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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Davidov v. The Secretary Of State For The Home Department [2005] ScotCS CSIH_51 (23 June 2005)
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Cite as: [2005] ScotCS CSIH_51, [2005] CSIH 51
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Davidov v. The Secretary Of State For The Home Department [2005] ScotCS CSIH_51 (23 June 2005)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Hamilton Lord Drummond Young
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[2005CSIH51] XA7/03 OPINION OF THE COURT delivered by LORD HAMILTON in APPEAL under Section 5(4)(b) and Paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999 by ANDREY DAVIDOV Appellant; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______ |
Act: Govier; Anderson Strathern (Quinn, Martin & Langan, Glasgow) (Appellant)
Alt: Drummond; H.F. Macdiarmid (Respondent)
23 June 2005
The background
[1] The appellant was born in 1972 in the Soviet Union. His father was a Russian Orthodox Christian and his mother Jewish. When he was about 18 years of age, he and his mother emigrated to Israel and became Israeli citizens. He subsequently married a young woman whom he had first known when in the Soviet Union. She came to Israel where she and the appellant lived until September 2001. There is one child of the marriage, a son Daniel, born in 1992. [2] Both the appellant and his wife are Christians. They endeavoured to practice that faith in Israel but, according to the appellant's account, encountered various difficulties by reason of their faith and of their origins in the Soviet Union. It is unnecessary for the purposes of this Opinion to particularise these; but they included alleged abuse and violence directed against the appellant and his family when they endeavoured to attend Christian worship and alleged abuse against the appellant by fellow soldiers in the Israeli army during his periods of service with it. [3] As a citizen of Israel the appellant was liable to compulsory military service in the army of that State. He undertook that service for two years in 1992 and 1993. Thereafter he became a reservist, with an obligation to serve 50 days in each year. He undertook that service in each of the years up to and including 2001. [4] On 12 September 2001 the appellant, accompanied by his wife and child and using his own passport, entered the United Kingdom. He immediately claimed asylum. His claim was rejected by the Secretary of State by letter dated 30 October 2001. He was subsequently served with a Notice of Refusal of Leave to Enter after Refusal of Asylum. He appealed against that Notice but, following a hearing in Glasgow on 26 April 2002, an adjudicator, by a determination dictated on 5 May and apparently promulgated on 28 May 2002, refused that appeal. He further appealed, with leave, to the Immigration Appeal Tribunal ("the Tribunal") but that appeal was, by a determination dated 29 September and notified on 1 November 2002, also refused. An application for leave to appeal to this court was refused by the Tribunal on 11 December 2002. On 22 June 2004 this court, in the absence of answers by the Secretary of State, granted leave to appeal against the Tribunal's determination. That appeal has now been heard by us.Obligation to undertaking compulsory military service
[5] Although before the adjudicator and the Tribunal a range of issues was raised, potentially bearing on the appellant's claim for asylum, the live issues are now restricted to those related broadly to the appellant's military service. The significance of an objection to undertaking compulsory military service at all or of undertaking it in certain circumstances has been the subject of developing legal treatment in recent years. Much of that treatment post-dates the determination by the adjudicator; some of it also post-dates the determination by the Tribunal. These bodies accordingly did not have the benefit of the analyses which such cases afford. [6] Miss Drummond, who appeared before us for the Secretary of State, presented in a clear and helpful submission a chronological account of the relevant authorities. These are Foughali v. Secretary of State for the Home Department (an unreported decision of the Immigration Appeal Tribunal heard on 2 May and notified on 2 June 2000 with the reference TH1513), Sepet and Bulbul v. Secretary of State for the Home Department [2001] EWCA Civ 681; [2001] Imm AR 452 (a decision of the Court of Appeal issued on 11 May 2001), Sepet and Bulbul v. Secretary of State for the Home Department [2003] 1 WLR 856 (a decision of the House of Lords issued on 20 March 2003), B v. Secretary of State for the Home Department [2003] UKIAT 20 (a decision of the Immigration Appeal Tribunal heard on 1 October 2002 and notified on 4 July 2003) and Krotov v. Secretary of State for the Home Department [2004] EWCA Civ 69; [2004] 1 WLR 1825 (a decision of the Court of Appeal issued on 11 February 2004). [7] In Foughali the Tribunal identified four exceptions to the general rule that objection to undergoing compulsory military service does not constitute a valid ground for claiming refugee status. The four exceptions identified by it were-"(a) persecution due to the conditions of life in the military service in
question;
(b) persecution due to the repugnant nature of military duty likely to be
performed;
(c) persecution due solely to principled objections (i.e. genuine political,
religious or moral convictions, or valid reasons of conscience (para. 170, 1979 UNHCR Handbook));
(d) persecution due to likely disproportionate punishment" (para. 9).
In that case, the appellant, an Algerian national, did not object to military service as such but to service in the Algerian civil war then in progress where, he claimed, he might have to kill civilians, something he was not prepared to do. He was described by his counsel as a "relative" as distinct from an "absolute" conscientious objector (para. 3). The Tribunal, having analysed the factual circumstances, rejected his appeal. In doing so it made the following general observation:
"It may be noted, however, that according to our analysis no appellant will be able to qualify under any of the exceptions identified unless he can satisfy a decision-maker that he has genuinely and sincerely held beliefs opposed to participation in military service" (para. 53).
"There is compelling support for the view that refugee status should be accorded to one who has refused to undertake compulsory military service on the grounds that such service would or might require him to commit atrocities or gross human rights abuses or participate in a conflict condemned by the international community, or where refusal to serve would earn grossly excessive or disproportionate punishment" (para. 8).
His Lordship made reference in that connection to two Canadian cases, to a case in the United States of America and to certain paragraphs of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.
[10] In B the Immigration Appeal Tribunal endeavoured to resolve some uncertainty on the part of adjudicators, following the decisions of the Court of Appeal and of the House of Lords in Sepet and Bulbul, as to the shape and contents of the proper framework for analysing military service cases. It recognised that the notion of "principled objections" as used by the Tribunal in Foughali had involved too narrow a view of the type of belief which could qualify as a foundation for refugee status. Essentially, it was held, all that the applicant need do is "show that he has an objection based on conscience" (para. 19). Several caveats were, however, noted. These included that the conscientious objection must be linked to one of the three remaining grounds of exception and that the claimant must hold such objections genuinely or sincerely, objective proof of that to the relevant standard being required (paras. 20-21). The Tribunal, at para. 29, summarised its position as follows:"In light of the above the basic principles that should govern consideration of military service cases can be restated as follows:
(1) In order to establish that military service gives rise to a real risk of persecution a claimant must first of all establish that he is a conscientious objector. However, he will usually be able to establish that he is a conscientious objector quite easily. In establishing this, a moral and ethical basis to his objections may be irrelevant unless they are so extreme as to engage Art 1F considerations. To what extent it is relevant whether a person's objections are genuinely held will depend on the nature of the particular case.
(2) Assuming a person can establish conscientious objection in this very broad sense, he can only show there is a real risk of persecution where one or more additional factors obtain:
(a) where the conditions of military service are themselves so harsh as to
amount to persecution on the facts;
(b) where the military service to which he is called involves acts, with
which he may be associated which are contrary to basic rules of human conduct;
(c) where the punishment in question is disproportionately harsh or severe.
(3) Even if a person on the basis of one of these additional factors can establish a real risk of persecution, he will not quality as a refugee unless he can further demonstrate that the persecution is by reason of a Refugee Convention ground (race, religion, etc.)."
One of those grounds is political opinion. The Tribunal then proceeded to apply the principles identified by it to the facts of the case before it. At para. 51 it offered clarification of the second exception (the additional words being in italics):
"(b) where the military service to which he is called involves acts, with which he may be associated which are contrary to basic rules of human conduct as defined by international law ... ".
In summarising its general position at para. 71 the Tribunal, having noted that the applicant must first establish that he is a conscientious objector (in the relevant sense) defined exception (b) in the terms indicated in para. 51 and observed that, for a claimant to succeed under (b),
"he would need to show that the armed conflict in question was characterised by violations of the laws of war on a widespread and systematic basis and that he would be required to be an active participant in such violations".
"would or might require him personally to engage in activities contrary to the basic rules of human conduct, whereby punishment for desertion in those circumstances would itself be properly regarded as persecution" (para. 9).
The primary issue for decision in the Court of Appeal was whether the Immigration Appeal Tribunal had been correct in dismissing the appeal to it on the basis that the applicant had failed to show that the war to which he objected had been condemned by the international community as contrary to the basic rules of human conduct. His appeal to the Court of Appeal was successful, the case being remitted for rehearing in light of the court's judgment. The leading judgment was delivered by Potter LJ who, at para. 19, quoted the passage from Lord Bingham's speech in Sepet and Bulbul referred to in para. [9] above and noted that Lord Bingham did not proceed to examine that proposition more closely. Potter LJ further noted (para. 20) that Lord Bingham had treated the grounds to which he referred as being separate rather than synonymous. In relation to the first of these grounds, namely, whether compulsory military service "would or might require him to commit atrocities or gross human rights abuses", Potter LJ observed (at para. 29) that he did not doubt that Lord Bingham (and Laws LJ in the Court of Appeal)
"had in mind in this context conduct universally condemned by the international community, in the sense of crimes recognised by international law or at least gross and widespread violations of human rights".
In summarising the requirements to be met to satisfy this objection Potter LJ stated (at para. 51):
"If a court or tribunal is satisfied (a) that the level and nature of the conflict, and the attitude of the relevant governmental authority towards it, has reached a position where combatants are or may be required on a sufficiently widespread basis to act in breach of the basic rules of human conduct generally recognised by the international community, (b) that they will be punished for refusing to do so and (c) that disapproval of such methods and fear of such punishment is the genuine reason motivating the refusal of an asylum seeker to serve in the relevant conflict, then it should find that a Convention ground has been established".
"that the grounds should be limited to reasonable fear on the part of the objector that he will be personally involved in such acts, as opposed to a more generalised assertion of fear or opinion based on reported examples of individual excesses of the kind which almost inevitably occur in the course of armed conflict, but which are not such as to amount to the multiple commission of inhumane acts pursuant to or in furtherance of a state policy of authorisation or indifference".
"It is not the mere occurrence of random acts of brutality, or of rape or murder, which in my opinion would qualify the conscientious objector for the surrogate protection of the asylum state under the Convention. Unfortunately, such random acts are too often an incident of warfare. There must be that systematic basis for the acts, either as a matter of deliberate policy or as a result of official indifference, referred to by Potter LJ at paras. 36, 40, 46 and 51 above, to qualify the situation as one in which the objector is able to rely on international law norms to make good his claim for protection".
He added (at para. 57) that:
"The applicant should show that he was or would be required to participate in the condemned acts".
Carnwath LJ agreed with both judgments delivered.
The approaches of the adjudicator and the Tribunal
[14] As we have indicated, neither the adjudicator nor the Tribunal in this case had the benefit of all these authorities when addressing the issues pertinent to the resolution of it. We have had that benefit. With that advantage there appear to us to be a number of serious concerns about the way in which each of the adjudicator and the Tribunal addressed certain critical issues. [15] The adjudicator, having found that the main reason the appellant had for not returning to Israel was because he did not want to perform military service and having considered exceptions (a) and (b), continued at para. 28:"I must also consider if the appellant's objections are genuine. A refusal to perform military service must be based on genuine political, religious or moral convictions or other genuine reasons of conscience. I find it significant that the appellant completed military service on a number of occasions prior to deciding to leave. Had he been an absolute conscientious objector, the appellant would have objected at an earlier stage. As the appellant indicated, he did not do so and appears to only have done so when the levels of dangers he faced increased. I noted that the appellant fired a shot at a car [a reference to a particular incident which the appellant said had occurred during his last period if service] and stated at the Hearing that he had to do so because he had been given an order and 'they could have opened fire against us'. I also found it highly significant that the appellant conceded at the Hearing that he would use arms if he believed in the cause. All these factors indicate to me that the appellant's refusal to perform military service were (sic) not based on genuinely and sincerely held beliefs".
"We agree with the Adjudicator that the Appellant has not established principled objections to military service. Whilst there is reference in paragraph 28 of the determination to 'an absolute conscientious objector' it is clear that the Adjudicator did not believe that the Appellant had any principled objections to military service. This can be gleaned from the passage, 'all these factors indicate to me that the Appellant's refusal to perform military service were not based on genuinely and sincerely held beliefs'. There are compelling reasons for this conclusion. The Appellant never claimed to be a total conscientious objector. He could hardly have claimed otherwise. He performed two years compulsory military service in 1992 and 1993. After that he became a reservist. His evidence is that this means 50 days service each year. He performed all these periods of service without making any mention to his superiors or the authorities of any conscientious objection ... ".
At paragraph 17 the Tribunal continued:
"The first reason for the failure of the Appellant's military service claim is that he has not established a principled objection to military service. However, even if he had done so, the judgment of the Court of Appeal in Sepet and Bulbul makes it clear that a genuine principled objection to military service is not enough for a claim to succeed under the Refugee Convention. The Appellant must establish a Convention reason. The action taken against him by the authorities for his refusal or failure to perform military service must be for a Convention reason. There is nothing in the country information to show that the authorities differentiate between those who refuse to perform military service for different reasons. There is no evidence of differential treatment, whether the reasons are religious, political, racial or any other".
In dealing with the activities to which the appellant's claimed objection was directed, the Tribunal (at para. 19) stated:
"The country information before us makes it clear that terrible atrocities are being committed in the current conflict [between the Israelis and the Palestinians]. However, the country information does not show that if the Appellant has to perform further military service he will be compelled to act in a way which would infringe internationally recognised standards or that, if he found himself in a situation where he might have to do so, refusal would result in persecution or infringement of his human rights".
At paragraph 20 the Tribunal continued:
"In any event the Appellant states, through [his solicitor], that he will refuse to perform any further military service".
Thereafter the Tribunal considered the evidence on the consequences in Israel for refusal to undertake compulsory military service, concluding that if the appellant refused to perform his reserve duty he was not likely to suffer, cumulatively, more than 70 days imprisonment. It stated: "This would not amount to persecution or infringement of his Human Rights".
Discussion
[17] While it may be that in some military service cases the appropriate starting point is an examination of the applicant's mental attitude (including the sincerity or otherwise of his claimed beliefs), a more helpful approach will, in our view, generally be to follow the order of issues identified by Potter LJ in Krotov at para. 51. That will involve, as a first step, examination of whether the combatants (including the conscripted soldier) are or may be required, on a sufficiently widespread basis, to act in breach of the basic rules of human conduct generally recognised by the international community - the applicant's attitude to such an identified prospect being addressed at a later stage. Approaching the issues in that order, it appears to us that there are two difficulties with the reasoning of the Tribunal in para. 19. Having accepted that "terrible atrocities" are being committed in the current conflict, the Tribunal appears to test the issue of prospective involvement of the appellant on the basis that the evidence requires to show that, if he had to perform military service, he "will be compelled to act" in a way which would infringe internationally recognised standards. That appears to us to put the test higher than that which has now been judicially recognised. In Sepet and Bulbul Lord Bingham spoke of the service being such as "would or might require him to commit atrocities or gross human rights abuses". In Krotov Potter LJ spoke of a position "where combatants are or may be required" on a sufficiently widespread basis so to act. The second difficulty concerns the Tribunal's approach to the consequence of a refusal by an applicant to act in infringement of internationally recognised standards. The Tribunal's view appears to have been that the nature of the punishment imposed upon such refusal must be such as to amount of itself to persecution or infringement of the applicant's human rights. A similar approach appears to have been adopted by the Tribunal in the subsequent paragraphs of its determination. But it is plain, in particular from para. 51 in Krotov, that, if condition (a) is satisfied, condition (b) requires only that there should be punishment for refusal to act, not that the punishment should itself be grossly excessive or disproportionate or otherwise constitute persecution or infringement of the individual's human rights. That is, where condition (a) is satisfied, punishment for refusal to serve itself constitutes persecution for the purposes of the Convention. [18] So far as concerns the appellant's attitude (including the sincerity of any belief professed by him), it is far from clear that the adjudicator in para. 18 of his determination properly distinguished between the position of an absolute conscientious objector (which the appellant did not claim to be) and a person who objected to a situation where, as a conscripted soldier, he would or might be required to commit atrocities or gross human rights abuses. While we accept, as Miss Drummond submitted, that preparedness in the past to undertake without protest compulsory military service may be relevant to testing the sincerity of a later objection to such service, the reasoning of the adjudicator does not make it clear that he was addressing the mental state relevant for present purposes. Likewise, the Tribunal, which appears at para. 16 of its determination to have approved of the adjudicator's reasoning and to have fastened, notwithstanding Laws LJ's adverse observation, on the notion of "principled" objection, does not make it clear that disapproval of the kind mentioned under factor (c) in para. 51 in Krotov was being addressed by it. Its treatment in para. 17 also tends to confirm that it was addressing the mental state of a person who objects (absolutely or partially) to compulsory military service in a situation where the conflict situation described in factor (a) in Krotov is not satisfied. [19] In Singh v. Secretary of State for the Home Department 2000 S.C. 219 this court, at page 222, observed that the proper and well-established test for assessing the adequacy and sufficiency of reasons given by an administrative tribunal is that summarised by Lord President Emslie in Wordie Property Co. Ltd. v. Secretary of State for Scotland 1984 S.L.T. 345. That test, which the court in Singh applied to immigration appeals, is that -"The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it".
For the reasons which we have indicated we are satisfied that, in light of the legal developments to which we have referred, the Tribunal's determination does not meet that test.
Result
[20] In these circumstances we shall allow this appeal and remit the case for a rehearing before an Asylum and Immigration Tribunal, as constituted under section 103B(4)(c) of the Nationality, Immigration and Asylum Act 2002 (as substituted by section 26(6) of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004).