MT (Article 1F(A) - Aiding and Abetting) Zimbabwe
| Jurisdiction | UK Non-devolved |
| Judge | P R Lane,Storey |
| Judgment Date | 02 February 2012 |
| Neutral Citation | [2012] UKUT 15 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 02 February 2012 |
[2012] UKUT 15 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Upper Tribunal Judge Storey
Uper Tribunal Judge P R Lane
For the Appellant: Mr M Symes, Counsel, instructed by Birnberg Peirce & Partners
For the Respondent: Mr S Ouseley, Home Office Presenting Officer
MT (Article 1F (a) — aiding and abetting) Zimbabwe
In the context of exclusion under Article 1F(a) of the 1951 Refugee Convention (Article 12(2)(a) of 2004/83/EC (the Refugee Qualification Directive)):
i) The requirement set out at Article 7(1) of the International Criminal Court Statute (ICC Statute) that acts be “…committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack& #x201D; (the “chapeau requirement”) is an essential element in the definition of a crime against humanity.
ii) In principle the question of whether acts are ‘…committed as part of a widespread or systematic attacks directed against any civilian population’ is a matter that could be dealt with in future country guidance cases; although the question of whether there exist acts with such a nexus must ultimately be decided on a case-by-case basis.
iii) Commission of a crime against humanity or other excludable act can take the form of commission as an aider and abettor, as a subsidiary (or non-principal) form of participation. Drawing on international criminal law jurisprudence (as enjoined by R (JS) (Sri Lanka) v SSHD [2010] UKSC 15 ), aiding and abetting in this context encompasses any assistance, physical or psychological, that has a substantial effect on the commission of the crime, i.e. the contribution should facilitate the commission of a crime in some significant way.
iv) The fact that the Article 7(1)(a)-(g)list of acts capable of being crimes against humanity does not include the “cover-up” of murders, whilst a surprising lacuna, should not be filled by judicial interpretation.
v) Duress is a defence to international criminal responsibility (see Article 31(1)(d) of the ICC Statute). Again, drawing on international criminal law jurisprudence, such a defence is confined to situations where the defendant's freedom of will and decision is so severely limited that there is eventually no moral choice of counter activity available. It has four components: the threat must be of imminent death or continuing or imminent serious bodily harm; the threat must result in duress causing the crime; a threat results in duress only if it is otherwise avoidable (i.e. if a reasonable person in comparable circumstances would have submitted and would have been driven to the relevant criminal conduct); and the act directed at avoiding the threat must be necessary in terms of no other means being available and reasonable for reaching the desired effect.
1. The appellant is a national of Zimbabwe. She arrived in the UK on 13 August 2007 and claimed asylum on 25 March 2009. The basis of her claim was that in Zimbabwe she had been a police officer stationed at Bulawayo between 2000 – 2007. In 2007 she found herself under pressure from her superiors to participate in various acts against political opponents of ZANU PF, including attendance at MDC rallies where police beat MDC supporters with batons, two incidents in which torture was used (the “Stephen Mhlanga incident” in February 2007 and the “Gibson Sibanda incident” in April 2007) and in March 2007 she had also been ordered to go to a village near Plumtree, where 30 people had been killed the night before by ZANU PF supporters, and bury the bodies in shallow graves (the “Plumtree incident”). Despite the risks she had been able in mid-July 2007 to desert and travel to Sudan, returning for a brief period in the second half of September in order to try, unsuccessfully, to get a passport for her daughter. She had then travelled, via South Africa, to the UK.
2. On 18 January 2010 the respondent decided to remove her as an illegal entrant having refused to grant her asylum. At the same time the respondent certified her claim under s.55 of the Immigration, Asylum and Nationality Act 2006 because it was considered that Article 1F(a) and (c) of the Refugee Convention operated so as to exclude her from the protection of the Refugee Convention because there were serious reasons for considering she had committed crimes against humanity. Article 1F of the Refugee Convention is 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 international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.”
3. In R(JS) (Sri Lanka) v SSHD [2010] UKSC 15 Lord Brown said that when considering whether an applicant is disqualified from asylum by virtue of Article 1F(a) the starting point should be the Rome Statute of the International Criminal Court (“the ICC Statute”). Article 7(1) of the Statute defines crimes against humanity as follows:
“1. 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:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, on other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
The first sentence of Art 7(1) comprises what is known as the “chapeau” requirement. (“Chapeau”, we would observe, is used in this context to mean “hat”/“covering” or text that prefaces particular provisions.)
4. The respondent also considered that her claim to be a police deserter was not credible and that she would face risk of being persecuted on return. Her appeal against this decision was heard by the First-tier Tribunal (FTT) (Judge Pirotta) who in a determination notified on 7 April 2010 upheld the certificate and dismissed the appeal. Judge Pirotta considered that the respondent had shown that the appellant had committed crimes against humanity and so fell to be excluded under Article 1F(a) of the Refugee Convention and that in any event she had not established that she was a police deserter or that the Zimbabwe authorities would view her adversely. The appellant was successful in obtaining a grant of permission to appeal to the Upper Tribunal. In a response dated 30 March 2011 the respondent said she agreed with the contention in the grounds of appeal that the FTT judge had materially erred in law by failing to consider the issue of whether the appellant was entitled to rely upon the defence of duress in respect of the s.55(1)(a) certificate. In a decision made on 19 April 2011, the Upper Tribunal (UTJ Storey) decided that the FIT had made a material error of law as just described and set aside its decision. The appeal now comes before this panel for us to re-make the decision. In a case in which a certificate has been made in relation to an asylum appeal, as here, the Upper Tribunal “must begin substantive deliberations on the asylum appeal by considering the statements in the Secretary of State's certificate” and, if in agreement with the certificate, must dismiss the asylum dimensions of the appeal without considering any of its other aspects (s.12(2)(b) of the Tribunals, Courts and Enforcement Act 2007; s.55(5A) and s.55(4) of the 2006 Act).
5. In the decision finding a material error of law there was a clear ruling as to the material scope of the appellant's appeal. It was noted that the respondent had not sought to dispute before the FTT judge the appellant's evidence that she was a member of the police force in Zimbabwe between 2000 and September 2007 and that accordingly the present hearing would proceed to treat this much of her evidence as established.
6. Before proceeding further we should record our thanks to both parties for their assiduous preparation and helpful skeleton arguments and submissions. With the agreement of both parties we made an anonymity order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 whose contents included an order that all references to certain specified witnesses should be anonymised.
7. At the hearing we heard from a witness, W1, and from the appellant. W1 is a person whom the Tribunal has accepted previously as an expert witness on country conditions in Zimbabwe. It is convenient if we set out a summary of W1's evidence when dealing with the expert evidence below.
8. In her evidence to us the appellant confirmed that her ethnicity was Shona and her religion was Christian (Roman Catholic). She had been a police officer in Bulawayo in the...
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Table of Cases
................................................................................688 MT (Article 1F (a) — aiding and abetting) Zimbabwe, [2012] UKUT 00015 (IAC). ..............................................................255, 515 N v Secretary of State for the Home Department, [2005] UKHL 31......