BA (Military Service - No Risk) Sudan v. Secretary of State for the Home Department

"29. We would accept that if there was a real risk of this appellant or any draft evader or deserter facing imprisonment as punishment, he would be entitled to succeed on Article 3 grounds. The background evidence relating to conditions in prison in Sudan discloses that there is a consistent pattern of gross, frequent and mass abuses of the human rights of detainees: see e.g. CIPU April 2004 at paragraph 5.78.
30. We need not expand further on our reasons for taking this view, since, as Miss Webb conceded, it is currently accepted by the Home Office in its June 2005 Operational Guidance Note on Sudan that prison conditions are generally contrary to Article 3: see MA.
31. We do not consider it appropriate to go on to consider the further hypothetical question of whether, if draft evaders did generally face imprisonment, that punishment would be on account of a Refugee Convention reason of political opinion ? and so amount to persecution as well as treatment contrary to Article 3.
32. However, whilst accepting that prison conditions are contrary to Article 3 we do not accept Mr Gill?s submission that there is currently a real risk that draft evaders generally would face imprisonment. ...
35. The report also states that two other sources, Barach and Ngot, confirmed that deserters were not usually imprisoned, but were often sent directly to the front under close supervision. It stated that another source, Lehne, said that in practice the military authorities did not insist on sentences [for avoiding military service] (52). At p.53 it noted that a further source, El Mufti was not aware of cases of deserters or draft evaders being punished for their actions. If the authorities caught such people they would simply demand that they returned to service. Accordingly we conclude that the background evidence considered in the round does not demonstrate that draft evaders and deserters in general face a real risk of imprisonment in Sudan. ...
41. Given the frequent reference to draft evaders and deserters being required to fight in the south during the civil war, we find this lack of reference of considerable significance. That is particularly so for this reason. From the materials before us it is clear that internal and external human rights bodies have paid particular attention to the use made by the Sudanese authorities of military service over the past two decades. Furthermore, in Darfur itself we note that the humanitarian community is said to consist of 12,500 aid workers, 13 UN agencies and 81 international NGOs on the ground. Additionally, there are 2,309 persons including 145 military observers and 86 UN police officers who comprise the UN Mission in Sudan (UNMIS), plus 49 international human rights officers including 17 international UN Volunteers working in teams on monitoring and protection issues. The Save The Children Fund also has monitors concerned with recruitment of child soldiers. We accept that Darfur, which is in the west of Sudan, is a large region roughly equivalent in size to France, but we think that if there was any practice of requiring draft evaders or deserters or even conscripts, to fight in that region, this would have been observed and chronicled by one or more of the agencies and forces we have just described. We are a body which must decide cases on the evidence. If in the future representatives are able to adduce evidence casting a different light, we shall then need to think again. But on the evidence before us we consider the position we have reached is the right one. ...
43. Before addressing AM?s conclusion on this issue it is necessary that we address what the case also found as regards risk of imprisonment. Mr Gill did not seek to rely on this aspect of AM, but to our mind we need to consider its findings. The case of AM had previously been before the Court of Appeal, who had remitted it primarily on the issue of risk on return. Although the Court of Appeal did not address the issue of participation in a military conflict contrary to the basic rules of human conduct, Schiemann LJ did address the submission raised by Counsel on that occasion (Ms Plimmer) relating to the earlier assessment of the IAT that the penalties for refusing to perform military service are not imposed. At paragraph 15 the Tribunal in AM quoted Lord Justice Schiemann as follows: ?It may well be that circumstances can arise when a law is shown to be never enforced in which case there would be no real risk to a citizen that he would be imprisoned pursuant to it. but for my part I do not consider that it was open to the IAT to conclude from
the evidence before it that the present was such a case.?
44. Having considered the evidence presented to it, the Tribunal who dealt with the AM case on remittal back from the Court of Appeal concurred:- ?25. Turning to the question of whether or not he would be imprisoned we accept that the US State Department report [for 2004] indicates that there is no record of any imprisonment for failure to do military service in the year 2003 but, bearing in mind the fact that the appellant is a Nuban, bearing in mind the fact that he has been out of the country for some time, we would again respectfully agree with the Court of Appeal at paragraph 12 of its judgment in this case.?
45. It is important that we bear in mind the observation of Schiemann LJ. It reflects the view, we think, that where the law of a country creates an offence for draft evasion punishable by imprisonment, one should not lightly assume that in fact there is no enforcement. Equally, however, we have to found our assessment of real risk on the basis of evidence as to what is the actual practice of the Sudanese authorities, not simply on the basis of what laws are on their statute books. We do not know what the precise state of the evidence was before the Court of Appeal or was before the subsequent Tribunal who dealt with AM on remittal from that court. What we do know, however, is that the AM determination does not refer to any evidence in support of its above conclusion, apart from the appellant's own assertions. Mr Gill has been apprised of the issue in this case for some time and has had ample opportunity to adduce evidence to show that draft evaders and deserters are in fact imprisoned. As he himself conceded, the evidence he had submitted indicates that the authorities do not impose imprisonment, and that instead they impose a requirement to perform military service under supervision. ...
49. At this point it is necessary to bear in mind two very important legal principles identified in leading cases dealing with risk of persecution arising from performance of military service obligations. In the first place International law does not seek to pass judgment on the performance of a country?s military generally. It concerns itself with specific armed conflicts. Thus Common Article to the four Geneva Conventions of August 12 1949, to which 191 States are party, provides: ?In the case of armed conflict not of an international
character occurring in a territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply as a minimum, the following provisions:
(1) persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, should in all circumstances be treated humanely, without any adverse distinction founded on race, colour , religion or faith, sex, birth or
wealth, or any similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;?
50. In the second place, in order for a person to show a real risk of being required to serve in a military situation contrary to the basic rules of human conduct, more is necessary that the simple occurrence of some incidents which amount to crimes under international criminal law or crimes against humanity. The conflict must be one in which there is a consistent pattern of such incidents. The reason for this is that what has to be assessed is whether there is a real as opposed to a remote risk, of a person being required to engage in acts contrary to the basic rules of human conduct. As Potter LJ stated in Krotov [2004] EWCA Civ 69 at paragraph 37: ?37. In my view, the crimes listed above, if committed on a systematic basis as an aspect of deliberate policy, or as a result of official indifference to the widespread actions of a brutal military, qualify as acts contrary to the basic rules of human conduct in respect of which punishment for a refusal to participate will constitute persecution within the ambit of the 1951 Convention. [emphasis added]?
51. These principles are important in the instant case because, so far as we are aware, it is only in respect of Darfur that it has been firmly established that the armed conflict taking place in that region has been characterised by a consistent pattern of acts contrary to the basic rules of human conduct.
52. We note further and in any event that, even if it were thought that the situation in the south during the civil war was also characterised by a consistent pattern of acts contrary to the basic rules of human conduct (consisting in crimes under international criminal law or violations of international humanitarian law), that war has come to an end and we have to focus on the issue of current risk.
53. The upshot of our analysis of AM is that it can no longer be treated as affording guidance on the issue of draft evasion and desertion. It is out of date. Even considered historically, it furnishes no evidential basis for its general conclusion about the nature of military conflicts in the Sudan during the relevant period. It is only in respect of Darfur, where the armed conflicts have involved a consistent pattern of acts contrary to the basic rules of human conduct, that its assessment finds evidential support. However, in respect of Darfur, we do not consider that it was right to conclude that conscripts or draft evaders or deserters would be forced to fight in this region, since AM referred to no evidence to support that conclusion and it is not one which we have found to be substantiated, even on the much fuller body of evidence we had presented to us. Consideration of whether there are any issues personal to the appellant which put him at real risk of persecution or treatment contrary to Article 3
54. The Adjudicator accepted that the appellant had been called up to do military service and that his unwillingness to do so was the main reason for leaving Sudan. The issue was raised before the Adjudicator of whether the appellant would be able to seek exemption on the basis that he supported his family. His argument is based on the provisions of Article 12.1 of the Sudanese National Service Act 1992 (set out at page 69 of the Danish report). This provides that service shall be postponed for the sole supporter of the family, or the husband, the son or the brother until the family is provided with public finance equivalent to that which the person concerned provided his family. We accept that we must be cautious in seeking to interpret a foreign statute. We note that in paragraph 9 of the Secretary of State's reasons for refusal letter dated 17 November 2003, he took the view that the appellant could not bring himself within the category of being the sole supporter of a family as on his evidence his father was running the shop and the appellant the farm. There is nothing in the evidence or submissions which satisfies us that the respondent was wrong to take this view and we are satisfied that the appellant would not be entitled to apply for a postponement of his service on this basis. The position therefore is that on the Adjudicator's findings the appellant would be liable for military service on
return.
55. We are not satisfied that there is any basis for an argument that there is anything in the appellant's own background or circumstances which would give him a profile that would make him of any interest to the authorities save insofar as he has attempted to evade military service. The Adjudicator rejected the evidence that the appellant would be regarded by the Sudanese authorities as a communist sympathiser. He rejected the account the appellant gave of being detained, arrested and ill-treated. He did not believe that there were any pending court appearance or charges outstanding in Sudan.
56. Accordingly there is nothing to distinguish the appellant from any other Sudanese citizen who had sought to evade military service and the question of whether he is at real risk of persecution or treatment contrary to Article 3 depends on whether draft evaders as a class (or some subset of them) are at such risk on return to Sudan.
57. Earlier we have concluded that neither draft evaders nor draft deserters as a class are at real risk of persecution or treatment contrary to Article 3. (Our full conclusions on the issues relating to country conditions on which guidance is given in this determination are set out in the summary at the beginning of this decision.)
58. In the course of considering this appeal we have found it necessary to have regard to not only the reported Tribunal case of AM but cases which are listed on the AIT website as current Country Guideline cases on Sudan. It is clear to us that in view of the very substantial changes in the political situation which have occurred in Sudan in the 2002-2005 period, most of which we have covered in this case, only TM (Persecution ? Christians ? Individual ? General) Sudan CG [2002] UKIAT 04849 and the latest case ? AE (Relocation - Darfur ? Khartoum an option) Sudan CG [2005] UKAIT 00101 ? remains viable as country guidance. TM remains because, although there has been a cessation of civil war in the south, what is said in paragraph 11 continues to accurately reflect the Tribunal view that Christians per se are not targeted as a group for treatment amounting to
persecution, although in individual cases harassment and discrimination against individual Christians in Sudan may amount to persecution.
59. Accordingly, the following cases are no longer to be considered as furnishing current country guidance and are to be removed from the AIT Country Guideline list:
ME (Failed asylum seeker ? Danian) Sudan CG [2002] UKIAT 00997;
MS (DUP Activities Abroad) Sudan CG [2002] UKIAT 02385;
MH and Others (Article 3 ? FGM) Sudan CG [2002] UKIAT 02691;
GA (Umma ? Reconciliation with Government) Sudan CG [2002] UKIAT 04605;
AA (Failed asylum seeker) Sudan CG [2002] UKIAT 05894;
AB (Return of Southern Sudanese) Sudan CG [2004] UKIAT 00260 "