Upper Tribunal (Immigration and asylum chamber), 2003-10-29, [2003] UKIAT 108 (MO (Freedom of religion))
| Jurisdiction | UK Non-devolved |
| Judge | Mr P R Lane, Ms S S Ramsumair JP |
| Status | Reported |
| Date | 29 October 2003 |
| Published date | 24 February 2005 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 24 June 2003 |
| Subject Matter | Freedom of religion |
| Appeal Number | [2003] UKIAT 108 |
MO (Freedom of Religion) Eritrea [2003] UKIAT 00108
Heard at Field House
On 24 June 2003
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
29.10.03
Before:
Mr P R LANE
Mr S S RAMSUMAIR JP
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
APPELLANT
and
RESPONDENT
Appearances:
For the Appellant: Ms J Sigley, Home Office Presenting Officer
For the Respondent: Mr K. McGuire, Counsel, instructed by Messrs
Ziadies Solicitors
DETERMINATION AND REASONS
1. 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.
2. 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.”
3. 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.
4. 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.”
5. 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.
6. 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...
Heard at Field House
On 24 June 2003
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
29.10.03
Before:
Mr P R LANE
Mr S S RAMSUMAIR JP
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
APPELLANT
and
RESPONDENT
Appearances:
For the Appellant: Ms J Sigley, Home Office Presenting Officer
For the Respondent: Mr K. McGuire, Counsel, instructed by Messrs
Ziadies Solicitors
DETERMINATION AND REASONS
1. 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.
2. 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.”
3. 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.
4. 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.”
5. 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.
6. 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...
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