MAB (Iraq) v The Secretary of State for the Home Department

Article 1F(a) exclusion under the Refugee Convention requires serious reasons supported by clear and credible or strong evidence, and a close, detailed and individualised examination of personal involvement, mental state and possible defences.

Complicity in torture requires a significant contribution and awareness that torture will follow in the ordinary course. Voluntariness is not a separate ingredient, although duress may provide a defence. Medical ethics and humanitarian duties form part of the context. A speculative inference that treatment may have enabled further torture cannot establish significant contribution. Requiring a doctor to withhold all treatment would be perverse and contrary to the duty of care.

The appellant, an Iraqi doctor, worked for military intelligence and treated officers and prisoners. He knew that some prisoners might be tortured again. The Secretary of State excluded him under article 1F(a), while granting discretionary leave outside the Rules.

The 2017 First-tier Tribunal found complicity but accepted duress. The Upper Tribunal allowed the Secretary of State’s appeal, held that duress failed, and dismissed the appellant’s cross-appeal. The central issue before the Court of Appeal was whether the factual findings established a significant contribution to torture and whether the Upper Tribunal had properly addressed the issues raised.

The Court of Appeal allowed the appeal. Lord Justice Hamblen gave the judgment, with Lord Justice David Richards and Mr Justice Snowden agreeing.

1. Article 1F of the Refugee Convention has serious consequences and must be interpreted restrictively and applied with caution. The decision-maker must conduct a close, detailed and individualised examination of the facts. The standard is higher than suspicion or belief, though it does not require proof beyond reasonable doubt. The approach in R (JS (Sri Lanka) v Secretary of State for the Home Department [2010] UKSC 15 and Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54 was applied.
2. Complicity under article 1F(a), read with the Rome Statute of the International Criminal Court, requires a significant contribution by aiding, abetting or otherwise assisting torture, together with awareness that the relevant consequence will follow in the ordinary course. Voluntariness is not an additional ingredient. The reference to voluntary contribution in JS was shorthand for acting without an applicable defence, such as duress.
3. Medical personnel’s special status and duties are relevant context but do not create an automatic exemption. Medical ethics, the humanitarian nature of treatment and the circumstances in which it is provided may weigh against complicity. MH (Syria) v Secretary of State for the Home Department [2009] EWCA Civ 226 illustrated the need for that contextual assessment.
4. The First-tier Tribunal’s conclusion that treatment may have caused torture to cease was not a finding of fact. It was speculative, lacked an identified factual basis, and failed to explain the reasoning supporting the inference. It also ignored that the appellant did not know which prisoners would be tortured again. Treating all medical treatment as complicity would perversely require a doctor to withhold treatment and breach the duty of care.
5. The First-tier Tribunal’s reliance on medical aid given to perpetrators was accepted to be too remote, on these facts, to establish a significant contribution. The Tribunal therefore had not conducted a sufficiently detailed and individualised examination to support exclusion. Grounds 1 to 3 failed, but ground 4 succeeded, and the appeal was allowed.

1. Court of Appeal (Civil Division) allowed the appeal, holding that the factual findings did not establish complicity under article 1F(a).
2. Upper Tribunal (Immigration and Asylum Chamber) allowed the Secretary of State’s appeal against the 2017 First-tier Tribunal decision, held that the defence of duress failed, and dismissed the cross-appeal.
3. First-tier Tribunal found serious reasons for considering that the appellant had committed crimes against humanity but accepted a defence of duress.
4. Upper Tribunal had earlier allowed the Secretary of State’s appeal against the 2015 First-tier Tribunal decision and remitted the case for rehearing. The 2015 First-tier Tribunal had allowed the appellant’s appeal on duress.