Sepet & Anor v Secretary Of State For the Home Department

A person does not become a refugee merely because genuine conscientious objection leads to punishment for evading compulsory military service. Where the service, the generally applicable conscription law and the ordinary penalty are not otherwise contrary to international law, a claim under article 1A(2) requires a recognised international legal basis for treating the punishment as persecution. No such right of conscientious objection had then crystallised as a core entitlement recognised by the international community.

The Convention question remains whether the claimant faces discrimination on a Convention ground. That inquiry is not confined to the persecutor’s subjective motive, although motive may prove discrimination in an appropriate case.

Two Turkish Kurdish appellants challenged the refusal of asylum. Each opposed military service because of political objections to the Turkish Government’s policy towards Kurds and a fear of involvement in abuses against Kurdish people.

The Special Adjudicator found neither appellant likely to be required to participate in military action condemned by the international community as contrary to basic rules of human conduct. The likely punishment for continued draft evasion was neither discriminatory nor disproportionate. The Immigration Appeal Tribunal dismissed their appeals in a guidance determination reported at [2000] IAR 445.

The appeals raised whether absolute or partial conscientious objection to compulsory military service, without more, could found refugee status under article 1A(2) of the 1951 Geneva Convention on the Status of Refugees.

1. Appeals dismissed. Laws LJ and Jonathan Parker LJ held that neither absolute nor partial conscientious objection, without an additional internationally recognised basis, could make ordinary punishment for draft evasion persecution within article 1A(2) of the 1951 Geneva Convention on the Status of Refugees. The relevant materials showed an emerging and strongly commended right, but not a settled treaty rule, customary rule, or core entitlement recognised by the international community.

2. The conclusion was confined to a case in which conscription was generally applicable, the required service was not itself internationally unlawful, and the punishment was neither discriminatory nor disproportionate. Different considerations may arise where service would require participation in military action condemned as contrary to basic rules of human conduct, where service conditions are persecutory, or where draft evasion attracts disproportionately severe punishment for a Convention reason.

3. Laws LJ rejected the Immigration Appeal Tribunal’s attempt to distinguish “acceptable” from “unacceptable” political convictions through a requirement that a partial objection be non-discriminatory. A court should not generally make value judgments about the merits of political opinions. That difficulty provided an additional reason against recognising partial conscientious objection as such as a Convention basis.

4. On the separate construction point, Laws LJ held that “for reasons of” a Convention ground asks whether the claimant faces discrimination on that ground. It is not a universal requirement that the persecutor’s subjective motive alone caused the treatment. Motive may establish discrimination, but is not the sole means of doing so.

5. The appellants also failed on the facts. The unchallenged findings did not show a real possibility that either would be required to take part in internationally condemned military action. Mr Sepet’s proposed reliance on harsher prison treatment and on his asserted belief that he would be involved in atrocities was therefore ineffective.

6. Waller LJ agreed that the appeals should be dismissed, but would have held that genuine conscientious objection had become a core entitlement. On his view, a genuine objector facing conscription and prosecution in a state providing no recognition could have a Convention claim based on implied political opinion. He nevertheless agreed that these appellants had not established the necessary profound conscientious objection or factual risk.

In observations not bearing on the merits, Laws LJ stated that adjudicators should treat starred Immigration Appeal Tribunal decisions as binding, and that the Tribunal should follow an earlier starred decision unless satisfied it is clearly wrong.

• Court of Appeal (Civil Division): dismissed the appellants’ appeals and upheld the Immigration Appeal Tribunal’s determination.
• Immigration Appeal Tribunal: by a determination reported at [2000] IAR 445, dismissed appeals from the Special Adjudicator’s refusal of the asylum appeals.
• Special Adjudicator: dismissed each appeal against the Secretary of State’s refusal of asylum.