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Tribunal told to think again on exclusion from refugee status of Iraqi military doctor


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The First-tier and Upper Tribunals seem to have gone rather badly wrong in the case of MAB (Iraq) v The Secretary of State for the Home Department [2019] EWCA Civ 1253, involving an Iraqi doctor who was formerly employed to care for prisoners by Iraqi military intelligence. The Court of Appeal overturned tribunal findings that the doctor had been complicit in committing crimes against humanity and sent the case back for further, more careful consideration.

The doctor had worked at a clinic at military intelligence headquarters treating military intelligence officers and prisoners who he suspected might have been tortured and might be tortured again in future. There was no suggestion he had tortured anyone himself.

The appellant arrived in the UK as long ago as 2000 and had claimed asylum back in 2013. The Home Office concluded that he was not eligible for refugee status because the exclusion clauses to the Refugee Convention applied to his past activities. The case has proceeded extremely slowly through the court system since then.

The exclusion clauses to the Convention are contained in Article 1F, which reads:

The provisions of this 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 as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations

1951 UN Convention Relating to the Status of Refugees, Article 1F

Unlike human rights law, which is universal in nature and applies to absolutely everyone, the Refugee Convention only applies to those who are considered to deserve protection. A person who has committed one or more acts falling within Article 1F is not considered deserving of refugee status.

Here in the UK, the starting point for considering the law on exclusion from refugee status are the Supreme Court decisions in JS (Sri Lanka) v Secretary of State for the Home Department [2010] UKSC 15 and Al- Sirri v Secretary of State for the Home Department [2012] UKSC 54. In turn, these decisions draw heavily on the Rome Statute of the International Criminal Court and its definitions of war crimes, crimes against humanity and of complicity. The critical test where a person is accused of being complicit comes from JS:

Put simply, I would hold an accused disqualified under article 1F if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose.

Lord Brown, JS (Sri Lanka) [2010] UKSC 15, paragraph 38

The tribunals in MAB concluded that the doctor had been complicit in committing crimes against humanity because “if he had not treated the prisoners, their torture may have ceased.” With respect, it is not all that obvious why this was so. It could be said that had medical treatment not been provided, the prisoners might have died. The tribunals’ rather absolutist approach ignores the obligation on a medical professional to provide treatment to those who need it.

The tribunal did not explain how this inference worked and ultimately the Court of Appeal held that this was just not good enough:

Article 1F of the Convention has to be applied with caution. It requires “a close examination of the facts” and “a carefully reasoned decision as to precisely why the person is excluded from protection under the Convention”. For the reasons outlined above, the FTT did not carry out a sufficiently “detailed and individualised examination of the facts” to support the conclusion of complicity which they reached. I would accordingly allow the appeal.

Lord Justice Hamblen, paragraph 77

It is easy to see why the issue of the exclusion clauses arose on the facts of this case, particularly given that the Medical Practitioners Tribunal had previously suspended the appellant’s licence to practice for one year by reason of his having been an accessory to torture in Iraq. But the MPT was not applying the exclusion clauses of the Refugee Convention. It is troubling to see an expansive and rather careless approach being adopted to parts of the Refugee Convention that are supposed to be interpreted and applied in a restrictive way.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.