Sepet (FC) and another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)

A draft evader is not a refugee merely because sincere political or conscientious objections lead him to refuse compulsory military service and the state offers no civilian alternative. International law then recognised no core human right to absolute or partial conscientious objection. Non-discriminatory and proportionate punishment under a law of general application therefore did not, without more, amount to persecution for a Convention reason.

Refugee status may arise where service would probably require participation in atrocities or acts contrary to basic human conduct, or where refusal attracts disproportionate punishment linked to a Convention reason. The 1951 Geneva Convention relating to the Status of Refugees has one autonomous meaning. Its meaning remains stable, while its application may develop. The causal inquiry asks objectively for the real reason operating in the persecutor’s mind; a Convention reason must be an effective cause.

The appellants were Turkish nationals of Kurdish origin who objected to compulsory military service because of their political opposition to the Turkish Government’s policies towards the Kurdish community. Neither was an absolute conscientious objector. The Special Adjudicator found no reasonable likelihood that either would be required to participate in atrocities or other acts contrary to basic rules of human conduct. It was agreed that draft evaders faced imprisonment followed by military service, but that punishment was neither excessive nor discriminatory.

The Secretary of State rejected their asylum claims. Their challenges were successively rejected by the Special Adjudicator, the Immigration Appeal Tribunal and the Court of Appeal, whose decision was reported as [2001] EWCA Civ 681. The central issue before the House was whether proportionate punishment for refusing military service, when the refusal arose from genuine political objections and no non-combatant alternative existed, constituted persecution for a Convention reason.

1. Disposition. The House unanimously dismissed both appeals. Lord Bingham delivered the leading speech. Lord Steyn and Lord Hutton agreed with it in full. Lord Hoffmann reached the same conclusion by separate reasoning, and Lord Rodger agreed with the material reasoning of Lord Bingham and Lord Hoffmann.

2. No established human right to conscientious objection. Per Lord Bingham, international instruments, state practice, judicial decisions and expert commentary did not establish a presently existing international legal right to absolute or partial conscientious objection to compulsory military service. Recommendations encouraging states to recognise such a right did not themselves create a binding rule. Lord Hoffmann likewise concluded that neither moral principle nor international practice established a core right requiring objectors to be treated differently. Lord Rodger emphasised the difficulty of defining a universal right suitable for states facing different military circumstances.

3. Application to draft evaders. Per Lord Bingham, proportionate punishment imposed on all draft evaders irrespective of their reasons for refusing service was not persecution for political opinion. Different considerations may arise where service would require participation in atrocities, gross human-rights abuses or military action condemned by the international community, or where refusal attracts disproportionate punishment for a Convention reason. The findings excluded those circumstances: neither appellant was likely to participate in such acts, and the applicable punishment was neither excessive nor discriminatory.

4. Interpretation of the Refugee Convention. Per Lord Bingham, the 1951 Geneva Convention relating to the Status of Refugees has a single autonomous meaning. Applying the Vienna Convention on the Law of Treaties 1969, it is also a living instrument: its meaning remains constant, although its application can develop with changing conditions. The available materials showed movement towards recognition of conscientious objection, but no existing international consensus.

5. Causal nexus, obiter. Although unnecessary to the result, Lord Bingham, with Lord Steyn and Lord Hutton agreeing and Lord Rodger expressly concurring on this issue, adopted an objective inquiry into the real reason for the feared persecution. The decision-maker begins with the reason operating in the persecutor’s mind, then asks whether another reason was an effective cause. Motive and the victim’s belief are not decisive. Where a characteristic or opinion is imputed, the persecutor’s belief matters even if the attribution is factually wrong. Here the operative reason would have been refusal to serve, not political opinion, because all draft evaders were treated alike.

1. House of Lords: The appeals were dismissed unanimously. The Court of Appeal’s rejection of the challenges was left undisturbed: [2003] UKHL 15.
2. Court of Appeal: The appellants’ challenges were rejected: [2001] EWCA Civ 681. Laws LJ and Jonathan Parker LJ held that no relevant international right to conscientious objection had been established. Waller LJ adopted a more favourable view in principle but agreed in the outcome.
3. Immigration Appeal Tribunal: The challenges to the refusal of asylum were rejected.
4. Special Adjudicator: The asylum appeals were rejected after findings that the appellants were unlikely to participate in acts contrary to basic human conduct and would not receive disproportionate punishment.
5. Secretary of State: The original asylum claims were refused.