Tribunal decisions

The decision

Case No: JR-2023-MAN-000090
IN THE UPPER TRIBUNAL AT MANCHESTER
(IMMIGRATION AND ASYLUM CHAMBER)
Manchester Civil Justice Centre

JUDGMENT DATE: 22 AUGUST 2024
Before:

HHJ Stephen Davies sitting as an UPPER TRIBUNAL JUDGE

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Between:

THE KING
on the application of
DANIEL TESFAZGHI
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Vijay Jagadesham
(instructed by Fisher Stone Solicitors, Halifax), for the applicant

Matthew Howarth
(instructed by the Government Legal Department) for the respondent

Hearing date: 12 August 2024

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JUDGMENT

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HHJ Stephen Davies:

Introduction

1. In this case the Applicant (DT) seeks judicial review of the decision made on behalf of the Respondent [SSHD] dated 1 June 2023 to reject his further submissions as a fresh claim for the purposes of paragraph 353 of the Immigration Rules.

2. The key issues which arise are whether or not the SSHD was right to decide that DT’s argument that he was not excluded from the Refugee Convention, because he was entitled to rely upon the defences of duress and/or superior orders (under Arts. 31 and 33 respectively of the Rome Statute of the International Criminal Court), had no realistic prospects of success. These issues fall to be considered against the background that two of these issues were addressed and rejected by FTTJ Grant in an earlier determination made on 23 June 2017, so that the principles expounded in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702 (Devaseelan) apply.

3. I am grateful to Mr Jagadesham and to Mr Howarth for their written and oral submissions on behalf of their respective clients. Having considered those submissions I am satisfied that the former’s arguments are to be preferred and the SSHD was wrong to decide that these arguments did not have a realistic prospect of success.

4. Given the limited nature of this determination I do not propose to give unnecessarily detailed reasons for my decision.

Factual background

5. As already indicated, the principal battleground concerned the impact of the decision made by FTTJ Grant on 23 June 2017, in which she rejected DT’s asylum appeal on the basis that he was excluded from protection under the Refugee Convention because the defence of superior orders under Art. 33 was not available to him.

6. Before FTTJ Grant, DT relied principally upon his statement which he confirmed in evidence. There was no issue as to his credibility; the question was whether on the evidence which he presented he was excluded under Art. 1F of the Refugee Convention. This provides that the provisions of the Refugee 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;

b. He has committed a serious non-political crime outside the country of refuge prior to his admission to that country [here, the UK] as a refugee.

c. He has been guilty of acts contrary to the purposes and principles of the United Nations.”

7. As recorded by FTTJ Grant in paragraph 5 of her determination, DT has always claimed that “he has a well-founded fear of persecution in Eritrea having deserted his military service having exited Eritrea illegally”. As she also stated in paragraph 5: “The appellant's case is accepted by the respondent who does not dispute that he carried out military service nor does the respondent dispute that the appellant left Eritrea unlawfully”.

8. His evidence, as summarised by FTTJ Grant at paragraph 6, was that during his time as a soldier in the Eritrean military he claimed to have seen evidence of people being tortured or mistreated whilst in detention and, in addition to witnessing this, he took part in the mistreatment stating "yes if you are instructed by your commander you would as there wasn't any other option". She noted at paragraph 7 that the SSHD accepted his evidence that “he was involved in punishments twice only and that was making detainees sit down and stand up repeatedly in the hot sun and also to stand stiffly with no movement. They were punished for up to one to two hours in the hot sun some of them fainted and fell down and had to be taken to the medical centre”. She also noted that “the respondent accepts the appellant's evidence regarding his time in the Eritrean military which accords with the objective background material and it is accepted he was in the military and that he carried out acts of torture”.

9. She began her findings at paragraph 12, starting with a consideration of the meaning of Arts. 1F(a), (b) and (c). She referred to the decision of the UK Supreme Court in Al-Sirri (FC) v SSHD [2012] UKSC 54 which considered the scope of this Art.

10. In paragraph 16 the Court said that: “The article should be interpreted restrictively and applied with caution. There should be a high threshold ‘defined in terms of the gravity of the act in question, the manner in which the act is organised, its international impact and long-term objectives, and the implications for international peace and security’”.

11. In paragraph 38, in a passage cited by FTTJ Grant, the Court said that: “It is our view that the appropriately cautious and restrictive approach would be to adopt para 17 of the UNHCR Guidelines: ‘Article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international community’s coexistence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights would fall under this category’.”

12. She next referred to Article 33 of the Rome statue which, as she said, provides that:

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.

13. She rightly noted that all of these elements must be established in order for the defence to apply. Her findings and her conclusion were contained in paragraphs 20 – 23 which I set out in full:

“20. The appellant has admitted at interview and before the Tribunal that on two occasions he supervised the punishment of detainees who were required to stand in hot sun for one to two hours during which time some fainted and fell over. He was aware that this was a punishment but it is his case that he had no option but to follow orders. He always did what he was told.

21. Background material referred to at E3 of the respondent's bundle confirms that torture and mistreatment has included prolonged sun exposure in temperatures of up to 120 degrees Fahrenheit. Other methods of torture are set out at page E3 but the only one with which the appellant has confirmed he was involved is prolonged sun exposure.

22. To his credit the appellant has not sought to minimise his conduct nor to deny that he took part in activities which amount to a method of torture. Whist the appellant was under an obligation to follow orders I find the defence under Article 33 is not available to him because I find that he must have known such actions were unlawful involving a crime against humanity in this case torture by exposure to the sun which the appellant knew caused serious harm because he witnessed it happening.

23. Therefore the appellant is excluded from the provisions of the Refugee Convention and I dismiss his protection appeal on all grounds.”

14. It is clear that FTTJ Grant found that DT had committed activities amounting to torture which involved a crime against humanity. She did not specify whether she found that this fell within Art. 1F(a), (b) or (c). It appears that her reference to his actions involving a crime against humanity were directed to the Art. 33 defence.

15. She did not address the alternative defence of duress under Art. 31(1)(d), under which “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”.

16. It is common ground that this is because she was not asked to do so by either party. There is no positive evidence from DT as to why he did not do so, even though he was legally represented at the time by different solicitors. In all the circumstances it is reasonable to infer that there can have been no obvious tactical reasons, relating to his credibility, as to why he would not have raised the point had he been advised that it was properly open to him, as it plainly was.

17. FTTJ Grant did however allow DT’s appeal on human rights grounds based on his evidence, which she accepted, that he would be detained on return and subject to inhuman and degrading treatment in detention and, hence, he was allowed to remain in the UK. However, as DT says, the leave which he secured via this route is not as beneficial as if his asylum claim was accepted.

18. On 21 October 2021 DT, represented by his current solicitors, made fresh submissions. They contended that the treatment which DT admitted he had meted out to detainees did not meet the threshold for exclusion under Art. 1F because it was not sufficiently serious, in particular in the light of the observations made by the UK Supreme Court in Al-Sirri (FC) [2012] UKSC 54. They also submitted that he should have the benefit of the Art. 31 (duress) defence and/or the Art. 33 (superior orders) defence.

19. In support they provided a country expert report from Dr Allo, a senior law lecturer at Keele University who the SSHD accepted was a country expert, together with a further statement made by DT and two legal authorities. They submitted that Dr Allo’s report confirmed DT’s account, given from the outset, that he would have faced severe ill-treatment, detention or death if he had refused to follow the orders of his superior commander to punish detainees. They referred to the decision of the Upper Tribunal in AB (Article 1F(a) – defence – duress) Iran [2016] UKUT 00376 (IAC) which, they submitted, showed that on the facts of this case DT had done enough to engage the evidential burden of establishing the defence of duress.

20. They also contended that Dr Allo’s report provided evidence that DT did not know and could not have known that the orders he was given were unlawful and nor were they manifestly unlawful. They referred to DT’s evidence, given in his further witness statement, that he did not intend to cause any harm to the detainees when inflicting the punishment and none of them suffered any physical injury as a result of his actions. In comparison, they argued, if he had refused to follow the order from his superior to punish the detainees, the country expert evidence suggests that it is likely he would have been executed or seriously harmed. Thy submitted that the harm he sought to avoid was far greater than the harm caused.

21. None of these submissions found favour with the SSHD. In her decision dated 1 June 2023 she rejected the further submissions.

22. She concluded that FTTJ Grant was right to make the finding she did in relation to Art. 33 because DT’s evidence showed that he was aware of the effects of extreme exposure and that this amounted to torture.

23. In relation to the Art. 31 defence she relied on DT’s further witness statement on the basis that “by choosing your own punishment, you were acting under your own authority, and was not acting under duress or in response superior orders but rather of your own volition”. Further to this, in a section mistakenly headed Art. 33 but clearly referring to Art. 31, she acknowledged that duress had not been considered by FTTJ Grant, but submitted that Dr Allo’s conclusions, which she accepted, did not counter the findings made by FTTJ Grant – although she did not explain how these findings were relevant to the Art. 31 defence of duress. She also concluded, without giving further specific reasons, that the submissions did not meet the requirements of paragraph 353 of the Immigration Rules.

Devaseelan

24. As I have said, I was referred to the well-known guidance in Devaseelan, and I was also referred to the subsequent decisions of the Court of Appeal in Djebbar v SSHD [2004] EWCA Civ 804 and BK (Afghanistan) v SSHD [2019] EWCA Civ 1358 which confirmed and clarified the Devaseelan principles. It is unnecessary for me to rehearse these decisions in this judgment, since there can be no dispute as to their effect, only as to their application to the particular facts of this case.

Art. 31 – Duress

25. Mr Jagadesham submitted that there could be no objection based on the Devaseelan principles to a further FTT Judge considering the Art. 31 defence on its merits, on the basis that it had not been addressed by FTTJ Grant and in any event on the basis that the account given by DT in his initial witness statement was now buttressed by Dr Allo’s report. He submitted that the combined effect of this evidence showed clearly that the Art. 31 defence had at least a realistic prospect of success before a further FTTJ and, hence, should not have been the subject of a negative paragraph 353 determination.

26. He submitted that the SSHD’s refusal decision did not engage in any meaningful way with the Art. 31 defence. He submitted that nothing found by FTTJ Grant was in any significant way adverse to the success of the duress defence, which the SSHD had admitted had not been considered by FTTJ Grant. He submitted that the “own volition” argument advanced by the SSHD on the basis of DT’s second statement was open to the criticism that in fact all that he was saying was that he was instructed to punish the detainees and all that he could do was to mitigate the punishment by choosing the least harsh mode of punishment that he could get away with, and there was no basis whether in law or in fact to this invalidating a defence of duress.

27. So far as Mr Howarth’s submissions are concerned, he repeated the argument that FTTJ Grant had made determinations at paragraph 22 that were adverse to any Art. 31 defence. However, as Mr Jagadesham submitted, in fact what FTTJ Grant found in this paragraph was that DT was under an obligation to follow orders and that the Art. 33 defence failed because he must have known his actions amounted to torture as a crime against humanity. As Mr Jagadesham submitted, there is nothing in Art. 31 which prevents an applicant from arguing duress where he knows that his actions fall within the Rome Statute; the defence of duress is available precisely in such circumstances.

28. Mr Howarth also submitted that the SSHD was entitled to decide that Dr Allo’s evidence did not support the defence of duress. However in my judgment it is at the very least seriously arguable that it did. He stated in terms that “subordinates who refuse orders or question serious orders are subject to serious punishment”, with one order authorising the execution of soldiers who disobey superior orders (paragraph 33). He gave examples of such severe punishment as including detention, torture or even execution (paragraph 34). He confirmed that guards who disobey orders will be subject to such treatment (paragraph 36), referring to specific examples in the report of the UN Commission of Inquiry published in June 2015 which had happened in the same military camp as DT was in at the time (paragraph 37). His conclusions included the statement that “Eritrean nationals who completed compulsory national service are highly likely to know the consequences of disobedience as punishment is an integral part of obtaining obedience and securing the continuity of the political order”.

29. Although it has been contended by the SSHD that the evidence in Dr Allo’s report could not be said to be significantly different from the evidence previously considered, she has not made good that submission by specific reference to the background material which was before FTTJ Grant.

30. Although it has also been contended by the SSHD that Dr Allo did not give any indication of how likely punishment of the types described by him for not complying with superior orders would be, the clear tenor of the report is that serious punishment in such circumstances is widespread.

31. It is clear in my judgment that Dr Allo’s report provides significant support for DT’s case that there was no other alternative but to carry out the instructions he was given and that in so doing DT did not intend to cause greater harm to the detainees than he sought to avoid for himself. The “own volition” point raised by the SSHD seems to be a rather opportunistic attempt by her to criticise DT for seeking to minimise the suffering he inflicted on the detainees which is not immediately attractive and cannot on any view be said to be unanswerable.

32. Mr Howarth also submitted that DT’s remedy was to have appealed the decision not to find the Art. 31 defence made out and that the fresh submissions were simply a disguised attempt to appeal far too late. However, as Mr Jagadesham submitted, it is difficult to see how DT could have appealed a decision that FTTJ Grant did not find proved a defence which was not raised and, further, as Devaseelan and the cases following it make clear, it is not fatal to a further submissions case that it raises an argument which might have been raised either at first instance to the FTTJ or on appeal from that judge.

33. Finally, Mr Howarth also submitted that DT’s case and evidence did not surmount the initial evidential burden, but I am satisfied that it does satisfy the initial burden. Mr Howarth submitted that, given that the effect of a successful plea of duress would be to absolve criminal guilt for the most serious crimes under the ICC Statute, or, in this context, to prevent the otherwise mandatory exclusion provisions under the Refugee Convention from applying, the evidential threshold is a high one for the A to surmount; in other words, a bare assertion will not suffice. Whilst I accept that a bare assertion would not suffice, this is plainly not a case of a bare assertion by DT. It is apparent that any decision in relation to exclusion from protection, including any decision as to whether or not any of the available defences apply, is one which has serious consequences and, therefore, is one to which anxious scrutiny must be applied.

34. In the circumstances, I am satisfied that the SSHD’s decision to treat the Art. 31 defence as not meeting the paragraph 353 test was wrong and public law unreasonable.

35. I will address at the end of this judgment the “no substantial difference” point raised by Mr Howarth for the first time in his written submissions and amplified by him in oral submissions.

Art 33 – Superior orders

36. Mr Jagadesham had an immediately more challenging case on this ground because, as I have already said, the defence under Art. 33 was specifically raised before FTTJ Grant by DT but rejected by her. Further, despite being legally represented at the time, DT did not seek to pursue an appeal to the Upper Tribunal, notwithstanding that one of the points which he now seeks to raise was a point of law which could have been advanced on appeal. Mr Howarth also submitted that the country report of Dr Allo upon which he relies referred solely to the position which pertained at the time DT was still a military conscript in Eritrea and committed the acts the focus of the hearing before FTTJ Grant, so that it could not be said that he could not have put this evidence before her in 2017.

37. Accepting these points, Mr Jagadesham nonetheless submitted, correctly in my judgment, that on a proper application of the Devaseelan guidelines these do not necessarily prevent the case now being advanced from amounting to a fresh claim under paragraph 353. The essential question is whether or not it would be fair to allow DT to advance this claim notwithstanding its prior rejection by FTTJ Grant. It is therefore convenient to examine the case now sought to be advanced to see what it is and to what extent it does seek to relitigate matters raised and decided by FTTJ Grant.

38. In summary, Mr Jagadesham submitted that:

39. Each of the three requirements of Art. 33(1) were at least properly arguably satisfied.

40. As to (a), he submitted that FTTJ Grant expressly decided that this requirement was met, given that she found in paragraph 22 that he was “under an obligation to follow orders”.

41. As to (b), he submitted that Dr Allo’s report provides credible evidence to support DT’s contention that he did not know that the order was unlawful. This point, he submitted, is open to DT to advance, given that FTTJ Grant did not determine it, expressly or impliedly, in her determination.

42. As to (c), he submitted that FTTJ Grant’s finding was, with respect, both flawed and at least arguably wrong because she was not directed to the need to satisfy the “chapeau”1 requirement that, in order for DT’s conduct to be a crime against humanity, it must be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”, as confirmed by the Upper Tribunal in KM (exclusion; Article 1F(a); Article 1F(b)) Democratic Republic of Congo [2022] UKUT 00125 (IAC).

43. Submission (a) is plainly right, given the terms of paragraph 22 of FTTJ Grant’s decision, and no more need be said about it.

44. Submission (b) is supported by Dr Allo’s report at paragraph 39, where he again referred to the UN Commission of Inquiry report which said: “Guards, interrogators, trainers or officers do not seem to be aware of the absolute prohibition of torture or to receive human rights trainings for interrogation or for the handling of detainees and national service trainees. On the contrary, torture and ill-treatment seem to be condoned, encouraged and even instructed by their superiors”.

45. It is submitted for the SSHD that this evidence does not displace or contradict the finding of FTTJ Grant at paragraph 22 that DT must have known such actions were unlawful. However, that submission ignores the fact that the SSHD has not suggested or identified any evidence akin to that contained in Dr Allo’s report before FTTJ Grant, so that in my judgment it is obvious that this is significant new evidence which may well have caused FTTJ Grant to make a different finding on this particular point. Paragraph 22 of FTTJ Grant’s decision appears to be based on nothing more than an assertion that anyone who tortures someone else by exposing them to the sun must know that this was a crime against humanity. However, it is a statement of the obvious that evidence as to the pervasive culture in which the conduct is committed (here that of conscript guards in the Eritrean military at the time in question) must be relevant to the determination of that issue.

46. Whilst the SSHD is entitled to say that it was open to DT to have obtained and relied upon country evidence equivalent to that of Dr Allo before FTTJ Grant, as Devaseelan and subsequent authorities make clear, this is not a “knock-out” point. It is a factor of weight. It is however to be weighed in the particular context of the case in issue. Here, it is not being used by DT to seek to persuade the SSHD or the hypothetical second FTT Judge that his evidence ought to be found credible where before the first FTT Judge it was not. It is being used to provide support for his evidence that he, like other military conscripts in the same position in the same place and time, did not know that what he was being asked to do was unlawful.

47. So far as submission (c) is concerned, the headnote of the decision of the Upper Tribunal in KM (Congo) states as follows:

“(ii) Whether there are serious reasons for considering that a person has committed a crime against peace, a war crime, or a crime against humanity for the purpose of exclusion under Article 1F(a) of the Refugee Convention should be interpreted with reference to the autonomous meaning of those terms in international law.”

“(iii) In relation to acts committed on or after 01 July 2002, the Supreme Court has made clear that the Rome Statute of the International Criminal Court should be the starting point when considering whether a person is excluded with reference to Article 1F(a): see JS (Sri Lanka) v SSHD [2010] UKSC 15; [2011] AC 184. The chapeau of Article 7(1) of the Rome Statute sets out the contextual elements of crimes against humanity and should be read with Article 7(2)(a) and the Elements of Crime. It is an essential part of the definition. The crimes listed in Article 7(1)(a)-(k), although serious, do not constitute crimes against humanity if they are not ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’. An ‘attack’ meaning ‘a course of conduct involving the multiple commission of acts… pursuant to or in furtherance of a State or organizational policy.’ (The listed crimes include both torture and ‘other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’.)”

48. It follows, submits, Mr Jagadesham, that when asking whether the third requirement of Art. 33 of the Rome Statute is satisfied, namely that the order is not manifestly unlawful, where Art. 33(2) states that crimes against humanity are manifestly unlawful, it follows that this question is to be answered by reference to Art. 7.

49. FTTJ Grant found that requiring detainees to spend long periods of time exposed to very hot sunshine without protection or other mitigation is a form of torture which may also be said more generally to be a crime against humanity.

50. However, Mr Jagadesham submits that it is at the very least seriously arguable that if that question is asked with Art. 7 in mind then it cannot amount to a crime against humanity because it does not meet the chapeau requirement of being committed as part of a widespread or systematic attack directed against any civilian population.

51. In my judgment this is plainly at the very least arguably the case. It is plainly not a point which was argued before or determined by FTTJ Grant. In the same way as with the Art. 31 duress point, that does not necessarily mean that it should not be considered by another FTT Judge applying the Devaseelan guidelines. In all of the circumstances in my view DT has established his case under ground 2 in addition.

No substantial difference

52. In her detailed grounds of defence the SSHD raised at paragraph 87 (in relation to the superior orders defence) an argument that because Eritrea is not a party to the Rome Stature the defence under Art. 33 does not apply to conduct occurring within its territory. It was said that in such circumstances both the SSHD and FTTJ Grant have “arguably afforded [DT] considerable latitude in even considering the defence”. It concluded: “R specifically reserves the right to advance this point should the matter be reconsidered in any form”.

53. In his skeleton argument for this hearing Mr Howarth repeated this point in relation to the superior orders defence and then added, for the first time, that “on this basis [the SSHD] relies on section 31(2A) of the Senior Courts Act 1981i that the Tribunal must refuse to grant relief on an application for judicial review if it appears to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”.

54. In his oral submissions he suggested that this also applied to the duress defence.

55. Mr Jagadesham submitted that it was too late for the SSHD to be permitted to raise this point, given that until this very late stage it had never been suggested that this point would be relied upon in this way at this stage. He also submitted that it was a point which needed proper research and submission and consideration before the tribunal to reach any determination, not least because it was not obvious that the defences should not apply just because Eritrea was not a party to the Rome statute. He observed that Mr Howarth had not referred to any authority to the effect that this was a pre-condition to their application. It suffices to say that I agree and do not, therefore, propose to say anything more about this point.

Disposal

56. In the statement of facts and grounds the remedy sought was a quashing order in respect of the SSHD’s decision letter of 1 June 2023 and a mandatory order that she should reconsider DT’s case. I would propose to make such an order.

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