BE (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 540

Friday 30 May 2008

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BE (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 540; [2008] WLR (D) 159

CA: Ward, Sedley and Wall LJJ: 20 May 2008

The appellant was an Iranian who deserted from the army when he was ordered to plant landmines in a road which he knew was used by civilians. The Court of Appeal accepted that he was entitled to refugee status, since the planting of landmines in these circumstances was an atrocity and a gross abuse of human rights, so that any punishment for refusal to obey the order would amount to persecution.

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An Iranian soldier who had been ordered in peacetime to plant land mines liable to kill or maim innocent civilians, and who had deserted, was entitled to international protection as a refugee since the order constituted a requirement that he commit a grave violation of human rights which could further be characterised as "gross" and "an atrocity".

The Court of Appeal so held when allowing the third appeal by the claimant, BE, from a decision of the Asylum and Immigration Tribunal (CMG Ockleton, Deputy President, Senior Immigration Judge Eshun and Senior Immigration Judge Grubb) dismissing his appeal against the refusal of his asylum claim by the defendant, the Secretary of State for the Home Department.

The claimant was an Iranian who, during service as a regular soldier in Iran in 1998-1999, had more than once been ordered to plant landmines in a populated area when there was no state of war in the area. He had gone absent without leave and later deserted, claiming asylum in the United Kingdom. The grounds of appeal were that, although conscientious objection simpliciter did not entitle a soldier to international protection, the contention that a soldier was entitled only to refuse to commit war crimes and crimes against humanity was unjustifiably narrow; and the soldier's right of refusal, and the entitlement to international protection which it attracted, extended, at least in peacetime, to orders to commit any human rights violation of sufficient seriousness; and such a level of seriousness was reached where the order given would breach international humanitarian law were it to be given in an armed conflict, because the protection given to civilians in peacetime by art 6 of the International Covenant on Civil and Political Rights could not be weaker than that accorded to them in time of war.

Art 6 of the ICCPR provides: "(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." Art 7 forbids cruel or inhuman treatment.

SEDLEY LJ, giving the judgment of the court, said that any state which sowed unmarked anti-personnel mines in terrain from which civilians were not excluded was responsible for the deaths and injuries which would result; and the concealed planting of such devices in a path or highway was by itself compelling evidence of either intent to kill and maim at random or, at the lowest, of recklessness towards the taking of human life. The question here was whether the point had come at which systematic and indiscriminate use by a state of lethal weapons against unarmed civilians constituted a gross human rights abuse and an atrocity. The Secretary of State, referring inter alia to Streletz v Germany (2001) 33 EHRR 751, contended that the present case was not in the applicable class. The material test was to be found in the decisions of the Court of Appeal and the House of Lords in Sepet v Secretary of State for the Home Department, in particular per Lord Bingham of Cornhill in the House of Lords [2003] 1 WLR 856, para 8 ("such service would or might require him to commit atrocities or gross human rights abuses"), and per Laws and Jonathan Parker LJJ in the Court of Appeal [2001] EWCA Civ 681, paras 61,152. Regard was also to be had to Krotov v Secretary of State for the Home Department [2004] 1 WLR 1825. Moreover, Iran was a signatory to the ICCPR, and the protection afforded by art 7 was unconditional. For present purposes it was sufficient to find that few things could be more "arbitrary" than the death or maiming of a civilian, very probably a child, by the accidental detonation of an anti-personnel mine; and it was nothing to the point that the device might have been laid in order to blow up drug-smugglers or terrorists. In the instant case, the order given to the claimant to plant such mines in roadways was an order to commit a grave violation of human rights; and if it was necessary to characterise such a violation as "gross" before it could rank as a sufficient breach to attract refugee protection the court did so, and the violation would also be characterised as an "atrocity" even in the absence of resultant deaths or maimings. No right was more fundamental than the right to life, and a state which embarked on a course which was bound sooner or later, save by pure chance, to rob innocent people of that right, without any justification beyond the state's perceived self-interest, was committing a grave violation of human rights. What the claimant was seeking to avoid by deserting was the commission of what this country and civilised opinion worldwide recognised as an atrocity and a gross violation of human rights, viz the unmarked planting of anti-personnel mines in roads used by innocent civilians; and he was accordingly entitled to succeed in his claim for asylum.

 

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Garden Court's Frances Webber appeared for the claimant; Tim Eicke (Treasury Solicitor) for the defendant.

Reported by: Matthew Brotherton, barrister, in WLR Daily Reports (see link below)

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