Neutral Citation Number: [2014] EWCA Civ 654

Case No: C4/2013/0646
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM 	
ADMINISTRATIVE COURT - MRS JUSTICE LANG DBE
[2013] EWHC 279 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 15th May 2014
Before :

LORD JUSTICE MOORE-BICK
LORD JUSTICE PITCHFORD
and
LORD JUSTICE KITCHIN
- - - - - - - - - - - - - - - - - - - - -
Between :

	THE QUEEN ON THE APPLICATION OF DA (IRAN)	Appellant	
	- and -		
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	
- - - - - - - - - - - - - - - - - - - - -

(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Richard Drabble QC and David Jones (instructed by Irving & Co - Solicitors) for the Appellant
Julie Anderson (instructed by Treasury Solicitor) for the Respondent
- - - - - - - - - - - - - - - - - - - - -

Hearing date: 2 May 2014
Judgment
Lord Justice Pitchford : 
Introduction
1.	This is an appeal from the order of Lang J of 19 February 2013 ([2013] EWHC 279 Admin) dismissing the appellant’s claim for judicial review of the refusal of the Secretary of State for the Home Department to grant British citizenship to the appellant under section 6(1) of the British Nationality Act 1981.
2.	By letter of 4 March 2011 the Secretary of State notified the appellant of her decision that naturalisation should be refused because there were ‘serious doubts’ as to the appellant’s character which arose from his military service in Iran. It was at one time envisaged by the parties that it might be necessary for the court to examine the scope of the discretion reposed in the Secretary of State under section 6(1) and the proper approach to the exercise of judgement. There is, however, nothing of substance between the parties upon these issues and counsel have helpfully, and I think properly, refined the issue in this appeal to a single question, namely whether the Secretary of State failed or failed adequately to take into consideration a factor relevant to her statutory judgment, namely that the appellant’s military service in Iran had been conscripted and involuntary.
The statutory power
3.	Section 6(1) of the British Nationality Act 1981 provides:
“(1)	If on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied the applicant fulfils the requirements of schedule 1 for naturalisation as a citizen under this sub-section, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.”
For the purposes of the present appeal the relevant part of schedule 1 appears in paragraph 1(1)(b) which provides:
“		... the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it
…
(b)	that he is of good character.”
4.	The parties are in agreement that the Secretary of State enjoys a significant measure of appreciation in assessing for herself the requisite standard of good character in the factual context of the application under consideration. In R v Secretary of State for the Home Department, ex parte Al Fayed [2000] EWCA Civ 523, [2001] Imm AR 134 at paragraph 41 Nourse LJ (with whom in this respect Kennedy and Rix LJJ agreed) observed that the concept of good character was incapable of being defined against a single standard to which all could subscribe. A decision by the Secretary of State could be based upon a higher standard of good character than that which might be adopted by another decision-maker also acting reasonably. Parliament had assigned to a minister of the Crown the task of making the judgement whether a person was of good character and it was for the minister to adopt the requisite standard of good character subject only to a requirement of reasonableness. 
Factual background
5.	The appellant was born on 24 May 1978 in Shiraz, Iran. His parents died during his childhood and he was brought up by his brother and sister. The appellant’s father had been a surgical technician. The appellant understood that his father had been tortured in Iran for his political beliefs. On 7 February 1998, at the age of 19 years, the appellant commenced his compulsory military service. He was assigned to a unit that would be responsible for prison security. The appellant gave two different accounts of his period of training. In his first statement, made in support of his appeal from a refusal to grant asylum, he said that his training lasted for a period of three months. In his second statement, made on or about 17 April 2003, he said that he was trained for two years at Kajoni Prison in Kariz, during which time he learned how to use weapons, to understand the prison regulations and how to handle prisoners both in prison and in transit. He was then transferred to Zendan Adel Abad, Shiraz, the central prison for Fars province. After two days the appellant was transferred to the Department of Punishment and Salvation. He described conditions as follows:
“This department was next to the prison medical services and near the HQ of the prison guard and was for people who were to be executed in 2 or 3 days. The prisoners were kept in dark, small cells and they had to endure a large amount of punishment, including torture. The cells were just like dog kennels. People were kept naked. They were executed at the back of the prison by hanging or stoning and I had to guard the prisoners and take them to their execution.”
6.	The appellant spoke in his statements about two events that occurred approximately 12 months after he had commenced his duties at Shiraz prison. He had become depressed as a result of witnessing the appalling treatment of prisoners, both tortured and subjected to the death penalty by hanging and stoning, and consulted his doctor who treated him with medication. The appellant said:
“I had by then witnessed several executions, including people being put in a hole in the ground up to their chest and stoned to death by stones thrown from only a few feet away. I regarded these actions as barbaric and hated the Iranian regime.”
Shortly afterwards, the appellant went absent without leave because he “could not bear it any longer”. After a month he was found, arrested, detained for 15 days and then returned to his duties. He was ordered to serve an additional one month of military service to compensate for his absence without leave and, by way of punishment, he was sentenced to serve for an additional period of 4 months.
7.	Later, the appellant was transferred to his third prison, Shahid Lajavardi, known also as Pirbano. He continued to suffer from depression, including disturbance of sleep and nightmares. He was treated with anti-depressants and sleeping pills. He asked the hospital authority to secure his transfer to other duties but his application was ignored. While the appellant was at Pirbano prison there was a riot by student inmates on whom the guards were ordered to fire their weapons. The appellant refused. His commanding officer struck him to the chest and head with the butt of an assault rifle. The appellant was taken, unconscious and bleeding, to the prison detention centre, where he was visited by fellow guards who insulted and beat him. When he was transferred to another room he was stripped and beaten again. The appellant was accused of assisting prisoners and of opposition to the Republic. After 24 days of ill-treatment the appellant was told that he was being taken to court. The appellant feared for his life. While being transported in the rear of a car he managed to overpower his escort and make his escape. He commandeered a passing motor-cycle and drove to another town where he was concealed by a friend. An uncle and the appellant’s friends assisted him to leave the country. On 8 January 2001, after travelling for 50 days overland, the appellant arrived in the United Kingdom. He applied for asylum on 10 January and appealed against refusal to the Immigration Appellate Authority.
The grant of asylum
8.	In a determination promulgated on 6 May 2003 the appeal was allowed.  Adjudicator Frederick Such was impressed by the appellant’s evidence and found his account credible. He concluded that on return to Iran the appellant would be identified as an absconder, would be detained and would face a real risk of persecution by torture. On 30 May 2003 the appellant was granted indefinite leave to remain.
Application for citizenship
9.	On 9 January 2010 the Secretary of State refused the appellant’s application, dated 6 March 2008, for naturalisation as a British citizen. The decision was made by an authorised official, who concluded:
“You have stated that you were a member of the Iranian Jail Organisation between 1998 and 2001, during this time you worked in various prisons. Your role involved guarding prisoners, taking prisoners to be executed, and removing bodies after execution. You spent a significant period of time working for the Iranian Jail Organisation and it is considered that you were a valued and committed supporter of the regime.”
The appellant obtained permission to bring his first claim for judicial review which, on 23 September 2010, was withdrawn by consent on terms that the decision would be re-made. 
10.	In a letter of 8 November 2010 the application was again refused. The decision-maker concluded that the appellant had made no significant attempt to disassociate himself from crimes against humanity perpetrated by the Iranian regime. He concluded that the appellant had undertaken his duties “voluntarily for a considerable period”. The appellant issued a further claim for judicial review on 30 December 2010. The grounds of claim were settled by Mr David Jones. In those grounds it was contended that the same errors persisted. In particular, the appellant relied upon the fact, accepted by the Secretary of State and by the adjudicator, that his was not a contractual but a compulsory enlistment for military service. Thus, he did not “actively participate” in human rights abuses. He suffered mental illness in consequence of his exposure to those abuses. He tried to disassociate himself from them on two separate occasions. He was punished for his actions. As to legal error, it was pleaded that the Secretary of State had not sought at the asylum appeal to exclude the appellant from the Refugee Convention under Article 1F by relying on his alleged participation in crimes against humanity and, if she had done so, the appellant would have argued that he had committed no such crime. 
11.	In the light of the grounds the decision was again re-considered. On 4 March 2011 the appellant was notified of the Secretary of State’s further and final decision to refuse his application for naturalisation. It was against this decision that the current claim for judicial review, by way of amendment to the claim issued on 30 December 2010, was brought and dismissed.
The Secretary of State’s reasons
12.	The decision-maker drew to the appellant’s attention the guidance that would be applied to his application. It was contained in chapter 18 of the Nationality Instructions, whose title was “Naturalisation at Discretion: Section 6 British Nationality Act 1981”. The relevant contents of the guidance were considered by this court in Secretary of State for the Home Department v SK (Sri Lanka) [2012] EWCA Civ 16 in connection with an applicant who had been a supporter of the LTTE in Sri Lanka. The guidelines were described by Stanley Burnton LJ, at paragraph 36, as practical instructions to decision-makers as to how they should go about deciding whether to be satisfied that the applicant for naturalisation has shown that he is of good character. They included the following:
“Paragraph 16.1.3:
“Naturalisation is at the discretion of the Home Secretary. Under section 6 of the British Nationality Act 1981, he may grant a certificate of naturalisation to a person of full age and capacity if he is satisfied that the person meets the requirements set out in Schedule 1 to the Act. He can refuse to grant a certificate to a person who meets these requirements, but he cannot grant a certificate to a person who does not meet them.” 
“Paragraph 18.1.7:
“In considering the exercise of discretion it is important to look at the case as a whole. We need to be sure before we agree to waive a requirement, that applicants are of good character and have genuinely thrown in their lot with this country. The points which need to be considered are set out in the annexes to this chapter”.
Annex D, Paragraph 5.1:
“Applicants should be refused if their activities cast serious doubts on their character. Serious doubts will be cast if applicants have been involved in or associated with war crimes, crimes against humanity or genocide. For further guidance on how to deal with applications where an applicant has declared involvement in these activities, see “war crimes, crimes against humanity and genocide” in Volume 2s1-W”.
13.	In Volume 2, Section 1 – W of the Nationality Instructions appeared the following guidance relevant to citizenship applications from those suspected of crimes against humanity:
“2.2 	In ascertaining whether there are sufficient grounds for refusing an application for involvement in war crimes, crimes against humanity or genocide, consideration will be given to evidence directly linking the applicant with these crimes. It will also be given to factors such as likelihood of his/her having been involved through membership of, or activities for groups responsible for committing war crimes, crimes against humanity or genocide. In determining the significance of these links, consideration will be given to such factors as the role of the applicant the length of membership and his/her seniority within that group.”
At paragraph 8.5 the guidance states:
“Involvement includes activities where the applicant may not have had a direct involvement in war crimes or crimes against humanity but where his/her actions have contributed towards war crimes or crimes against humanity, such as supplying help which the supplier knows is likely to contribute towards the committing of war crimes or crimes against humanity. This could include for instance providing transport to take prisoners to a site where they are going to be murdered”.
And at paragraph 8.6 the Guidance states:
“In certain cases membership of a particular group may be sufficient to determine that an applicant has been supportive of, and in some cases complicate in, war crimes or crimes against humanity committed by that group. In such cases consideration will be given to the length of membership and the degree to which the group employed war crimes or crimes against humanity to achieve its ends.”
14.	The decision-maker cited in his reasons parts of paragraph 5.1 and volume 2, paragraph 2.2 above. He proceeded to consider the question whether the appellant was “associated with” crimes against humanity to an extent that, in the circumstances, precluded him from a judgement of good character. He relied on the following matters, which I paraphrase:
(i)	The appellant’s role and duty as a prison guard. He was not a low level operative, such as a cleaner, but a guard whose seniority was unknown. 
(ii)	The nature of the regime within the prison in which the appellant participated. He guarded prisoners kept in appalling conditions; he escorted them to their deaths by stoning; and he guarded and escorted prisoners who, he knew, were detained without trial and were to be tortured.
(iii)	The appellant had undergone three years service before he went absent without leave and, having been captured, was detained. His punishment was extended service.
(iv)	The appellant made a single attempt to disassociate himself from the service he was required to perform. His final escape was not assessed to be an attempt to disassociate himself from his former conduct but to evade the possibility of serious harm or death.
(v)	In mitigation, the Secretary of State took account of the appellant’s refusal to fire on unarmed student prisoners; also, that the appellant did not himself carry out crimes against humanity.
15.	The Secretary of State accepted the appellant’s evidence. Her decision was made on the assumption that all the evidence submitted (and summarised at paragraphs 5 – 7 above) was true. However, the Secretary of State considered:
“that there is sufficient evidence to conclude that your client was associated with these violations such as to cast serious doubts over his character.”
The case for the appellant
16.	The Rome Statute of the International Criminal Court was incorporated into domestic law in the International Criminal Court Act 2001. Crimes against humanity are defined in Article 7 of the Rome Statute. Article 25 defines the conditions upon which the court will exercise jurisdiction over individuals; Article 30 defines the mental element for criminal responsibility and Article 31 identifies grounds for excluding criminal responsibility, including duress. The appellant does not dispute that by his actions he was lending his assistance to a regime that perpetrated crimes against humanity. However, he denies that he committed such an offence. Furthermore, his moral responsibility for the assistance he gave to the regime could be measured fairly only by a consideration of the circumstances in which he was required to give it. Mr Drabble QC argued, persuasively, that nowhere in the Secretary of State’s reasons is there any reference to the compulsory nature of the appellant’s military service in the prison estate. Had the Secretary of State considered the implications of the appellant’s conscription into service she needed only to consult the UKBA Operational Guidance Note on Iran to comprehend the nature of the regime to which the appellant was bound. At chapter 3 paragraph 6 (March 2011 edition), which considered the risk to those who had exited Iran illegally, the guidance stated (at paragraph 3.6.10) that “the Government administers tight control of the entire State” and internal relocation was, in general, not an available means of escape. Mr Drabble’s point was that a person in the appellant’s position could not realistically seek to evade the service to which he was compelled by conscription without serious (although unspecified) consequences to himself. Mr Drabble encapsulated his submission by posing the rhetorical question: “What alternative did he have?” The Secretary of State had failed to confront that question. As a result there was a worrying lacuna in the process of reasoning which led to the decision. 
17.	It was suggested on behalf of the appellant that the error in the Secretary of State’s approach may have arisen from a misunderstanding of the use of the words “associated with” in the guidance. They were apt, as made clear by this court in SK (Sri Lanka) at paragraph 39, to describe the position of a supporter of an organisation notoriously known to have carried out terrorist operations, whether or not he was personally implicated in them. That, however, was not the position of this appellant. His position was that he hated the regime and opposed its methods and objectives. The decision-maker appears to have made an assumption of support for the regime by virtue only of his military service and, in so doing, ignored his acceptance of the appellant’s evidence that he “hated the Iranian regime” which, in his view, had carried out “barbaric” actions. The Secretary of State had failed to consider the underlying question as to whether the appellant’s association with the regime was voluntary or involuntary. If it was involuntary, no moral responsibility for the assistance given could be attributed fairly to the appellant. 
The judgment of Lang J
18.	Lang J did not accept that in the light of the appellant’s unchallenged evidence the Secretary of State’s decision was irrational. At paragraph 47 of her judgment, the judge found that the appellant was mistaken in treating the case as one concerning membership of an organisation in which the issue was whether the member shared the objectives or methods of the organisation. The judge acknowledged, at paragraph 48 that, as Mr Drabble argued, this case was about the appellant’s ability to establish his good character “because he was a conscript, acting on orders, who claimed that he did not support the actions he was involved in, and was only there under protest”. The judge found that the Secretary of State had also considered mitigating factors (paragraph 50). She found it inconceivable that the Secretary of State had failed to take account of the fact that the appellant was a conscript since that fact was at the heart of his case (paragraph 51). However, the Secretary of State had properly taken account of the length of time that the appellant had been in the prison service (paragraph 52) and had reasonably concluded that there had been but one unequivocal demonstration of the appellant’s unwillingness to be associated with the regime during the 3 years 4 months period of his service (paragraph 55). The judge found that the Secretary of State reached the rational conclusion that the appellant had “not sufficiently disassociated himself from the regime”.
Discussion
19.	In my judgment, neither the Secretary of State nor Lang J made any error of law. The onus was upon the appellant to establish his good character for the purpose of section 6(1) of and schedule 1 to the 1981 Act. I accept that it would be unreasonable to demand of the applicant a “heroic” standard of conduct (compare Sivakumar v Canada (Minister of Employment and Immigration) (A-1043-91, 4 November 1993, Canadian Court of Appeals, and Ramirez v Canada (Minister of Employment and Immigration) [1992] 2 FC 306 (McGuigan J)). However, it was for the appellant to place before the Secretary of State all the material on which he relied to establish his good character. The appellant provided no personal explanation to the Secretary of State at any stage as to why his first act of disassociation from his military service within the prison estate took place three years after his conscription. I recognise that the appellant was a citizen of a country whose government did not brook opposition and that he must have known there were likely to be serious consequences for disobedience. However, the appellant provided no evidence about the training he was given as to the nature of and his role in the prison regime and the duties that would be expected of him. He made no attempt to disassociate himself from the duties he was performing until a year after his training had ceased and only then because he was sickened and depressed by his experience. When the appellant’s own life was at stake he did make a bid to escape and his attempt was successful. It may have been a hard decision to express serious doubt about the appellant’s opposition to the regime for which he had been labouring but, on the evidence submitted, such a decision by the Secretary of State cannot be described as irrational or unreasonable. 
20.	In common with the judge I do not accept that the absence of explicit recognition of the appellant’s conscription in the Secretary of State’s reasons implies that no consideration was given to the issue or that insignificant weight was attached to it. One of the principal reasons why the decision was being re-made was the assertion made on behalf of the appellant in the claim for judicial review that inadequate, if any, consideration had been given to that very issue. The care taken by the decision-maker to assess the period of service undertaken by the appellant before there was any act of disassociation is explicable only if the decision-maker was fully conscious of the importance of the issue of conscription.
21.	The Secretary of State was, in my view, entitled to conclude that the appellant’s escape was an act of self-preservation rather than an act of disassociation. That was the effect of the appellant’s own evidence. An alternative view of the appellant’s conduct is that three years after his conscription the appellant, for the first time, attempted to escape his responsibilities in military service; that shortly afterwards, consistently, he demonstrated his unwillingness to obey an order he regarded as immoral; and that his escape to avoid serious harm or worse was a natural consequence of his breach of discipline and resistance to the regime. In other words, the Secretary of State could, with justification, have treated the appellant’s flight from Iran as the culmination of his decision to resist the regime. Nonetheless, there remained the outstanding question mark over the appellant’s period of service before he went absent without leave.
Conclusion
22.	It is not demonstrated to me that the Secretary of State adopted a standard of good character that was unrealistically high or that the issue and effect of conscription was omitted from a proper consideration of the merits of the application. In my view, Lang J was justified in her conclusion that the appellant had failed to discharge the burden upon him of establishing his good character. For these reasons I would dismiss the appeal.
Lord Justice Kitchin
23.	I agree
Lord Justice Moore-Bick
24.	I also agree