Upper Tribunal (Immigration and asylum chamber), 2019-08-12, AA/10959/2015
| Jurisdiction | UK Non-devolved |
| Date | 12 August 2019 |
| Published date | 01 October 2019 |
| Hearing Date | 16 May 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/10959/2015 |
Appeal Number: AA/10959/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10959/2015
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 16 May 2019 |
On 12 August 2019 |
Before
UPPER TRIBUNAL JUDGE RINTOUL
UPPER TRIBUNAL JUDGE McWILLIAM
Between
HN
(anonymity direction MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr D Bazini, Counsel, instructed by Parker Rhodes Hickmotts Solicitors
For the Respondent: Mr T Lindsay, Home Office Presenting Officer
DECISION AND REASONS
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The Appellant is a citizen of Afghanistan. His date of birth is 1 January 1960.
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The Appellant made an application on protection grounds 9 March 2009. His application was refused by the Secretary of State on 23 July 2015. The Secretary of State issued a certificate pursuant to Section 55 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”), having decided that the Appellant was not entitled to protection with reference to Article 1F(a) of the Geneva Convention. Thus, he was not entitled to protection under Article 33(1) of the Geneva Convention.
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For the same reasons, he was disqualified from the grant of humanitarian protection under paragraph 339C of the Immigration Rules. The Respondent concluded that returning the Appellant to Afghanistan would not breach the UK’s obligations under Article 3 of the ECHR.
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The Appellant appealed against the Secretary of State’s decision. His appeal was dismissed by Designated First-tier Tribunal Judge McCarthy. That decision was set aside by Upper Tribunal Judge Storey following a hearing on 27 October 2017. The decision was communicated to the parties on 21 December 2017 and a copy of it is attached to this decision. There has been an unfortunate history of both parties having repeatedly failed to comply with directions of the Upper Tribunal. We will discuss this matter in more detail later in the decision. However, the result of this has been to delay the rehearing of the Appellant’s appeal.
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The appellant’s case is that he was formerly a member of the People’s Democratic Party of Afghanistan (PDPA) which came to power in April 1978. During the 1980s he was a police officer in charge of a detention facility housing political prisoners within Mahabas Prison in Jalalabad. In 1987 or 1988, he arranged for the execution of two Mujahideen commanders at the prison. This came to the knowledge of the Mujahideen; and, after he had left the police when the PDPA regime fell in 1992, he was later abducted, detained and tortured by the Mujahideen for 22 months. He was released through bribery and left Afghanistan, returning only in 2002. In 2005 he re-joined the police but, after his family were attacked, he fled Afghanistan, arriving in the United Kingdom in 2009.
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The Secretary of State accepts that the Appellant was a member of the PDPA and was in charge of a detention facility in which political prisoners were held. He also noted that during the civil war in the 1980s government forces, its intelligence agency Khidamat-iIttila’at-iDawlati (KhAD) and the Soviet units supporting them were responsible for significant actions against the civilian population; and, that KhAD was responsible for the commission of war crimes and crimes against humanity.
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The Secretary of State concluded that the Appellant must to be excluded from the Refugee convention by operation of article 1F because, during his time in charge of the detention facility, the Appellant: handed over political prisoners to be interrogated and tortured by KhAD; took them to and from courts where they faced trials which failed to meet international standards; and, was involved in the execution of convicted prisoners including two captured Mujahideen personnel, and so played a significant role in the context of abuse within the prison.
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The Secretary of State did not, however, accept the Appellant’s account of what had happened to him or his family after he had left the police in 1992.
The Law
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We remind ourselves that it is for the Secretary of State to satisfy us on the balance of probabilities that the appellant is excluded from the Refugee Convention. That requires a detailed consideration of the Convention, the Qualification Directive and case law.
Article 1F of the Refugee Convention
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Article 1F(a) of the Refugee Convention states as follows:
“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.”
Article 12(2)(a) and (3) of the EU Qualification Directive
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Article 12(2)(a) of the EU Qualification Directive provides as follows:
“2. A third country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:
(a) he or she 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.
3. Paragraph 2 applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein.”
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It is not in dispute that crimes against peace, war crimes and crimes against humanity are separate offences. Each is separately defined within the Rome Statute of the International Criminal Court (“the Rome Statute”) to which we turn next. We do, however, observe that as regards a crime against peace, which arose from the Charter of the International Military Tribunal - Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis , this is referred to in the Rome Statute as a crime of aggression, as defined in article 8 bis. As article 8bis (1) limits the scope of that crime to ‘a person in a position effectively to exercise control over or to direct the political or military action of a State’, it is not relevant on the facts of this appeal. We therefore turn next to the definitions of “war crime” and “crime against humanity” as set out in the Rome Statute.
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Articles 7 and 8 of the Rome Statute provides as follows:
“Article 7
Crimes against humanity
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: It
(a) Murder;
…
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
...
2. For the purpose of paragraph 1:
(a) ’Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
…
(e) ’Torture’ means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
Article 8
War crimes
1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, ’war crimes’ means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
…
(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed...
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