Pinhas Peter Matkov v. Secretary of State for the Home Department

DETERMINATION AND REASONS

The appellant, a citizen of Israel, appeals against a decision of an adjudicator (Mr M Patey MBE) dismissing his appeal against an application for leave to remain based on asylum. Before us the appellant was represented by Mr K Drabu of the United Kingdom Immigrants Advisory Service and the respondent by Mr A Gammons.

The relevant immigration rule is set out in HC 169, paragraph 134, which reads:

"134.     A person may apply for asylum in the United Kingdom on the ground that, if he were required to leave, he would have to go to a country to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any such claim is to be carefully considered in the light of all the relevant circumstances."

In essence the appellant claims that he has a well-founded fear of persecution primarily because of the harassment he will suffer due to his religious objections to military service, such service being compulsory in Israel. He also bases his claim on the discrimination he suffers because he is Christian - in particular that by Israeli law he cannot marry a Jew or an Arab in Israel.

The facts are not in dispute. The appellant arrived in the United Kingdom on 2 December 1981 and was granted an extension of leave to remain as a visitor until 2 December 1982. On 1 November 1982 the appellant (as the adjudicator held) applied for asylum.

The appellant and his family came originally from the Soviet Union. In April 1977 went to Israel. According to a supplementary explanatory statement summarised by the adjudicator the background to the application was as follows:

"The family were very strong Christians and the appellant's father felt that, according to the Bible, all Christians should gather in Jerusalem. His sister had remained in Russia. Prior to leaving Russia, the appellant had completed his studies and qualified for a Bachelor of Science degree in Electrical Engineering in 1981. He had also been employed as an engineer in a computer centre. He had been issued with an Israeli passport in January 1981 and he no longer held a Russian passport. The main reason why he left Israel was because he had not undertaken his military service and he confirmed that he had no interest in politics. The appellant claimed that if he was to return to Israel he could face a 15-year prison sentence for evading military service. He did not agree with military service and he did not feel that Israel was really his country since he had never properly settled there. His brother, who had left with him, entered Canada as a student. The appellant himself had been refused settlement visas by both the Australian and Canadian High Commission Offices in London."

The adjudicator summarised the appellant's evidence before him:

"The appellant, in the course of his evidence, confirmed that he was a practicing Christian and that he objected to any form of military service on religious grounds. He did not believe in any form of violence or of taking up arms. His mother had told him that the authorities informed her that he could serve 15 years imprisonment for refusing to undertake military service in Israel. His Russian qualification as a computer engineer had not been recognised and even after obtaining an Israeli degree, he had been unable to obtain employment in the electronics and computer field in that country. If he returned to Israel he would refuse to undertake military service and would be sent to prison and he did not believe he would be able to obtain any employment after his release. Moreover, he would not be able to marry in Israel since most of the population were either Jewish or Arab and under Israeli law it was not possible for a Christian to marry either a Jew or an Arab. He found difficulty in practising his religion freely and he felt that if the people he had studied with were aware he was a Christian they would not associate with him.

The appellant, in answer to Mr Canning's questions, said that everyone in Israel was required to carry arms even if they were exempted from military service. He agreed that he was a citizen of Israel holding a full Israeli passport. After completing his course in Israel he had applied to most of the companies in the electronics and computer field but he had been unable to obtain employment. He agreed that these companies were mostly involved with the supply of military equipment and he wished to obtain work in the civil sector. He conceded that he had not recorded this reservation on his application forms for employment. He wished to have the right to live freely in the United Kingdom."

The adjudicator in dismissing the appeal followed the Tribunal's determination in 1976 in Doonetas (820) to the effect (as he saw it) that:

"…. where all citizens of a country are liable to compulsory military service, an objection to undertaking such service does not qualify a person to asylum in the United Kingdom"

The adjudicator noted the Tribunal's decision in 1982 in Church (2288), in 1983 in Van Zyl (2616) and also in 1983 in Swick (2892) in which it was accepted that refusal to undergo compulsory military service in South Africa because of an abhorrence of apartheid, provided a basis for asylum for South African nationals. The adjudicator continued:

"Nevertheless, I cannot accept that the special circumstances in the South African cases before the Tribunal exist in the present appeal; indeed it would appear that the appellant's objections to undertaking military service stem from a general Christian conviction against the use of arms and are not specific to any aspect of Israeli Government policy. For these reasons I am not satisfied that the appellant qualifies for asylum in the United Kingdom as a conscientious objector to military service in Israel. Miss O'Hare has also drawn my attention to various other forms of discrimination which the appellant could suffer in Israel as a Christian but, as the United Nations Handbook points out at paragraph 54, persons who receive less favourable treatment are not necessarily victims of persecution and I do not consider that the order of the potential discrimination the appellant could face in Israel amounts to persecution."

The grounds of appeal are:

"1.        The learned adjudicator erred in law by dismissing the appeal having found as a fact that "the appellant's objections to undertaking military service stem from a general Christian conviction against the use of arms". On this finding, the adjudicator should have allowed the appeal as the appellant qualifies for asylum as a conscientious objector to military service.

2.         The learned adjudicator does not appear to have understood the principles laid down by the Tribunal in the cases of Church, Van Zyl and Swick. If he had not taken the view that the decisions in these cases only related to South African citizens and that the decisions had come about as a result of "special pleadings" of the UNHCR, (see penultimate paragraph of his determination), he would have allowed the appeal since the principles laid down in those cases equally apply to the case of the appellant.

3.         The finding of the learned adjudicator that the objections of the appellant to undertake military service are not specific to any aspect of Israeli Government policy is unreasonable [and against the weight of evidence].

4.         In finding that "potential discrimination the appellant could face in Israel", the learned adjudicator did not direct his mind properly and fully to the evidence."

At the hearing Mr Drabu deleted the words "and against the weight of the evidence" in Ground 3.

The consequences of refusing to undertake compulsory military service in Israel are not entirely agreed. Although the appellant claimed that he would face a 15-year prison sentence the Israeli law appears to provide for a maximum sentence of five years imprisonment.

A letter from Amnesty International of 15 September 1983 produced on the appellant's behalf before the adjudicator states in part:

"Penalties for refusal to serve

Penalties seem to vary from case to case. Recently, many Israeli reservists who have refused to serve in Lebanon and/or West Bank have been imprisoned for periods ranging from 7 to 40 days. However, in certain cases, these periods have been renewed several times. In one case, a conscientious objector who refused to serve outside Israel's pre 1967 borders for reasons of conscience was sentenced to a year's imprisonment. A few military commanders have been willing to allow certain C.O.s who are partial resistors, to serve within the pre 1967 borders of Israel. A few other C.O.s have been granted exemption from military service (usually for "special reasons"), but these people often report difficulties in finding work, obtaining driving licences or gaining admission to universities, since they are often asked to produce a reserve booklet showing periods of military service."

Attached to the letter from Amnesty is a copy of the Israeli Defence Law 1959 and a summary of an amendment of 1978 which shows that exemption may be granted (a) for "special reasons" (i.e. education, settlement or the national economy, family or "other similar reasons"), (b) mothers, pregnant women and (c) a female person who (I) by reasons "of conscience or reasons connected with her family's religious way of life" prevent her from serving or (ii) by reasons of religious conviction is prevented from serving and who observes the dietary laws and does not travel on the Sabbath.

Mr Drabu elaborated on the grounds of appeal. As to the first ground - that an objection to military service based on general Christian convictions is a basis for asylum - Mr Drabu relied on the Tribunal's decision in Church as establishing that asylum can be granted when the belief is based on moral conviction. Further, said Mr Drabu, it cannot be said that simply because compulsory military service is provided for by Israeli law the consequences of breaking that law cannot be persecution. Law could be the basis of persecution. In any event the Israeli lay is discriminatory in that it provides exemption on grounds of religious conviction for women but not for men.

Mr Drabu did not press the second ground of appeal except to say that the Tribunal decision in Church, Van Zyl and Swick are not contrary to the appellant's case, that attention must be focused on the reason for a person's objection to military service and that the possible five year sentence is out of all proportion to the offence. As to the further grounds Mr Drabu asked us to take judicial notice that Israel is presently involved in wars and that such wars are the result of Israeli policy. Looking at the totality of the evidence he asked us to hold that the discrimination suffered by the appellant because of his Christian beliefs amounts to persecution, that the appellant has established a genuine fear of such persecution and that that fear is well-founded.

Mr Gammons conceded that the Israeli marriage law is discriminatory but said that the evidence of the effect of it upon the appellant was vague and did not amount to persecution. As to military service the appellant had not tested opinions of the authorities and had not raised the matter in this country until he had been here for eleven months. There is no evidence, said Mr Gammons, that the appellant will be singled out from others.

Conclusions

The appellant must make out a case under HC 169 paragraph 134 which we set out early. The adjudicator applied the Tribunal decision in Doonetas which in the context of compulsory military service distinguished between persecution because of (i) a failure to obey the law of the land and (ii) the membership of a particular group or the host of a particular religious or political opinion. In this case, the adjudicator held any suffering to which the appellant was liable was due to a breach of the law of the land. The adjudicator saw the cases of Church, Swick and Van Zyl as dependent of special circumstances.

As the adjudicator said the latter three cases were all concerned with South African citizens. All have apartheid as their central feature. In Church, the Tribunal accepted that the rule of the South African Army was "crucial to the maintenance of apartheid which in itself is a violation of human rights". There was evidence that refusal of military service led to ill treatment and humiliation. The Tribunal stressed the distinction between a "draft dodger" and a person whose objection to military service was based on a moral objection - in this case opposition to apartheid.

In Van Zyl the Tribunal stressed that an applicant had to establish, as a first step that the basis for the refusal to undergo military service was political. An applicant also had to establish that the punishment for failure to undergo military service was for political opinions and that a person refusing for such a reason "will be discriminated against vis a vis the draft dodger who does not like the prospect of army life". The Tribunal accepted "in the main" that the applicant had to have a well-founded fear that punishment would be more severe because of political opinion.

Finally in Swick the Tribunal allowed the appeal on the basis that:

"….the appellant does have a well-founded fear that he will be punished not just for refusing to do his military service but for his political opinions and that he will be discriminated against vis a vis the draft dodger who does not like the prospect of army life."

In our view the cases of Church, Van Zyl and Swick qualify Doonetas in stressing the persecution can result from the law of the land.

If that law discriminates against those holding political or religious opinions (given penalties which amount to persecution) the basis is laid for a plea of asylum. Further even if there is no such discrimination the purpose of the law is relevant in that if the law is directed at imposing a course of conduct abhorrent to a fundamental concept of our society and sanctions imposed to enforce it may amount to persecution, provided the refusal to carry out the course of conduct was based on a ground specified by the Immigration Rules.

Additionally, with respect, we find it difficult to justify the requirement that a conscientious objector must establish that punishment for refusal to serve is more sever than the draft dodger. No doubt the more the conscientious objector is singled out the easier it is to make the case. However the requirements seem to us to be well-founded fear of persecution because of religious convictions. If the consequences of refusal to serve are likely to amount to severe punishment it cannot of itself rule persecution out because others whose motives are not those specified by the Convention may be treated similarly.

In this case in our view the appellant falls at a number of hurdles. Taking first the plea based on liability to compulsory military service, the Israeli law is discriminatory as between men and women objecting to service on grounds of conscience. Such discrimination is not based entirely on religious convictions and in the context of military service is arguably justified. In any event compulsory military services for men cannot of itself be said to offend any fundamental concept of our society.

Further even accepting that the appellant may suffer in some way from non-compliant and that such non-compliance was because of a religious opinion, the evidence falls far short of "persecution". Given that the law itself, whether on not discriminatory in a sense, is not contrary to a fundamental concept of society, a person who feels unable to comply with it for religious reasons is not persecuted simply by being punished for that failure. For punishment in that context to amount to persecution a State must exceed that which is thought to be acceptable limits in enforcement because of its national interests. In this case on the evidence of Amnesty this is not likely to be so. The appellant produced no evidence that he might be singled out for particularly severe treatment and indeed his fear of "persecution" appears to have had a somewhat lengthy period of gestation.

Secondly, we do not think the effect of the marriage law on the appellant amounts to "persecution". While the law is discriminatory the appellant suffers only through a restriction on those he can marry in Israel. On any reasonable view such "suffering" does not amount to persecution. Finally the evidence of fear because of his Christian faith is exceedingly vague in content and likely consequence. We are not satisfied that on any of the grounds advanced or on all taken togeSther that the appellant has a well-founded fear of persecution. We are of the view that if the appellant has a fear of suffering he has not established that there is a serious possibility that that suffering could amount to persecution. Any such fear is therefore not well-founded. For these reasons we dismiss the appeal.