Tallah v. Secretary of State for the Home Department

TALLAH v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal
Mr R. G. Care (Chairman), Mr J. B. Wilson and Mr W. A. Simpson
6 November 1997

Asylum - Objection to military service - Proportionality of punishment for refusal to undertake military service - Non-combatant alliterative to military service - Military service involving participation in internationally condemned acts - Algeria The appellant, a national of Algeria, had been studying in the UK until 1987 after which he remained without leave. On 9 July 1993 the appellant applied for asylum on the grounds that he did not wish to undertake military service for the current regime in Algeria.1[1] His application for asylum was refused by the Secretary of State on 27 June 1995 and his subsequent appeal to a special adjudicator was, despite a finding that he was a credible witness, dismissed on 27 September 1995. The decision of the special adjudicator was upheld by the Immigration Appeal Tribunal on 22 January 1996. On 16 May 1997 the Court of Session reduced the decision of the Tribunal with the agreement of the parties and the matter was remitted to a differently constituted Tribunal. Before the Tribunal the Secretary of State conceded that, first, the special adjudicator had found the appellant to be credible, secondly, if the appellant were to return to Algeria he would be liable to military service and, finally, the Algerian government punished the avoidance of military service by a period of imprisonment of between 2-10 years. Held - allowing the appeal - (1)Where a claimant is seeking asylum in relation to military service, it is necessary first of all to ascertain the reason for the claimant's refusal to serve in the military. There are usually two categories of such refusals. The first category is where the refusal is on account of the claimant's political, religious or moral convictions or other reasons of conscience; in which case the availability of alternative service in non-combatant roles and the degree and proportionality of punishment for refusal are important issues. The second category is where the claimant objects to military service because the State is either engaged generally in hostilities condemned by the international community, or it routinely uses, without any or any effective control by the central authority, methods which violate basic human rights, involve unfair treatment of prisoners or otherwise breach international legal standards; in which case the degree of punishment for the refusal to serve is irrelevant. The present case fell in the second category.

Azapovic followed. Hamam doubted.

(2)The appellant had established a 'Convention reason' by the fact that the authorities required the military to support them by using unacceptable methods and thus any opposition to military service would be seen as the expression of a political opinion against the authorities. (3)The evidence before the Tribunal revealed that (a) the appellant held genuine views in relation to military service, (b) if he returned to Algeria he would be liable to military service, (c) if he objected to military service, he would be imprisoned, (d) if he did not object he would be required to serve in the military and may be called upon to carry out reprehensible duties to which he objects, (e) the Algerian military behaved with extraordinary brutality, and (f) there was no evidence that noncombatant service would be available for the appellant. Accordingly, the appeal had to be allowed. Alternatively, for the same reasons and in the light of the length of time the appellant had spent in the UK and the situation in Algeria, the appeal against the decision to make a deportation order had to be allowed. Cases referred to in judgment Azapovic (13611) (unreported), IAT Gashi and Nikshiqi v Secretary of State for the Home Department (United Nations Commissioner for Refugees Intervening) [1997] INLR 96, IAT Hamam (14918) (unreported), IAT Kriba (unreported) 19 March 1997, Ct of Sess Rieda (14359) (unreported), IAT Senga (12842) (unreported), IAT Yousft v Secretary of State for the Home Department (United Nations High Commissioner for Refugees Intervening) [1998] INLR 136, IAT Mr Bryce for the appellant Ms Elam (Home Office presenting officer) for the respondent MR R.G. CARE (CHAIRMAN): The appellant, a citizen of Algeria, born 20 November 1959, having lodged a claim to asylum on 9 July 1993 which was refused, initially by the respondent on 27 June 1995 and the appeal dismissed by a special adjudicator (Mr D.A.Lamb) by a determination promulgated on 27 September 1995. The decision by Mr Lamb was upheld by the Tribunal in their decision notified on 22 January 1996. This decision was reduced by the Court of Session and by agreement on 16 March 1997 and the appeal of the Tribunal remitted for hearing: thus did the appeal come on before this present Tribunal.

Decision

The appeal by the appellant in relation to his claim to asylum is allowed. Further and in the alternative, the appeal against the decision to make a deportation order is allowed.

The appeal

The essential basis for the appellant's claim is that he does not wish to do military service under the current regime in Algeria. Because he had been studying in this country first between 1981 and 1985 and latterly between May and November 1987 and had not returned to Algeria after his studies his claim to be recognised as a refugee was as refugee sur place. Between the end of 1987 and July 1993 when he made his claim to asylum he was in this country without leave. This situation gave rise to a decision to deport the appellant and consequently to this appeal being what is known as a mixed appeal but one in which he is entitled to a full right of appeal having been in the UK at the time of decision for a period of over 8 years although all but 3 months thereof was without leave. The special adjudicator, who heard the oral evidence of the appellant, found him to be a credible witness. It is conceded that if the appellant were to return to Algeria, he would be liable to military service. It is also conceded that the Algerian Government punishes the avoidance of military service by imprisonment for between 2-10 years. We do not think that there is any serious disagreement either over the fact that the appellant does not wish to be associated with the type of conduct in which the Algerian authorities are engaged in the employment of military personnel. His is not a claim to conscientious objection to performing military service as such but simply to performing military service under the current Algerian regime and system. The special adjudicator defined the real dispute between the parties as follows:

'The central issue is whether on the facts as established the appellant can show that [there is or are] a reasonable chance or substantial grounds for thinking or serious possibility that he will be conscripted, and will be required to carry out actions of a kind described by him which would be repugnant to his principles.'

We should say at this stage that we agree with the submissions made on behalf of the appellant that whilst this correctly defines the issue it is not so much repugnance to the appellant's own principles but that they violate internationally recognised norms of behaviour. The adjudicator having accepted that he will be conscripted if he were returned to Algeria, then failed to make any further findings of fact as to what the appellant would be required to do in terms of military service and whether he would refuse or not. He also failed to make any findings as to whether there was any non-combatant alternative form of service available. The adjudicator made no findings specifically as to the availability of non-combatant alternative forms of service. Much has been made of the lapse of time between the end of the extension given to the appellant to remain and when he finally claimed for asylum. In his evidence we note that he gave a full explanation of the reasons for this situation. He even related what he had been told regarding the treatment of his brother by the authorities which was indeed savage, and he denied that he was dodging the draft in order to obtain a better life in this country; he also explained how it was that his brothers had left Algeria. There was a considerable body of both oral and documentary testimony adduced on behalf of the appellant. This was before the adjudicator. Since that hearing and the hearing before the Tribunal, the situation in Algeria has changed and there have been a number of Tribunal decisions concerning appeals from the refusal of claims for asylum by Algerians. Currently the respondent is considering whether it should return asylum claimants to Algeria.

Appellant's submissions

A useful skeleton argument was submitted and Mr Bryce argued to that elaborating upon a number of the issues and drawing our special attention to aspects of the documentary evidence before us which, he argued, showed, even more so today than heretofore, that the Algerian authorities both police and military, act with brutal and repressive force against the innocent and the guilty - indeed they make no distinction. They take hostages, carry out revenge brutally of extreme kinds and even so - or perhaps because of it -fail to be able to protect any law-abiding citizen. Our attention was drawn to a number of decisions which are listed in the list of authorities all of which contain relevant passages. Particularly Mr Bryce relies upon the decision in Yousfi v Secretary of State for the Home Department (United Nations High Commissioner for Refugees Intervening) [1998] INLR 136 in which the Tribunal emphasised the test which had been applied by both the Secretary of State and the adjudicator, which was that the obligation was to take all reasonable steps having regard to its means and resources and to the circumstances in Algeria to protect its citizens. The Tribunal stated that the real question is not whether they are doing the best that they can but whether viewed objectively, the domestic protection offered is or is not likely to prevent persecution. In Azapovic (13611) (unreported) in dealing with the situation in the Balkans, which was a war condemned by the international community, the adjudicator having accepted that the appellant had moral objections to fighting in that war and that there was a serious possibility of him being prosecuted and convicted of draft-evasion and sentenced to imprisonment, that such being a likelihood, the level of punishment is irrelevant. The Tribunal went on to state:

'No one with moral objections can be required to participate in hostilities which are internationally condemned and therefore any prosecution by the State for failing to participate or take steps to avoid serving in them, may result in the deprivation of liberty. This is persecution within the Convention.'

In Rieda (14359) (unreported) the Tribunal was dealing with a case in which it had been found that there was no alternative to military service and that there was a reasonable likelihood that the appellant would not only be called up, but also to serve in an area where he would be perceived by the authorities to be a sympathiser with the enemy. Mr Bryce argues that imprisonment for refusal to serve where the reason is (and is objectively likely to be) that the appellant would be required to participate in acts which have been internationally condemned and which are against his conscience amounts to persecution regardless of its length (the Azapovic view). Mr Bryce argues that no resolution of the UN is necessary where international condemnation is of acts as opposed to a war or particular set of hostilities. He concedes that the White Paper may be of doubtful provenance but referred to the large body of information from many different sources which all said roughly the same thing. As to whether or not there was an alternative to military service, Mr Bryce argues that the burden of proof on this rests upon the respondent to show that there is an alternative to military service. He says not only has the respondent not done so, he has not even addressed it. Mr Bryce argues that 'having accurately surveyed the land and carefully planned his route the adjudicator left his map at home and lost his way'. The adjudicator, he said, set up four possibilities and knocked them all down but did so in every case wrongly. In support of his argument that if conscripted there is a reasonable likelihood that he would be called upon to violate human rights, he refers to the UNHCR memorandum which makes it clear that half the army is made up of conscripts. As to the single argument of whether or not the appellant is safe to return because he has made a claim to asylum (the Senga issue) relying on Kriba in the Court of Session (unreported) 19 March 1997 he submits a draft-evader was at risk if it became known. However, there is simply no possibility of this argument being relevant in the light of the circumstances accepted in this appeal. Finally, Mr Bryce argues that there is more than sufficient material upon which for us to make a substantive determination on other grounds.

Respondent's submissions

Mrs Elam relies upon the refusal letter and agrees that the adjudicator was wrong to speculate as he did but having reached sustainable findings of fact, he was fully entitled to come to the conclusion which he did. She relied on the decision in Hamam (14918) (unreported). That Tribunal found the chances of being enlisted into a combatant role where he may have to act in any way which is internationally condemned is reasonably likely and in that case, the adjudicator did not believe the appellant. The following appears (at p 16):

'The chances of the appellant being enlisted into a combatant role and ordered to take part in extra-judicial killings is remote and, for record purposes, on the basis of the UNHCR report, we find that the punishment or penalties for draft evasion, which appear to range from 6 months to 10 years in prison is not unconscionable or disproportionate within the limits of the UNHCR Handbook guidelines.'

Reasons for decision

A very useful analysis of when prosecution for refusal to serve in the military forces of a country amounts to persecution (and persecution for a Convention reason) was prepared by the Hearings Division of the Immigration and Refugee Board of Canada in Ottawa in October 1991. This analysis needs to be read in conjunction with a discussion paper produced in June 1991. We have frequently encountered in this type of appeal emotive approaches manifested by the use of such terms as 'draft-evader', 'deserter' - notions which are grounded in patriotic notions of fighting for one's country. Such notions are laudable in their proper context but not where those seeking to evade draft are doing so because they do not want to fight for some vicious group of power-hungry tyrants seeking to retain power or megalomaniac leaders following some sort of racial, tribal or religious jihad in a manner condemned by all decent-minded people. Thus it is necessary first of all to decide what the claimant's reason is for refusal to participate. In the instant appeal, given the findings of credibility, it seems to us that the adjudicator has held that the appellant holds views quite genuinely which preclude him from supporting police and military brutality. Secondly, it appears to us to be beyond argument, given the general finding of credibility, that his explanation for not having claimed asylum earlier on should be accepted as a reasonable explanation. There are usually two reasons for refusing to serve in the military; the first one is on account of the individual's political or religious or moral convictions or other reasons of conscience. Generally in such a case, alternatives such as alternative service in non-combatant roles, eg. in the Red Cross or a Land Army are material. It is in this context that the degree of punishment for refusal to serve in the army is important. Is the penalty imposed differentially or is it disproportionate? The second category is where the objection is to serve in a military which is either engaged generally in hostilities condemned by the international community or uses the methods routinely and without any effective control or attempt at control by the central authority which violate basic human rights, involve unfair treatment of prisoners or otherwise breach international legal standards for the attainment of peace and good order within the country. In our view, we agree with other decisions which hold that the proportionality of punishment is then irrelevant (the Azapovic point). It is then sufficient that the only choice open to the claimant is either to serve in the military to whose activities he objects or to go to jail. Proportionality in such a case is not material. The respondent himself seems to take the view that if the appellant does say that he would refuse military service then on the face of it the evidence presented would seem to support the proposition that as an ordinary recruit he would indeed be likely to be asked to carry out security duties in a manner repugnant to him. It would then follow that the adjudicator could properly have reached the conclusion that there was a reasonable chance that the appellant would have been involved in reprehensible duties and therefore entitled to asylum (Hamam would not then apply). We are satisfied on the evidence that:

(1)the appellant's views upon military service are genuinely held;

(2)if he is returned to Algeria, he will be liable to military service;

(3)if he objects, he will go to jail;

(4)if he does not object, he will be required to serve in the military and may be called upon to carry out those reprehensible duties to which he objects.

On the evidence before us as of today, it seems incontrovertible that the Algerian military behave with extraordinary brutality and whilst the White Paper may be relatively unsourced, it has the ring of truth about it. The opportunity for alternative non-combatant service was not seriously addressed in the evidence before the special adjudicator. This is perhaps understandable because the view taken in the reasons for refusal by the respondent as contained in the letter of 18 April 1995. We would have expected that if there had been such an alternative, given the greater access to information available to the respondent, that he would have made reference to it and he have not. For this reason we deal with this case on the basis that there are only two options open to the appellant - to serve in the military or to go to jail. Finally, to deal with the aspect of a Convention reason. As the Tribunal has said in Gashi and Nikshiqi v Secretary of State for the Home Department (United Nations Commissioner for Refugees Intervening) [1997] INLR 96 and indeed is we think established beyond peradventure in this country the issue for decision is whether or not the State authorities viewed objectively provide effective protection from persecution. Do they fail because they require their military to support them by using unacceptable methods and thus any opposition thereto is seen to fall within the realm of 'political opinion'? Or is a failure to protect due to pure inability to protect? If the latter, then of course one must look further to see what the Convention reason is. In this case the evidence supports the first case and it is not necessary to consider the second. It is for these reasons that we allow the appeal. Hamam does not assist upon the facts but in any event we regret that we could not follow the decision in Hamam if it conflicts with Azapovic. Were we to be wrong on the asylum claim then we would, for the same reasons, together with the length of time spent in this country by the appellant, and the overall situation presented to us of conditions in Algeria, take the view that deportation is not, at this moment, taking into account all we must take into account in para 13 of HC 395, hold that it is the right course on the merits.

Appeal allowed.

Solicitors: Scottish Refugee Council for the appellant

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[1] The relevant paragraphs of the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status on military service are paras 167 to 174.