COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
(AA/06912/2006 and AA/07062/2007)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE JACKSON
| MH (Syria)
|- and -
|Secretary of State for the Home Department
|- and -
|Secretary of State for the Home Department
Edward Grieves (instructed by Trott & Gentry) for DS
Neil Sheldon (instructed by The Treasury Solicitor) for the Secretary of State
Hearing dates : 15-16 December 2008
Crown Copyright ©
Lord Justice Richards :
i) MH was born on 1 March 1980 in Derik in Syria, into a Kurdish family. Her parents were stripped of their Syrian nationality and became stateless Kurds. The family suffered constant harassment from the Syrian authorities.
ii) When MH was 12 years old, she travelled to meet Abdullah Ocalan in his camp in Lebanon, and returned home feeling much more patriotic and supportive of the PKK. In 1993 she attended a ceremony at which two of her cousins who had been killed as guerrillas were declared national heroes. It was then that she decided to join the PKK. On joining she was given the name "Jiyan" by the party. She remained in Derik, living not with her parents but with other Kurdish families. In late autumn 1993 she was elected to carry a banner in support of El-Assad and to march in front of the crowd. This was her first political act on behalf of the PKK. It resulted in her being beaten by the security forces and going into hiding. She was transferred after 10 days to a village near the border with Iraq, where she stayed for around one month.
iii) She was then transferred in a group of about 50 people into Iraq. She volunteered to be armed, although until then she had not even touched a gun. They crossed the border into Iraq and were taken to a PKK camp, but she was taken on from there to a camp called Haftanin which was populated by Kurdish families who had fled Turkey. It was situated in the Perakh valley near a PKK training camp. She became a member of the refugee community in the camp, and her duty was to resolve disputes between the refugees in the camp on behalf of the PKK.
iv) Towards the end of 1995, the Turkish army started conducting raids into Iraq, so a new camp was formed at Etrush, where she remained until 1999. The PKK decided she would not be a fighter but would contribute to the PKK in other ways. In 1996, she was given 3 months training in first aid and became an assistant nurse in a hospital in the camp.
v) In November 1997 she was one of a delegation taken to visit the PKK's camps in the mountains. The aim was to strengthen the links between her camp's residents and the PKK and to make them more informed about the guerrillas' situation. They went to the Qandil Mountains and then to Dola Koke, a training camp for guerrillas, where they visited the hospital. They then visited the Shehid Ayhan camp, staying there for a week, before moving on to the Shehid Harun camp. While at Shehid Harun, they became caught up in a clash between the PKK and the Turkish security forces. In attempting to get away MH stepped on a mine and was severely injured. She was eventually taken to Suleymaniye, where she had her leg amputated in a makeshift hospital. Altogether she spent 5 months in hospital. She was then transferred to a humanitarian organisation which fitted her with an artificial leg.
vi) After this she returned to her nursing duties, first at the Etrush camp and then at the Makhmoor camp. In 2000 and again in 2002 she had to have further operations on her leg.
vii) She said that after she lost her leg she also lost her will to struggle along with the PKK. In autumn 2000, when asked by PKK executives what she wished to do in the future, she said she wanted to get away from the political aspect. At her suggestion, which was accepted, she became a Kurdish language teacher to primary school children.
viii) In 2003 she sought permission to leave the PKK but this was refused. It was only in 2004 that she was allowed to leave the party, though remaining in the Makhmoor camp.
ix) In the meantime she had received news of her family. In February 2003 she heard that her sister, who had joined the PKK in 1997, had been killed in an avalanche in Iraq. She was also told that her father, who had remained in Syria, had been detained, and that her brother had left Syria to go to Lebanon, leaving only her mother at home.
x) Then, towards the end of 2005, one of her uncles visited her and said that the security forces in Syria continued to make enquiries about her and that they suspected she had joined the PKK. He said that her father was always being harassed because of his two PKK daughters and that her mother had been detained for questioning a number of times. MH considered that it was not safe to remain in the camp or to return to Syria; and, with her uncle's assistance, she made arrangements to travel to Istanbul and from there to the United Kingdom.
The tribunal's reasoning on the asylum appeal
" [W]e find that there are serious reasons for considering that the appellant has been guilty of acts contrary to the purposes and principles of the United Nations (Article 1(F)(c)). The appellant had voluntarily become a member of the PKK in 1993 and this is an organisation whose main aim is to set up an independent Kurdish state in southeast Turkey. The PKK is involved in illegal military operations and is proscribed by the UK as a terrorist group by Schedule 2 of the Terrorism Act 2000. The appellant left school when she was 12 years old but after meeting Abdullah Ocalan, she decided to join the PKK after attending a ceremony when two of her cousins who had been killed as guerrillas were declared as national heroes. Although the appellant was still young at the time, she was elected to carry a banner in a large demonstration in support of El-Assad who in turn was supported by the PKK. During this demonstration the appellant was beaten by security officers after which she had left with the PKK. The PKK wanted them to be armed and she volunteered for this. She passed over into Iraq at the beginning of 1994. The appellant had a duty of resolving disputes on behalf of the PKK and in 1996 after three months training in first aid, she became an assistant/nurse in the hospital in the camp. She found she was suitable for this particular duty as she was not afraid of handling injured people. The appellant then visited PKK camps in the mountains to make them more informed about the guerrillas' situation in the mountains. She visited a hospital there, which was particularly educational for her. We found that although the appellant did not have a high level role in the PKK, she was fully aware at the time of the activities of the PKK and from her SEF statement, there is no indication that she was unhappy about her role with the PKK and supporting it through her duties. It was during a visit to the Shehid Ayhan camp, that she got caught up in a clash between the Turkish security forces and the PKK after which she received severe injuries from a mine in November 1997. Until this point the appellant was a voluntary member of the PKK and had personal knowledge of their activities which involved illegal military operations and she supported their infrastructure for this by her nursing the wounded and other duties. The appellant did not ask to resign from the PKK until 2003. Although it had been decided in 1996 that she would not be a fighter she contributed to the PKK by other means. The burden of proof is on the respondent to show that there are serious reasons for considering that the appellant has been guilty of acts contrary to the purposes and principles of the United Nations and we find that by her involvement with the PKK, that she is therefore excluded by Article 1(F)(c) from benefiting from the 1951 Convention for refugees."
Article 1F of the Refugee Convention
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he 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 has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."
"54.(1) In the construction and application of Article 1(F)(c) of the Refugee Convention the reference to acts contrary to the purposes and principles of the United Nations shall be taken as including, in particular
(a) acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence), and
(b) acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence).
(2) In this section
'terrorism' has the meaning given by section 1 of the Terrorism Act 2000 ."
"1.(1) In this Act 'terrorism' means the use or threat of action where
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system."
The case for MS on Article 1F(c)
The case for the Secretary of State on Article 1F(c)
Article 1F(c): discussion and conclusion
i) MH became a member of the PKK when she was only 13 years old, and everything that happened up to the time when she lost her leg took place during the years of her minority. Her youth is a highly relevant consideration even though it is not possible, in the absence of adequate factual investigation by the tribunal, to reach a conclusion on the question whether she acted "voluntarily".
ii) Although the nature of the PKK was not investigated in detail by the tribunal, beyond its being proscribed in 2000 and having been involved in illegal military operations and acts of terrorism, there was no suggestion that it fell at the extreme end of the continuum where mere membership may be sufficient to establish complicity in the acts of an organisation.
iii) What MH actually did for the PKK was relatively minor in nature. She carried a banner at a demonstration while still in Syria. She carried a gun when being taken from Syria to Iraq. She lived and worked in a refugee camp. At first her duty was to resolve disputes between the refugees in the camp. She was then given training in first aid and became an assistant nurse, still at the refugee camp, albeit some of those treated were injured combatants. This was the role she was performing when she was included in a group taken on an information visit to the PKK's camps in the mountains. It was during that visit, as a non-combatant, that she received the injury that resulted in the amputation of her leg. After that her support for the PKK waned, even though it was not for some years that she asked to resign and it was later still that she was allowed to give up her membership. In the meantime, when sufficiently recovered, she became a language teacher to primary school children at the refugee camp to which she had moved. I should also note, since the tribunal appears to have attached weight to it, that she used to wear military fatigues when she was in the camps.
The Secretary of State's cross-appeal: Article 3 ECHR
"32. However we are concerned that the authorities in Syria would know about her activities with the PKK in Iraq. The appellant was visited in Iraq by businessman [sic] and her uncle from Syria. She heard about her father being detained, her brother fleeing to Lebanon and her mother interrogated by the authorities over the activities of her and her sister. The appellant's sister was treated as a martyr after she was killed and it is likely that the Syrian authorities would have known about the activities of the appellant and her sister being active supporters of the PKK in Iraq. Dr George referred to the Syrian intelligence records.
33. If the appellant were returned to Syria, she would undoubtedly be interrogated as a failed asylum seeker because she had been out of the country for at least 13 years and did not have any form of identity. Also the appellant having lost a leg will be questioned about how this occurred and what she had been doing in Iraq for all this time. Although there are now around 300,000 Kurds who are not entitled to Syrian nationality and are effectively stateless like the appellant and that there have been recent moves to grant citizenship to them, this has not yet occurred . Although the case of AR  UKAIT 00048 CG concludes that the deprivations experienced by Syrian Kurds are not such as to amount to persecution or breach of their human rights if returned to Syria and that a Syrian Kurd with no political history does not face a risk of persecution or breach of his human rights on return, we find in this case that the appellant does have a political history which is likely to be known to the Syrian authorities on her return. Although the appellant's activities in supporting the PKK were outside Syria in Iraq, we find the Syrian authorities would be concerned about this support for the PKK and she would suffer ill treatment and persecution by the state authorities for which she would be unable to obtain protection from those authorities. The appellant would be seen as being part of an organisation that was in opposition to the government in Syria because of her particular activities, which they are aware took place in Iraq. Although it is only hearsay evidence, [Ms] Akay confirmed that the appellant's mother complained of being harassed by the authorities and that her father was still in detention and her brother in Lebanon due to the activities of the appellant and her sister with the PKK. The appellant would only be issued with a one way emergency travel document which would increase her likelihood of being interrogated by the security services on return. There is an effective computer database system in place which would recall whether or not the appellant was being looked for in Syria and whether she left Syria illegally or not. The appellant will have her travel document checked against the computer records and as all returned asylum seekers are interrogated, her profile will be checked. Besides an amputated leg, the appellant has shrapnel injuries to her head which if investigated could be a further embarrassment to her. The appellant was also unmarried. Her injuries were consistent with being involved in a military operation and suffering injuries as a result of a landmine. The appellant could well be charged and sentenced for illegally exiting Syria. The USSDHR Report 2005, refers to numerous cases of security forces torturing prisoners and that torture of political detainees was common . There is a real risk that the appellant would be tortured during her interrogation and she faces a real risk [of] inhuman and degrading treatment, persecuted treatment or serious harm."
Conclusions on MH (Syria)
i) He was an ethnic Tajik, born in the Panjsher district of Parwan Province. The family moved to Kabul to escape the fighting between the Mujahideen and the communist government forces, and he graduated there in 1983.
ii) After his graduation he was recruited into the Intelligence Service (KhAD) and began to work in the Panjsher district. At this time there was a truce between the Soviet troops and the Mujahideen. Three months later he was sent to Uzbekistan, then part of the Soviet Union, to attend an intelligence course. He returned in 1984. The fighting had started again while he was away, and the Soviet and government troops were taking the region back from the Mujahideen for a second time.
iii) He was posted to the central headquarters of the Intelligence Service of Panjsher district, where he headed a team of three men responsible for the appointment of agents and the analysis of their reports. Towards the end of 1985 he became Deputy Director for Panjsher district, and in 1986 he was appointed Director.
iv) In 1987 he was appointed Deputy Director of the Intelligence Service of Parwan province.
v) In 1988 he became Director of Operations of the South Salang Intelligence Service. He said that this was an important region because it had tunnels and smuggling through them was common. He was responsible for searching vehicles coming through the tunnels. Sixty agents worked under his command. There was severe fighting around the area, and only the tunnels and roads were controlled by the government and the Soviet forces: other parts were in the hands of the Mujahideen.
vi) In November or December 1988 he was transferred to Kabul and was assigned to the Technical Services Department of the Intelligence Service, effectively a transfer from operational to administrative duties. Until 1990 he held the top position in that office. He was then appointed head of the Vazir Abad depot in Kabul, which was responsible for the distribution to the Afghan army of Russian weaponry coming secretly into the country. In 1992 he was promoted to the rank of colonel. In April 1992 the communist regime fell and he surrendered his barracks.
vii) In 1994 DS was arrested in connection with his alleged involvement in a failed coup attempt. He was interrogated and beaten while in detention, but his release was secured by a Mujahideen commander who was a friend of his brother. He escaped to Mazar-e Sharif and lived safely, keeping a low profile, until 2001.
viii) The reason why DS claimed to be at risk in Afghanistan arose out of events while he was in charge of the Intelligence Service of Panjsher district in the 1980s. A number of families had been forcibly repatriated there from Kabul and one of them, the family of Amir Muhammad, was abducted and killed en route. In 2001 General Ikramadin, a nephew of Amir Muhammad, was a senior commander and very close associate of General Fahim, the Commander General of the Northern Alliance. DS said that he had previously received direct threats from General Ikramadin but that he was specifically targeted on this account when the troops of the Northern Alliance entered Mazar-e Sharif in November 2001. He left the town and went to Pakistan, returning briefly to Afghanistan for arrangements to be made for him to get to the United Kingdom.
The first immigration judge's decision
"From the IJ's summary of the various reports it is clear that it was common ground between the various sources of objective evidence that:
(i) KhAD committed human rights violations on a large scale (the Netherlands report estimated that of the estimated 200,000 citizens arrested by KhAD, 50,000 died as a result of torture , whereas Dr Giustozzi refers to 37,000 having been killed by KhAD in 1985 dropping to 12,000 in 1986 );
(ii) there was no doubt that recourse to torture by KhAD was extensive (particularly in the early 1980s); and
(iii) DS would have provided information which led to the killing or arresting of opposition members.
Where the reports differed was in relation to their assessment of how prevalent KhAD's use of torture was in the late 1980s and who KhAD targeted: the Netherlands report and [the Country of Origin Information Report] concluded that KhAD was a brutal organisation which used torture in a systemic manner against anyone suspected of not supporting the government, whereas Dr Giustozzi, whilst accepting that torture had been used extensively by KhAD in the early 1980s, suggested that it use had diminished in the late 1980s and that it was unclear whether the persons targeted by KhAD could properly be described as civilians or insurgents."
"71. I remind myself that the Exclusion Clauses should be interpreted narrowly and I conclude from all of this that, whilst KhAD undertook acts of the type described in Article 7 of the Rome Statute and that these could be described as widespread and systematic, particularly during the early 1980s, they were not primarily directed against the civilian population. The targeted population was not predominantly civilian in nature. The attacks carried out by KhAD were primarily directed at insurgents and they do not therefore fall within the definition of 'crimes against humanity'. As such it is not necessary for me to consider any 'complicity' of the Appellant although I will state that I do not accept that he was ignorant of the abuses as claimed by him at the hearing. This evidence was in contradiction of his answers at interview, for example when he referred to sleep deprivation. His denial that he mentioned this damages his credibility in this regard. Further, if the abuses were as wide as Dr Giustozzi's report indicates, even taking into account their decrease after the early 1980s, I consider that the Appellant would have had to be purposely blind not to have been aware of the acts carried out by others in his organisation. I do not accept that he only heard of such abuses from press reports when he was in Pakistan.
72. I therefore find that the Appellant is not excluded by Article 1(F) from the protection of the Refugee Convention and I do not therefore uphold the Secretary of State's certificate."
"77. Given the threats made to the Appellant before he left Afghanistan and given the position of authority that this man holds, I find that there is a real risk that the Appellant will face persecution or treatment contrary to Article 3 upon return and, given the position of those threatening the Appellant in Afghanistan at present, I find that there is not a sufficiency of protection for the Appellant."
The challenge to the decision under Article 1F(a)
The attempted reliance on Article 1F(b) and (c)
"The assertion that the Immigration Judge should have gone on to consider the other matters in Article 1F has no merit given that it is quite clear from the file and from the papers that [at a] preliminary hearing prior to the hearing before the Immigration Judge it had been established by the Respondent that the only exclusion relied upon was that the Appellant had committed a crime against humanity. That having been established, there was no requirement for the Immigration Judge to consider any other matters in relation to Article 1F. Mr Walker [the Home Office Presenting Officer] did not dispute this."
Conclusions on DS (Afghanistan)
Lord Justice Jackson :
Lord Justice Ward :