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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AN (Afghanistan) v Secretary of State for the Home Department [2015] EWCA Civ 684 (09 July 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/684.html Cite as: [2015] EWCA Civ 684 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
AA/06251/2008
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RYDER
and
LORD JUSTICE SALES
____________________
AN (AFGHANISTAN) |
Appellant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
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for the Appellant
Mr R Kellar (instructed by The Government Legal Department) for the Respondent
Hearing date: 10 June 2015
____________________
Crown Copyright ©
Lord Justice Sales:
Introduction
"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 ..."
"We are, it is clear, attempting to discern the autonomous meaning of the words "serious reasons for considering". We do so in the light of the UNHCR view, with which we agree, that the exclusion clauses in the Refugee Convention must be restrictively interpreted and cautiously applied. This leads us to draw the following conclusions: (1) "Serious reasons" is stronger than "reasonable grounds". (2) The evidence from which those reasons are derived must be "clear and credible" or "strong". (3) "Considering" is stronger than "suspecting". In our view it is also stronger than "believing". It requires the considered judgment of the decision-maker. (4) The decision-maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law. (5) It is unnecessary to import our domestic standards of proof into the question. The circumstances of refugee claims, and the nature of the evidence available, are so variable. However, if the decision-maker is satisfied that it is more likely than not that the applicant has not committed the crimes in question or has not been guilty of acts contrary to the purposes and principles of the United Nations, it is difficult to see how there could be serious reasons for considering that he had done so. The reality is that there are unlikely to be sufficiently serious reasons for considering the applicant to be guilty unless the decision-maker can be satisfied on the balance of probabilities that he is. But the task of the decision-maker is to apply the words of the Convention (and the Directive) in the particular case. "
The factual and procedural background
"… I find that not only was the appellant most likely aware of the human rights abuses and war crimes being committed on the front line by [HI] troops, he was complicit in such atrocities. It was because individuals such as the appellant were ensuring that security in [HI] captured areas was maintained, that enabled his colleagues on the front line to divert their attention to taking control of Kabul in the inhumane and callous manner that they did. I find the expert report of Dr Guistozzi to be helpful in allowing me to come to this finding. I note that at paragraph 12 of his report, Dr Guistozzi concludes that although the appellant would not have been much use in offensive operations, "… they were likely used to hold the line and secure the logistical rear, an area including the southern part of Kabul province and the northern parts of Logar." Therefore, although individuals such as the appellant did not actively engage in the types of human rights atrocities detailed in the country information reports before me, such individuals were part of the organised machinery of [HI] which allowed the leadership to be in a position to deploy some individuals to maintain security in captured areas (which the appellant claimed was his role), whilst allowing others to carry out the kinds of violations and war crimes detailed in the country information reports. The appellant may not have fired the rockets or artillery into the civilian areas of Kabul, but he played his role in ensuring that others in his group were in a position to do so during this most regrettable period of Afghan history."
"Mr Henderson argues forcefully that there was no command responsibility in the present case, because it is not enough that a person is a member of an armed force and that war crimes occur, but in the present case the Upper Tribunal came to the clear finding that what the appellant did assisted in the commission of those war crimes. In those circumstances I refuse permission to appeal on [the ground in respect of Article 1F]. I am not satisfied that there is a real prospect of success on that point."
"1. The determination of Designated Immigration Judge Barton promulgated on [2] February 2011 be quashed;
2. The matter be remitted to a differently constituted Upper Tribunal for redetermination of the issue of whether the Appellant would be at risk upon return to Afghanistan on the facts found by Immigration Judge Aziz …"
"It was not argued that we should also re-open the findings of Judge Aziz as a result of a change in the law on participation in acts capable of leading to exclusion under Article 1F. Al-Sirri has not changed the law in this respect, and there was nothing in the order of reference from the Court of Appeal indicating that this issue should be re-examined. …"
A procedural objection to the appeal: the respondent's notice
The appeal: discussion
Lord Justice Ryder:
Lady Justice Gloster DBE: