Fadli: Re Application for Judicial Review

Refugee status does not arise merely because military service exposes a person to a serious risk of death or attack. The Convention does not distinguish between soldiers facing external combat and soldiers performing internal security duties against terrorists. A state may require soldiers to undertake hazardous service in order to provide practical protection to the population without thereby persecuting them. A person relying on a future status as an ex-soldier must show a sufficiently present and certain basis for the claim; speculative future circumstances cannot establish present refugee status. The court also declined to treat serving Algerian soldiers as a particular social group persecuted for a Convention reason on the facts and arguments presented.

The appellant, an Algerian national, sought asylum after refusal by the Secretary of State. His appeal to the Special Adjudicator failed, and the Immigration Appeal Tribunal refused leave to appeal. Munby J refused judicial review but granted permission to appeal to the Court of Appeal.

Before the Court of Appeal, the appellant pursued only the claim that compulsory military service exposed him and his family to attacks by the Groupe Islamique Arme. He argued that the Special Adjudicator had applied the wrong test under the refugee definition in article 1A(2) of the Geneva Convention. The central issue was whether the risk to serving soldiers, or to persons who might later become ex-soldiers, amounted to persecution for a Convention reason.

1. Appeal dismissed. The Special Adjudicator had not erred in rejecting the appellant’s objection to military service on conscientious grounds or because punishment for refusal was excessively severe; those conclusions were not challenged.
2. The Convention’s system is founded on surrogacy. Where persecution is inflicted by third parties, international protection arises only when the home state fails to provide the practical protection which the international community expects of it. The state need not prevent every isolated or random attack, but must provide protection up to a practical standard.
3. The ordinary hazards of military service, including a serious risk to life, do not constitute Convention persecution. The same principle applies where soldiers face an internal enemy or perform internal-security duties against terrorists. A state does not persecute its soldiers merely by requiring them to undertake hazardous duties in order to protect the population.
4. The possible future position of an ex-soldier could not support a present refugee claim. The appellant was not yet an ex-soldier, and numerous uncertain events could intervene before that position arose. The court left open whether a person might later qualify as a refugee as an ex-soldier.
5. The court rejected the submission that serving soldiers in the circumstances described either did or could constitute a particular social group persecuted for a Convention reason. The 1997 UNHCR guidelines did not suggest that army personnel fell within a presumptive category. Extending surrogate protection in these circumstances could weaken the home state’s ability to protect the general population.

The appeal was dismissed. Leave to appeal to the House of Lords was refused, and the order stated that there was no order as to costs.

• Court of Appeal (Civil Division): The appeal from the refusal of judicial review by Munby J was dismissed. Leave to appeal to the House of Lords was refused.
• High Court: Munby J refused to quash the Secretary of State’s refusal, the Special Adjudicator’s decision and the Immigration Appeal Tribunal’s refusal of leave, but granted permission to appeal.
• Immigration Appeal Tribunal: Refused leave to appeal from the Special Adjudicator.
• Special Adjudicator: Dismissed the asylum appeal.