scope of the convention. H argued, among other things, that (1) the tribunal’s finding against her was based on her activities as a nurse, but such activities could not engage the exclusion under article 1F(c); (2) in order to be guilty of terrorist acts falling within article 1F(c), a person had to be shown to have participated in such acts as a principal or secondary party on normal principles of criminal law, such participation being absent in her case.
Held: (1) It was not in dispute that nurses and other medical personnel enjoyed a special status and protection under international humanitarian law. However, that did not take them automatically outside the scope of the exclusion in article 1F(c). The point was plainly relevant, however, to an assessment of whether the exclusion applied. Ordinarily, the provision by a person of medical or nursing services as part of the infrastructure of support for a terrorist organisation would not bring that person within article 1F(c), but in each case the point would have to be taken into account with other relevant factors in an overall assessment as to the application of article 1F(c).
(2) Principles of criminal liability were not to be applied for the purpose of determining whether a person was guilty of acts falling within article 1F(c). The decision in Gurung v Secretary of State for the Home Department  UKIAT 4870,  Imm AR 115 showed H’s proposition to be too narrow an approach. Further, her submission was in conflict with section 54 of the Immigration, Asylum and Nationality Act 2006.
(3) In deciding whether article 1F(c) applied, a tribunal should follow the guidance given in Gurung, Gurung approved. Regard also had now to be had to section 54 of the 2006 act, whereby the reference in article 1F(c) to acts contrary to the purposes and principles of the UN should be taken to include, in particular, the acts specified in the section.
(4) In the instant case, the ultimate conclusion reached by the tribunal was unreasonable on the facts, and the case fell well short of engaging article 1F(c). H had been only 13 when she joined the PKK and what she did for the organisation was relatively minor in nature. Further, there was no suggestion that the PKK fell at the extreme end of the continuum referred to in Gurung where mere membership might be sufficient to establish complicity in the acts of an organisation.
Mark Muller QC, Edward Grieves (instructed by Trott & Gentry) for MH; Edward Grieves (instructed by Trott & Gentry) for DS; Neil Sheldon (instructed by Treasury Solicitor) for the Secretary of State for the Home Department.