QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
| THE QUEEN on the application of
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Andrew Deakin (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 25 July 2011
Crown Copyright ©
Mr Stephen Morris QC :
The facts in summary
The Relevant Legal Background
The Refugee Convention
"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." (emphasis added)
"Prohibition of expulsion or return ("refoulement")
1. 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.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
"(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection)
(3) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if
a) he is convicted outside the United Kingdom of an offence,
b) he is sentenced to a period of imprisonment of at least two years, and
c) he could have been sentenced to a period of imprisonment of at least two years had his conviction been a conviction in the United Kingdom of a similar offence.
(6) A presumption under subsection (2)(3) or (4) that a person constitutes a danger to the community is rebuttable by that person."
"In the present context, however, a "serious" crime must be a capital crime or a very grave criminal act."
Paragraph 156 states:
"In applying this exclusion, 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 persecution feared. If a person has a 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....."
I was also referred to the European Council on Refugees and Exiles' paper "Position on Exclusion from Refugee Status", which at paragraph 20 considers the meaning of "serious" crimes in terms similar to those in the UNHCR Handbook.
Relevant case law
"The Refugee Convention was drafted for a world scarred by long years of war crimes and other like atrocities. There remain, alas, all too many countries where such crimes continue. Sometimes those committing them flee abroad and claim asylum. It is not intended that the Convention will help them. However clearly in need of protection from persecution an asylum seeker may be, he is not to be recognised as a refugee where "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". So states article 1F(a) of the Convention (and, for good measure, article 12(2)(a) of the Qualification Directive (2004/83/EC) – this being implemented into domestic law by Regulations 2 and 7(1) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525)). It is the Court's central task on the present appeal to determine the true interpretation and application of this disqualifying provision. Who are to be regarded as having committed such a crime ("war criminals" as I shall generally refer to them) within the meaning of article 1F(a)? More particularly, assuming that there are those within an organisation who clearly are committing war crimes, what more than membership of such an organisation must be established before an individual is himself personally to be regarded as a war criminal?
It is common ground between the parties (i) that there can only be one true interpretation of article 1F(a), an autonomous meaning to be found in international rather than domestic law; (ii) that the international instruments referred to in the article are those existing when disqualification is being considered, not merely those extant at the date of the Convention; (iii) that because of the serious consequences of exclusion for the person concerned the article must be interpreted restrictively and used cautiously; and (iv) that more than mere membership of an organisation is necessary to bring an individual within the article's disqualifying provisions. The question is, I repeat, what more?
As need hardly be stated, only if the decision-maker in respect of a particular application for asylum correctly identifies and answers this question will he be in a position to decide, in all but the clearest cases, whether "there are serious reasons for considering" the asylum-seeker to be disqualified as a war criminal under article 1F(a)." (emphasis added)
"Rather, however, than be deflected into first attempting some such subcategorisation of the organisation, it is surely preferable to focus from the outset on what ultimately must prove to be the determining factors in any case, principally (in no particular order) (i) the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum-seeker was himself most directly concerned, (ii) whether and, if so, by whom the organisation was proscribed, (iii) how the asylum-seeker came to be recruited, (iv) the length of time he remained in the organisation and what, if any, opportunities he had to leave it, (v) his position, rank, standing and influence in the organisation, (vi) his knowledge of the organisation's war crimes activities, and (vii) his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes."
"Returning to the judgment below with these considerations in mind, I have to say that paragraph 119 does seem to me too narrowly drawn, appearing to confine article 1F liability essentially to just the same sort of joint criminal enterprises as would result in convictions under domestic law. Certainly para 119 is all too easily read as being directed to specific identifiable crimes rather than, as to my mind it should be, wider concepts of common design, such as the accomplishment of an organisation's purpose by whatever means are necessary including the commission of war crimes. Put simply, I would hold an accused disqualified under article 1F if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation's ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose.
It would not, I think, be helpful to expatiate upon article 1F's reference to there being "serious reasons for considering" the asylum-seeker to have committed a war crime. Clearly the Tribunal in Gurung (at the end of para 109) was right to highlight "the lower standard of proof applicable in exclusion clause cases" – lower than that applicable in actual war crimes trials. That said, "serious reasons for considering" obviously imports a higher test for exclusion than would, say, an expression like "reasonable grounds for suspecting". "Considering" approximates rather to "believing" than to "suspecting". I am inclined to agree with what Sedley LJ said in Yasser Al-Sirri v Secretary of State for the Home Department  EWCA Civ 222, para 33: "[the phrase used] sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says."
Lords Hope and Kerr gave concurring judgments. In particular, at §§48 and 49, and §§54 to 56 respectively, they endorsed the test for personal responsibility as being one of "substantial" or "significant" contribution. They also emphasised the need to look carefully at the particular facts. Lord Hope referred (at §44) to a need for "a close examination of the facts and the need for a carefully reasoned decision as to precisely why the person concerned is excluded from protection under the Convention". Lord Kerr stated (at §55) "One needs, I believe, to concentrate on the actual role played by the particular person, taking all material aspects of that role into account so as to decide whether the required degree of participation is established".
i) Mere membership of a terrorist organisation is not sufficient for an applicant to fall within Article 1F(c).
ii) The relevant test is whether the applicant has "voluntarily contributed in a significant way to the organisation's ability to pursue its purpose of committing acts contrary to purposes and principles of the UN, aware that his assistance will in fact further that purpose".
iii) In applying that test, the seven factors identified in §30 of Lord Brown's speech fall to be applied to the facts of the particular case.
iv) It is necessary to conduct a close examination of the evidence and the facts relating to the actual role of the individual in question and to reach a carefully reasoned decision as to precisely why the person concerned is excluded.
"34. The first question that arises in the present case is: what are "acts contrary to the purposes and principles of the United Nations"? It is clear that acts of terrorism – in particular the deliberate killing or injuring of civilians in pursuit of political objects – are such acts. The Tribunal in their decision under appeal stated that acts contrary to the purposes and principles of the United Nations are not to be equated with acts of terrorism. It is unnecessary for me to debate this issue, because Mr Johnson did not suggest that acts of a military nature committed by an independence movement (such as the LTTE) against the military forces of the government are themselves acts contrary to the purposes and principles of the United Nations. I do not think that they are. Moreover, the Tribunal in its determination under appeal seems to have accepted that an armed campaign against the government would not constitute acts contrary to the purposes and principles of the United Nations. For present purposes it is necessary to distinguish between terrorism and such acts.
35. I turn, therefore, to consider what must be shown in relation to the person in relation to whom a question of the application of the exclusion clause arises. Certain points are, I think, clear. ... It follows that mere membership of an organisation that, among other activities, commits such acts does not suffice to bring the exclusion into play. On the other hand, in my judgment a person who knowingly participates in the planning or financing of a specified crime or act or is otherwise a party to it, as a conspirator or an aider or abettor, is as much guilty of that crime or act as the person who carries out the final deed.
36. Lastly, so far as paragraph (c) is concerned, it is common ground that acts of terrorism, such as the deliberate killing of civilians, are contrary to the purposes and principles of the UN.
37. The application of Article 1F(c) will be straightforward in the case of an active member of organisation that promotes its objects only by acts of terrorism. There will almost certainly be serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations.
38. However, the LTTE, during the period when KJ was a member, was not such an organisation. It pursued its political ends in part by acts of terrorism and in part by military action directed against the armed forces of the government of Sri Lanka. The application of Article 1F(c) is less straightforward in such a case. A person may join such an organisation, because he agrees with its political objectives, and be willing to participate in its military actions, but may not agree with and may not be willing to participate in its terrorist activities. Of course, the higher up in the organisation a person is the more likely will be the inference that he agrees with and promotes all of its activities, including its terrorism. But it seems to me that a foot soldier in such an organisation, who has not participated in acts of terrorism, and in particular has not participated in the murder or attempted murder of civilians, has not been guilty of acts contrary to the purposes and principles of the United Nations.
40. ... In my judgment, the facts found by the Tribunal showed no more than that he had participated in military actions against the government, and did not constitute the requisite serious reasons for considering that he had been guilty of acts contrary to the purposes and principles of the United Nations."
Participating in military actions against the government was not sufficient to bring KJ within Article 1F(c).
"55. KJ appears to be authority for the proposition that military action directed against the armed forces of the government does not as such constitute terrorism or acts contrary to the purposes and principles of the United Nations. SIAC in SS stated that these observations were made per incuriam. I am not prepared, in the absence of argument beyond that addressed to this court to hold that the observations were per incuriam and it does not appear to me that they were, though the circumstances in which acts of violence against a government are acts of terrorism is a difficult question. Serious violence against members of the government forces would normally be designed to influence the government and be used for the purpose of advancing a political, religious or ideological cause, within the meaning of those words in section 1 of the 2000 Act. On the other hand, it is difficult to hold that every act of violence in a civil war, the aim of which will usually be to overthrow a legitimate government, is an act of terrorism within the 2000 Act.
56. ... on the authority of KJ, military actions against the Afghan Government, even if conducted by proscribed organisations, are not necessarily terrorist in nature. If that is so, they are not, as terrorist acts, contrary to the purposes and principles of the UN Charter.
59. On an application of KJ, however, there were no findings of terrorist acts, as distinct from armed action against the authorities, which would attract the operation of the exemption. It is unlikely that the distinction was in mind at the hearing before the Tribunal but there was no finding of paradigm terrorist acts such as random bombings, indiscriminate violence and attacks on the civilian population, as distinct from military action targeted at government and coalition forces. It is difficult to detect, in the Tribunal's findings, evidence of gross human rights violations on the civilian population. Following KJ, I am not able to hold, on the Tribunal's findings, that acts of terrorism had been committed. Further analysis, with the KJ distinction in mind, might have revealed acts of terrorism."
The "One Off Exercise"
"Who is excluded?
The concession will not apply to a family where the main applicant or any of the dependants
- have a criminal conviction
- present a risk to national security
- have committed crimes against humanity or against the purposes of the United Nations as outlined in Article 1F of the 1951 Refugee Convention
- whose presence in the UK is otherwise not conducive to the public good."
The reference to Article 1F is in terms only to the exclusions covered by Article 1F(a) and (c), and not to the exclusion for serious non-political crime in Article 1F(b)).
The facts in detail
Events in Turkey
"In accordance with Article 192 of the Criminal Courts Proceedings Act, preliminary investigation documents concerning defendant Ali Polat were enclosed within. Upon the arrests of investigations against Ramazan Aydin, dob 22.01.1963 and Ismail Kaya, dob 13.10.1965, it was understood that the referred to suspects carried out illegal activities under the roof of HADEP party and stated that they knew defendant Ali Polat. The named suspects also stated that defendant Ali Polat assembled and marched, in meetings and seminars made calls in KURDISH to invite people to rebel and took part in a struggle in order to establish a Kurdish nation and therefore breached the Article 125 of the TR, Upon receiving the information that the defendant escaped to Adana/Dagcilar village area, the house he was using was searched and the above listed evidence were found. The court has CONSIDERED: In his absence A DECISION WAS MADE to sentence the defendant to 12 years, 4 months and 8 days IMPRISONMENT. 1996/928 E. 971 Kar. [Decision]"
Article 125 of the Turkish Criminal Code makes it an offence punishable with death, inter alia, to commit "any act ... diminishing the State's independence, breaking its unity or removing part of the national territory from the State's control".
The Claimant comes to the United Kingdom
Original decision refusing asylum
Appeal to the IAT
"In his original interview in 1997, the appellant confirmed that it was the July 1996 incident which was the effective cause of his escape from Turkey. At that stage ... the appellant was asserting that, not only was he just "an ordinary member" of HADEP, having only joined in 1995 or 1996, but, in addition, he had done absolutely nothing to incur the displeasure of the authorities in July 1996, except to have been present when a fight broke out between the army and PKK guerrillas. On the basis of this account, it seems to some extent surprising that the appellant took such relatively extreme measures as to run away from his work place and to hide effectively with a friend for four months, even though he had done absolutely nothing and had only been a recent low-level member of HADEP not, apparently, involved in any specific activities."
The Secretary of State relies upon this passage (and in particular the underlined wording) as indicating that the Adjudicator thought that the Claimant was understating (rather than fabricating) his involvement in the incident on 2 July 1996.
"When asked on more than one occasion why he had not mentioned the fact that he was subject to over twelve years imprisonment in Turkey, the appellant said ... that he had not mentioned this fact because he did not have the proof, the evidence, in his possession. I have to say, quite bluntly, that I find this explanation not only unsatisfactory, but preposterous. .... given that the very basis of asylum claims is fear, I do not accept for one moment that this appellant made no mention of this factor until some time in 2002 ... simply because he did not yet have the proof, the documentation, within his possession. On his version, he failed to mention until very recently the root cause of his escape from Turkey, the fact that he faced the appalling prospect of a lengthy sentence of imprisonment were he to be returned."
"In the present case I consider that the documents are not merely insufficient to enable me to conclude that the appellant is basically credible, but that it is those very documents allied to his explanations about them, that found my view as to his total lack of credibility on the issues concerned. I cannot, of course, form any concluded view as to the origins of these documents or the circumstances in which they were obtained. There are many ways in which documents may not be genuine, in the sense that they represent facts or events which are not true. I am also of the view that I am not compelled to accept the authenticity of these documents by reason of any formal concession by the respondent as to any facts contained in those documents. ... the documents have been produced ... recently ... and have not been supported by any independent evidence as to authenticity. Given that I have rejected, as totally beyond belief, the appellant's reasons for failing to mention the most vital aspect of his claim, until very recently, it follows that on credibility alone, I am of the view that the appeal on the asylum and Article 3 claims must fails in so far as they are based on events of 2 July 1996 and the purported Indictment and accompanying documentation."
So at that point that the Adjudicator found that the Claimant's account was not credible at all and did not accept the documents as being genuine.
"It is tempting to speculate whether, in fact, this appellant had been less than frank about his activities in Turkey, especially as he puts forward the indictment against him as genuine and admits far more activities than previously admitted."
So here, by contrast, the Adjudicator was considering whether, rather than there being no truth in his account, in fact the Claimant was telling less than the whole truth.
"However, notwithstanding that the standard of proof is a relatively low one, I am totally unable to transform speculation and mere possibility into the establishment of a real likelihood of torture or ill-treatment when I am basically unable to accept anything of significance this appellant has said about the circumstances in which he left Turkey. The likelihood is that the simple reason this appellant made no mention until very recently of his alleged conviction in absence and long imprisonment is that he had, contrary to what he now asserts, no knowledge of any such event at the time he left Turkey and that these assertions have been manufactured in order to bolster a rather insubstantial basis for seeking asylum based on what he originally said in his 1997 interview."
Thus the Adjudicator's ultimate conclusion was that, despite his speculation, the matters described in the Indictment were untrue and that either the entire July 1996 incident was made up or at least his involvement in the July 1996 was at a very low level.
The Claimant's further representations 30 September 2003
"that being the case withstanding not the Adjudicator's finding of fact about these documents, Mr Polat wants to renew his claim for asylum based on these documents not relied upon in his original claim.
Mr Polat was naive and frightened about disclosing the time [sic] extent of his involvement in the political activities of HADEP and PKK when he first arrived in the country. To do so he believed would result in his arrest in the UK and return to Turkey. Having suffered the consequences of failing to make a full and frank disclosure about his past activities at the outset, Mr Polat has decided to reveal it all now threatened with the prospect of removal from the UK and the serious consequences awaiting him in Turkey if his removal were to materialise. Mr Polat was afraid to disclose his past, afraid to be labelled as supporter of an organization involved in a violent struggle an allegation he felt would prove counterproductive to his claim for asylum in the United Kingdom.
According to our instructions, Mr Polat was more actively involved in the PKK that extended to his encouraging people in an armed struggle against the Turkish Government for the creation of a separate Kurdish state. The incident took place on 2nd July 1996. Mr Polat was with the PKK members who had exchanged fire with the Turkish soldiers. Mr Polat did possess a weapon that was later discovered by the security forces who raided his flat in the Adana district. Mr Polat never used the weapon but kept it with him for his personal safety as he was well known to the authorities to be an active member within HADEP and the PKK.
The indictment, the arrest warrant and other related documents were sent to Mr Polat in 2001 and not as he stated in oral evidence just before his appeal hearing in August 2002. Mr. Polat's reasons for concealing this information was as stated above not to put himself into the category of association with those who were condemned as terrorists in Turkey that he believed would result in his detention in the UK for removal to Turkey where apart from a long imprisonment, probable death awaits him."
In the letter, the Claimant stated that the account was the full and frank story and gave an explanation for not having given that full account earlier, namely a fear that he would have been sent back "if he came clean". The terms of this letter (and in particular the underlined passages above) are relied upon by the Secretary of State, whilst the Claimant now seeks to distance himself from them, stating that they are not well drafted or particularly clear.
Application and first refusal under the One Off Exercise
March 2006 to July 2009: extended correspondence and delay
Proceedings are commenced
Decision letters of 9 April 2010
"There is no suggestion within your representations ..., in which you provide "a full and frank disclosure about past activities" ... that you were coerced in any way in order to support the PKK. Furthermore, it is considered that your activities for this organisation, namely that you encouraged people in an armed struggle against the Turkish government, demonstrates that you willingly carried out these activities and that you were fully aware of the PKK's violent tactics in attempting to achieve it's aims. As such, it is considered that you are guilty of acts contrary to the purposes and principles of the United Nations."
Finally the reasons letter went on to state that the Claimant would be granted discretionary leave to enter on the basis that he would face a real risk of treatment contrary to Art 3 ECHR and but for the exclusion would have been given Humanitarian protection.
The Decision in issue
Decision letter of 28 April 2010
"The terms of the exercise do not apply to a family where the principle applicant or any of the dependants is regarded as presenting a risk to security or falls within the scope of Article 1F of the Refugee Convention or whose presence in the UK is otherwise considered not conducive to the public good. Our records show that you fall into one or more of these categories."
This decision letter contains no express reference to any of particular sub-paragraphs of Article 1F and in particular no reference at all to Article 1F(b), nor does it refer expressly to the reasons letter of 9 Apri1 2010. No explanation is given as to what "records" demonstrated that the Claimant fell into "more than one" of the three enumerated exclusions from the One Off Exercise. There was no reference to JS (Sri Lanka).
i) In light of further evidence, not available to the Adjudicator, the Claimant's account of his history and the basis of the criminal charges against him was accurate.
ii) The Secretary of State had serious reasons for considering that the Claimant had committed a serious non-political crime (namely admitted possession of a firearm) and so fell to lose the protection of the Refugee Convention pursuant to Article 1F(b).
iii) That, given the Claimant's admitted involvement in the PKK and encouragement of people in an armed struggle against the Turkish Government, the Secretary of State had serious reasons for considering that the Claimant had been guilty of acts contrary to the principles and purposes of the UN and so lost the protection of the Convention pursuant to Article 1F(c).
iv) Accordingly the Claimant did not qualify for asylum nor for inclusion in the One Off Exercise.
v) However the Claimant was granted discretionary leave to remain for a specified period given the risk of breach of his Article 3 ECHR rights if returned to Turkey.
Decision letter of 6 August 2010
2) We have carefully considered whether you are eligible for a grant of indefinite leave within the terms of the exercise, but for the reasons given below we have concluded that you do not qualify.
3) The terms of the exercise do not apply to a family where the principal applicant or any of the dependants is regarded as presenting a risk to security or falls within the scope of Article IF of the Refugee Convention or whose presence in the UK is otherwise considered not conducive to the public good.
4) It is considered that there are serious reasons for believing that you have committed a serious, non-political crime, prior to coming to the UK and that you have committed acts contrary to the purposes and principles of the United Nations.
5) In your further submissions dated 3 October 2003 you state that you were actively involved in the Parti Karkerami Kurdistan (PKK) to the extent of encouraging people in an armed struggle against the Turkish government for the creation of a separate Kurdish state. You further stated that on 2nd July 1996 you were with some PKK members when the exchanged fire with Turkish soldiers. You admit to possessing a firearm which was later discovered by the security forces who raided your flat in the Adana district. You claim never to have used the weapon but kept it with you for your personal safety as you were well known to the authorities as an active member with Halkin Demokrasi Partisi (HADEP) and the PKK.
6) You have submitted an indictment issued by the Chief Public Prosecutor in Adana, dated 13 December 1996, which records that you have been sentenced to 12 years, 4 months and 8 days imprisonment for carrying out illegal activities under the auspices of the HADEP party and carrying out activities against the Republic of Turkey. The indictment also records that your house was searched and a Takarof 9mm calibre pistol, one cartridge clip and 38 rounds of ammunition were found.
7) Consideration has been given to your representations of 3 October 2003, along with the evidence provided since your appeal determination of 23 September 2002 relating to your conviction in Turkey and activities in support of HADEP and the PKK whilst in Turkey, including the evidence provided in support of your son Mustapha Polat's asylum claim. It is noted that the Immigration Judge in Mustapha's appeal considered further evidence to that which was produced in your own appeal, including an expert report from Mr Norton of the University of Durham in relation to the documents recording your conviction in Turkey. Furthermore, in the determination of your son Mustapha's appeal dated 9 June 2005, reference was made to expert medical evidence in support of your son's claim to have been targeted in Turkey due to his connection to you and your absence from Turkey. In light of your representations of 3 October 2003 and the findings of the AIT in relation to your son's asylum claim, it is therefore considered that there is a reasonable likelihood that you were engaged in the activities in which you claim and that you have been convicted of carrying out illegal activities in Turkey, as contained in the indictment dated 13 December 1996."
Then, after setting out expressly the provisions of Article 1F(b) and 1F(c), this letter addressed, in turn and in detail, the position of the Claimant under each of those distinct provisions. In paragraphs 10 to 17, the Secretary of State addressed Article 1F(b) in detail, concluding in paragraph 13 that "there are serious reasons for considering that you committed a serious non-political crime in Turkey prior to your admission to the United Kingdom". Much of the reasoning in these paragraphs repeats the reasoning in paragraphs 10 to 17 of the 9 April reasons letter (dealing with refusal of asylum).
"22) It is noted that there is no suggestion within your representations ... , in which you provide " a full and frank disclosure about past activities" ... that you were coerced in any way in order to support or assist the PKK. It is considered, from your own evidence, that you were aware of the PKK's aims and the methods that the organisation employs in achieving its aims , as you would have been unable to "encourage people in an armed struggle" without this knowledge.
23) It is considered that you held a position of some significance within the PKK, as you we able to encourage others in an armed struggle against the Turkish authorities. Furthermore, you claim to have been actually present at an incident in which PKK activists exchanged gunfire with Turkish security forces.
24) Furthermore, it is considered that your activities for the PKK, namely that you encouraged people in an armed struggle against the Turkish government, demonstrates that you were fully aware of the PKK's violent tactics in attempting to achieve its aims and that you voluntarily contributed in a significant way to the PKK's ability to pursue its purpose of seeking a separate Kurdish state through terrorist acts. As such, it is considered that you have voluntarily contributed to the PKK's attempts to pursue its purpose, aware that your acts will assist this organisation. As such, it is considered that you are guilty of acts contrary to the purposes and principles of the United Nations."
Finally, at paragraph 25, the letter reached its overriding conclusion, in the following terms:
"You are therefore regarded as a person who falls within the scope of Article 1F of the Refugee Convention. As such, you do not qualify for inclusion in the exercise."
- The Claimant had been a very active member of HADEP, which was a legal political party until 2003. The activities in the Indictment were HADEP activities.
- He had been a more avid supporter of the PKK than stated in the initial asylum claim and he had provided food and shelter for the PKK and supported them in the separatist struggle. However he had never been a member of the PKK and he had not been involved in any violence or advised anyone in violence.
- He had never been involved in or supported any terrorist activity.
- As regards the incident on 2 July 1996, he had been there because he worked at the dam and had been merely a witness to events.
- A sentence of 12 years had been imposed in his absence, but he had not done anything to justify such a sentence.
- The weapon was not a Takarof – it was a hunting gun for which he had a permit.
The Issue and the parties' contentions
The Claimant's case
The Secretary of State's case
The relevant evidence: the letter of 30 September 2003 and the further witness statement
Issue (1): Article 1F(b)
Issue 2 Article 1F(c) – contribution to terrorist acts
(i) The nature and size of the organisation and particularly the part of it with which the Claimant was himself most directly concerned
(ii) Whether and if so by whom the organisation was proscribed
(iii) How the Claimant came to be recruited
(iv) The length of time the Claimant remained in the organisation and opportunities to leave
(v) Position, rank, standing and influence in the organisation
(vi) Knowledge of war crimes activities
(vii) Own personal involvement and role in the PKK, including particularly whatever contribution the Claimant made towards the commission [of war crimes]
Conclusions on Article 1F(c)