R DA (Iran) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Pitchford,Lord Justice Kitchin,Lord Justice Moore-Bick
Judgment Date15 May 2014
Neutral Citation[2014] EWCA Civ 654
Docket NumberCase No: C4/2013/0646
CourtCourt of Appeal (Civil Division)
Date15 May 2014
Between:
The Queen on the Application of DA (Iran)
Appellant
and
Secretary of State for the Home Department
Respondent

[2014] EWCA Civ 654

Before:

Lord Justice Moore-Bick

Lord Justice Pitchford

and

Lord Justice Kitchin

Case No: C4/2013/0646

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

ADMINISTRATIVE COURT — MRS JUSTICE LANG DBE

[2013] EWHC 279 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Richard Drabble QC and David Jones (instructed by Irving & Co — Solicitors) for the Appellant

Julie Anderson (instructed by Treasury Solicitor) for the Respondent

Hearing date: 2 May 2014

Lord Justice Pitchford

Introduction

1

This is an appeal from the order of Lang J of 19 February 2013 ( [2013] EWHC 279 Admin) dismissing the appellant's claim for judicial review of the refusal of the Secretary of State for the Home Department to grant British citizenship to the appellant under section 6(1) of the British Nationality Act 1981.

2

By letter of 4 March 2011 the Secretary of State notified the appellant of her decision that naturalisation should be refused because there were 'serious doubts' as to the appellant's character which arose from his military service in Iran. It was at one time envisaged by the parties that it might be necessary for the court to examine the scope of the discretion reposed in the Secretary of State under section 6(1) and the proper approach to the exercise of judgement. There is, however, nothing of substance between the parties upon these issues and counsel have helpfully, and I think properly, refined the issue in this appeal to a single question, namely whether the Secretary of State failed or failed adequately to take into consideration a factor relevant to her statutory judgment, namely that the appellant's military service in Iran had been conscripted and involuntary.

The statutory power

3

Section 6(1) of the British Nationality Act 1981 provides:

"(1) If on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied the applicant fulfils the requirements of schedule 1 for naturalisation as a citizen under this sub-section, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen."

For the purposes of the present appeal the relevant part of schedule 1 appears in paragraph 1(1)(b) which provides:

"… the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it

(b) that he is of good character."

4

The parties are in agreement that the Secretary of State enjoys a significant measure of appreciation in assessing for herself the requisite standard of good character in the factual context of the application under consideration. In R v Secretary of State for the Home Department, ex parte Al Fayed [2000] EWCA Civ 523, [2001] Imm AR 134 at paragraph 41 Nourse LJ (with whom in this respect Kennedy and Rix LJJ agreed) observed that the concept of good character was incapable of being defined against a single standard to which all could subscribe. A decision by the Secretary of State could be based upon a higher standard of good character than that which might be adopted by another decision-maker also acting reasonably. Parliament had assigned to a minister of the Crown the task of making the judgement whether a person was of good character and it was for the minister to adopt the requisite standard of good character subject only to a requirement of reasonableness.

Factual background

5

The appellant was born on 24 May 1978 in Shiraz, Iran. His parents died during his childhood and he was brought up by his brother and sister. The appellant's father had been a surgical technician. The appellant understood that his father had been tortured in Iran for his political beliefs. On 7 February 1998, at the age of 19 years, the appellant commenced his compulsory military service. He was assigned to a unit that would be responsible for prison security. The appellant gave two different accounts of his period of training. In his first statement, made in support of his appeal from a refusal to grant asylum, he said that his training lasted for a period of three months. In his second statement, made on or about 17 April 2003, he said that he was trained for two years at Kajoni Prison in Kariz, during which time he learned how to use weapons, to understand the prison regulations and how to handle prisoners both in prison and in transit. He was then transferred to Zendan Adel Abad, Shiraz, the central prison for Fars province. After two days the appellant was transferred to the Department of Punishment and Salvation. He described conditions as follows:

"This department was next to the prison medical services and near the HQ of the prison guard and was for people who were to be executed in 2 or 3 days. The prisoners were kept in dark, small cells and they had to endure a large amount of punishment, including torture. The cells were just like dog kennels. People were kept naked. They were executed at the back of the prison by hanging or stoning and I had to guard the prisoners and take them to their execution."

6

The appellant spoke in his statements about two events that occurred approximately 12 months after he had commenced his duties at Shiraz prison. He had become depressed as a result of witnessing the appalling treatment of prisoners, both tortured and subjected to the death penalty by hanging and stoning, and consulted his doctor who treated him with medication. The appellant said:

"I had by then witnessed several executions, including people being put in a hole in the ground up to their chest and stoned to death by stones thrown from only a few feet away. I regarded these actions as barbaric and hated the Iranian regime."

Shortly afterwards, the appellant went absent without leave because he "could not bear it any longer". After a month he was found, arrested, detained for 15 days and then returned to his duties. He was ordered to serve an additional one month of military service to compensate for his absence without leave and, by way of punishment, he was sentenced to serve for an additional period of 4 months.

7

Later, the appellant was transferred to his third prison, Shahid Lajavardi, known also as Pirbano. He continued to suffer from depression, including disturbance of sleep and nightmares. He was treated with anti-depressants and sleeping pills. He asked the hospital authority to secure his transfer to other duties but his application was ignored. While the appellant was at Pirbano prison there was a riot by student inmates on whom the guards were ordered to fire their weapons. The appellant refused. His commanding officer struck him to the chest and head with the butt of an assault rifle. The appellant was taken, unconscious and bleeding, to the prison detention centre, where he was visited by fellow guards who insulted and beat him. When he was transferred to another room he was stripped and beaten again. The appellant was accused of assisting prisoners and of opposition to the Republic. After 24 days of ill-treatment the appellant was told that he was being taken to court. The appellant feared for his life. While being transported in the rear of a car he managed to overpower his escort and make his escape. He commandeered a passing motor-cycle and drove to another town where he was concealed by a friend. An uncle and the appellant's friends assisted him to leave the country. On 8 January 2001, after travelling for 50 days overland, the appellant arrived in the United Kingdom. He applied for asylum on 10 January and appealed against refusal to the Immigration Appellate Authority.

The grant of asylum

8

In a determination promulgated on 6 May 2003 the appeal was allowed. Adjudicator Frederick Such was impressed by the appellant's evidence and found his account credible. He concluded that on return to Iran the appellant would be identified as an absconder, would be detained and would face a real risk of persecution by torture. On 30 May 2003 the appellant was granted indefinite leave to remain.

Application for citizenship

9

On 9 January 2010 the Secretary of State refused the appellant's application, dated 6 March 2008, for naturalisation as a British citizen. The decision was made by an authorised official, who concluded:

"You have stated that you were a member of the Iranian Jail Organisation between 1998 and 2001, during this time you worked in various prisons. Your role involved guarding prisoners, taking prisoners to be executed, and removing bodies after execution. You spent a significant period of time working for the Iranian Jail Organisation and it is considered that you were a valued and committed supporter of the regime."

The appellant obtained permission to bring his first claim for judicial review which, on 23 September 2010, was withdrawn by consent on terms that the decision would be re-made.

10

In a letter of 8 November 2010 the application was again refused. The decision-maker concluded that the appellant had made no significant attempt to disassociate himself from crimes against humanity perpetrated by the Iranian regime. He concluded that the appellant had undertaken his duties "voluntarily for a considerable period". The appellant issued a further claim for judicial review on 30 December 2010. The grounds of claim were settled by Mr David Jones. In those grounds it was contended that the same errors persisted. In particular, the appellant relied upon the fact, accepted by the Secretary of State and by the adjudicator, that his was not a contractual but a...

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