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
LORD JUSTICE SIMON BROWN
LORD JUSTICE WARD
LORD JUSTICE POTTER
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|SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte ALTUN
(Transcript of the Handed Down Judgment of
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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
As Approved by the Court
Crown Copyright ©
Friday, 28 January 2000
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  1 WLR 1569, Iyadurai v Secretary of State for the Home Department  Imm. A.R. 470, Kerrouche v Secretary of State for the Home Department  ImmAR 610, and, most recently and authoritatively, R v Secretary of State for the Home Department ex parte Adan and Aitsegeur  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  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.
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 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:
LORD JUSTICE POTTER:
I also agree.