R Dariush Amirifard v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 19 February 2013 |
| Neutral Citation | [2013] EWHC 279 (Admin) |
| Docket Number | Case No: CO/111/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 February 2013 |
[2013] EWHC 279 (Admin)
The Honourable Mrs Justice Lang DBE
Case No: CO/111/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Jones (instructed by Irving & Co.) for the Claimant
Julie Anderson (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 8th February 2013
The Claimant challenges the decision of the Defendant, dated 4 th March 2011, refusing his application for naturalisation.
The Claimant is a national of Iran and was born on 24 th May 1978.
On 10 th January 2001, the Claimant fled from Iran to the UK and applied for asylum.
On 5 th February 2001, the Claimant's application for asylum was refused by the Secretary of State, because he failed to return his Statement of Evidence form (SEF) in time.
The Claimant appealed, and his appeal was allowed by the Immigration Appellate Authority on 6 May 2003.
The Claimant presented written and oral evidence to the Adjudicator. The two written statements contained conflicting dates, which are set out below in inverted commas. In summary, his evidence was as follows:
i) On either 7 th February "1998" or "1999", he was conscripted and started compulsory military service. He was assigned to the Iranian Jail organisation and, after initial training (lasting "three months" or "two years"), he was assigned to Shiraz prison.
ii) He was responsible for guarding prisoners, who were kept naked in small dark cells and tortured. His duties involved taking prisoners to be executed by hanging or stoning.
iii) He developed a depressive illness as a result of witnessing torture and executions in the prison (in particular, the stoning of a Dr Islami), and he was prescribed anti-depressants.
iv) After a year, he could not bear it any longer, and went absent without leave. He was subsequently arrested after "one month" or "six months". As punishment for deserting, he was sentenced to military detention for one month, and ordered to undertake an additional four months of conscription. He served half of his military detention and was given an amnesty.
v) He was then transferred to Lajavardi prison in Shiraz where he witnessed prison guards torturing prisoners. He was experiencing nightmares and depression, and he applied for a transfer because of his mental state. The application was refused.
vi) After 21 months of military service, or "near to the end of [his] service", he was guarding a section of the prison which contained mainly university students detained without trial. They started a riot and he refused an order to shoot at them. He was threatened by the prison chief, and hit on the head and chest with a rifle. He was seriously injured and lost consciousness.
vii) He was detained in a prison cell for 24 days, and subjected to torture. Fearing that he was going to be killed, he managed to escape from the car when he was being taken to court. He eventually made his way to the UK.
viii) His family and fiancée were questioned by the authorities as to his whereabouts.
A medical report, from Dr Steadman, dated 15 April 2003, recorded a scar on his forehead which was said to be the result of the blow from the rifle. Other scars were noted, but none said to have been caused in custody. Dr Steadman found impaired concentration probably due to anxiety and some psychological difficulties.
The Adjudicator's findings were:
"13. I found the appellant gave his evidence well and I was impressed by him and I find him credible. His escape from the prison vehicle is reasonably plausible. If he was able to take a gun of one of the guards he could easily have intimidated them by pointing it at his escort. I accept that when the appellant witnessed executions he sought medical help but was ignored when he requested a transfer. I accept he then went absent before being arrested and sentenced to one month in custody. I accept that he refused to obey orders to shoot rioting prisoners and was arrested, beaten and tortured pending trial. I accept he escaped his escort on the way to court….
14. My evaluation is that the appellant if returned to Iran will be checked at the airport and it will be revealed that he was an escapee from custody and he will be detained and there is a real risk he will be tortured as before and hence persecuted and such treatment will be in breach of Article 3."
Thus, it is apparent that the Adjudicator rejected the Defendant's submission, recorded at paragraph 10 of the determination, that the Appellant's account of his escape was implausible and that, if the Appellant's treatment in custody was correct, he would have found further scars.
On 30 th May 2003, the Claimant was granted asylum in the UK by the Defendant. He was subsequently granted Indefinite Leave to Remain in the UK.
On 6 th March 2008, the Claimant made an application for British nationality.
On 22 nd July 2009, the Defendant wrote and asked the Claimant to provide a statement answering a list of questions relating to his service as a prison guard in Iran. He did so on 11 th August 2009, making it clear that the military service he was involved in was compulsory conscription and not a voluntary army contract.
On 6 th January 2010, the Defendant wrote to the Claimant refusing his application for naturalisation, on the ground that the Claimant was not a person of "good character" for the purposes of the British Nationality Act 1981. The letter stated:
"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 Claimant applied for judicial review and permission was granted. The Defendant agreed to re-consider the application for naturalisation and the claim for judicial review was withdrawn by consent on 2 nd September 2010.
On 8 th November 2010, the Defendant wrote to the Claimant again refusing his application for naturalisation, stating:
"It is evident that Mr Amirifad was aware of the unlawful nature of the actions he was undertaking in providing security at the execution and mistreatment of political opponents of the regime, and undertook these duties voluntarily for a considerable period"
The Claimant sent a pre-action protocol letter to the Defendant on 23 rd November 2010.
On 30 th December 2010, the Claimant issued an application for judicial review of the decision of 8 th November 2010.
On 4 th March 2011, the Defendant filed her Acknowledgment of Service defending her decision of 8 th November 2010. At the same time, she served on the Claimant a fresh decision, dated 4 th March 2011, in substitution for the decision dated 8 th November 2010.
The letter of 4 th March 2011 confirmed that the Claimant's application was refused and stated:
"the Secretary of State has serious doubts as to your client's character due to his association with crimes against humanity. She has reached this decision having given due consideration to the role and duties of your client as a prison guard under the Iranian regime, his seniority within the prison hierarchy, the activities that he was involved in and associated with as a prison guard, the length of his tenure in his role as a prison guard, his attempt at disassociation from his role as a prison guard, and his mental health during his time as a prison guard, and in particular any duress he may have been under"
The letter did not dispute the Claimant's contention that he "did not actively participate in human rights abuses", she concluded, however, that he was "involved in and associated with" the same having been "directly responsible for taking prisoners to their execution", and being "witness" to the torture of political detainees. She concluded that, "whilst not at the top of the prison hierarchy, your client's role, duties and seniority as a prison guard under the Iranian regime is sufficient to cast serious doubts as to his character."
The letter highlighted as material the duration of the Claimant's service, which in her estimate exceeded 3 years and 4 months.
The letter concluded the Claimant had made "no significant or extensive attempt to disassociate himself". He made one attempt to disassociate himself by going absent without leave. The application to transfer could not be reasonably characterised as an attempt at disassociation. His eventual escape from captivity was motivated by a desire to protect himself, not to disassociate himself.
The letter considered whether any of the defences in Article 31 of the Rome Statute were available to the Claimant, but concluded that they were not.
Permission to apply for judicial review was refused on the papers by Collins J, but granted at an oral renewal hearing by HH Judge Bidder on 26 th October 2011.
By section 6(1) British Nationality Act 1981, British citizenship may be acquired by naturalisation. Subsection (1) provides:
"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 that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under...
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