Krotov v Secretary of State for the Home Department

A person may establish a Convention reason for refugee status after refusing military service where the conflict involves, or may involve, systematic breaches of internationally recognised humanitarian norms and the person genuinely fears being required personally to participate in them.

International condemnation of the particular conflict is important evidence, but it is not a prerequisite. The tribunal must assess the realities of the conflict, including whether the conduct is state policy or the product of official indifference, rather than isolated wartime excesses. Punishment for the genuine refusal may then amount to persecution through an implied or imputed political opinion.

The appellant, a Russian national, deserted after being sent to fight in Chechnya. He claimed asylum and human-rights protection on the basis that he objected to participation in that conflict and feared punishment on return.

An adjudicator dismissed the appeal. The Immigration Appeal Tribunal dismissed a further appeal on 2 May 2002. It held that refugee protection on this ground required international condemnation of the Chechen conflict, and rejected the appellant’s other asylum and human-rights arguments.

The Court of Appeal considered whether international condemnation of a particular conflict was a necessary condition for an asylum claim founded on a conscientious refusal to perform military service.

1. Appeal allowed and remitted. The Tribunal erred by treating international condemnation of the particular military campaign as a prerequisite. The proper approach in Foughali, confirmed in B v Secretary of State for the Home Department, was preferred.

2. There is no general Convention right to absolute or partial conscientious objection. But a genuine refusal to serve may found refugee status where the applicant reasonably fears being personally required to participate in systematic conduct contrary to basic rules of human conduct, is liable to punishment for refusal, and is genuinely motivated by disapproval of that conduct and fear of punishment. In those circumstances the refusal may amount to an implied or imputed political opinion for the purposes of Article 1A(2) of the United Nations Convention relating to the Status of Refugees 1951.

3. The relevant norms are internationally recognised humanitarian norms applicable in armed conflict. They include genocide, deliberate killing or targeting of civilians, rape, torture, execution or ill-treatment of prisoners, and taking civilian hostages. The conduct must be systematic, through deliberate policy or official indifference to widespread brutality. Random individual atrocities, however serious, do not suffice. The applicant must also show a reasonable fear of being required to participate, rather than a general objection based on reported excesses.

4. International condemnation is a highly relevant indicator of whether those norms have been breached, but does not define the category. As part of their surrogate-protection function, asylum tribunals may assess foreign conditions and international-law norms. The case was remitted to a differently constituted Tribunal because it was unclear whether the material concerning Chechnya had been fully considered under the correct test.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the asylum appeal to a differently constituted Immigration Appeal Tribunal: [2004] EWCA Civ 69 .
• Immigration Appeal Tribunal: On 2 May 2002, dismissed the appeal from the adjudicator and treated international condemnation of the Chechen conflict as necessary to this aspect of the asylum claim.
• Adjudicator: On 29 November 2001, dismissed the appellant’s asylum and human-rights appeal against removal directions.