Krotov v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Potter,Lord Justice Rix,Lord Justice Carnwath
Judgment Date11 February 2004
Neutral Citation[2004] EWCA Civ 69
Docket NumberCase No: C1/2002/1537/IATRF
CourtCourt of Appeal (Civil Division)
Date11 February 2004

[2004] EWCA Civ 69

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION APPEAL

TRIBUNAL

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Potter

Lord Justice Rix and

Lord Justice Carnwath

Case No: C1/2002/1537/IATRF

Between:
Krotov
Appellant
and
Secretary of State for The Home Department
Respondent

Mr Manjit S Gill QC and Mr Richard Alomo (instructed by Messrs Bart-Williams & Co) for the appellant

Mr Sean Wilken (instructed by The Treasury Solicitor) for the respondent

Lord Justice Potter
1

This is an appeal from a decision of the Immigration Appeal Tribunal dated 2 May 2002, by which the Tribunal dismissed an appeal from the decision of an adjudicator (Mr D J Boyd QC) on 29 November 2001 dismissing an asylum and human rights appeal by Andrey Krotov, a citizen of the Russian Federation in respect of removal directions served upon him as an illegal entrant on 1 June 2001. The basis of the claim for asylum was that the appellant feared persecution because he had evaded military service in the Russian army. Having been called up, he had been sent for military training for three months and, in January 2000, was sent to Grozny to fight in the Chechen war. The following month he deserted, escaped and came to the United Kingdom via the Ukraine. By a refusal letter dated 15 May 2001, the Secretary of State refused the applicant's application for asylum on the grounds that his claim did not engage the United Nations Convention relating to the Status of Refugees 1951 and Protocol of 1967 ("the Convention"), as the applicant had provided no ideological basis for his unwillingness to do military service. Upon appeal to the adjudicator against the dismissal of his asylum application and on the basis that his return to Russia would be an infringement of his rights under Articles 2, 3, 6 and 8 of the European Convention on Human Rights ("ECHR"), the adjudicator dismissed the appeal on both grounds.

2

So far as the asylum appeal was concerned, the reasons of the adjudicator appear clearly stated at paragraphs 23–25 of his decision as follows:

"23. In his witness statement [the appellant] expressed his objections thus:

"I did not want to fight in Chechnya as I have no reason to fight against Chechens and risk my life unnecessarily. My objection to war was therefore on the grounds of my moral conscience. Further I object to the war in Chechnya as one that is politically motivated and draw a distinction between a war that is not about the people as opposed to individual fight for power. I do not object to fighting for my country say, in the situation as in the Second World War as opposed to one in which I am required to be sent into action in Chechnya and kill innocent civilians and destroy property in a reprehensible manner."

24. In oral evidence at the hearing he complained about poor conditions in the army and bullying and beatings. He did not object to performing military service when he first became eligible in 1996 because he did not then think he would be involved in the war in Chechnya, which had by then been in progress for two years.

25. My assessment of the appellant's evidence is that while he objected to serving in Chechnya, he had no general objection to performing military service. (His witness statement contained some phrases indicative of a general objection to war, but my view is that it was only the one in Chechnya that he really objected to becoming involved in.) He does not qualify for refugee status since, according to my reading of his evidence, he has no genuine political, religious, moral or conscientious objection to military action in general. He might nevertheless qualify if the Chechen war has been condemned by the international community as contrary to basic rules of human conduct, but there is no evidence that it ever has been condemned in this way." (emphasis added)

3

So far as the appellant's human rights claim was concerned, the adjudicator stated:

"27.My view of the evidence is that appellant would indeed be liable for a term of imprisonment were he to be prosecuted for desertion on his return. It seems unlikely that he would be executed in view of the absence of any mention in the reports of executions now taking place for desertion. The extra judicial executions of deserters during the period 1994 to 1996 have apparently long since ceased. It cannot be said that imprisonment for a maximum term of seven years for desertion during a war is disproportionate and there is no evidence that any punishment suffered by the appellant would be disproportionately severe for any Convention reason.

28….

29.In her skeleton argument Miss Bagral submitted that the appellant's rights under Articles 2, 3, 6 and 8 would be breached by his return. She referred in particular to conditions suffered by recruits in the army; the nature of the Chechen war; the existence of human rights abuses in Russia; and the ill-treatment to which the appellant would be subjected.

30.While I accept that according to reports the human rights situation in Russia, the war in Chechnya and conditions in the army can be criticised, I am not satisfied that they are such as to render the appellant's return an infringement of any of his human rights."

4

The appellant obtained leave to appeal from the Immigration Appeal Tribunal on the grounds that it was arguable that "the Adjudicator's findings on the applicant's objections to performing military service are flawed".

5

Following a hearing on 22 April 2002, the Immigration Appeal Tribunal issued its determination on 2 May 2002. So far as is material for the present appeal, the Tribunal posed the following questions:

"Does a particular war need to have been internationally condemned before an asylum seeker can succeed in a claim under the Refugee Convention on the basis of a partial objection to it? If yes, has the conflict in Chechnya been internationally condemned? If no, does it meet whatever is the appropriate test?"

6

In relation to the first question, the argument before the Tribunal, and before this court, centred upon the meaning and emphasis to be attributed to paragraph 171 of the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status ("the Handbook"), first published in 1979 and last re-edited in 1992. However, before referring to the relevant text it is convenient to set out the definition of a refugee for the purposes of the Convention. It appears in Article 1A(2) which defines a refugee as a person who:

"…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." (emphasis added)

7

Chapter V section B of the Handbook states as follows under the heading "Deserters and Persons avoiding military service":

"167. In countries where military service is compulsory, failure to perform this duty is frequently punishable by law. Moreover whether military service is compulsory or not, desertion is invariably considered a criminal offence. The penalties may vary from country to country, and are not normally regarded as persecution. Fear of prosecution and punishment for desertion or draft-evasion does not in itself constitute well-founded fear of persecution under the definition. Desertion or draft evasion does not, on the other hand, exclude a person from being a refugee, and the person may be a refugee in addition to being a deserter or draft-evader.

168. The person is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons within the meaning of the definition, to fear persecution.

169. A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it could be shown that he has a well-founded fear of persecution on these grounds above and beyond the punishment for desertion.

170. There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.

171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to the basic rules of human conduct, punishment for desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution." (emphasis added)

8

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