Sepet v Secretary of State for the Home Department

The appellants, Turkish nationals of Kurdish origin, claimed asylum under article 1A(2) of the 1951 Geneva Convention on the ground that, if returned to Turkey, they would be prosecuted for draft evasion because they would refuse compulsory military service for political reasons. The House reviewed the meaning of "refugee" and, in particular, the concept of "persecution" and whether punishment for refusal of military service, in the absence of a recognised international right of conscientious objection, amounts to persecution for a Convention reason.

The court held that there is not yet a clear, universally accepted international legal right to conscientious objection that would make punishment for draft evasion automatically persecution for reasons of political opinion or religion. The court applied the Convention as a living instrument, examined international instruments and state practice (including the UNHCR Handbook, General Comment 22, EU materials and case law), and concluded that punishment under a general conscription law which is neither disproportionately harsh nor applied discriminatorily does not constitute persecution for a Convention reason. The appeals were dismissed for that reason. The court also articulated the appropriate test for causation of persecution: decision-makers should assess the reason operating in the mind of the persecutor, by objective evaluation of the facts.

The appellants were two Kurdish Turkish nationals who, on arrival in the United Kingdom, sought asylum on the ground that they would face prosecution and imprisonment if returned to Turkey because they would refuse compulsory military service. Their refusal was motivated by political opposition to Turkish policy towards Kurds and fear of being required to take part in operations against their own community. The Secretary of State refused asylum; the refusals were dismissed by a Special Adjudicator, the Immigration Appeal Tribunal and the Court of Appeal ([2001] EWCA Civ 681). The appeals reached the House of Lords.

Nature of the claim: claims for asylum under article 1A(2) of the 1951 Geneva Convention on the ground that punishment for refusal to perform military service would amount to persecution for a Convention reason (political opinion / membership of a particular social group).

Issues framed:

• whether punishment for refusal to perform compulsory military service, where that refusal is motivated by political objection, amounts to "persecution" for a Convention reason;
• whether there exists an international human right to conscientious objection such that punishment under a general conscription law would be discriminatory and thus persecutory;
• how to identify the effective reason for persecution (the persecutor's motive or the victim's belief) when deciding Convention entitlement.

Facts and findings at trial level: the Special Adjudicator found the applicants genuinely motivated by political opinion but also found (i) Turkish law provides no non-combatant alternative and draft evasion carries a 6 months to 3 years sentence, (ii) that the punishment was not disproportionate or excessive in law or in fact, and (iii) there was no reasonable likelihood the applicants would be required to commit atrocities in service.

Court's reasoning: the House interpreted the Convention in light of Vienna Convention principles. It reviewed international instruments (UNHCR Handbook, UN Human Rights Committee General Comment No 22), European materials (Joint Position, Charter), draft EU directive, and domestic and foreign case law. The court concluded there is insufficient, consistent state practice or binding international authority establishing a core human right of conscientious objection that requires states universally to provide an exemption or civilian alternative. Where a general law of universal application punishes all draft evaders alike and the punishment is not discriminatory or disproportionate, that punishment will not normally constitute persecution for a Convention reason. The House emphasised that the decision-maker must identify the real reason for the treatment by assessing the persecutor's perspective objectively; the victim's subjective belief is relevant only insofar as it reflects what the persecutor believes.

Procedural posture: appeal from the Court of Appeal after prior decisions by a Special Adjudicator and the Immigration Appeal Tribunal; the House dismissed the appeals.

Appeal dismissed. The House held that, on the facts found, punishment for refusal of compulsory military service under a general conscription law — where the punishment is not disproportionate or discriminatory and there is no realistic risk of being required to commit acts contrary to basic rules of human conduct — does not amount to persecution for a Convention reason. The court further explained the appropriate objective test for identifying the reason for persecution (the persecutor's motive viewed objectively).

Refusal of asylum by the Secretary of State; appeal to a Special Adjudicator (decision against appellants); appeal to the Immigration Appeal Tribunal (decision against appellants); Court of Appeal [2001] EWCA Civ 681 (appeal dismissed); appeal to the House of Lords [2003] UKHL 15 (appeal dismissed).