Akbar Azimi-Rad v The Secretary of State for the Home Department

For exclusion under Article 1F(a), complicity in crimes against humanity under Article 25(3)(d) of the Rome Statute of the International Criminal Court 2008 depends on the individual’s actual role in an organisation committing such crimes. The decision-maker must consider all material personal circumstances and determine whether the individual voluntarily made a significant contribution to the organisation’s ability to pursue its criminal purpose, with the required knowledge and intent.

Mere membership is insufficient. The individual’s own acts need not themselves fall within Article 7 or form part of a particular underlying crime. It is enough that they amount to the requisite significant contribution to crimes against humanity perpetrated by the organisation.

Akbar Azimi-Rad v The Secretary of State for the Home Department concerned an Iranian national and former local Basij commander. The First-tier Tribunal allowed his appeal under Article 3 of the European Convention on Human Rights, but dismissed his asylum and humanitarian-protection appeal because Article 1F(a) excluded him from Refugee Convention protection.

The judge found that the Basij committed crimes against humanity and that the appellant, although not personally violent, knowingly contributed to its ability to operate. The appellant appealed to the Upper Tribunal. He challenged the finding that the Basij committed Article 7 crimes, argued that his own acts had to form part of such crimes, and contended that the judge had not properly assessed his personal responsibility under Article 25.

1. Appeal dismissed. The First-tier Tribunal made no error of law in excluding the appellant from Refugee Convention protection under Article 1F(a). Its separate decision allowing the appeal on Article 3 grounds remained in force.

2. The evidence entitled the First-tier Tribunal to find that the Basij committed acts within Article 7 as part of a widespread or systematic attack against civilians, pursuant to or in furtherance of state or organisational policy. The appellant’s challenge was, in substance, one of perversity or irrationality. It failed because the factual conclusion was reasonably open on the background evidence and his own evidence of violence, detention and ill-treatment.

3. Article 7 and Article 25 perform distinct functions. Article 7 requires proof that crimes against humanity were perpetrated. Article 25 then determines whether an individual is criminally responsible for them. A person complicit under Article 25(3)(d) need not have performed an act which itself falls within one of the Article 7 categories or contributed to an identified particular crime. The required contribution may instead be to the organisation’s ability to carry out crimes against humanity.

4. The assessment of complicity is individual and fact-sensitive. The factors identified in R (on the application of JS) (Sri Lanka) v SSHD [2010] UKSC 15 are relevant where applicable, but are neither exhaustive nor a mandatory checklist. The essential question is whether all the circumstances establish a knowing and significant voluntary contribution.

5. Here, the appellant was a committed, respected and voluntary member of local rank. He commanded others, knew of their serious ill-treatment of civilians, handed over people knowing they would be ill-treated, and deliberately ignored abuses. Those facts supported the finding that there were serious reasons for considering that he significantly contributed to the Basij’s criminal purpose with the required mental element.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal and upheld the Article 1F(a) exclusion finding.
• First-tier Tribunal: in a determination sent on 20 August 2010, allowed the appeal under Article 3 of the European Convention on Human Rights but dismissed the asylum and humanitarian-protection appeal on the basis of Article 1F(a).