AM (Sudan Draft evader)

JurisdictionEngland & Wales
JudgeACTING VICE PRESIDENT
Judgment Date29 December 2004
Neutral Citation[2004] UKIAT 335
CourtImmigration Appeals Tribunal
Date29 December 2004

[2004] UKIAT 335

IMMIGRATION APPEAL TRIBUNAL

Before:

Mr M W Rapinet (Acting Vice President)

Mr K Kimnell

Mr A Eames

AM
Appellant
and
Secretary of State for the Home Department
Respondent
Representation

For the appellant : Ms M Plimmer, Counsel, instructed by Browell Smith & Co.

For the respondent : Mr M Raj, Home Office Presenting Officer

AM (Sudan Draft evader) Sudan

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...

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5 cases
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