R -v- Secretary Of State For The Home Department ex parte Altun

For the purposes of a safe-third-country certificate, the Secretary of State may treat a country as complying with the Refugee Convention where its law correctly recognises the essential class of asylum seekers entitled to protection. A genuine conscientious objector or draft-evader may fall within that class where military service would require participation in acts contrary to basic rules of human conduct.

Additional requirements concerning a concrete personal risk, sincerity of conscience, and persecution for a Convention reason may concern the application of the Convention to particular facts. They do not necessarily reject the Convention’s core values. The court may therefore treat such a dispute as an application case, subject to anxious scrutiny and the ordinary public-law standard of review.

The appellant, a Turkish Kurd, had previously claimed asylum in Germany. Germany accepted responsibility under the Dublin Convention. The Secretary of State then issued a certificate under section 2 of the Asylum and Immigration Act 1996 and directed the appellant’s removal to Germany without substantive consideration of his claim in the United Kingdom.

The appellant argued that German law did not recognise refugee status for draft-evaders whose conscientious objection arose from the risk of being required to participate in acts contrary to basic rules of human conduct. Sullivan J rejected the challenge. The appeal concerned whether the Secretary of State was entitled to regard Germany as complying with the Refugee Convention in relation to that class of claimant.

1. Appeal dismissed. The Secretary of State was entitled to certify Germany as a safe third country under section 2 of the Asylum and Immigration Act 1996.
2. The Secretary of State accepted, consistently with Article 1A(2) of the Refugee Convention, that an asylum seeker who genuinely objected to military service because it would require participation in acts contrary to basic rules of human conduct could qualify for refugee status. That approach was consistent with the guidance in paragraph 171 of the UNHCR Handbook, paragraph 10 of the EU Joint Position, and the reasoning in Adan v Secretary of State for the Home Department [1997] 1 WLR 1107.
3. The material concerning German law, including Professor Hailbronner’s evidence, was sufficiently clear when read as a whole. It established that German law could recognise such a claimant where there was a concrete personal risk of participation in unlawful military acts, a sincere conscientious objection, and persecution for a Convention reason. The Secretary of State was entitled to rely on that assessment.
4. The court also accepted the Secretary of State’s alternative submission. The additional qualifications in German law went principally to whether the persecution was for a Convention reason in the particular case. They concerned application of the Convention rather than rejection of one of its core values.
5. The distinction between interpretation cases and application cases was not always easy to draw. This case fell within the latter category. The assessment was therefore a matter of fact and application, reviewable on ordinary public-law principles, subject to anxious scrutiny. The appeal was dismissed with costs, subject to enforcement only with permission. Permission to appeal to the House of Lords and a stay of execution were refused.

• Court of Appeal (Civil Division): dismissed the appeal from Sullivan J’s judgment dated 19 March 1999. The court refused permission to appeal to the House of Lords and refused a stay of execution.