The Upper Tribunal inAB (Article 1F(a) – defence – duress : Iran) [2016] UKUT 376 (IAC) (22 July 2016) has clarified when an individual may be excluded from the Refugee Convention under Article 1F(a).
Article 1F(a) of the Refugee Convention states:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he 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;
The Home Office guidance on Article 1F states that the intention in applying it in asylum cases is “to deny the benefits of refugee protection to those who, through their own actions, do not deserve protection and to protect the public from those who represent a danger to national security or the community”.
In AB the Appellant, an Iranian national, was working in a senior role at a women’s prison where political prisoners were detained and tortured. Part of her job involved transferring prisoners from one part of the prison to another part so they could be interrogated and subjected to torture. She was employed for well over ten years. Sheargued that she had been required to sign a contract of employment for 25 years and that it was not possible to resign but acknowledged other individuals had been transferred from the prison. The Appellant said she thought if she asked to leave she may be viewed suspiciously and subjected to imprisonment, torture or rape. When a relative of hers was brought to the prison the Appellant arranged for her relative’s transfer to a hospital to facilitate her escape and the Appellant then fled Iran with her family.
The activities of the Appellant were found to fall within the definition of a crime against humanity as she had facilitated acts of torture. The Tribunal found this because she knew that when she was transferring a prisoner to a certain part of the prison, they were going to be tortured. The role of the Appellant in the crime against humanity was one of aiding and abetting which “encompasses any assistance, physical or psychological, that has a substantial effect on the commission of the crime”. The Tribunal found “it is not necessary to establish a common purpose”. The Tribunal opined that the defence of duress was available but the Appellant needed to show that:
- There must be a threat of imminent death or of continuing or imminent serious bodily harm;
- Such threat requires to be made by other persons or constituted by other circumstances beyond the control of the person claiming the defence;
- The threat must be directed against the person claiming the defence or some other person;
- The person claiming the defence must act necessarily and reasonably to avoid this threat;
- In so acting the person claiming the defence does not intend to cause a greater harm than the one sought to be avoided.
And that on the facts she had failed to do so. The threat was considered to be vague and speculative.