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Judgments - Sepet (FC) and Another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)

HOUSE OF LORDS

SESSION 2002-03
[2003] UKHL 15
on appeal from:[2001] EWCA Civ 681

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)

ON

THURSDAY 20 MARCH 2003

The Appellate Committee comprised:

  Lord Bingham of Cornhill

  Lord Steyn

  Lord Hoffmann

  Lord Hutton

  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)

[2003] UKHL 15

LORD BINGHAM OF CORNHILL

My Lords,

    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: [2001] 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)

    "A person who is refused leave to enter the United Kingdom under the 1971 [Immigration] Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the [1951] Convention".

Paragraph 334 of the Immigration Rules (HC 395, 1994) expands the language of the subsection:

    "An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:

        (i) he is in the United Kingdom…..; and

        (ii) he is a refugee, as defined by the Convention and Protocol; and

        (iii) refusing his application would result in his being required to go … in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group."

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

    "on various occasions manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms".

For purposes of the Convention a refugee was defined by article 1A(2) to mean any person who

    "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country".

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:

    "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."

    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:

    Article 31

    General rule of interpretation

    1.  A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

    2.  The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

    (a)  any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

    (b)  any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

    3.  There shall be taken into account, together with the context:

    (a)  any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

    (b)  any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

    (c)  any relevant rules of international law applicable in the relations between the parties.

    4.  A special meaning shall be given to a term if it is established that the parties so intended.

    Article 32

    Supplementary means of interpretation

    Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

    (a)  leaves the meaning ambiguous or obscure; or

    (b)  leads to a result which is manifestly absurd or unreasonable."

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 [2001] 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 [1997] Imm AR 145, 152:

    "Unless it [the Convention] is seen as a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form, the Convention will eventually become an anachronism."

I would also endorse the observation of Laws LJ in R v Secretary of State for the Home Department, Ex p Adan [2001] 2 AC 477, 500:

    "It is clear that the signatory states intended that the Convention should afford continuing protection for refugees in the changing circumstances of the present and future world. In our view the Convention has to be regarded as a living instrument: just as, by the Strasbourg jurisprudence, the European Convention on Human Rights is so regarded."

    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 [1996] 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 [2001] 1 AC 489, 495:

    "In sum, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognized by the international community."

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:

    "By including in its operative provisions the requirement that a refugee fear persecution, the Convention limits its humanitarian scope and does not afford universal protection to asylum seekers. No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. And by incorporating the five Convention reasons the Convention plainly contemplates that there will even be persons fearing persecution who will not be able to gain asylum as refugees."

    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) [1993] FC 540; Ciric v Canada (Minister of Employment and Immigration) [1994] 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:

    "(i)  There exists a fundamental right, which is internationally recognised, to refuse to undertake military service on grounds of conscience.

    (ii)  Where an individual, motivated by genuine conscientious grounds, refuses to undertake such service and the state offers no civilian or non-combative alternative, the prospect of his prosecution and punishment for evading the draft would if carried into effect amount to persecution for a Convention reason within article 1A(2) (assuming, what is not in contention in these cases, that the nature of the punishment would be sufficiently severe to amount to potential persecution).

    (iii)  Proposition (ii) applies alike to cases of absolute and partial conscientious grounds; and the [applicants], on the proved or admitted facts, are refugees according to this reasoning."

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:

    "(ii)  Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors."

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:

    "Deserters and persons avoiding military service

    167.  In countries where military service is compulsory, failure to perform this duty is frequently punishable by law. Moreover, whether military service is compulsory or not, desertion is invariably considered a criminal offence. The penalties may vary from country to country, and are not normally regarded as persecution. Fear of prosecution and punishment for desertion or draft-evasion does not in itself constitute well-founded fear of persecution under the definition. Desertion or draft-evasion does not, on the other hand, exclude a person from being a refugee, and a person may be a refugee in addition to being a deserter or draft-evader.

    168.  A person is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons, within the meaning of the definition, to fear persecution.

    169.  A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it can be shown that he has well-founded fear of persecution on these grounds above and beyond the punishment for desertion.

    170.  There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.

    171.  Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.

    172.  Refusal to perform military service may also be based on religious convictions. If an applicant is able to show that his religious convictions are genuine, and that such convictions are not taken into account by the authorities of his country in requiring him to perform military service, he may be able to establish a claim to refugee status. Such a claim would, of course, be supported by any additional indications that the applicant or his family may have encountered difficulties due to their religious convictions.

    173.  The question as to whether objection to performing military service for reasons of conscience can give rise to a valid claim to refugee status should also be considered in the light of more recent developments in this field. An increasing number of states have introduced legislation or administrative regulations whereby persons who can invoke genuine reasons of conscience are exempted from military service, either entirely or subject to their performing alternative (i.e. civilian) service. The introduction of such legislation or administrative regulations has also been the subject of recommendations by international agencies. In the light of these developments, it would be open to contracting states, to grant refugee status to persons who object to performing military service for genuine reasons of conscience.

    174.  The genuineness of a person's political, religious or moral convictions, or of his reasons of conscience for objecting to performing military service, will of course need to be established by a thorough investigation of his personality and background. The fact that he may have manifested his views prior to being called to arms, or that he may already have encountered difficulties with the authorities because of his convictions, are relevant considerations. Whether he has been drafted into compulsory service or joined the army as a volunteer may also be indicative of the genuineness of his convictions."

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):

    "11.  Many individuals have claimed the right to refuse to perform military service (conscientious objection) on the basis that such right derives from their freedoms under article 18. In response to such claims, a growing number of states have in their laws exempted from compulsory military service citizens who genuinely hold religious or other beliefs that forbid the performance of military service and replaced it with alternative national service. The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief. When this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs; likewise, there shall be no discrimination against conscientious objectors because they have failed to perform military service. The Committee invites states parties to report on the conditions under which persons can be exempted from military service on the basis of their rights under article 18 and on the nature and length of alternative national service."

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.

 
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