Ba (Military Service – No Risk)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge |
| Judgment Date | 12 December 2005 |
| Neutral Citation | [2006] UKAIT 6 |
| Court | Asylum and Immigration Tribunal |
| Date | 12 December 2005 |
[2006] UKAIT 6
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Dr H H Storey (SENIOR IMMIGRATION JUDGE)
Mr H J E Latter (SENIOR IMMIGRATION JUDGE)
Mrs L R Schmitt
For the Appellant: Mr M Gill QC of Counsel instructed by Blakemores Solicitors
For the Respondent: Miss J Webb, Home Office Presenting Officer
BA (military service — no risk) Sudan CG
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 [2004] 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 [2002] UKIAT 04849 and AE (Relocation — Darfur — Khartoum an option) Sudan CG [2005] 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.
This is the reconsideration of an appeal against the respondent's decision made on 20 November 2004 to remove the appellant from the United Kingdom following a decision that he was not entitled to asylum. The appeal was originally heard by an Adjudicator, Mr P. Telford, on 12 February 2004. Permission was granted to appeal to the Immigration Appeal Tribunal on 17 August 2004 and by virtue of transitional provisions that appeal now proceeds as a reconsideration.
At a hearing on 7 September 2005 the Tribunal (Mr T. Davey, Immigration Judge and Mrs G. Greenwood) held that the Adjudicator had made a material error of law as follows:
‘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 2004 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.’
When the appeal was listed for further hearing, the parties were notified that this appeal was likely to be treated as a country guidance case. As the above indicates one of the purposes of this hearing was to consider to what extent reliance could still be placed on the reported case, AM (Sudan Draft Evader) Sudan [2004] UKIAT 00335.
The appellant is a citizen of Sudan born on 1 September 1975. From 1981 to 1987 he went to primary school in his home town of Labidia and then helped his father on the family farm. His father also owned a shop in Al-Abdia. The basis of his claim for asylum can briefly be described as follows. There were no problems until 1 August 2003 when four members of the military attended his father's shop telling him that the appellant had to attend the national service office on 20 October 2003. His father told them this was impossible as according to Sudanese law when there is only one son in the family, he was not required to undertake military service. The military disregarded this and repeated that the appellant would have to attend. The appellant asserts that after this the authorities started to go to his father's shop to harass him. On 5 August 2003 the appellant went to a committee where they had to obtain a letter to buy petrol for the tractor on the farm but this was refused with no explanation. The appellant therefore had to leave the farm as he was unable to obtain either petrol or seeds. He decided to help his uncle who was a member of the Communist Party. The appellant started taking down posters that the government put up at night. He said that he did this on 15, 16 and 17 August 2003. He was suspected of being a member of the Communist Party and was arrested on 17 August 2003 and taken to a security prison where he was held for three days. During this period he was beaten with sticks and hot metal bars were placed on his back. On 20 August 2003 his father paid a bribe to one of the officers and the appellant was released on condition that he had to report on 5 September 2003. The appellant's father died on 23 August 2003. He was a diabetic and his condition worsened because of stress and he died.
On 24 August 2003 the appellant decided to sell the livestock with the help of a friend. He believed that he had to escape to save his life due to the fact that he had to report back on 5 September 2003. On 24 August 2003 one of his father's friends took him to Port Sudan by lorry. They arrived on 26 August 2003. The appellant stayed at a house and on 28 August 2003 he left Sudan by ship, arriving in the United Kingdom on 23 December 2003. He claimed asylum the same day.
His application was refused by the Secretary of State. The latter did not believe that the appellant had been arrested, detained or ill-treated or that he would be of any adverse interest to the Sudanese authorities on the grounds of his imputed political opinion. So far as the issue of national service was concerned, the Secretary of State noted that national service was compulsory for males between the age of eighteen and thirty-three. There were a number of categories of people who could have their national call up postponed, including the sole supporter of a family, but as the appellant was not the sole supporter, the appellant did not appear to fall into this category. It was not considered that the requirement for the appellant to undergo military service was unduly harsh or that he was being singled out for other reasons. The application for asylum was refused and the appellant appealed on both asylum and human rights grounds.
The appeal was heard by the Adjudicator on 12 February 2004. The Adjudicator said that he found some of the appellant's evidence credible but most of his account incredible. He accepted that the appellant was born in Sudan and had worked on a farm owned by his family and that his family also owned a farm shop; that there had been problems with local corruption; and that the appellant had been called up to do military service. However, he found that the appellant was not a member of the Communist Party nor suspected of being one, although he had been arrested for damage to road signs. He found the rest of the account to be incredible. He did not believe that the appellant was or had been sought as a Communist sympathiser. He found that there was no court date and that his father had not died. He did not believe the claim that everything on the farm had been sold. The Adjudicator set out his reasons for these findings. They are not in issue before us. The Adjudicator then summarised the position as follows:
‘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.’
When granting permission to appeal to the Immigration Appeal Tribunal, the Vice President commented firstly that it...
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