AN (Military Service) Sudan [2002] UKIAT 02099
HX/27706/2001
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 19 April 2002
Date Determination notified: 21 June 2002
Before
Ms S M Ward ( Chairman)
Mr C Thursby
Between
AN |
APPELLANT |
and |
|
Secretary of State for the Home
Department |
RESPONDENT |
DETERMINATION AND REASONS
- The Appellant, who is a citizen of Sudan, was given leave on 10 January
2002 to appeal against the determination promulgated on 11 December 2001 of an
Adjudicator, Miss J E Perrett, dismissing his appeal against the refusal of
the Respondent to grant asylum .
- At the hearing before us the Appellant was
represented by Ms C Ganning of counsel. The Respondent was represented by Mr
Saunders, Home Office Presenting Officer.
- The Appellant entered the country clandestinely and claimed asylum on 5
January 2001. The basis of his claim was that he did not want to serve in the
army because he would be sent to the south of his country to fight against
Christians. He was summoned to report for initial training with the Popular
Defence Force in July 1998 but left Sudan in April 1999 and went to Syria. He
left Syria at the end of 2000 and travelled overland to the United Kingdom.
The Respondent dismissed the Appellant's claim on the basis that, in practice,
army deserters and military service draft evaders are re-drafted into the army
and the Appellant would not be at risk on return of persecution. In dismissing
the appeal, the Adjudicator noted certain discrepancies in the accounts given
by the Appellant but found that the Appellant had received call-up papers to
serve in the army and had fled to Syria. She concluded, however, that it was
not necessarily the case that he would be prosecuted for draft evasion. Even
if he were, she concluded that there was nothing in the background information
to suggest that imprisonment would amount to persecution.
- Ms Ganning submitted that the evidence showed what the penalty was for
draft evasion in Sudan. It was a fine and a sentence of imprisonment up to
three years. The background evidence also showed that prison conditions in
Sudan were harsh and life threatening. The Appellant had evaded his call-up
and was therefore at risk of being imprisoned and subject to life threatening
prison conditions. She referred us to relevant section of the Home Office CIPU
Report on Sudan in the Appellant's bundle and to the US State Department
Report of 2000 on human rights practices in Sudan. The Tribunal's attention
was also drawn to the UNHCR message of February 2002 contained in the
Appellant's bundle where it was stated that an administrative decree in Sudan
of February 1993 authorised the arrest of all returning Sudanese who left the
country after the June 1989 coup and who had been away for more than a year.
The Appellant, she submitted, fell into this category. The report goes on to
state that such individuals are subject to investigations and the necessary
security measures. Ms Ganning also sought leave to tender a copy of a UN
regional information network published on the internet and dated 11 February
2001. Leave was granted by the Tribunal on the basis that the Appellant's
representatives had only recently obtained such report on 18 April 2002. The
report claimed that a major humanitarian crisis was unfolding in the south of
the Sudan with a massive upsurge in the war. In such circumstances, she
submitted, it was even more likely that the Appellant would be picked up at
the airport on his return to Sudan.
- Mr Saunders submitted that the Appellant was not a conscientious
objector. At best he was a partial objector and it had been held by the Court
of Appeal in Sepet and Bulbul that partial conscientious objectors
could not benefit from the Refugee Convention. As regards the Human Rights
Convention the Appellant would have to show a real risk of penalty amounting
to an infringement of his rights. There was nothing in the US State Department
Report to show what happened to draft evaders, and on the basis of the CIPU
Report, the Appellant could not show that his rights would be infringed. Mr
Saunders pointed to paragraph 5.68 of the CIPU report where it was stated that
there were other options for those drafted for military service. It was not
necessarily the case that a person answering his call-up would have to serve
in the army. There was a dearth of evidence regarding what actual penalties
are imposed, if any. As regards the UNHCR report about the checking of those
returning, it was not possible to know from the evidence what the security
measures were or how extensive the checking process might be.
- In reviewing the decision of the Adjudicator we have concluded that,
although she made reference in paragraph 15 to the lower standard of proof,
she did not put that into practice in critical areas of her determination, nor
focus on the correct questions with regard to the return of the Appellant to
Sudan. For example , in paragraph 25 the Adjudicator stated :
"Even accepting that he is at last found, it is not necessarily
the case he would be prosecuted for draft evasion and subject to
imprisonment. It is common for young men to try and avoid the service by
studying abroad."
Whilst it might be correct to state that the Appellant would not
necessarily be prosecuted and imprisoned, in the light of her conclusion in
paragraph 23 that there would be enquiries on his return as to whether he had
had the necessary exit visa, the Adjudicator should have assessed whether
there was a real risk that he would be prosecuted or detained.
- In paragraph 26 the Adjudicator appears to have considered what
alternatives to prosecution and imprisonment might await the Appellant, but
she has not set out any conclusion on the proper question – was there a real
risk that he might be prosecuted and imprisoned?
- Furthermore, in paragraph 30 the Adjudicator has concluded that,
notwithstanding that prison conditions are poor in Sudan, the Appellant had
not shown a real risk of an article 3 or 5 contravention. In reaching this
conclusion, the Adjudicator again did not ask herself the right question. The
evidence was that prison conditions in Sudan are harsh and life threatening.
In the light of that evidence it was necessary for the Adjudicator to ask
herself whether there was a real risk that the Appellant would be subject to
imprisonment and, if so, whether the conditions in prison in Sudan reached the
necessary threshold of severity to constitute inhuman or degrading treatment
for this Appellant.
- Although we have concluded that the Adjudicator addressed these issues
incorrectly, they are matters which we may properly deal with in this appeal.
Firstly we deal with that part of the Appellant's claim which relates to the
Refugee Convention.
- In the cases of Sepet and Bulbul [2001] Imm A R 452, to which Mr
Saunders referred, the Court of Appeal considered appeals involving refusal by
those appellants to do military service in their home country of Turkey. The
Court of Appeal repeated what has become settled law that there are
circumstances in which a conscientious objector may rightly claim that the
punishment for draft evasion would amount to persecution – where the military
service to which he is called involves acts with which he may be associated
which are contrary to the basic rules of human conduct; where the conditions
of military service are themselves so harsh as to amount to persecution on the
facts; where the punishment in question is disproportionately harsh or severe.
However even that persecution, according to the Court of Appeal, will only
entitle an applicant to claim international protection if there is a relevant
Convention reason connected to the treatment feared by that applicant.
- The Appellant stated at the hearing that he did not object to military
service as such but he did not want to fight the Nuba. At best he is a partial
objector. But whether he be an absolute objector or a partial one, he cannot
pray in aid the Refugee Convention unless he is able to show that he faces
treatment amounting to persecution for a Convention reason.
- His claim is that, as a draft evader, he faces a
real risk of being detained at the airport and found to have evaded the draft.
He says that he will be at risk of a fine and up to three years imprisonment
in harsh and life threatening conditions. However, what he has been unable to
show both before the Adjudicator and this Tribunal is that he would face such
treatment for a Convention reason – that is, on account of race, religion,
nationality, membership of a particular social group or political opinion. The
evidence at paragraph 5.74 of the CIPU Report is that recruits are drawn from
the Christian minority in the south of Sudan and those living in the north, as
well as the Arab majority population in the north. Whilst there is evidence
that Christian recruits are often humiliated on account of their religion and
are put under pressure to convert to Islam, there is no evidence that any
particular religious, ethnic or racial group faces any harsher punishment than
any other group in the event of draft evasion or desertion. Neither is there
any evidence to suggest that draft evasion or refusal to serve one's national
service is regarded as an expression of any political belief. On the contrary
the evidence suggests that failure to report for military service is treated
relatively leniently. At paragraph 5.73 of the CIPU Report it is stated that
those who fail to report after having received their call papers will have
their pay withheld at work. If they still fail to report, they will be
dismissed from their job. The evidence also shows that it is possible to buy
one's way out of military service. The Appellant has been unable to show that
any penalty which might be imposed upon him for draft evasion or refusal to do
his national service would have the necessary connection to a Convention
reason. Draft evasion or refusal to serve, per se, is not a Convention reason
- There is evidence in the UNHCR report at page 50 of the Appellant's
bundle that returning Sudanese who left after the June 1989 coup and have been
away for a year are subject to investigations and necessary security measures
pursuant to a decree of 1993. Returning asylum seekers are known to have been
questioned at point of entry on the basis of this decree. However we note that
the Appellant did not leave straight after the June 1989 coup but in 1999, ten
years later. There is no risk that his departure date would give rise to
suspicion of being a participant in such a coup or give rise to a real risk
that his failure to report for national service was somehow connected with
that coup. He has, however, been away for more than a year and thus may be at
risk of questioning on his return. We have considered whether the length of
time outside the country might give rise to a risk for this Appellant of ill
treatment on his return for suspected or imputed political reasons. The UNHCR
report suggests to us that the security measures referred to were aimed at
detecting those who fled after the coup, although we accept that the decree
may have been used to detect political opponents or supporters of political
opponents. But, even if this Appellant's absence abroad were to render him at
risk of questioning for imputed political belief, there is no evidence to show
what the nature and extent of the questioning and security measures which
await anybody detained in this way. The only available evidence about what
might happen is the statement in the UNHCR document ( page 51 of the
appellant's bundle) that UNHCR is aware of some individuals who have been
subjected to detention without trial. The length and nature of that detention
is uncertain. It cannot therefore be shown that such a risk, if it were to be
a risk for this Appellant, is one of treatment amounting to persecution.
- We now turn to the question of whether there is a real risk of a breach
of Article 3 of the Convention if he were to be removed. This requires us to
consider whether there is a real risk that this Appellant will be apprehended
on his return, be imprisoned in Sudan and subject to inhuman and degrading
treatment.
- As regards the risk of apprehension, we conclude that the evidence is
not such as to show a real risk. There is a dearth of evidence on this
subject. Ms Ganning has not been able to show us any evidence of the extent to
which administrative procedures and records may be available at points of
entry in the Sudan to enable the authorities to identify the Appellant on his
return as a person who has failed to answer his call-up. She submitted,
however, that Khartoum is a sophisticated capital and it was likely that such
security checks would exist. We do not accept this submission. We cannot make
such an assumption in the absence of any supporting evidence to indicate the
nature of extent of security measures in place in Khartoum airport. We are
unable to conclude that there is a real risk that the security measures in
place at Khartoum Airport are such as to pose a real risk to the Appellant of
being identified as a person who has not answered his call-up papers over
three years ago.
- However, even the Appellant were to be detected as
a draft evader on his return to Sudan, the evidence to which we have referred
above with regard to the consequences for those who fail to report for
military service after receiving their call-up papers, indicates to us that a
comparatively lenient approach is taken to those who have not answered their
call-up papers. Failure to report in this way does not result, at least in the
first instance, in arrest and detention. Deserters from the army, on being
arrested, will usually be re-conscripted into the armed forces. This suggests
to us that, even for the offence of desertion, the authorities are more
interested in getting the deserter into the army than imprisoning him.
Additionally, evasion of military service is not uncommon, and at paragraph
5.74 it is stated it is possible to buy one's way out of military service.
- Mr Saunders submitted that a conscript can be required to do his
national service in other ways than service in the army. He pointed to
paragraph 5.68 of the CIPU report to show that alternatives exist – the police
force, the Public Order Police, the other security forces, government
departments and public projects for social and economic development. The
Appellant does not object to national service per se and, Mr Saunders
submitted, is only a partial objector. Mr Saunders point, it seemed to us, is
that this Appellant might not find himself in the situation of having to
refuse to serve if picked up on his return and re-conscripted, and therefore
might not be faced with any penalty for refusal to serve. Whilst that is
possible, we note that conscripts have no choice as to what kind of service
they do. In the light of the recent escalation in the conflict in Sudan and
the absence of such choice for the Appellant, we have concluded that that
there is a real risk that a person conscripted now or detected as a draft
evader would be required to join the military.
- However, even if the Appellant were to be identified on his return as a
person who failed to answer his call-up papers, and were to find himself in
the position of refusing to serve in the military, there is no evidence to
show that the prescribed penalty of a fine and imprisonment is nowadays
imposed upon persons in his position, or, if so, what level of fine and term
of imprisonment are normally imposed. Evidence that a particular punishment is
prescribed by law should be accompanied by evidence to show that there is a
real risk that such penalty would be imposed upon the particular appellant.
There is no such evidence in this appeal. In the light of this, the limited
evidence that prison conditions in Sudan are harsh and overcrowded, and that a
penalty of a fine and imprisonment of up to three years for refusal to do
military service is prescribed, do not, in our view, constitute substantial
grounds for believing that there is a real risk that this Appellant will
suffer torture or inhuman or degrading treatment or punishment on his return.
An appellant must show a real risk of breach of his Article 3 rights, not a
theoretical one. This Appellant has not done so.
- The Appellant might be questioned at Khartoum Airport, not as a draft
evader but as a person who has been away from the country for some time, under
the Decree we have already referred to. But as we have already set out above,
there is insufficient evidence about what might happen thereafter.
- The Adjudicator fell into error along the way to her conclusion that
this appeal should be dismissed . However, having examined the relevant issues
ourselves we have reached the same conclusion, albeit by a different route.
- This appeal is, therefore, dismissed.
Ms S M Ward