UK - House of Lords, 23 March 2003, Sepet & Anor, R (on the application of) v Secretary of State for the Home Department [2003] UKHL 15
| Country of Decision: | United Kingdom |
| Country of applicant: | Turkey |
| Court name: | House of Lords |
| Date of decision: | 23-03-2003 |
| Citation: | [2003] UKHL 15 |
| Additional citation: | [2003] 3 All ER 304, [2003] Imm AR 428 14, BHRC 238, [2003] 1 WLR 856, [2003] INLR 322 |
Keywords:
| Keywords |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
Headnote:
The 1951 Refugee Convention does not provide protection in respect of claims of conscientious objectors who feared imprisonment for their refusal to undertake military service where there is no alternative service offered in national law. This was the position even if that objection is to all forms of military service and is absolute. The right to conscientious objection was not yet protected in international human rights law and was yet to emerge as a principle of customary international law. A claim may succeed if the applicant would be required, in the course of military service, to conduct military action that breached the basic rules of human conduct or if the punishment they would receive for refusal to serve was discriminatory or disproportionate. Secondly, when assessing whether persecution was “for” a Convention reason the decision-maker should ask the question of “what was the real reason for the persecution?”. The decision-maker should not limit the enquiry to the persecutor’s motivation but should look for the effective reason or reasons.
Facts:
The applicants were both Kurds from Turkey. Both claimed that they were entitled to recognition as refugees because they objected to undertaking military service in the Turkish army and would face imprisonment and forced conscription as a result. Neither applicant objected to all forms of military service. Rather they did not want to participate in military action against the Kurdish people in Turkey. It was not established that they would be required to engage in or be associated with acts offending against the basic rules of human conduct.
Decision & reasoning:
The Court dismissed the appeals.
The Court considered the provisions of international human rights treaties, the jurisprudence of international human rights bodies, the decision of national courts and state practice. It concluded that there was no international consensus that established a human right to conscientious objection to conscription and that such a right had not crystallised into a norm of customary international law. This was true whether the motivation for conscientious objection was absolute (i.e. to all forms of military service) or partial (i.e. to military service of a certain type). This finding was sufficient to dismiss the applicants’ appeals.
The Court also considered the correct approach to assessing whether an applicant was being persecuted for a Convention reason. The Court held that the test was not only a matter of considering the matter from the point of view of the persecutor. Rather, the appropriate test was to carefully assess “the real reason for the persecution”. This should be considered as the reason that operates in the mind of the persecutor and not the reason that the victim believes underlies the persecution. Indeed, there may be more than one real reason. The test was an objective one, taking into account all the facts or circumstances.
Outcome:
Appeal dismissed.
Observations/comments:
The Court held that a human right to conscientious objection in international law may crystallise in the future.
Draft Articles 9 and 12 of the Qualificaiton Directive were cited.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| ICCPR |
| ICCPR - Art 18 |
Cited Cases:
| Cited Cases |
| UK - House of Lords, 6 July 2000, Horvath v. Secretary of State for the Home Department [2000] UKHL 37 |
| ECtHR - A v Switzerland (1984) (Application no. 10640/83) |
| ECtHR - Autio v Finland (1991)(Application no 17086/90) |
| ECtHR - Goodwin v United Kingdom (2002) 35 EHRR 447 |
| ECtHR - Grandrath v Federal Republic of Germany (1965) (Application No 2299/64) |
| ECtHR - Heudens v Belgium (Application no 24630/94), (unreported) 22 May 1995 |
| ECtHR - Johansen v Norway (1985) (Application no. 10600/83) |
| ECtHR - Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198 |
| ECtHR - Thlimmenos v Greece (Application no 34369/97) (unreported) |
| ECtHR - X v Austria (1973) (Application no. 5591/72) |
| UN Human Rights Committee - L.T.K. v Finland, Communication No. 185/1984 (9 July 1985), U.N. Doc. CCPR/C/OP/1 at 61 (1984) |
| Australia - Minister for Immigration and Multicultural Affairs v Yusuf and Israelian [2001] HCA 30 |
| Australia - Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 |
| Australia - Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 |
| Australia - Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1998] INLR 1 |
| New Zealand - Refugee Appeal No 72635/01 of the New Zealand Refugee Status Appeals Authority, (unreported) 6 September 2002 |
| Canada - Zolfagharkhani v Canada (Minister of Employment and Immigration) [1993] FC 540 |
| Canada - Ciric v Canada (Minister of Employment and Immigration) [1994] 2 FC 65 |
| United States - Canas-Segovia v Immigration and Naturalization Service (1990) 902 F 2d 717 |
| United States - Canas-Segovia v Immigration and Naturalization Service (1992) 970 F 2d 599 |
| United States - Gillette v United States (1970) 401 US 437 |
| UK - Omoruyi v Secretary of State for the Home Department [2001] Imm AR 175 |
| UK - R (Adan and others) v Secretary of State for the Home Department [2001] 2 AC 477 |
| UK - Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97 |
| UK - Sivakumar v Secretary of State for the Home Department [2001] EWCA Civ 1196 |
Follower Cases:
Other sources:
UN Human Rights Committee (HRC), CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/Add.4
Joint Position adopted by the Council of the European Union on the harmonised application of the term "refugee" in article 1 of the 1951 Convention (4 March 1996)
Draft Directive of the Council of the European Union (15068/02) (28 November 2002) on minimum standards for the qualification of third country nationals as refugees.
Professor Hathaway, The Law of Refugee Status, (1991), "The Causal Nexus in International Refugee Law" (2002) 23 Michigan Journal of International Law 207
Professor Goodwin-Gill, The Refugee in International Law, 2nd ed (1996)
Ronald Dworkin Taking Rights Seriously (1977), A Matter of Principle (1985)
Oppenheim's International Law, vol 1, 9th ed (1992) (ed Jennings and Watts)
Rapporteur of the Committee on Legal Affairs and Human Rights of the Council of Europe reported on 4 May 2001 on "Exercise of the right of conscientious objection to military service in Council of Europe member states" (Doc 8809 revised)