BA (military service – no risk) Sudan CG  UKAIT 00006
Date of hearing: 12 December 2005
Date Determination notified: 25 January 2006
|Secretary of State for the Home Department||RESPONDENT|
Country guidance is given in this case on the following issues and in the following terms:
(i) On the available evidence Sudanese draft evaders and draft deserters do not face a real risk of imprisonment as a punishment. Instead they are forced to perform military service under close supervision.
(ii) In view of the ending in January 2005 of the north-south civil war, there is no longer a real risk of conscripts or draft evaders or draft deserters being required to fight in the south.
(iii) The recent conflict in Darfur (still ongoing) has been characterised by serious violations of international humanitarian law amounting to crimes under international law. However, on the available evidence it is not reasonably likely that conscripts or draft evaders or draft deserters are being or would be required to fight in Darfur.
(iv) Accordingly, Sudanese who face conscription, or who are draft evaders and draft deserters do not face a real risk on return of persecution or treatment contrary to Article 3.
(v) The case of AM (Sudan Draft Evader) Sudan  UKIAT 00335 is no longer to be followed and, even read historically, was wrongly decided.
(vi) In view of the substantial political realignments in Sudan during the 2002-2005 period, none of the existing Country Guideline cases on Sudan (save for TM (Persecution- Christians – Individual – General) Sudan CG  UKIAT 04849 and AE (Relocation – Darfur – Khartoum an option) Sudan CG  UKAIT 00101) are to be considered any longer to furnish current country guidance and are accordingly to be deleted from the AIT Country Guideline list.
'The Adjudicator gave inadequate reasons (in paragraph 46 D&R) concerning the risk on return of a person to Sudan eligible for military service; and concerning the extent to which the appellant may be required to participate in or be involved with conduct contrary to the basic laws of human conduct and/or in brutal military conduct. Sepet and Bulbul, Krotov [in later context of AM AIT reported  UKIAT 00335].
The only issues to be addressed in the light of up-to-date objective material are (1) concerning whether the call up to do military service gives rise to risk of being required to engage in acts of atrocity/brutality/abuse of human rights/contrary to basic human conduct; and (2) concerning whether there is a real risk of proscribed ill-treatment (contrary to the Refugee Convention Article 3 ECHR) as a draft evader.'
The appellant's claim
The Secretary of State's decision
The hearing before the Adjudicator
'The reality here is that he (the appellant) knew he was going to be called up to do military service and he resented it. There is no risk ironically on his own account of him doing that military service now, nor was there when he left because although he applied and was refused exemption on the basis that his father was alive, and therefore the appellant did not qualify as the sole or main breadwinner, because he has claimed his father was dead, the appellant would therefore become the main breadwinner. When the appellant finished his oral evidence by stating that the call up was in fact the main reason he did not want to live in Sudan and why he wanted to leave, he undermined his account of his father being dead because he would have known that he would have been exempt if his father really were dead.
Taking all these factors into account this is not a well made up claim and not one which can be accepted even on the low standard which applies. There has to be a real risk and not a potential fanciful risk of persecution.
These matters cause me to find that he is not at real risk under either the 1951 Convention or at real risk of breach of his human rights.
The objective evidence does not point to the appellant being incapable of being returned to Sudan as there is no real risk to returnees and in his case no case against him other than as a draft dodger. If there is punishment, it does not follow on this evidence that it is out of all proportion to the crime.'
Documents produced at the hearing
The North-South Conflict
The situation in Darfur
'The roots of the present conflict in Darfur are complex. In addition to the tribal feuds resulting from desertification, the availability of modern weapons, and the other factors noted above, deep layers relating to identity, governance, and the emergence of armed rebel movements which enjoy popular support among certain tribes, are playing a major role in shaping the current crisis.'
'Based on a thorough analysis of the information gathered in the course of its investigations, the Commission established that the Government of Sudan and the Janjaweed are responsible for serious violations of international human rights and humanitarian law amounting to crimes under international law. In particular, the Commission found that Government forces and militias conducted indiscriminate attacks, including killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement, throughout Darfur. These acts were conducted on a widespread and systematic basis, and therefore may amount to crimes against humanity. The extensive destruction and displacement resulted in a loss of livelihood and means of survival for countless women, men and children. In addition to the large scale attacks, many people have been arrested and detained, and many have been held incommunicado for prolonged periods and tortured. The vast majority of the victims of all these violations have been from the Fur, Zaghawa, Massaliet, Jebel, Arnaga and other so-called "African" tribes.'
The background evidence relating to military service
Risk of imprisonment for draft evaders and deserters
"According to one source, deserters and those helping deserters, risk detention, ill-treatment and torture; those who have left the country and avoided military service risk interrogation and detention on return. The FCO in a February 2005 letter has stated that, although they were not aware of specific cases of draft evaders/deserters facing inhuman, degrading or persecutory treatment, they would not be surprised to find that this was the case."
'A well informed local source in Cairo said that deserters were not normally punished with imprisonment. [In 2001] If a deserter was caught he would be sent to the front under genuine threat of harassment and under close supervision. Otherwise the sentence for desertion was three years, but there had been few examples of deserters being sentenced to three years in prison'.
'The same well-informed [Cairo] source also explained that a persons' ability to avoid military service in Sudan [in 2001] would depend very much on his and his family's connection to the regime, and the social and economic position for the family in Sudan'.
Accordingly we conclude that the background evidence considered in the round does not demonstrate that draft evaders and deserters in general face a real risk of imprisonment in Sudan.
Risk of conscripts/draft evaders or deserters being required to perform military service in Darfur
'due to the ongoing civil war, the brutality of forced recruitment and the risk of being sent to fight in the south of the country. The Ministry of Defence denies that conscripts are sent to serve in the south of the country, but maintains they volunteer to do so. For instance, in 1995 the government stated that 1,850 conscripts volunteered to serve in the war areas in the south'.
'Being sent to the war areas in the south might also be a possible punishment for draft evaders and deserters.'
As a source for this it cites Amnesty International (Dutch Section) 1996: letter to Staatssecretaris van Justite, Amsterdam, 20 September 1996. This report notes that those joining the PDF were urged, for religious reasons, to 'volunteer' for combat duty in the south. It stated further that: 'In 1995 many secondary school students were recruited by the PDF to fight in the south.'
'One of them, Mohamed Haroun, a Darfur African officer in the Sudanese armed forces was ordered to go to Darfur to fight. He refused. When he was forced to go to Darfur, he went absent without leave. He was caught and [faces sentence].'
The fact that Mahomed Haroun was an example of a Darfurian refusing to fight in Darfur limits its value as evidence of what happens to non-Darfurian deserters, but even disregarding this limitation, it is the only example in a large body of background material of any deserter or draft evader, Darfurian or non-Darfurian, being forced to fight in Darfur.
The AM (Sudan Draft Evader) case
'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.'
'25. Turning to the question of whether or not he would be imprisoned we accept that the US State Department report [for 2004] 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 are satisfied that there is a reasonable likelihood that the appellant might be sent to the front and that the front might well include Darfur, but could also include, as Miss Plimmer has indicated, other regions in the Sudan where the Sudanese military authorities are currently involved [it goes on to mention seven areas where the government has been responsible for violence against the local population]'.
'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 Darfur, and in relation to the 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.'
"In the case of armed conflict not of an international character occurring in a territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply as a minimum, the following provisions:
(1) persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, should in all circumstances be treated humanely, without any adverse distinction founded on race, colour , religion or faith, sex, birth or wealth, or any similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;'
'37. In my view, the crimes listed above, if committed on a systematic 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 a refusal to participate will constitute persecution within the ambit of the 1951 Convention. [emphasis added]'
Consideration of whether there are any issues personal to the appellant which put him at real risk of persecution or treatment contrary to Article 3
ME (Failed asylum seeker – Danian) Sudan CG  UKIAT 00997;
MS (DUP Activities Abroad) Sudan CG  UKIAT 02385;
MH and Others (Article 3 – FGM) Sudan CG  UKIAT 02691;
GA (Umma – Reconciliation with Government) Sudan CG  UKIAT 04605;
AA (Failed asylum seeker) Sudan CG  UKIAT 05894;
AB (Return of Southern Sudanese) Sudan CG  UKIAT 00260
As already found, the Adjudicator materially erred in law.
The decision we substitute for that of the Adjudicator is to dismiss the appeal on asylum and human rights grounds.
Dr H.H. Storey
Senior Immigration Judge
Sudan: War Resisters International CONCODAC 1998 Report
Danish Fact Finding Mission Report on findings and conclusions mission to Cairo 'Human Rights situation, military service and entry and embarkation procedure in Sudan', Khartoum and Nairobi, 8-19 August and 20-23 November 2001.
The Economist Intelligence Unit, Country Profile 2001, Sudan, London, 2001
US State Department report on Sudan ,February 2004
Child Protection in Darfur, Save the Children (SC UK), May 2004
Report of the International Commission of Inquiry (ICI) on Darfur to the UN Secretary General, published in January 2005
US State Department Report on Sudan February 2005
CIPU Sudan Assessment April 2005
Amnesty International Report on Sudan 25 May 2005
Human Rights Watch Report on Sudan 13 January 2005 Sudan
Freedom House, Freedom in the World 2005, Sudan, 31 March 2005
World Refugee Survey 2005, Sudan 15 June 2005
Aegis Trust (UK), Lives in Our Hands: Darfuri Asylum Seekers facing removal to Khartoum, 30 June 2005.
World Refugee Survey 2005, Sudan 15 June 2005
Report of the UN Secretary General on Sudan, 12 September 2005