Case No. UKUT-00376-(IAC)

. 2. The overall burden remains on the respondent to establish that there are serious reasons for considering that the appellant did not act under duress. DECISION AND REASONS Background and introduction 1. This appeal concerns the remaking of the decision on the appellant’s appeal against the respondent’s refusal to grant her claim for asylum. 2. The appellant is an Iranian 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 ) v SSHD [2013] EWCA Civ 835 , Ms Pickup accepted that, subject to other considerations, the appellant’s conduct met the test of facilitating the acts of torture by aiding and abetting their commission as defined in article 25 of the ICC Statute. Her contention was that the appellant had been acting under duress and was therefore not criminally responsible. Again, we shall look separately at Ms Pickup’s submissions on this point later. Our i nitial a ssessment 26. The respondent would only be entitled to conclude that the appellant was excluded from the protection of the Refugee Convention if the terms of article 1F(a) of that Convention applied. In the present case the respondent relies on the evidence of torture taking place within the area of the prison under the control of the Intelligence Service and contends that this conduct falls within the definition of a crime against humanity. As was correctly acknowledged, that requires an analysis of the meaning of a crime against humanity as specified in article 7 of the ICC Statute. So far as relevant to the present case , article 7 provides as follows : “1. For the purposes of this Statute ‘cri me against humanity’ means any of the following acts when commit ted as part of a widespread or systematic attack directed against any civilia n population, with knowledge of the attack: (f) Torture ; 2. For the purposes of paragraph 1: (a) ‘Attack directed against any civilian population’ means a course of conduct involving the multiple com mission of acts referred to in paragraph 1 against any civilia n population, pursuant to or in furtherance of a State or organi z ational poli cy to commit such attack; (e) ‘Torture’ means the intentiona l infliction of severe pain or suffering, whether physical or mental, u pon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inher ent in or incidental to , lawful sanctions;” 27. The first sentence of paragraph 1 of article 7 comprises what is known as the “chapeau” requirement, meaning that it covers or prefaces the particular provisions which follow. The available background evidence referred to in the respondent’s reasons for refusal letter , as taken along with the country expert reports relied upon by both the respondent and the appellant , vouch that the Iranian regime has been engaged in the brutal and systematic repression of civil society. The means through which that repression has been achieved include the widespread use of arbitrary detention of dissidents, activists and intellectuals accompanied by the routine use of torture to induce confessions which can be used in legal proceedings to support vague charges such as “propaganda against the state” and “endangering the security of the state”. We accept this evidence, none of which was challenged. The prison in which the appellant worked was one of those to which such political prisoners and dissidents were taken for the purposes of this detention. We also accept that acts of torture such as would fi t the definition in article 7 paragraph 1 (f) of the ICC Statute took place on a routine basis over many years within the prison where the appellant was employed. We accordingly hold that the “chapeau” requirement has been established and that the respondent was correct to conclude that crimes against humanity were committed in the prison. 28. In examining the appellant’s own involvement in such crimes w e recognise the importance of the distinction drawn by Ms Pickup between membership of, or association with, the general body of the Revolutionary Guard and membership of the Intelligence Directorate or Service. We see the force in her submissions concerning the wide range of functions undertaken by the Revolutionary Guard and we therefore do not accept that the appellant must have known of or approved of what was taking place at the prison prior to commencing her post. Mere membership of an organisation with such a diverse function as the Revolutionary Guard Corps could not be said to involve personal and knowing participation in persecutory conduct conducted by some of its elements – JS ( Sri Lanka ) Lord Hope at paragraph 44. 29. The appellant ’s own evidence was that she had no reason to be aware of the practices conducted in the section of the prison controlled by the Intelligence Service prior to her commencing employment but that she became aware of them after working within the institution for a short period of time. Although she may, perhaps , have been somewhat idealistic, given her age and background when being offered the post at the prison we accept the appellant’s evidence as to her appreciation of what her role would involve. We accept her consistent account that she only learned of the conduct of the Intelligence Service after commencing her employment. Nevertheless , it is plain that from shortly after commencing her service the appellant’s conduct contributed in a significant way to the Intelligence Service’s ability to pursue its purpose of committing a crime against humanity. On a regular basis over a period of years she was directly responsible for removing those prisoners listed for interrogation and ensuring that they were transferred directly to the separate torture facility, in the full knowledge of what would befall those individuals on being left there. In later years she had a supervisory and controlling function. Article 25 paragraph 3(c) of the ICC Statute brings home criminal responsibility to those who aid and abet for the purpose of facilitating the commission of a crime. Aiding and abetting in this context encompasses any assistance, physical or psychological, that has a substantial effect on the commission of the crime, it is not necessary to establish a common purpose – MT (Article 1F (a) aiding and abetting) Zimbabwe [2012] UKUT 15. 30. Having assessed the appellant’s conduct in the manner we have , it is worth repeating the approach to article 1F as articulated by Lord Brown in JS ( Sri Lanka ) which the Upper Tribunal drew on in arriving at its decision in the case of MT Zimbabwe . At paragraphs 35 – 39 Lord Brown said the following: “35. It mu st surely be correct to say … that article 1F disqualifies those who make a ‘substantial contribution to’ the crime, knowing that their acts or omissions will facilit ate it … [ and ] that article 1F responsibility will attach to anyone … c ontributing to the commission of such crimes by substantia lly assisting the organisation to continue to function effectively in pursuance of its aims. 36. Of course, criminal responsibil ity would only attach to those with the necessary mens rea (mental eleme nt). But, as article 30 of the ICC Statute makes plain, if a person is aware that in the ordinary course of events a particular consequence will follow from his actions, he is taken to have acted with both knowledge and intent. 38….. Put simply, I would hold an accu sed disqualified under article 1F if there are serious reasons for consi dering him voluntarily to have contributed in a significant way to the or ganisation’s ability to pursue its purpose of committing war crimes, aware that his as sistance will in fact further that purpose.” 31. Applying all of these considerations to the question of whether the Secretary of State has established that there are serious reasons for considering that the appellant has been guilty of crimes against humanity, we turn to the autonomous meaning to be given to the words “serious reasons for considering”. We have applied the guidance given in paragraph 75 of the decision in Al Sir r i v Secretary of State for the Home Department [2012] UKSC 54 where their Lordships said: “(1) ‘Serious reasons’ is stronger than ‘reasonable grounds’. (2) The evidence from which these reasons are derived must be ‘clear and credible’ or ‘strong’ (3) ‘Considering’ is stronger than ‘suspecting’. In our view it is also stronger than ‘believing’. It requires the considered judgement of the decision maker. (4) The decision maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law.” 32. The evidence bearing upon the appellant’s complicity is clear, credible and strong. It comes from her own statements and testimony and provides an uncontested picture of her knowingly providing assistance to those who perpetrated torture within the prison in which , latterly, she was the Deputy Governor. That knowledge and assistance, in our view, easily meets the test of aiding and abetting and, but for the qualification of whether her participation was “voluntary”, we would hold that the Secretary of State was correct to conclude that there are serious reasons for considering that the appellant has been guilty of crimes against humanity. That conclusion takes us into the only real issue in the case, that of duress. The submissions on duress for the respondent 33. On behalf of the Secretary of State it was acknowledged that article 31 of the ICC Statute provides for a defence of duress , as there defined. It was submitted though that there was no onus on the Secretary of State to disprove the defence and that since the process of the International Cri minal Court was inquisitorial it was really a matter for the court alone to resolve . This was developed into a submission that the burden of establishing duress lay with the appellant and reliance was placed for this proposition on the decision of the Canadian federal court in Oberlander v Attorney General of Canada 2015 FC 46 ( CanLII ) . However , the Secretary of State was not able to assist with a submission as to what standard of proof the appellant would require to reach. 34. Despite these submissions on the availability of a defence of duress, the Secretary of State also submitted that duress did not constitute a defence in international criminal law and went only to mitigation. For this submission she relied upon the decision of the International Criminal Tribunal for the former Yugoslavia in the case of Erde movic ( IT-96-22-A ). 35. On the facts of the present case , the Secretary of State submitted that on her own evidence the appellant was fully aware of what was taking place within the prison and that she had taken no steps to distance herself or to avoid participation. It was pointed out that she had been away from work for a period of maternity leave and had returned voluntarily. It was pointed out that she had subsequently been promoted, that she had never asked to resign or sought a transfer to a different post and the totality of the evidence suggested that she participated voluntarily in her duties. The submissions on duress for the appellant 36. On behalf of the appellant , Ms Pickup drew attention to the terms of article 3 1 of the ICC Statute, which sets out the available defences and observed that acting under duress was specifically included. She drew attention to the terms of article 66 setting out the presumption of innocence and to the terms of article 67 setting out the prohibition on any reverse burden of proof or onus of rebuttal. She drew attention to the way this had been interpreted in Ambos’s Treatise on International Criminal Law , Volume 1 pp 312 to 315 , where the author stated: “In the context of defences it is particularly important that the ICC Prosecutor is under the legal obligation to est ablish the truth and, in doing so, investigate incriminating and exonerating circumstances equally. [….] At the very least, one has to apply the rule prohibiting any reversal of the burden of pr oof or onus of rebuttal to the detriment of the accused not only to the elemen ts of the offence, but equally to defences, that is, the Prosecutor is obliged to disprove the existence of a defence beyond reasonable doubt.” 37. Ms Pickup accordingly submitted that as a matter of international criminal law the defence of duress was available to the appellant and that the onus of disproving that defence lay on the Secretary of State. The particular application of that onus in the present proceedings would require the Secretary of State to demonstrate that there were serious reasons for considering that the appellant did not act under duress. Ms Pickup submitted that the case of Erdemovic was of no assistance as it did not concern the application of the ICC Statute and the case of Oberlander was distinguishable , as it concerned the application of Canadian statutory provisions. 38. Ms Pickup relied upon the evidence given by the appellant herself and the expert report from Ms Enayat . She submitted that this evidence in combination supported the finding that the appellant was required by law to complete a 25 year term of employment at the prison. She submitted that the evidence vouched the proposition that resignation would only be possible after the minimum required period and that even asking for permission to resign would lead to suspicion and possibly threat. She asked us to accept 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. Ms Pickup submitted that on the evidence the appellant’s only realistic method of leaving the prison was to do so without permission which would be considered desertion. The expert evidence vouched that desertion would lead to imprisonment in conditions in which there would be a high risk of torture and other forms of abuse. The i ssue of d uress 39. The first question to be addressed is whether an individual could avoid exclusion from the protection of the Refugee Convention under article 1F(a) upon the basis that whilst he or she might appear to have engaged in conduct which would fit the definition of crimes against humanity, he or she was acting under duress. 40. Since it is recognised that the meaning to be given to this article is to be found in international law, and that the guiding instrument is the ICC Statute, this would seem the most obvious place to begin to look for the answer. Article 31 is headed up: “Grounds For Excluding Criminal Responsibility”. Paragraph 1 provides as follows: “1. In addition to other grounds for e xcluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct: … (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Cou rt has been caused by duress resulting from a thr eat of imminent death or of continuing or imminent seri ous bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid th is threat, provided that the person does not intend to ca use a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.” 41. The wording of this a rticle appears to provide an unequivocal statement that criminal responsibility shall not attach to an individual who acts under duress, as so defined. If it was accepted that an individual acted under duress it is therefore difficult to see how there could be serious reasons for considering that such a person had committed a crime against humanity, as defined in the international instruments. However, the respondent does not appear to adopt this interpretation. In her letter giving reasons for refusal of the appellant’s claim, the respondent sets out a heading of “Defences/Excuses” above paragraph number 136. She then quotes a rticle 31 of the ICC Statute, without any elaboration or explanation. The next paragraph is in the following terms: “137.