Amirifard, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 279 (Admin)

[2013] EWHC 279 (Admin)

Case No CO/111/2011

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 19/02/2013

Before

THE HONOURABLE MRS JUSTICE LANG DBE

Between

THE QUEENClaimant

on the application ofClaimant

DARIUSH AMIRIFARDClaimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

David Jones (instructed by Irving & Co.) for Claimant

Julie Anderson (instructed by the Treasury Solicitor) for Defendant

Hearing Hearing dates: 8 th February 2013

Judgment

[1]The Claimant challenges the decision of the Defendant, dated 4th March 2011, refusing his application for naturalisation.

The Facts

[2]The Claimant is a national of Iran and was born on 24th May 1978.

[3]On 10th January 2001, the Claimant fled from Iran to the UK and applied for asylum.

[4]On 5th February 2001, the Claimant’s application for asylum was refused by the Secretary of State, because he failed to return his Statement of Evidence form (SEF) in time.

[5]The Claimant appealed, and his appeal was allowed by the Immigration Appellate Authority on 6 May 2003.

[6]The Claimant presented written and oral evidence to the Adjudicator. The two written statements contained conflicting dates, which are set out below in inverted commas. In summary, his evidence was as follows: i) On either 7th February “1998” or “1999”, he was conscripted and started compulsory military service. He was assigned to the Iranian Jail organisation and, after initial training (lasting “three months” or “two years”), he was assigned to Shiraz prison. ii) He was responsible for guarding prisoners, who were kept naked in small dark cells and tortured. His duties involved taking prisoners to be executed by hanging or stoning. iii) He developed a depressive illness as a result of witnessing torture and executions in the prison (in particular, the stoning of a Dr Islami), and he was prescribed anti-depressants. iv) After a year, he could not bear it any longer, and went absent without leave. He was subsequently arrested after “one month” or “six months”. As punishment for deserting, he was sentenced to military detention for one month, and ordered to undertake an additional four months of conscription. He served half of his military detention and was given an amnesty. v) He was then transferred to Lajavardi prison in Shiraz where he witnessed prison guards torturing prisoners. He was experiencing nightmares and depression, and he applied for a transfer because of his mental state. The application was refused. vi) After 21 months of military service, or “near to the end of [his] service”, he was guarding a section of the prison which contained mainly university students detained without trial. They started a riot and he refused an order to shoot at them. He was threatened by the prison chief, and hit on the head and chest with a rifle. He was seriously injured and lost consciousness. vii) He was detained in a prison cell for 24 days, and subjected to torture. Fearing that he was going to be killed, he managed to escape from the car when he was being taken to court. He eventually made his way to the UK. viii) His family and fiancée were questioned by the authorities as to his whereabouts.

[7]A medical report, from Dr Steadman, dated 15 April 2003, recorded a scar on his forehead which was said to be the result of the blow from the rifle. Other scars were noted, but none said to have been caused in custody. Dr Steadman found impaired concentration probably due to anxiety and some psychological difficulties.

[8]The Adjudicator’s findings were:

“13. I found the appellant gave his evidence well and I was impressed by him and I find him credible. His escape from the prison vehicle is reasonably plausible. If he was able to take a gun of one of the guards he could easily have intimidated them by pointing it at his escort. I accept that when the appellant witnessed executions he sought medical help but was ignored when he requested a transfer. I accept he then went absent before being arrested and sentenced to one month in custody. I accept that he refused to obey orders to shoot rioting prisoners and was arrested, beaten and tortured pending trial. I accept he escaped his escort on the way to court…. 14. My evaluation is that the appellant if returned to Iran will be checked at the airport and it will be revealed that he was an escapee from custody and he will be detained and there is a real risk he will be tortured as before and hence persecuted and such treatment will be in breach of Article 3.”

[9]Thus, it is apparent that the Adjudicator rejected the Defendant’s submission, recorded at paragraph 10 of the determination, that the Appellant’s account of his escape was implausible and that, if the Appellant’s treatment in custody was correct, he would have found further scars.

[10]On 30th May 2003, the Claimant was granted asylum in the UK by the Defendant. He was subsequently granted Indefinite Leave to Remain in the UK.

[11]On 6th March 2008, the Claimant made an application for British nationality.

[12]On 22nd July 2009, the Defendant wrote and asked the Claimant to provide a statement answering a list of questions relating to his service as a prison guard in Iran. He did so on 11th August 2009, making it clear that the military service he was involved in was compulsory conscription and not a voluntary army contract.

[13]On 6th January 2010, the Defendant wrote to the Claimant refusing his application for naturalisation, on the ground that the Claimant was not a person of “good character” for the purposes of the British Nationality Act 1981. The letter stated:

“You have stated that you were a member of the Iranian Jail organisation between 1998 and 2001, during this time you worked in various prisons. Your role involved guarding prisoners, taking prisoners to be executed and removing bodies after execution. You spent a significant period of time working for the Iranian Jail Organisation and it is considered that you were a valued and committed supporter of the regime”

[14]The Claimant applied for judicial review and permission was granted. The Defendant agreed to re-consider the application for naturalisation and the claim for judicial review was withdrawn by consent on 2nd September 2010.

[15]On 8th November 2010, the Defendant wrote to the Claimant again refusing his application for naturalisation, stating:

“It is evident that Mr Amirifad was aware of the unlawful nature of the actions he was undertaking in providing security at the execution and mistreatment of political opponents of the regime, and undertook these duties voluntarily for a considerable period”

[16]The Claimant sent a pre-action protocol letter to the Defendant on 23rd November 2010.

[17]On 30th December 2010, the Claimant issued an application for judicial review of the decision of 8th November 2010.

[18]On 4th March 2011, the Defendant filed her Acknowledgment of Service defending her decision of 8th November 2010. At the same time, she served on the Claimant a fresh decision, dated 4th March 2011, in substitution for the decision dated 8th November 2010.

[19]The letter of 4th March 2011 confirmed that the Claimant’s application was refused and stated:

“the Secretary of State has serious doubts as to your client’s character due to his association with crimes against humanity. She has reached this decision having given due consideration to the role and duties of your client as a prison guard under the Iranian regime, his seniority within the prison hierarchy, the activities that he was involved in and associated with as a prison guard, the length of his tenure in his role as a prison guard, his attempt at disassociation from his role as a prison guard, and his mental health during his time as a prison guard, and in particular any duress he may have been under”

[20]The letter did not dispute the Claimant’s contention that he “did not actively participate in human rights abuses”, she concluded, however, that he was “involved in and associated with” the same having been “directly responsible for taking prisoners to their execution”, and being “witness” to the torture of political detainees. She concluded that, “whilst not at the top of the prison hierarchy, your client’s role, duties and seniority as a prison guard under the Iranian regime is sufficient to cast serious doubts as to his character.”

[21]The letter highlighted as material the duration of the Claimant’s service, which in her estimate exceeded 3 years and 4 months.

[22]The letter concluded the Claimant had made “no significant or extensive attempt to disassociate himself”. He made one attempt to disassociate himself by going absent without leave. The application to transfer could not be reasonably characterised as an attempt at disassociation. His eventual escape from captivity was motivated by a desire to protect himself, not to disassociate himself.

[23]The letter considered whether any of the defences in Article 31 of the Rome Statute were available to the Claimant, but concluded that they were not.

[24]Permission to apply for judicial review was refused on the papers by Collins J, but granted at an oral renewal hearing by HH Judge Bidder on 26th October 2011.

Legislation

[25]By section 6(1) British Nationality Act 1981, British citizenship may be acquired by naturalisation. Subsection (1) provides:

“If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.”

[26]Under paragraph 1(1) of Schedule 1 to the Act, an applicant must fulfil the mandatory requirement that “he is of good character”, together with other requirements. If he does so, the Secretary of State then has a discretion to grant naturalisation, “if he thinks fit”. There is no statutory definition of “good character”.

Nationality Instructions

[27]The Defendant has issued guidance on naturalisation applications. These are “in the main practical instructions to decision makers as to how they are to go about deciding whether to be satisfied that an Applicant for naturalisation has shown that he is of good character”; not “guidance as to policy in the sense of a statement as to the Secretary of State’s exercise of a discretion or power”: per Stanley Burnton LJ in R (SK (Sri Lanka)) v Secretary of State for the Home Department

[2012] EWCA Civ 16

at [36].

[28]Chapter 18 is headed “Naturalisation at Discretion: Section 6 British Nationality Act 1981”. Paragraph 18.1.3 states:

“Naturalisation is at the discretion of the Home Secretary. Under s. 6 of the British Nationality Act 1981, he may grant a certificate of naturalisation to a person of full age and capacity if he is satisfied that person meets the requirements set out in Schedule 1 to the Act. He can refuse to grant a certificate to a person who meets these requirements, but he cannot grant a certificate to a person who does not meet them.”

[29]Paragraph 18.1.7 states:

“In considering the exercise of discretion it is important to look at the case as a whole. We need to be sure, before we agree to waive a requirement, that applicants are of good character and have genuinely thrown in their lot with this country. The points which need to be considered are set out in the Annexes to this Chapter. The guidance on the good character requirement is in Annex D. Paragraph 5.1 states that if there is information to suggest that the applicant has been involved or associated with war crimes, crimes against humanity or genocide, the case should be referred to the Deprivation Screening Team and considered in line with War Crimes guidance in Volume 2 Section 1.W.”

[30]Volume 2 section 1 — W, Nationality Instructions, includes the following guidance: “Citizenship applications from people suspected of involvement in war crimes or crimes against humanity.2.1 One of the requirements for naturalisation as a British citizen or a British overseas territories citizen is that the Secretary of State be satisfied that the applicant is of ‘good character’. Applicants should be refused if their activities cast ‘serious doubts’ on their character. Serious doubts will be cast if applicants have been involved in or associated with war crimes, crimes against humanity or genocide. Serious doubts will also be cast if applicants have supported the commission of war crimes, crimes against humanity or genocide or have supported groups whose main purpose or mode of operation consisted of the committing of these crimes even if that support did not make any direct contribution to the groups' war crimes or crimes against humanity and genocide.

2.2 In ascertaining whether there are sufficient grounds for refusing an application for involvement in war crimes, crimes against humanity or genocide, consideration will be given to evidence directly linking the applicant with these crimes. It will also be given to factors such as the likelihood of his/her having been involved through membership of, or activities for groups responsible for committing war crimes, crimes against humanity or genocide. In determining the significance of these links, consideration will be given to such factors as the role of the applicant, the length of membership and his/her seniority within that group. … 6. Definitions of war crimes, crimes against humanity and genocide. … 6.2. Crimes against humanity 6.2.1. Acts committed at any time (not just during armed conflict) as part of a widespread or systematic attack, directed against any civilian population with knowledge of the attack. This would include offences such as murder, torture, rape and severe deprivation of liberty in violation of fundamental rules of international law and enforced disappearance of persons. … 7. The decision. 7.1. The information about an applicant will be considered against information from reputable sources on war crimes and crimes against humanity in the country concerned and, where relevant, on the groups in which the applicant has been involved. Where these sources provide sufficient evidence to support the view that the applicant’s activities or involvement constitute responsibility for, or close association with, war crimes or crimes against humanity, the application should be refused. 8. Information relevant to war crimes or crimes against humanity 8.1. This information will usually consist of one or more of the following;

• Admission or allegation of involvement in any of the crimes which constitute a war crime or crime against humanity.

• Admission or allegation of involvement in groups known to have committed war crimes or crimes against humanity. Consideration of the significance of this information will depend on the relevance and detail of the information provided by the applicant as well the extent to which this information links the applicant with war crimes or crimes against humanity. … 8.3. The information indicating war crimes or crimes against humanity may range from a brief claim to have been a member of a particular group or profession with no indication as to the length, dates, location or nature of these activities, to a detailed and time framed account including information about the applicant's activities, responsibilities and level of seniority within an organisation of interest. 8.4. Although an applicant will occasionally openly admit to having committed crimes which constitute war crimes or crimes against humanity, evidence which may indicate these crimes is much more likely to take the form of a claim of involvement in a particular group or profession which is known to have committed war crimes or crimes against humanity. In certain cases the applicant may deny, or may not have mentioned involvement in war crimes or crimes against humanity, however in these cases, the likelihood of an applicant having taken part in these crimes will often depend on factors such as the nature of the group itself, the degree to which the group has involved itself in war crimes or crimes against humanity and the nature of the involvement of the applicant. 8.5. Involvement includes activities where the applicant may not have had a direct involvement in war crimes or crimes against humanity but where his/her actions have contributed towards war crimes or crimes against humanity, such as, supplying help which the supplier knows is likely to contribute towards the committing of war crimes or crimes against humanity. This could include for instance providing transport to take prisoners to a site where they are going to be murdered. 8.6. In certain cases membership of a particular group may be sufficient to determine that an applicant has been supportive of, and in some cases complicit in, war crimes or crimes against humanity committed by that group. In such cases consideration will be given to the length of membership and the degree to which the group employed war crimes or crimes against humanity to achieve its ends. 8.7. Occasionally there will be evidence on file of an allegation against the applicant of involvement in war crimes or crimes against humanity, for instance an allegation letter to UKBA from a third party or a claim from the applicant that he/she will face court action from the authorities for war crimes/crimes against humanity if returned to his own country. 9. Mitigating circumstances 9.1. Where applicants have been involved in war crimes or crimes against humanity, but where there is evidence of mitigating circumstances, decisions will be made with consideration of applicable defences under international criminal law.” … 6.2. Crimes against humanity 6.2.1. Acts committed at any time (not just during armed conflict) as part of a widespread or systematic attack, directed against any civilian population with knowledge of the attack. This would include offences such as murder, torture, rape and severe deprivation of liberty in violation of fundamental rules of international law and enforced disappearance of persons. …

• Admission or allegation of involvement in any of the crimes which constitute a war crime or crime against humanity.

[31]The Defendant has issued “Guide AN ... A Guide for Applicants”, which accompanies the application form. It gives guidance on actions which may constitute war crimes, crimes against humanity or genocide, and goes on to say:

“This guidance is not exhaustive. Before you answer these questions you should consider the full definitions of war crimes, crimes against humanity and genocide which can be found in Schedule 8 of the International Criminal Court Act 2001 at the following web-site: http://www.hmso.gov.uk/acts/acts2001/20010017.htm.”

International Criminal Court Act 2001

[32]The International Criminal Court Act 2001 incorporates the definitions of genocide, crime against humanity and war crimes of the Statute of the International Criminal Court, made at Rome on 17th July 1998 (“the Rome Statute”).

[33]Article 7 defines “Crimes against humanity” to include the following actions relevant to this case: i) “Imprisonment … in violation of fundamental rules of international law”; ii) “Torture”; iii) “Other inhumane acts ... intentionally causing great suffering, or serious injury to body or to mental or physical health”.

[34]Article 25 sets out the circumstances in which a person shall be criminally responsible: Individual criminal responsibility 1. The court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:(a) commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b) orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

(d) in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contributions shall be intentional and shall either: (i) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or, (ii) be made in the knowledge of the intention of the group to commit the crime. 35. Article 30 provides, in relation to the required mental element: “Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) in relation to conduct, the person means to engage in the conduct; (b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.” (a) in relation to conduct, the person means to engage in the conduct; (b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

[36]Article 31 sets out potential defences. Those material to this claim are set out below:

“Grounds for excluding criminal responsibility 1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct: (a) The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law; (b) … (c) … (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.” (a) The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law; (b) … (c) … (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.”

[37]Article 33 sets out the defence of superior orders and prescription of law: “Superior orders and prescription of law 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:(a) The person was under a legal obligation to obey orders of the Government or the superior in question;

(b) The person did not know that the order was unlawful;

(c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.” (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; (c) The order was not manifestly unlawful.

Authorities

[38]In R v SSHD ex p Al Fayed (No 2) [2001] Imm AR 134, Nourse LJ described the requirement of “good character” in these terms:

“41. In R v. Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763, 773F–G, Lord Woolf MR referred in passing to the requirement of good character as being a rather nebulous one. By that he meant that good character is a concept that cannot be defined as a single standard to which all rational beings would subscribe. He did not mean that it was incapable of definition by a reasonable decision-maker in relation to the circumstances of a particular case. Nor is it an objection that a decision may be based on a higher standard of good character than other reasonable decision-makers might have adopted. Certainly, it is no part of the function of the courts to discourage ministers of the Crown from adopting a high standard in matters which have been assigned to their judgment by Parliament, provided only that it is one which can reasonably be adopted in the circumstances.”

[39]The Secretary of State is required to make an evaluation of the applicant’s character on the basis of the material before her, having proper regard to the guidance in the Nationality Instructions. The onus is on the Claimant to satisfy the Secretary of State that he is of good character. It is not for the Defendant to establish that the Claimant personally committed a crime for which he could be tried before the International Criminal Court, and the test is not the same as the test for exclusion from protection under Article 1F of the Refugee Convention. Although the Secretary of State must exercise her powers reasonably, essentially the test for disqualification is subjective. SK (Sri Lanka), per Stanley Burnton LJ at [31] - [37].

[40]The Secretary of State’s decision is only reviewable by the courts on traditional public law grounds. As Nourse LJ said in ex p. Al Fayed (No. 2):

“40. It is important to emphasise that the decision to be taken, though, like many such decisions, one which could seriously affect the rights of the applicant, was an administrative decision, reviewable by the courts only if the decision-maker in some way misdirected himself or, having correctly directed himself, gave a decision which no reasonable decision-maker could have given in the circumstances.”

Grounds for judicial review

[41]The Claimant submitted in his amended skeleton argument that the Defendant’s decision was unreasonable/irrational in the Wednesbury sense, for the following reasons: i) had the Defendant applied the facts of the Claimant’s case properly in the context of her own instructions, and applicable guidance from authority and international instruments she could not lawfully or rationally have reached the conclusion that ‘serious doubts' arose as to the Claimant's good character consequent to his association with the Iranian regime; ii) the Defendant erred in law and recorded irrational conclusions when assessing the nature and degree of the Claimant’s association with the Prison Service and with regard to the Defendant's assessment of the Claimant's attempts to disassociate himself from that service; iii) the Defendant erred in law when concluding that the defence of duress was not properly open to the Claimant; iv) the Defendant erred in assessing good character without attributing weight to the Claimant’s conduct in the UK over the course of the preceding 11 years.

[42]In the course of the hearing before me, it was not disputed by the Claimant that, in certain respects, the treatment of prisoners at the prisons where he was stationed, came within the definition of ‘crimes against humanity’, as set out in Article 7 of the Rome Statute and the Nationality Instructions, Volume 2, Section 1, paragraph 6. Prisoners awaiting execution were kept naked in small dark cells like dog kennels; they were tortured; they were stoned to death. In another prison, students who opposed the regime were detained without trial, tortured, and shot when they rioted in protest at the conditions of detention. His account was consistent with other material available to the Defendant about the treatment of detainees in Iran, which is summarised in the Defendant’s earlier letters to the Claimant.

[43]The Defendant, in accordance with the Nationality Instructions, Volume 2, Section 1, paragraph 8, assessed the extent of the Claimant’s involvement in crimes against humanity. The Defendant accurately identified that the Claimant’s duties included: i) guarding prisoners, with a gun, to compel compliance and prevent escape; ii) guarding prisoners who were being tortured; iii) taking prisoners to execution by stoning; iv) guarding prisoners during execution by stoning, and removing their bodies afterwards. The Defendant accepted the Claimant’s evidence that he did not, by his own hand, commit any acts of torture, nor did he personally execute or shoot prisoners. However, he facilitated and aided and abetted such acts, by acting as a guard. In my judgment, it was reasonable for the Defendant to conclude that the Claimant’s role was more than a “low level” role, such as a cleaner or driver.

[44]In the absence of a defence, the Claimant’s actions were arguably sufficient to establish criminal liability. Under Article 25(3)(c) of the Rome Statute, a person shall be criminally liable if he aids, abets or otherwise assists in the commission of a crime for the purpose of facilitating it.

[45]It was also sufficient to demonstrate evidence of association or involvement with crimes against humanity. Paragraph 8.5 of the Nationality Instructions, Volume 2, Section 1, provides that “involvement” includes activities where the applicant may not have had a direct involvement in crimes against humanity, but where his actions have helped or contributed to them, for example, providing transport to take prisoners to a site where they are going to be murdered.

[46]The Defendant was entitled to rely upon association or involvement in crimes against humanity which fell short of personal responsibility. In SK (Sri Lanka), the Court of Appeal upheld the Secretary of State’s decision not to grant naturalisation to an applicant who was associated with war crimes, even though he did not personally commit them, and would not have criminal responsibility under the Rome Statute. There the applicant was twice involved in battles, in the aftermath of which the LTTE committed war crimes by murdering prisoners of war. He was also an active member of the LTTE, an organisation which carried out acts of terrorism.

[47]In my judgment, Mr Jones was mistaken in treating this case as if it was about membership of a political organisation, such as the LTTE, where a key issue will always be whether the member was aware of, and supported, the organisation’s use of barbaric methods to achieve its goals. See for example, R (Chockalingam Thamby) v Secretary of State for the Home Department

[2011] EWHC 1763 (Admin)

, per Sales J at [42], [47].

[48]In contrast, this Claimant knew that the prison service was using barbaric methods – he witnessed crimes against humanity at first hand and he played a part in guarding the victims. The issue in this case was whether he could nonetheless establish his “good character” because he was a conscript, acting on orders, who claimed that he did not support the actions which he was involved in, and was only there under protest.

[49]In my judgment, even taking the Claimant’s case at its highest, he would not be able to establish a defence under the stringent terms of the Rome Statute: i) Under Article 31(1)(a), his mental illness was not sufficiently severe to prevent him from appreciating the nature of his conduct or to control it; ii) Under Article 31(1)(d), he could not rely upon duress because he was not subject to a threat of imminent death or serious bodily harm. Even when he absconded, and was placed on a charge, the penalty was detention and an extension of his military service; iii) Under Article 33(1), he could not meet the conditions for a defence of superior orders.

[50]The Defendant considered the factors relied upon by the Claimant as mitigating circumstances, in accordance with paragraph 9 of the Nationality Instructions, Volume 2, Section 1.

[51]I find it inconceivable that the Defendant failed to take into account the fact that the Claimant was a conscript, as this was at the heart of his case. She expressly stated that her decision was made upon the basis that she accepted the Claimant’s evidence as true, and his evidence and his nationality questionnaire asserted that he was a conscript. His evidence was upheld by the Adjudicator, and the Defendant accepted the Adjudicator’s findings.

[52]The Defendant reasonably took into account the significant length of time that the Claimant served in the prison, and thus the long duration of his involvement with crimes of humanity. The Claimant has complained that the Defendant’s chronology is incorrect, but it is based upon the Claimant’s own account, in particular the Claimant’s assertion that his training lasted 2 years, and that he was in the prison service for more than a year after that. The Claimant submitted that the Defendant’s conclusion that he served for more than 3 years and 4 months was mistaken, and the total period could not have been longer than 28 months, since national service was two years at the relevant time, and the Claimant’s service was extended by 4 months. However, the onus lay on the Claimant to submit the evidence necessary to establish his good character, and he failed to provide reliable evidence that his total period of service was 28 months.

[53]The Claimant submitted two statements, the first in 2001 when he applied for asylum and the second in 2003 at the Adjudicator’s hearing. They were contradictory: i) the date he was conscripted: either “1998” or “1999”; ii) the length of his training, either “three months” or “two years”; iii) the length of time he was absent without leave before arrest, either “one month” or “six months”; iv) the date at which the student riot occurred, either “after 21 months of military service” or “near to the end of [his] service”. These discrepancies have never been explained or clarified, despite voluminous correspondence during the course of the naturalisation process. Mr Jones’s explanation was that the Claimant’s mental state (he has been prescribed anti-depressants and sleeping tablets) meant that his memory had failed.

[54]It is impossible for me to draw any firm conclusions as to the truth about his length of service on this evidence. Whilst I accept that, as a matter of law, an unsustainable conclusion of fact can result in an irrational decision, in this case the Defendant had to do the best she could with the unsatisfactory evidence presented to her, and in my view, her assessment was reasonable in the circumstances. I also accept the Defendant’s submission that the Claimant has failed to establish a mistake of fact amounting to an error of law, applying the conditions in E v Secretary of State for the Home Department

[2004] EWCA Civ 49

; [2004] Q.B. 1044, namely: i) a mistake as to an existing fact; ii) the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable; iii) the appellant (or his advisers) must not been have been responsible for the mistake; iv) the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning. The Claimant has failed to establish conditions (i) to (iii).

[55]In my view, the Defendant was not irrational in concluding that the Claimant made only one attempt to disassociate himself from the regime of the prison service, on the occasion when he went absent without leave. On the Claimant’s own evidence, he requested a transfer from the prison service because of his depression and mental health problems, not in order to disassociate himself from the regime. When he escaped and fled to the UK, his motive was a fear for his own safety.

[56]The Defendant took into account the Claimant’s refusal to shoot the rioting students at the end of his military service: the Claimant refused to commit a direct act of violence against the prisoners, and he was given credit for this.

[57]However, when all the evidence was taken into account, in particular the active part which the Claimant played, over a period of years, in guarding prisoners subjected to crimes against humanity, the Defendant concluded that the Claimant had not sufficiently disassociated himself from the regime. This was not an irrational conclusion.

[58]Nor was the Defendant’s decision irrational in light of the fact that the Claimant had demonstrated his good conduct whilst in the UK for some 11 years. It is unlikely that the Defendant overlooked this factor. However, it was unlikely to have been sufficient to overcome the Defendant’s doubts about his character as a result of his activities in Iran.

[59]Mr Jones asked rhetorically, what more could the Claimant have done? In my view, this is not the right question. Nor is this court asking itself the question whether the Claimant was guilty of crimes against humanity for the purposes of exclusion under the Refugee Convention, as in Canada (Minister of Citizenship and Immigration) v Asghedom [2001] FCJ No. 1350, relied upon by the Claimant. The question in this case is whether, given the Claimant’s association or involvement in crimes against humanity, the Defendant acted irrationally in deciding that she was not satisfied that he was of good character. The test for irrationality is set high, namely, that no rational decision-maker could have reached this conclusion. This test is especially difficult to satisfy in an area where Parliament has conferred a broad discretion on the Secretary of State and the Court of Appeal has declared that “it is no part of the function of the courts to discourage ministers of the Crown from adopting a high standard in matters which have been assigned to their judgment by Parliament, provided only that it is one which can reasonably be adopted in the circumstances” (per Nourse LJ in ex p. AL Fayed (No. 2)).

[60]In my judgment, the Claimant has failed to establish that the Defendant’s decision was irrational and therefore his claim is dismissed.