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Youssef and N2 v Secretary of State for the Home Department

[2018] EWCA Civ 933

Facts:

N2 was convicted of six counts of possession of a record for a purpose connected with the commission or
preparation of an act of terrorism, contrary to section 54 of the Terrorism Act 2000. He was also convicted
of two counts of acquiring criminal property for non-terrorist purposes. The convictions were based on
computer files discovered on two computers in his possession in April 2006. The material included
descriptions of how to establish a jihadist organisation, and how to make viable explosives or other
dangerous material.

The Appellant Youssef is an Egyptian national, who arrived in the United Kingdom in 1994. He has a
complex background, which has included the accusation (now no longer maintained for the purposes of
these proceedings) that he has been involved in Islamic terrorist activities. However, it is said that he has
published many sermons and other material on the internet glorifying Al Qaeda, and past and present
leaders of Al Qaeda.

In these linked cases, the Respondent argues that each Appellant was properly excluded from reliance on
(and the benefit of) the United Nations Refugee Convention 1951 ["the Refugee Convention"], as their
differing activities were sufficient to satisfy the test in Article 1F(c) of the Convention: each "has been
guilty of acts contrary to the purposes and principles of the United Nations"

Issue:

1. Whether or not to fall within the subsection, an act must either constitute a crime under Article
1F (a), or must be shown to have led to the commission of such a crime.

2. Whether or not at least, Article 1F(c) required a completed or attempted terrorist act – not mere
preparatory acts.

3. Whether or not “mere speech” could not be contrary to the principles and purposes of the United
Nations, and in this case was not sufficiently serious to engage Article 1F(c) – an issue the Upper
Tribunal had entirely failed to consider.

Ruling:

The Court of Appeal (in a leading judgment by Irwin LJ) rejected the first argument for fairly
comprehensible reasons: the proposed reading of Article 1F(c) would render it completely superfluous,
and would ignore the difference between its reference to “acts” and the references in (a) and (b) to
“crimes”.

The reasoning in relation to the second argument was more limited: the Court simply identified a UN
Security Council resolution and a decision of the CJEU which both, in its view, supported the conclusion
that Article 1F(c) was not confined to completed or attempted terrorist acts. Rather, it seems the Court
considered (at least implicitly) that the degree of connection with specific acts would go to the fact-
sensitive question of whether the identified conduct was “contrary to the purposes and principles of the
United Nations” and was sufficiently serious to engage the exclusion clause.
In respect of the third argument, the Court took its lead from the judgment of the Supreme Court in Al-
Sirri v SSHD [2012] UKSC 54. In that case, the Supreme Court had:

 endorsed para 17 of the UNHCR guidelines on Article 1F(c), which state that the clause is “only
triggered in extreme circumstances by activity which attacks the very basis of the international
community’s coexistence”, and only by activity which has an “international dimension”;

 considered it “very likely” that “inducing terror in the civilian population or putting such extreme
pressures upon a government [as terrorist acts are intended to] will… have the international
repercussions referred to by the UNHCR”; and

 considered that, in cases where “a person plots in one country to destabilise conditions in
another”, whether Article 1F(c) is engaged will depend on the circumstances – the overriding
question being “whether the resulting acts have the requisite serious effect upon international
peace, security and peaceful relations between states.”

On this basis, the Court of Appeal summarized the test under Article 1F(c) as requiring both “the necessary
character” and “the necessary gravity”. It concluded that, in Youssef’s case, the Upper Tribunal had failed
to give proper consideration to the “gravity” element; it therefore allowed the appeal on this narrow
ground, and remitted the matter for reconsideration.

R (Gulf Centre for Human Rights) v Prime Minister


[2018] EWCA Civ 1855

Facts:

The Court of Appeal has dismissed an appeal brought by the Gulf Centre for Human Rights (“GCHR”),
refusing to grant permission to apply for judicial review in relation to a decision by the Cameron
Government to amend the Ministerial Code of Conduct (“the Code”).

GCHR sought permission to apply for judicial review on three grounds:

1. The deletion was unlawful because it was done in secret and without consultation;

2. The deletion was carried out for an improper purposes and/or in an improper manner; and

3. The decision to make the deletion was irrational.

Permission was refused on the papers by Cranston J on 11 February 2016, and refused again at an oral
renewal hearing by Mitting J on 17 March 2016. As described in the earlier post, Mitting J concluded the
deletion could not be “capable of amounting to a justiciable or worthwhile challenge to a decision”.
Mitting J’s refusal was based primarily on two findings: (i) the Code “does not and cannot in any way affect
the legal duties of ministers” and (ii) the deletion pertains merely to the introductory wording, and not
the “operative Code”. Mitting J concluded that the amended version of the Code is “plainly lawful” and
that a change “from one lawful wording to another lawful wording, even if unexplained” cannot give rise
to a judicial review claim with any realistic prospect of success.
Issue:

Whether or not the amendment amounted to a substantive change in that the deleted words imposed an
obligation on ministers to comply with international law and treaty obligations above and beyond those
incorporated into domestic law

Ruling:

The Court held that paragraph 1.2 of the Code does not impose separate or freestanding duties and simply
refers to existing legal duties outside the Code. It was held that the words “international law and treaty
obligations” are subsumed with the general and unqualified duty “to comply with the law”. The Court
concluded that the deletion did not involve a change in substance in view of the “the language used and
the referential status of paragraph 1.2”. The Court also relied on assurances in the House of Lords by the
Minister of State at the Ministry of Justice (Lord Faulks) to the effect that legal obligations on ministers
remain unchanged, and that this includes an obligation on members of the Executive to follow
international law.

Facts:

In 2010, the first defendant, African Minerals Ltd (“AML”), secured a license conferring upon it the mining
rights to the area and forthwith embarked upon a massive infrastructure project to construct a mine and
build a railway to transport the ore to the coast. For many of those living in the vicinity, the experience
must have been akin to that of an intense, unheralded and almost instantaneous industrial revolution
with all of the attendant stark contrasts of good and ill effects.

Thus it was that the impact of the arrival of AML upon the local population was both profound and
immediate. On the one hand, the promise of relatively well paid and steady employment augured well.
On the other, the inevitable disruption to traditional ways of life together with the tensions and
resentments consequent upon, for example, disputes over wage levels and the distribution of
compensation payments gave rise to serious conflict.

In November 2010, and again in April 2012, matters came to a head. Disputes between AML and members
of the community prompted a significant overreaction from some members of the Sierra Leone Police
(“SLP”) whose response to disruptive protests and threats against the personnel, property and business
of AML soon degenerated into violent chaos during the course of which many villagers were variously
beaten, shot, gassed, robbed, sexually assaulted, squalidly incarcerated and, in one case, killed.

The claimants allege that they were among the victims of these abuses. They also contend that, although
the SLP perpetrated the worst of these excesses, the defendants are nevertheless liable to compensate
them by the application of a broad range of distinct common law remedies to the facts of this case. The
defendants deny liability in respect of each and every legal ground relied upon.

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