Case No. UKUT-00376-(IAC)

ian citizen. She held a senior role in a women’s prison under the control of the Islamic Revolutionary Guard Corps in which political prisoners were detained and tortured. In 2009 she, her husband and her young child left Iran clandestinely with the help of an agent. Having become separated from her husband, the appellant arrived in the United Kingdom with her child in September 2009 and claimed asylum. It transpired that her husband had made his way to Turkey but had been forcibly returned from there to Iran , where he was detained and tortured over a period of months. On his release he subsequently made his way to the United Kingdom , arriving in December 2010, when he too claimed asylum. 3. The respondent refused each of the applications, giving reasons for doing so in the appellant’s case by letter dated 2 October 2012. In that letter the respondent explained her conclusion that the appellant was to be excluded from the protection of the Refugee Convention upon the grounds set out in a rticle 1F(a), namely that there were serious grounds for considering that she had committed a crime against humanity, and her consequential certification under section 55 of the Immigration Asylum and Nationality Act 2006 that she was not entitled to the protection of a rticle 33 paragraph 1 of the Refugee Convention. For the same reasons she concluded that the appellant did not qualify for protection under the Qualification Directive. The appellant, her child and her husband all appealed against the respondent’s decisions and their linked cases were heard together before the First-tier Tribunal on 28 April 2014. 4. In its determination , the First-tier Tribunal upheld the respondent’s decision to exclude the appellant from protection under the Refugee Convention and the Qualification Directive and in doing so rejected the appellant’s claim that she was excluded from criminal responsibility on account of having acted under duress. However, by concession it allowed the appellant’s appeal on human rights grounds on the basis that she would be at real risk of ill treatment on return to Iran . The appeals of the appellant’s husband and her child were each allowed on both asylum and human rights grounds. 5. After permission to appeal to the Upper Tribunal was refused the appellant sought Judicial Review, which was granted with the following observations: “The Grounds for seeking Judicial Review are reasonably arguable. Furthermore, a point of principle of general importance is at issue, namely the proper burden of proof when an applicant for refugee status claims that she should not be re garded as complicit in a crime against humanity because of duress (and, more specifically, whether it is for her to show that she could not have avoided the duress by , for instance, resigning from her post, or whether it is for the SSHD to show that this was a course that had been open to her).” 6. By determination dated 19 December 2015, Deputy Upper Tribunal Judge Chamberlain held that the decision of the First-tier Tribunal involved the making of an error on a point of law, as its finding that the appellant could have left the prison service “without serious difficulty” was inadequately reasoned and not supported by evidence before it. The decision on the appellant’s appeal was ordered to be remade with the original findings and decision in relation to exclusion from protection under the Refugee Convention and the Qualification Directive (paragraphs [55] to [65]) being set aside. The remaining findings and decisions of the First-tier Tribunal were preserved. The h istory of the a ppellant’s i nvolvement with the Iranian Revolutionar y Guard Corps 7. The evidence available on this matter comprised the content of the appellant’s screening interview dated 15 September 2009, the content of her asylum interview dated 23 October 2009, the content of her statement dated 27 April 2014, the content of her supplementary statement dated 26 May 2016 and the oral testimony which he gave before us. With one possibly significant exception , to which we will return later, the appellant has been broadly consistent in the account which she has given throughout. 8. From these sources an accepted account of the appellant’s life in Iran can be distilled. As a teenager , and after her two older brothers were sent to war , she began working for the Basij (a volunteer organisation for young Iranians subordinate to the Revolutionary Guards) . In this capacity she attended to fairly menial tasks in her local mosque whilst still at school and thereafter, whilst studying at University, provided assistance to the mosque in other ways , such as bookkeeping. She obtained a degree and was then referred by her mosque to the personnel d epartment of the Revolutionary Guard. In due course, in her mid-twenties , she was invited for an interview and offered a position as a prison guard in a women’s prison. She was given to understand that the prisoners were political prisoners who attempted to mislead others with philosophy and writings and were in prison because of the danger which they posed to other members of society. After discussion with a senior member of her mosque she decided to accept the position, understanding that she might be able to help rehabilitate those in prison and through her belief in the Revolution might be able to help them back to the right way of thinking by bringing them back to Islam and the Hezbollah way. 9. The prison at which the appellant commenced work was operated by the Revolutionary Guard Corps and contained between 150-260 female inmates. It was a temporary detention facility, known by number rather than name and had no official address. Correspondence was brought to and taken from the prison by the Revolutionary Guard’s own courier service. Within the prison there was a separate section controlled by the Hefazat -e Etelaat -e Sepah Pasderan - the Intelligence Service of the Revolutionary Guard. Certain prisoners were selected for transfer to that section for interrogation achieved by means of torture. Part of the appellant’s function as a guard was to participate in the physical process of transferring these prisoners. 10. After the appellant’s child was born she took maternity leave for a period of nine months. After that she remained off work for a period of two years having been diagnosed with depression which she attributed to the work which she did and the effect that it had upon her. 11. Towards the end of 2007, by which time she been employed at the prison for over ten years , the appellant was promoted to a senior post with a staff of around 12 other guards under her command. 12. She had responsibility for arranging the transfer of inmates from the general area of the woman’s prison to the section controlled by the Intelligence Service. A list of the inmates to be sent for interrogation would be provided to the governor who would in turn pass it to the appellant. The appellant would personally arrange the transfer of the named prisoners or instruct members of her staff to do so. 13. Prisoners transferred for interrogation were never returned to the general section of the prison. In evidence before us the appellant was coy in part about the fate of these individuals. She explained that she did not know whether they were transferred on to other prisons or what became of them. In her asylum interview though she explained that the section was where people were taken to get the last information out of them and within the prison it was known as : “the end of the line”. When asked at interview what she meant by that she explained that : “ normally the y wouldn’t be alive after that ” . 14. Having expressed that reservation about the appellant’s evidence , it is fair to recognise that from her screening interview onwards she has explained that prisoners were tortured and beaten. Consistently with this, while stating that she had never been in that section, in giving evidence before us she accepted straightforwardly that her understanding was that the prisoners who were sent there were tortured. 15. The appellant continued in her employment until 2009 when a relative was brought to her prison having been arrested at a demonstration. Her relative was placed in solitary confinement and the appellant’s understanding was that her relative was to be transferred to the section controlled by the Intelligence Service. After discussion with other family members the appellant arranged for her relative to be transferred to hospital from where they arranged for her relative to escape. Having paid a significant sum of money to an agent to provide assistance the family then left Iran . 16. From the date of her screening interview onwards the appellant has maintained that she was required to sign a contract of employment on taking up her position at the prison. At that time she explained that it was not possible to resign, she could not leave unless fired, she could not choose to leave and that she was sworn to secrecy. In her April 2014 statement she explained that when she signed her contract of employment she was told that she had to continue to work there until her retirement, or until her term of service had been completed, unless they transferred her elsewhere. She was not aware of anyone else ever leaving their post at the prison in any other circumstances. She said that she was quite sure that if she left she would have had a serious problem with the Revolutionary Guard. She thought that if she had asked to leave this would raise suspicions and she would have been suspected of having sold out or having passed on secret information about the prison. She explained that if she had left without permission she would have been treated as a traitor, imprisoned, tortured and perhaps raped. 17. In the appellant’s supplementary statement of May 2016, she stated that her term of service was twenty five years and that this was the period w hich she would have required to complete before being allowed to retire. She claimed t hat this was the normal period which women had to complete before they could leave their job or retire. It was a longer period for men. The appellant also claimed that it would have been possible for her to apply for early retirement after twenty years’ service. The r espondent’s o verarching p osition on the a ppellant’s c onduct 18. The respondent’s reasons for refusal letter begins with an assessment of the conduct of the Iranian authorities in recent years and then narrates , over some thirty or so pages , various, sometimes repetitive, circumstances and considerations which she appears to have taken into account in determining whether the appellant ought to be excluded from the protection of the Refugee Convention by virtue of article 1F. It is not always easy to follow the thinking which lies behind this letter and a number of the considerations identified have no application to the appellant and her conduct. However, having the benefit of the skeleton argument prepared on behalf of the respondent , and having heard submissions from Ms Isherwood, we understand the respondent’s position to be this. Article 1F of the Refugee Convention provides as follows: “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 i nternational instruments drawn up to make provision in respect of such crimes;” 19. The meaning to be given to article 1F(a) is to be found in international law rather than domestic law and the guiding instrument is the Rome Statute of the International Criminal Court (“the ICC Statute”). 20. The respondent contended that the acts of torture admittedly perpetrated within the prison in which the appellant worked were of a nature and extent such as would fall within the definition of a crime against humanity, as set out in article 7 of the ICC Statute. Although it was not suggested that the appellant personally conducted any acts of torture, she fell to be held responsible in light of the terms of article 25 paragraph 3(c) which attached criminal responsibility to someone who: “For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;” 21. The Secretary of State’s contention was that the appellant facilitated the acts of torture which occurred in the part of the prison controlled by the Intelligence Service by her conduct in identifying those prisoners who were listed for interrogation and by taking them from the general part of the prison to the part controlled by the Intelligence Service. It was contended that the mental elements of intent and knowledge required for criminal responsibility by the ICC Statute were met in light of the terms of article 30, which provides as follows: 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this articl e, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shal l be construed accordingly.” 22. On the appellant’s own evidence she intended that those identified by her as corresponding to the names on the list should be transferred to the relevant part of the prison and she did this in the knowledge that they would be subjected to torture once she had done so. She personally undertook the transfer on various occasions. In these circumstances the respondent contended that on the evidence available it was clear that the appellant’s conduct facilitated what occurred, that she knew what the consequence for the prisoners of her participation would be and she had therefore made a substantial contribution to the acts of torture constituting a crime against humanity perpetrated in the prison. Relying on the authority of R (JS ( Sri Lanka )) v SSHD [2010] UK SC 15 , the respondent submitted that she was therefore correct to conclude that there were serious reasons for considering that the appellant had committed a crime against humanity and her decision should be upheld. 23. We shall look separately at the respondent’s submissions on the issue of duress later . The a ppellant’s o verarching p osition 24. On behalf of the appellant , Ms Pickup drew attention to the background material available describing the constitution and purposes of the Revolutionary Guard Corps. She drew attention to the various different functions which were encompassed within the organisation. She pointed out that it had security functions, military functions, economic functions, and political functions. She also emphasised the distinction to be drawn between the general body of the Revolutionary Guard and the much smaller and separate Intelligen ce Directorate within the group . She submitted that the appellant’s membership of the Revolutionary Guard alone would not be sufficient to attach responsibility for the commission of crimes against humanity. She submitted that given the wide ranging functions of the Corps it could not be said that membership equated to support for torture or that the appellant’s previous association would have given her knowledge of what took place in the section of the prison controlled by the Intelligence Service prior to her taking up her post. 25. That having been said, Ms Pickup did not challenge the respondent’s contention that the Iranian state had been responsible for crimes against humanity as defined in article 7 of the ICC Statute, nor did she suggest that the respondent was wrong in founding upon the acts of torture perpetrated within the prison for this purpose. Taking account of the guidance given in JS ( Sri Lanka ) and in AA-R ( Iran