AB v The Secretary of State for the Home Department

The issue in this case is whether the appellant, a doctor and a citizen of Iraq, is entitled to be recognised as a refugee for the purposes of the 1951 Convention. It is common ground that the appellant would be so entitled but for the operation of A rticle 1F(a), which provides as follows:-

h e has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes …”

It is common ground that , between 1992 and 1994, the appellant worked at the headquarters of Saddam Hussein’s military intelligence agency, Al-Istikhbarat, in Iraq. The appellant was performing his compulsory military service there, as a doctor. He worked at a clinic in the headquarters, treating both military intelligence officers and their prisoners. On occasion, the appellant was also taken to visit camps, where he treated prisoners. The appellant did not seek to leave the Al-Istikhbarat HQ during the term of his military service.

The appellant left Iraq in December 1995, travelling to Libya, where he worked as a doctor for some four years. He arrived in the United Kingdom in January 2000, having been given entry clearance as a visitor. His leave was subsequently extended. In February 2007, the appellant claimed asylum.

In January 2011, the respondent’s War Crimes Unit informed the appellant that he had been excluded from the Convention by reason of article 1F(a).

In March 2013, proceedings were initiated before a panel of the Medical Practitioner Tribunal (“MPT”). The MPT found that the appellant’s fitness to practise as a doctor was impaired by reason of having been an accessory to torture in Iraq. The appellant was suspended from such practi c e for one year.

In March 2014, the MPT found that the appellant’s fitness to practise was no longer impaired and his practicing certificate was reinstated. In August of that year, the appellant again applied for leave to remain on the basis of asylum. That application was refused by the respondent in April 2014, with the respondent again concluding that the appellant was excluded from the Refugee Convention by reason of A rticle 1F(a). The specific basis given for the respondent ’s decision was that th ere were “serious reasons for considering that you have committed crimes against humanity”.

The respondent, however, granted the appellant limited leave to remain, which led to the appellant being able to appeal against the April 2014 refusal under section 83 of the Nationality, Immigration and Asylum Act 2002, as it then stood.

The appeal proceedings have been protracted. This is the third occasion on which the appellant’s case has been considered by the Upper Tribunal.

In April 2015, the First-tier Tribunal found that the appellant was complicit in a crime against humanity (namely, the torturing of prisoners by Al-Istikhbarat ) , but that the appellant had a defence of duress. The First-tier Tribunal, accordingly, allowed the appellant’s appeal.

The respondent appealed to the Upper Tribunal against that decision and in April 2016, the Upper Tribunal allowed the respondent’s appeal and remitted the matter to the First-tier Tribunal.

A further hearing took place before a differently constituted First-tier Tribunal (“the 2017 First-tier Tribunal”) in February 2017. That Tribunal found there were serious reasons for considering that the appellant had committed crimes against humanity , in that, although the appellant had not tortured anyone, he had provided medical aid to the perpetrators of torture and had treated prisoners in circumstan ces where, if he not done so, the torture of those prisoners might have ceased. Once again, however, the First-tier Tribunal found that the appellant had a defence of duress and so allowed his appeal.

The respondent appealed to the Upper Tribunal against that decision. Meanwhile, the appellant brought a cross-appeal. In December 2017, the Upper Tribunal allowed the respondent’s appeal because the defence of duress was not available to the appellant. The Upper Tribunal also found that the appellant’s cross-appeal failed.

The appellant appealed to the Court of Appeal. He did so on four grounds. The judgment of the Court was given by Hamblen LJ (as he then was): MAB (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 1253.

The Court dismissed the appellant’s challenge on grounds 1 to 3. The appellant was, however, successful on ground 4, which Hamblen LJ articulated as follows:-

At paragraph 53 of his judgment, Hamblen LJ noted the evidence that was before the First-tier Tribunal. This comprised the appellant’s screening interview of 2 February 2007; a statement of 22 February 2007; a full asylum interview of 23 March 2007; a further interview of 31 March 2010; a statement of 20 July 2013; and a statement of 15 January 2017 prepared for the appeal hearing. The appellant gave oral evidence at that hearing.

At paragraph 54, Hamblen LJ recorded the self-direction of the 2017 First-tier Tribunal:-

Beginning at paragraph 56, Hamblen LJ described the main findings made by the 2017 F irst-tier Tribunal . The panel had serious reasons for considering that, as part of his duties, the appellant encountered prisoners whom he suspected had been tortured. There were serious reasons for considering the appellant was aware that some of the prisoners he treated had suffered torture. He was a medical professional and would have the specialist knowledge needed to make such an assessment. The appellant had admitted he knew it was likely that some of the prisoners he treated would suffer further torture. The appellant consistently claimed he never tortured anyone and the respondent had produced no evidence to the contrary. There were serious reasons for considering the appellant saw the bodies of prisoners who had been hanged.

At paragraph 57, Hamblen LJ recorded the 2017 First-tier Tribunal’s findings on the issue of complicity. The Tribunal found that the appellant worked for Al-Istikhbarat and knew that it committed torture. The appellant suspected some of the prisoners he treated would face further torture.

The 2017 First-tier Tribunal found that there were, as a result, serious reasons for considering the appellant was involved in torture. He assisted those who committed such torture, by providing medical aid to them. He also provided medical aid to victims in the knowledge that in the ordinary course of events some of them would suffer further torture. This led the 2017 First-tier Tribunal to find that the appellant intended to treat the prisoners irrespective of what happened to them and what might happen to them.

Paragraph 44 of the 2017 First-tier Tribunal’s decision reads as follows:-

In the light of its conclusions, the 2017 First-tier Tribunal found that the appellant “will have committed a crime against humanity unless he can raise a ground for excluding criminal responsibility, such as duress” (paragraph 46). As we have seen, the Tribunal held that the appellant had made good the defence of duress ; but, before the Court of Appeal, that issue fell away. Instead, the sole issue, under ground 4, was whether the findings of fact of the 2017 First-tier Tribunal justified its conclusion that the appellant had made a significant contribution to the crime of torture (paragraph 58).

Beginning at paragraph 59, Hamblen LJ addressed the submission of Mr Blax land QC, on behalf of the appellant, that the issue of whether the appellant had made a significant contribution to the crime of torture had to be considered against the background of the appellant’s duty of care as a medical professional. As a doctor involved in the treatment of prisoners, the appellant was bound by the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , UN General Assembly Resolution 37/194 (18 December 1982).

The P reamble to these Principles includes the following:-

Principle 1 reads as follows:-

The underlining in Principle 1 reflects the emphasis placed on those closing words by Mr Dunlop QC in his written and oral submissions to us (of which more later) .

Principle 2 reads as follows:-

In MH (Syria) v Secretary of State for the Home Department [2009] EWCA Civ 226, the Court of Appeal was concerned with A rticle 1F(c) of the Refugee Convention, which mandates exclusion from refugee status of a person who “has been guilty of act s contrary to the purposes and principles of the United Nations”. MH was a Kurdish nurse in Syria who joined the PKK. That organisation required her to become an assistant nurse in a hospital in a PKK camp. Richards LJ, with whom the other members of the Court agreed, said that:-

Richards LJ concluded that MH’s case fell well short of engaging A rticle 1F(c), having regard to her young age when she joined the PKK; the fact that the PKK was not at the “extreme” end of the continuum of terrorist organisations; and what MH did for them was “relatively minor in nature” albeit that she gave first aid assistance to injured PKK combatants.

At paragraph 39 of his judgment, Richards LJ stated that:-

In the present case, Hamblen LJ noted the submissions of Mr Blaxland QC that the humanitarian nature of the work the appellant was doing, and the context in which he was doing it, weighed against rather in favour of a finding of complicity in the Iraqi regime’s crimes of torture. He also recorded the acceptance of Mr Dunlop QC, for the respondent, that humanitarian law considerations provide the relevant context ; and that when addressing the issue of significant contribution, regard should be had to medical ethics and what th ese require.

At paragraph 66, Hamblen LJ stated that, ultimately, “the outcome of this appeal depends on the more granular question of whether the FTT’s findings are sufficient to support their conclusion of complicity”. The following paragraphs of the judgment need to be set out in full:-

Our first task is to determine the scope of the exercise that the Court of Appeal envisaged the Upper Tribunal undertaking. Although Hamblen LJ’s judgment does not say so, the appellant’s appeal was, in fact, allowed only to the extent that it was “remitted to the Upper Tribunal to re-make the First-tier Tribunal’s decision” (paragraph 2 of the order of 17 July 2019). For that purpose, the Court of Appeal considered “that the documentary evidence should be the same as that put before the First-tier Tribunal” (paragraph 3).

Upon the handing down by the Court of the embargoed draft judgment, a dispute arose between the parties as to what the order should contain. The appellant submitted that the appellant’s appeal should, in effect, be allowed outright, rather than by remitting it. According to the note submitted to the Court on 11 July 2019 by Mr Blaxland QC and Mr Toal , this was “because the Court of Appeal’s decision is to the effect that the evidence before the tribunal is incapable of establishing that the exclusion clause applies”. The note said that it would be “appropriate to remit the case … only if there were evidence before the t ribunal on the basis on which it might find facts warranting” the conclusion that there were serious reasons for considering the appellant to be complicit in crimes against humanity. According to the appellant’s counsel, there “is no such evidence”.

By contrast, Mr Dunlop QC pointed out that the Court did not hold that the evidence before the 2 0 17 First-tier Tribunal was incapable of establishing that the exclusion clause applied. On the contrary, it allowed the appeal on the basis that the Tribunal “did not address the facts in sufficient detail for it to be known what their underlying reasoning was” and did not carry out a sufficiently “detailed and individualised examination of the facts” (paragraphs 72 and 75 of the judgment). According to Mr Dunlop QC, the Court accepted at paragraph 72 that there was a line of reasoning which might have supported the conclusion that the appellant contributed significantly to the use of torture, but it was not satisfied that this was , in fact, the line of reasoning of the Tribunal. Thus, the implication of the judgment was that the appeal should be remitted for another tribunal to carry out the necessary fact - finding in the necessary detail, with more explicit reasoning.

We agree with Mr Dunlop that the subsequent order, remitting the matter to the Upper Tribunal, means that the Court of Appeal agreed with Mr Dunlop QC’s submissions, as recorded in his note. We are expressly required to consider the documentary evidence in order to determine whether there are serious reasons for concluding that the appellant was complicit in crimes against humanity, consisting in the torture of prisoners by the Iraqi regime.

In our view, the Court of Appeal intended to require the Upper Tribunal, on remittal, to analyse, and reach its own conclusions on, the documentary evidence bearing upon that overall question. Mr Blaxland QC, however, submitted that the fact- finding exercise for the Upper Tribunal was, in fact, more circumscribed, being limited to the finding articulated by the 2017 First-tier Tribunal at paragraph 44 of its decision; that is to say, whether, if the appellant had not treated the prisoners , their torture may have ceased. We are not, he says, entitled to make our own finding of fact on the Tribunal’s conclusion, at paragraph 45, that the respondent had failed to show there are serious reasons for considering the appellant would have been able to consult with prisoner-patients.

In Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195, the Court of Appeal was faced with the submission that, once it had embarked upon the task under section 12 (2) (b)(ii) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal had, in effect, to start again and should, therefore, make its own findings on all matters that had been before the First-tier Tribunal, whether or not those matters had been infected by legal error. Giving the judgment of the Court, Moore-Bick LJ regarded that submission as going too far:-

In TA (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 260, the Court of Appeal articulated the circumstances in which the Upper Tribunal, when re-making a decision pursuant to section 12, should do so by reference to findings of fact made by the First-tier Tribunal, notwithstanding that the latter’s decision was being disturbed:-

Also of relevance is the judgment of the Inner House of the Court of Session (Lord Glennie) in MS and YZ v Secretary of State for the Home Department [2017] CSIH 41:-

In HMRC v Pendragon p lc [2015] UKSC 37; [2015] 1 WLR 2838, Lord Carnwath said this:-

What the case law demonstrates is that , whilst it is relatively easy to articulate the principle that the findings of fact made by the First-tier Tribunal should be preserved, so far as those findings have not been “undermined” or “infected” by any “error or errors of law”, there is no hard-edged answer to what that means in practice, in any particular case. At one end of the spectrum lies the protection and human rights appeal, where a fact-finding failure by the First-tier Tribunal in respect of risk of serious harm on return to an individual’s country of nationality may have nothing to do with the Tribunal’s fact-finding in respect of the individual’s Article 8 ECHR private and family life in the United Kingdom (or vice versa). By contrast, a legal error in the task of assessing an individual’s overall credibility is, in general, likely to infect the conclusions as to credibility reached by the First-tier Tribunal.

The judgment of Lord Carnwath in Pendragon emphasises both the difficulty, in certain circumstances, of drawing a bright line around what a finding of fact actually is ; and the position of the Upper Tribunal, as an expert body, in determining the scope of its re-making functions.

In the light of these observations, the judgment of Hamblen LJ appears to us to recognise the indivisibility of the 2017 First-tier Tribunal’s findings of fact. At paragraph 66, Hamblen LJ specifically acknowledged that the outcome of the appeal depended on whether the Tribunal’s “findings are sufficient to support their conclusion of complicity”. By the same token, paragraph 75 describes the 2017 First-tier Tribunal as not carrying out a sufficient “detailed and individualised examination of the facts”, such as “to support the conclusion they reached”.

We also agree with Mr Dunlop QC that the 2017 First-tier Tribunal allowed itself to be led astray by its repeated comparisons between , on the one hand, the task facing it in deciding if an exclusion clause applies and , on the other hand, what the Tribunal’s task would be, if it were assessing the credibility of the appellant w h ere the burden of proof is on him to show he is at real risk of serious harm, if returned to Iraq .

Accordingly, we shall examine the documentary evidence in order to reach our own conclusion on whether the respondent has shown, by reference to a detailed and individualised examination of the facts, that there is clear and credible evidence of the relevant offending conduct; here, complicity in the torture of those in detention by the military intelligence agency known as Al-Istikhbarat .

The respondent’s case, as advanced before us, is as follows. The evidence is sufficient to establish at least a prima facie case that there are serious reasons for considering that the appellant significantly contributed to Al-Istikhbarat’s commission of crimes against humanity. Either the appellant was telling the truth in the first part of his second SEF interview, when he claimed not to have had any dialogue with prisoners and to treat them in silence or, at least, without any discussion of the circumstances that led to their injuries; or he was lying about that because he wished to conceal the fact that some prisoners had, in fact, told him enough about their circumstances for him to know that he was being asked to treat them , so as to facilitate their further torture.

On the first alternative, Mr Dunlop QC submits that the appellant failed to take an adequate medical history from the prisoners he treated. That was a breach of Principle 1 of the UN Principles of Medical Ethics, to which we have earl ier referred and, in particular, of the duty (marked by underlining in the above passage ) , to provide treatment of the same quality and standard as is afforded to those who are not imprisoned or detained. By failing to ta k e an adequate history of prisoners’ injuries, the appellant provided those prisoners with treatment of a lower quality and standard, compared with what he did for non-prisoners. Taking a patient’s history is a prerequisite of providing adequate care and there is, according to the respondent, no reason to doubt that the appellant would have asked such questions of his non-prisoner patients.

Furthermore, if the appellant failed to have any dialogue with prisoners, such as about what caused their injuries and whether they actually wanted treatment from him, then he knowingly made it more difficult for him to identify those prisoners , in whose cases any treatment he did provide would facilitate their further torture.

On the first alternative, the appellant would have been aware that, in the ordinary course of events, treating every prisoner that he was taken to, without making any attempt to find out how they came by their injuries or why the authorities wanted to treat them, would, in the ordinary course of events, lead to at least some of the prisoners being tortured further.

If, however, the view is reached that the appellant has lied about conversations that he did, in fact, have with prisoners, then, Mr Dunlop QC submits, the most likely reason for his lying was to conceal the fact that some prisoners had in fact told him they had been tortured and w ould be tortured again if he treated them. On this alternative, the appellant significantly contributed to the commission of torture by facilitating further torture of the relevant prisoners.

On either alternative, there must, according to the respondent, be serious reasons for considering that the appellant was aware that “in the ordinary course of events” torture would be the consequence of his actions. In either event, there were no orders upon which the appellant could rely to excuse his commission of war crimes.

If the Upper Tribunal were to conclude that this evidence did not, of itself, constitute the requisite serious grounds to justify the application of the exclusion in A rticle 1F(a), the respondent’s case is that it would, at least, amount to a prima facie case for such a finding. In that eventuality, the respondent submits that the fact the appellant has chosen not to give oral evidence to the Upper Tribunal means that we should draw adverse inferences from the appellant’s decision. The effect of those adverse inferences would, Mr Dunlop QC submits, be such as to require the Upper Tribunal to make a finding in the respondent’s favour.

The leading authority in the drawing of adverse inferences in the civil context is Wisniewski v Central Manchester Health Authority [1998] LI Rep Med 223; [1998] PIQR P324. Having considered the authorities on the question, Brooke LJ set out the following principles in the context of the present case:-

If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified. ”

Although Brooke LJ’s Principle (3) does not refer to the need fo r there to be a prima facie case, that was the expression used by the Court in McQueen v Great Western Railway Company (1875) L.R. 10 Q.B. 569 , one of the authorities considered by him in arriving at his five principles . Similarly, in O’Donnell v Reichard [1975] V.R. 916, another such authority, Gillard J, conducting a review of earlier English and Australian cases, spoke of “any party upon whom the burden of proof on any issue is imposed must always adduce a prima facie case on such issue to go to the jury”. Furthermore, in Wisniewski itself, Brooke LJ found that the plaintiff “had established a prima facie , if weak, case”.

Applying Wisniewski , the Court of Appeal in Jaffray v Society of Lloyds [2002] EWCA Civ 1101 said :-

In Magdeev v Tsvetkov [2020] EWHC 887 (Comm) , Cockerill J dealt with the matter as follows:-

There are several points to make about the Wisniewski principles. The first is the obvious but nonetheless important fact that they are not to be confused with the situation where a party who bears the legal burden of proving something adduces sufficient evidence , so as to place an evidential burden on the other party. In such a situation, the other party has to adduce some evidence; otherwise, he will lose.

The second point is that the question of what amounts to a prima facie case sufficient to bring the principles into play depends upon the nature of the case that the party in question has to meet. The present proceedings are not analogous to a n “ordinary” civil claim, where a matter needs to be established on the balance of probabilities. We are concerned with an evaluative assessment of whether there are “serious reasons for considering that” the appellant is complicit in a crime against humanity, falling within A rticle 1F(a) of the Refugee Convention . As the Supreme Court held in Al- Sirri v Secretary of State for the Home Department [2012] UKSC 54, this “requires an individualised consideration of the facts of the case, which will include an assessment of the person’s involvement in the act concerned, his mental state and possible grounds for rejecting individual responsibility”. Article 1F requires “clear and credible evidence of the offending conduct and the overall evaluative judgement involved the application of a standard higher than suspicion or belief” ( Al-Sirri [2016] UKUT 00448 (IAC). Whether a prima facie case is established in Article 1F proceedings needs to be considered with these statements in mind.

Third , even where a prima facie case exists, it does not automatically follow that the failure of a person to give evidence will result in material weight being given to that failure, in favour of the other party : see Brooke LJ’s P rinciple (4) at paragraph 65 above. As Hickinbottom LJ held more recently in R (Kuzmin) v GMC [2019] EWHC 2129 (Admin), there may be a reasonable explanation for the fact that the individual has not given evidence; and there may be other circumstances which would make it unfair to draw such an inference. Although Cockerill J in Magdeev expressed the court’s role in terms of its discretion, it is perhaps more a matter of the court having to apply the “rule” unless it is satisfied there is a reason not to do so.

We can now return to the appellant’s case. We find that the respondent is wrong to invite us to adopt a binary view of the appellant’s evidence as to whether he did or did not have any dialogue with the prisoners that he was treating. In the light of the circumstances under which the appellant was required to operate, which are well documented, we find the appellant has not , in fact, given two contrasting scenarios, in one of which he was free to ask the clinical questions that , in ordinary circumstances, would be required of a doctor; and in the other of which he was completely unable to have any communication with the prisoners. On the contrary, we find the evidence points overwhelmingly to the appellant being compelled to operate in an extremely constrained environment, in which he was allowed by the guards to ask basic diagnostic questions but not anything that would come close to enabling him to ascertain whether the person being treated wanted to receive treatment and/or whether the treatment was being provided by those in charge in order to facilitate further torture.

In this regard, we agree with the submissions made on behalf of the appellant that the respondent has not put forward any evidence to suggest the Iraqi regime considered someone had to have some minimum level of physical health in order for them to be tortured; or that Saddam Hussein’s torturers required or preferred their victims to receive medical treatment before continuing to torture them. It is a commonplace of repressive regimes that the y tend to act irrationally. The respondent’s case presupposes an approach by those torturing the prisoners that cannot, in all the circumstances, be categorised as anything more than speculation. There is, furthermore, no sound reason to assume that, even if such considerations were the motivation for the appellant being allowed to treat some of th e prisoners , he could or should have acted differently than he did , by treating them .

Having considered the evidence on this matter for ourselves, we have, therefore, independently reached the point articulated by Hamblen LJ at paragraph 73 of his judgment; namely , that the only way to avoid complicity in torture in such circumstances would have been for the appellant to have refused to treat any and all of the prisoners. That would have been a clear contravention of his professional duty of care.

There is , therefore, no prima facie case on this aspect of the respondent’s submissions. The re is also no prima facie case that the appellant breach ed Principle 1 by failing to treat the prisoners to the same standard as those who were not imprisoned or detained. On the evidence, he was simply not given the opportunity of taking an adequate medical history, or of enquiring whether the prisoners in reality wished to be treated.

Even if a prima facie case could be established, we do not find that, in all the circumstances, it would be appropriate to accord any material weight to the appellant’s failure to give evidence. He has already given a great deal of evidence, both written and oral. Having regard to that evidence and to the questions he has been asked, both on behalf of the respondent and at the MPT hearings, it is entirely unrealistic to think that he would be likely to say anything – whether in cross-examination or otherwise – that would throw any fresh light on a matter that has been the subject of forensic inquiry for well over a decade. This is particularly so, given that the respondent’s case depends upon aspects of the regime of Saddam Hussein, about which the appellant is unlikely to be able to give relevant evidence.

Thus, even if there were a prima facie case, the evidence before us falls short of the requirements described in paragraph 70 above for excluding the appellant from the protection of the Refugee Convention. The respondent has not show n serious grounds for considering that the provisions of the Refugee Convention should not apply to the appellant, by reason of his having committed a crime within the scope of A rticle 1F(a) of that Convention.

The appellant’s appeal is, accordingly, allowed.