MAB (Iraq) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen,Mr Justice Snowden,Lord Justice David Richards |
| Judgment Date | 17 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1253 |
| Date | 17 July 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2018/1096 |
[2019] EWCA Civ 1253
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE LANE
Appeal No. AA/02785/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice David Richards
Lord Justice Hamblen
and
Mr Justice Snowden
Case No: C5/2018/1096
Henry Blaxland QC and Ronan Toal (instructed by Wilson Solicitors LLP) for the Appellant
Rory Dunlop QC (instructed by Government Legal Department) for the Respondent
Hearing date: 4 July 2019
Approved Judgment
Introduction
This appeal concerns whether, on the findings made, it was open to the First Tier Tribunal (“FTT”) to conclude that that the appellant doctor was excluded from protection by the Refugee Convention (“the Convention”) on the ground that the medical assistance he gave to victims of torture, knowing that some of them might be tortured again, meant that he was complicit in their torture and thus liable for a crime against humanity.
The factual background
The appellant (“A”) was born on 7 March 1965 and is a citizen of Iraq.
Between 1992 and 1994 A worked as a doctor for the Al-Istikhbarat (Saddam Hussein's military intelligence agency). He worked at a clinic at their headquarters. He treated military intelligence officers and prisoners. On occasion he was also taken to visit camps where he treated prisoners. He was aware that some of those prisoners, but he did not know which, were likely to be tortured again after he had treated them. A never sought to leave the Al-Istikhbarat throughout his military service, such as by asking to be transferred to military service elsewhere.
A left Iraq in December 1995. He travelled to Libya where he worked as a doctor for four years.
A first arrived in the UK on 20 January 2000 where he was given leave to remain as a visitor for a period of six months. This leave was variously extended. On 2 February 2007 A claimed asylum.
In January 2011, the War Crimes Unit of the Border Agency completed a report in relation to A. On 24 October 2011, the Respondent (“the SSHD”) sent a letter to A explaining that he had been excluded from the Convention by the operation of Article 1F(a).
In March 2013, proceedings were initiated before a panel of the Medical Practitioner Tribunal (“MPT”). The MPT found A's fitness to practise impaired by reason of having been an accessory to torture in Iraq. The MPT suspended A from practice for a year.
In April 2013, A's wife and children were granted five years' leave to remain as refugees. On 3 March 2014, the MPT found that A's fitness to practise was no longer impaired and his practising certificate was reinstated.
On 19 August 2013, A applied under para 327 of HC 395 for leave to remain on the grounds of asylum. That application was refused by the SSHD on 14 April 2014. The SSHD considered that A was excluded from the Refugee Convention under Article 1F(a) as a person in respect of whom there were “serious reasons for considering that you have committed crimes against humanity”. The SSHD did, however, exercise her discretion in A's favour, deciding that he should be granted limited leave to remain outside of the Rules in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave.
Given the length of the periods of discretionary leave awarded to A, he was entitled to appeal against the SSHD's April 2014 decision under the provisions of s83 Nationality, Immigration and Asylum Act 2002.
The first hearing before the FTT took place on 27 and 28 April 2015 (“the 2015 FTT”). Before the 2015 FTT (UT Judge Renton, FTT Judge Broe) A conceded that he was complicit in a crime against humanity but argued that he had a defence of duress. The 2015 FTT allowed his appeal on the grounds of duress.
The SSHD appealed to the Upper Tribunal (‘UT’) against the decision of the 2015 FTT. On 12 April 2016, the UT (“the 2016 UT”) allowed the appeal and remitted the matter back to another FTT.
A further hearing took place before a newly constituted FTT (FTT Judge McCarthy, FTT Judge M Hall) on 10 February 2017 (“the 2017 FTT”). The 2017 FTT found that there were serious reasons for considering that A had committed crimes against humanity. Although A himself had not tortured anyone, he had provided medical aid to the perpetrators and treated prisoners in circumstances where if he had not done so, their torture might have ceased. The 2017 FTT also found, however, that A had a defence of duress.
The SSHD appealed to the UT against that decision. A issued a Rule 24 cross appeal, the scope of which is in issue between the parties,
The appeal hearing took place on 22 September 2017 before UT Judge Lane.
In a determination promulgated on 11 December 2017, the UT (“the 2017 UT”) found that the SSHD's appeal succeeded because the 2017 FTT had made a material error when considering the defence of duress. Applying the correct principles and burden of proof, the defence of duress should fail. It was further found that A's cross appeal failed.
A sought permission to appeal on four grounds. On 13 December 2018 Underhill LJ granted permission to appeal on all four grounds.
On 15 January 2019 the SSHD filed a Respondent's notice, seeking, if necessary, to uphold the UT's order on different or additional grounds, namely that the 2017 FTT had reached a finding on complicity that was open to them on the facts.
The legal framework
Article 1F of the Convention, as amended by the Protocol of 31 January 1967, provides:
“F. 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 international instruments drawn up to make provision in respect of such crimes…”
It is well established that the serious consequences of exclusion for the person concerned means that the article must be interpreted restrictively and applied with caution – see R (JS (Sri Lanka) v Secretary of State for the Home Department [2010] UKSC 15; [2011] 1 AC 184 at [2]; Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54 at [12] and [16].
In the Al-Sirri case the Supreme Court stated at [75] that:
(1) “Serious reasons” is stronger than “reasonable grounds”.
(2) The evidence from which those reasons are derived must be “clear and credible” or “strong”.
(3) “Considering” is stronger than “suspecting”. It is also stronger than “believing”. It requires the considered judgment of the decision maker.
(4) The decision maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law.
(5) There are unlikely to be sufficiently serious reasons for considering the applicant to be guilty unless the decision maker can be satisfied on the balance of probabilities that he is.
In JS (Sri Lanka) Lord Brown stated at [8] that the Rome Statute of the International Criminal Court (“the ICC Statute”) “should now be the starting point for considering whether an applicant is disqualified from asylum by virtue of article 1F(a)”.
Article 7(1) of the ICC Statute specifically includes torture as an act which may involve a “crime against humanity”. It provides:
“For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
…
(f) torture;
…”
In relation to individual criminal responsibility, Article 25 of the ICC statute provides:
“ Article 25
Individual criminal responsibility
…
3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
…
(c) 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;
(d) in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the court; or
(ii) be made in the knowledge of the intention of the group to commit the crime.”
In relation to the mental element, Article 30 of the ICC statute provides:
“ Article 30 Mental element
1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
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 article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.”
JS (Sri Lanka) concerned whether the appellant's membership over a number of years of the Liberation Tigers of Tamil Eelam (“LTTE”) was sufficient for him to have committed a crime within the meaning of Article 1(F)(a). Lord Brown at [1] summarised the issues in the following terms:
“….who are to be regarded as having committed such a crime (“war criminals” as I shall generally refer to...
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