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:
Country of Applicant:
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
Court Name:
House of Lords
Printer-friendly versionPrinter-friendly version
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.

Other sources cited: 

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)

Case Law Cited: 

Australia - Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1998] INLR 1

ECtHR - Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198

United States - Gillette v United States (1970) 401 US 437

United States - Canas-Segovia v Immigration and Naturalization Service (1992) 970 F 2d 599

United States - Canas-Segovia v Immigration and Naturalization Service (1990) 902 F 2d 717

UK - Sivakumar v Secretary of State for the Home Department [2001] EWCA Civ 1196

UK - Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97

UK - R (Adan and others) v Secretary of State for the Home Department [2001] 2 AC 477

UK - Omoruyi v Secretary of State for the Home Department [2001] Imm AR 175

New Zealand - Refugee Appeal No 72635/01 of the New Zealand Refugee Status Appeals Authority, (unreported) 6 September 2002

ECtHR - X v Austria (1973) (Application no. 5591/72)

ECtHR - Thlimmenos v Greece (Application no 34369/97) (unreported)

Australia - Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293

ECtHR - Johansen v Norway (1985) (Application no. 10600/83)

ECtHR - Heudens v Belgium (Application no 24630/94), (unreported) 22 May 1995

ECtHR - Grandrath v Federal Republic of Germany (1965) (Application No 2299/64)

ECtHR - Goodwin v United Kingdom (2002) 35 EHRR 447

ECtHR - Autio v Finland (1991)(Application no 17086/90)

ECtHR - A v Switzerland (1984) (Application no. 10640/83)

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

Australia - Minister for Immigration and Multicultural Affairs v Yusuf and Israelian [2001] HCA 30

Australia - Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814

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)