United Kingdom Asylum and Immigration Tribunal

AM (Sudan Draft evader) Sudan [2004] UKIAT 00335

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 29 November 2004

Date Determination notified: 29 December 2004

Before
Mr M W Rapinet (Acting Vice President) Mr K Kimnell Mr A Eames
Between

 

AM	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant : Ms M Plimmer, Counsel, instructed by Browell Smith & Co. For the respondent : Mr M Raj, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant, a citizen of Sudan, appeals by leave of the Tribunal against the determination of an Adjudicator, Miss J.E. Perrett, dismissing his appeal against the refusal of the Secretary of State to grant asylum and the decision to give removal directions to Sudan. The grounds of appeal are in the bundle before us.
2. The appellant, who comes from the Nuba part of the Sudan, though he has lived in the north of Sudan since childhood, he having moved there with his mother when his father died, claims that he has been called up and has evaded military service.
3. This appeal first came before us on 27 September 2004. Miss Plimmer then argued before us that the appellant objects to military service on the basis that the conduct of the war in Sudan is such as to bring it within the definition of a war which would be condemned by the international community. We pointed out to her that the grounds of appeal do not raise this issue but are based upon the Adjudicator's findings of risk upon return to the appellant, and in particular her finding that it is unlikely that he would be imprisoned for avoiding military service, and that there is a possibility that he would not be required to do military service in any event. Miss Plimmer indicated that as a Nuban the appellant would be at particular risk and at further risk of conscription because of his ethnicity and that the conduct of the war by the Sudanese government in the Sudan is such as to lead to a view that it is a war which is internationally condemned, and that this would take the appellant outside the Sepet and Bulbul ruling in relation to military service. She sought leave to amend her grounds of appeal. We decided to grant leave and gave Miss Plimmer fourteen days within which to file her amended grounds of appeal and the Home Office a further ten days in which to reply.
4. The case came before us on the adjourned hearing on 29 November 2004. By that date Miss Plimmer's amended grounds of appeal had been filed but no reply had been filed by the Home Office.
5. The amended grounds of appeal, supported by a witness statement from the appellant, indicate that the appellant objects to participating in military action against persons for reasons relating to their religious or ethnic origin. It is now maintained that, although the appellant originally objected to doing military service in the war against the south of Sudan, this objection now relates to the current war being conducted in the Dafur area of Sudan and in other regions.
6. It is contended in the amended grounds that the appellant will be compelled to do his national service and that there is a reasonable likelihood that such service will necessitate him participating in the commission of international crimes or human rights crimes, contrary to his genuinely held convictions and conscience within the context of the objective evidence as to the manner in which the Sudanese military conducts itself against the basic rules of human conduct. Reliance is placed on the case of Krotov v SSHD [2004] EWCA Civ 69.
7. We would mention that this appeal comes to us by remittal from the Court of Appeal which allowed an appeal against another Tribunal's determination dismissing the appellant's appeal and which directed that the case be reheard by a differently constituted Tribunal. The Court of Appeal dealt primarily with the question of risk upon return and did not address, nor was indeed was it invited to, apparently, the question of the appellant being required to participate in a war involving the commission of international or humanitarian crimes.
8. As Miss Plimmer points out in her amended grounds of appeal, there are now two issues before us. The first is whether or not the appellant would be involved in military action in Sudan involving acts contrary to the basic rules of human conduct. The second is whether the appellant would be at risk of ill-treatment on return in any event, the latter factor having been considered by the Court of Appeal when deciding to remit this case for rehearing by another Tribunal.
9. In her submissions Miss Plimmer emphasised the fact that the appellant is of Nuban origin, and therefore one of the minority groups targeted by the authorities, and therefore at particular risk of being conscripted into the army and sent to the front which, in her submission, in this case would involve war in Dafur. She accepts that the objective evidence indicates primarily that the war in that region is being conducted by a militia called the Janjaweed and that it would not appear that the Sudanese armed forces are directly involved. However, she emphasised to us that the objective evidence does indicate that the Janjaweed have government support and she drew our attention to objective evidence which would indicate that Sudanese forces were also involved in that region. She referred us to the Sudan Organisation against Torture Annual Human Rights Report covering the period up to March this year, and in particular paragraph 8 which deals with Dafur. Paragraph 8.1 reads: 'Sustained attacks by government forces and local militias on local civilian populations have led to catastrophic levels of violence and destruction.'
10. On the same page it is stated: 'Whilst there have been some reports of atrocities being committed by the rebel groups, the overwhelming majority of these violations still remained the responsibility of government forces and government sponsored militia groups.'
11. At paragraph 8.2 it is stated that

'Indiscriminate aerial bombardment of towns and villages by government antonov aircraft also augment such attacks. These bombings take place in areas where the opposition to government and militia are thought to be strongest, although there is no effort to distinguish civilian from non-civilian targets.'

12. In her submission there is a reasonable likelihood that the appellant would be required to complete his military service and he would engage in military action which would be against the basic rules of human conduct. The report to which she has referred us and from which we have quoted above indicates that the action of the forces engaged in Dafur is such as to constitute a gross breach of human rights and of all rules relating to the normal conduct of war. She refers us to the judgment of the Court of Appeal in Krotov and in particular paragraph 37 of that judgment in which Lord Justice Potter states:

'In my view, the crimes listed above, if committed on a systemic basis as an aspect of deliberate policy or as a result of official difference to the widespread actions of a brutal military, qualify as acts contrary to the basic rules of human conduct in which punishment or a refusal to participate would constitute within the ambit of the 1951 Convention.'

13. Miss Plimmer goes on to submit that the Adjudicator has erred in finding that there would be no risk to the appellant upon return and even if there was a possibility that he was picked up and questioned about whether he had done military service, there was no reasonable likelihood that he would be prosecuted for draft evasion and subject to imprisonment.
14. Miss Plimmer also submits that the Adjudicator's determination of the Sepet and Bulbul is flawed, particularly by reason of the judgment of the Court of Appeal in the case of Krotov. She referred us to the judgment of the Court of Appeal in the instant case and in particular paragraph 11 of the judgment of Lord Justice Schiemann who states:

'Miss Plimmer submits that the finding of the IAT in the last sentence of paragraph 13 of the determination that there was no real risk that the appellant would be identified at the airport as a person who has not answered his call up papers cannot be supported. He is of the appropriate age. He would have come from abroad. He would have been asked for the certificate referred to in paragraph 5.68 of the Country Report and would not have it. This would lead to questioning, possibility about the sort of bribe referred to in paragraph 5.52. There must be a real risk that the failure to do military service would be discovered. I agree.' [our emphasis]

15. In paragraph 12 of the judgment his lordship deals with the submission by Miss Plimmer relating to the determination of the IAT that the penalties for refusing to perform military service are not imposed. His lordship states:

'It may well be that circumstances can arise when a law is shown to be never enforced in which case there would be no real risk to a citizen that he would be imprisoned pursuant to it. But for my part, I do not consider that it was open to the IAT to conclude from the evidence before it that the present was such a case.'

16. Miss Plimmer urged us to accept the view of the Court of Appeal.
17. In a final submission she maintained that there are three matters which have to be considered. The first is, would the appellant be discovered to be a draft evader? In this connection she referred us to the judgment of the Court of Appeal at paragraph 11 to which we have referred above and also referred us to the determination in which at paragraphs 20, 24 and 26 the Adjudicator seems to accept that there is a reasonable likelihood that he would be discovered and that he has received his call up papers. Secondly, if he is conscripted, is there a likelihood that he would be posted to Dafur? She accepts that there is no direct evidence to show that draft evaders are posted there routinely but the evidence is that he would be. He is from an ethnic minority which has been targeted in the past by the government and would be a candidate for harsh treatment in the military and he would be treated with antipathy. The objective evidence to which he has drawn our attention is that government forces are involved in Dafur. In any event, she argues, there is further objective evidence in the bundle before us that Dafur is not the only area of activity in which the government is involved in the Sudan. Although some sort of peace arrangement has been arrived at in relation to the south, the government is active in other regions where it has targeted other minorities.
18. The third issue is the application of the case of Krotov. If the appellant is likely to be sent to Dafur or any region where the government is involved in military activities, it is likely that he would be a party, perforce, to acts of inhuman conduct in breach of the Convention. If he refused to carry out orders he would be at risk of persecution.
19. Mr Raj in his submission maintains that there is no risk to the appellant upon return, as the Adjudicator has correctly found. He relies on two determinations of the Tribunal: the case of AA Sudan [2004] UKIAT 00167, and the case of AB Sudan [2004] UKIAT 00260. In the former case the Danish Fact Finding Mission had found

'Sudanese nationals who have been abroad for more than one year do not have to report to the security service, police or any other investigative agency in Sudan. On the other hand, those who have been abroad for more than one year do have to report to the tax authorities in the Sudan on their return. This is because Sudanese nationals abroad are required to pay tax in Sudan for the period spent abroad. ... If they fail to do so they are guilty of tax evasion and will not be able to get an exit visa if they want to travel abroad.'

20. The Tribunal also found that Sudanese citizens who are staying abroad whose passports have expired could apply to the nearest Sudanese embassy or to the passport issue office in Khartoum for a new passport. He points out that according to the US State Department Report as referred to in paragraph 5.80 of the CIPU Report 'No-one was jailed during the year 2003 for evading compulsory military service'.
21. So far as the Nuban ethnicity is concerned, Mr Raj points out that a peace accord has been signed and there is no evidence of persecution of draft evaders of Nuban origin. Nor, he submits, is there any evidence of conscripted government forces being sent to Dafur. The decree to which reference is made in the case of AA Sudan [2004] UKIAT 00167 has been found not to exist. This is a reported decree directing that those from the Sudan who have been abroad for in excess of a year should be detained. Confirmation of this is to be found in the case of AA 00260. In paragraph 37 of that determination the Tribunal states:

'The position, then, is that neither the fact that the respondent will be returned as a failed asylum seeker who has been absent from the Sudan for more than a year, nor the fact that he has originated from the south of that country, will be reasonably likely to result in him being subjected to a significant investigation (let alone detention) by the immigration authorities at Khartoum Airport.'

22. Mr Raj submits that there is no risk to the appellant being detained upon return, and therefore no risk of him being conscripted, and therefore no risk that he would be sent to Dafur. In any event, there is no evidence that draft evaders are sent to Dafur.
23. We will deal first with the question of the risk to the appellant that he would be apprehended upon return or/and that it would be found that he has evaded his military service. Mr Raj's submissions rest largely on the determinations of the Tribunal in the case of AA 00167, and AB 00260. Neither of those cases concern draft evaders. And both found that the decree directing that all those who have been out of Sudan for more than a year should be arrested does not exist. However, AA 00167 does quote from a Danish Fact Finding Mission which indicates that those who have been abroad for more than one year do have to report to the tax authorities in the Sudan on their return. If the appellant is to lead any form of normal life and obtain employment and seek accommodation etc. it seems to us that it is reasonably likely that he will have to report to the tax authorities on his return in order to obtain the necessary clearance to enable him to carry out his life in Sudan. During the course of such interview the fact that he is of military age would obviously come to light and we would have thought that there is a reasonable likelihood that he would be asked to produce some document to indicate that he has completed his military service. The Adjudicator has accepted that call up papers have been issued against the appellant. At 5.70 the CIPU Report indicates that 'Those called up for military service are not allowed to follow an education or get a job. Men of conscription age are forbidden to leave the country for any reason.' Assuming that the appellant was not detained at the airport it would be necessary for him to obtain employment, housing and other amenities once he returns and it would seem that if he cannot show that he has performed his military service he will be barred from so doing. The very fact that he is not able to show that he has performed military service and that call up papers have been issued against him must lead to a reasonable likelihood that he would be apprehended.
24. For these reasons and the reasons indicated by the Court of Appeal in the instant case at paragraph 11 of its judgment, we would with respect to the Court of Appeal, totally concur with its conclusions.
25. Turning to the question of whether or not he would be imprisoned we accept that the US State Department Report indicates that there is no record of any imprisonment for failure to do military service in the year 2003 but, bearing in mind the fact that the appellant is a Nuban, bearing in mind the fact that he has been out of the country for some time, we would again respectfully agree with the Court of Appeal at paragraph 12 of its judgment in this case. We would refer to paragraph 14 above.
26. We would take the view that there is a reasonable likelihood that the appellant's failure to do military service will come to the attention of the authorities and that there is a reasonable likelihood that he would be imprisoned for such an offence. Paragraph 5.55 of the CIPU Report describes prison conditions as being harsh and life threatening and states: 'Most prisons are old and poorly maintained and many lack basic facilities such as toilets or showers. Health care was primitive, food was inadequate. Prison officials arbitrarily deny family visits to prisoners.'
27. Paragraph 5.633 states that 'The government does not permit regular visits to prisons by human rights observers. No independent domestic human rights organisation monitor prison conditions.'
28. Bearing in mind that the appellant is a Nuban and is a draft evader, we think that there is a reasonable likelihood that he would be imprisoned and that the conditions of imprisonment will be such as to reach the threshold required under an Article 3 claim.
29. Turning now to Miss Plimmer's argument in relation to the appellant being required to serve in Dafur were he to be conscripted directly into the army rather than imprisoned, we have considered this with care. Although the general objective material indicates that Janjaweed is the militia primarily responsible for the atrocities currently commit in Dafur, there is strong objective evidence to indicate that not only does the Janjaweed receive government assistance but that the government forces are themselves actively involved and we would refer to the reports to which we have made reference earlier in this determination and to which Miss Plimmer drew our attention. We are satisfied that there is a reasonable likelihood that the appellant might be sent to the front and that the front might well include Dafur, but could also include, as Miss Plimmer has indicated, other regions in the Sudan where the Sudanese military authorities are currently involved. There appear to be other minority groups which are targeted by the Sudanese authorities, in particular we observe from the Sudan report from which we have quoted above, that attacks on the Fur tribe by government forces are frequent and paragraph 105 of that report sets out seven areas where the government forces have been responsible for violence against the local population. We are fortified in this view by an article in the Daily Telegraph of 30 November headed "British Aid Workers Are Expelled from Sudan". It is there started that "An upsurge in fighting between government troops and rebel fighters forced the suspension of emergency food supplies to Northern Sudan".
30. We are of the view that there is a reasonable likelihood that if this appellant were drafted into the army he would be sent to one of the areas where the government is currently engaged in military action of one sort or another. The Court of Appeal in the case of Krotov has considered carefully the question of participation in a war which is internationally condemned and the definition of international condemnation.
31. At paragraph Lord Justice Potter states:

'In this respect there is a core of humanitarian norms generally accepted between nations as necessary and applicable to protect individuals in war or armed conflict and, in particular, civilians, the wounded and prisoners of war. They prohibit action such as genocide, the deliberate killing and targeting of the civilian population, rape, torture, the execution and ill-treatment of prisoners and the taking of civilian hostages.'

32. In the following paragraphs His Lordship sets out various international instruments and materials which support what is stated in paragraph 30. At paragraph 37 his lordship states:

'In my view, the crimes listed above, is committed on a systemic basis as an aspect of deliberate policy, or as a result of official indifference to the widespread actions of a brutal military, qualify as acts contrary to the basic rules of human conduct in respect of which punishment for refusal to participate would constitute persecution within the ambit of the 1951 Convention.'

33. Having considered the objective material which is before us we take the view that the conduct of the Sudanese army in relation to the recent military activity in the south, in relation to the current activities in Dafur, and in relation to activities in other parts of the country, are such as to come within the definition of acts contrary to the basic rules of human conduct.
34. If the appellant were required to perform military service on his being apprehended, we are satisfied that he might be required to participate in the commission of international crimes We would therefore support Miss Plimmer's argument that the appellant's convictions and conscience in the light of such a finding are such as to involve a risk of persecution of him were he to be required to complete military service.
35. We accordingly allow the appeal both in respect of the Refugee Convention and in respect of the Human Rights Act.
M.W. RAPINET ACTING VICE PRESIDENT