CM v The Secretary of State for the Home Department [2012] UKUT 236 (IAC)

[2012] UKUT 00236(IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 17 April 2012
THE IMMIGRATION ACTS
Before
UPPER TRIBUNAL JUDGE STOREYUPPER TRIBUNAL JUDGE KING
Between
CMAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentMr D Phillips, Legal Representative, Global House Solicitors for appellantMr S Ouseley, Home Office Presenting Officer for respondentIn the context of deciding whether a person is excluded from Refugee Convention protection by virtue of having committed acts contrary to Article 1F(a), the effect of Article 33(1) of the Statute of the International Criminal Court (“the Rome Statute”) is that whilst obedience to superior orders can be a defence if each of its three requirements – as set out at (a), (b) and (c) - are met, by virtue of Article 33(2) the Article 33(1)(c) requirement can never be met in cases where the order was to commit genocide or a crime against humanity. Such cases are always “manifestly unlawful”. For a person alleged to be criminally responsible for crimes against humanity the defence of obedience to superior orders is unavailable.DETERMINATION AND REASONS
[1]The appellant is a national of Zimbabwe. He arrived in the UK on 16 October 2002 as a business visitor. He obtained further leave to remain as a student until 30 November 2006. His application for further student leave was refused and his appeal against that refusal was unsuccessful. On 20 April 2009 he claimed asylum in Croydon. On 16 October 2009 the respondent rejected that claim and decided to issue a certificate under s. 55 of the Immigration, Asylum and Nationality Act 2006 on the basis that there were serious reasons for considering that he had committed excludable crimes under Article 1F(a) of the 1951 Refugee Convention. The respondent accepted the appellant’s claim to have been in the Zimbabwe army between 1987 – 1990 as a full-time soldier and then from late 1989 as a reservist. The respondent accepted that as a reservist he was recruited in 2000 to be a member of the “people’s militia”. The respondent noted the evidence in his asylum interview that in 2001-2002 he had been involved in beatings which he had been ordered to carry out by his superiors. His involvement in two beatings in April 2002 was a particular focus. The respondent did not accept his claim that he had sought to dissociate himself from such activities as soon as he could nor his claim that he had carried out orders to beat people in order to save his own life. It was not accepted that in April 2002 he had been ordered to kill his uncle or that it was his refusal to carry out such an order that caused him to leave Zimbabwe. The respondent also rejected the appellant’s asylum-related grounds of appeal on the basis that due to his military service in support of the authorities he would be considered loyal. The respondent found there were no Article 8 ECHR circumstances of significance.[2]In a determination notified on 14 December 2009, Designated Immigration Judge (DIJ) A A Wilson dismissed his appeal against the respondent’s decision. The DIJ agreed with the respondent that the appellant fell to be excluded from Refugee Convention protection by operation of Article 1F(a) considerations and that he had not shown that he would be at risk on return to Zimbabwe for the purposes of Article 3 ECHR. The DIJ also found that his appeal failed on Article 8 ECHR grounds. We should mention that when the appellant had previously appealed unsuccessfully against a decision dated 16 February 2007 refusing him leave to remain as a student (on 20 May 2007 Immigration Judge Pitt having dismissed that appeal), no asylum or human rights grounds were raised in that appeal.[3]The grounds of appeal did not challenge the DIJ’s primary findings of fact, only his application to those findings of the correct legal criteria. On 26 May 2011 the Upper Tribunal decided that the DIJ had materially erred in law and that his decision was to be set aside. The errors identified were the DIJ’s failure to give any reasoning for his finding that the acts in which the appellant had been involved were committed as part of a widespread or systematic attack directed against the civilian population and the failure to make any specific findings as to why he rejected the appellant’s reasons for carrying out the alleged crimes (which potentially went to the issue of duress). It was also noted that there was also evidence before the DIJ of mitigating circumstances which may have been relevant for assessment under Article 8 of the 1950 Convention. The case was then set down for a resumed hearing with directions that the parties address certain issues, in particular the defences of duress and superior orders under international criminal law and their interconnection with refugee and humanitarian protection law in the context of Article 1F(a) of the Refugee Convention and Article 12 of the Qualification Directive. Also mentioned was the recent Court of Justice of the European Union (CJEU) judgment dealing with the exclusion clauses in Article 12 of the Qualification Directive in the Joined Cases C-57/09 and C-101/09, B and D. At the end of the decision the Upper Tribunal stated that:
“the hearing to decide what decision to remake in the appellant’s case will not be an occasion for any revisiting of the facts as found by the DIJ. To repeat, they were not challenged in the grounds seeking permission to appeal, and hence the only relevant issues for decision are whether the appellant falls foul of Article 1F(a) or succeeds under Article 3 ECHR on the basis of the DIJ’s findings of fact. The only proviso is that the appellant is entitled to submit a further written statement updating his personal particulars since the date of the hearing before DIJ Wilson; these may be relevant to the Article 8 issue. Both parties are also at liberty to adduce any further evidence they wish relating to background country conditions in Zimbabwe (the respondent has already intimated she will seek to rely on the recent Tribunal Country Guidance case of EM and others (Returnees) [2011] UKUT 96 (IAC)).”
[4]The DIJ’s principal findings of fact were that at the time of the acts on the basis of which the respondent considered he stood to be excluded, the appellant was in a position of authority in the Zimbabwean military, holding the rank of sergeant (paras 19, see also para 18); that in April 2002 he had been involved in the beating of two persons in his village who had been ordered to attend a night rally to denounce the opposition party; that he had also been involved in giving orders for other soldiers to participate in similar beatings (para 22); that he was not a deserter (para 22, 31, see also para 25) and that he had not ceased to support ZANU-PF (paras 31, 33). The DIJ also made findings relating to the appellant’s claim to have acted under duress but, since his reasoning on this matter was found to be vitiated by legal error, his findings on it clearly cannot stand. As regards Article 3 ECHR, the judge found that the appellant had not shown that he was a deserter or that he would not continue to be perceived as a ZANU PF supporter on return. As regards Article 8 ECHR, the judge did not consider that his relationship with his girlfriend amounted to family life as it was “only a girlfriend/boyfriend situation”. Considered as private life this relationship lacked strength as they were not living together and had not been involved with each other for very long.[5]At the hearing Mr Philips confirmed that although the DIJ had erred in his treatment of crimes against humanity, it was accepted by the appellant that during the dates in Zimbabwe relevant to the appellant the Zimbabwean authorities were involved in the commission of crimes against humanity so as to satisfy the “chapeau” requirements of Article 7 of the International Criminal Court Statute. In relation to the issue of criminal responsibility it was relevant to take into consideration(i) that the general situation in Zimbabwe at that time was one of lawlessness in which those in power gave orders and punished anyone who disobeyed; the appellant had no alternative but to obey orders; he had to be seen to be loyal;(ii) his participation was confined to one beating of two people; he played a very small part;(iii) that the appellant acted to save not only his own life but also that of his family (he was caring for his brother and sister-in-law who were AIDS victims) as his superiors would have punished them as well as him had he not carried out their orders;(iv) he was already on thin ice as they had suspected him of disloyalty because of his involvement in AIDS awareness campaigning (which those in power believed was used by anti-Mugabe supporters as a way of raising funds);(v) he had drawn the line at endangering loss of life and had also acted promptly to avoid being put on the spot to commit the serious crime which they had ordered him to carry out (killing his uncle); and(vi) he did not hold a prominent office or position of responsibility; what he was doing was not his normal job; he was simply a part-time reservist. The upshot of these considerations was that the appellant could not be said to have made a “significant contribution” as was required by case law and in any event, even if the Tribunal found he had, he had acted under duress. Accordingly, it was submitted, the respondent had failed to show that the appellant had committed excludable acts.[6]As regards Article 3 ECHR, Mr Phillips submitted that the appellant was a deserter who was and would be perceived on return as an enemy of the state. In addition he was an ex-teacher and someone who was involved in AIDS Awareness campaigning which had attracted the ire of the regime. In relation to Article 8 ECHR, it was true that the focus of his Article 8 claim before DIJ Wilson had been his relationship with Chipo Maposa and that this relationship had lasted 2 and half years, but he now relied on his relationship with Ms Gomo, a relationship which had in fact subsisted since 2004. The appellant and Miss Gomo had lived together at the same premises throughout most of the time since then and she had stood by him. He now intended to marry her and put the past behind him. There were recent statements from himself and Ms Gomo affirming this.[7]Mr Ouseley for the respondent maintained that the circumstances of the appellant’s involvement in beatings showed that he had committed excludable acts that were either torture or inhuman acts or both: they had involved beating with whips and sticks. He had also given orders for others to commit similar acts. He could not himself rely on a defence of superior orders. In relation to the attempt to rely on the defence of duress, there was no evidence that anyone had threatened to kill or harm the appellant. His claim that he had fled Zimbabwe as a deserter had been rejected by the DIJ and was belied in any event by the circumstances in which he came to the UK and failed to claim asylum for seven years. If he had truly been a deserter he would not have gone to the Zimbabwe Embassy in November 2006 to get his passport renewed. His claim that he had been previously suspected of disloyalty because of involvement with AIDS campaigning had not been accepted by the DIJ and was in any event against the weight of the evidence. As regards his claim that the authorities had taken an adverse interest in his family members since he fled, he had not raised that in previous hearings and there was no basis for accepting it as credible now. It was accepted that the appellant had been a teacher but that was a very long time ago and the Zimbabwean authorities had subsequently been happy to appoint him first as a full time soldier and then as a reservist. These considerations meant that he had failed to show he was not a knowing participant in excludable acts, that he could not rely on a defence of superior orders and that he had failed to show he acted under duress. He had also failed, in relation to Article 3 ECHR, to show that he would be perceived adversely by the Zimbabwean authorities on return. His attempt to rely on his ties to Miss Gomo should be roundly rejected as he had a wife in Zimbabwe and his claim as submitted today (based on recent witness statements and as confirmed by Mr Philips on instructions) that he had been in a continuing relationship with Ms Gomo since 2004 was belied by the evidence he had given previously about his relationship with a different girlfriend.

Legal framework

[8]In MT (Article 1F(a) – aiding and abetting) Zimbabwe [2012] UKUT 00015 (IAC) the Tribunal observed that in R (JS) (Sri Lanka)[2010] UKSC 15 Lord Brown said that when considering whether an applicant is disqualified from asylum by virtue of Article 1F(a) the starting point should be the Rome Statute of the International Criminal Court ("the ICC Statute"); see also SK (Zimbabwe)[2012] EWCA Civ 80.[9]Article 7(1) of the Statute defines crimes against humanity as follows:
“1. For the purpose of this Statute ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, on other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
[10]Article 25 sets out the circumstances in which an individual may be “criminally responsible” for a crime against humanity falling within Art 7. It provides as follows: “Article 25

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 contribution 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 ...”[11]Article 30 deals with the 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, that 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.”[12]Article 31 of the ICC Statute deals with grounds for excluding criminal responsibility and Article 33 deals with superior orders and prescription of law: “Article 31

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: ... (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 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.[2]The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it.[3]At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence.” … Article 33

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; and(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.”