AA (Art 1F(A) - Complicity: Arts 7 and 25 ICC Statute) Iran

JurisdictionUK Non-devolved
JudgeSenior Immigration Judge Grubb
Judgment Date29 July 2011
Neutral Citation[2011] UKUT 339 (IAC)
Date29 July 2011
CourtUpper Tribunal (Immigration and Asylum Chamber)

[2011] UKUT 339 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr C M G Ockelton, Vice President

Senior Immigration Judge Grubb

Immigration Judge Coker

Between
Akbar Azimi-Rad
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Ms M Plimmer, instructed by Jackson & Canter Solicitors

For the Respondent: Ms S Marsh, Home Office Presenting Officer

AA (Art 1F(a) — complicity — Arts 7 and 25 ICC Statute) Iran

1. In establishing for the purposes of Art 1F(a) of the Refugee Convention that an individual was complicit under Art 25(3)(d) of the Rome Statute of the International Criminal Court (“ICC Statute”) in crimes against humanity perpetrated by others in an organisation, it was necessary to consider all the circumstances of the appellant's involvement in that organisation in order to determine whether what the appellant did made a significant contribution to the organisation's ability to carry out crimes against humanity: R (on the application of JS) (Sri Lanka) v SSHD [2010] UKSC 15 . (See also Joined Cases C-57/09 and C-101/09Bundesrepublik Deutschland v B and D [2011] Imm AR 190).

2. However, in establishing this (wider) form of complicity liability under international criminal law it was not necessary to establish that the appellant's acts formed ‘part of” a crime against humanity committed by others in the sense that the appellant's acts were of such a character as, in themselves, to fall within one or more of the categories of acts which if committed as part of a widespread or systematic attack directed against any civilian population were capable of amounting to a crime against humanity under Art 7 of the ICC Statute.

DETERMINATION AND REASONS
1

The appellant is a citizen of Iran who was born on 9 January 1984. He arrived in the United Kingdom on 3 April 2007 and claimed asylum the following day. On 22 June 2010, the Secretary of State refused to grant the appellant asylum under para 336 of the Immigration Rules HC 395 (as amended) and on 28 June 2010 made a decision to remove him as an illegal entrant to Iran by way of directions under paras 8-10A of Schedule 2 to the Immigration Act 1971. The appellant appealed against that latter decision to the First-tier Tribunal. In a determination sent on 20 August 2010, Immigration Judge Lambert allowed the appellant's appeal under Art 3 of the European Convention on Human Rights but dismissed his appeal on asylum and humanitarian protection grounds. The judge found that the appellant was excluded from the protection of the Refugee Convention by virtue of Art 1F(a) in that there were serious reasons for considering that he had been complicit in crimes against humanity as a member of the Basij ( Nirouye Moqavemate Basij) which is a volunteer paramilitary force founded in 1979 by Ayatollah Khomeini whose mission is to maintain law and order and to enforce ideological and Islamic values in Iran.

2

The appellant sought permission to appeal on the basis that the judge had erred in law in finding that the appellant was excluded from the protection of the Refugee Convention by virtue of Art 1F. On 14 September 2010, Senior Immigration Judge Freeman granted the appellant permission to appeal to the Upper Tribunal. Thus, the matter came before us.

Background
3

The judge accepted much of the appellant's account and the underlying facts are no longer in dispute. The appellant was a member of the Basij in Iran which he had joined at the age of 12 in 1995. In 2003-4 he performed his military service with the Revolutionary Guard in Teheran. He was a committed and respected member of the Basij of some local rank. In fact, he was the commander in his village. In 2004 he received a “Basij of the year” award. The appellant had not personally been involved in acts of violence against Iranian civilians. However, he had witnessed such acts of violence when he and his men were seconded to patrol or man checkpoints in the nearby town of Miyaneh. There, however, he was not in command of his Basij colleagues.

4

The appellant is a Shia Muslim of Azeri ethnicity. He provided helpful information to an Azeri friend, with whose politics he had some sympathy. The appellant gave his friend advance warning of the nights that he would be on duty so that his friend, in furthering his political activities, could avoid checkpoints manned by the appellant on behalf of the Revolutionary Guard. The appellant also identified to his friend a number of plain clothes Basij operating in Miyaneh so that he would know not to mention his activities to them. In March 2007, whilst at his uncle's home, the appellant received a phone call from a friend in his village telling him that the Etelaat were looking for him and had searched his house and the Basij base. He later heard that they had also searched the coffee shop that he owned. The appellant concluded that it must be because his friend had been arrested.

5

Although the judge identified a number of discrepancies in the appellant's evidence, she nevertheless accepted the core elements of his account to be true. As a consequence, the judge found that he would return to Iran, which he had illegally left, without a passport and as a former member of the Basij who had departed suddenly after being suspected of having actively assisted dissident Aziris in their illegal activities. On the basis of that, the judge found that there was a real risk that the appellant would suffer serious ill-treatment by the Iranian authorities on his arrival at Tehran Airport in breach of Art 3 of the ECHR. Those factual findings were not challenged by the respondent in response to the grounds of appeal made under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698). Ms Marsh, who represented the respondent before us, also did not seek to challenge those factual findings and the judge's decision to allow the appeal under Art 3.

6

Before us, the sole issue raised by the parties was whether the judge had erred in law in finding that the appellant was excluded under Art 1F of the Refugee Convention.

The Appellant's Grounds
7

Before us, Ms Plimmer advanced three arguments in support of her submission that the judge had erred in law in applying Art 1F to the appellant.

8

First, she submitted that the judge had erred in law in finding on the evidence before her that the Basij were committing “crimes against humanity” falling within Art 7 of the Rome Statute of the International Criminal Court 2008 (“the ICC Statute”). In particular, Ms Plimmer submitted that the judge had been wrong to find that the Basij committed acts “as part of a widespread or systematic attack directed against any civilian population” that fell within the terms of Art 7 of the ICC Statute. We will refer to this as “Ground 1(a)”.

9

In her grounds of appeal, Ms Plimmer also argued that the judge had erred in applying Art 7 of the ICC Statute to the Basij on the basis that any attacks were directed only against civilians “seen to transgress the ideological and Islamic views laid down in Iranian law” and not against the population generally. Before us, Ms Plimmer no longer relied upon this argument. She accepted that it was sufficient that any such widespread or systematic attacks by the Basij were directed at this particular section of the Iranian population. We need say no more about this other than to note, in our view, Ms Plimmer was right not to pursue this argument which could not be sustained as a proper legal interpretation of Art 7 of the ICC Statute.

10

Secondly, Ms Plimmer submitted that the appellant's activities on behalf of the Basij must be linked to acts amounting to crimes against humanity falling within Art 7 of the ICC Statute. In particular, these acts must be “part of” those crimes. On the evidence accepted by the judge, Ms Plimmer submitted that the appellant had never been involved in any acts that fell within Art 7 of the ICC Statute and thus his actions could not amount to a “crime against humanity” within Art 1F(a) of the Refugee Convention. We will refer to this as “Ground 1(b)”.

11

Thirdly, Ms Plimmer submitted that the judge had erred in law in assessing the appellant's “personal responsibility” within Art 25 of the ICC Statute for the acts committed by the Basij which – if the judge were correct in making this finding – amounted to “crimes against humanity” within Art 7 of the ICC Statute. Ms Plimmer submitted that in assessing the appellant's “personal responsibility” the judge had failed to carry out a proper assessment of the appellant's circumstances (his actions and involvement with the Basij) in accordance with the approach set out in the Supreme Court decision of R (on the application of JS) (Sri Lanka) v SSHD [2010] UKSC 15, especially as set out by Lord Brown at para [30]. We will refer to this as “Ground 2”.

The Law
12

We begin with the relevant legal provisions in (1) the Refugee Convention and so far as relevant, the Qualification Directive ( Council Directive 2004/83/EC); (2) the ICC Statute; and (3) the relevant case law, in particular the Supreme Court decision in JS.

1

Art 1F

13

The starting point is Art 1F of the Refugee Convention which sets out the circumstances in which an individual will be excluded from the protection of the Refugee Convention. Art 1F(a) provides, so far as relevant to this appeal, 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 humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; …”

14

That provision is reflected in Art 12(2)(a) of the EU Qualification Directive.

2

The ICC Statute

15

It is common ground in this appeal that the burden...

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