Case No. UKUT-00376-(IAC)

paragraph 21: “The defendant may excuse his criminal conduct on grounds of duress only if, placed as he was, there was no evasive action he could reasonably have been expected to take.” 75. It seems clear from what is contained in Ms Enayat’s report that it is possible to resign from the Revolutionary Guard Corps in certain circumstances. In light of the fact that the appellant only claimed for the first time before us that her minimum term contract was 25 years we are not inclined to accept her evidence on this point. The appellant does not claim to have ever even raised the question of resignation or transfer to different duties or to a different post. In her own statement the appellant talks of prison employees being transferred to another establishment and of being told on commencing work that she might be transferred elsewhere. It seems obvious therefore that there were at least some opportunities for movement. By her own testimony the appellant never explored the availability of any such opportunity. 76. The weakness of the appellant’s position is revealed in the submission which Ms Pickup was forced to make on her behalf to the effect that if in reality permission to resign would not have been given it would not be reasonable to have expected the appellant to have made that request. It is implicit in what the appellant has herself said about the circumstances within the prison that it was possible to leave. She refers both to the possibility of transfer and of being fired. It is also plain from the evidence of Ms Enayat that there were circumstances in which it was possible to resign. The appellant neither sought to explore the availability of any such opportunity or to engineer circumstances in which she was fired. On the contrary, she conducted herself with such exemplary and continuous diligence that she was promoted without even having to apply. 77. The appellant is an intelligent, articulate and qualified woman . She is also resourceful. The account which she gives of her escape from Iran is illu minating. On learning that her relative had been brought to the prison she spoke with other family members that evening. She obtained some form of medicine from another family member , a doctor, which she then secretly passed to her relative at the prison in order that this would induce a temporary period of vomiting. As a consequence of this , her relative was transferred to the infirmary section of the prison. Knowing that the resident doctor left at 3:30 pm the appellant contacted the infirmary after this time and instructed the nurse to transfer her relative to an outside hospital. In order to sanction this arrangement she required to forge the signature of the head of the prison on a temporary exit form. The appellant then collected her belongings and returned home from where she contacted the hospital. She instructed the prison escort to return to the prison leaving only a single male escort sitting outside her relative ’s room. She then attended at the hospital taking clothes for her relative to change into. She instructed the remaining escort that she would take over observation and released him from duty to go and get some refreshment and to pray. She then escorted her relative out of the hospital room to meet with another family member waiting outside. A fter the appellant returned to the hospital room she confirmed by telephone that her relative had been collected safely and waited for the return of the remaining escort. When he returned she locked the door , handed him the key and instructed him to wait there until the morning , knowing that as a male member of the Revolutionary Guard he would not enter the room of a female patient. The appellant then left and met with her husband and child before making an illegal exit from the country . 78. The reality of the appellant’s account of acting under duress is that for a period of many years she took no steps whatsoever to avoid compliance with her duties in the prison, despite her knowledge of the consequence for those taken to the torture facility. Even despite being off work after the birth of her child for a lengthy period of time she chose not to explore any other option but to return to her duties in the prison. She continued in those duties accepting promotion along the way. The immediacy of her reaction on learning of her relative ’s detention and the combined manner of the transfer to hospital and subsequent escape is evidence of a cunning and resourceful nature , along with an ability and willingness to take appropriate steps when she chose to do so. 79.We are perfectly satisfied that the defence of duress cannot be engaged on the basis of the evidence which the appellant has adduced. It is untenable on the basis of the vague and speculative consequence which she has associated with making a request to be allowed to resign, leave or transfer. It is equally untenable on the basis of the appellant’s own evidence of having made no effort of any description to extricate herself from her duties at the prison over a period of many years. The harm which the appellant knew she was causing was out of all proportion to the risk to herself which she has identified as befalling her if she had made efforts to leave short of desertion. 80. In these circumstances we are satisfied that the necessary evidential burden has not been discharged by the appellant and she has advanced no valid answer to the serious reasons for considering that she has committed a crime against humanity as identified by the Secretary of State. Since we were otherwise satisfied that the Secretary of State was well entitled to arrive at the conclusion which she did , the appellant’s appeal against the Secretary of State’s decision of 2 October 2012 must fail. The same outcome would be reached if we viewed the matter in the way suggested by Ms Pickup. If we ask ourselves whether the Secretary of State has shown that there are serious reasons for considering that the appellant did not act under duress, then the answer is that she has, upon the same basis as we have just set out in paragraph 79 above. 81. We therefore uphold the Secretary of State’s certificate under Section 55 of the Immigration Asylum and Nationality Act 2006. The appellant’s claims under the Refugee Convention and the Qualification Directive are excluded by reason of article 1F(a) of the Refugee Convention and article 12.2 of the Qualification Directive and therefore cannot succeed.