(back to preceding text)

    14. I turn next to the Joint Position adopted by the Council of the European Union on the harmonised application of the term "refugee" in article 1 of the 1951 Convention (4 March 1996). Paragraph 10 of this Joint Position was entitled "Conscientious objection, absence without leave and desertion" and reads:

"The fear of punishment for conscientious objection, absence without leave or desertion is investigated on an individual basis. It should in itself be insufficient to justify recognition of refugee status. The penalty must be assessed in particular in accordance with the principles set out in point 5.

In cases of absence without leave or desertion, the person concerned must be accorded refugee status if the conditions under which military duties are performed themselves constitute persecution.

Similarly, refugee status may be granted, in the light of all the other requirements of the definition, in cases of punishment of conscientious objection or deliberate absence without leave and desertion on grounds of conscience if the performance of his military duties were to have the effect of leading the person concerned to participate in acts falling under the exclusion clauses in article 1F of the Geneva Convention"

The reference to "point 5" appears to refer most specifically to sub-paragraph 5.1.2(b) which reads:

"Discriminatory punishment

Punishment or the threat thereof on the basis of a universally applicable criminal law provision will be discriminatory if persons who breach the law are punished but certain persons are subject to more severe punishment on account of characteristics likely to lead to the award of refugee status. The discriminatory element in the punishment imposed is essential. Persecution may be deemed to exist in the event of a disproportionate sentence, provided that there is a link with one of the grounds of persecution referred to in article 1A."

    15. I refer next to the Charter of Fundamental Rights of the European Union (2000/C 364/01) (18 December 2000), which includes article 10:

"Freedom of thought, conscience and religion.

"1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.

2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right."

While paragraph 1 is said to derive, as it plainly does, from article 9 of the ECHR, paragraph 2 is said to derive from national constitutional traditions. The applicants' difficulty is that national laws and national constitutional traditions may, or may not, recognise a right of conscientious objection; in any event, the Treaty of Nice expressly acknowledged that the status of the Charter of Fundamental Rights was a matter to be addressed thereafter.

    16. Lastly, in this context I would refer to a draft directive of the Council of the European Union (15068/02) (28 November 2002) on minimum standards for the qualification of third country nationals as refugees. Since the draft may be amended, and may never be adopted, it must be received with caution. But since it is seeking to harmonise member states' interpretation of the requirements of article 1A(2) of the 1951 Convention, and since (although provisional) it represents the most recent statement on this subject which the House has seen, it seems to me to deserve attention. Chapter III concerns the qualification for being a refugee and article 11 (entitled "Acts of persecution") provides:

"1.  Acts considered as persecution within the meaning of article 1A of the Geneva Convention must:

(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in sub-paragraph (a).

2. Acts of persecution, which can be qualified as such in accordance with paragraph 1, can inter alia take the form of:

. . .

(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in article 14, paragraph 2;"

Article 14 is entitled "Exclusion" and provides in paragraph 2:

"2.  A third country national . . . is excluded from being a refugee where there are serious reasons for considering that:

(a) he or she 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 or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;

(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and articles 1 and 2 of the Charter of the United Nations."

This statement plainly affords a narrower ground for claiming asylum than some of the statements quoted above. It may be thought too narrow and may no doubt be widened in the course of negotiation. But it makes it hard for the applicants to show that there is clear international recognition of the right for which they contend, at any rate as of now. This temporal limitation is important, since international opinion is dynamic and the House cannot do more than give effect to what it understands to be the current position.

    17. It is necessary to consider whether the applicants' contention finds compelling support in the decided cases. There are undoubtedly authorities on which they can properly rely, notably Canas-Segovia v Immigration and Naturalization Service (1990) 902 F 2d 717; Canas-Segovia v Immigration and Naturalization Service (1992) 970 F 2d 599 and Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814. But the first of these decisions is in my opinion open to the criticism made of it by Jonathan Parker LJ in paragraphs 147-150 of his judgment, and the second does not sit altogether comfortably with the decision of the majority of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Yusuf and Israelian [2001] HCA 30. They can scarcely be said to constitute a settled body of judicial opinion. Against them must be set a line of decisions of the European Commission on Human Rights which have, at least until recently, held the right asserted by the applicants to be excluded by article 4(3)(b) of the ECHR: Grandrath v Federal Republic of Germany Application No 2299/64, (1965) 8 YB 324 and (1967) 10 YB 626; X v Austria Application No 5591/72, (1973) 43 CD 161; A v Switzerland Application No 10640/83, (1984) 38 DR 219; Johansen v Norway Application No 10600/83, (1985) 44 DR 155; Autio v Finland Application No 17086/90, (1991) 72 DR 245; Heudens v Belgium Application No 24630/94, (unreported) 22 May 1995. The applicants drew support from the dissent of one Commission member in Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198, 224-226, a dissent which was repeated and elaborated, with a greater body of support, in the Report of the Commission adopted on 4 December 1998 in the case of Thlimmenos v Greece Application No 34369/97, (unreported), at pp 13-14, paras 3-4. This dissenting view was not however adopted by the court when the case came before it: (2000) 31 EHRR 411. Whether the imposition of sanctions on conscientious objectors to compulsory military service might, notwithstanding article 4(3)(b) of the ECHR, infringe the right to freedom of thought, conscience and religion guaranteed by article 9(1) was a point which the court expressly left open at pp 424-426, paras 43 and 53 of its judgment. I am in respectful agreement with the detailed analysis of this authority made by Jonathan Parker LJ in paragraphs 124-139 of his judgment. While, therefore, there are indications of changed thinking among a minority of members of the European Commission, there is as yet no authority to support the applicants' contention.

    18. It is not in my opinion necessary to explore the circumstances in which the practice of states may give rise to a right commanding international recognition, since the evidence before the House does not disclose a uniformity of practice. It is no doubt true that the dependence of modern warfare on sophisticated weaponry and technological skill has lessened the need for mass armies and so diminished the dependence of some states on conscription. Thus in Europe several states currently have no conscription, and of those that do the great majority recognise a right of conscientious objection. But figures based on a 1998 report by War Registers International show a somewhat different picture world-wide. Of 180 states surveyed, some form of conscription was found to exist in 95. In 52 of those 95 states the right of conscientious objection was found not to be recognised at all. In a further 7 of those 95 states there was no known provision governing a right of conscientious objection. In the remaining 36 states the right of conscientious objection appeared to be recognised to some extent. It could not, currently, be said that there is de facto observance of anything approaching a uniform rule.

    19. In the course of his judgment, in paragraphs 23-24, Laws LJ quoted the works of two respected authorities on refugee law, Professor Hathaway, The Law of Refugee Status, (1991) and Professor Goodwin-Gill, The Refugee in International Law, 2nd ed (1996). It is unnecessary to repeat his citations, also relied on before the House. It is however noteworthy that Professor Hathaway, at p 182, describes the right to conscientious objection as "an emerging part of international human rights law" and Professor Goodwin-Gill observes, at p 55, that "The international community nevertheless appears to be moving towards acceptance of a right of conscientious objection . . .". Both, in short, discern movement towards recognition of a right, but neither suggests it has yet been achieved. In a report prepared for the appeal of the first applicant, it is true, Professor Goodwin-Gill went a little further (see the judgment of Laws LJ, paragraph 25); but even then he suggests what states ought to do, and suggests that recognition of a right of conscientious objection ought to derive from the protection given to freedom of conscience by customary international law and universal human rights treaties. The problem, to my mind, is that the treaties have treated compulsory military service as an exception from the forced labour prohibition without making any other provision, and I do not think there is, as yet, a new consensus.

    20. On the main issue to which this opinion has so far been addressed, the Court of Appeal was divided. Of absolute conscientious objectors Laws LJ concluded, in paragraph 79:

"In the result, I would hold that there is no material to establish a presently extant legal rule or principle which vouchsafes a right of absolute conscientious objection, such that where it is not respected, a good case to refugee status under the Convention may arise. No such putative rule or principle is to be found in the Convention's international autonomous meaning or common standard."

Turning to partial conscientious objectors, in paragraph 84, he reached a similar conclusion:

"It is plain, however, that no matter how clear the political basis for a partial objection may be, there is in such a case no more of an international underpinning, by treaty or customary law, to quicken the objector's claim into a legal right than in the case of the absolute objector. In my judgment, therefore, such a claim is stillborn for all the reasons I have already given."

Jonathan Parker LJ, in paragraph 100, shared his view. Waller LJ took a view more favourable in principle to the applicants. Of absolute objectors he said, in paragraph 201:

"Thus if someone can show that he/she is a genuine conscientious objector, that he/she is to be conscripted into a military in a state that simply does not recognise the possibility of such conscientious belief, and that he/she will be prosecuted as a result, in my view he/she will have established a well founded fear of persecution for a Convention reason. That however does not dispose of the appeals before us."

His opinion, at paragraph 208, in the case of partial objectors was similar:

"In my view thus a partial objector may be able to show a deep-seated conscientious reason why he/she should not be conscripted by reference to the fact that he/she will be required to take part in a war against his/her own ethnic community, and may show an infringement of article 9(1), but it takes more than mere disagreement with a policy that allows Kurds to be conscripted to fight Kurds to establish that position."

Thus although there was agreement on the outcome, there was disagreement on the intervening steps. Despite my genuine respect for the care and thoroughness with which Waller LJ has put forward his conclusions, and with a measure of reluctance since they may well reflect the international consensus of tomorrow, I feel compelled to accept the view of the Court of Appeal majority on the state of the law today as revealed by the abundant materials before us. That conclusion is fatal to the success of these appeals, which I would accordingly dismiss.

    21. This conclusion makes it strictly unnecessary to determine a further issue raised by the respondent Secretary of State, but since the House heard full argument and the issue is one of great practical importance I think it desirable to express an opinion. It was argued that, in deciding whether an asylum applicant had been or would be persecuted for Convention reasons, "the examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution: Ward v Attorney General of Canada [1993] 2 SCR 689, 747." Support for this approach is found in Immigration and Naturalization Service v Elias-Zacarias (1992) 502 US 478, a decision very strongly criticised by Professor Hathaway ("The Causal Nexus in International Refugee Law" (2002) 23 Michigan Journal of International Law 207). The Court of Appeal unanimously rejected this argument (paragraphs 92, 154 and 182) and some of the authorities point towards a more objective approach: Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, 304, 313, paras 33 and 65; Refugee Appeal No 72635/01 of the New Zealand Refugee Status Appeals Authority, (unreported) 6 September 2002, paragraphs 167-173.

    22. I would express the test somewhat differently from the Court of Appeal in this case. In his judgment in Sivakumar v Secretary of State for the Home Department [2001] EWCA Civ 1196; [2002] INLR 310, 317, para 23, Dyson LJ stated:

"It is necessary for the person who is considering the claim for asylum to assess carefully the real reason for the persecution."

This seems to me to be a clear, simple and workmanlike test which gives effect to the 1951 Convention provided that it is understood that the reason is the reason which operates in the mind of the persecutor and not the reason which the victim believes to be the reason for the persecution, and that there may be more than one real reason. The application of the test calls for the exercise of an objective judgment. Decision-makers are not concerned (subject to a qualification mentioned below) to explore the motives or purposes of those who have committed or may commit acts of persecution, nor the belief of the victim as to those motives or purposes. Having made the best assessment possible of all the facts and circumstances, they must label or categorise the reason for the persecution. The qualification mentioned is that where the reason for the persecution is or may be the imputation by the persecutors of a particular belief or opinion (or, for that matter, the attribution of a racial origin or nationality or membership of a particular social group) one is concerned not with the correctness of the matter imputed or attributed but with the belief of the persecutor: the real reason for the persecution of a victim may be the persecutor's belief that he holds extreme political opinions or adheres to a particular faith even if in truth the victim does not hold those opinions or belong to that faith. I take this approach to reflect that put forward by McHugh J in Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 at paragraph 102:

"In this case, among the questions which the tribunal should have asked were (a) what harm does the applicant fear on his return to Somalia? (b) is that fear well-founded? (c) why will the applicant be subjected to that harm? and (d) if the answer to (c) is 'because of his membership of a particular social group', would the harm constitute persecution for the purpose of the Convention?"

Treatment is not persecutory if it is treatment meted out to all and is not discriminatory: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 258, per McHugh J. The question held to be appropriate in the field of racial discrimination in Qureshi v Victoria University of Manchester [2001] ICR 863 at 874, suitably adapted to the particular case, is in my view apt in this context also:

"Were racial grounds an effective cause of the difference in treatment?"

    23. However difficult the application of the test to the facts of particular cases, I do not think that the test to be applied should itself be problematical. The decision-maker will begin by considering the reason in the mind of the persecutor for inflicting the persecutory treatment. That reason would, in this case, be the applicants' refusal to serve in the army. But the decision-maker does not stop there. He asks if that is the real reason, or whether there is some other effective reason. The victims' belief that the treatment is inflicted because of their political opinions is beside the point unless the decision-maker concludes that the holding of such opinions was the, or a, real reason for the persecutory treatment. On the facts here, that would not be a tenable view, since it is clear that anyone refusing to serve would be treated in the same way, whatever his personal grounds for refusing.

LORD STEYN

My Lords,

    24. I have had the privilege of reading the opinion of Lord Bingham of Cornhill. I am in complete agreement with it. For the reasons he has given I would also dismiss the appeals.

My Lords,

    25. The applicants are Kurdish Turks who came to this country at the ages of 19 and 18 respectively. They were shortly to become liable under Turkish law to military service. On arrival in the United Kingdom they claimed asylum on various grounds, of which the only one now relied upon is a fear that if returned to Turkey they would be prosecuted for refusing to enlist. They claim that their refusal was on the ground of their deeply held political objections to the policies of the then Turkish government towards the Kurdish minority. This, they say, was sufficient to entitle them to asylum because punishment for refusing military service on such grounds would be persecution for reasons of their political opinions within the meaning of the Convention relating to the Status of Refugees ("the Refugee Convention").

    26. I emphasise that the case is put simply on the basis that they would be liable to punishment for refusing to perform military service. This is because of two important findings of fact by the special adjudicator which are now not challenged and which form part of the agreed statement of facts. The first is that the penalty for draft evasion (a prison sentence of 6 months to 3 years) is not disproportionate or excessive. The second is that there is no reasonable likelihood that the applicants would have been required to engage in military action contrary to basic rules of human conduct, whether against Kurds or anyone else.

    27. The Secretary of State says that in these circumstances there is nothing wrong or unusual in Turkey having compulsory military service and suitable penalties for disobedience. If the applicants refuse to serve, the state is entitled to punish them, not for their political opinions but for failing to enlist. Their political opinions may be the reason why they refuse to serve but they are not the reason why they will be punished. They are free to hold whatever opinions they please about Turkish policy towards the Kurds as long as they report for duty. Putting the same point in a different way, imposing a punishment for failing to comply with a universal obligation of this kind is not persecution.

    28. Mr Nicol QC, who appeared for the applicants, says that it is not so simple. Treating some group of people in the same way as everyone else may be persecuting them if their group has a right to be treated differently. For example, in Thlimmenos v Greece (2000) 31 EHRR 411 the appellant was refused appointment as a chartered accountant pursuant to a general law which disqualified anyone who had been convicted of felony. The applicant's felony had been a refusal to do military service on the ground of his religious convictions as a Jehovah's Witness. The European Court of Human Rights held, at p 424, that the disqualification infringed the anti-discrimination provisions of article 14 of the European Convention on Human Rights ("ECHR") because it failed to treat his felony, committed because of his religious principles, differently from ordinary felonies:

"The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different."

    29. The right guaranteed under the Convention in respect of which there had been discrimination was the freedom of religion guaranteed by article 9. The court found that failure to treat the applicant differently had no objective justification. The conviction had no relevance to his suitability as an accountant and he had already been punished by a prison sentence for his refusal to do military service.

    Thlimmenos's case therefore supports the proposition that, at any rate for the purposes of article 14, a law of general application may have a discriminatory effect if it contains no exceptions for people who have a right to be treated differently. But I note in passing that the court, while holding that Thlimmenos had a right to be treated differently in respect of qualification as an accountant, expressed no view on the point which arises in this case, namely whether he would have had a right to be treated differently in respect of his obligation to perform military service. That would have required an altogether different assessment of objective justification.

    31. I shall consider later whether this principle of discrimination by failing to treat different cases differently can be fitted into the language of the Refugee Convention. Accepting for the moment that it can, I pass on to the next stage in Mr Nicol's argument, which is to show that it applies to laws imposing a general obligation to do military service. The question here is whether people who object to such service on conscientious religious or political grounds have a human right to be excused.

    32. Mr Nicol accepts that ordinarily a conscientious religious or political objection is not a reason for being entitled to treat oneself as absolved from the laws of the state. In many Western countries, including the United Kingdom, civil disobedience is an honourable tradition which goes back to Antigone. It may be vindicated by history - think of the suffragettes - but often what makes it honourable and demonstrates the strength of conviction is willingness to accept the punishment. (That is not to agree with Socrates that it would necessarily be dishonourable to try to avoid punishment). The standard moral position is summarised by Ronald Dworkin in Taking Rights Seriously (1977), at pp 186-187:

"In a democracy, or at least a democracy that in principle respects individual rights, each citizen has a general moral duty to obey all the laws, even though he would like some of them changed. He owes that duty to his fellow citizens, who obey laws that they do not like, to his benefit. But this general duty cannot be an absolute duty, because even a society that is in principle just may produce unjust laws and policies, and a man has duties other than his duties to the state. A man must honour his duties to his God and to his conscience, and if these conflict with his duty to the state, then he is entitled, in the end, to do what he judges to be right. If he decides that he must break the law, however, then he must submit to the judgment and punishment that the state imposes, in recognition of the fact that his duty to his fellow citizens was overwhelmed but not extinguished by his religious or moral obligations."

    33. This suggests that while the demonstrator or objector cannot be morally condemned, and may indeed be praised, for following the dictates of his conscience, it is not necessarily unjust for the state to punish him in the same way as any other person who breaks the law. It will of course be different if the law itself is unjust. The injustice of the law will carry over into its enforcement. But if the law is not otherwise unjust, as conscription is accepted in principle to be, then it does not follow that because his objection is conscientious, the state is not entitled to punish him. He has his reasons and the state, in the interests of its citizens generally, has different reasons. Both might be right.

    34. That is certainly the view we would take of someone who, for example, refused to pay part of his taxes because he felt he could not conscientiously contribute to military expenditure, or insisted on chaining herself to a JCB because she thought it was morally offensive to destroy beautiful countryside to build a new motorway. As judges we would respect their views but might feel it necessary to punish them all the same. Whether we did so or not would be largely a pragmatic question. We would take into account their moral views but would not accept an unqualified moral duty to give way to them. On the contrary we might feel that although we sympathised and even shared the same opinions, we had to give greater weight to the need to enforce the law. In deciding whether or not to impose punishment, the most important consideration would be whether it would do more harm than good. This means that the objector has no right not to be punished. It is a matter for the state (including the judges) to decide on utilitarian grounds whether to do so or not. As Ronald Dworkin said in A Matter of Principle (1985), at p 114: "Utilitarianism may be a poor general theory of justice, but it states an excellent necessary condition for a just punishment."