Chapter 13

13.2.2. Objective fear

XZ (Russia) v SSHD [2008] EWCA Civ 180 is a disturbing case, which illustrates how all the parts of the refugee definition overlap and operate together. The appellants, a mother and son, claimed that the man who was respectively their husband and father was in the Chechen Parliament and had been killed because of his political activity. During the first Chechen war, the first appellant had been attacked, abducted and raped on multiple occasions by her abductors whom she believed to be members of the Russian security forces. Her son was abducted on the same night and forced to view a number of badly mutilated corpses. On other occasions she had narrowly missed being killed, and believed these were deliberate attempts on her life. Both mother and son were severely traumatised. Their asylum claims in the UK were refused.

In the Court of Appeal Sedley LJ said that the test to be applied was whether there was a real risk of political persecution or serious harm. The difficulty was to determine whether the atrocities committed on the mother and son were acts targeted upon them because of their husband and father’s political activity. It was only if the acts were targeted in this way that there could be said to be a real risk of their recurring. The Court of Appeal were unable to find an error of law in the tribunal’s approach. They had not found that the atrocities were targeted and though they might have done, their decision did not, the court thought, amount to an error of law. For ideas on other approaches to this case see Immigration Law Update, vol. 11 issue 10.

13.2.4.1 Rejected asylum claims

RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 was another test case for Zimbabweans in the UK whose asylum claim has failed, and who fear retribution on return. The tribunal found that claimants who were unable to demonstrate loyalty to Zimbabwe’s ruling regime would be at risk of persecution if removed back to their country. As related in the Textbook, this has been a long-running struggle through a number of cases to establish that it is unsafe to return to Zimbabwe.

Following RN¸ the Home Office issued further policy guidance suggesting that RN was already outdated. However, the legal position is that a Country Guidance case must be followed until it is overturned by the acceptance of new evidence in the Tribunal.

13.4.3 Risks in the site of internal protection and basis of comparison

The assessment of this must, as the House of Lords said in AH, be on an individual basis. This is not only a question of how a person with the appellant’s characteristics would fare in the proposed location, it must take account of actual threats to the individual in the past and whether they can be safe from them in the proposed site of relocation. In FK (Kenya) v SSHD [2008] EWCA Civ 119 it appeared that the tribunal had become so involved in the general country issues that they lost sight of the fact that the appellant herself had been threatened and was at continuing risk, a risk from which moving to another part of the country would not necessarily protect her.

13.6.3 Nationality

Some recent case law has addressed, not nationality as a Convention reason for persecution, but lack of nationality, i.e. statelessness. In MA (Palestinian Territories) v SSHD [2008] EWCA Civ 304 the Court of Appeal held that a stateless person could not claim that it would be persecutory to turn him away at the borders of his country of former habitual residence. MA had lived all his life in the Palestinian Territories. According to the law of Israel he had no nationality, and could not compel any state to grant him re-entry to his home after the failure of his asylum claim. This in itself, the Court held, was not persecutory.

Actual deprivation of nationality might amount to persecution, but its consequences should be considered to determine whether that was the case (KA (statelessness: meaning and relevance) Stateless [2008] UKAIT 00042). In KA the appellant’s nationality was uncertain. He was born in Ethiopia of Eritrean parents. The Tribunal noted that refugee status was founded on fear of persecution in the country of nationality. If the appellant had no nationality, his status had to be determined by reference to his country of former habitual residence, which was Ethiopia. The appellant could not have dual nationality because neither Ethiopia nor Eritrea permitted it. He might still have the Ethiopian nationality that he had when he was born. If not, he might have become entitled to Eritrean nationality. If he was stateless or had Ethiopian nationality, Ethiopia was the appropriate State of reference for the purposes of refugee status determination. But if he had, or was entitled to have, Eritrean nationality, Eritrea was the appropriate State.

In MM and FH (Stateless Palestinians – KK, IH, HE CG reaffirmed) Lebanon [2008] UKAIT 00014 the tribunal held that differential treatment of Palestinians in refugee camps in Lebanon did not arise from their race, but from their statelessness. It could be justified under international conventions and human rights norms. The tribunal found that the treatment they suffered did not reach the threshold required to breach Article 3. One might speculate whether, if they had considered that it was on racial grounds, this might have altered that conclusion, following the East African Asians case.However, in MT(Palestinian Territories) v SSHD [2008] EWCA Civ 1149 and SH (Palestinian Territories) v SSHD [2008] EWCA Civ 1150 an attempt failed to re-open the issue decided in MA (Palestinian Territories). The appellants argued that the court in MA had only decided that refusal of entry was not persecution, they had not considered that in the light of refusal being on the grounds of race (being a Palestinian Arab). The Court disagreed. They held that this must have been in the contemplation of the court in MA.

According to these cases,refugee law does not offer a remedy for statelessness per se.

13.6.4.1 Gender based persecution

In R (on the application of Umar) v SSHD [2008] EWHC 2385 (Admin) the High Court found that evidence from reports about Nigeria which concerned the lack of protection for women against domestic violence did not establish that the claimant would be at risk as the violence to her was from her husband’s family, not from him. The objective evidence mainly concerned violence by husbands towards their wives. The case was determined on internal flight, so the assessment of the evidence about protection from violence was not the only factor in the outcome. It perhaps illustrates, nevertheless, the difficulty in a legalistic system of establishing risk in some of the situations that face women.

13.6.4.3 Sexuality

HJ (homosexuality: reasonably tolerating living discreetly) Iran [2008] UKAIT 00044 deals with the question of living discreetly, this time in the context of Iran. It did not change the principle of existing law: thatit is a question of fact to be decided in each case on the evidence of the appellant’s history and experiences whether he could “reasonably be expected to tolerate” living without openly displaying or perhaps even disclosing his sexuality. HJ’s appeal from this decision was dismissed in HJ (Iran) and HT (Cameroon) v SSHD [2009] EWCA Civ 172. Pill LJ said:

In considering what is reasonably tolerable in a particular society, the fact-finding Tribunal is in my view entitled to have regard to the beliefs held there. A judgment as to what is reasonably tolerable is made in the context of the particular society. (para 32)

13.6.5.1 Conscientious objection

BE (Iran) v SSHD [2008] EWCA Civ 540 should be read by anyone who is interested in how the law can develop by the use of humanitarian principles. BE himself had a nine year struggle through a Kafkaesque legal process to an eventual decision that he was entitled to asylum.

The appellant was an Iranian soldier who was ordered to plant landmines in a populated area. Rather than do this he went absent without leave, but was found and sentenced to 3 months' imprisonment. On release he was demoted and sent back to his post in Kurdistan. There he was told that an officer who had been refusing to plant landmines had been shot and his death blamed on Kurdish rebels. The clear implication was that his death was a sanction for disobeying the order to plant landmines. A week later the appellant received the order to plant landmines in roads somewhere in the vicinity of the border. They were anti-personnel mines, and would endanger civilian life. There was no state of war or insurgency in Iranian Kurdistan at that time, but Iran was not a party to the Ottawa Convention, which was the agreement between states to cease the use of landmines. Not wanting to lay the mines because they might result in civilian deaths, the appellant deserted and fled to the UK.

His asylum claim was turned down on the basis that, for a regular soldier, civilian deaths were a consequence of war which did not justify desertion. A series of appeals failed, but the case finally reached the Court of Appeal on what had been called ‘the “war and peace” point’. This was that the irreducible minimum of civilised conduct should not be lower in peace than in war, and it was his refusal to go below that minimum that made the appellant a refugee.

The Court said that the seeding of terrain with anti-personnel explosive devices was one of the most vicious tactics in modern warfare and also in state security. Both during, and for decades after, they had been deployed landmines randomly killed and maimed uninvolved civilians, a high proportion of them children. There was abundant evidence of this before the tribunal, even if it were not a matter of judicial notice. The preamble to the Ottawa Convention recorded that the state parties were ‘determined to put an end to the suffering and casualties caused by anti-personnel mines’. By its first article, each state party undertook ‘never under any circumstances’ to use anti-personnel mines.

A report, issued by the International Committee of the Red Cross in 1996, on the military use of anti-personnel land mines said that over the previous 50 years, landmines had probably inflicted more death and injury than nuclear and chemical weapons combined. Landmines differed from most weapons, which had to be aimed and fired. Once they had been laid, mines were completely indiscriminate in their action. The main characteristic of a mine was that it was designed to be activated by the victim. The report recorded that the lack of evidence that governments had tried to reduce the lethality of AP mines indicated that their excessive capacity to injure was ‘a matter of deliberate design’.

Sedley LJ drew from these facts the conclusion that anyone who, and any state which, sowed unmarked anti-personnel mines in terrain from which civilians were not excluded was responsible for the deaths and injuries that would result. The concealed planting of anti-personnel devices in a path or highway was itself compelling evidence of either intent to kill and maim at random or, at lowest, of recklessness towards the taking of human life.

The Home Secretary had defended the case mainly on the basis that there was no breach of what might be called ‘hard law’. The court held, however, that International agreements were relevant to the appellant’s argument to show that by 1999 the almost universal condemnation of anti-personnel mines had placed their use in the category of gross atrocities or gross abuse of the human right to life and bodily integrity. The material test was to be found in Sepet and Bulbul [2003] UKHL 15. There Lord Bingham had observed:

'There is compelling support for the view that refugee status should be accorded to one who has refused to undertake compulsory military service on the grounds that such service would or might require him to commit atrocities or gross human rights abuses, or participate in a conflict condemned by the international community, or where refusal to serve would earn grossly excessive or disproportionate punishment.' (para 58)

No state appeared since 1998 to have contested the arbitrary and unjustifiable effects of anti-personnel landmines or to have advanced any but a temporary pragmatic reason for not repudiating their use. The court held that the appellant was right to describe the outlawing of such weapons as an emerging norm of international law.

International humanitarian law required belligerents to minimize collateral harm to civilians. The court considered that appellant was entitled to ask why civilians should be entitled to expect less legal protection in time of peace than they would have if there were a war on. In determining what the law of peace was in the present context, the law of war could be used at least as an analogy. In Krotov v SSHD [2004] EWCA Civ 69 the Court of Appeal had held that prospect of punishment for refusal to participate in inhumane acts could found refugee status. Those acts violated 'the basic rules of human conduct', which applied at all times, not just in war.

In the court's judgment, the order given to the appellant to plant anti-personnel mines in roadways was an order to commit a grave violation of human rights. The Court held that this was what the appellant was seeking to avoid by deserting, and he was consequently entitled to asylum.

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