House of Lords
|Session 2002 - 03
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Sepet (FC) and Another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Sepet (FC) and another (FC) (Appellants)
Secretary of State for the Home Department (Respondent)
THURSDAY 20 MARCH 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Sepet (FC) and another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
LORD BINGHAM OF CORNHILL
1. The issue in this appeal is whether the applicants, both of them Turkish nationals of Kurdish origin, should have been granted asylum on the ground that they were refugees within the meaning of article 1A(2) of the 1951 Geneva Convention relating to the Status of Refugees and the 1967 Protocol to that Convention. The ground upon which asylum was claimed related to their liability, if returned to Turkey, to perform compulsory military service on pain of imprisonment if they refused. Their claims for asylum were rejected by the respondent Secretary of State, and challenges to his decisions were successively rejected by the Special Adjudicator (Mr J R L G Varcoe CMG), the Immigration Appeal Tribunal (Collins J and Mr P R Moulden) and the Court of Appeal (Waller, Laws and Jonathan Parker LJJ:  EWCA Civ 681). In argument before the House, as in the Court of Appeal, helpful submissions were made on behalf of the United Nations High Commissioner for Refugees.
2. By section 8(1) of the Asylum and Immigration Appeals Act 1993 (in force at the relevant time)
Paragraph 334 of the Immigration Rules (HC 395, 1994) expands the language of the subsection:
These last words reproduce some of the language of the Convention itself, made in 1951 in direct response to what was then very recent history. Thus the preamble to the Convention referred to the rights and freedoms recognised in the Universal Declaration of Human Rights approved in 1948 and recorded that the United Nations had
For purposes of the Convention a refugee was defined by article 1A(2) to mean any person who
In the very extensive discussion of this definition the five grounds specified have conveniently come to be known as "Convention reasons". Article 1 of the Convention also contains, at F, an important exclusion:
3. In any asylum case the facts are all-important and these cases are no exception. The first applicant, now aged 32, has not claimed to have a conscientious objection to bearing arms, serving his country or donning a uniform. His objections to military service stemmed from his political opposition to the policies of the then Turkish Government and from his wish not to be required to participate in actions, including atrocities, which he alleged to be perpetrated against his own people in the Kurdish areas of the country. The special adjudicator accepted that this applicant's reluctance to perform military service stemmed from his genuine political opinions, but found no reasonable likelihood that he would be required to engage in military action contrary to the basic rules of human conduct, even assuming that he was required to serve in a predominantly Kurdish area of Turkey. This applicant's wish to avoid military service was at least one of his reasons for leaving Turkey (which he did in 1990). He would still be regarded as liable for conscription on his return and might be charged with the offence of draft evasion, not having returned sooner. Any further refusal on his part would almost certainly lead to the preferment of charges against him.
4. The second applicant is now 25. He arrived in the United Kingdom in 1996. He later claimed that he would have received his call-up papers in August 1997 and become liable to call-up in about February 1998. He would be liable to be apprehended on his return to Turkey and to face a charge of draft evasion if he continued to refuse to serve. He has not claimed that he would refuse to wear uniform in all circumstances. His objection to performing military service related to his general antipathy towards the policy of the then Turkish Government to oppose self-determination for the Kurdish people. He also feared that he might be sent to the operational area and required to take part in military action, possibly involving atrocities and abuse of human rights, against his own people. The special adjudicator found that this applicant's objection was not one of moral conviction but, rather, stemmed from his political views. He found no reasonable likelihood that this applicant would be required to engage in, or be associated with, acts offending against the basic rules of human conduct.
5. Turkish law at present provides no non-combatant alternative to military service. Draft evaders are liable to a prison sentence of between 6 months and 3 years. On completion of the sentence the offender is required to undertake his military service. It is an agreed fact that those who refuse to perform military service in Turkey (including Kurds) are not subject to disproportionate or excessive punishment, in law or in fact, as a result of their refusal. Draft evaders are liable to prosecution and punishment irrespective of the reasons prompting their refusal.
6. The task of the House is to interpret the 1951 Convention and, having done so, apply it to the facts of the applicants' cases, between which it is unnecessary to distinguish. In interpreting the Convention the House must respect articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969:
It is plain that the Convention has a single autonomous meaning, to which effect should be given in and by all member states, regardless of where a decision falls to be made: R v Secretary of State for the Home Department Ex p Adan  2 AC 477. It is also, I think, plain that the Convention must be seen as a living instrument in the sense that while its meaning does not change over time its application will. I would agree with the observation of Sedley J in R v Immigration Appeal Tribunal, Ex p Shah  Imm AR 145, 152:
I would also endorse the observation of Laws LJ in R v Secretary of State for the Home Department, Ex p Adan  2 AC 477, 500:
7. To make good their claim to asylum as refugees it was necessary for the applicants to show, to the standard of reasonable likelihood or real risk, (1) that they feared, if they had remained in or were returned to Turkey, that they would be persecuted (2) for one or more of the Convention reasons, and (3) that such fear was well-founded. Although it is no doubt true, as stated in Sandralingham v Secretary of State for the Home Department; Ravichandran v Secretary of State for the Home Department  Imm AR 97, 109, that the Convention definition raises a single composite question, analysis requires consideration of the constituent elements of the definition. At the heart of the definition lies the concept of persecution. It is when a person, suffering or fearing persecution in country A, flees to country B that it becomes the duty of country B to afford him (by the grant of asylum) the protection denied him by or under the laws of country A. History provides many examples of racial, religious, national, social and political minorities (sometimes even majorities) which have without doubt suffered persecution. But it is a strong word. Its dictionary definitions (save in their emphasis on religious persecution) accord with popular usage: "the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it;" "A particular course or period of systematic infliction of punishment directed against the professors of a (religious) belief . . .": Oxford English Dictionary, 2nd ed, (1989). Valuable guidance is given by Professor Hathaway (The Law of Refugee Status (1991), p 112) in a passage relied on by Lord Hope of Craighead in Horvath v Secretary of State for the Home Department  1 AC 489, 495:
In this passage Professor Hathaway draws attention to a second requirement, no less important than that of showing persecution: the requirement to show, as a condition of entitlement to recognition as a refugee, that the persecution feared will (in reasonable likelihood) be for one or more of the five Convention reasons. As Dawson J pointed out in the High Court of Australia in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 247-248:
8. There is compelling support for the view that refugee status should be accorded to one who has refused to undertake compulsory military service on the grounds that such service would or might require him to commit atrocities or gross human rights abuses or participate in a conflict condemned by the international community, or where refusal to serve would earn grossly excessive or disproportionate punishment: see, for example, Zolfagharkhani v Canada (Minister of Employment and Immigration)  FC 540; Ciric v Canada (Minister of Employment and Immigration)  2 FC 65; Canas-Segovia v Immigration and Naturalization Service (1990) 902 F 2d 717; UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paras 169, 171. But the applicants cannot, on the facts as found, bring themselves within any of these categories. Nor have they been found to have a rooted objection to all military service of any kind, or an objection based on religious belief. Their unwillingness to serve is based on their strong and sincere opposition to the policy of the Turkish Government towards their own Kurdish community. There can be no doubt that the applicants' fear of the treatment which they will receive if they are returned to Turkey and maintain their refusal to serve is well-founded: it is the treatment described in paragraph 5 above. The crucial question is whether the treatment which the applicants reasonably fear is to be regarded, for purposes of the Convention, as persecution for one or more of the Convention reasons.
9. The core of the applicants' argument in the Court of Appeal was summarised by Laws LJ in paragraph 19 of his judgment in these terms:
This was the thrust of the applicants' case before the House also. The key is to be found in submission (i): for while discriminatory infringement of a recognised human right may not necessarily constitute persecution for Convention reasons, Mr Nicol QC for the applicants accepted that there could be no persecution for Convention reasons without discriminatory infringement of a recognised human right. So it is necessary to investigate whether the treatment which the applicants reasonably fear would infringe a recognised human right.
10. The leading international human rights instruments, literally interpreted, give little assistance to the applicants' argument. The Universal Declaration of Human Rights in 1948 prohibited slavery or servitude (article 4) and declared a right to freedom of thought, conscience and religion, including a right to manifest religion or belief publicly or privately (article 18), but it made no express reference to a right of conscientious objection. A very similar right to freedom of thought, conscience and religion is embodied in the European Convention on Human Rights (article 9) and in the International Covenant on Civil and Political Rights ("the ICCPR") (article 18). Each of these instruments also (in articles 4 and 8 respectively) outlaws slavery, servitude and forced or compulsory labour. But in article 8(3)(c) of the ICCPR it is expressly provided that "forced or compulsory labour" shall not include:
Despite minor differences of wording, article 4(3)(b) of the ECHR is to identical effect. At the time when these provisions were drafted and adopted, it was plainly contemplated that there could be states, parties to the respective conventions, which did not recognise a right of conscientious objection and did not provide a non-combatant alternative to compulsory military service. Articles 4(3)(b) and 8(3)(c) have not been amended by international agreement, and there has been no later convention recognising or defining or regulating a right of conscientious objection.
11. For reasons on which I have already touched, the reach of an international human rights convention is not forever determined by the intentions of those who originally framed it. Thus, like the Court of Appeal, the House was appropriately asked to consider a mass of material illustrating the movement of international opinion among those concerned with human rights and refugees in the period, now a very significant period, since the major relevant conventions were adopted. A large number of these materials were listed by Waller LJ in paragraph 194 of his judgment, and they were also considered at length by Laws LJ. From these materials it is plain that several respected human rights bodies have recommended and urged member states to recognise a right of conscientious objection to compulsory military service, to provide a non-combatant alternative to it and to consider the grant of asylum to genuine conscientious objectors. But resolutions and recommendations of this kind, however sympathetic one may be towards their motivation and purpose, cannot themselves establish a legal rule binding in international law. I shall accordingly confine my attention to five documents which seem to me most directly relevant in ascertaining the point which international opinion has now reached.
12. Mention must first be made of the UNHCR Handbook which, subject to minor editing, dates from 1979 and is recognised as an important source of guidance on matters to which it relates. It is necessary to quote paragraphs 167-174:
Some of these paragraphs may very readily be accepted. The paragraph most helpful to the applicants is paragraph 170. But this appears to be qualified by paragraph 171, which immediately follows and is much less helpful to the applicants. Less helpful also is paragraph 172, in its tentative suggestion that a person "may be able to establish a claim to refugee status". The same comment may be made of paragraph 173: "it would be open to contracting states to grant refugee status". Read as a whole, these paragraphs do not in my opinion provide the clear statement which the applicants need.
13. The applicants understandably placed reliance on General Comment No 22 of the United Nations Human Rights Committee (30 July 1993), which in paragraph 11 said (with reference to article 18 of the ICCPR):
This is perhaps the nearest one comes to a suggestion that a right of conscientious objection can be derived from article 18 of the ICCPR. But it is, again, a somewhat tentative suggestion ("believes that such a right can be derived"), and the Committee implicitly acknowledges that there are member states in which a right of conscientious objection is not recognised by law or practice. Thus while the thrust of the Committee's thinking is plain, one finds no clear assertion of binding principle.