Sepet v SSHD

The issue in this appeal is whether the applicants, both of them Turkish nationals of Kurdish origin, should have been granted asylum on the ground that they were refugees within the meaning of article 1A(2) of the 1951 Geneva Convention relating to the Status of Refugees and the 1967 Protocol to that Convention. The ground upon which asylum was claimed related to their liability, if returned to Turkey, to perform compulsory military service on pain of imprisonment if they refused. Their claims for asylum were rejected by the respondent Secretary of State, and challenges to his decisions were successively rejected by the Special Adjudicator (Mr J R L G Varcoe CMG), the Immigration Appeal Tribunal (Collins J and Mr P R Moulden) and the Court of Appeal (Waller, Laws and Jonathan Parker LJJ: [2001] EWCA Civ 681). In argument before the House, as in the Court of Appeal, helpful submissions were made on behalf of the United Nations High Commissioner for Refugees.

By section 8(1) of the Asylum and Immigration Appeals Act 1993 (in force at the relevant time)

"A person who is refused leave to enter the United Kingdom under the 1971 [Immigration] Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the [1951] Convention".

Paragraph 334 of the Immigration Rules (HC 395, 1994) expands the language of the subsection:

"An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:

(i) he is in the United Kingdom…..; and

(ii) he is a refugee, as defined by the Convention and Protocol; and

(iii) refusing his application would result in his being required to go …; in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group."

These last words reproduce some of the language of the Convention itself, made in 1951 in direct response to what was then very recent history. Thus the preamble to the Convention referred to the rights and freedoms recognised in the Universal Declaration of Human Rights approved in 1948 and recorded that the United Nations had

"on various occasions manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms".

For purposes of the Convention a refugee was defined by article 1A(2) to mean any person who

"owing to 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 the very extensive discussion of this definition the five grounds specified have conveniently come to be known as "Convention reasons". Article 1 of the Convention also contains, at F, an important exclusion:

"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 any asylum case the facts are all-important and these cases are no exception. The first applicant, now aged 32, has not claimed to have a conscientious objection to bearing arms, serving his country or donning a uniform. His objections to military service stemmed from his political opposition to the policies of the then Turkish Government and from his wish not to be required to participate in actions, including atrocities, which he alleged to be perpetrated against his own people in the Kurdish areas of the country. The special adjudicator accepted that this applicant's reluctance to perform military service stemmed from his genuine political opinions, but found no reasonable likelihood that he would be required to engage in military action contrary to the basic rules of human conduct, even assuming that he was required to serve in a predominantly Kurdish area of Turkey. This applicant's wish to avoid military service was at least one of his reasons for leaving Turkey (which he did in 1990). He would still be regarded as liable for conscription on his return and might be charged with the offence of draft evasion, not having returned sooner. Any further refusal on his part would almost certainly lead to the preferment of charges against him.

The second applicant is now 25. He arrived in the United Kingdom in 1996. He later claimed that he would have received his call-up papers in August 1997 and become liable to call-up in about February 1998. He would be liable to be apprehended on his return to Turkey and to face a charge of draft evasion if he continued to refuse to serve. He has not claimed that he would refuse to wear uniform in all circumstances. His objection to performing military service related to his general antipathy towards the policy of the then Turkish Government to oppose self-determination for the Kurdish people. He also feared that he might be sent to the operational area and required to take part in military action, possibly involving atrocities and abuse of human rights, against his own people. The special adjudicator found that this applicant's objection was not one of moral conviction but, rather, stemmed from his political views. He found no reasonable likelihood that this applicant would be required to engage in, or be associated with, acts offending against the basic rules of human conduct.

Turkish law at present provides no non-combatant alternative to military service. Draft evaders are liable to a prison sentence of between 6 months and 3 years. On completion of the sentence the offender is required to undertake his military service. It is an agreed fact that those who refuse to perform military service in Turkey (including Kurds) are not subject to disproportionate or excessive punishment, in law or in fact, as a result of their refusal. Draft evaders are liable to prosecution and punishment irrespective of the reasons prompting their refusal.

The task of the House is to interpret the 1951 Convention and, having done so, apply it to the facts of the applicants' cases, between which it is unnecessary to distinguish. In interpreting the Convention the House must respect articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969:

Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable."

It is plain that the Convention has a single autonomous meaning, to which effect should be given in and by all member states, regardless of where a decision falls to be made: R v Secretary of State for the Home Department Ex p Adan [2001] 2 AC 477. It is also, I think, plain that the Convention must be seen as a living instrument in the sense that while its meaning does not change over time its application will. I would agree with the observation of Sedley J in R v Immigration Appeal Tribunal, Ex p Shah [1997] Imm AR 145, 152:

"Unless it [the Convention] is seen as a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form, the Convention will eventually become an anachronism."

I would also endorse the observation of Laws LJ in R v Secretary of State for the Home Department, Ex p Adan [2001] 2 AC 477, 500:

"It is clear that the signatory states intended that the Convention should afford continuing protection for...