BE (Iran) v Secretary of State for the Home Department
Jurisdiction | England & Wales |
Judge | Lord Justice Sedley |
Judgment Date | 20 May 2008 |
Neutral Citation | [2008] EWCA Civ 540 |
Docket Number | Case No: C5/2007/1310 |
Court | Court of Appeal (Civil Division) |
Date | 20 May 2008 |
[2008] EWCA Civ 540
Lord Justice Ward
Lord Justice Sedley and
Lord Justice Wall
Case No: C5/2007/1310
CC/03113/2002
Miss F Webber (instructed by Newcastle Law Centre) for the Appellant
Mr T Eicke (instructed by The Treasury Solicitors) for the Respondent
Hearing dates: Monday 28 April and Tuesday 29 April 2008
This is the judgment of the court.
Although this is the third occasion on which the present case has reached this court, it is a case of some importance and there are good reasons for its return here. It concerns the claim to international protection of a sapper from the Iranian army who in 1999 deserted rather than continue to lay anti-personnel mines in a populated part of Iranian Kurdistan where no state of war existed.
The facts
The appellant, who was born in 1970, carried out his two years' military service and then in 1988 joined up as a regular soldier. In 1998 he was sent to the Beneh area of Kurdistan, where he was required to plant landmines in a populated area. Rather than do this he went absent without leave, but was found and sentenced to 3 months' imprisonment. On release he was demoted from sergeant and in September 1999 sent back to Kurdistan. There he was told that an officer who had been refusing to plant landmines had been shot and his death blamed on Kurdish rebels. A week later the appellant was again ordered to plant landmines. Believing that to do so might result in civilian deaths, he deserted and fled to the United Kingdom.
All this has been found as fact and accepted throughout the proceedings. To it the following needs to be added. The appellant's evidence was that he was required to plant these devices in roads. He did not know how close to the frontier these roads were: they could have been 3 km or 30 km from it. Although he gave no detail about the devices, it has been accepted throughout, in the light of his knowledge of landmines and his evidence of the risk they posed to civilians, that these were anti-personnel and not, or not solely, anti-vehicle devices. As the first adjudicator found, “whatever the position generally, the appellant was asked on the particular occasion in question to obey an order whose carrying out he had valid reasons for considering would result in endangering civilian life.”
There was no state of war or insurgency in Iranian Kurdistan in 1998–9. The AIT found
“a lack of any specific objective evidence to show that at this particular time the Iranian authorities had planted anti-personnel landmines in this region with the deliberate intent of harming civilians or being reckless of harming them.”
They also recorded, in reliance on the 2003 Iran Landmine Monitor Report, that
“During the relevant period: (i) the Iranian government, whilst condemning landmines as inhumane weapons, confirmed that it has used and would go on using them to protect its borders and to combat drug smugglers and terrorists; (ii) areas it had mined included the province of Kurdistan (the area referred to by the appellant); and (iii) there have been civilian casualties in Kurdistan.”
The proceedings
In March 2001 the Home Secretary refused the appellant's claim for asylum. He pointed out that the appellant had not only undertaken his military service but had thereafter signed on as a regular soldier without any apparent qualms, and that civilian deaths were an unfortunate consequence of war which did not justify desertion. He also correctly pointed out that desertion out of fear or dislike of combat does not make a soldier a refugee.
An appeal to an adjudicator, Mr D.Chandler, in February 2002 failed on the ground that, although the appellant's evidence was credible, it did not disclose a refugee convention reason for the anticipated persecution. But Dr. Storey V-P gave permission to appeal to this court because of an apparent conflict between the adjudicator's acceptance of a well-founded fear of persecution (albeit not for a refugee convention reason) and his rejection of the appellant's claim to protection under article 3 of the European Convention on Human Rights. With the agreement of both parties Laws LJ remitted the appeal to the IAT for reconsideration without any express limitation. It came before a panel of three, chaired by Dr Storey, which in July 2004 dismissed the appeal on grounds of some complexity.
The IAT accepted the adjudicator's finding that the appellant had been ordered to plant mines and had refused because he genuinely believed that to do so might lead to the killing of innocent civilians. But they dismissed both the asylum and the human rights claims on the ground that the orders to which the appellant objected were not contrary to either national or international law (the mine ban treaty not having been signed by Iran and the Geneva Conventions depending on there being a state of war), and that the appellant faced no more than condign punishment for disobeying orders.
Permission to appeal to this court was refused by the AIT but was granted by Maurice Kay LJ. Once again with the consent of the parties, Ward LJ in January 2005 allowed the appeal and remitted the case for reconsideration by what was now the AIT. Although the court's order is unqualified, the agreed reasons for it were noted by the AIT:
The consent order is in the following terms:
“The Secretary of State agrees that the IAT erred in law and that this appeal should be allowed and the case remitted to a differently constituted IAT, on the basis that:
(a) In the Court of Appeal judgment in Krotov v SSHD [2004] EWCA Civ 69; [2004] INLR 304, the Court (at §38) indicated that courts must consider, when assessing such claims under the refugee Convention, whether the appellant is or may be 'required on a sufficiently widespread basis to act in breach of the basic rules of human conduct generally recognised by the international community' (§51);
(b) However, the IAT only considered the different and separate question whether the actions the appellant was ordered to undertake were lawful under international law;
(c) Further the Court indicated that, in times of peace, those 'basic rules of human conduct generally recognised by the international community' would find their reflection in international human rights law rather than international humanitarian law:
'… human rights really concern rights enjoyed by all at all times, whereas humanitarian rules concern rights which protect individuals in armed conflicts. Most Conventions and other documents which provide for the protection of human rights (a) include a far wider variety of rights than the rights to protection from murder, torture and degradation internationally recognised as set out above; (b) in any event contain safeguards which exclude or modify the application of such rights in time of war and armed conflict' [ Krotov, §38]
(d) The IAT decided that in the present case there was no armed conflict. As a result, they should have considered the position of a deserter in times of peace.
(e) However, the IAT has only considered the position in relation to international humanitarian law (i.e. the laws of war) but has completely failed to consider the position under (wider) international law norms, and failed to ask itself the question identified by the Court of Appeal in §§37, 38 and 51 of the judgment in Krotov namely:
i) What are the 'basic rules of human conduct generally recognised by the international community' in times of peace based on an analysis of the relevant international human rights norms?; and/or
ii) How far do the 'basic rules of human conduct' applicable in times of conflict and identified by the Court of Appeal in its judgment of Krotov apply in times of peace?”
From these reasons the AIT (C.M.G. Ockleton D-P, SIJ Eshun and SIJ Grubb) deduced their remit:
The order makes clear that the scope of this reconsideration is limited in, at least, two respects. First, it is restricted to the appellant's claim to be a refugee under the 1951 Convention. The appellant's human rights claim is no longer in issue. Second, the IAT's finding that the appellant was not engaged in war or an internal armed conflict stands and our concern is with what, if any, are the applicable provisions of international law which apply in their absence.
They noted that they had heard no argument based on the Qualification Directive in relation to humanitarian protection going beyond the refugee convention. The claim was now a pure asylum claim
The AIT concluded that the original adjudicator, Mr Chandler, had made no error of law and that his determination should stand. Notwithstanding a carefully considered refusal by the AIT, Maurice Kay LJ gave permission to bring this appeal. He wrote:
“The 'war and peace' points merit the consideration of this court because the appeal has a real (as opposed to a merely fanciful) prospect of success, and notwithstanding that this will be the third time 'round the block' for this case.”
The “war and peace” argument forms the central pillar of the argument now advanced by Frances Webber for the appellant and resisted by Tim Eicke for the Home Secretary. It is, in a word, that the irreducible minimum of civilised conduct cannot, or should not, be lower in peace than in war, and that it is his acknowledged refusal to go below that minimum that makes the appellant a refugee.
In a closely...
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