QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
|- and –
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Julie Anderson (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 8th February 2013
Crown Copyright ©
Mrs Justice Lang:
i) On either 7th 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.
"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."
"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"
"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 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"
"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 this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen."
"Naturalisation is at the discretion of the Home Secretary. Under s. 6 of the British Nationality Act 1981, he may grant a certificate of naturalisation to a person of full age and capacity if he is satisfied that person meets the requirements set out in Schedule 1 to the Act. He can refuse to grant a certificate to a person who meets these requirements, but he cannot grant a certificate to a person who does not meet them."
"In considering the exercise of discretion it is important to look at the case as a whole. We need to be sure, before we agree to waive a requirement, that applicants are of good character and have genuinely thrown in their lot with this country. The points which need to be considered are set out in the Annexes to this Chapter.
The guidance on the good character requirement is in Annex D. Paragraph 5.1 states that if there is information to suggest that the applicant has been involved or associated with war crimes, crimes against humanity or genocide, the case should be referred to the Deprivation Screening Team and considered in line with War Crimes guidance in Volume 2 Section 1.W."
"Citizenship applications from people suspected of involvement in war crimes or crimes against humanity.
2.1 One of the requirements for naturalisation as a British citizen or a British overseas territories citizen is that the Secretary of State be satisfied that the applicant is of 'good character'. Applicants should be refused if their activities cast 'serious doubts' on their character. Serious doubts will be cast if applicants have been involved in or associated with war crimes, crimes against humanity or genocide. Serious doubts will also be cast if applicants have supported the commission of war crimes, crimes against humanity or genocide or have supported groups whose main purpose or mode of operation consisted of the committing of these crimes even if that support did not make any direct contribution to the groups' war crimes or crimes against humanity and genocide.
2.2 In ascertaining whether there are sufficient grounds for refusing an application for involvement in war crimes, crimes against humanity or genocide, consideration will be given to evidence directly linking the applicant with these crimes. It will also be given to factors such as the likelihood of his/her having been involved through membership of, or activities for groups responsible for committing war crimes, crimes against humanity or genocide. In determining the significance of these links, consideration will be given to such factors as the role of the applicant, the length of membership and his/her seniority within that group.
6. Definitions of war crimes, crimes against humanity and genocide.
6.2. Crimes against humanity
6.2.1. Acts committed at any time (not just during armed conflict) as part of a widespread or systematic attack, directed against any civilian population with knowledge of the attack. This would include offences such as murder, torture, rape and severe deprivation of liberty in violation of fundamental rules of international law and enforced disappearance of persons.
7. The decision.
7.1. The information about an applicant will be considered against information from reputable sources on war crimes and crimes against humanity in the country concerned and, where relevant, on the groups in which the applicant has been involved. Where these sources provide sufficient evidence to support the view that the applicant's activities or involvement constitute responsibility for, or close association with, war crimes or crimes against humanity, the application should be refused.
8. Information relevant to war crimes or crimes against humanity
8.1. This information will usually consist of one or more of the following;
• Admission or allegation of involvement in any of the crimes which constitute a war crime or crime against humanity.
• Admission or allegation of involvement in groups known to have committed war crimes or crimes against humanity. Consideration of the significance of this information will depend on the relevance and detail of the information provided by the applicant as well the extent to which this information links the applicant with war crimes or crimes against humanity.
8.3. The information indicating war crimes or crimes against humanity may range from a brief claim to have been a member of a particular group or profession with no indication as to the length, dates, location or nature of these activities, to a detailed and time framed account including information about the applicant's activities, responsibilities and level of seniority within an organisation of interest.
8.4. Although an applicant will occasionally openly admit to having committed crimes which constitute war crimes or crimes against humanity, evidence which may indicate these crimes is much more likely to take the form of a claim of involvement in a particular group or profession which is known to have committed war crimes or crimes against humanity. In certain cases the applicant may deny, or may not have mentioned involvement in war crimes or crimes against humanity, however in these cases, the likelihood of an applicant having taken part in these crimes will often depend on factors such as the nature of the group itself, the degree to which the group has involved itself in war crimes or crimes against humanity and the nature of the involvement of the applicant.
8.5. Involvement includes activities where the applicant may not have had a direct involvement in war crimes or crimes against humanity but where his/her actions have contributed towards war crimes or crimes against humanity, such as, supplying help which the supplier knows is likely to contribute towards the committing of war crimes or crimes against humanity. This could include for instance providing transport to take prisoners to a site where they are going to be murdered.
8.6. In certain cases membership of a particular group may be sufficient to determine that an applicant has been supportive of, and in some cases complicit in, war crimes or crimes against humanity committed by that group. In such cases consideration will be given to the length of membership and the degree to which the group employed war crimes or crimes against humanity to achieve its ends.
8.7. Occasionally there will be evidence on file of an allegation against the applicant of involvement in war crimes or crimes against humanity, for instance an allegation letter to UKBA from a third party or a claim from the applicant that he/she will face court action from the authorities for war crimes/crimes against humanity if returned to his own country.
9. Mitigating circumstances
9.1. Where applicants have been involved in war crimes or crimes against humanity, but where there is evidence of mitigating circumstances, decisions will be made with consideration of applicable defences under international criminal law."
"This guidance is not exhaustive. Before you answer these questions you should consider the full definitions of war crimes, crimes against humanity and genocide which can be found in Schedule 8 of the International Criminal Court Act 2001 at the following web-site: http://www.legislation.gov.uk/ukpga/2001/17/schedule/8."
International Criminal Court Act 2001
i) "Imprisonment … in violation of fundamental rules of international law";
iii) "Other inhumane acts ... intentionally causing great suffering, or serious injury to body or to mental or physical health".
Individual criminal responsibility
1. The court shall have jurisdiction over natural persons pursuant to this Statute.
2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.
3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contributions shall be intentional and shall either:
(i) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or,
(ii) be made in the knowledge of the intention of the group to commit the crime.
1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) in relation to conduct, the person means to engage in the conduct;
(b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3. For the purposes of this article, 'knowledge' means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. 'Know' and 'knowingly' shall be construed accordingly."
"Grounds for excluding criminal responsibility
1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct:
(a) The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law;
(d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:
(i) Made by other persons; or
(ii) Constituted by other circumstances beyond that person's control."
"Superior orders and prescription of law
1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
(a) The person was under a legal obligation to obey orders of the Government or the superior in question;
(b) The person did not know that the order was unlawful;
(c) The order was not manifestly unlawful.
2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful."
"41. In R v. Secretary of State for the Home Department, ex parte Fayed  1 WLR 763, 773F–G, Lord Woolf MR referred in passing to the requirement of good character as being a rather nebulous one. By that he meant that good character is a concept that cannot be defined as a single standard to which all rational beings would subscribe. He did not mean that it was incapable of definition by a reasonable decision-maker in relation to the circumstances of a particular case. Nor is it an objection that a decision may be based on a higher standard of good character than other reasonable decision-makers might have adopted. Certainly, it is no part of the function of the courts to discourage ministers of the Crown from adopting a high standard in matters which have been assigned to their judgment by Parliament, provided only that it is one which can reasonably be adopted in the circumstances."
"40. It is important to emphasise that the decision to be taken, though, like many such decisions, one which could seriously affect the rights of the applicant, was an administrative decision, reviewable by the courts only if the decision-maker in some way misdirected himself or, having correctly directed himself, gave a decision which no reasonable decision-maker could have given in the circumstances."
Grounds for judicial review
i) had the Defendant applied the facts of the Claimant's case properly in the context of her own instructions, and applicable guidance from authority and international instruments she could not lawfully or rationally have reached the conclusion that 'serious doubts' arose as to the Claimant's good character consequent to his association with the Iranian regime;
ii) the Defendant erred in law and recorded irrational conclusions when assessing the nature and degree of the Claimant's association with the Prison Service and with regard to the Defendant's assessment of the Claimant's attempts to disassociate himself from that service;
iii) the Defendant erred in law when concluding that the defence of duress was not properly open to the Claimant;
iv) the Defendant erred in assessing good character without attributing weight to the Claimant's conduct in the UK over the course of the preceding 11 years.
i) guarding prisoners, with a gun, to compel compliance and prevent escape;
ii) guarding prisoners who were being tortured;
iii) taking prisoners to execution by stoning;
iv) guarding prisoners during execution by stoning, and removing their bodies afterwards.
The Defendant accepted the Claimant's evidence that he did not, by his own hand, commit any acts of torture, nor did he personally execute or shoot prisoners. However, he facilitated and aided and abetted such acts, by acting as a guard. In my judgment, it was reasonable for the Defendant to conclude that the Claimant's role was more than a "low level" role, such as a cleaner or driver.
i) Under Article 31(1)(a), his mental illness was not sufficiently severe to prevent him from appreciating the nature of his conduct or to control it;
ii) Under Article 31(1)(d), he could not rely upon duress because he was not subject to a threat of imminent death or serious bodily harm. Even when he absconded, and was placed on a charge, the penalty was detention and an extension of his military service;
iii) Under Article 33(1), he could not meet the conditions for a defence of superior orders.
i) the date he was conscripted: either "1998" or "1999";
ii) the length of his training, either "three months" or "two years";
iii) the length of time he was absent without leave before arrest, either "one month" or "six months";
iv) the date at which the student riot occurred, either "after 21 months of military service" or "near to the end of [his] service".
These discrepancies have never been explained or clarified, despite voluminous correspondence during the course of the naturalisation process. Mr Jones's explanation was that the Claimant's mental state (he has been prescribed anti-depressants and sleeping tablets) meant that his memory had failed.
i) a mistake as to an existing fact;
ii) the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable;
iii) the appellant (or his advisers) must not been have been responsible for the mistake;
iv) the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning.
The Claimant has failed to establish conditions (i) to (iii).