Sepet and Another v Secretary of State for the Home Department
|England & Wales
|Lord Justice Laws,Lord Justice Jonathan Parker,Lord Justice Waller
|11 May 2001
| EWCA Civ 681
|Case No: C/2777 & C/2000/2794
|11 May 2001
|Court of Appeal (Civil Division)
 EWCA Civ 681
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THEIMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Lord Justice Laws
Lord Justice Jonathan Parker
Case No: C/2777 & C/2000/2794
Ian Macdonald QC, Nadine Finch and Rick Scannell (instructed by Deighton Guedalla (First Appellant Sepet) and Birnberg Peirce & Partners (Second Appellant Bulbul) for the Appellants)
John Howell QC and Mark Shaw (instructed by The Treasury Solicitors for the Respondent)
Tim Eicke (instructed by Wesley Gryk, for the United Nations High Commissioners for Refugees)
These appeals are brought against a determination of the Immigration Appeal Tribunal ("the IAT") promulgated on 23 May 2000 and now reported at . By that decision the IAT, chaired by its President, Collins J, dismissed the appellants' appeals against decisions of the same Special Adjudicator, who had in each case dismissed the appellant's appeal to him against the Secretary of State's refusal of asylum. Collins J himself gave permission to appeal to this court on 16 June 2000, stating that the decision of the IAT "was intended to settle the right approach to Turkish military service/draft dodgers", and that the matter should be considered by the Court of Appeal. At paragraph 3 of the determination itself the IAT had said:
"Although these are not starred cases because the President is sitting with only one legally qualified Chairman, they are intended to give guidance on the questions raised and should be followed in preference to any other tribunal decisions which touch on these issues. This decision should therefore be regarded as authoritative and should be regarded as binding on all Adjudicators and Tribunal Chairman."
Both appellants are Kurds from Turkey. Mr Sepet arrived in the United Kingdom on 10 October 1990 and claimed asylum immediately. It was refused by the Secretary of State on 29 September 1993. The effective determination of the Special Adjudicator in Mr Sepet's case was not promulgated until 19 February 1998, after hearings on 3 October 1997 and 28 November 1997. Unfortunately this was the third time the case had gone before a Special Adjudicator: two previous appeals had been allowed by the IAT, and on each occasion the matter was remitted for a fresh hearing. Ultimately leave to appeal against the Special Adjudicator's decision was granted on 17 April 1998.
Mr Bulbul is said to have arrived in the United Kingdom on 29 April 1996. He claimed asylum on 7 May 1996, which was refused on 11 July 1996. His appeal to the Special Adjudicator was dismissed by a decision promulgated on 9 March 1998. The IAT's refusal of permission to appeal from that decision was quashed in the High Court, and so leave to appeal to the IAT was at length given in Mr Bulbul's case also.
The Special Adjudicator found that Mr Bulbul is an Alevi Kurd with nationalist views. He accepted part of his evidence but not the whole of it. He considered that Mr Bulbul had exaggerated and embellished his claim for asylum. He found that Mr Bulbul had failed to establish that there was a reasonable likelihood that he would be persecuted on account of his previous political activities, which had been at a very low level, if he were required to return to Turkey.
In relation to Mr Bulbul's objection to doing military service, the Special Adjudicator found that "his reasons relate to his general antipathy towards the policy of the Turkish Government to oppose self determination for the Kurdish people". Mr Bulbul did not claim that he would refuse to serve in the military under all circumstances; the Special Adjudicator found that "his fear is that he might be sent to the operational area and be required to take military action, possibly involving atrocities and abuse of human rights, against his own people. I do not consider that his objection is therefore one of moral conviction but rather that it stems from his political views". The Special Adjudicator entertained "serious doubts as to whether [Mr Bulbul] has any objections other than one of political disagreement". But in any event he was not satisfied that, if he did serve, Mr Bulbul would be "associated with acts that offend the basic rules of human conduct". Although the Special Adjudicator found that people of Kurdish origin sometimes suffer discrimination and taunts during military service at the hands of their Turkish compatriots, he was not satisfied that this would amount to persecution.
The Special Adjudicator found that Mr Bulbul would be liable to be apprehended on his return to Turkey, and face a charge carrying a sentence of between six months and three years imprisonment if found guilty if he continued to refuse to undertake military service. There was no suggestion that Kurds are treated more harshly than others under the penal code. While there is no provision for civilian alternatives to military service, the Special Adjudicator found that such a sentence could not be considered as either excessive or disproportionate.
The Special Adjudicator found that Mr Sepet was not a generally reliable witness. He had at best embellished and at worst fabricated certain important parts of his evidence. He found that Mr Sepet had engaged in some low level leftist and opposition politics before he left Turkey in October 1990. But he was not satisfied that the Turkish authorities would have any interest in him on account of any past activities, or that he might be tortured as a political detainee on his return. He concluded that Mr Sepet did not have a genuine fear of persecution when he left Turkey on the basis of his political record. He was not satisfied that there was a serious likelihood of his being persecuted for leftist activities if returned to Turkey.
The Special Adjudicator was prepared to accept that Mr Sepet would still be liable for conscription on his return to Turkey. Mr Sepet did not claim that he would refuse to serve in the military in all circumstances: the Special Adjudicator found that "his objections stem from his political opposition to the present Turkish Government and from his determination not to be involved on behalf of the Turkish Army in atrocities which he claims he might be required to participate in, especially against his own people in the Kurdish Areas… Whilst I largely discount his somewhat effusive embrace of human rights, I accept that his reluctance to do his [military service] does stem from his genuine political opinions". He found, however, that Mr Sepet had failed to demonstrate "that his conscription into the Turkish army would involve him in being required to engage in military actions which have been condemned by the international community as contrary to the basic rules of human conduct".
The Special Adjudicator also found in Mr Sepet's case that the prison sentence which Mr Sepet might face was not so excessive or disproportionate as to amount to persecution. Accordingly, Mr Sepet had failed to satisfy him that there was a serious possibility that he would be persecuted on account of his political opinions if he had to return to Turkey.
THE CONVENTION AND THE UNHCR HANDBOOK
It is convenient before proceeding further to set out the material provisions of the 1951 Geneva Convention on the Status of Refugees ("the Convention"). The second recital is in these terms:
"Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms".
Then Article 1A defines a "refugee" as
"any person who:
(2) 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;…"
In view of one aspect of the case which I will discuss in due course, I should also set out Art. 1F:
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."
In addition I should also at this stage refer to the material provisions of the Handbook on Procedures and Criteria for Determining Refugee Status ("the Handbook"). It was published in 1979 by the United Nations High Commissioner for Refugees ("UNHCR"), and has been re-edited from time to time, most recently I think in 1992. Its status, or at any rate its legitimate utility in the resolution of questions concerning the application and interpretation of the Convention, has from time to time been the subject of comment in the decided cases. It is not, with respect, necessary to refer to the texts in question since, as I understand it, it is generally (and plainly rightly) accepted that while the Handbook is not authoritative, and certainly not a source of law, it offers useful guidance in relation to...
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