MH (Syria) & DS (Afghanistan) v Secretary for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Jackson,Lord Justice Ward |
| Judgment Date | 24 March 2009 |
| Neutral Citation | [2009] EWCA Civ 226 |
| Date | 24 March 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2008/0942, 0942(A), 1378 and 1394 |
[2009] EWCA Civ 226
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
(AA/06912/2006 and AA/07062/2007)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Richards and
Lord Justice Jackson
Case No: C5/2008/0942, 0942(A), 1378 and 1394
Mark Muller QC and Edward Grieves (instructed by Trott & Gentry) for MH
Edward Grieves (instructed by Trott & Gentry) for DS
Neil Sheldon (instructed by The Treasury Solicitor) for the Secretary of State
Hearing dates : 15–16 December 2008
Lord Justice Richards :
These appeals were listed for hearing together because they both give rise to issues under Article 1F of the 1951 Convention relating to the Status of Refugees (“the Refugee Convention”). In terms of detailed analysis, however, the two cases have little in common, and it is convenient to deal with them sequentially.
MH (Syria)
MH is a 29 year old female Syrian Kurd who claimed asylum in the United Kingdom in March 2006. Her claim was refused by the Secretary of State and an appeal on asylum and human rights grounds was dismissed by an immigration judge in September 2006. Reconsideration was then ordered and it was found at the first stage of reconsideration that the first immigration judge had made a material error of law in relation to risk on return, in particular the immediate risk at the airport. At the second stage of reconsideration a panel consisting of Designated Immigration Judge Billingham and Immigration Judge Entwistle dismissed MH's asylum appeal, on the ground that she was excluded by Article 1F(c) from the scope of the Refugee Convention, but allowed her human rights appeal under Article 3 ECHR.
MH now appeals against the dismissal of her asylum appeal, whilst the Secretary of State cross-appeals against the decision to allow her human rights appeal.
The facts
The main facts, which were not in dispute, were set out at some length in the tribunal's decision. To summarise:
i) MH was born on 1 March 1980 in Derik in Syria, into a Kurdish family. Her parents were stripped of their Syrian nationality and became stateless Kurds. The family suffered constant harassment from the Syrian authorities.
ii) When MH was 12 years old, she travelled to meet Abdullah Ocalan in his camp in Lebanon, and returned home feeling much more patriotic and supportive of the PKK. In 1993 she attended a ceremony at which two of her cousins who had been killed as guerrillas were declared national heroes. It was then that she decided to join the PKK. On joining she was given the name “Jiyan” by the party. She remained in Derik, living not with her parents but with other Kurdish families. In late autumn 1993 she was elected to carry a banner in support of El-Assad and to march in front of the crowd. This was her first political act on behalf of the PKK. It resulted in her being beaten by the security forces and going into hiding. She was transferred after 10 days to a village near the border with Iraq, where she stayed for around one month.
iii) She was then transferred in a group of about 50 people into Iraq. She volunteered to be armed, although until then she had not even touched a gun. They crossed the border into Iraq and were taken to a PKK camp, but she was taken on from there to a camp called Haftanin which was populated by Kurdish families who had fled Turkey. It was situated in the Perakh valley near a PKK training camp. She became a member of the refugee community in the camp, and her duty was to resolve disputes between the refugees in the camp on behalf of the PKK.
iv) Towards the end of 1995, the Turkish army started conducting raids into Iraq, so a new camp was formed at Etrush, where she remained until 1999. The PKK decided she would not be a fighter but would contribute to the PKK in other ways. In 1996, she was given 3 months training in first aid and became an assistant nurse in a hospital in the camp.
v) In November 1997 she was one of a delegation taken to visit the PKK's camps in the mountains. The aim was to strengthen the links between her camp's residents and the PKK and to make them more informed about the guerrillas' situation. They went to the Qandil Mountains and then to Dola Koke, a training camp for guerrillas, where they visited the hospital. They then visited the Shehid Ayhan camp, staying there for a week, before moving on to the Shehid Harun camp. While at Shehid Harun, they became caught up in a clash between the PKK and the Turkish security forces. In attempting to get away MH stepped on a mine and was severely injured. She was eventually taken to Suleymaniye, where she had her leg amputated in a makeshift hospital. Altogether she spent 5 months in hospital. She was then transferred to a humanitarian organisation which fitted her with an artificial leg.
vi) After this she returned to her nursing duties, first at the Etrush camp and then at the Makhmoor camp. In 2000 and again in 2002 she had to have further operations on her leg.
vii) She said that after she lost her leg she also lost her will to struggle along with the PKK. In autumn 2000, when asked by PKK executives what she wished to do in the future, she said she wanted to get away from the political aspect. At her suggestion, which was accepted, she became a Kurdish language teacher to primary school children.
viii) In 2003 she sought permission to leave the PKK but this was refused. It was only in 2004 that she was allowed to leave the party, though remaining in the Makhmoor camp.
ix) In the meantime she had received news of her family. In February 2003 she heard that her sister, who had joined the PKK in 1997, had been killed in an avalanche in Iraq. She was also told that her father, who had remained in Syria, had been detained, and that her brother had left Syria to go to Lebanon, leaving only her mother at home.
x) Then, towards the end of 2005, one of her uncles visited her and said that the security forces in Syria continued to make enquiries about her and that they suspected she had joined the PKK. He said that her father was always being harassed because of his two PKK daughters and that her mother had been detained for questioning a number of times. MH considered that it was not safe to remain in the camp or to return to Syria; and, with her uncle's assistance, she made arrangements to travel to Istanbul and from there to the United Kingdom.
The tribunal's reasoning on the asylum appeal
Although some of the points are covered in greater detail earlier in its analysis, the tribunal's essential reasons for finding that MH came within Article 1F(c) are set out in para 31 of its decision:
“… [W]e find that there are serious reasons for considering that the appellant has been guilty of acts contrary to the purposes and principles of the United Nations (Article 1(F)(c)). The appellant had voluntarily become a member of the PKK in 1993 and this is an organisation whose main aim is to set up an independent Kurdish state in southeast Turkey. The PKK is involved in illegal military operations and is proscribed by the UK as a terrorist group by Schedule 2 of the Terrorism Act 2000. The appellant left school when she was 12 years old but after meeting Abdullah Ocalan, she decided to join the PKK after attending a ceremony when two of her cousins who had been killed as guerrillas were declared as national heroes. Although the appellant was still young at the time, she was elected to carry a banner in a large demonstration in support of El-Assad who in turn was supported by the PKK. During this demonstration the appellant was beaten by security officers after which she had left with the PKK. The PKK wanted them to be armed and she volunteered for this. She passed over into Iraq at the beginning of 1994. The appellant had a duty of resolving disputes on behalf of the PKK and in 1996 after three months training in first aid, she became an assistant/nurse in the hospital in the camp. She found she was suitable for this particular duty as she was not afraid of handling injured people. The appellant then visited PKK camps in the mountains to make them more informed about the guerrillas' situation in the mountains. She visited a hospital there, which was particularly educational for her. We found that although the appellant did not have a high level role in the PKK, she was fully aware at the time of the activities of the PKK and from her SEF statement, there is no indication that she was unhappy about her role with the PKK and supporting it through her duties. It was during a visit to the Shehid Ayhan camp, that she got caught up in a clash between the Turkish security forces and the PKK after which she received severe injuries from a mine in November 1997. Until this point the appellant was a voluntary member of the PKK and had personal knowledge of their activities which involved illegal military operations and she supported their infrastructure for this by her nursing the wounded and other duties. The appellant did not ask to resign from the PKK until 2003. Although it had been decided in 1996 that she would not be a fighter she contributed to the PKK by other means. The burden of proof is on the respondent to show that there are serious reasons for considering that the appellant has been guilty of acts contrary to the purposes and principles of the United Nations and we find that by her involvement with the PKK,...
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