AA-R (Iran) v Secretary of State for the Home Department

For exclusion from refugee protection for crimes against humanity, the Secretary of State must establish serious reasons for considering, on the balance of probabilities, that the applicant was individually responsible. Responsibility is not confined to personal commission or domestic joint enterprise. Under Article 25(3)(d) of the Rome Statute, a person may be complicit where he intentionally makes a significant contribution to the criminal activity or purpose of a group, knowing of its intention to commit the relevant crime. The assessment is fact-sensitive. Knowledge of serious violence, continued participation, command functions, recruitment, budgeting or propaganda may together establish the necessary contribution and mental element.

The appellant, an Iranian national and former Basij member, appealed from the Upper Tribunal’s decision upholding the First-tier Tribunal’s finding that he was excluded from refugee status under Article 1F(a) of the Refugee Convention, while succeeding on an Article 3 claim. The tribunals found that the Basij engaged in widespread or systematic attacks against civilians and that the appellant, a local commander, had witnessed serious mistreatment, handed detainees to colleagues knowing they would be beaten, and continued to perform command, recruitment, budgeting and propaganda functions.

The appeal challenged whether those matters established a significant contribution to the Basij’s general crimes against humanity and whether the tribunals had given adequate reasons.

1. Appeal dismissed. The issue was complicity. The appellant’s own evidence established that he knew of the Basij’s malign activities and intended to contribute to them, even if he acted unwillingly or with regret. He had witnessed lashings, beatings and torture, yet continued handing arrested people to those who inflicted such treatment.
2. The Secretary of State’s burden was to show, on the balance of probabilities, serious reasons for considering that exclusion applied. Article 1F(a) and the materially identical Article 12(2)(a) of the Qualification Directive had to be interpreted restrictively and used cautiously because exclusion has serious consequences.
3. Article 25(3)(d) of the Rome Statute covers a person who intentionally contributes to the commission or attempted commission of a crime by a group acting with a common purpose, either to further the group’s criminal activity or purpose or with knowledge of its intention. The domestic concept of joint enterprise does not exhaust the relevant responsibility.
4. An actus reus required no further analysis on the facts because the appellant had made extensive concessions. Once there was evidence that he made a significant contribution to the acts of an organisation whose criminal activities he knew, complicity was established. The contribution was not limited to physical violence. Command responsibilities, turning a blind eye to serious violence, budgeting, recruitment and propaganda could materially assist the organisation’s ability to operate.
5. The challenge based on failure to identify each local beating failed. The local incidents were relied upon to establish the appellant’s knowledge and contribution to the Basij’s general acts, and his evidence was sufficient to establish complicity. The second ground, concerning reasons, did not require determination after the concession that success on the first ground was decisive.

• Court of Appeal (Civil Division) — [2013] EWCA Civ 835: appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber) — conclusion of 29 July 2011: upheld the First-tier Tribunal’s decision.
• First-tier Tribunal — determination of 16 August 2010: allowed the appeal under Article 3 of the ECHR but upheld exclusion from refugee status.
• Secretary of State — decision of 22 June 2010: decision giving rise to the appeal.