AB (Preserved FtT Findings; Wisniewski Principles) Iraq
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,O'Connor UTJ |
| Judgment Date | 11 August 2020 |
| Neutral Citation | [2020] UKUT 268 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 11 August 2020 |
[2020] UKUT 268 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and O'Connor UTJ
Mr H Blaxland QC and Mr R Toal instructed by Wilson Solicitors LLP, for the Claimant;
Mr R Dunlop QC instructed by the Government Legal Department, for the Secretary of State.
Al-Sirri v Secretary of Slate for the Home Department; DD (Afghanistan) v Secretary of State for the Home Department[2012] UKSC 54; [2013] 1 AC 745; [2012] 3 WLR 1263; [2013] 1 All ER 1267; [2013] Imm AR 330; [2013] INLR 665
Al-Sirri (Asylum – Exclusion Article 1F(c)) [2016] UKUT 448 (IAC)
Commissioners for Her Majesty's Revenue and Customs v Pendragon Plc and Others [2015] UKSC 37; [2015] 1 WLR 2838; [2015] 3 All ER 919
Jaffray and Others v Society of Lloyd's [2002] EWCA Civ 1101
MAB (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 1253; [2020] Imm AR 63
MH (Syria) v Secretary of State for the Home Department; DS (Afghanistan) v Secretary of State for the Home Department[2009] EWCA Civ 226; [2009] 3 All ER 564; [2009] Imm AR 648
MS and YZ v Secretary of State for the Home Department [2017] CSIH 41
Magdeev v Tsvetkov [2020] EWHC 887 (Comm)
McQueen v Great Western Railway Company (1874–75) LR 10 QB 569
O'Donnell v Reichard [1975] VR 916
R (on the application of Kuzmin) v General Medical Council [2019] EWHC 2129 (Admin); [2019] 1 WLR 6660
Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195; [2014] Imm AR 911
TA (Sri Lanka) (by her litigation friend AB) v Secretary of State for the Home Department [2018] EWCA Civ 260
Wisniewski v Central Manchester Health Authority [1998] Lloyd's Rep Med 223; [1998] PIQR P324
Refugee Convention 1951, Article 1F
Tribunals, Courts and Enforcement Act 2007, section 12
Asylum — exclusion clause — Article 1F(a) of the Refugee Convention — complicity in crimes against humanity — provision of medical care to tortured prisoners — evidence — assessment of evidence — party's absence or silence — adverse inferences — prima facie case — Wisniewski principles — procedure and process — remittal — scope of UT's exercise — preserved FtT findings of fact
The Claimant, a citizen of Iraq, worked at the headquarters of Saddam Hussein's military intelligence agency, Al-lstikhbarat, in Iraq between 1992 and 1994. He was performing his compulsory military service there, as a doctor. He worked at a clinic in the headquarters, treating both military intelligence officers and their prisoners. On occasion he was also taken to visit camps, where he treated prisoners. He left Iraq in December 1995, travelling to Libya, where he worked as a doctor for four years. He arrived in the United Kingdom in January 2000, with entry clearance as a visitor. His leave was subsequently extended. In February 2007, he claimed asylum.
In January 2011, the Secretary of State for the Home Department's War Crimes Unit informed the Claimant that he was excluded from protection under the 1951 Refugee Convention by reason of Article 1F(a). In March 2013, the Medical Practitioner Tribunal (“MPT”) found that the Claimant's fitness to practise as a doctor was impaired by reason of having been an accessory to torture in Iraq. He was suspended from such practice for one year. His practicing certificate was reinstated in March 2014. The Secretary of State refused the Claimant's second application for asylum concluding that Article 1F(a) excluded him from protection as there were serious reasons for considering that he had committed crimes against humanity. The Claimant appealed.
In April 2015, the First-tier Tribunal (“FtT”) allowed the appeal, finding that, although the Claimant had been complicit in a crime against humanity, namely, the torturing of prisoners by Al-lstikhbarat, he had a defence of duress. The Upper Tribunal (“UT”) allowed the Secretary of Stale's appeal and remitted the matter to the FtT. In February 2017, a differently constituted panel (“the 2017 FtT”) found there were serious reasons for considering that the Claimant had committed crimes against humanity, in that, although he had not tortured anyone, he had provided medical aid to the perpetrators of torture and had treated prisoners in circumstances where, if he had not done so, the torture of those prisoners might have ceased. The 2017 FtT allowed the appeal, however, finding that the Claimant had a defence of duress. In December 2017, the UT allowed the Secretary of State's appeal against that decision, holding that the defence of duress was not available to the Claimant.
On appeal, the Court of Appeal considered whether the 2017 FtT's findings were sufficient to support its conclusion of complicity. The Court noted that Article 1F(a) required a close examination of the facts and a carefully reasoned decision as to precisely why the person was excluded from protection under the Convention. The Court held that the 2017 FtT did not carry out a sufficiently detailed and individualised examination of the facts to support its conclusion of complicity. Accordingly, the appeal was allowed and remitted to the UT to re-make the FtT decision.
The UT was required to consider the documentary evidence in order to determine whether there were serious reasons for concluding that the Claimant was complicit in crimes against humanity, consisting of the torture of prisoners by the Iraqi regime. The Claimant submitted that the fact-finding exercise for the UT was limited to whether, if he had not treated the prisoners, their torture might have ceased. He submitted that the UT was not entitled to make its own finding of fact on the 2017 FtT's conclusion that the Secretary of State had failed to show there were serious reasons for considering the Claimant would have been able to consult with prisoner-patients. The Secretary of State submitted that, if the UT were to conclude that the evidence did not, of itself, constitute the requisite serious grounds to justify the application of the exclusion in Article 1F(a), it would, at least, amount to a prima facie case for such a finding. In that eventuality, the fact that the Claimant had chosen not to give oral evidence to the UT meant that it should draw adverse inferences from the Claimant's decision, leading to a finding in the Secretary of State's favour.
Held, allowing the appeal:
(1) Whether and, if so, when the UT should preserve findings of fact in a decision of the FtT that had been set aside had been considered by the Higher Courts: Sarkar v Secretary of State for the Home Department[2014] EWCA Civ 195; TA (Sri-Lanka) v Secretary' of State for the Home Department[2018] EWCA Civ 260 and MS and YZ v Secretary of State for the Home Department[2017] CSIH 41 considered. That case law demonstrated that, whilst it was relatively easy to articulate the principle that the findings of fact made by the FtT should be preserved, so far as those findings had not been “undermined” or “infected” by any “error or errors of law”, there was no hard-edged answer to what that meant in practice, in any particular case. At one end of the spectrum lay the protection and human rights appeal, where a fact-finding failure by the FtT in respect of risk of serious harm on return to an individual's country of nationality might have nothing to do with the Tribunal's fact-finding in respect of the individual's Article 8 ECHR private and family life in the United Kingdom, or vice versa. By contrast, a legal error in the task of assessing an individual's overall credibility was, in general, likely to infect the conclusions as to credibility reached by the FtT. The judgment of Lord Carnwath in Commissioners for Her Majesty's Revenue and Customs v Pendragon Plc[2015] UKSC 37 emphasised both the difficulty, in certain circumstances, of drawing a bright line around what a finding of fact actually was, and the position of the UT, as an expert body, in determining the scope of its functions under section 12 of the Tribunals, Courts and Enforcement Act 2007 in re-making a decision, following a set aside. In the light of those observations, the indivisibility of the 2017 FtT's findings of fact was apparent. The UT would examine the documentary evidence in order to reach its own conclusion on whether the Secretary of State had shown, by reference to a detailed and individualised examination of the facts, that there was clear and credible evidence of the relevant offending conduct (paras 37 – 45).
(2) In Wisniewski v Central Manchester Health Authority[1998] Lloyd's Rep Med 223, Brooke LJ set out a number of principles on the issue of when it was appropriate in the civil context to draw adverse inferences from a party's absence or silence. Those principles were not to be confused with the situation where a party who bore the legal burden of proving something adduced sufficient evidence, so as to place an evidential burden on the other party. The invocation of the principles depended upon there being a prima facie case: but what that meant would depend on the nature of the case the party in question had to meet. The instant proceedings were not analogous to an “ordinary” civil claim, where a matter needed to be established on the balance of probabilities. Article IF required an individualised consideration of the facts of the case and clear and credible evidence of the offending conduct. The overall evaluative judgement involved the application of a standard higher than suspicion or belief: Al-Sirri v Secretary of State for the Home Department[2012] UKSC 54 and Al-Sirri (Asylum – Exclusion Article 1F(c))[2016] UKUT 448 (IAC) applied. Even where a prima facie case existed, it did not automatically follow that the failure of a person to give evidence would result in material weight being given to that failure, in favour of the other party (paras 65 – 71).
(3) The evidence...
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