Upper Tribunal (Immigration and asylum chamber), 2012-07-13, [2012] UKUT 236 (IAC) (CM (Article 1F(a) - superior orders))
| Jurisdiction | UK Non-devolved |
| Judge | Dr HH Storey, Mr P D King |
| Status | Reported |
| Date | 13 July 2012 |
| Published date | 13 July 2012 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 17 April 2012 |
| Subject Matter | Article 1F(a) - superior orders |
| Appeal Number | [2012] UKUT 236 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
CM (Article 1F(a) - superior orders) Zimbabwe [2012] UKUT 00236(IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 17 April 2012 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE STOREY
UPPER TRIBUNAL JUDGE KING
Between
CM
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the appellant: Mr D Phillips, Legal Representative, Global House Solicitors
For the respondent: Mr S Ouseley, Home Office Presenting Officer
In the context of deciding whether a person is excluded from Refugee Convention protection by virtue of having committed acts contrary to Article 1F(a), the effect of Article 33(1) of the Statute of the International Criminal Court (“the Rome Statute”) is that whilst obedience to superior orders can be a defence if each of its three requirements – as set out at (a), (b) and (c) - are met, by virtue of Article 33(2) the Article 33(1)(c) requirement can never be met in cases where the order was to commit genocide or a crime against humanity. Such cases are always “manifestly unlawful”. For a person alleged to be criminally responsible for crimes against humanity the defence of obedience to superior orders is unavailable.
DETERMINATION AND REASONS
1. The appellant is a national of Zimbabwe. He arrived in the UK on 16 October 2002 as a business visitor. He obtained further leave to remain as a student until 30 November 2006. His application for further student leave was refused and his appeal against that refusal was unsuccessful. On 20 April 2009 he claimed asylum in Croydon. On 16 October 2009 the respondent rejected that claim and decided to issue a certificate under s. 55 of the Immigration, Asylum and Nationality Act 2006 on the basis that there were serious reasons for considering that he had committed excludable crimes under Article 1F(a) of the 1951 Refugee Convention. The respondent accepted the appellant’s claim to have been in the Zimbabwe army between 1987 – 1990 as a full-time soldier and then from late 1989 as a reservist. The respondent accepted that as a reservist he was recruited in 2000 to be a member of the “people’s militia”. The respondent noted the evidence in his asylum interview that in 2001-2002 he had been involved in beatings which he had been ordered to carry out by his superiors. His involvement in two beatings in April 2002 was a particular focus. The respondent did not accept his claim that he had sought to dissociate himself from such activities as soon as he could nor his claim that he had carried out orders to beat people in order to save his own life. It was not accepted that in April 2002 he had been ordered to kill his uncle or that it was his refusal to carry out such an order that caused him to leave Zimbabwe. The respondent also rejected the appellant’s asylum-related grounds of appeal on the basis that due to his military service in support of the authorities he would be considered loyal. The respondent found there were no Article 8 ECHR circumstances of significance.
2. In a determination notified on 14 December 2009, Designated Immigration Judge (DIJ) A A Wilson dismissed his appeal against the respondent’s decision. The DIJ agreed with the respondent that the appellant fell to be excluded from Refugee Convention protection by operation of Article 1F(a) considerations and that he had not shown that he would be at risk on return to Zimbabwe for the purposes of Article 3 ECHR. The DIJ also found that his appeal failed on Article 8 ECHR grounds. We should mention that when the appellant had previously appealed unsuccessfully against a decision dated 16 February 2007 refusing him leave to remain as a student (on 20 May 2007 Immigration Judge Pitt having dismissed that appeal), no asylum or human rights grounds were raised in that appeal.
3. The grounds of appeal did not challenge the DIJ’s primary findings of fact, only his application to those findings of the correct legal criteria. On 26 May 2011 the Upper Tribunal decided that the DIJ had materially erred in law and that his decision was to be set aside. The errors identified were the DIJ’s failure to give any reasoning for his finding that the acts in which the appellant had been involved were committed as part of a widespread or systematic attack directed against the civilian population and the failure to make any specific findings as to why he rejected the appellant’s reasons for carrying out the alleged crimes (which potentially went to the issue of duress). It was also noted that there was also evidence before the DIJ of mitigating circumstances which may have been relevant for assessment under Article 8 of the 1950 Convention. The case was then set down for a resumed hearing with directions that the parties address certain issues, in particular the defences of duress and superior orders under international criminal law and their interconnection with refugee and humanitarian protection law in the context of Article 1F(a) of the Refugee Convention and Article 12 of the Qualification Directive. Also mentioned was the recent Court of Justice of the European Union (CJEU) judgment dealing with the exclusion clauses in Article 12 of the Qualification Directive in the Joined Cases C-57/09 and C-101/09, B and D. At the end of the decision the Upper Tribunal stated that:
“the hearing to decide what decision to remake in the appellant’s case will not be an occasion for any revisiting of the facts as found by the DIJ. To repeat, they were not challenged in the grounds seeking permission to appeal, and hence the only relevant issues for decision are whether the appellant falls foul of Article 1F(a) or succeeds under Article 3 ECHR on the basis of the DIJ’s findings of fact. The only proviso is that the appellant is entitled to submit a further written statement updating his personal particulars since the date of the hearing before DIJ Wilson; these may be relevant to the Article 8 issue. Both parties are also at liberty to adduce any further evidence they wish relating to background country conditions in Zimbabwe (the respondent has already intimated she will seek to rely on the recent Tribunal Country Guidance case of EM and others (Returnees) [2011] UKUT 96 (IAC)).”
4. The DIJ’s principal findings of fact were that at the time of the acts on the basis of which the respondent considered he stood to be excluded, the appellant was in a position of authority in the Zimbabwean military, holding the rank of sergeant (paras 19, see also para 18); that in April 2002 he had been involved in the beating of two persons in his village who had been ordered to attend a night rally to denounce the opposition party; that he had also been involved in giving orders for other soldiers to participate in similar beatings (para 22); that he was not a deserter (para 22, 31, see also para 25) and that he had not ceased to support ZANU-PF (paras 31, 33). The DIJ also made findings relating to the appellant’s claim to have acted under duress but, since his reasoning on this matter was found to be vitiated by legal error, his findings on it clearly cannot stand. As regards Article 3 ECHR, the judge found that the appellant had not shown that he was a deserter or that he would not continue to be perceived as a ZANU PF supporter on return. As regards Article 8 ECHR, the judge did not consider that his relationship with his girlfriend amounted to family life as it was “only a girlfriend/boyfriend situation”. Considered as private life this relationship lacked strength as they were not living together and had not been involved with each other for very long.
5. At the hearing Mr Philips confirmed that although the DIJ had erred in his treatment of crimes against humanity, it was accepted by the appellant that during the dates in Zimbabwe relevant to the appellant the Zimbabwean authorities were involved in the commission of crimes against humanity so as to satisfy the “chapeau” requirements of Article 7 of the International Criminal Court Statute. In relation to the issue of criminal responsibility it was relevant to take into consideration (i) that the general situation in Zimbabwe at that time was one of lawlessness in which those in power gave orders and punished anyone who disobeyed; the appellant had no alternative but to obey orders; he had to be seen to be loyal; (ii) his participation was confined to one beating of two people; he played a very small part; (iii) that the appellant acted to save not only his own life but also that of his family (he was caring for his brother and sister-in-law who were AIDS victims) as his superiors would have punished them as well as him had he not carried out their orders; (iv) he was already on thin ice as they had suspected him of disloyalty because of his involvement in AIDS awareness campaigning (which those in power believed was used by anti-Mugabe supporters as a way of raising funds); (v) he had drawn the line at endangering loss of life and had also acted promptly to avoid being put on the spot to commit the serious crime which they had ordered him to carry out (killing his uncle); and (vi) he did not hold a prominent office or position of responsibility; what he was doing was not his normal...
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