England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		5 December 2014

MR JUSTICE JAY:

Introduction

1. This is an Application for Judicial Review of the Defendant's decision given on 6th November 2013 refusing the Claimant's application under Section 6 of the British Nationality Act 1981 to be naturalised as a British citizen.

Essential Factual Background

2. The Claimant, Mr Gulrahman Amiri, was born in Afghanistan on 5th October 1982. He probably arrived in the United Kingdom on 25th August 2004, and he claimed asylum the following day. The Defendant refused that Application, and on 5th October 2004 she decided to remove him to Afghanistan. The Claimant's appeal was heard before the Adjudicator, Mr Kopieczek, on 16th December 2004, and was allowed. The basis of the claim for asylum was that the Claimant joined the Taliban as a member of the Religious Police, and served in that capacity between 1996 and 2001.
3. The Claimant's evidence before the Adjudicator was that, although he acted as a bodyguard, he was never involved in fighting for the Taliban. However, the Claimant said that he was involved in the Taliban in the Amri-Bilmaroof "where he targeted the general public for such things as controlling beards and other virtues" (see paragraph 14 of the Adjudicator's Determination).
4. The Adjudicator found that the Claimant had given a generally consistent account which was also consistent with the country background material. He accepted that the Claimant was a member of the Taliban in the Vice and Virtue Department. The Adjudicator concluded that the Claimant had a well-founded fear of persecution in Afghanistan on account of his and his family's involvement with the Taliban, for a Convention reason, namely his imputed political opinions. The Adjudicator also allowed the appeal on similar human rights grounds.
5. The way the Secretary of State presented her case before the Adjudicator was to seek to persuade the AIT that the Claimant's involvement in the Taliban was at a very low level. The Defendant did not seek to say that the Claimant had been involved in the perpetration of crimes against humanity such that he should fall within one of the exceptions to the Refugee Convention. In reality, it seems to me that the Defendant's choice was binary; it would have been difficult to run both cases simultaneously. However, subject to considerations of overall fairness, I see no reason why the Defendant could not approach the matter in a different way when it came to the application for a Naturalisation Certificate.
6. On 26th August 2009 the Claimant applied for Naturalisation as a British Citizen. Not all of the documentation referred to in the Defendant's First Decision Letter dated 11th March 2011 is available. Given that the Claimant does not raise a frank Wednesbury challenge, these evidential lacunae do not really matter. The Defendant based her decision on evidence which came out during the course of the asylum process, as well as that submitted as part of the Nationality Application dated 26th August 2009. Additionally, at the hearing before me Ms Walker for the Secretary of State handed in a supplementary bundle containing further information as to what this Claimant has said at various times and opportunities.
7. The Claimant told the Defendant that his involvement with the Taliban was "run of the mill". He admitted that he was a member of the Department or Administration of "Vice and Virtue", being the religious police of the Taliban. He said that his duties involved targeting the general public for matters such as Mosque attendance, controlling beards and other virtues.
8. The Claimant said that he served the Taliban in that capacity between December 1996 and September 2001. He denied being involved in combat, but admitted "capturing and arresting" people.
9. During his asylum interview which took place on 28th September 2004, the Claimant was asked why he did not want to fight. His answer was:

"Because I didn't want to, I was fed up to fight up more. I fought for a long time."

10. In answer to the question "Where did you fight?", the Claimant said:

"Actually I didn't fight I was working in the Police Department".

11. The Defendant also draws attention to the Claimant's Military Questionnaire which was completed in 2009. In answering that questionnaire the Claimant said this:

"Our duties were arresting people who were not observing Taliban (Shariah) law. Also arresting people who had corruptions; making trouble to others ..... Yes, we were responsible to arrest people who were causing problems to others, who were not following Taliban (Shariah) law in our local area. Police station officers inside would be responsible for what happening to them [sic], as it was not part of our duty ..... We were arresting people with long length hair, short length beards. People who were out of Mosque at the times of prayer."

12. In her decision letter given on 11th March 2011, the Defendant summarised the background evidence relating to the conduct and activities of the Taliban, including the "Vice and Virtue" Department, and noted that it had perpetrated crimes against humanity, including torture.
13. Ms Walker relies on the following passages:

"In a 1996 interview, the Deputy Head of the 'Religious Police' [i.e. the Vice and Virtue Department] in Kabul gave details of the work of the organisation:

'They deal with these crimes when they capture them, exactly at that time ..... whenever we catch them doing immoral things, we can do anything we want. We can execute them, we can kill them.'

In a later interview a member of the 'Religious Police' stated with regards to adulterers and homosexuals:

'If they are caught in the act of fornication ..... they are stoned to death.'.

With reference to apostates he said:

'We kill them too.'

The favoured tactic of the 'Religious Police' was to patrol the streets in pick-up trucks meting out on the spot floggings with leather straps or heavy wire to those who failed to fully adhere to Taliban laws. At times they were seen beating people to force them inside Mosque to attend prayers.

The 'Religious Police' also arrested any men who had shaved, or even trimmed, their beards. In December 1999, the acting Head of the Taliban's Religious Police ..... was quoted as saying that men who trim their beards were to be jailed by the Religious Police for anything up to 10 days. Furthermore, they also used third-party punishments, for example, beating men whose wives had been found washing clothes in rivers."

14. The Defendant's background evidence also covers examples of extreme discrimination against women, the administration of public floggings, and the stoning to death of adulterers. Overall, the background evidence showed that the so-called 'Religious Police' were responsible for widespread persecution of those failing to adhere to the Taliban's rules and its version of Islam.
15. The Defendant's conclusion in March 2011 was that the Claimant served with the Vice and Virtue Department for nearly 5 years. Her core conclusion was as follows:

"It is documented that the methods of enforcing this interpretation of Islam involved methods of the 'Vice and Virtue Department' perpetrated crimes against humanity. You captured and arrested people. Bearing in mind your role and the background information, it is considered likely some of those captured would have been subject to abuse. Therefore, it is considered that you aided or otherwise assisted international crimes. Yet, on your application form for British nationality, you ticked the box to deny that you have ever been involved in war crimes, crimes against humanity or genocide. This is considered deceptive and casts further doubts on your character."

16. The Defendant also based her decision on the fact that the Claimant had given false and deceptive answers in his application form for a Naturalisation Certificate, because he denied that he had ever been involved in crimes against humanity.
17. The Claimant did not receive this adverse decision until October 2011. His representatives then asked the Defendant to review her decision, which she did on 5th December 2011. The Defendant upheld her decision on review. There is a dispute about whether this letter was received by the Claimant or his representatives. Fortunately, I do not have to resolve it. The Claimant's representatives asked the Defendant to undertake a further reconsideration, which she agreed to do. On 6th November 2013 the Defendant upheld the decision without giving any additional reasons.
18. In formal terms, this application for Judicial Review is directed to the decision dated 6th November 2013, but in reality one needs to examine the reasons given in the Defendant's decision letter dated 5th December 2011 in order to understand the substance of the matter. Given that those reasons do not differ materially from the earlier letter, it is appropriate to consider that too.
19. In her letter dated 5th December 2011, the Defendant summarised the Claimant's case on review as follows:

"Your agents submit that you never assisted or aided international crimes. Therefore, you were never involved in war crimes, crimes against humanity or genocide. They then go on to explain that your role was low-ranking and insignificant and that you never held a position of seniority. As such, they assert that if you did not subject any person to inhumane or degrading treatment nor were directly linked to crimes resulting in discrimination there are insufficient grounds to refuse your application on the basis of the alleged war crimes, crimes against humanity and genocide."

20. The Defendant referred to her "policy" on Section 6 of the British Nationality Act 1981, and noted that Naturalisation would normally be refused if "serious doubts" were cast on an applicant's character. In the Defendant's view, this included cases not merely where an applicant was directly involved in crimes against humanity, but "where his actions have contributed towards ..... crimes against humanity, such as supplying help which the supplier knows is likely to contribute towards the committing of crimes against humanity".
21. The Defendant's core reasoning for refusing the claim was as follows:

"As a member of the Taliban in the 'Vice and Virtue Department', you were responsible for enforcing the strict interpretation of Islam adopted by the Taliban. According to your own evidence, you served with them throughout the period of the Taliban's Islamic Emirate of Afghanistan. It is documented that the methods of enforcing this interpretation of Islam involved members of the 'Vice and Virtue Department' perpetrating crimes against humanity. You declared that you captured and arrested people. Based on your role and the background information, it is reasonable to assume that some of those captured would have been subject to abuse.

The Secretary of State therefore remains of the opinion that you aided or otherwise assisted international crimes in your capacity as a member of the Taliban in the 'Vice and Virtue Department' and your involvement cast serious doubts on you ability to satisfy the good character requirement for naturalisation."

22. In her review decisions the Defendant no longer took the point that the Claimant had given deceptive answers in his application form.

The Legal Framework

23. The Defendant has a discretion under Section 6 of the British Nationality Act 1981 to grant a person a Certificate of Naturalisation if he fulfils certain conditions, including the good character requirement in Schedule 1.
24. The authorities establish that the Defendant is entitled to apply a high standard, and that the onus of proof is on an applicant to satisfy the Defendant. I do not understand that to be in dispute. Further, the good character requirement applies to anyone over the age of 10 who makes the relevant application.
25. It is the policy of the Defendant normally to refuse applications if there is information to suggest that the applicant has been involved in or associated with, amongst other things, crimes against humanity.
26. Volume 2 of the Nationality Guidance contains instructions entitled "War Crimes, Crimes Against Humanity, and Genocide". This Guidance does not contain a series of policies properly so called; it means what it says. In other words, the Guidance gives further assistance to caseworkers as to the matters which routinely fall to be taken into account regarding applications of this nature.
27. By paragraph 2.1 of these Instructions, the Defendant's caseworkers are enjoined to refuse applications if an applicant's activities cast "serious doubts" on his good character. On the face of paragraph 2.1, there are essentially two ways in which such doubts may be cast: (1) involvement in or association with crimes against humanity; (2) supporting the commission of such crimes, or supporting groups whose main purpose or modus operandi consists in the commission of such crimes, even if that support did not make a direct contribution to them.
28. On my understanding, the Defendant does not contend that item (2) applies here; she relies on item (1), in particular, involvement. It is clear from later paragraphs of the Instructions that the involvement does not have to be direct. In relation to both of these general categories, including of course item (1), paragraph 2.2 is relevant. It provides:

"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 in 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."

29. Paragraph 6.2 of the Guidance defines "crimes against humanity". It provides:

"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, severe deprivation of liberty in violation of fundamental rules of international law and enforced disappearance of persons."

30. Paragraphs 8.1, 8.3, 8.4, 8.5 and 8.6 of the Guidance are also relevant. It is unnecessary to set these out verbatim in this judgment. These paragraphs provide further illumination on paragraphs 2.1 and 2.2 without making it clear at all material times which limbs are being addressed; these are treated somewhat compendiously. The Defendant recognises that the issue which normally arises is the nature and/or degree of involvement in groups known to have committed such crimes. The information available to the Defendant has to be analysed with care to establish whether the applicant may be linked to such crimes through his participation in the relevant group.
31. As the Defendant also recognises in paragraph 8.4 of the Guidance:

" ..... 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 ..... crimes against humanity, and the nature of the involvement of the applicant."

32. Paragraph 8.4 of the Guidance has to be read in conjunction with paragraph 2.2, which is the dominant provision. That makes clear that consideration should be given to the issue of the quality of the evidence directly linking the applicant with the crimes against humanity which have been committed.
33. Plainly, the issue of direct linking also arises in cases where the issue is not support for a group but rather involvement in crimes against humanity, or supporting the commission of such crimes. In such cases, membership of the group may well be relevant, but the real point here is what the criminal lawyers would classify as accessory liability, as I will later be making clear.
34. Paragraphs 8.5 and 8.6 of the Guidance address the questions of indirect involvement, supporting the commission of crimes against humanity, and support for groups whose main purpose is to commit such crimes. These paragraphs provide:

"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."

35. Other sections of the Guidance are also relevant to this application, but need not be addressed at this stage.
36. The authorities clearly establish that the Defendant's Guidance must be given its plain and ordinary meaning, and that exegesis is for this Court, and not for the Secretary of State.

The Claimant's Grounds

37. The Claimant's grounds, as originally formulated, contained four grounds of challenge, which are accurately enumerated at paragraph 4.1 of the Defendant's Detailed Grounds. Mr Sills has whittled these down to two, and his reasons challenge now forms part of his first ground. On my understanding, the fourth ground, namely breach of the Claimant's Article 8 rights, and the Defendant's obligations under Article 34 of the Refugee Convention, is no longer being pursued.
38. My provisional view on reading these papers was that this challenge really hinges on the first ground, and that remains the position.
39. Mr Sills submitted on his first ground that, given that this is a case where the issue was the nature and extent of the Claimant's involvement in crimes against humanity, the Defendant erred in failing to consider evidence directly linking the Claimant to particular crimes. This submission is advanced as a failure to take into account a relevant consideration, namely a consideration or factor specified in the Defendant's own Guidance; or, alternatively as a want of reasoning. Mr Sills contends that the Defendant's reasoning fails to consider the extent and proximity of the Claimant's personal involvement with crimes against humanity. Instead, says Mr Sills, the Defendant's reasoning fallaciously asserts the following: because the Claimant worked for a specific department of the Taliban regime that was responsible for some crimes, it followed that the Claimant was involved in crimes against humanity. Additionally, Mr Sills submits that it is necessary in cases such as these for the Defendant to consider whether the Claimant was closely associated with crimes against humanity, and this consideration has not taken place.
40. Furthermore, on Mr Sills' case, the Defendant has failed to explain the Claimant's connection with crimes against humanity, which notion imports a high threshold of criminality and reprehensibility. Instead, there is evidence of the Claimant's modest involvement in arresting men for trimming their beards, and their likely incarceration for up to 10 days in admittedly poor conditions, but that is not sufficient to constitute evidence of crimes against humanity. It is true that the Defendant has mentioned likely abuse, which may be taken to include torture, but nowhere has the Defendant linked the Claimant's actions with anything as serious as that.
41. Under some prompting from me, Mr Sills further refined his primary submissions during the course of his oral argument. Either, submitted Mr Sills, the Defendant has relied just on the activities which the Claimant has admitted, namely capturing and arresting those who trimmed their beards. If that was the Defendant's reasoning, then no proper consideration has been given to whether the incarceration of individuals in admittedly poor conditions for up to 10 days would constitute a crime against humanity. Or, alternatively, the Defendant has gone further, and has concluded that the Claimant's involvement in the activities of the "Vice and Virtue" Department was significantly greater than he has admitted; but if that is the position the Defendant has given no explanation as to how and why.
42. Additionally, Mr Sills submitted that the Defendant has made no finding about the Claimant's knowledge or mens rea. He submitted that these matters are inherent to the Defendant's Guidance because mens rea is an essential element of any crime against humanity: see, for example, Article 32 of the Rome Statute. Mr Sills further submitted that mens rea is a requirement for both involvement and support, and he derived further fortification for his point by referring to paragraph 8.5 of the Defendant's Instructions.
43. Ms Walker for the Defendant submits that it is clear from the Claimant's asylum questionnaire and other materials that his role with the Taliban was more substantial that simply stopping people in the streets to check their compliance with Shariah Law, and then arresting and being involved in their apprehension. The background material available to the Defendant strongly suggests that the Taliban, and its Vice and Virtue Department, were involved in the perpetration of crimes against humanity, and the Claimant must have been aware of those matters - his father was a senior Taliban commander - and have been involved in some of them. Accordingly, submits Ms Walker, the Defendant's conclusion that it was likely that some of those captured by the Claimant would have been subject to abuse amounting to torture was reasonable.
44. The Claimant was involved in crimes against humanity, albeit indirectly, because he was involved in arresting and detaining people who had violated the Taliban's particular interpretation of Islam. Furthermore, the Defendant drew a clear link between the Claimant's evidence that he captured people and the likelihood that those captured people would have been subject to serious human rights abuses, given the background evidence relating to the Vice and Virtue Department's methods. Ms Walker emphasised that there was no need to prove a direct link between the Claimant's actions and any particular, individual crime against humanity.

Analysis

45. The onus was on the Claimant to satisfy the Defendant of his good character. It is plain and obvious that in this sort of case applicants will not readily admit to having perpetrated crimes against humanity, and will tend to downplay the nature and extent of their activities and involvement. Accordingly, the Defendant is quite entitled to have promulgated guidance which is to the effect that if the available evidence casts "serious doubts" as to an applicant's good character, then the application for a naturalisation certificate should normally be refused. In my judgment, it is also the position that the Defendant is entitled to draw commonsense inferences from all the available material, including the applicant's own representations, provided that they are reasonable.
46. It is clear from both of the Defendant's decision letters that she is saying that the Claimant has aided or otherwise assisted the perpetration of crimes against humanity in his capacity as a member of the Taliban's Vice and Virtue Department, and that his involvement consists in the capture and arrest of those perceived to have violated the Taliban's conception of Shariah Law. The parties are in agreement that the only issue here is "crimes against humanity", not war crimes or genocide.
47. In The Queen on the Application of Thamby v Secretary of State for the Home Department [2011] EWHC 1763 (Admin), Sales J held that the basic test the Defendant applies is located in paragraph 2.1 of the Guidance, and that subsequent paragraphs in the Guidance, in particular paragraph 8, are designed to provide subordinate assistance to caseworkers on the application of that test. I agree with that approach. In my view, paragraph 2.2 is also part of the basic test.
48. The way the Defendant approached the matter in Thamby was to say that the applicant was supporting a terrorist organisation, the LTTE, which was an entity whose main purpose or mode of operation consisted in the commission of war crimes or crimes against humanity. It was in that context that paragraph 42 of Sales J's judgment needs to be understood. There, the following passage appears:

"42 ..... To give rise to serious doubts as to his good character for the purposes of naturalisation, it is not necessary that the applicant should have been personally directly involved in the commission of war crimes, nor that any assistance he gave to an organisation involved in committing war crimes should have been linked to its commission of war crimes in some indirect way. It may be sufficient that the applicant has, by his support for the organisation and with an appreciation of its willingness to use barbaric methods, gone so far as to show that he is prepared to ally himself with it in a way which reveals a marked lack of commitment to the values underpinning British society, contrary to the concept of 'good character' set out in the glossary in Guide AN ..... "

49. In the instant case the Defendant is not saying - although she might well have done - that the Claimant was supporting a group whose main purpose or mode of operation consisted in the commission of crimes against humanity. The Defendant's letters do not articulate such a case, and I also take Mr Sills' point that if this were the Defendant's position her reasoning is opaque. The Defendant has not concluded, for example, that the primary raison d'etre of this department of the Taliban was the perpetration of crimes against humanity. That would be a possible conclusion on the available evidence, but it is not an ineluctable one, nor has it been articulated as such.
50. Returning to the basic test in paragraph 2.1 of the Guidance, the Defendant is expressly relying on "involvement", which does not have to be direct involvement. The Defendant has not mentioned any association with crimes against humanity, but I doubt whether that adds (or subtracts) anything. Further, the Defendant has not mentioned any support the Claimant may have given to the commission of crimes against humanity, although - as I have said - reliance is not placed on any support the Claimant may have given to a group.
51. In substance, however, there is no material difference between (a) indirect involvement in crimes against humanity, and (b) support for the commission of such crimes. In both instances the applicant is not the direct perpetrator of crimes; in effect, he is said to be an accessory or secondary party. This is the focus of the Defendant's decision in the instant case.
52. Like Sales J, I consider that the Guidance is by no means as clear as it might be. It should be overhauled and redrafted, preferably with the benefit of advice from criminal and international lawyers.
53. In any case where the issue is that of indirect involvement, or support, "consideration will be given to evidence directly linking the applicant with such crimes" (see paragraph 2.2 of the Guidance). In my judgment, the purpose of this paragraph is also to identify the evidential factors which will tend to illuminate the issue of direct linkage. It is clear that in cases such as these the Defendant's caseworkers will need to be drawing reasonable, commonsense inferences from the available material. The task for the Defendant is not to discharge any burden of proof as such (save, perhaps, for an informal evidential burden), but to assess and evaluate all the available evidence in order to determine whether "serious doubts" are cast on the applicant's good character.
54. Although "evidence directly linking the applicant" with crimes against humanity is the essential focus of the exercise, I need to correct two errors which seem to me to underscore Mr Sills' suggested approach. First, I cannot agree with Mr Sills that it is incumbent on the Defendant to demonstrate a "close association". That epithet derives from paragraph 7.1 of the Guidance, but in that context the Defendant is merely making it clear that if there is evidence of a close association, then the application must be refused. The Defendant is not saying that the application should be granted if the association is less than close. In any event, the basic test is not located in paragraph 7.1 of the Guidance; it is to be found in paragraphs 2.1 and 2.2. That is the point Sales J made in Thamby.
55. Mr Sills' second error is to seek to require the Defendant to demonstrate a nexus between the Claimant and the commission of particular or specific crimes against humanity. In my judgment, that is an overly stringent requirement and one which does not flow from the natural and ordinary meaning of paragraph 2.2 of the Guidance or, indeed, paragraph 8. In my judgment, the Defendant is entitled to consider the matter more broadly and to consider, having regard to the background material as well as the Claimant's own account, whether he was likely to have been involved in the range of activities which - in the instant case, the Taliban - is known to have committed. If he was, then it is entirely reasonable to draw the inference (the Defendant says "assume", which is not ideally expressed, but it amounts to the same thing) that the Claimant activities were linked to some crimes against humanity, even if these could not be identified individually.
56. I should make clear that the inferences I am referring to do not have to be sufficient to establish criminal responsibility for the purposes of the Rome Statute. They have to be sufficient to enable "serious doubts" to be cast on the Claimant's character. That is a much lower threshold, and one which Mr Sills' submissions did not properly address.
57. It follows that I cannot accept Mr Sills' core submission that it is always necessary in these cases for the Defendant to discern a direct link between the applicant and individual crimes against humanity.
58. In this context, it is necessary to return to paragraph 42 of the judgment of Sales J in Thamby. On one reading, this paragraph supports the Defendant's position, but I do not read the first sentence of the citation I have set out in that way. In my view, Sales J is only referring to a case where the Defendant is contending that the Claimant has supported a group whose main purpose or mode of operation consisted in the committing of crimes against humanity. Sales J's observations do not necessarily apply to other types of case falling within paragraph 2.1 of the Guidance.
59. I turn to Mr Sills' submission that proof of knowledge or mens rea is an essential requirement in these cases. Some support for that submission may be derived from a consideration of the position under international law, paragraph 42 of the judgment of Sales J in Thamby, and paragraph 8.5 of the Defendant's Guidance. However, in my judgment the Defendant will only be required to make express mention of the issue of knowledge where it arises as a clear and distinct issue in the case. Paragraph 8.5 of the Guidance contemplates that persons giving financial or other support to groups may not always be aware of the nature of the activities perpetrated by those groups. In such a case, some sort of finding as to the applicant's level of awareness may well be required; although, as before, the Defendant would not have to be satisfied that the applicant did have any requisite degree of knowledge, because the threshold is the lower one of "serious doubts". Of course, if the primary purpose or mode of operation of the group under consideration is the perpetration of crimes against humanity, then it would only very rarely be the position that an individual offering support for that group will not have a very clear idea of its purposes and methods.
60. In the circumstances of the instant case, if there is evidence of a direct linkage between the Claimant's actions and the perpetration of crimes against humanity, then the Claimant's knowledge of those crimes arises as an entirely reasonable inference. Put another way, it would be entirely natural for the Defendant to have serious doubts about the Claimant's good character. The Claimant, notwithstanding his relative youth, served or "fought" (as he put it) in this department of the Taliban for 5 years under his father's wing, and it is difficult to accept that he did not know about the atrocities that were being perpetrated. More importantly, that by necessary implication is the Defendant's viewpoint, and I see no flaw in it.
61. Thus, in a case such as this it must be incumbent on the Claimant to rebut these inferences by explaining to the Defendant in a frank and cogent manner why they should not arise in the circumstances of the instant case. In fact, this Claimant never sought to do that at any stage before the Defendant's second review letter was written. In such circumstances, it seems to me that the absence of reference in any of the Defendant's decision letters to the Claimant's knowledge is quite understandable; it betokens no want of reasoning.
62. I return to the Defendant's core reasoning which is to the effect that, having regard to the Claimant's role and the background information available to the Defendant, "it is reasonable to assume that some of those captured would have been subject to abuse". In my judgment, the Defendant has asked herself the right question and has not shied from addressing the key points identified under paragraph 2.2 of the Guidance, in particular. More particularly, I agree with Ms Walker that the Defendant has concluded, having regard to the background material in particular, that the Claimant's involvement went considerably beyond capturing and arresting those who had dared to trim their beards. The Claimant has admitted that he arrested people "who had corruptions", being people who had violated - by act or omission - the Taliban's interpretation of Shariah Law. The Defendant was entitled to conclude that combating a wide range of religious infractions was comprehended by the Claimant's activities; and, when the background evidence is factored in, it is a very reasonable inference that the Claimant was involved in the perpetration (by others) of crimes against humanity. In any event, Mr Sills does not advance a Wednesbury challenge to the Defendant's core reasoning; he confines himself to submitting that the Defendant has asked herself the wrong question or questions.
63. I cannot accept Mr Sills' submissions on his main points.
64. Mr Sills submitted, very much by way of subsidiary argument, that the Defendant has failed to consider a series of mitigating factors: these include, the Claimant's youth, his role, length of membership, and level of seniority. In oral argument Mr Sills added the point that the Defendant has not considered whether the Claimant might have been acting under duress. Many of the factors I have mentioned were clearly considered by the Defendant in the context of the issue of "evidence of direct linking", which is the core issue identified under paragraph 2.2 of the Guidance. As for the Claimant's age, I accept that the Defendant has not made it crystal clear that the Claimant was a teenager at the material time, and that for the majority of the period he was a minor. However, the Claimant was well above the age of criminal responsibility for the purposes of the law of England and Wales, and - whether or not he was armed for that purpose - he was quite able to capture grown men. The Claimant has chosen to use the word "capturing", not the Defendant. The Claimant's relative youth was not advanced as a mitigation point in the representations made to the Defendant. To my mind, it was a very weak factor to which the Defendant did not have to make express reference.
65. As for the point that the Claimant might have acted under duress, I have to say that the instant case comes nowhere near the criteria for duress laid down in Article 31 (1) (d) of the Rome Statute.
66. In my judgment, Mr Sills' mitigation points are not arguable.
67. Finally, there is absolutely no merit in the point that the Defendant's processes were unfair. The short answer to it is that the Defendant did not persist in contending that the Claimant's application form was deceptive when she came to make her review determinations. Furthermore, the Claimant had every opportunity, in the decision-making process which applied to the instant case, to correct the Defendant's first assessment of his level of involvement.
68. In my judgment, this application for judicial review must be dismissed.
69. Miss Walker, is there a costs schedule?
70. MISS WALKER: I do have a costs schedule. I have not had a chance to give that to my friend yet. My instructions are to seek a detailed assessment of costs. I also need to update it with my own brief fee; that is not included.
71. MR JUSTICE JAY: Let me put that in.
72. MISS WALKER: I have done it. Part of it is in there which is the brief fee for the oral permission hearing on the second page, second box down, £1,550. I would also need to include the brief fee for attending today which is £350, and then the fee for the substantive hearing which is in the sum of £680. It is an hourly rate of £80 an hour.
73. MR JUSTICE JAY: For the substantive, you want how much?
74. MISS WALKER: 680.
75. MR JUSTICE JAY: How many hours was that?
76. MISS WALKER: That is eight-and-a-half.
77. MR JUSTICE JAY: That includes the skeleton argument and preparation.
78. MISS WALKER: The skeleton argument and preparation.
79. MR JUSTICE JAY: For today, how much is it?
80. MISS WALKER: 350.
81. MR JUSTICE JAY: It is '80, is it not?
82. MISS WALKER: Yes. It is the usual fixed fee.
83. MR JUSTICE JAY: If you were to add it all up it is about £7,800.
84. MISS WALKER: I have a total of £6,906.07 as the total before adding on VAT.
85. MR JUSTICE JAY: How much VAT?
86. MISS WALKER: 6,906.07.
87. MR JUSTICE JAY: How much is the VAT?
88. MISS WALKER: An additional VAT of £206, which means the total in the VAT box is 1,382. I have not done the final bit of the calculation.
89. MR JUSTICE JAY: It is about £8,300. Why are you charging VAT?
90. MISS WALKER: Counsel do charge VAT.
91. MR JUSTICE JAY: Counsel does, but is there VAT as between a Government department and the Treasury Solicitor.
92. MISS WALKER: There must be because he is included and this has been approved - certainly approved - by the client and the Treasury Solicitor. I can certainly check but my understanding is that VAT is claimed.
93. MR JUSTICE JAY: Do you have any submissions on the amounts, Mr Kirk?
94. MR KIRK: No, save that perhaps the fee of 350 today.
95. MR JUSTICE JAY: I take a rough and ready view. I am going to ask Miss Walker to confirm that VAT is payable.
96. MISS WALKER: Yes, of course.
97. MR JUSTICE JAY: I am going to reduce the pre-VAT figure (in other words, the net figure) down to £5,750. If you get confirmation from the Treasury Solicitor that VAT is payable, obviously that is 20 per cent of that so that is another £1,150, is it?
98. MISS WALKER: Yes. I will have to do the calculation. I am just checking. It may be I have my maths wrong but the balance brought forward was £5,140. Then I add on the amounts that are already on the schedule: 386 - - - - -
99. MR JUSTICE JAY: That is 736.
100. MISS WALKER: - - - - - plus 350 would be 5,876.67 and add in the substantive 680. Are you reducing the whole amount, including the brief fee, to 5,750?
101. MR JUSTICE JAY: Before we go up to the 680 plus what I say is the 80, it is 5,876. If you are going to add in another 740 that is about £6,600.
102. MISS WALKER: Yes. That is the point I was just checking.
103. MR JUSTICE JAY: Then VAT may or may not be included. My figure of 5,750 stands; VAT is what it is; I make it 1,150 but it is a simple calculation just done quickly in my head. You will confirm with the Treasury Solicitor whether VAT is properly payable. If it is you will let the court know and the order will be plus VAT. If it is not, you are left with £5,750.
104. MISS WALKER: Plus the court fees as well, the 736.67.
105. MR JUSTICE JAY: No. That is not the court fee.
106. MISS WALKER: It is other expenses.
107. MR JUSTICE JAY: It is not. 736.67 is the aggregate of your fees at the last hearing.
108. MISS WALKER: I am sorry, yes.
109. MR JUSTICE JAY: We are not going to spend much time on this because Mr Amiri is not going to pay anything. That is why I have sought to do that today. Are there any other applications?
110. MR KIRK: Yes. I would seek permission to appeal. I would request that the claimant be given a week for Mr Sills to make an application to this court in writing. Given that I have not been involved, I am at a disadvantage.
111. MR JUSTICE JAY: He cannot expect you to make the application. He can make the application in writing and he can e.mail it to my clerk by 4 pm on Friday 12 December. I will then determine the application. It is highly unlikely to succeed.
112. MR KIRK: I appreciate that.
113. MR JUSTICE JAY: I will determine it. The court order therefore should not be drawn up and finalised. It can be drawn up just with the permission to appeal part left blank but it will be finalised on the Monday following - the 15th - when I have a chance to look at the application. I expect his submissions to be brief. He will need to identify the key point. If he asks my clerk for the text of what I have read out she will provide that to assist him. Miss Walker, if you ask you will get that too.
114. MISS WALKER: Certainly, thank you. In terms of the clarification on the VAT, should I send a draft of the order.
115. MR JUSTICE JAY: Send it to the associate. We will take your word for it. If necessary, get the Treasury Solicitor to ask the costs department and confirm that value added tax is paid. I know that you charge VAT, but my point is does one Government department charge another VAT.
116. MISS WALKER: Yes, if it is recoverable to departments. The VAT is on £5,750.
117. MR JUSTICE JAY: That is right.
118. MISS WALKER: I confirm that. (Judge confers with court associate)
119. MR KIRK: Can I ask that the order record that there be detailed assessment of the claimant's publicly funded costs?
120. MISS WALKER: This is a point that I raised with my friend in the time we had. That would obviously relate to a period in which there was costs protection. That would only obviously be in a case where there was an existing certificate as to legal aid. As I understood from Mr Sills, there was some period in which that legal aid certificate had not been valid or revoked. That point has not been clarified. It would certainly be helpful before any order is made of that sort for there to be clarity as to which period is subject to costs protection. That would obviously alter any order that is made in terms of the order for court.
121. MR JUSTICE JAY: I am not going to make that order until the position is made clear. For the hearing it was privately funded.
122. MR KIRK: That is my understanding. My understanding is that the claimant will not be costs protected but that his representatives may still be able to recover a certain amount of costs. I am happy for that to be determined by correspondence between the parties before the order is drafted.
123. MR JUSTICE JAY: Yes. You need to show there was and still is a valid certificate. There are two way the Legal Services Commission deal with it. If they cancel the certificate it means that the cancellation is as from a certain date. If they revoke it - I cannot quite remember their terminology - it means it is rescinded ab initio, there never was a certificate. You will need to be clear which it is in this case. In a sense, if I make the order and there is not in fact a valid certificate it is going to make no difference, is it?
124. MR KIRK: No.
125. MR JUSTICE JAY: So we might as well include that in the order. The appropriate wording - but I ask you to give that to the associate - is to the extent that the claimant has an effective certificate for public funding in relation to any part of these proceedings; the claimant is entitled to a detailed assessment of his publicly funded costs or words to that effect. It is not going to make any difference, I do not think, to the costs order because, in reality, the Secretary of State is not going to try and enforce it anyway.
126. MISS WALKER: Yes. I cannot say that the Secretary of State will.
127. MR JUSTICE JAY: There is nothing to enforce. He has given up the sort of criminal activities which would enable you to get anything out of him. He is on benefits, is he not?
128. MR KIRK: Yes.