Born just before the revolution in 1978, a man known only as DA grew up an orphan in Iran. He understood that his father had been tortured for his political beliefs and he was raised by his older siblings. When the time came for his compulsory military service, he was allocated to a unit responsible for prison security. The prisoners he guarded were kept in squalid conditions and tortured before being executed. Some executions were by stoning: being buried to chest height then stoned from only a few feet away.

What DA witnessed made him sick. There is no suggestion DA was personally responsible for torture, executions or the conditions in which the regime kept the prisoners. He developed mental health problems for which he received treatment. He requested transfer to different duties but was refused. He went absent without leave but was found and 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. When a disturbance broke out at one prison, he refused orders to fire on prisoners, was assaulted and beaten by his commanding officer and then, as the judgment of the Court of Appeal records:

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 claimed asylum in the UK in 2003. His account was accepted and he was recognised as a refugee. The judge held that he would be persecuted if returned to Iran. The Home Office never attempted to argue that DA was excluded from refugee status by his association with the Iranian regime, so that issue was never adjudicated on by a judge. Many years later, DA applied for naturalisation as a British citizen. That application was repeatedly refused on good character grounds and the subject of much litigation, of which this new judgment may or may not prove to be the final chapter.

The Home Office took the view that DA had made no significant attempt to disassociate himself from crimes against humanity perpetrated by the Iranian regime and had served voluntarily for a considerable period.

Held

In the leading judgment in R (On the Application Of DA (Iran)) v Secretary of State for the Home Department [2014] EWCA Civ 654, Lord Justice Pitchford held that it would be unreasonable to demand of DA a “heroic” standard of conduct and that DA 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. Nevertheless, DA had not provided information about his training, role and duties, he had only attempted to disassociate himself from the regime a year after his training had ended “and only then because he was sickened and depressed by his experience”.

Pitchford LJ concludes that decision by the Secretary of State could not be described as irrational or unreasonable.

Comment

Given what happened to DA when he did disassociate himself from the regime — he was persecuted and had to flee for his life — it might be thought that it is a little harsh to have expected DA to have done so earlier, which would it seems have led to his earlier persecution. Essentially, it is said that DA should have fled Iran sooner and his failure to do so means he is not of good character.

It also seems a little unfair to criticise DA for only disassociating himself because he was sickened and depressed by his experience. It is implied that he should have done so on high principle before seeing things that sickened and depressed him, I suppose.

This all begs the question of how many of us, civil servants included, would pass this sort of good character test.

The judgment highlights the inadequacy of judicial review as a means of challenging factual assessments by the Home Office. Without a full right of appeal to a judge on the facts, factual assessments by junior civil servants that are universally acknowledged to be very poor in quality can only be challenged on rationality and strict legality grounds. Such challenges are fraught with difficulty. But once the Immigration Act 2014 comes into effect, these will be the only means of challenge available to supposedly valued migrants such as students and business people who do not have a human rights case for remaining in the UK.

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