MO (Freedom of Religion)
| Jurisdiction | England & Wales |
| Judge | P R Lane |
| Judgment Date | 24 June 2003 |
| Neutral Citation | [2003] UKIAT 108 |
| Court | Immigration Appeals Tribunal |
| Date | 24 June 2003 |
[2003] UKIAT 108
IMMIGRATION APPEAL TRIBUNAL
Mr P R Lane
Mr S S Ramsumair JP
For the Appellant: Ms J Sigley, Home Office Presenting Officer
For the Respondent: Mr K. McGuire, Counsel, instructed by Messrs Ziadies Solicitors
MO (Freedom of Religion) Eritrea
The Appellant, who is the Secretary of State for the Home Department, appeals with leave against the determination of an Adjudicator, Mr C J Bourn, sitting at Mansfield, in which he allowed under Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms the Respondent's appeal against the decision of the Secretary of State to give directions for his removal from the United Kingdom.
The Adjudicator dismissed the Respondent's appeal on asylum grounds. Having heard evidence from the Respondent, the Adjudicator found that “there is a reasonable likelihood that the [Respondent] is a Jehovah's Witness” and “that that [Respondent] was arrested in Eritrea for refusing to undertake military service.” (Determination, paragraph 21). However, at paragraph 22 the Adjudicator had this to say:–
“There is no evidence that the [Respondent] was unable to live without problems in Eritrea between his expulsion from Ethiopia and his being arrested in his connection with his refusal to undertake military service, a period of two years. The civil disadvantages suffered by Jehovah's Witnesses in Eritrea are not grounds of persecution in themselves.”
The Tribunal notes that, in making that finding, the Adjudicator had before him considerable material relating to Eritrea, in particular a bundle of documents submitted by the Respondent (as he now is), including the US State Department Report on Eritrea and the Home Office Country Assessment on that country, as well as the Human Rights Watch Report.
The Adjudicator went on to consider whether the Respondent's claim came within the Refugee Convention by reason of his refusal to undertake military service, and what the consequences of that might be. At paragraph 24 the Adjudicator noted that
“the Court of Appeal in Sepet and Bulbul held that there is no Convention right to conscientious objection to military service. The penalty for avoidance of military service is not disproportionate and the objective evidence does not support the conclusion that there is discrimination against Jehovah's Witnesses in the application of that penalty. I conclude that the [Respondent] has not established a well-founded fear of persecution on grounds of religious belief in that he has been able to live peacefully for two years prior to his arrest for draft evasion.”
Having dealt with the claim under the Refugee Convention, the Adjudicator turned to human rights. Before the Adjudicator, the Respondent's representative, Mr McGuire, submitted that the Respondent's rights under Articles 3 and 9 of the ECHR were engaged.
The Adjudicator considered Article 3. He noted that, as found in Ireland v United Kingdom (1979) 2 EHRR 25, ill-treatment must reach a minimum level of severity in order to breach Article 3. The assessment of this is relative, depending on all the circumstances of the case including duration, physical and mental effects and the circumstances of the victim. Applying those standards to the present case, the Adjudicator stated as follows:–
“I conclude that the ill-treatment consisted principally in the circumstances of [the Respondent's] confinement following his arrest for refusal of military service, that is to say, in his prison conditions. Such conditions are not to be judged by the standards of the European Convention. One has to have regard to what are the expected conditions in the individual country. No doubt the prison conditions are unpleasant, but that in itself is not a good reason for saying that return is impossible because the [Respondent] is likely to be prosecuted and possibly imprisoned.”
The Adjudicator accordingly found that if the Respondent were now to be returned to his country of nationality “there is not a real risk he will suffer a breach of his protected rights under Article 3.”
The Adjudicator turned finally to Article 9. He found that the 1994 Eritrean presidential decree restricting the rights of Jehovah's Witnesses “fails to pass the test of being necessary in a democratic society for any of the prescribed purposes. It follows that Jehovah's Witnesses in Eritrea are subject to discrimination under Article 14 in respect of their rights to manifest their belief under Article 9. The Appellant's rights under Article 9 would be infringed were he to be returned to Ethiopia [the Adjudicator clearly means Eritrea].” The Adjudicator accordingly allowed the appeal under Article 9 of the 1950 Convention and purported to direct that the Respondent be granted exceptional leave to remain.
The Vice-President who granted leave to appeal noted that “the grounds contend with arguable merit that the Adjudicator was wrong to allow the appeal on Article 9 grounds. They rely on part on the Court of Appeal judgment in Ullah. Even on the Tribunal approach of considering whether there is a flagrant denial of qualified rights, the Adjudicator was arguably wrong”
At the commencement of the hearing, Mr McGuire applied for an adjournment. He said that the case of Ullah and Do [2002] EWCA Civ 1856 was due to be heard in the House of Lords in the autumn of 2003. He was seeking an adjournment until after the House of Lords' decision had been made.
For the Appellant, Ms Sigley opposed the application. She said it was unlikely that a decision would be forthcoming before the end of the year. In any event, if the result were to favour the Respondent, then there were further avenues available to him.
The Tribunal...
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