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1. In response to an allegation that a person should be excluded under Article 1F(a) of the Refugee Convention because there are serious reasons for considering that the person has committed a crime against peace, a war crime or a crime against humanity as defined in the Rome Statute, there is an initial evidential burden on an appellant to raise a ground for excluding criminal responsibility such as duress.
2. The overall burden remains on the respondent to establish that there are serious reasons for considering that the appellant did not act under duress.
The Upper Tribunal had refused permission to appeal on this one, which had to be obtained by means of a Cart judicial review. The Appellant had held a senior role in a women’s prison under the control of the Islamic Revolutionary Guard Corps in which political prisoners were detained and tortured. The appeal is ultimately dismissed on refugee grounds:
78. The reality of the appellant’s account of acting under duress is that for a period of many years she took no steps whatsoever to avoid compliance with her duties in the prison, despite her knowledge of the consequence for those taken to the torture facility. Even despite being off work after the birth of her child for a lengthy period of time she chose not to explore any other option but to return to her duties in the prison. She continued in those duties accepting promotion along the way. The immediacy of her reaction on learning of her relative’s detention and the combined manner of the transfer to hospital and subsequent escape is evidence of a cunning and resourceful nature, along with an ability and willingness to take appropriate steps when she chose to do so.
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.
