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Case No: QBCOF 1999/0845/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE SULLIVAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 28 January 2000
B e f o r e :
LORD JUSTICE SIMON BROWN
LORD JUSTICE WARD
and
LORD JUSTICE POTTER
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R
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v -
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SECRETARY
OF STATE FOR THE HOME DEPARTMENT
ex parte ALTUN
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Respondent
Appellant
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr R. Scannell and Miss J. Bond (instructed by Ms. F. Ripley of
Winstanley Burgess, Solicitors, of London EC1V 2TQ) for the Appellant
Mr D. Pannick QC and Miss L. Giovannetti (instructed by the Treasury
Solicitor) for the Respondent
Judgment
As Approved by the Court
Crown Copyright ©
Friday, 28 January 2000
JUDGMENT
LORD JUSTICE SIMON BROWN:
This is another in the line of cases concerned with the Secretary of State's
entitlement under s.2 of the Asylum and Immigration Act 1996 to treat certain
countries as safe third countries to which asylum seekers can be returned
without substantive consideration being given to their claims here. This is
done by the Secretary of State certifying that "in his opinion" (s.2(1)(a))
"the government of that country would not send [the asylum seeker] to another
country or territory otherwise than in accordance with the [Geneva]
Convention". (s.2(2)(c)) Other such cases in this court have been R v
Secretary of State for the Home Department ex parte Canbolat [1997] 1 WLR 1569, Iyadurai v Secretary of State for the Home Department [1998] Imm.
A.R. 470, Kerrouche v Secretary of State for the Home Department [1997] ImmAR 610, and, most recently and authoritatively, R v Secretary of State
for the Home Department ex parte Adan and Aitsegeur [1999] 3 WLR 1274.
The particular issue arising on the present appeal is whether the Secretary of
State is entitled to regard Germany as a country which complies with the
Convention in respect of a particular class of asylum seekers, namely
draft-evaders who conscientiously object to military service in their home
countries on the ground that this will require their participation in acts
contrary to basic rules of human conduct. Sullivan J, in an admirably
reasoned judgment given on 19 March 1999, held that he is. The appellant,
armed now with additional expert evidence about German law, contends the
contrary. Laws LJ, the author of the Court of Appeal's judgment in Adan
and Aitsegeur, on the same day that it was handed down (23 July 1999), gave
the present appellant leave to appeal in these terms:
"I think there may be considerable difficulties facing the appellant, but
permission should be granted so that the court can consider the case in the
light of its decision in Adan/Aitsegeur."
In Adan and Aitsegeur the court was concerned with France and Germany's
approach to the issue of non-state persecution and the Secretary of State's
certificates authorising the return of those applicants were struck down on the
ground that France and Germany's approach was radically different from that of
the courts of all other Member States of the European Union and was
inconsistent with the Convention's true (or international) interpretation.
The Court of Appeal "entertain [ed] no doubt but that," on the natural
construction of Article 1A(2), "persons who fear persecution by non-state
agents in circumstances where the state is not complicit in the persecution,
whether because it is unwilling or unable (including instances where no
effective state authority exists) to afford protection" are entitled to the
Convention's protection. For present purposes it is important to note that
there was no doubt what the German and French law was on the question and, as
the court held, no doubt that both failed to recognise as refugees one of "the
essential classes of person entitled to the Convention's protection". By
contrast, the first and main difficulty on the present appeal is to identify
just what the German law is.
Before turning to that question, let me first sketch in the particular
circumstances in which the present challenge arises although, as will readily
be appreciated, the issue raised is a general one with regard to all
draft-evaders or deserters whose claim to refugee status is based on a genuine
conscientious objection to military service on the grounds that this will
require their participation in acts contrary to basic rules of human
conduct.
This particular appellant is a Turkish Kurd who left Turkey in 1991 and
claimed asylum in Germany. That claim was refused and his appeal was
unsuccessful. Following further unsuccessful applications in Germany, the
appellant arrived in the U.K. and claimed asylum here, initially concealing the
fact that he had claimed and been refused asylum in Germany. He based his
claim on an objection to doing military service because of the likelihood of
his being sent to the south-east of Turkey where he might be required to kill
fellow Kurds. A subsequent letter from his solicitors stated that "he objects
to being part of an institution which is fighting against his people and
suppressing their rights and hopes". Although he has never asserted in terms
that military service in Turkey would involve him in acts contrary to basic
rules of human conduct, this contention is said to underlie his asylum claim
and for the purposes of this appeal I shall assume that this is indeed the case
he would seek to advance in Germany.
On 19 February 1998 Germany accepted responsibility for dealing with the
appellant's asylum claim under the Dublin Convention, and on 23 February 1998
the Secretary of State issued the s.2 certificate, followed, a week later, by
directions for the appellant's removal to Germany. This judicial review
challenge was launched almost immediately afterwards.
In these proceedings the Secretary of State accepts that an asylum seeker who,
after desertion or draft-evasion, in fact establishes a genuine conscientious
objection to military service on the ground that this would require his
participation in acts contrary to basic rules of human conduct would indeed be
entitled to refugee status under Article 1A(2) of the Convention. That
accords with the guidance contained in paragraph 171 of the UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status and with paragraph 10 of
the EU Joint Position adopted on 4 March 1996. Paragraph 171 of the Handbook
states:
"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
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
the other requirements of the definition, in itself be regarded as
persecution."
Paragraph 10 of the EU Joint Position states:
"... 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."
Article 1F disapplies the Convention in respect of those who commit a crime
against peace, a war crime, a crime against humanity, a serious non-political
crime, or acts contrary to the purposes or principles of the United Nations.
That analysis is consistent also with this court's approach in Adan v
Secretary of State for the Home Department [1997] 1 WLR 1107 at 1126 where
Hutchison LJ said (with the agreement of myself and Thorpe LJ as the other
members of the Court):
"In my view there can be no doubt that a person who on grounds of conscience
objects to participating in an internationally condemned conflict can
legitimately assert that the risk of prosecution for his actions amounts to a
risk of persecution. As Mr Pannick submitted, a person who objects to
fighting on the strength of such genuinely held views is impliedly expressing a
political view and the Convention provides protection. However, I cannot
accept that persons in the position of these applicants can claim to be in fear
of persecution after refusing for extraneous reasons to fight - can
seek, as Mr Pannick put it, to take opportunistic advantage of the nature of a
war which excited them not at all. I understand the basis of the applicants'
argument, which involves that they were doing the right thing for the wrong
reason and should, because it was the right thing, not be punished: so
punishment equals persecution. It seems to me, however, that it is impossible
sensibly to say that it is persecution on account of their political
opinions."
The central question raised by this challenge is whether German law similarly
recognises the entitlement of this class of asylum seeker to protection under
the Convention. When first the matter came before Sullivan J he adjourned it
"in order", as he put it, "that a definitive answer to Mr Scannell's second
proposition [that Germany does not recognise such asylum seekers as
refugees] could be obtained from the German authorities via the Third Country
Unit." Counsel agreed between themselves two questions to be put:
"1. Does a person who on grounds of conscientious objection to the
performance of military service which would require his participation in acts
which breach basic rules of human conduct fall to be recognised as a refugee
within the meaning of Article 1A(2) of the Refugee Convention by the German
authorities?
2. Does Germany recognise the possibility of the grants of refugee status where
performance military duties could have the effect of leading the person
concerned to participate in acts falling under the exclusion clauses in Article
1F as stated in paragraph 10 of the EU Joint Position of 4 March 1996?"
Those questions were put to Professor Dr. Kay Hailbronner (described by this
court in Iyadurai as "[a] distinguished lawyer who has been both legal
counsel for the Federal government in asylum and immigration law and a judge of
an Administrative Appeal Court and Director of the Centre for International and
European Law on Immigration and Asylum") who on 18 March 1999 replied as
follows:
"... the two questions you have raised have repeatedly been put forward
recently in cases concerning military service of Turkish nationals of Kurdish
ethnic origin but have never been explicitly decided upon since the courts in
all cases came to the conclusion that there is no evidence that Kurds were in
fact forced to participate in military action which may be contrary to the laws
of war or basic rules of human conduct.
The Federal Administrative Courts Jurisprudence generally would require that
punishment for draft evaders or any other sanction for non-compliance with
military orders is based upon one of the reasons mentioned in the Geneva
Convention (political conviction, race etc.) and has ´to be excessively
severe in order to qualify as persecution'.
A serious risk to be forced to participate in acts contrary to basic rules of
human conduct however would seem to qualify as persecution, regardless of the
excessiveness of punishment since it would expose a person to an intolerable
conflict with his conscience and expose him to the danger of criminal
punishment for participation in grave breaches of the Geneva Convention always
provided that the person is refusing on sincere reasons of conscience and that
there is objective evidence that there is in fact a concrete danger of
involvement in military acts contrary to public international law relating to
the laws of war or basic rules of human conduct.
For that reason I consider the statement of Judge Henkel to be absolutely
correct and a true reflection of the German administrative courts should they
ever be required to explicitly decide upon the issue of persecution in such
cases.
I should however mention that it is not sufficient to demonstrate that a
certain military order or any other sanction can be qualified as persecution.
The persecution in order to constitute political persecution must be political
in its very character which is to be determined by objective criteria rather
than by the mere subjective intention of the responsible authorities as
´political' which means that it must be related to one of the criteria
mentioned in Art 1A of the Convention. It would therefore not be sufficient
to point to the ´illegal character' of a conflict or military operations
in a war or warlike situation. In order to qualify as political the military
engagement would have to be considered as exclusion of a single person or a
group of persons from the rule of law on account of race, religion etc. Every
single person which would be forced to participate in such action and refusing
to do on reasons of conscience would therefore also be considered as an
opponent for the same reasons and therefore subject to persecution. This in
my opinion can be concluded from the judgments of appeal courts dealing with
the issue raised in your Fax"
Professor Hailbronner then turned to consider a number of such judgments and
continued:
"In all cases Turkish asylum seekers failed because they could not provide
sufficient evidence that they would in fact be exposed to the type of risks
they have put forward in support of their claim.
I conclude:
The first question would in my view have to be answered in the affirmative
provided that the reasons of conscience are sincere and that the risk involved
(participation in military acts contrary to basic rules of human conduct) is
connected with the political character of the military operation and
corresponding military orders to enforce the participation in such acts. I
would conclude such political character from the general character of the
military action at issue and their general purpose to suppress a political,
ethnic etc group.
The same answer would have to be given to the second question. Enforced
participation in acts falling under the exclusion clause in Art [1]F would
therefore qualify as persecution in the sense of the Geneva Convention in
accordance with No.10 of the EU Council's joint position of March 4, 1996."
The statement of Judge Henkel (a Judge of the German Federal Administrative
Court in Berlin) referred to in the fourth paragraph of that letter was one
made in a paper delivered at an international judicial conference in London in
December 1995 where he said:
"If a person can show, for example, that against his conscience he would have
been compelled to participate in a military action contrary to basic rules of
human conduct, in my view, the order to engage in such actions in itself would
amount to persecution. Consequently, prosecution and punishment for
draft-evasion or desertion committed in order to avoid being compelled to
participate in such actions also constitutes persecution irrespective of
whether or not it would be disproportionately severe."
In the Court below, Sullivan J set out that material and continued:
"It might have been thought that that concluded the position against the
applicant but Mr Scannell has submitted that upon analysis the position adopted
by the German authorities is an impermissible one under the Convention. He
has focused, in particular, on the qualifications to the affirmative answers
which are set out in Professor Hailbronner's letter. ... The various caveats
relied upon by Mr Scannell depend on a minute textual analysis of Professor
Hailbronner's letter. In my view such an analysis is not appropriate. I
bear in mind the observations of the Master of the Rolls at page 478B in
Iyadurai :
´... the Secretary of State is not required ´to become deeply
involved in a comparative analysis of the law of different signatories to the
Convention'.'"
Mr Scannell now returns to the fray with extensive further academic writings
on the subject: from Professor Dr Walter Kalin of the University of Bern and
Professor Guy Goodwin-Gill of Oxford on behalf of the appellant, and from
Professor Hailbronner who has expressed his views again in detailed terms upon
which each side seeks to rely. All this material we have admitted (without
objection from the respondent) as fresh evidence in the appeal.
I do not think it necessary or appropriate to set out these writings at
length. It is sufficient to illustrate the nature of this additional material
to quote first a passage from Professor Kalin's letter of 12 April 1999 and
then the final three paragraphs of Professor Hailbronner's seven page
commentary of 5 October 1999. I shall hope to be forgiven for not setting out
any part of Professor Goodwin-Gill's twenty-five page opinion; I have
certainly not overlooked it. First, Professor Kalin's conclusions:
"1. Prof. Hailbronner's letter contains a correct restatement of German law
and practice if read as presented above.
2. According to that law and practice an asylum-seeker of Kurdish ethnic
origin from Turkey who refuses to join the army because of fears to be obliged
to participate in military acts contrary to basic rules of human conduct such
as war crimes and crimes against humanity would only be recognised as refugee
and be granted asylum if he would be able to show:
a) That there is objective evidence of a concrete danger that he would
be forced to participate in such acts, a risk whose existence has been
consistently denied by German Courts up to now.
b) That his unwillingness to do military service is based on this risk and is
genuinely based on a belief that his conscience does not allow him to perform
such illicit acts.
c) That he would be coerced to commit the relevant acts because of his
race, religion or political opinion. In this regard, it would not be
sufficient to point to subjective motivations of relevant Turkish authorities
or to the political convictions of the applicant. Rather he would be required
to advance objective factors, in particular
evidence showing that only soldiers of Kurdish ethnic origin or such soldiers
with a particular political opinion are coerced to participate in war crimes
and crimes against humanity in order to punish them for their assumed
opposition against the Turkish state, and
evidence showing that Turkey is conducting military operations not with an aim
to safeguard its territory or to combat terrorist activities but with the
purpose of supressing or punishing the Kurdish population.
3. These standards - especially the last one - are very high and seem to be
unsurmountable in most cases. This is evidenced by the fact that, apparently,
conscientious objectors and deserters of Kurdish ethnic origin from Turkey have
never been able to be recognised as refugees and to get political asylum under
German law.
4. Thus, while in theory it is not excluded that conscientious objectors and
deserters of Kurdish ethnic origin from Turkey are granted asylum/refugee
status in Germany if they refuse to do military service because they fear to be
obliged to participate in military acts breaching basic rules of human conduct,
this seems to be almost impossible in practice. In this regard, it has to be
noted that the German requirements go far beyond the standards set by Article
1A(2) of the 1951 Convention on the Status of Refugees as applied by many
states."
Next, the conclusion of Professor Hailbronner's report of 5 October 1999:
"It follows, however, from the survey of the administrative jurisprudence that
predominantly punishment of Kurds for military desertion as such would not be
qualified as political persecution in the absence of any additional
requirement, that punishment is based upon one of the reasons mentioned in the
Geneva Convention in Art 1A. One of the reasons may be the political
conviction of a deserter or the ethnic origin. The unspecified general danger
to get involved in unlawful military action contrary to public international
law, however, is not considered as sufficient to show a danger of persecution
within the meaning of Art 1A of the Geneva Convention unless there were
concrete indications that the applicant is running a particular risk to become
involved in such illegal military action due to his ethnicity or his political
sympathy for the PKK.
I would conclude therefore that a person claiming asylum in Germany because he
objects to doing military service which would involve acts contrary to the
basic rules of human conduct, would have to establish that he was either
specifically selected for military service, or for the particular military
activity to which he objects for one of the reasons specified in the
Convention, or that his punishment or any other kind of persecution is based on
one of the reasons specified in the Convention, for example because Turkish
authorities assume political sympathy with the PKK or due to a diverging
political conviction. Under those circumstances a successful claim under the
Convention could as well be made if all males of a certain age-group had to
perform the same military service, provided, however, that punishment or any
other sanction is based on the reasons classified in the Geneva Convention.
To my knowledge there has been no Administrative Court judgment dealing
precisely with the issue of whether it would be sufficient simply to state
disagreement with the kind of military action considered as contrary to basic
rules of human conduct. I would conclude, however, that in such cases the
political motivation could probably be concluded from the political character
of the enforcement of military service contrary to public international law as
a demonstration of political opposition. I have, however, no proof that
higher courts will in fact adopt this interpretation."
I should perhaps finally note the Treasury Solicitor's letter of 5 October
1999 in which on behalf of the Secretary of State he seeks (and subsequently
obtains) Professor Hailbronner's confirmation that the following represents a
fair and correct summary of his advice:
"1. It is not sufficient for a claimant to establish that on his return he
would be called up for military service and that the authorities in his country
of origin are engaged in an internal dispute which has involved instances of
military operations which have been condemned as contrary to public
international law. He would have to show a real (´concrete') risk that
he personally would be required, against his will, to participate in actions
contrary to basic rules of human conduct. The German Courts have not, as a
matter of fact, found that Kurdish asylum claimants from Turkey have
demonstrated this.
2. If they did find this to be the case, they would have to be satisfied that
his refusal to participate was motivated by sincere reasons of conscience.
In such circumstances (namely actions contrary to the humanitarian rules of
war) there would be a presumption that the claimant was motivated by sincere
reasons.
3. The question of whether the circumstances amounted to ´political'
persecution (that is persecution for a Geneva Convention reason) would need
also to be considered. This could probably be derived by an analysis which
interpreted the refusal to participate in such acts as a demonstration of
political opposition, but the Courts have not yet had to decide this point.
4. However, the Courts have accepted that a refusal to perform military
service might (in the light of all the other circumstances of the case) be seen
as an indication of support for the PKK (e.g. the Administrative Court of
Stuttgart decision of 6 August 1996)."
Before us Mr Scannell subjected all the further academic writings (and not
merely those I have quoted) to the closest possible scrutiny with a view to
persuading us that Germany does not on proper analysis recognise the relevant
class of asylum seekers as refugees and that a German court would therefore
reach a different conclusion to that expressed by this court in Adan.
His central contention is that each time Professor Hailbronner answers the
critical question(s) in the affirmative as he does, he then sets out caveats or
qualifications in such a way as to demonstrate that in truth Germany does not
construe Article 1A(2) as extending to this class of asylum seeker. He
reminds us of the holdings in Adan and Aitsegeur that "the
identification of the essential classes of person entitled to the Convention's
protection remains, categorically, a matter of law", and that the notion of a
"range of possible interpretations" (an expression used in Kerrouche)
has no part to play in such a case (an "interpretation" case), being apt only
to a case concerning the application of the Convention (an "application"
case). This, he says, is an "interpretation" case.
Mr Pannick QC for the respondent submits first and principally that Professor
Hailbronner's advice on German law has been essentially clear and consistent
throughout and certainly that the Secretary of State, having taken pains to
investigate and clarify the position, is entitled to rely on his understanding
of that advice. Secondly he argues that, if and insofar as the applicant's
criticisms of the German approach are made good i.e. to the extent that the
German courts would indeed place additional requirements upon this class of
asylum seekers before recognising them as refugees, these qualifications are on
the margin: they do not go to the "international meaning" of the Convention or
indicate that Germany is not accepting its "core values". Rather they go to
the way in which Germany identifies whether in a given case there is indeed
persecution for a Convention reason. This, therefore, he submits, is at most
an "application" case and as such, on the authority of Adan and
Aitsegeur, involves a matter of fact to be reviewed only on Wednesbury
grounds - albeit, of course, subject to the need for "anxious scrutiny".
Canbolat, Iyadurai and Kerrouche were all categorised by
the court in Adan and Aitsegur as "application" cases, concerning as
they did respectively the extent of the risk in France that the system would
not operate as it usually does, the standard of proof applied by the German
courts to the establishment of an asylum claim, and the meaning given by France
to "political crime" for the purpose of Article 1F of the Convention. Other
illustrations of "application" cases were given by the court in Adan and
Aitsegeur:
"What may be regarded as persecution is likely to vary, to some extent at
least, from time to time and place to place. There may be dispute as to
whether a particular set of beliefs and practices constitute a "religion" for
the purposes of Article 1A(2). Here also there cannot be a rule which is
entirely set in stone. Even such disputes, though they touch Article 1A(2),
may be regarded as going to the application of the Convention."
It is time to state my conclusions. I can do so comparatively shortly.
Although one might have wished Professor Hailbronner's advice to have been
expressed rather more clearly and categorically (and, dare I say, more
succinctly), it does seem to me that its essential thrust throughout has been
as the Treasury Solicitor's letter most helpfully summarised it. Paragraphs 1
and 2 of that letter substantially mirror paragraphs 2(a) and (b) of Professor
Kalin's conclusions and, indeed, reflect similar requirements of English law -
note in particular the Court's refusal in Adan to allow asylum seekers
"to take opportunistic advantage of the nature of a war which excited them not
at all". Paragraph 3 of the letter contains the kernel of the Professor's
advice which is that "probably" the German courts would accept an asylum
seeker's "refusal to participate in such acts [acts contrary to basic rules of
human conduct] as a demonstration of political opposition" so that punishment
for such refusal would constitute not just persecution but, all-importantly,
persecution for a Convention reason - persecution on account of the asylum
seeker's political opinions, precisely the analysis accepted by this court in
Adan.
True it is that certain phrases in the first and second of the three
paragraphs quoted from Professor Hailbronner's report of 5 October 1999 tend
to cloud the clarity of that exposition. Yet in the final analysis I think
they can all be reconciled with it - and, indeed, it would be surprising were
it otherwise given the Professor's final unqualified assent to the Treasury
Solicitor's summary. Take, for example, the closing words of the first
paragraph: "... due to his ethnicity or his political sympathy for the PKK."
In the next paragraph those are put merely as two possible bases for a claim,
the other possibility being that of "a diverging political conviction." This
latter basis is reflected too in the proviso at the end of the paragraph:
"... that punishment or any other sanction is based on the reasons classified
in the Geneva Convention." Here, indeed, (as in an earlier, unquoted, section
of his report) Professor Hailbronner appears to be rejecting paragraph 2(c) of
Professor Kalin's conclusions. The final paragraph of Professor
Hailbronner's report, of course, states what the Secretary of State understands
to be his conclusion on the central issue with perfect clarity. The fact
that it is put in terms only of what the German courts would "probably" decide
is sufficient for the Secretary of State's purpose.
Even, therefore, were I to accept Mr Scannell's submission that this is
properly to be regarded as an "interpretation" case, I would conclude that the
Secretary of State is entitled to regard Germany as a country which correctly
identifies this group of asylum seekers as one of the "essential classes of
person entitled to the Convention's protection.".
This conclusion is sufficient to decide the appeal in favour of the Secretary
of State. I would, however, add that in my judgment Mr Pannick is correct
also in his second submission. Although I do not pretend to find "the
distinction of principle" between an "interpretation" case and an "application"
case an altogether easy one, and although I recognise that it will sometimes in
practice be difficult to draw, I would certainly put this case into the latter
category. Any qualification(s) which German law places in the present context
upon the bald position apparently adopted under English law I would regard as
going essentially to the question of what constitutes a Convention reason for
the persecution in question. That to my mind is not to reject one of the
Convention's core values; rather it is to recognise that these values apply
only in certain defined circumstances.
For all these reasons I would dismiss this appeal
LORD JUSTICE WARD:
I agree.
LORD JUSTICE POTTER:
I also agree.
Order: Appeal dismissed with costs not to be enforced against
the appellant without permission of the court. Permission to appeal to the
House of Lords refused. Stay of execution refused with liberty to
apply.
(Order does not form part of approved judgment).
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