T v. Secretary of State for the Home Department
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 3 November 1994 |
| Citation / Document Symbol | [1995] 2 All ER 1042, [1995] 1 WLR 545, [1995] Imm AR 142 |
| Cite as | T v. Secretary of State for the Home Department, [1995] 2 All ER 1042, [1995] 1 WLR 545, [1995] Imm AR 142, United Kingdom: Court of Appeal (England and Wales), 3 November 1994, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6b628.html [accessed 27 May 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
T v Secretary of State for the Home Department
COURT OF APPEAL, CIVIL DIVISION
[1995] 2 All ER 1042, [1995] 1 WLR 545
Hearing Date: 14, 15 September, 3 November 1994
3 November 1994
Index Terms:
Immigration - Leave to enter - Refugee - Asylum - Applicant for asylum entering country illegally on false documents - Applicant fearing threat to life or freedom in home country - Applicant a member of illegal political organisation carrying out terrorist activities in home country - Application for asylum refused on grounds of applicant's involvement in 'serious non-political crimes' - Whether requirement to balance gravity of crimes against threat to life or freedom of applicant - Circumstances in which crimes to be characterised as 'political' - Asylum and Immigrations Appeals Act 1993, s 8(1) - Convention relating to the Status of Refugees 1951, arts 1F, 33(1).
Held:
The applicant was an Algerian citizen who in 1993 had entered the United Kingdom as an illegal entrant on false documents. He later claimed political asylum following his arrest on suspicion of theft. The Secretary of State, however, refused his application. The applicant appealed to a special adjudicator under s 8(1)11 of the Asylum and Immigration Appeals Act 1993 on the ground that his removal would be contrary to the United Kingdom's obligations under art 33(1)12 of the Geneva Convention relating to the Status of Refugees 1951 in view of the fact that his life or freedom would be threatened on account of his political opinions if he were returned to Algeria. The special adjudicator accepted that the applicant was a member of an illegal political organisation which sought to secure power in Algeria by any means including violence and that he had been involved in the planning of an explosion at Algiers Airport in August 1992 (in which ten people had been killed) and a raid on a military depot in February 1993 (in which one person had died). He accordingly dismissed the appeal on the ground that the applicant's involvement in those incidents brought him within the scope of art 1F13 of the 1951 convention as a person with respect to whom 'there were serious reasons for considering' that he had committed a 'serious non-political crime' before being admitted to the United Kingdom as a refugee and was thereby not entitled to the protection of the convention. The applicant appealed further to the Immigration Appeal Tribunal which dismissed the appeal, finding him to have been actively involved in a terrorist organisation which was prepared to advance its aims by random killings and to have been closely associated with one such incident which, being an indiscriminate bombing leading to the deaths of innocent people, could not be characterised as a political crime. The applicant appealed. Held - (1) In deciding whether an applicant for political asylum had committed a 'serious non-political crime' outside the United Kingdom within the meaning of art 1F of the 1951 convention, which would exclude him from the protection of the convention, neither the Secretary of State nor the appeal tribunal was required to carry out a balancing exercise to weigh the threat to the life or freedom of the applicant if he was refused asylum against the gravity of the offences alleged to have been committed by him; R v Secretary of State for the Home Dept, ex p Chahal [1995] 1 All ER 658 distinguished. (2) A crime which had been committed with the object of overthrowing or changing the government of a state or inducing it to change its policy would not be classed as political if the atrocity or gratuitous violence of the crime was wholly disproportionate to the alleged political objective because, in those circumstances, it would fail to meet the necessary requirement that there should be a close and direct causal link between a political crime and its objective. On the facts, the airport bombing in particular was an atrocious act, grossly out of proportion to any genuine political objective and without any sufficiently close or direct causal link between it and the applicant's alleged political purpose. Accordingly, although the tribunal did not appear to have given consideration to the questions of remoteness or proportionality, the conclusion that it had reached, namely that the applicant's offences were not political crimes such as to enable him to claim the protection of the 1951 convention, was correct and the appeal would therefore be dismissed; Tzu-Tsai Cheng v Governor of Pentonville Prison [1973] 2 All ER 204 applied.Notes:
For control of immigration with respect to political asylum and refugees, see 4(2) Halsbury's Laws (4th edn, reissue) para 82.Cases referred to in the Judgment:
Castioni, Re [1891] 1 QB 149, [1886-90] All ER Rep 640, DC. Cheng (Tzu-Tsai) v Governor of Pentonville Prison [1973] 2 All ER 204, [1973] AC 931, [1973] 2 WLR 746, HL. Meunier, Re [1894] 2 QB 415, DC. R v Governor of Winson Green Prison, Birmingham, ex p Littlejohn [1975] 3 All ER 208, [1975] 1 WLR 893, DC. R v Secretary of State for the Home Dept, ex p Chahal [1995] 1 All ER 658, [1995] 1 WLR 526, CA. R v Secretary of State for the Home Dept, ex p Sivakumaran (UN High Comr for Refugees intervening) [1988] 1 All ER 193, [1988] AC 958, [1988] 2 WLR 92, HL. Schtraks v Government of Israel [1962] 3 All ER 529, [1964] AC 556, [1962] 3 WLR 1013, HL.Cases cited in the Judgment:
Bugdaycay v Secretary of State for the Home Dept [1987] 1 All ER 940, [1987] AC 514, HL. Kolczynski, Re [1955] 1 All ER 31, sub nom R v Governor of Brixton Prison, ex p Kolczynski [1955] 1 QB 540, DC. Mendis v Immigration Appeal Tribunal [1989] Imm AR 6, CA. R v Anderson [1985] 2 All ER 961, [1986] AC 27, HL.Introduction:
Appeal T, an Algerian citizen who was an illegal entrant, appealed with leave of the Immigration Appeal Tribunal (Mr R E Maddison (chairman), Mr D M Froome and Mrs J M Abrahams) granted on 24 May 1994 from the determination of the tribunal dated 11 May 1994 dismissing his appeal from the determination of a special adjudicator (Mr John Fox) dated 28 March 1994 and promulgated on 29 March 1994 dismissing his appeal from the decision of the Secretary of State for the Home Department, contained in a letter dated 3 September 1993, refusing his application for political asylum. The facts are set out in the judgment of the court.Counsel:
Nicholas Blake QC and Leon Daniel for T; Neil Garnham for the Secretary of State.Judgment-READ:
Cur adv vult 3 November 1994. The following judgment of the court was delivered. PANEL: NOURSE, GLIDEWELL, SIMON BROWN LJJGLIDEWELL LJ:
This is the judgment of the court, to which all members of the court have contributed. The appellant, T, who is an Algerian citizen now aged 29, arrived in the United Kingdom on 14 March 1993 on the ferry from Le Havre to Portsmouth. He presented forged French identity documents in another name. He was given leave to enter the United Kingdom, presumably as a visitor. On 8 April 1993 T was arrested by the police on suspicion of having committed a theft. Shortly after his arrest he said that he wished to apply for asylum in the United Kingdom. He was interviewed with regard to his request for asylum on four occasions. He gave his correct name and admitted that he had used the false documents in order to secure leave to enter the United Kingdom. He is thus an illegal entrant. Following the interviews, by a letter dated 3 September 1993 the Secretary of State for the Home Department refused T's request for asylum. T appealed to a special adjudicator under s 8(1) of the Asylum and Immigration Appeals Act 1993. The special adjudicator heard the appeal on 14 January and 14 March 1994. On 28 March 1994 he issued his written decision dismissing the appeal. T appealed further to the Immigration Appeal Tribunal under s 20 of the Immigration Act 1971, as applied by Sch 2 to the 1993 Act. The tribunal also dismissed that appeal, in a decision dated 11 May 1994. However, on 24 May 1994 the chairman of the tribunal gave leave for the present appeal from the decision of the tribunal to this court. By s 9(1) of the 1993 Act, such an appeal may only be brought on 'any question of law material to' the tribunal's determination. Section 8(1) of the 1993 Act provides:'A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention.'The convention is the Convention relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954); Cmd 9171). By art 33(1) of the convention:
'No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.'T claimed asylum, that is that he should not be returned to Algeria, on the ground that his life or freedom would be threatened on account of his political opinions.
REFUSAL OF ASYLUM By THE SECRETARY OF STATE
The Secretary of State's letter of 3 September 1993 considered a number of answers given by T during his interviews which the Secretary of State did not find credible. Firstly, T said at the first interview that he was in possession of 'very sensitive information' which the Algerian government would wish to have, and that as a result he would be in serious danger if returned to Algeria. At the last interview on 13 August 1993 he was asked to say what this information was but refused to do so saying that it was a question of security about which he did not wish to speak. He also said:'If I thought it would help my case, I would give the information. But it doesn't concern me, it concerns people who are still on active duty in Algeria.'Of this the Secretary of State said that he considered that if T had a well-founded fear of persecution in Algeria by reason of having this information, he would support his claim for asylum by telling the interviewing officer what the information was. Thus he decided that the information did not support a claim to asylum.
Secondly, at the last interview T said, for the first time, that after an explosion at the airport at Bone in August 1992 (to which we shall refer later) he was arrested and formally charged with conspiracy to plot explosions. He was due to be tried before a military tribunal but he said that, after being held for nine days in October 1992, he was released pending trial. He ran away, was tried in his absence and condemned to death. The Secretary of State did not believe this account, partly because T had not given it at earlier interviews, and partly because he thought it most unlikely that the military tribunal would have released him on bail on such a serious charge. He added:'Furthermore, if you were involved in such acts, then you may fall within the exclusion clauses of the 1951 United Nations' Convention, and, therefore, may not benefit from its protection.'Thirdly, T said that he had been a member successively of three political parties or organisations, of which the last was the Front Islamique du Salut (the Islamic Salvation Front) (the FIS). In his interviews, he gave differing accounts of how he came to join the FIS. At the last interview T said that he was a member of the national policy council of the FIS, responsible for the centre of Algiers. The Secretary of State did not find that T was not a member of the FIS at all, but said that he was not satisfied that T was involved in the FIS to the extent he claimed.
Fourthly, T gave differing accounts at interview as to how he had left Algeria. Originally he said that he had no problem in leaving, but later he said, after his solicitors had written on his behalf, that supporters within the security services helped him to get out of the country. The Secretary of State was not satisfied that this latter account was true. In conclusion the Secretary of State decided that the various discrepancies 'have arisen because you fabricated parts or all of your claim to asylum', and for those reasons rejected the claim.THE APPEAL PROCESS
In his appeal to the special adjudicator, T filed extensive grounds of appeal. In them he repeated the claim that he had been in possession of sensitive information, but for the first time explained the nature of this information. He said that a number of members of the Algerian security services were secret sympathisers with the FIS, and supplied helpful information to the FIS from time to time. He knew the names of these people, which is what the government would wish to know. When T came to give evidence before the special adjudicator, he did not say anything about this information. Moreover, he did not repeat the claim that he had been charged after the explosion at the airport with conspiracy to plot explosions, nor that he had been sentenced to death in his absence. The main points in T's evidence before the special adjudicator related to his position in, and activities on behalf of, the FIS, and to his part in two specific incidents, the explosion at Bone Airport in August 1992 and a raid on an army post by members of the FIS in order to obtain arms in February 1993, in which one person was killed. Before turning to these matters, we note that in the grounds of appeal T said that after the raid on the army post his cousin, who was also a member of the FIS, was arrested. He fled the country because he thought it likely that his cousin would be forced to disclose his membership of the organisation. He said that he left Algeria on 8 February 1993 and arrived in the United Kingdom on 16 February 1993. However, in his evidence to the adjudicator he said he arrived in the United Kingdom on 14 March 1993, having travelled from Algeria via Italy and France, and crossed the channel by ferry to Portsmouth. As we have already said, he admitted that he was then in possession of false documents. The special adjudicator made findings about the FIS, based upon a report prepared by Amnesty International (Algeria: Deteriorating human rights under the state of emergency (March 1993)) which had been submitted in evidence to him. The FIS is a political organisation which seeks to secure power in Algeria in order to establish a fundamentalist Islamic regime in that country. It is prepared to use and has used violence to seek to achieve its ends. In June 1991 a state of siege was declared in Algeria for four months. During this time about a thousand people were detained, and some of them ill-treated. The state of siege was lifted at the end of September 1991 and it was announced that elections would be held. In the first round of the elections, at the end of December 1991, the FIS secured a majority of the votes, and seemed virtually certain to win the second round and to form the next government. A military committee was then established to run the country, with a new president. The second round of elections due to be held in January 1992 was cancelled. There were inevitably protest demonstrations, some of which turned into riots. There were mass arrests of members of, or sympathisers with, the FIS. The FIS itself was declared an illegal organisation in March 1992. On 26 August 1992 a bomb was planted inside a building in the airport at Bone, some 40 km from Algiers. Ten people were killed in this explosion. We have already recounted what T said in interview about his position in, and work for, the FIS. In evidence before the special adjudicator, he said that on 26 August 1992 he went to the airport; the bomb had already exploded when he arrived. He said that the target for the bomb was the 'national economy of the state'. He accepted that he knew that the FIS were intending to plant a bomb at the airport, but also said that the group had been infiltrated by a member of the state security services, who had succeeded in ensuring that the bomb was planted inside the airport building. As a result the lives of ten people were lost and 'it led the FIS to be taken as a terrorist organisation'. He said he had no relationship to the bombing because he was only passing by. However he had discovered the night before that the group had been infiltrated by the security services, and that the bomb was to be planted in the building. By then it was too late for him to do anything about it. He was arrested at the airport, held for some nine days and questioned, but in the end released without charge. As to the raid on the army barracks, he said that he did not take part in this, but he had planned the operation himself. He said that 'one person was killed and another was captured, who had given my cousin's name'. It is not clear whether the person killed was a member of the armed services or a member of the FIS, though in the context the second seems more likely. What does seem to be clear is that it was following this explosion and the arrest of his cousin, if indeed he was arrested, that T decided to leave Algiers. As the Immigration Appeal Tribunal said:'The adjudicator's determination dealt with two aspects in parallel: first, the credibility of [T's] account of his history; second, his position in relation to the convention and his membership of the Islamic Front.'Not surprisingly, the special adjudicator had difficulty in deciding how much of T's evidence to believe. He found it particularly difficult to decide whether or not T was a member of the FIS, and what part he played in it. He said: 'I have treated the accounts which he had given with great caution' and 'I do not find [T] to be a credible witness.' However the special adjudicator then said:
'[T] has always maintained that he is a member of the FIS which is now a banned organisation in Algeria. I am inclined to believe that he is a member of the FIS. The account that he has always given is that he was involved in the Berber movement and subsequently in PSL [the Social Liberal Party] and then with the FIS. Accordingly, from the objective account which I have related earlier, he would have a fear for a convention reason if he is returned to Algeria.'The special adjudicator then considered whether T was nevertheless not entitled to the benefit of the convention. He referred to art 1F of the convention, to which we have so far not referred. This article 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.'In his decision the special adjudicator concluded:
'[T] has said that he was only indirectly involved with the bomb explosion at Algiers airport. On his own admission he was aware of the planning and he knew that the group had been infiltrated. If I accept that account I am of the opinion that his involvement in that matter brings him within the scope of the Exclusion Clause, Article 1F of the 1951 Convention. [T] has said in his grounds of appeal that he was involved in planning a raid to remove arms from a military establishment. On his own admission he was involved in passing information from the military to the FIS. The raid was carried out, one person was killed and another person arrested. Clearly on his own admission he was involved in that attempt. Again, in my opinion [T] then brings himself within the exclusion clause of art 1F of the 1951 Convention . . . Accordingly, I am of the opinion that if [T's] account is accepted he falls within the exclusion clauses of Article 1F of the 1951 Convention and he does not qualify for asylum in the United Kingdom. On the balance of probabilities I accept the account he has given that he was a member of FIS and was involved in the planning of the bombing at the airport and the raid to obtain arms. I therefore dismiss his appeal.'In the Immigration Appeal Tribunal's decision on T's appeal, the tribunal rehearsed the evidence summarised above which T gave about his part in the bomb explosion at the airport and the raid on the military depot. The tribunal then concluded:
'We find as a fact, on the basis of that evidence that [T] was involved directly in the planning of an attack that led to the death of one person, and he was involved in, and had prior knowledge of a bomb attack in which ten people were killed. We do not accept Mr. Daniels's submission that his degree of involvement was such that he was not personally and knowingly involved. We conclude that [T], in common parlance was actively involved in a terrorist organisation, one that was prepared to advance its aims by random killings and [T] was closely associated with one such incident . . . We have to ask ourselves whether the terrorist activities in which we have found as a fact he was involved were, in the terms of the Convention, non-political crimes. There is a difficulty there because the only definition of terrorism of which we are aware is that contained in the Prevention of Terrorism (Temporary Provisions) Act 1989, in which it is defined as "the use of violence for political ends". That might at first sight suggest that a terrorist crime was indeed a political crime. It seems to us however, that to characterise indiscriminate bombings which lead to the deaths of innocent people as political crimes so as to remove them from the exclusion clause would be against commonsense and right reason. It cannot have been the intention of the Convention to accord protection to those who engage in such activities, and we would not so conclude unless bound by high authority.'For that reason the tribunal dismissed the appeal to it.
GROUNDS OF APPEAL
On his appeal to this court, Mr Blake for T advances four grounds. They are that the Immigration Appeal Tribunal erred in law:(1)as to the proper burden of proof;
(2)in drawing inferences from the facts which the adjudicator had found which could not properly be drawn from those facts;
(3)in characterising the offences as 'terrorist' and therefore non-political; and
(4)in disregarding the concept of proportionality.
We shall consider each of these in turn.(1) Burden of proof
Mr Blake submits that art 1F of the convention is an exception clause. Thus once an applicant for asylum has shown that he comes within the provisions of art 33 (which is apparently accepted in this case) it is for the Secretary of State for the Home Department to prove if he can any one of the exceptions set out in art 1F. Mr Garnham, for the Secretary of State, submits to the contrary that, by the wording of art 1F, the provisions of the convention shall not apply to a person who comes within any of the provisions of that article. Thus in order to have the benefit of art 33, an applicant for asylum must also prove that he is not excluded by any of the terms of art 1F. For this proposition Mr Garnham relies upon the decision of the House of Lords in R v Secretary of State for the Home Dept, ex p Sivakumaran (UN High Comr for Refugees intervening) [1988] 1 All ER 193, [1988] AC 958. In the circumstances of this appeal, we do not find it necessary to decide which of these submissions is correct. The burden of proof is a concept which applies when a fact-finding tribunal is uncertain which of two conflicting pieces of evidence to accept. In this case, in the end, the adjudicator and the tribunal have recorded and based themselves upon what T said about his part in the FIS and particularly in the two specific incidents. Thus there was no need for either the adjudicator or the tribunal to depend upon the burden of proof in order to establish the primary facts. The proper question in this case is not as to burden of proof but as to the inferences to be drawn from those facts, the second question raised by Mr Blake QC.(2) Inferences to be drawn
The specific findings of fact made by the tribunal based upon what T had said in evidence, were(i)that '[T] was involved directly in the planning of an attack that led to the death of one person' and
(ii)'he was involved in, and had prior knowledge of a bomb attack in which ten people were killed'.
In the next paragraph the tribunal said:'We conclude that [T], in common parlance was actively involved in a terrorist organisation, one that was prepared to advance its aims by random killings and [T] was closely associated with one such incident',
by which the tribunal was presumably referring to the bomb explosion at the airport. Mr Blake criticises these findings as unjustified in a number of respects. Before considering his criticisms, we note that under art 1F the provisions of the convention shall not apply to a person if 'there are serious reasons for considering that' he has been guilty of crimes or acts in one or more of the categories listed in that article. In other words, the tribunal was not required to make a positive finding that T was guilty of one or more particular crimes. It sufficed that the evidence pointed strongly to his guilt. Mr Blake submits, firstly, that the reference to the attack on the army post as one which 'led to the death of one person' is misleading in that it seems probable that the person who died was himself a member of the FIS. This seems to us however not to be a matter of importance. What is important is that on his own admission T was responsible for planning an operation in which he knew that violence would probably be used, and which thus would put at risk the lives either of the attackers or of the attacked or of both. Secondly, Mr Blake criticises as unjustified the tribunal's refusal to accept the submission that T's 'degree of involvement was such that he was not personally and knowingly involved' in the bombing at the airport, and the finding that he was closely associated with that incident. On the facts which T admitted, in our view the tribunal were perfectly entitled to come to that conclusion. The position which T occupied in the FIS, his prior knowledge that the operation of planting a bomb had been infiltrated by a member of the security services, and the fact that he was at the airport when the bomb exploded were all material from which, in our judgment, those conclusions could properly be drawn. Thirdly, Mr Blake criticises the tribunal's conclusion that T 'was actively involved in a terrorist organisation'. For the Secretary of State Mr Garnham concedes that the reference to terrorism was not helpful but submits that it was irrelevant to the tribunal's decision. We think this is going somewhat too far. In their decision the tribunal made it clear that they used the word 'terrorism' as shorthand for the use of indiscriminate violence which would or might lead to the deaths of innocent people. The important question is, however one describes such an activity, did the evidence provide serious reasons for the tribunal's conclusion that the FIS was an organisation which was prepared to advance its aims by such indiscriminate violence, and that T was not merely a leading member of the FIS but was 'closely associated with one such incident'? In our view the evidence totally justified the tribunal in coming to that conclusion. Thus we reject this ground for criticising of the tribunal's reasoning.(4) Proportionality
It is convenient to consider this issue next. Mr Blake has referred us on this issue to the decision of this court in R v Secretary of State for the Home Dept, ex p Chahal [1995] 1 All ER 658, [1995] 1 WLR 526. In that case the Secretary of State had decided to deport Mr Chahal on the ground that his deportation was conducive to the public good and in the interests of national security, after concluding that Mr Chahal had been engaged in terrorist activities both in the United Kingdom and in India. Mr Chahal promptly applied for political asylum. His application was refused. He then applied for judicial review of the decisions to deport him and to refuse him asylum. He appealed to this court against the refusal of that application by Potts J. One of the arguments advanced on his behalf on the appeal was that in reaching his decisions, the Secretary of State was obliged to balance the threat to the applicant's life or freedom if he were deported against the threat to the security of the United Kingdom if he were not deported. This court (Neill, Staughton and Nolan LJJ) concluded that in principle such a balancing exercise was necessary. The basis of the decision was that in deciding whether to deport Mr Chahal on the ground that his deportation would be conducive to the public good, the Secretary of State was required by the immigration rules to consider the relevant circumstances, including any compassionate circumstances. The threat to Mr Chahal's life or freedom if he were deported was a compassionate circumstance, and the Secretary of State was therefore obliged by the immigration rules to conduct the balancing exercise. On the facts, however, the court concluded that the Secretary of State had carried out this exercise. Mr Blake argues, by analogy, that in this case the threat to the life or freedom of T if he is not allowed political asylum in the United Kingdom must be balanced against the gravity of the offences alleged to have been committed by him, and that the balance must come down in his favour. Such a balancing exercise is suggested in para 156 of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the Protocol relating to the Status of Refugees (1979), published by the Office of the United Nations High Commissioner for Refugees. This reads in part:'. . . it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of the persecution feared. If a person has well-founded fear of very severe persecution, e g persecution endangering his life or freedom, a crime must be very grave in order to exclude him.'
We do not accept that the analogy with Chahal's case is sufficiently close to require us to follow that decision on the question whether the balancing exercise suggested in para 156 of the handbook is necessary. The paragraphs of the immigration rules upon which the judgments in Chahal's case were based (paras 164 and 167 of the Statement of Changes in Immigration Rules (HC Paper (1989-90) No 251)) do not apply to the removal of illegal entrants such as this applicant. By paras 161 and 173 of those rules, the Secretary of State is required not to act contrary to the convention. If a person has committed a serious non-political crime outside the United Kingdom prior to his arrival here, the provisions of the convention do not apply to him. We can find nothing in the convention which supports the view that, in deciding whether a non-political crime is 'serious' and therefore within art 1F, the Secretary of State or the appeal tribunal is obliged to weigh the threat of persecution if asylum be refused against the gravity of the crime. We therefore turn to the final matter, Mr Blake's third issue.(3) Were T's crimes non-political?
The question here is, whether or not the offences which the tribunal found T to have committed in Algeria were properly characterised as 'terrorist', were they 'serious non-political crimes'? We agree entirely with Mr Garnham's submission that both the raid on the army depot and the bombing at the airport were serious crimes in any context. Thus, as he submits, the real question is whether the part which the tribunal found T to have played in those offences made him guilty of crimes which were properly described as non-political. We have not been referred to any authorities binding upon this court as to the meaning of the phrase 'non-political crime' in the convention. We have, however, been referred to a number of authorities on the somewhat similar wording of s 3(1) of the Extradition Act 1870. This provides, so far as is material:'A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character . . .'
In Re Castioni the applicant was alleged to have committed a murder in Switzerland, which country sought his extradition. He claimed the protection of s 3(1) of the 1870 Act. The Divisional Court concluded that on the evidence his offence was 'of a political character'. Denman J said ([1891] 1 QB 149 at 156, [1886-90] All ER Rep 640 at 643-644):'I think that in order to bring the case within the words of the Act and to exclude extradition for such an act as murder, which is one of the extradition offences, it must at least be shewn that the act is done in furtherance of, done with the intention of assistance, as a sort of overt act in the course of acting in a political matter, a political rising, or a dispute between two parties in the State as to which is to have the government in its hands, before it can be brought within the meaning of the words used in the Act.'
Hawkins J adopted a definition which had already been given by the other member of the court, Stephen J, in his History of the Criminal Law of England (1883) vol 2, pp 70-71. The quotation with which Hawkins J agreed was:'The third meaning which may be given to the words, and which I take to be the true one, is somewhat more complicated than either of those I have described. An act often falls under several different definitions. For instance, if a civil war were to take place, it would be high treason by levying war against the queen. Every case in which a man was shot in action would be murder. Whenever a house was burnt for military purposes arson would be committed. To take cattle, &c., by requisition would be robbery. According to the common use of language, however, all such acts would be political offences, because they would be incidents in carrying on a civil war. I think, therefore, that the expression in the Extradition Act ought (unless some better interpretation of it can be suggested) to be interpreted to mean that fugitive criminals are not to be surrendered for extradition crimes if those crimes were incidental to and formed a part of political disturbances.'
In Schtraks v Government of Israel [1962] 3 All ER 529 at 535, [1964] AC 556 at 583-584, another extradition case based upon s 3(1) of the 1870 Act, Lord Reid said:'Many people then regarded insurgents against continental governments as heroes intolerably provoked by tyranny, who ought to have asylum here, although they might have destroyed life and property in the course of their struggles. But, although such views may have given rise to s. 3(1) of the Act of 1870, I do not think that its scope can be limited to such cases. We cannot inquire whether a fugitive criminal was engaged in a good or a bad cause. A fugitive member of a gang who committed an offence in the course of an unsuccessful putsch is as much within the Act as the follower of a Garibaldi; but not every person who commits an offence in the course of a political struggle is entitled to protection. If a person takes advantage of his position as an insurgent to murder a man against whom he has a grudge, I would not think that that could be called a political offence. So it appears to me that the motive and purpose of the accused in committing the offence must be relevant, and may be decisive. It is one thing to commit an offence for the purpose of promoting a political cause, and quite a different thing to commit the same offence for an ordinary criminal purpose . . . It appears to me that the provisions of s. 3 of theAct of 1870 are clearly intended to give effect to the principle that there should in this country be asylum for political refugees, and I do not think that it is possible, or that the Act evinces any intention to define the circumstances in which an offence can properly be held to be of a political character.'
Viscount Radcliffe said ([1962] 3 All ER 529 at 540, [1964] AC 556 at 591):'In my opinion the idea that lies behind the phrase "offence of a political character" is that the fugitive is at odds with the state that applies for his extradition on some issue connected with the political control or government of the country. The analogy of "political" in this context is with "political" in such phrases as "political refugee", "political asylum" or "political prisoner". It does indicate, I think, that the requesting state is after him for reasons other than the enforcement of the criminal law in its ordinary, what I may call its common or international, aspect. It is this idea that the judges were seeking to express in the two early cases of Re Castioni ([1891] 1 QB 149, [1886-90] All ER Rep 640) and Re Meunier ([1894] 2 QB 415) when they connected the political offence with an uprising, a disturbance, an insurrection, a civil war or struggle for power: and in my opinion it is still necessary to maintain the idea of that connexion.'
In Tzu-Tsai Cheng v Governor of Pentonville Prison [1973] 2 All ER 204 at 208-209, [1973] AC 931 at 944-945, Lord Diplock said (citing s 3(1) of the 1870 Act):'"A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character, or if he prove to the satisfaction of the police magistrate or the court before whom he is brought on habeas corpus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character."
The list of "extradition crimes" contained in Sch 1 to the Act in respect of which alone surrender may be demanded is to be construed according to the law existing in England. It comprises ordinary serious crimes in English law but like the earlier treaties includes none which on the face of it is of a political character as respects the requisitioning state, such as treason or sedition. It is evident, therefore, that the draftsman contemplated that there might be circumstances in which an ordinary crime, such as murder or attempted murder, might be "an offence of a political character". From the second part of the restriction it is also evident, to put it bluntly, that the draftsman contemplated that a foreign government in its eagerness to revenge itself upon a political opponent might attempt to misuse an extradition treaty for this purpose.
My Lords, the noun that is qualified by the adjectival phrase "of a political character" is "offence". One must, therefore, consider what are the juristic elements in an offence, particularly one which is an extradition crime, to which the epithet "political" can apply. I would accept that it applies to the mental element: the state of mind of the accused when he did the act which constitutes the physical element in the offence with which he is charged. I would accept, too, that the relevant state of mind is not restricted to the intent necessary to constitute the offence with which he is charged; for, in the case of none of the extradition crimes, can this properly be described as being political. The relevant mental element must involve some less immediate object which the accused sought to achieve by doing the physical act. It is unnecessary for the purposes of the present appeal, and would, in my view, be unwise, to attempt to define how remote that object might be. If the accused had robbed a bank in order to obtain funds to support a political party, the object would, in my view, clearly be too remote to constitute a political offence. But if the accused had killed a dictator in the hope of changing the government of the country, his object would be sufficiently immediate to justify the epithet "political". For politics are about government. "Political" as descriptive of an object to be achieved must, in my view, be confined to the object of overthrowing or changing the government of a state or inducing it to change its policy or escaping from its territory the better so to do. No doubt any act done with any of these objects would be a "political act" . . .'
Lord Diplock's suggestion that an offence, although committed in order to support a political party, might nevertheless be too remote to constitute a political offence, and his instance of a bank robbery as being in that category, was adopted by Lord Widgery CJ in R v Governor of Winson Green Prison, Birmingham, ex p Littlejohn [1975] 3 All ER 208, [1975] 1 WLR 893, in which the Divisional Court concluded that an armed bank robbery committed by the applicant in the Republic of Ireland in order to obtain funds to support the IRA was nevertheless not an 'offence of a political character'. Thus in that case the court refused to prevent his extradition to the Republic. To adopt Lord Diplock's words, a crime committed with the object of overthrowing or changing the government of a state or inducing it to change its policy is to be regarded as a political crime, provided that the commission of the crime is not too remote from the objective. Those then are the essential principles established by English case law to apply in the closely analogous field of extradition law. Less authoritative in one sense, although more specifically directed to the concept of political asylum as such, is the assistance to be found in para 152 of the handbook relating to the convention to which we have already referred. In quoting this paragraph, we have inserted letters to divide it into sub-paragraphs for ease of reference:'152
(a)In determining whether an offence is "non-political" or is, on the contrary, a "political" crime, regard should be given in the first place to its nature and purpose i e whether it has been committed out of genuine political motives and not merely for personal reasons or gain.
(b)There should be a close and direct causal link between the crime committed and its alleged political purpose and object.
(c)The political element of the offence should also outweigh its common-law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective.
(d)The political nature of the offence is also more difficult to accept if it involves acts of an atrocious character.'
Sub-paragraph (a) of this paragraph is clearly in accordance with the English authorities to which we have referred. Sub-paragraph (b) equally clearly accords with Lord Diplock's view. Sub-paragraphs (c) and (d), although at first blush less obviously expressive of any approach discernible in the English authorities, are, we believe, consistent with them. We consider first sub-para (d). This does not, be it noted, state that an atrocious act cannot be a political offence. Clearly it can. Suppose for instance that in another state members of a political party seeking to overthrow the government of the state, and prepared to use force to do so, planted a bomb on an aircraft in which the president was to travel, with the expressed intention of murdering him. The fact that the bomb not merely killed the president but also a substantial number of people travelling with him, many of whom may have had no involvement in politics, would not of itself in our view mean that the crime committed by those who planted the bomb, albeit an atrocity, would not be a political crime. What, however, sub-para (d) does say is that an atrocious act is less likely to be a political offence and that seems to us clearly right. The reason is surely this: that atrocious acts are inherently less likely to serve political ends. It is difficult to suppose that those committing atrocities can genuinely believe that they will thereby achieve political ends -- unless, as in the example of the presidential assassination, the atrocity is designed to produce a direct, immediate and fundamental political result. That in our view is substantially the thinking behind sub-para (c) also. The less proportionate is the criminal offence to the political objective sought to be achieved, the more it savours of ordinary common law criminality, and the less of political crime. Indeed, there is in our judgment a common thread running through each of these four sub-paragraphs: before any crime can be said to have a genuinely political purpose it must in some coherent sense be calculated to promote that purpose. That will simply not be so if the crime is wholly disproportionate to the purpose to be served. The more atrocious it is, the more gratuitous violence it involves, the more likely it is to be disproportionate. The more disproportionate it is, the more difficult will it be to establish one close and direct causal link that must exist between the crime and its suggested political object. With those considerations in mind, we now return to the present appeal. The crux of the tribunal's decision lies in the last two sentences of the penultimate paragraph, which we have already quoted but which need to be repeated:'It seems to us however, that to characterise indiscriminate bombings which lead to the deaths of innocent people as political crimes so as to remove them from the exclusion clause would be against commonsense and right reason. It cannot have been the intention of the Convention to accord protection to those who engage in such activities, and we would not so conclude unless bound by high authority.'
Was that approach properly open to the tribunal? Mr Blake submits not, focusing his criticisms in particular upon the previous passage in the tribunal's decision in which they had discussed the issue by reference to the concept of terrorism and its definition in the Prevention of Terrorism (Temporary Provisions) Act 1989. Mr Garnham for the Secretary of State concedes that such an approach was unhelpful but argues that in fact it proved irrelevant to the tribunal's conclusion: their decision was in the end based on the broad proposition that 'indiscriminate bombings which lead to the deaths of innocent people' cannot be characterised as political crimes. That decision, the Secretary of State asserts, was correct. The central difficulty, as it seems to us, with the tribunal's decision is with regard to its lack of satisfactory reasoning. That in turn may well betray a failure to ask the right questions: there is certainly no suggestion in the tribunal's decision that they gave consideration to whether the relevant offences were too remote from their alleged objective or otherwise disproportionate to it. Ought this court on that account to allow the appeal and remit the matter to the tribunal for their further consideration? Tempting although in some respects this course may seem, it is, we believe, unnecessary and in the end inappropriate. Given the tribunal's findings of fact, this court is as well able as the tribunal to form a judgment upon the sole issue arising upon art 1F(b): are the serious crimes of which the tribunal has concluded that 'there are serious reasons for considering' T guilty, 'non-political'? After anxious consideration and not without some initial hesitation, we would answer this question in the same way as the tribunal did, namely by holding that they are indeed non-political. We too think it inappropriate 'to characterise indiscriminate bombings which lead to the deaths of innocent people as political crimes'. Our reason is not that all terrorist acts fall outside the protection of the convention. It is that it cannot properly be said that these particular offences qualify as political. In our judgment the airport bombing in particular was an atrocious act, grossly out of proportion to any genuine political objective. There was simply no sufficiently close or direct causal link between it and T's alleged political purpose. It offends common sense to suppose that the FIS's cause of supplanting the government could be directly advanced by such an offence. Indeed, on the facts, T himself appears implicitly to recognise this when he claims that the FIS group was infiltrated by the security services (i e the government) and seeks to dissociate himself from the yet graver offence which he acknowledges (indeed asserts) resulted from the infiltration -- the particular atrocity that led here to the deaths of ten innocent people. Despite therefore the deficient reasoning contained in the tribunal's own decision and the real possibility that they asked themselves the wrong questions in deciding whether the supposed offences were or were not political, we accordingly dismiss this appeal.