AB v The Secretary of State for the Home Department

When re-making a decision after setting aside a First-tier Tribunal determination, the Upper Tribunal will generally preserve factual findings that have not been undermined or infected by legal error. The required scope depends on the particular error and the nature of the findings.

Exclusion under Article 1F(a) of the Refugee Convention requires a detailed and individualised examination, clear and credible evidence, and an evaluative standard above suspicion or belief. A doctor does not significantly contribute to torture merely by treating detainees where the asserted link between treatment and further torture is speculative and refusing all treatment would breach professional duties.

Adverse inferences from silence require a prima facie case. They are not a substitute for the party bearing the legal burden of proof.

The appellant, an Iraqi doctor, performed compulsory military service at the headquarters of Al-Istikhbarat between 1992 and 1994. He treated officers and, on occasion, detainees whom he believed had been tortured.

A First-tier Tribunal found that he was complicit in torture but had acted under duress. Following further proceedings, the Court of Appeal allowed his appeal on the issue whether the factual findings could establish a significant contribution to torture, and remitted the case to the Upper Tribunal: MAB (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 1253.

The Upper Tribunal had to determine the extent of its fact-finding task on remittal and whether the Secretary of State had established serious reasons for considering that Article 1F(a) excluded the appellant from refugee protection.

1. Appeal allowed. The Secretary of State had not shown serious reasons for considering that the appellant had committed a crime against humanity within Article 1F(a) of the Refugee Convention.

2. The Court of Appeal’s remittal required the Upper Tribunal to examine the documentary evidence and reach its own conclusion on complicity. The error in the 2017 First-tier Tribunal’s approach affected its fact-finding exercise as a whole. Although uninfected factual findings will generally be preserved on a re-making under the Tribunals, Courts and Enforcement Act 2007, the issue is fact-sensitive and admits no hard-edged rule.

3. The respondent’s proposed inference that treating detainees facilitated their further torture was speculative. There was no evidence that the Iraqi regime required detainees to reach a minimum physical condition before torture could continue, or that treatment was sought for that purpose. The evidence instead showed that the appellant worked in a severely constrained environment and could ask only basic diagnostic questions.

4. On those facts, holding the appellant complicit would mean that he could avoid responsibility only by refusing treatment to all detainees. That would conflict with his professional duty of care. Nor had the respondent established a prima facie case that he breached Principle 1 of the medical ethics principles by providing inferior treatment.

5. The Wisniewski principles could not assist the respondent. They require a prima facie case and do not shift the legal burden of proof. Even if such a case existed, the appellant’s extensive prior evidence and the nature of the alleged matters meant that no material weight should be placed on his decision not to give further oral evidence.

• Upper Tribunal (Immigration and Asylum Chamber): Appeal allowed. The appellant was not excluded from refugee protection under Article 1F(a).
• Court of Appeal: In MAB (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 1253, the appeal succeeded on the issue whether the First-tier Tribunal’s findings established complicity. The matter was remitted to the Upper Tribunal to re-make the decision.
• First-tier Tribunal: The 2017 tribunal found serious reasons for considering that the appellant was complicit in crimes against humanity, but allowed the appeal on duress. That decision was disturbed on appeal.