Upper Tribunal (Immigration and asylum chamber), 2009-12-02, [2009] UKAIT 48 (ZQ (Serving soldier))
| Jurisdiction | UK Non-devolved |
| Judge | Dr HH Storey, Mr C P Mather, Mr Cox R, A |
| Status | Reported |
| Date | 02 December 2009 |
| Published date | 02 December 2009 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 23 January 2009 |
| Subject Matter | Serving soldier |
| Appeal Number | [2009] UKAIT 48 |
ar
Asylum and Immigration Tribunal
ZQ (serving soldier) Iraq CG [2009] UKAIT 00048
THE IMMIGRATION ACTS
|
Heard at Birmingham, 10 June 2008 and Field House, |
|
|
23 January 2009 |
|
|
|
|
Before
SENIOR Immigration Judge STOREY
SENIOR IMMIGRATION JUDGE MATHER
IMMIGRATION JUDGE COX
Between
ZQ
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the appellant: Ms S Akinbolu of Counsel instructed by Rai Braich Solicitors
For the respondent: Mr L Petryszyn, Home Office Presenting Officer (10 June 2008), Mr J Eadie QC and Mr S Wordsworth instructed by the Treasury Solicitor (thereafter)
i) There is no reason to seek to develop special principles of refugee law to deal with cases of soldiers. The approach to the meaning of persecution and protection (and of the need for protection to be practical) as set out in Horvath [2000] UKHL 37 and in the Persons In Need of International Protection Regulations SI 2006/2525 is well able to accommodate such cases. The case of Fadli [2000] EWCA Civ 297 has to be read and applied in the light of in the subsequent decisions of the higher courts, including Sepet and Bulbul [2003] UKHL 15 and Krotov [2004] EWCA Civ 69 as well as in the light of the Protection Regulations.
ii) Whether an asylum claimant is a soldier rather than a civilian has a significant impact on risk assessment. Assessment of any harm a soldier if returned might face must take account of his particular circumstances, including when he is not in barracks or on active duty. However, in general, serving soldiers cannot expect to be protected against military violence.
iii) As a general rule fears a soldier may have about having to perform military service cannot give rise to a refugee claim. That rule, however, is subject to exception. One exception already identified by the Tribunal and higher courts concerns those who would face punishment for being forced to participate in acts contrary to international humanitarian law (IHL). A further exception may arise when serving soldiers face being exposed by their country’s commanders to a consistent pattern of military violence contrary to the laws of war. However, where fighting of this kind is taking place the state’s duty to protect its soldiery will be heavily attenuated, by virtue of its primary responsibility to defend itself and its citizenry and will in any event vary depending on a wide range of circumstances.
iv) Enemy targeting of a soldier off duty or of members of his family is not necessarily contrary to IHL but may very often be contrary to IHL norms of military necessity, distinction and proportionality.
v) Insofar as the risk categories of NS (Iraq; perceived collaborator; relocation) Iraq CG [2007] UKAIT 00046 may cover persons who by virtue of their work have become members of the Multinational Forces or the Coalition Provisional Authority, application of its guidance will need to bear in mind that the state’s duty to protect them will be very limited.
vi) NH (Iraq-Yazidis) Iraq CG [2004] UKIAT 00306 is no longer to be followed. Whilst being a Yazidi does not as such place a person at risk on return to central and southern Iraq, it is a significant risk factor and special reasons would need to exist for not finding that such a person faces a real risk of persecution or treatment contrary to Article 3 ECHR.
DETERMINATION AND REASONS
1. At the heart of this case is the question of whether a soldier who faces return to serve in his country’s armed forces can ever succeed in a claim for international protection based solely on his fear that his commanders will fail to protect him against being the victim of war crimes. Throughout this determination we use the term “soldier” to describe a member of the armed forces, the term “laws of war” or “rules of war” as shorthand to describe the rules of international humanitarian law (IHL), and the term “war crimes” (unless the context specifies otherwise) as a rough shorthand for serious violations of the laws of war. At different points we cite the main treaties comprising IHL, namely:
the 1949 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GCI);
the 1949 Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GCII);
the 1949 Geneva Convention III Relative to the Treatment of Prisoners of War (GCIII);
Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (GCIV);
1977 Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (API); and
The 1977 Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (APII)
2. However, we should emphasise that our essential focus when doing so is on the above as a source for IHL norms accepted as forming part of customary international law and we are concerned primarily with the IHL norms applicable to internal [i.e. non-international] rather than to international armed conflict. For the most part our focus is on persons who are ordinary soldiers, i.e. members of their country’s armed forces and we do not as such address the sometimes more complex situation of irregular fighters. Nor do we seek to deal with persons who are members of the police or intelligence services except to the extent that IHL would treat them as forming part of a country’s armed forces. We should add that although this case is concerned with return to a country, Iraq, which (at least for IHL purposes) remains in a state of internal armed conflict, it is not concerned with the issue of whether an appellant can qualify for subsidiary/humanitarian protection under Article 15(c) of the Refugee Qualification Directive (para 339(iv) of Statement of Immigration Rules HC395 as amended), since the material scope of that provision is confined to civilians. This case is about a soldier. Hence we do not need to examine the relevance of the recent judgment of the European Court of Justice which dealt with Article 15(c), Case C-465/07 Elgafaji v Staatssecretaris van Justitie, 17 February 2009 or the Court of Appeal judgment in QD (Iraq) [2009] EWCA Civ 620.
3. The appellant is a national of Iraq. On 17 August 2005 the respondent decided to remove him as an illegal entrant having refused to grant him asylum. On 10 May 2006 Immigration Judge (IJ) Hobbs dismissed his appeal. His subsequent application for an order for reconsideration of this dismissal resulted in a decision dated 8 November 2006 by Senior Immigration Judge (SIJ) Nichols who found a material error of law. Following a second-stage reconsideration hearing Designated Immigration Judge (DIJ) O’Malley decided on 31 January 2007 to (again) dismiss his appeal. However, onward appeal by the appellant resulted in a Court of Appeal consent order dated 28 January 2008 remitting his case on the basis of an agreed Statement of Reasons, which highlighted two concerns about DIJ O’Malley’s decision: first his treatment of the appellant as a member of the New Iraq Army (or Iraqi Security Forces or ISF) returning to military duties without placing that in the context of his previous history of attacks on him and his family by insurgents in Mosul; and second the fact that the assessment of risk to the appellant should have encompassed not just his life when serving as a soldier but also his life when not actually performing military service. The Statement concluded thus:
“Accordingly, on the basis of a grant of [permission to appeal to the Court of Appeal] by Senior Immigration Judge Storey on 23 May 2007, the Respondent accepts that there is potential arguability in the Appellant’s case and that it would be pragmatic for the matter to be remitted back to the Asylum and Immigration Tribunal. The parties request that the sole matter under consideration upon remittal is the risk to the Appellant as a member of the New Iraqi Army returning to military duties in conjunction with the previous history of attack by insurgents and the targeting of his family in Mosul.”
4. The appellant’s appeal was the subject of a hearing in Birmingham on 10 June 2008 before SIJ Storey and IJ Cox. The Tribunal subsequently decided that it needed further submissions on a number of questions which it set out in a memorandum to the parties dated 22 August 2008. This memorandum also put the parties on notice that there would be a further hearing in which the Tribunal would be joined by a third member, SIJ Mather. At this further hearing held at Field House on 23 January 2009 Miss Akinbolu again represented the appellant. Representation of the respondent, however, now passed to Mr Eadie QC and Mr Wordsworth, the former dealing mainly with the law and the latter with the application of the law to the appellant’s particular circumstances. The parties confirmed their consent to the panel now being three. Subsequent to the hearing we learnt that the Court of Appeal had given judgment in Secretary of State for Defence v Smith (on the application of) [2009] EWCA Civ 441 and gave until 12 June 2009 for the parties to...
To continue reading
Request your trial