West Law Report

Deserter earns refugee status

Posted in Times Law Report by mrkooenglish on June 26, 2008

From The TimesJune 18, 2008

Deserter earns refugee status
BE (Iran) v Secretary of State for the Home Department in the Court of Appeal
Court of Appeal

Published June 18, 2008

BE (Iran) v Secretary of State for the Home Department

Before Lord Justice Ward, Lord Justice Sedley and Lord Justice Wall

Judgment May 20, 2008

An Iranian soldier who deserted to avoid carrying out an order to plant land mines in peacetime which were liable to kill or maim civilians was entitled to protection as a refugee.

The Court of Appeal so held when allowing the third appeal by the claimant, BE, from the dismissal by an Asylum and Immigration Tribunal (Mr C. M. G. Ockleton, Deputy President, Senior Immigration Judge Eshun and Senior Immigration Judge Grubb) of his appeal against the refusal of his asylum claim by the Secretary of State for the Home Department.

The claimant, an Iranian soldier, was ordered in peacetime in 1998-1999 in Iran to plant landmines in a populated area. He went absent, later deserting and claimed asylum in the United Kingdom.

On appeal, the claimant contended, inter alia, that a soldier’s right of refusal, and the concomitant entitlement to international protection, extended at least in peacetime to orders to commit any human rights violation of the seriousness of this case; and the protection given to civilians in peacetime by article 6 of the International Covenant on Civil and Political Rights could not be weaker than that accorded to them in time of war.

Ms Frances Webber for the claimant; Mr Tim Eicke for the Home SAecretary.

LORD JUSTICE SEDLEY, giving the judgment of the court, said that, having regard to Sepet v Secretary of State for the Home Department ( The Times March 21, 2003; [2003] 1 WLR 856) and Krotov v Secretary of State for the Home Department ( The Times February 26, 2004; [2004] 1 WLR 1825), the question 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 and on these facts it had.

The claimant was seeking to avoid commission of what this country and civilised opinion worldwide recognised as an atrocity and a gross violation of human rights and he was entitled to succeed in his asylum claim.

Solicitors: Mr George Vickers, Newcastle upon Tyne; Treasury Solicitor.

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