IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM APPEAL TRIBUNALS
B e f o r e :
LORD JUSTICE LAWS
LADY JUSTICE ARDEN
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent|
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MISS J RICHARDS (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
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"The appellant came to the United Kingdom in November 2000 and requested asylum immediately. He was interviewed the next day and set out the basis of his claim. He said that he personally had never had any particular problem in Syria even though he was a member of the Ba'ath Party, but said he had been unhappy about being required to serve in the army for a third time. He did military service for two and a half years from 1992. He was then called up again for 6 months in 1996, but on 25 September 2000, an army representative came to his home and made a further request that he report to the local military service office. There the appellant complained but this further request to serve in the army, but became involved in a dispute with the officer who was interviewing him, in which the appellant insulted this man and the country. He later learned that intelligence people were looking for him at his home, went into hiding and made arrangements to leave the country because he was viewed as someone who had insulted the President, the government and the country. He said he had not been called up. He thought if he returned to Syria he would be imprisoned for at least 10 years without trial."
"With regard to the appellant's credibility, he had consistently said that he was required to do a third period of army service and objected to this. In particular because it would interrupt his work in his business. I accept this evidence about the requirement to do further military service. His objection to it, his dispute with an army officer, and the fact that inquiries were subsequently made about his whereabouts by military personnel."
However, the Adjudicator did not accept certain further claims made by the appellant, not least that his conduct meant that he had fallen foul of the Ba'th Party in Syria. The IAT, for its part, was later to say:
"6. We consider the Adjudicator's findings were adequately reasoned and perfectly sustainable. On the appellant's own account at interview he had no history of political or religious opposition to the Ba'th Party regime. When he raised his objections to doing a third period of military service with the authorities in Syria, he did so in terms of its disruption to his dentistry practice and with his family.
"7. Given that it was not until the stage of commenting on the refusal letter that the appellant had made mention of any conscientious objection grounds, the Adjudicator was, in our view, fully justified in rejecting as an embellishment his claim to have been considered by his superior military officer as disloyal to the government . . .
"It seems to us that, if the Syrian regime was actually requiring persons who had already served military service twice to do further military service, they would be well used to having to deal with disgruntled reservists. In the absence of credible evidence of a serious dispute, it would be naive to think a superior military officer would attribute to someone who had loyally served two previous stints of military service disloyalty to the government.
"8. As regards to the appellant's claim that the authorities would view him as someone who may have revealed military secrets, again we consider that the Adjudicator was fully entitled to reject this on the grounds that the appellant made no mention of this until the oral hearing."
"10. Mr Soorjoo further asked the Tribunal if we were not minded to accept that the appellant had shown any real risk of serious harm personal to him, to conclude he would nevertheless face persecution or treatment contrary to Article 3 as a failed asylum seeker who would be liable to prosecution as a draft evader and as someone who had made an unauthorised departure. However, even were we prepared to accept that he would face punishment for both these reasons, we do not consider that the objective country materials establish that as such a person, he would face a real risk of either persecution or ill-treatment. It is true these materials do demonstrate that specific categories of persons, including political opponents, face such a real risk, but not that ordinary returnee draft evaders face such a real risk. Indeed, the very passages from the background materials cited in the grounds of appeal emphasise again and again that it is persons who are opponents or suspected opponents of the regime who are routinely tortured or who experience oppressive imprisonment. The US State Department Report dealing with Syria for the year 2000 records that while prison conditions are generally poor and substandard, the worst conditions are to be found in the prisons where political or national security prisoners are kept. In the absence of evidence to show that for those detained in the ordinary course of events as punishment for draft evasion and unauthorised departure, there is a consistent pattern of gross and systematic violation of fundamental human rights, we are not prepared to conclude that there would be a real risk of persecution or treatment contrary to the appellant's rights under the ECHR (in this regard we follow the approach taken recently by the Tribunal in Muzafar Iqbal  UKIAT 02239).
"11. On the evidence in this case we consider the Adjudicator was correct to find that there was insufficient evidence to show that such persons would be dealt with in an excessive or disproportionate way."
"58. The 'gross and systematic' standard is not chosen arbitrarily. It has been in use as a minimum international standard by the UN ever since the introduction in 1967 of Resolution 1235 authorising the Commission on Human Rights to 'examine information relevant to gross violations of human rights' and to 'make a thorough study of situations which reveal a consistent pattern of violations of human rights'. Article 3 of the 1984 UN Convention Against Torture which prohibits return of a person to another State which there are substantial grounds for believing that he would be in danger of being subjected to torture enjoins at paragraph 2:
"'For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights'.
"59. Whilst not even under Article 3 of the Torture Convention has this standard been used on its own to establish risk of torture in the context of refoulement, the case law of the Committee Against Torture on Article 3 does confirm that, in the absence of personal risk, it is difficult for a person to show a breach of Article 3 unless the level of abuse of human rights in the country of return is at least as serious as that of 'a consistent pattern of gross, flagrant or mass violations of human rights'; indeed even the existence of such a pattern may not be enough: see Kisoki v Sweden, Comm No.41/1996 [reference to its report is given]. Where, however, one has a situation in which it is accepted that a claimant would face prosecution and pre-trial detention, it would seem sufficient for him to establish a consistent pattern of gross, flagrant or mass occurrences of ill-treatment in detention."
"In cases which rest not on a personal risk of harm (for example, where the police or prison staff would have cause to target a claimant) but on a risk of serious harm said to face people generally, for example in this case all persons detained pending trial, it cannot be said that they would face a real risk of serious harm unless in that country there is a consistent pattern of gross and systematic violations of their human rights whilst in detention."
This seems to me to reflect no more nor no less than the reality of the situation. The fact that ill-treatment or misconduct might be routine or frequent would not be enough. I should add that, in my view, the fact that the gross and systematic test historically has its genesis in Article 3(2) of the United Nations Convention Against Torture is, in truth, neither here nor there. I pass no judgment upon Mr Nichol's points of difference between the Torture Convention, the European Convention and the Refugee Convention. The reason why it matters not what is the genesis of the consistent pattern test is that that test has been applied simply by the choice of this Tribunal in paragraph 10 of its determination as an appropriate way of giving reality to the real risk standard. It seems to me they were entitled to do that whatever the historical genesis of the "gross and systematic" approach may have been.