BE (Iran) v Secretary of State for the Home Department

Military service may engage refugee protection where refusal is motivated by a requirement to commit an atrocity or a gross violation of human rights. The standard is not confined to conduct unlawful under international humanitarian law or prohibited by customary international law. Wartime rules may have analogical relevance in assessing minimum standards applicable in peacetime. Unmarked anti-personnel mines placed on roads used by civilians are inherently random and deadly. An order to plant them can therefore constitute a grave violation of the right to life, even without proof of a specific intention to kill. Repeated orders and evidence of official policy may establish the necessary systemic character.

The appellant, an Iranian army sapper, deserted after being twice ordered to plant anti-personnel mines on roads in populated Iranian Kurdistan. The accepted facts included his genuine belief that civilians might be killed, the absence of war or insurgency in the region, and the absence of evidence of a specific intention to harm civilians.

His asylum claim was refused by the Home Secretary and rejected by an adjudicator. Earlier appeals led to remittals, including reconsideration by the Immigration Appeal Tribunal and, after the decision in Krotov v SSHD, by the Asylum and Immigration Tribunal. The final tribunal upheld the adjudicator’s decision. The human-rights claim was no longer in issue. The central question was whether desertion to avoid planting the mines amounted to refusal to participate in an atrocity or gross human-rights abuse sufficient to establish refugee protection.

1. Appeal allowed. The appellant was entitled to international protection because he deserted rather than plant unmarked anti-personnel mines on roads used by civilians.
2. There was no rule of customary international law forbidding the use of anti-personnel mines and no simple transposition of wartime restrictions into peacetime. That did not make international humanitarian law irrelevant. Rules protecting civilians in armed conflict could have analogical bearing when identifying minimum standards of peaceful conduct. The Corfu Channel case supported the view that elementary considerations of humanity may be more exacting in peace than in war.
3. The nature of anti-personnel mines supplied compelling evidence of an intention to kill or maim at random, or at least recklessness towards human life. Concealed mines in roads from which civilians were not excluded remain randomly lethal and may cause casualties for decades. Lack of evidence of a specific lethal policy was therefore not decisive.
4. Under articles 6 and 7 of the International Covenant on Civil and Political Rights, arbitrary civilian death or maiming was a grave violation of human rights. The order to plant the mines was an atrocity and, if necessary, a gross violation sufficient to engage the principle identified in Sepet and Bulbul.
5. The requirement for conduct to be widespread or systemic was satisfied on the facts. Although Krotov had stressed policy or system in the wartime context, that restriction could not simply be imported into peacetime. Repeated orders to this military specialist and later evidence concerning Iran indicated policy and system rather than an isolated local act.
6. Once desertion to avoid a sufficiently grave human-rights abuse was established, the punishment or reprisal consequent on desertion established a well-founded fear of persecution for reasons of political opinion.
7. Separately, the Court rejected the suggestion that article 1F of the Refugee Convention limited protection to persons seeking asylum to avoid committing an excluded international crime.

The appeal accordingly succeeded and the appellant was entitled to asylum.

• Court of Appeal (Civil Division) — [2008] EWCA Civ 540: allowed the appeal and held that the appellant was entitled to asylum.
• Court of Appeal — in an earlier appeal, allowed the appeal by consent and remitted the case to a differently constituted tribunal following the decision in Krotov v SSHD.
• Asylum and Immigration Tribunal — reconsidered the case and upheld the adjudicator’s determination, treating the matter as a pure asylum claim.
• Adjudicator — rejected the asylum claim, accepting the appellant’s credibility but finding no Refugee Convention reason.
• Home Secretary — refused the claim for asylum.