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  • MR C M G OCKELTON, VICE PRESIDENT UPPER TRIBUNAL JUDGE GRUBB before his retirement on December He was posted in Gweru with Brigade" from September until He acted as an Aide-de-Camp to Air Marshall Shira and subsequently General Chiwenga. In the appellant was transferred to Harare army headquarters and appointed a Lieutenant. He was not involved in combat but was concerned first with logistics and then involved in administration. In he became a Captain in procurement. He was subsequently promoted to Major. In the appellant was posted as Staff Officer in administration to Bulawayo at the Llewellyn Barracks. As a result of permitting Bishop Pious Ncube, an outspoken anti- government figure, to speak at the barracks, the appellant was subject to investigation and, he claims, harassment by the government. In December the appellant's daughter left Zimbabwe because, she claimed, she had been sexually assaulted during an interrogation following her attendance at an MDC rally. The appellant's daughter came to the UK. Her subsequent claim for asylum was refused by the Secretary of State and her appeal was dismissed by the Asylum and Immigration Tribunal in February The appellant's daughter was subsequently granted indefinite leave to remain in the UK in June In the appellant was transferred back to Brigade" based at Kwe Kwe. The appellant claims that he continued to suffer harassment and was suspected of being a British spy. He claims that he suffered from stress and in October he submitted notice to retire from the ZNA. He retired on January Following his retirement, the appellant claims that he formed and chaired a retired officers' organisation in February/March which was concerned with pension rights of former officers. This was in association with General Paul Gundu. The appellant says that this group was considered anti-government and on June in circumstances of considerable suspicion, Gundu was killed. In September the appellant claims that he was interrogated in relation to his association with Gundu. At this point, the appellant claims that he decided to leave Zimbabwe for Australia but, as a result of direct intervention of Morgan Tsvangarai, he did not leave. Instead, he became Chief Election Officer for the Mavambo Party on its split from the MDC. That party supported the candidature of its leader, Simba Makoni in the Presidential elections. The appellant claims that he was one of Makoni's hand men". After the first round of the Presidential election held on March did not produce a winner, a run-off election was scheduled for June During that time, the appellant claims that he became a target of the government and he and his wife moved to a safe house. The appellant claims that he was involved in briefing a delegation from South Africa consisting of senior retired South African army officers. That took place, the appellant claims, on May he also claims that following that meeting he produced a report concerning the infliction of violence by the Zimbabwe government. He claims that one of the South African officers subsequently warned him that the report had been shown to President Mugabe. The appellant also claims that on the weekend of June he met with a CIO officer who asked the appellant to arrange for Mavambo to back Mugabe in the run-off election later that month. The appellant says that at that time, the Secretary General of the MDC, Tendai Biti had been arrested as a result of a particular document being found, and was charged with treason. As a result, the appellant claims that he began to be afraid that he was at risk from the government. The appellant told the CIO officer that he would advise Makoni as requested so that the CIO officer would go. However, on June, Makoni in fact decided to support Morgan Tsvangarai. That was early in the week when the run-off election was scheduled for Friday June. The appellant says that, at that point, he knew he had to leave Zimbabwe. He had applied for visas to the UK addition to having a student visa to Australia) and he came to the UK with his wife and two younger children the day before the run-off election.The Proceedings The appellant's claim for asylum was based upon his fear of the Zimbabwe regime as a result of his involvement with the opposition party Mavambo and in particular his close association claimed with the prominent opposition politician Makoni; his involvement with the retired officers' organisation concerned with pension issues of former ZNA officers; and his involvement with the South African delegation and the subsequent report which was critical of the Zimbabwe government and its use of violence.10. the First-tier Tribunal, the appellant also relied upon his sur place activities in the UK.11. The Secretary of State rejected the appellant's claim for asylum. First, on the basis of the appellant's involvement in the ZNA on a number of other bases which are now no longer relevant) the Secretary of State concluded that the appellant had been complicit in crimes against humanity committed by the ZNA during the time he had served in the ZNA. Therefore, the Secretary of State concluded that the appellant was excluded from protection under the Refugee Convention by virtue of Article of that Convention. The Secretary of State issued a certificate under s.55 of the Immigration, Asylum and Nationality Act In addition, both in relation to the appellant's asylum and humanitarian protection claim and also in respect of his claim under Article of the ECHR, the Secretary of State found the appellant's claim to be at risk on return to Zimbabwe not to be credible and concluded that the appellant would be of no interest to the authorities on return to Zimbabwe and would not, as a consequence, be at risk.13. On appeal, the First-tier Tribunal agreed with the Secretary of State's certification under s.55(1) of the Act and dismissed the appellant's asylum appeal. The judge was satisfied that there were serious reasons for considering that the appellant had been complicit in crimes against humanity and that therefore he was excluded from the protection of the Refugee Convention by virtue of Article of the Convention.14. Further, the judge found that, in any event, the appellant's account was not truthful. He rejected the appellant's claim based upon his association with Makoni, his involvement with the retired officers' association and as a result of his claimed involvement with the delegation of South African officers to Zimbabwe. Further, judge concluded that the appellant would not be at risk as a result of any sur place activities in the UK.15. The appellant sought permission to appeal on the basis that the judge had erred in law in reaching his adverse credibility finding and also in finding that Article of the Refugee Convention applied. In granting permission to appeal, Upper Tribunal Judge Jordan his decision dated August stated that it was arguable that the judge had erred in his application of Article but expressed no view on the merits of the grounds relating to the judge's adverse credibility finding.16. us, Mr Bryce, who represented the appellant, expanded upon the grounds of appeal challenging: the judge's adverse credibility finding; and the application of Article to the appellant.Credibility 17. In relation to credibility, Mr Bryce focused upon the judge's assessment of the evidence relating to the appellant's claimed political activities since retiring from the ZNA on January He did not seek to challenge the judge's finding in relation to the appellant's sur place activities. In relation to any risk to the appellant on return, Mr Bryce rested the appellant's case squarely upon his involvement with Makoni, the South African delegation and the retired officers' organisation.18. Mr Bryce's principal submission was that the judge had erred in his reasons at para of his determination for not accepting the appellant's evidence concerning his political involvement at the time of the Presidential election in In particular, Mr Bryce submitted that the judge had failed to give adequate reasons why he did not accept the documentary evidence relied upon which, Mr Bryce claimed, linked the appellant to Major Mbudzi and the launch of the Makoni Party and the link between before the judge. In the latter, she had unequivocally said that the appellant was by February in Australia. Even if Mr Bryce was correct that what had been said by the appellant's daughter in her interview was unclear, there were still two strands of evidence and the judge was entitled to prefer one over the other. In relation to the documents, Mr Matthews pointed out that the Zimbabwe Independent, although it referred to the appellant, did not place him in Zimbabwe. The internet article from the Zimbabwean appeared, Mr Matthews submitted, to contain information only derived from the appellant himself. Likewise, in relation to the Radio VOP extract, that did not say that the appellant was in Zimbabwe.22. As a second point, Mr Bryce relied upon the coincidence in detail of the appellant's account concerning the visit by the CIO officer a couple of weeks before the run-off to the Presidential election in June Mr Bryce submitted that the coincidence concerning the appellant's evidence and the background evidence concerning the arrest of Biti as a result of a document and being charged with treason was exact both as to date and to substance ... that it could only be the truth". Mr Bryce submitted that the judge had failed to have regard to that in reaching his adverse credibility finding.23. We begin by setting out para of the judge's determination which was the principal target of Mr Bryce's submissions. It is in the following terms: I find that in oral evidence the witnesses and appellant were unable to explain the discrepancies between before the judge. Although this statement is unsigned and undated, there she states, father is now in Australia". Faced with these two strands of evidence indeed they conflict), in our judgment the judge was entitled to take the view that the appellant's claim to be in Zimbabwe between before their names, reflecting their status. This document was prepared the appellant's account), if not by him personally, by his colleagues and there is no explanation as to why the appellant's status marked contrast to those of the South African officers) is not correctly stated.30. Further, it is the appellant's claim that he was a prominent political activist during the Presidential election campaign and leading up to the run-off in June Apart from the reference to him in the Zimbabwe Independent and the Radio VOP extract, Mr Bryce did not draw our attention to any document referring to the appellant's involvement in that campaign over the period February to June In particular, there was no evidence before the judge of the appellant's involvement in the weeks leading up to the run-off to the election in late June In that context it is difficult to see that the description of his role is anything less than a gross exaggeration.31. In relation to the claimed formation of the pensions organisation, the evidence was inconsistent on when it was formed, ranging between before February In addition, at the date of the hearing, the appellant's daughter still appeared unaware of her father's claimed high profile involvement in Zimbabwean politics. Her evidence out in her statements and oral evidence) related to his claimed involvement with the MDC which was not the basis of the appellant's claim for asylum.33. The evidence before the judge was also that the appellant had been able freely to leave Zimbabwe on his own passport, despite his claim that the CIO were interested in him. In particular, by the time he left Zimbabwe it was clear that he had been unable to persuade Makoni to support Mugabe because Makoni had by that time announced his support for Morgan Tsvangarai. Yet, he left using his own passport without any interest being shown in him at the airport.34. In relation to the point made by Mr Bryce in respect of the coincidence of the appellant's evidence and the background evidence concerning Biti's arrest, the judge made reference to this in para of his determination. The fact of the matter is, as we pointed out to Mr Bryce at the hearing, the circumstances of Biti's arrest were, and are, in the public domain. According to the Wikipedia article to which we were referred dated March the details of his arrest were contained in a news report dated June footnote of the Wikipedia article). The consistency of the appellant's account with the background evidence was not exclusively explicable on the basis, as Mr Bryce claimed, that the appellant must have been involved in order to know that detail because it was in the public domain. That evidence cannot, therefore, carry the force of persuasion as to the appellant's credibility that Mr Bryce sought to place upon it.35. In our judgment, the judge was entitled, given the two strands of evidence of the appellant's daughter, to reach the finding the reasons he gave in para that he did not accept the appellant's evidence that he was in Zimbabwe after February In any event, the judge was required to assess the documentary evidence, upon which Mr Bryce placed emphasis, in the light of all the evidence before him. We have set out above our view of the reliability of that evidence. There was also the circumstances in which the appellant left Zimbabwe despite his claim to CIO interest in him. It cannot be said, in our judgment, that the Judge's factual finding in respect of the appellant's credibility was not open to him for the reasons he gave.37. For these reasons, we have concluded that the judge's adverse credibility finding stands. Even if the judge misread the evidence of the appellant's daughter we do not consider that he did), on the evidence he was fully entitled to reach the findings that he did in the light of the documentary evidence and other evidence submitted in the appeal.38. The judge's finding stands and, in the light of Mr Bryce's acceptance of the only basis upon which he would be at risk to him on return, the appellant has failed to establish that there is a real risk of persecution or serious ill-treatment on return to Zimbabwe. The review of the evidence that we were bound to undertake in order to evaluate Mr Bryce's submissions led us to be more rather than less confident that the judge was correct in deciding that it did not disclose any real risk to the appellant. That is, in itself, enough for us to dismiss this appeal on all grounds. However, we go on to consider Mr Bryce's submission in relation to the judge's decision that the appellant is, even if at risk, excluded from protection of the Refugee Convention by virtue of Article of the Convention.Exclusion 39. In her refusal letter dated January the Secretary of State considered that the appellant had been involved in a number of activities with the ZNA and the War Veterans which amounted to crimes against humanity for the purposes of Article of the Convention. the judge, it became clear that the basis of the appellant's potential exclusion from the Refugee Convention had to be considered on a narrower basis. He had not, for example, been involved with the War Veterans. That was a misunderstanding about his claimed involvement with the entirely different organisation concerned with retired army officers and their pensions. Having referred to the Supreme Court's decision in JS Lanka) UKSC and, in particular, set out passages from the judgment of Lord Brown, the judge continued at paras as follows: Applying JS Lord Hope at para to the facts in the appellant's case I find that the really critical question is whether the evidence provides serious reasons for considering the appellant to have committed the actus reus of an international crime with the requisite mens rea. I find that the evidence does reach this standard. The evidence is that the appellant comes from a military family and joined and remained in the Zimbabwe military as a career soldier. When he was a member of Brigade he was in a very junior, administrative position and there is no evidence that he was involved in the execution or complicit in the crimes set out in the reasons for refusal as a member of Brigade. His posting to a Brigade under retraining as an Aide de Camp, is I find not sufficient in itself, if his army career had ended at this stage. His army career did not however end until January and has to be looked at in its totality. I find that there are grounds for finding that there are serious reasons for considering that the appellant has committed the actus reus of international crime with the requisite mens rea during his career with the ZNA. The appellant's career is eloquent of involvement in all the activities of the ZNA, including the international crimes and crimes against humanity. He was appointed full lieutenant in He was in Logistics and Administration until he became a Captain in Procurement in Although the period from to was one of relative peace in Zimbabwe, torture and ill-treatment was widespread. The appellant was appointed as a Staff Officer in January This year marks the beginning of a period of time when crimes against humanity were perpetrated by the ZNA. It was during this period of time that the appellant's personal and family history demonstrates that he was a favoured member of the elite in Zimbabwe. He rose to the rank of Major and then retired with the rank of Lieutenant Colonel on January It was also during this period of time, in particular in when the appellant was applying for and was granted retirement at a higher rank, that his daughter ... travelled to Zimbabwe in and returned to the United Kingdom and his wife travelled to the United Kingdom in when pregnant and returned to Zimbabwe in with a baby born in the United Kingdom. The appellant accepts that the family was wealthy with several houses and his wife had a business, a satellite TV shop and used to fly to Dubai to obtain stock. The appellant remains the owner of intact property in Zimbabwe, his complaint is that he has suffered an economic downturn because of hyperinflation in Zimbabwe. I am satisfied that in his evidence, including his evidence at the hearing the appellant has deliberately set out to sanitise his past. I do not accept that he has been innocent of complicity in the international crimes committed by the ZNA. I find that he has been a willing, active and successful member of ZNA and that this includes willing and active involvement in the ZNA activities, which contravene international law, activities which have been well documented and have drawn international condemnation. The fact that he has not admitted to personally wielding any weapon does not in my view undermine my finding that he has been complicit in the international crimes committed by the ZNA. The objective evidence set out in the reasons for refusal about the ZNA role as a perpetrator of international crimes and crimes against humanity has not been challenged. I find that the appellant retired as a high ranking officer in an organisation dedicated to perpetrating international crimes of violence against civilians in order to ensure the survival of a regime. The appellant did not distance himself from this organisation even after his retirement. I find that he has taken full advantage of his position as a member of the ZNA and therefore of the ruling regime, to secure for himself and his family advantages such as wealth, travel and property in a country where during this period, it has been well and consistently documented that for many people access to even the most basic of food items was dependent upon the ability to demonstrate loyalty to Zanu-PF. It is evidence that the appellant cannot have secured these advantages without being embedded in and a trusted member of the regime. I find that the ZNA and appellant have been actively and systematically involved in international crimes as reported by international organisations including Amnesty International including activities from which post date the Rome Statute. I find that on the basis of the appellant's own evidence and the available objective evidence, there are serious reasons for considering that the appellant has been complicit in the commission of crimes against humanity. As such I find that the grounds for exclusion under article have been made out. I uphold the certification of the claim under section of the Immigration and Nationality Act The appellant's exclusion from the protection of the Refugee Convention is I find, entirely appropriate."40. As is clear from this extract, in finding that the appellant had been complicit in crimes against humanity committed by the ZNA, the judge accepted that the appellant had not himself personally perpetrated such crimes and had not directly been involved with those who had done so in the ZNA. His complicity arose from his being a ranking officer" in the ZNA which, as the judge points out in para of his determination, involved the appellant in logistics and administration only.41. Mr Bryce submitted that the appellant had been only involved in training and logistics and administration and there was no evidence that those who had been trained were themselves involved in the commission of crimes against humanity. Mr Bryce accepted that the appellant provided administrative support but, if the judge were correct, his liability for against humanity committed by the ZNA amounted to no more than him being an officer in the national army". He accepted that the appellant's liability, if any, fell to be considered under Article of the Rome Statute governing the International Criminal Court. But, having regard to the appellant's actual contribution to the ZNA it was not established that he had been sufficiently involved to fall within Article and therefore to be complicit in crimes against humanity so as to be excluded by virtue of Article of the Refugee Convention. Mr Bryce referred us to the Court of Justice of the European Union's decision in Bundesrepublik Deutschland v B D EU ECJ and the Supreme Court's decision in JS.42. Mr Matthews acknowledged that the judge's reasoning might not spell out the individual assessment that JS required but, in his submission, all the required elements for exclusion were present. As regards Article Mr Matthews submitted that the appellant held a senior position in the ZNA. He was a career soldier and whilst he was not directly involved in crimes against humanity he was essentially in a position to enable them to be committed. He trained soldiers and was involved in logistics, including the distribution of ordnance. His complicity did not rest on his membership" of the ZNA. He submitted that the judge was entitled to take the view that the appellant's seniority gave him the undoubted knowledge of the ZNA's activities and he had not disassociated himself from that.43. Article of the Rome Statute, as the Supreme Court pointed out in JS is the point" in determining complicity and the scope of against humanity" for the purposes of Article We agree that the appropriate level of criminal responsibility" relevant to the appellant's complicity in against humanity" committed by the ZNA is set out in Article It was not disputed in the appeal before us that the ZNA was involved in against humanity" falling within Article as defined in Article of the Rome Statute. No issue, therefore, arises in relation to the requirement of Article that the ZNA was involved in acts, falling within Article of the Rome Statute, as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". The only issue concerned the appellant's involvement in the ZNA so as to make him complicit in those acts committed by others. Those are set out in detail in the Secretary of State's refusal letter and we do not, in the light of what we have said, need to say any more about that.44. Article provides that a person will be responsible" for inter alia, a against humanity" committed by another where he: In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or be made in the knowledge of the intention of the group to commit the crime..."45. The requisite mens rea is set out in Article of the Rome Statute which states that criminal responsibility arises if the material elements are committed with intent and knowledge".46. It is clear, on the basis of the Supreme Court's decision in JS, that this form of complicity reflects the law applicable in the UK and, in particular, Article of the Qualification Directive which states that exclusion from refugee status applies to who instigate or otherwise participate in the commission of the crimes or acts mentioned Article reflecting Article of the Refugee Convention]."47. In JS, the Supreme Court made clear that this form of complicity in international criminal law is wider than any recognised basis for joint enterprise criminal liability under domestic law" per Lord Brown).48. At paras of his judgment in JS, Lord Brown set out the approach to be followed in assessing this complicity in international criminal law: It must surely be correct to say, as was also said in that paragraph, that article disqualifies those who make substantial contribution to' the crime, knowing that their acts or omissions will facilitate it. It seems to me, moreover, that Mr Schilling, the UNHCR Representative, was similarly correct to say in his recent letter that article responsibility will attach to anyone control of the funds' of an organisation known to be to achieving its aims through such violent crimes', and anyone contributing to the commission of such crimes substantially assisting the organisation to continue to function effectively in pursuance of its aims'. This approach chimes precisely with that taken by the Ninth Circuit in McMullen para of Gurung cited above): encompasses those who provide gunmen etc] with the physical, logistical support that enable modern, terrorist groups to operate.' Of course, criminal responsibility would only attach to those with the necessary mens rea element). But, as article of the ICC Statute makes plain, if a person is aware that in the ordinary course of events a particular consequence will follow from his actions, he is taken to have acted with both knowledge and intent. would for this reason reject the respondent's criticism of the omission from paragraph of the German court's judgment of any separate reference to intent; that ingredient of criminal responsibility is already encompassed within the Court's existing formulation). Similarly, and I think consistently with this, the ICTY Chamber in Tadic defines mens rea in a way which recognises that, when the accused is participating in the sense of assisting in or contributing to) a common plan or purpose, not necessarily to commit any specific or identifiable crime but to further the organisation's aims by committing article crimes generally, no more need be established than that the accused had personal knowledge of such aims and intended to contribute to their commission. Returning to the judgment below with these considerations in mind, I have to say that paragraph does seem to me too narrowly drawn, appearing to confine article liability essentially to just the same sort of joint criminal enterprises as would result in convictions under domestic law. Certainly para is all too easily read as being directed to specific identifiable crimes rather than, as to my mind it should be, wider concepts of common design, such as the accomplishment of an organisation's purpose by whatever means are necessary including the commission of war crimes. Put simply, I would hold an accused disqualified under article 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."49. We were also referred to the CJEU decision in B D. As the Upper Tribunal pointed out in MT aiding and abetting) Zimbabwe UKUT at there are significant differences" between before a decision excluding the person from refugee status pursuant to Article or of Directive can be adopted."52. Then at para the Court again emphasised the need for assessment on a case-by-case basis of the specific facts" in determining whether responsibility for carrying out falling within the exclusion provisions] can be attributed to the person concerned".53. The relevant factors but in no particular order) in determining complicity were set out by Lord Brown in JS with the approval of the other Justices: the nature and of some importance) the size of the organisation and particularly that part of it with which the asylum-seeker was himself most directly concerned, whether and, if so, by whom the organisation was proscribed, how the asylum-seeker came to be recruited, the length of time he remained in the organisation and what, if any, opportunities he had to leave it, his position, rank, standing and influence in the organisation, his knowledge of the organisation's war crimes activities, and his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes."54. The appellant's part appears to be exactly that identified by Lord Brown in JS at as assisting the organisation to continue to function effectively in pursuance of its aims" or, in the words of the US Ninth Circuit in McMullen v INS F2d who the trigger'] with the physical, logistical support that enables modern, terrorist groups to operate."55. The appellant was a career soldier in the ZNA and was a high ranking, officer, namely a Major the relevant time) who trained soldiers and provided logistical and administrative support to the ZNA. He was in the ZNA between
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Citation Codes
Equivalent Citations
citation codes
Judges
  • MR C M G OCKELTON, VICE PRESIDENT UPPER TRIBUNAL JUDGE GRUBB before his retirement on December He was posted in Gweru with Brigade" from September until He acted as an Aide-de-Camp to Air Marshall Shira and subsequently General Chiwenga. In the appellant was transferred to Harare army headquarters and appointed a Lieutenant. He was not involved in combat but was concerned first with logistics and then involved in administration. In he became a Captain in procurement. He was subsequently promoted to Major. In the appellant was posted as Staff Officer in administration to Bulawayo at the Llewellyn Barracks. As a result of permitting Bishop Pious Ncube, an outspoken anti- government figure, to speak at the barracks, the appellant was subject to investigation and, he claims, harassment by the government. In December the appellant's daughter left Zimbabwe because, she claimed, she had been sexually assaulted during an interrogation following her attendance at an MDC rally. The appellant's daughter came to the UK. Her subsequent claim for asylum was refused by the Secretary of State and her appeal was dismissed by the Asylum and Immigration Tribunal in February The appellant's daughter was subsequently granted indefinite leave to remain in the UK in June In the appellant was transferred back to Brigade" based at Kwe Kwe. The appellant claims that he continued to suffer harassment and was suspected of being a British spy. He claims that he suffered from stress and in October he submitted notice to retire from the ZNA. He retired on January Following his retirement, the appellant claims that he formed and chaired a retired officers' organisation in February/March which was concerned with pension rights of former officers. This was in association with General Paul Gundu. The appellant says that this group was considered anti-government and on June in circumstances of considerable suspicion, Gundu was killed. In September the appellant claims that he was interrogated in relation to his association with Gundu. At this point, the appellant claims that he decided to leave Zimbabwe for Australia but, as a result of direct intervention of Morgan Tsvangarai, he did not leave. Instead, he became Chief Election Officer for the Mavambo Party on its split from the MDC. That party supported the candidature of its leader, Simba Makoni in the Presidential elections. The appellant claims that he was one of Makoni's hand men". After the first round of the Presidential election held on March did not produce a winner, a run-off election was scheduled for June During that time, the appellant claims that he became a target of the government and he and his wife moved to a safe house. The appellant claims that he was involved in briefing a delegation from South Africa consisting of senior retired South African army officers. That took place, the appellant claims, on May he also claims that following that meeting he produced a report concerning the infliction of violence by the Zimbabwe government. He claims that one of the South African officers subsequently warned him that the report had been shown to President Mugabe. The appellant also claims that on the weekend of June he met with a CIO officer who asked the appellant to arrange for Mavambo to back Mugabe in the run-off election later that month. The appellant says that at that time, the Secretary General of the MDC, Tendai Biti had been arrested as a result of a particular document being found, and was charged with treason. As a result, the appellant claims that he began to be afraid that he was at risk from the government. The appellant told the CIO officer that he would advise Makoni as requested so that the CIO officer would go. However, on June, Makoni in fact decided to support Morgan Tsvangarai. That was early in the week when the run-off election was scheduled for Friday June. The appellant says that, at that point, he knew he had to leave Zimbabwe. He had applied for visas to the UK addition to having a student visa to Australia) and he came to the UK with his wife and two younger children the day before the run-off election.The Proceedings The appellant's claim for asylum was based upon his fear of the Zimbabwe regime as a result of his involvement with the opposition party Mavambo and in particular his close association claimed with the prominent opposition politician Makoni; his involvement with the retired officers' organisation concerned with pension issues of former ZNA officers; and his involvement with the South African delegation and the subsequent report which was critical of the Zimbabwe government and its use of violence.10. the First-tier Tribunal, the appellant also relied upon his sur place activities in the UK.11. The Secretary of State rejected the appellant's claim for asylum. First, on the basis of the appellant's involvement in the ZNA on a number of other bases which are now no longer relevant) the Secretary of State concluded that the appellant had been complicit in crimes against humanity committed by the ZNA during the time he had served in the ZNA. Therefore, the Secretary of State concluded that the appellant was excluded from protection under the Refugee Convention by virtue of Article of that Convention. The Secretary of State issued a certificate under s.55 of the Immigration, Asylum and Nationality Act In addition, both in relation to the appellant's asylum and humanitarian protection claim and also in respect of his claim under Article of the ECHR, the Secretary of State found the appellant's claim to be at risk on return to Zimbabwe not to be credible and concluded that the appellant would be of no interest to the authorities on return to Zimbabwe and would not, as a consequence, be at risk.13. On appeal, the First-tier Tribunal agreed with the Secretary of State's certification under s.55(1) of the Act and dismissed the appellant's asylum appeal. The judge was satisfied that there were serious reasons for considering that the appellant had been complicit in crimes against humanity and that therefore he was excluded from the protection of the Refugee Convention by virtue of Article of the Convention.14. Further, the judge found that, in any event, the appellant's account was not truthful. He rejected the appellant's claim based upon his association with Makoni, his involvement with the retired officers' association and as a result of his claimed involvement with the delegation of South African officers to Zimbabwe. Further, judge concluded that the appellant would not be at risk as a result of any sur place activities in the UK.15. The appellant sought permission to appeal on the basis that the judge had erred in law in reaching his adverse credibility finding and also in finding that Article of the Refugee Convention applied. In granting permission to appeal, Upper Tribunal Judge Jordan his decision dated August stated that it was arguable that the judge had erred in his application of Article but expressed no view on the merits of the grounds relating to the judge's adverse credibility finding.16. us, Mr Bryce, who represented the appellant, expanded upon the grounds of appeal challenging: the judge's adverse credibility finding; and the application of Article to the appellant.Credibility 17. In relation to credibility, Mr Bryce focused upon the judge's assessment of the evidence relating to the appellant's claimed political activities since retiring from the ZNA on January He did not seek to challenge the judge's finding in relation to the appellant's sur place activities. In relation to any risk to the appellant on return, Mr Bryce rested the appellant's case squarely upon his involvement with Makoni, the South African delegation and the retired officers' organisation.18. Mr Bryce's principal submission was that the judge had erred in his reasons at para of his determination for not accepting the appellant's evidence concerning his political involvement at the time of the Presidential election in In particular, Mr Bryce submitted that the judge had failed to give adequate reasons why he did not accept the documentary evidence relied upon which, Mr Bryce claimed, linked the appellant to Major Mbudzi and the launch of the Makoni Party and the link between before the judge. In the latter, she had unequivocally said that the appellant was by February in Australia. Even if Mr Bryce was correct that what had been said by the appellant's daughter in her interview was unclear, there were still two strands of evidence and the judge was entitled to prefer one over the other. In relation to the documents, Mr Matthews pointed out that the Zimbabwe Independent, although it referred to the appellant, did not place him in Zimbabwe. The internet article from the Zimbabwean appeared, Mr Matthews submitted, to contain information only derived from the appellant himself. Likewise, in relation to the Radio VOP extract, that did not say that the appellant was in Zimbabwe.22. As a second point, Mr Bryce relied upon the coincidence in detail of the appellant's account concerning the visit by the CIO officer a couple of weeks before the run-off to the Presidential election in June Mr Bryce submitted that the coincidence concerning the appellant's evidence and the background evidence concerning the arrest of Biti as a result of a document and being charged with treason was exact both as to date and to substance ... that it could only be the truth". Mr Bryce submitted that the judge had failed to have regard to that in reaching his adverse credibility finding.23. We begin by setting out para of the judge's determination which was the principal target of Mr Bryce's submissions. It is in the following terms: I find that in oral evidence the witnesses and appellant were unable to explain the discrepancies between before the judge. Although this statement is unsigned and undated, there she states, father is now in Australia". Faced with these two strands of evidence indeed they conflict), in our judgment the judge was entitled to take the view that the appellant's claim to be in Zimbabwe between before their names, reflecting their status. This document was prepared the appellant's account), if not by him personally, by his colleagues and there is no explanation as to why the appellant's status marked contrast to those of the South African officers) is not correctly stated.30. Further, it is the appellant's claim that he was a prominent political activist during the Presidential election campaign and leading up to the run-off in June Apart from the reference to him in the Zimbabwe Independent and the Radio VOP extract, Mr Bryce did not draw our attention to any document referring to the appellant's involvement in that campaign over the period February to June In particular, there was no evidence before the judge of the appellant's involvement in the weeks leading up to the run-off to the election in late June In that context it is difficult to see that the description of his role is anything less than a gross exaggeration.31. In relation to the claimed formation of the pensions organisation, the evidence was inconsistent on when it was formed, ranging between before February In addition, at the date of the hearing, the appellant's daughter still appeared unaware of her father's claimed high profile involvement in Zimbabwean politics. Her evidence out in her statements and oral evidence) related to his claimed involvement with the MDC which was not the basis of the appellant's claim for asylum.33. The evidence before the judge was also that the appellant had been able freely to leave Zimbabwe on his own passport, despite his claim that the CIO were interested in him. In particular, by the time he left Zimbabwe it was clear that he had been unable to persuade Makoni to support Mugabe because Makoni had by that time announced his support for Morgan Tsvangarai. Yet, he left using his own passport without any interest being shown in him at the airport.34. In relation to the point made by Mr Bryce in respect of the coincidence of the appellant's evidence and the background evidence concerning Biti's arrest, the judge made reference to this in para of his determination. The fact of the matter is, as we pointed out to Mr Bryce at the hearing, the circumstances of Biti's arrest were, and are, in the public domain. According to the Wikipedia article to which we were referred dated March the details of his arrest were contained in a news report dated June footnote of the Wikipedia article). The consistency of the appellant's account with the background evidence was not exclusively explicable on the basis, as Mr Bryce claimed, that the appellant must have been involved in order to know that detail because it was in the public domain. That evidence cannot, therefore, carry the force of persuasion as to the appellant's credibility that Mr Bryce sought to place upon it.35. In our judgment, the judge was entitled, given the two strands of evidence of the appellant's daughter, to reach the finding the reasons he gave in para that he did not accept the appellant's evidence that he was in Zimbabwe after February In any event, the judge was required to assess the documentary evidence, upon which Mr Bryce placed emphasis, in the light of all the evidence before him. We have set out above our view of the reliability of that evidence. There was also the circumstances in which the appellant left Zimbabwe despite his claim to CIO interest in him. It cannot be said, in our judgment, that the Judge's factual finding in respect of the appellant's credibility was not open to him for the reasons he gave.37. For these reasons, we have concluded that the judge's adverse credibility finding stands. Even if the judge misread the evidence of the appellant's daughter we do not consider that he did), on the evidence he was fully entitled to reach the findings that he did in the light of the documentary evidence and other evidence submitted in the appeal.38. The judge's finding stands and, in the light of Mr Bryce's acceptance of the only basis upon which he would be at risk to him on return, the appellant has failed to establish that there is a real risk of persecution or serious ill-treatment on return to Zimbabwe. The review of the evidence that we were bound to undertake in order to evaluate Mr Bryce's submissions led us to be more rather than less confident that the judge was correct in deciding that it did not disclose any real risk to the appellant. That is, in itself, enough for us to dismiss this appeal on all grounds. However, we go on to consider Mr Bryce's submission in relation to the judge's decision that the appellant is, even if at risk, excluded from protection of the Refugee Convention by virtue of Article of the Convention.Exclusion 39. In her refusal letter dated January the Secretary of State considered that the appellant had been involved in a number of activities with the ZNA and the War Veterans which amounted to crimes against humanity for the purposes of Article of the Convention. the judge, it became clear that the basis of the appellant's potential exclusion from the Refugee Convention had to be considered on a narrower basis. He had not, for example, been involved with the War Veterans. That was a misunderstanding about his claimed involvement with the entirely different organisation concerned with retired army officers and their pensions. Having referred to the Supreme Court's decision in JS Lanka) UKSC and, in particular, set out passages from the judgment of Lord Brown, the judge continued at paras as follows: Applying JS Lord Hope at para to the facts in the appellant's case I find that the really critical question is whether the evidence provides serious reasons for considering the appellant to have committed the actus reus of an international crime with the requisite mens rea. I find that the evidence does reach this standard. The evidence is that the appellant comes from a military family and joined and remained in the Zimbabwe military as a career soldier. When he was a member of Brigade he was in a very junior, administrative position and there is no evidence that he was involved in the execution or complicit in the crimes set out in the reasons for refusal as a member of Brigade. His posting to a Brigade under retraining as an Aide de Camp, is I find not sufficient in itself, if his army career had ended at this stage. His army career did not however end until January and has to be looked at in its totality. I find that there are grounds for finding that there are serious reasons for considering that the appellant has committed the actus reus of international crime with the requisite mens rea during his career with the ZNA. The appellant's career is eloquent of involvement in all the activities of the ZNA, including the international crimes and crimes against humanity. He was appointed full lieutenant in He was in Logistics and Administration until he became a Captain in Procurement in Although the period from to was one of relative peace in Zimbabwe, torture and ill-treatment was widespread. The appellant was appointed as a Staff Officer in January This year marks the beginning of a period of time when crimes against humanity were perpetrated by the ZNA. It was during this period of time that the appellant's personal and family history demonstrates that he was a favoured member of the elite in Zimbabwe. He rose to the rank of Major and then retired with the rank of Lieutenant Colonel on January It was also during this period of time, in particular in when the appellant was applying for and was granted retirement at a higher rank, that his daughter ... travelled to Zimbabwe in and returned to the United Kingdom and his wife travelled to the United Kingdom in when pregnant and returned to Zimbabwe in with a baby born in the United Kingdom. The appellant accepts that the family was wealthy with several houses and his wife had a business, a satellite TV shop and used to fly to Dubai to obtain stock. The appellant remains the owner of intact property in Zimbabwe, his complaint is that he has suffered an economic downturn because of hyperinflation in Zimbabwe. I am satisfied that in his evidence, including his evidence at the hearing the appellant has deliberately set out to sanitise his past. I do not accept that he has been innocent of complicity in the international crimes committed by the ZNA. I find that he has been a willing, active and successful member of ZNA and that this includes willing and active involvement in the ZNA activities, which contravene international law, activities which have been well documented and have drawn international condemnation. The fact that he has not admitted to personally wielding any weapon does not in my view undermine my finding that he has been complicit in the international crimes committed by the ZNA. The objective evidence set out in the reasons for refusal about the ZNA role as a perpetrator of international crimes and crimes against humanity has not been challenged. I find that the appellant retired as a high ranking officer in an organisation dedicated to perpetrating international crimes of violence against civilians in order to ensure the survival of a regime. The appellant did not distance himself from this organisation even after his retirement. I find that he has taken full advantage of his position as a member of the ZNA and therefore of the ruling regime, to secure for himself and his family advantages such as wealth, travel and property in a country where during this period, it has been well and consistently documented that for many people access to even the most basic of food items was dependent upon the ability to demonstrate loyalty to Zanu-PF. It is evidence that the appellant cannot have secured these advantages without being embedded in and a trusted member of the regime. I find that the ZNA and appellant have been actively and systematically involved in international crimes as reported by international organisations including Amnesty International including activities from which post date the Rome Statute. I find that on the basis of the appellant's own evidence and the available objective evidence, there are serious reasons for considering that the appellant has been complicit in the commission of crimes against humanity. As such I find that the grounds for exclusion under article have been made out. I uphold the certification of the claim under section of the Immigration and Nationality Act The appellant's exclusion from the protection of the Refugee Convention is I find, entirely appropriate."40. As is clear from this extract, in finding that the appellant had been complicit in crimes against humanity committed by the ZNA, the judge accepted that the appellant had not himself personally perpetrated such crimes and had not directly been involved with those who had done so in the ZNA. His complicity arose from his being a ranking officer" in the ZNA which, as the judge points out in para of his determination, involved the appellant in logistics and administration only.41. Mr Bryce submitted that the appellant had been only involved in training and logistics and administration and there was no evidence that those who had been trained were themselves involved in the commission of crimes against humanity. Mr Bryce accepted that the appellant provided administrative support but, if the judge were correct, his liability for against humanity committed by the ZNA amounted to no more than him being an officer in the national army". He accepted that the appellant's liability, if any, fell to be considered under Article of the Rome Statute governing the International Criminal Court. But, having regard to the appellant's actual contribution to the ZNA it was not established that he had been sufficiently involved to fall within Article and therefore to be complicit in crimes against humanity so as to be excluded by virtue of Article of the Refugee Convention. Mr Bryce referred us to the Court of Justice of the European Union's decision in Bundesrepublik Deutschland v B D EU ECJ and the Supreme Court's decision in JS.42. Mr Matthews acknowledged that the judge's reasoning might not spell out the individual assessment that JS required but, in his submission, all the required elements for exclusion were present. As regards Article Mr Matthews submitted that the appellant held a senior position in the ZNA. He was a career soldier and whilst he was not directly involved in crimes against humanity he was essentially in a position to enable them to be committed. He trained soldiers and was involved in logistics, including the distribution of ordnance. His complicity did not rest on his membership" of the ZNA. He submitted that the judge was entitled to take the view that the appellant's seniority gave him the undoubted knowledge of the ZNA's activities and he had not disassociated himself from that.43. Article of the Rome Statute, as the Supreme Court pointed out in JS is the point" in determining complicity and the scope of against humanity" for the purposes of Article We agree that the appropriate level of criminal responsibility" relevant to the appellant's complicity in against humanity" committed by the ZNA is set out in Article It was not disputed in the appeal before us that the ZNA was involved in against humanity" falling within Article as defined in Article of the Rome Statute. No issue, therefore, arises in relation to the requirement of Article that the ZNA was involved in acts, falling within Article of the Rome Statute, as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". The only issue concerned the appellant's involvement in the ZNA so as to make him complicit in those acts committed by others. Those are set out in detail in the Secretary of State's refusal letter and we do not, in the light of what we have said, need to say any more about that.44. Article provides that a person will be responsible" for inter alia, a against humanity" committed by another where he: In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or be made in the knowledge of the intention of the group to commit the crime..."45. The requisite mens rea is set out in Article of the Rome Statute which states that criminal responsibility arises if the material elements are committed with intent and knowledge".46. It is clear, on the basis of the Supreme Court's decision in JS, that this form of complicity reflects the law applicable in the UK and, in particular, Article of the Qualification Directive which states that exclusion from refugee status applies to who instigate or otherwise participate in the commission of the crimes or acts mentioned Article reflecting Article of the Refugee Convention]."47. In JS, the Supreme Court made clear that this form of complicity in international criminal law is wider than any recognised basis for joint enterprise criminal liability under domestic law" per Lord Brown).48. At paras of his judgment in JS, Lord Brown set out the approach to be followed in assessing this complicity in international criminal law: It must surely be correct to say, as was also said in that paragraph, that article disqualifies those who make substantial contribution to' the crime, knowing that their acts or omissions will facilitate it. It seems to me, moreover, that Mr Schilling, the UNHCR Representative, was similarly correct to say in his recent letter that article responsibility will attach to anyone control of the funds' of an organisation known to be to achieving its aims through such violent crimes', and anyone contributing to the commission of such crimes substantially assisting the organisation to continue to function effectively in pursuance of its aims'. This approach chimes precisely with that taken by the Ninth Circuit in McMullen para of Gurung cited above): encompasses those who provide gunmen etc] with the physical, logistical support that enable modern, terrorist groups to operate.' Of course, criminal responsibility would only attach to those with the necessary mens rea element). But, as article of the ICC Statute makes plain, if a person is aware that in the ordinary course of events a particular consequence will follow from his actions, he is taken to have acted with both knowledge and intent. would for this reason reject the respondent's criticism of the omission from paragraph of the German court's judgment of any separate reference to intent; that ingredient of criminal responsibility is already encompassed within the Court's existing formulation). Similarly, and I think consistently with this, the ICTY Chamber in Tadic defines mens rea in a way which recognises that, when the accused is participating in the sense of assisting in or contributing to) a common plan or purpose, not necessarily to commit any specific or identifiable crime but to further the organisation's aims by committing article crimes generally, no more need be established than that the accused had personal knowledge of such aims and intended to contribute to their commission. Returning to the judgment below with these considerations in mind, I have to say that paragraph does seem to me too narrowly drawn, appearing to confine article liability essentially to just the same sort of joint criminal enterprises as would result in convictions under domestic law. Certainly para is all too easily read as being directed to specific identifiable crimes rather than, as to my mind it should be, wider concepts of common design, such as the accomplishment of an organisation's purpose by whatever means are necessary including the commission of war crimes. Put simply, I would hold an accused disqualified under article 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."49. We were also referred to the CJEU decision in B D. As the Upper Tribunal pointed out in MT aiding and abetting) Zimbabwe UKUT at there are significant differences" between before a decision excluding the person from refugee status pursuant to Article or of Directive can be adopted."52. Then at para the Court again emphasised the need for assessment on a case-by-case basis of the specific facts" in determining whether responsibility for carrying out falling within the exclusion provisions] can be attributed to the person concerned".53. The relevant factors but in no particular order) in determining complicity were set out by Lord Brown in JS with the approval of the other Justices: the nature and of some importance) the size of the organisation and particularly that part of it with which the asylum-seeker was himself most directly concerned, whether and, if so, by whom the organisation was proscribed, how the asylum-seeker came to be recruited, the length of time he remained in the organisation and what, if any, opportunities he had to leave it, his position, rank, standing and influence in the organisation, his knowledge of the organisation's war crimes activities, and his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes."54. The appellant's part appears to be exactly that identified by Lord Brown in JS at as assisting the organisation to continue to function effectively in pursuance of its aims" or, in the words of the US Ninth Circuit in McMullen v INS F2d who the trigger'] with the physical, logistical support that enables modern, terrorist groups to operate."55. The appellant was a career soldier in the ZNA and was a high ranking, officer, namely a Major the relevant time) who trained soldiers and provided logistical and administrative support to the ZNA. He was in the ZNA between
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AA009512011 (unreported)

Smart Summary

Factual and Procedural Background

This appeal arises from a decision of the First-tier Tribunal dismissing the Appellant's appeal against the Secretary of State's decision dated 11 January 2011 to remove the Appellant to Zimbabwe under section 10 of the Immigration and Asylum Act 1999, following the refusal of asylum under paragraph 336 of the Immigration Rules.

The Appellant, a Zimbabwe national born in 1963, arrived in the United Kingdom in June 2008 and claimed asylum. He was a retired Lieutenant Colonel of the Zimbabwe National Army (ZNA), having served from 1983 until his retirement in 2005. The Appellant alleged political persecution due to his military career, involvement with a retired officers' organisation advocating pension rights, association with opposition political figures, and activities linked to a South African delegation critical of the Zimbabwe government.

The Appellant's daughter previously sought asylum in the UK but was refused, though she later obtained indefinite leave to remain. The Appellant claimed harassment and suspicion by the Zimbabwe government, particularly after his association with opposition politics and retired officers' advocacy. He left Zimbabwe shortly before the June 2008 presidential run-off election, arriving in the UK with his family.

The Secretary of State rejected the asylum claim on grounds that the Appellant was excluded from protection under Article 1F(a) of the Refugee Convention due to complicity in crimes against humanity committed by the ZNA. The First-tier Tribunal upheld this exclusion and dismissed the appeal, finding the Appellant's account not credible and rejecting his claims of risk upon return to Zimbabwe.

The Appellant was granted permission to appeal to the Upper Tribunal on grounds including alleged errors in the adverse credibility finding and the application of Article 1F(a) exclusion.

Legal Issues Presented

  1. Whether the First-tier Tribunal erred in its adverse credibility finding against the Appellant concerning his political activities and presence in Zimbabwe during the relevant period.
  2. Whether the Appellant is excluded from protection under Article 1F(a) of the Refugee Convention due to complicity in crimes against humanity committed by the Zimbabwe National Army.

Arguments of the Parties

Appellant's Arguments

  • The adverse credibility finding was flawed, particularly regarding the Appellant's involvement in political activities linked to the opposition and the timing of his presence in Zimbabwe versus Australia.
  • The documentary evidence relied upon, including media reports and internet sources, supported the Appellant's political involvement and was not adequately considered.
  • The coincidence between the Appellant's account and public information about political arrests substantiated his credibility.
  • The Appellant's role in the ZNA was limited to training, logistics, and administration, without evidence of direct involvement in crimes against humanity, thus excluding him from Article 1F(a) liability.
  • Reference was made to Article 25(3)(d) of the Rome Statute and relevant case law to argue that the Appellant's contribution was insufficient for exclusion.

Respondent's Arguments

  • The First-tier Tribunal was entitled to prefer the evidence of the Appellant's daughter, which contradicted the Appellant's account of his location during the relevant period.
  • The documentary evidence cited by the Appellant was either self-sourced or inconsistent and did not place the Appellant in Zimbabwe at the relevant times.
  • The Appellant held a senior position in the ZNA, with knowledge and involvement sufficient to constitute complicity in crimes against humanity under Article 1F(a).
  • The judge's application of the law on exclusion, including reliance on the Supreme Court decision in JS (Sri Lanka) and the Court of Justice of the European Union decision in Bundesrepublik Deutschland v B & D, was correct.
  • The Appellant's complicity was not mere membership but active and willing participation supporting the ZNA's criminal activities.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
JS (Sri Lanka) [2010] UKSC 15 Standard for exclusion under Article 1F(a) of the Refugee Convention; assessment of complicity and mens rea in crimes against humanity. The court applied JS to determine whether there were serious reasons for considering the Appellant complicit in international crimes, emphasizing the required mental element and the nature of contribution.
Bundesrepublik Deutschland v B & D [2010] EU ECJ (C-57/09) Clarification of individual responsibility and assessment of complicity for exclusion under the Qualification Directive. The court noted the alignment between JS and B & D, applying the principles that mere membership is insufficient and requiring a case-by-case assessment of the Appellant's role and knowledge.
McMullen v INS (1986) 788 F2d 591 (9th Circuit) Definition of complicity as providing physical or logistical support to groups committing crimes. The court referenced this to illustrate that substantial assistance enabling an organisation to function effectively in committing crimes can ground exclusion.

Court's Reasoning and Analysis

The court undertook a detailed review of the credibility findings, documentary evidence, and legal principles governing exclusion from refugee protection due to complicity in crimes against humanity. It upheld the First-tier Tribunal's adverse credibility finding, emphasizing that the Appellant's account of being in Zimbabwe during February to June 2008 was contradicted by two strands of evidence from his daughter and inconsistent documentary sources. The court found the documentary evidence to be unreliable or self-sourced and noted inconsistencies in the Appellant's narrative, such as discrepancies about travel routes and timing.

Regarding exclusion, the court applied the Supreme Court's decision in JS (Sri Lanka) and the CJEU's ruling in B & D to assess whether the Appellant's role in the ZNA amounted to complicity in crimes against humanity. It found that the Appellant, as a high-ranking officer involved in logistics, administration, and training, substantially assisted the ZNA's criminal activities with the requisite intent and knowledge. The court concluded that the Appellant's complicity was not mere membership but active and willing participation supporting the organisation's criminal purpose.

The court acknowledged that the First-tier Tribunal did not explicitly find the Appellant's contribution to be "substantial" in so many words but agreed that the evidence and the Appellant's rank and role justified the exclusion. It rejected the Appellant's argument that his involvement was insufficient under Article 25(3)(d) of the Rome Statute and found no error in the legal application of exclusion provisions.

Consequently, even if the Appellant had been credible, he would be excluded from refugee protection. The court also upheld the finding that the Appellant failed to demonstrate a real risk of persecution or serious ill-treatment on return to Zimbabwe under Article 3 of the European Convention on Human Rights.

Holding and Implications

The Upper Tribunal DISMISSED the appeal.

The decision of the First-tier Tribunal that the Appellant is excluded from the protection of the Refugee Convention by virtue of Article 1F(a) stands. Additionally, the dismissal of the appeal on all grounds, including under Article 3 of the ECHR due to failure to establish a real risk of persecution or serious ill-treatment upon return, is upheld.

The direct effect is the maintenance of the removal order against the Appellant. No new precedent was established beyond the application of existing legal principles concerning exclusion and credibility assessments in asylum appeals.

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AA009512011 (unreported)

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AA009512011 (unreported)
(Mar 22, 2012)