AB v The Secretary of State for the Home Department

A person may be excluded under Article 1F(a) of the Refugee Convention where there are serious reasons for considering that they knowingly made a substantial contribution to crimes against humanity by facilitating torture. Membership of an organisation with diverse functions does not, without more, establish personal and knowing participation.

Duress under Article 31(1)(d) of the Rome Statute of the International Criminal Court is capable of excluding criminal responsibility. An appellant bears an evidential burden to raise the defence. Once raised, the Secretary of State retains the persuasive burden of showing serious reasons for considering that duress did not apply. The defence requires a qualifying threat and conduct necessary and reasonable to avoid it. Speculative consequences and unexplored reasonable alternatives will not engage it.

The appellant, an Iranian national, had held a senior role in a women’s prison operated by the Islamic Revolutionary Guard Corps. She arranged or supervised the transfer of political prisoners to an Intelligence Service section where she knew they would be tortured.

The First-tier Tribunal excluded her from refugee and Qualification Directive protection, while allowing her human-rights appeal because she faced a real risk of ill-treatment in Iran. Following judicial review, the Upper Tribunal set aside the exclusion findings for remaking because the finding that she could leave the prison service without serious difficulty was inadequately reasoned.

The remaking appeal concerned whether her assistance in prisoner transfers engaged Article 1F(a) of the Refugee Convention, and whether she avoided criminal responsibility because she acted under duress.

1. The appeal was dismissed on Refugee Convention grounds. The Tribunal upheld the Secretary of State’s exclusion certificate. The appellant was excluded from protection under Article 1F(a) of the Refugee Convention and Article 12.2 of the Qualification Directive.

2. The systematic torture of political prisoners at the prison formed part of a widespread or systematic attack on a civilian population. It therefore constituted crimes against humanity within Article 7 of the Rome Statute of the International Criminal Court. The appellant knowingly and regularly transferred prisoners to the torture facility, and later supervised others who did so. Her assistance substantially facilitated the crimes and met the aiding-and-abetting standard in Article 25(3)(c).

3. Mere membership of the Revolutionary Guard Corps was insufficient to establish knowing participation because the organisation had diverse functions. However, the appellant’s knowledge after starting work, and her own direct assistance over many years, supplied clear, credible and strong evidence giving serious reasons for considering that she had participated in crimes against humanity.

4. Article 31(1)(d) provides a complete ground excluding criminal responsibility where duress is established. The Tribunal declined to treat Erdemovic as governing because it arose under a different statute before the ICC Statute, and concerned the killing of innocent civilians by a soldier. The appellant had to raise sufficient evidence of duress, but the overall persuasive burden remained on the Secretary of State to establish serious reasons for considering that she had not acted under duress.

5. The appellant did not meet the evidential burden. Her fear that a request to resign or transfer might create suspicion was vague and speculative, not a threat of imminent death or continuing or imminent serious bodily harm. She had not sought resignation, transfer, dismissal, or another reasonable means of avoiding participation. Her claim therefore failed under either formulation of the burden of proof.

• Upper Tribunal (Immigration and Asylum Chamber): On remaking, it upheld the exclusion certificate and dismissed the appeal on Refugee Convention grounds.

• Upper Tribunal: By determination dated 19 December 2015, it found an error of law in the First-tier Tribunal’s exclusion findings, set those findings aside, and preserved the remaining findings.

• First-tier Tribunal: It excluded the appellant from refugee and Qualification Directive protection, but allowed her human-rights appeal because of the risk of ill-treatment on return to Iran.