Sepet and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 07 April 2000 |
| Date | 07 April 2000 |
| Court | Immigration Appeals Tribunal |
Immigration Appeal Tribunal
Mr Justice Collins (President) P R Moulden Esq (A Vice-President)
R Scannell for Sepet
Miss N Finch for Bulbul
R Tam for the respondent
Cases referred to in the determination:
Zelfagharkhani v Minister of Employment and Immigration [1993] FC 373.
Zaitz v Secretary of State for the Home Department (unreported, CA 28 January 2000).
Foughall (unreported) (HX/87716/97).
Asylum — fear of persecution because of unwillingness to perform military service — whether appellants were Convention refugees — tests to be applied where appellants assert a conscientious objection only in particular circumstances. UNHCR Handbook 167–174.
The appellants were citizens of Turkey, Kurds. They had been refused asylum by the Secretary of State: their appeals had been dismissed by a special adjudicator. On appeal the principal element in the case of each appellant was his unwillingness to perform military service in Turkey, which was obligatory. Each asserted that he would be willing to perform military service in certain circumstances but not when it might involve serving in operations against Kurds and taking part in a conflict they considered had been internationally condemned.
The Tribunal considered the tests to be applied in assessing the validity of what it termed ‘partial objections’ to military service.
Held:
1. Partial objections to military service may be part of valid reasons for avoiding military service but must be subject to close scrutiny.
2. It is first necessary to establish exactly what type of military service was objected to and why.
3. It should then be established whether the armed services are engaged in a ‘type of military action condemned by the international community as contrary to basic rules of human conduct’. Formal international condemnation is not essential.
4. It should be established whether an individual is likely to have to perform military service in a way that would involve taking or being closely involved in actions offending the basic rules of human conduct.
5. There is no absolute threshold, degree of international condemnation or level of violation of basic rules of human conduct which, once established for a particular country or conflict, entitles an applicant to refugee status. Each case must be considered in the light of all the circumstances.
Determination
1. The appellants, Yasin Septet and Erdem Bulbul, are citizens of Turkey. Both are Kurds. They have been given leave to appeal against separate decisions of the same special adjudicator (Mr J R L G Varcoe CMG) dismissing their appeals against the decisions of the respondent. Yasin Sepet was refused leave to enter and also refused asylum under paragraph 180D of HC 725. The respondent gave directions for the removal of Erdem Bulbul from the United Kingdom and also refused him asylum under paragraph 338 of HC 395.
2. 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.
3. Having prepared this determination we have seen the draft Tribunal determination of Mr J Fox and Dr H H Storey in the appeal of Naseradine Foughhall HX/87716/97. We believe that there are no differences of principle between that determination and this. The determinations are compatible.
4. Immigration and appeal history
5. Yasin Sepet was born on 1 February 1971. He arrived in the United Kingdom on 11 October 1990 and claimed asylum immediately. The respondent's decision is dated 29 September 1993. Unfortunately, the appeal hearing before Mr Varcoe was the third time the appeal had come before a special adjudicator; two previous appeals having been allowed by the Tribunal and remitted for hearing de novo. The appeal was heard by the special adjudicator on 3 October and 28 November 1997 and his determination promulgated on 19 February 1998. Leave to appeal was granted on 17 April 1998.
6. Erdem Bulbul was born on 25 August 1977. He is said to have arrived in the United Kingdom on 29 April 1996. He claimed asylum on 7 May 1996. The refusal letter is dated 8 July 1996 and the respondent's decision 11 July 1996. The appeal was heard by the special adjudicator on 11 February 1998 and promulgated on 9 March 1998. The Tribunal refused leave to appeal on 30 March 1998 but, following an application for judicial review, there was a consent order quashing the Tribunal decision and granting leave to appeal.
7 The hearings before the special adjudicator and his determinations—Yasin Sepet
8. The special adjudicator found that Yasin Sepet was an articulate, quickwitted and politically conscious person with strong views. He believed parts of his claim but concluded that other parts had been either embellished or fabricated. He was not a generally reliable witness.
9. However, the special adjudicator accepted Yasin Sepet's account of events up to and including his second arrest in 1988. This account was that he was born in a village in the district of Golbasi in Adiyaman province in south-east Turkey. Whilst at school he was beaten and expelled for reading a leftist publication. He left school in 1985 and joined the leftist political youth group affiliated to the TKEP (Turkish Communist Service Party). He distributed leaflets and attended meetings of the youth wing, which sought to promote Kurdish rights. All his family and friends had leftist beliefs. He has a brother who came to the United Kingdom and is said to have been granted refugee status. The family experienced almost routine harassment and discrimination from the authorities. In 1986 a group of villagers were about to establish a local organisation. Soldiers came to Yasin Sepet's house and arrested him. They claimed that the group was to be a front for Communist propaganda. Yasin Sepet was taken to Golbasi, held for 33 days and ill-treated.
10. In 1988, whilst working as a peddler the gendarmes stopped and checked him for military service eligibility. He was 18 at the time, and not yet liable, but was arrested because he was found in possession of leftist magazines. He was detained for 31 days at the military police station and ill-treated. He claimed to have been stripped, beaten and forced to walk in a tub of hot water containing salt and broken glass. The special adjudicator did not accept that he had been tortured in this way, although he accepted that he had been ill-treated. Furthermore, the special adjudicator, whilst finding that Yasin Sepet had been released, did not accept that it was on condition that he report to a police station once a week.
11. Yasin Sepet then went to Antalya where he got a job in a hotel. He claimed to have been detained in September 1989. He said the TKEP had instructed him to contact tourists so that the boats they used when travelling to nearby Greek islands could be used to smuggle out political activists. He also claimed to have helped potential escapers by harbouring them in the hotel where he worked. He claimed to have done this for six or seven months before the police came and arrested four people. The three others were released after 15 days but he was charged. After 20 days detention in Antalya he was taken to Adiyaman where he was held for a further 91 days at the police station. He was beaten and starved. He was released after his relatives bribed the prosecutor. Because of his vagueness and a number of important inconsistencies the special adjudicator did not accept Yasin Sepet's claims to political involvement, political activities, arrest or ill-treatment after he moved to Antalya.
12. After his release Yasin Sepet claimed to have returned to Antalya where he resumed the same job and his political activities. The police in Adiyaman learnt that the prosecutor had been bribed and put pressure on his father to tell them where he was. His father warned him and he fled to Ankara where he stayed for one day before leaving the country with his cousin. Having concluded that Yasin Sepet was not arrested in Antalya the special adjudicator went on to conclude that his account of subsequent events was untrue, except for the circumstances in which he obtained a passport and left the country.
13. In relation to military service the special adjudicator found that Yasin Sepet would have become liable for conscription when he reached his twentieth birthday, in February 1991 and would still have been liable at the date of the determination. The special adjudicator's conclusions in relation to Yasin Sepet's beliefs were that ‘the appellant has not claimed to have a conscientious objection to serving his country or to donning a uniform. Rather 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. He believes, and I accept, that this belief is genuine, that if he refuses to obey orders, he could himself be shot. I find that the appellant genuinely holds these views. Although I have doubts about his explanation in his additional statement that the issue of military service had not been pursued at his first appeal hearing because he had not been asked questions about it, I consider that his views are, from his perspective, entirely understandable in someone holding his political views, particularly when these are seen against the media reports of the violence and atrocities committed by both sides in...
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