The military service

Immigration law By Jane Coker, Coker Vis Partnership, LondonYasin Sepet & Erdem Bulbul v SSHD & UNHCR (Intervener) Court of Appeal, Lords Justice Waller, Laws and Jonathan Parker (C/2777 & C/2000/2794 11/5/2001)The Court of Appeal has now examined the issue of military service in detail.

Yasin Sepet and Erdem Bulbul appealed against the Immigration Appeal Tribunal's (IAT) finding that the prospect of punishment for the appellants' conscientious objection to military service was not sufficient for them to establish a well-founded fear of persecution.Both appellants were Kurds from Turkey and objected to military service on the ground that they would be forced to fight fellow Kurds.

The IAT distinguished between 'absolute' and 'partial' conscientious objectors, holding that partial objectors had to satisfy a three-stage test as follows:l the type of military service objected to and why;l whether the relevant armed services were engaged in a type of military action condemned by the international community; and, l whether an individual was likely to have to perform military service in such a way as to offend the basic rules of human conduct.The IAT found that neither appellant was an absolute conscientious objector, and that both failed on the subjective test of whether their beliefs would be infringed and on the objective test in relation to the nature of the military service they were likely to have to perform.

The appellants argued that: (i) there was a fundamental, internationally recognised, right to refuse to undertake military service on grounds of conscience; (ii) where an individual conscientiously objected to undertake such service, the prospect of prosecution and punishment for evading the draft amounted to persecution for a convention reason within article 1A(2) of the Geneva Convention 1951, assuming that the nature of the punishment was sufficiently severe to amount to potential persecution; and (iii) (ii) above applied to all cases of absolute and partial conscientious objectors.The appeal was dismissed.

The Court of Appeal found that there were two linked propositions that were relevant to this appeal:l The 1951 Refugee Convention looked to a common standard as to the sense to be attributed to 'persecution'; and,l only those categories of persecution that met the limiting tests of article 1A(2) of the convention qualify for the purpose of assessing asylum claims.

The court held that: There is no material to establish a presently extant legal rule or principle that vouchsafes a right of absolute conscientious objection such that, where it was not respected, a good case to refugee status under the convention may arise; No matter how clear the political basis for a partial objection might be, there was no more international underpinning to turn the objector's claim into a legal right than in the case of the absolute objector; The third issue was whether the asylum seekers faced persecution on a convention ground.

Given the conclusions above, it was a moot issue in this case.

However, if the law did contemplate in principle the grant of asylum to conscientious objectors, it would be a question of fact in every case whether the applicant was the subject of discrimination on account of his beliefs; (Per Lord Justice Waller) A genuine objector who faced prosecution for refusing to be drafted in a state that simply did not recognise conscientious objectors will have established a well-founded fear for a convention reason.

It was generally internationally recognised that conscientious objection was a core entitlement, particularly by those states that were members of the Council of Europe.

It was a breach of article 9(1) of the European Convention on Human Rights (ECHR) to force a person to take part in military action contrary to his beliefs.

Thus a conscientious objector who would be prosecuted for such a conscientious belief had a well-founded fear of persecution for a convention reason.

Different considerations applied to absolute and partial conscientious objectors.

In the case of the former, the assumption was that the person had an absolute objection to bearing arms from a genuine belief owing to his conscience.

A partial objector may be able to show a deep-seated conscientious objection but it takes more than mere disagreement with a policy that allows Kurds to fight Kurds to establish that position.This judgment means that many Turkish Kurds can expect to receive removal directions in the near future.

Practitioners will have to consider whether removal now would engage the ECHR and thus an application under the provisions of the Human Rights Act 1998 with a possible appeal under section 65 of the Immigration and Appeal Act 1999 if refused.Starred decisionsThe president of the IAT has in the past few months identified cases involving a general point of law or principle as 'starred determinations'.

Paragraph 99 of the Sepet and Bulbul judgment states that adjudicators should regard themselves as bound by such decisions and the IAT should follow an earlier starred decision unless it is clearly wrong.Aleksejs Zenovics CC-21490-2000 (01TH00631), 4 May 2001 a starred decision looked at the issue of certification under paragraph 9 of schedule 4 to the Immigration and Asylum Act 1999.

Mr Zenovics, an asylum seeker from Latvia, was refused asylum and his claim was certified under paragraph 9(4), schedule 4 to the 1999 Act.

This meant, if the adjudicator agreed with the certification, that Mr Zenovics would have no appeal to the IAT.

Mr Zenovics' human rights claim was not certified.

The adjudicator upheld the certificate.

A preliminary issue was raised before the IAT that the certificate did not 'bite' on the human rights claim and thus there was an appeal to the IAT on that element, even though the appellant was precluded from appealing the asylum element.

The IAT held that if an adjudicator agrees with the certificate, even if it was only the asylum claim that was certified, paragraph 9(2) precludes an appeal generally and not only in respect of a certified claim.

This is clearly unsatisfactory.

The IAT commented that 'in their view there had been a failure by parliament to properly scrutinise paragraph 9' and it was their 'clear view that, if a certificate is considered appropriate, and if there are claims under both conventions based on the same facts, both claims or neither should be certified......claims should be certified only if the secretary of state is sure that it is right to do so.

Any doubt should not be resolved in favour of not certifying.' It would be advisable for practitioners to look carefully at their certified cases and consider requesting a revocation of the certificate.