United Kingdom Asylum and Immigration Tribunal

AN (Military Service) Sudan [2002] UKIAT 02099

HX/27706/2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 19 April 2002

Date Determination notified: 21 June 2002

Before
Ms S M Ward ( Chairman)

Mr C Thursby

Between

 

AN	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS

1. The Appellant, who is a citizen of Sudan, was given leave on 10 January 2002 to appeal against the determination promulgated on 11 December 2001 of an Adjudicator, Miss J E Perrett, dismissing his appeal against the refusal of the Respondent to grant asylum .
2. At the hearing before us the Appellant was represented by Ms C Ganning of counsel. The Respondent was represented by Mr Saunders, Home Office Presenting Officer.

3. The Appellant entered the country clandestinely and claimed asylum on 5 January 2001. The basis of his claim was that he did not want to serve in the army because he would be sent to the south of his country to fight against Christians. He was summoned to report for initial training with the Popular Defence Force in July 1998 but left Sudan in April 1999 and went to Syria. He left Syria at the end of 2000 and travelled overland to the United Kingdom. The Respondent dismissed the Appellant's claim on the basis that, in practice, army deserters and military service draft evaders are re-drafted into the army and the Appellant would not be at risk on return of persecution. In dismissing the appeal, the Adjudicator noted certain discrepancies in the accounts given by the Appellant but found that the Appellant had received call-up papers to serve in the army and had fled to Syria. She concluded, however, that it was not necessarily the case that he would be prosecuted for draft evasion. Even if he were, she concluded that there was nothing in the background information to suggest that imprisonment would amount to persecution.
4. Ms Ganning submitted that the evidence showed what the penalty was for draft evasion in Sudan. It was a fine and a sentence of imprisonment up to three years. The background evidence also showed that prison conditions in Sudan were harsh and life threatening. The Appellant had evaded his call-up and was therefore at risk of being imprisoned and subject to life threatening prison conditions. She referred us to relevant section of the Home Office CIPU Report on Sudan in the Appellant's bundle and to the US State Department Report of 2000 on human rights practices in Sudan. The Tribunal's attention was also drawn to the UNHCR message of February 2002 contained in the Appellant's bundle where it was stated that an administrative decree in Sudan of February 1993 authorised the arrest of all returning Sudanese who left the country after the June 1989 coup and who had been away for more than a year. The Appellant, she submitted, fell into this category. The report goes on to state that such individuals are subject to investigations and the necessary security measures. Ms Ganning also sought leave to tender a copy of a UN regional information network published on the internet and dated 11 February 2001. Leave was granted by the Tribunal on the basis that the Appellant's representatives had only recently obtained such report on 18 April 2002. The report claimed that a major humanitarian crisis was unfolding in the south of the Sudan with a massive upsurge in the war. In such circumstances, she submitted, it was even more likely that the Appellant would be picked up at the airport on his return to Sudan.
5. Mr Saunders submitted that the Appellant was not a conscientious objector. At best he was a partial objector and it had been held by the Court of Appeal in Sepet and Bulbul that partial conscientious objectors could not benefit from the Refugee Convention. As regards the Human Rights Convention the Appellant would have to show a real risk of penalty amounting to an infringement of his rights. There was nothing in the US State Department Report to show what happened to draft evaders, and on the basis of the CIPU Report, the Appellant could not show that his rights would be infringed. Mr Saunders pointed to paragraph 5.68 of the CIPU report where it was stated that there were other options for those drafted for military service. It was not necessarily the case that a person answering his call-up would have to serve in the army. There was a dearth of evidence regarding what actual penalties are imposed, if any. As regards the UNHCR report about the checking of those returning, it was not possible to know from the evidence what the security measures were or how extensive the checking process might be.
6. In reviewing the decision of the Adjudicator we have concluded that, although she made reference in paragraph 15 to the lower standard of proof, she did not put that into practice in critical areas of her determination, nor focus on the correct questions with regard to the return of the Appellant to Sudan. For example , in paragraph 25 the Adjudicator stated :

"Even accepting that he is at last found, it is not necessarily the case he would be prosecuted for draft evasion and subject to imprisonment. It is common for young men to try and avoid the service by studying abroad."

Whilst it might be correct to state that the Appellant would not necessarily be prosecuted and imprisoned, in the light of her conclusion in paragraph 23 that there would be enquiries on his return as to whether he had had the necessary exit visa, the Adjudicator should have assessed whether there was a real risk that he would be prosecuted or detained.

7. In paragraph 26 the Adjudicator appears to have considered what alternatives to prosecution and imprisonment might await the Appellant, but she has not set out any conclusion on the proper question – was there a real risk that he might be prosecuted and imprisoned?
8. Furthermore, in paragraph 30 the Adjudicator has concluded that, notwithstanding that prison conditions are poor in Sudan, the Appellant had not shown a real risk of an article 3 or 5 contravention. In reaching this conclusion, the Adjudicator again did not ask herself the right question. The evidence was that prison conditions in Sudan are harsh and life threatening. In the light of that evidence it was necessary for the Adjudicator to ask herself whether there was a real risk that the Appellant would be subject to imprisonment and, if so, whether the conditions in prison in Sudan reached the necessary threshold of severity to constitute inhuman or degrading treatment for this Appellant.
9. Although we have concluded that the Adjudicator addressed these issues incorrectly, they are matters which we may properly deal with in this appeal. Firstly we deal with that part of the Appellant's claim which relates to the Refugee Convention.
10. In the cases of Sepet and Bulbul [2001] Imm A R 452, to which Mr Saunders referred, the Court of Appeal considered appeals involving refusal by those appellants to do military service in their home country of Turkey. The Court of Appeal repeated what has become settled law that there are circumstances in which a conscientious objector may rightly claim that the punishment for draft evasion would amount to persecution – where the military service to which he is called involves acts with which he may be associated which are contrary to the basic rules of human conduct; where the conditions of military service are themselves so harsh as to amount to persecution on the facts; where the punishment in question is disproportionately harsh or severe. However even that persecution, according to the Court of Appeal, will only entitle an applicant to claim international protection if there is a relevant Convention reason connected to the treatment feared by that applicant.
11. The Appellant stated at the hearing that he did not object to military service as such but he did not want to fight the Nuba. At best he is a partial objector. But whether he be an absolute objector or a partial one, he cannot pray in aid the Refugee Convention unless he is able to show that he faces treatment amounting to persecution for a Convention reason.
10. His claim is that, as a draft evader, he faces a real risk of being detained at the airport and found to have evaded the draft. He says that he will be at risk of a fine and up to three years imprisonment in harsh and life threatening conditions. However, what he has been unable to show both before the Adjudicator and this Tribunal is that he would face such treatment for a Convention reason – that is, on account of race, religion, nationality, membership of a particular social group or political opinion. The evidence at paragraph 5.74 of the CIPU Report is that recruits are drawn from the Christian minority in the south of Sudan and those living in the north, as well as the Arab majority population in the north. Whilst there is evidence that Christian recruits are often humiliated on account of their religion and are put under pressure to convert to Islam, there is no evidence that any particular religious, ethnic or racial group faces any harsher punishment than any other group in the event of draft evasion or desertion. Neither is there any evidence to suggest that draft evasion or refusal to serve one's national service is regarded as an expression of any political belief. On the contrary the evidence suggests that failure to report for military service is treated relatively leniently. At paragraph 5.73 of the CIPU Report it is stated that those who fail to report after having received their call papers will have their pay withheld at work. If they still fail to report, they will be dismissed from their job. The evidence also shows that it is possible to buy one's way out of military service. The Appellant has been unable to show that any penalty which might be imposed upon him for draft evasion or refusal to do his national service would have the necessary connection to a Convention reason. Draft evasion or refusal to serve, per se, is not a Convention reason

11. There is evidence in the UNHCR report at page 50 of the Appellant's bundle that returning Sudanese who left after the June 1989 coup and have been away for a year are subject to investigations and necessary security measures pursuant to a decree of 1993. Returning asylum seekers are known to have been questioned at point of entry on the basis of this decree. However we note that the Appellant did not leave straight after the June 1989 coup but in 1999, ten years later. There is no risk that his departure date would give rise to suspicion of being a participant in such a coup or give rise to a real risk that his failure to report for national service was somehow connected with that coup. He has, however, been away for more than a year and thus may be at risk of questioning on his return. We have considered whether the length of time outside the country might give rise to a risk for this Appellant of ill treatment on his return for suspected or imputed political reasons. The UNHCR report suggests to us that the security measures referred to were aimed at detecting those who fled after the coup, although we accept that the decree may have been used to detect political opponents or supporters of political opponents. But, even if this Appellant's absence abroad were to render him at risk of questioning for imputed political belief, there is no evidence to show what the nature and extent of the questioning and security measures which await anybody detained in this way. The only available evidence about what might happen is the statement in the UNHCR document ( page 51 of the appellant's bundle) that UNHCR is aware of some individuals who have been subjected to detention without trial. The length and nature of that detention is uncertain. It cannot therefore be shown that such a risk, if it were to be a risk for this Appellant, is one of treatment amounting to persecution.
12. We now turn to the question of whether there is a real risk of a breach of Article 3 of the Convention if he were to be removed. This requires us to consider whether there is a real risk that this Appellant will be apprehended on his return, be imprisoned in Sudan and subject to inhuman and degrading treatment.
13. As regards the risk of apprehension, we conclude that the evidence is not such as to show a real risk. There is a dearth of evidence on this subject. Ms Ganning has not been able to show us any evidence of the extent to which administrative procedures and records may be available at points of entry in the Sudan to enable the authorities to identify the Appellant on his return as a person who has failed to answer his call-up. She submitted, however, that Khartoum is a sophisticated capital and it was likely that such security checks would exist. We do not accept this submission. We cannot make such an assumption in the absence of any supporting evidence to indicate the nature of extent of security measures in place in Khartoum airport. We are unable to conclude that there is a real risk that the security measures in place at Khartoum Airport are such as to pose a real risk to the Appellant of being identified as a person who has not answered his call-up papers over three years ago.
14. However, even the Appellant were to be detected as a draft evader on his return to Sudan, the evidence to which we have referred above with regard to the consequences for those who fail to report for military service after receiving their call-up papers, indicates to us that a comparatively lenient approach is taken to those who have not answered their call-up papers. Failure to report in this way does not result, at least in the first instance, in arrest and detention. Deserters from the army, on being arrested, will usually be re-conscripted into the armed forces. This suggests to us that, even for the offence of desertion, the authorities are more interested in getting the deserter into the army than imprisoning him. Additionally, evasion of military service is not uncommon, and at paragraph 5.74 it is stated it is possible to buy one's way out of military service.

15. Mr Saunders submitted that a conscript can be required to do his national service in other ways than service in the army. He pointed to paragraph 5.68 of the CIPU report to show that alternatives exist – the police force, the Public Order Police, the other security forces, government departments and public projects for social and economic development. The Appellant does not object to national service per se and, Mr Saunders submitted, is only a partial objector. Mr Saunders point, it seemed to us, is that this Appellant might not find himself in the situation of having to refuse to serve if picked up on his return and re-conscripted, and therefore might not be faced with any penalty for refusal to serve. Whilst that is possible, we note that conscripts have no choice as to what kind of service they do. In the light of the recent escalation in the conflict in Sudan and the absence of such choice for the Appellant, we have concluded that that there is a real risk that a person conscripted now or detected as a draft evader would be required to join the military.
16. However, even if the Appellant were to be identified on his return as a person who failed to answer his call-up papers, and were to find himself in the position of refusing to serve in the military, there is no evidence to show that the prescribed penalty of a fine and imprisonment is nowadays imposed upon persons in his position, or, if so, what level of fine and term of imprisonment are normally imposed. Evidence that a particular punishment is prescribed by law should be accompanied by evidence to show that there is a real risk that such penalty would be imposed upon the particular appellant. There is no such evidence in this appeal. In the light of this, the limited evidence that prison conditions in Sudan are harsh and overcrowded, and that a penalty of a fine and imprisonment of up to three years for refusal to do military service is prescribed, do not, in our view, constitute substantial grounds for believing that there is a real risk that this Appellant will suffer torture or inhuman or degrading treatment or punishment on his return. An appellant must show a real risk of breach of his Article 3 rights, not a theoretical one. This Appellant has not done so.
17. The Appellant might be questioned at Khartoum Airport, not as a draft evader but as a person who has been away from the country for some time, under the Decree we have already referred to. But as we have already set out above, there is insufficient evidence about what might happen thereafter.
18. The Adjudicator fell into error along the way to her conclusion that this appeal should be dismissed . However, having examined the relevant issues ourselves we have reached the same conclusion, albeit by a different route.
19. This appeal is, therefore, dismissed.

Ms S M Ward