AIT i) There is no reason to seek to develop special principles of refugee law to deal with cases of soldiers. The approach to the meaning of persecution and protection (and of the need for protection to be practical) as set out in Horvath [2000] UKHL 37 and in the Persons In Need of International Protection Regulations SI 2006/2525 is well able to accommodate such cases. The case of Fadli [2000] EWCA Civ 297 has to be read and applied in the light of in the subsequent decisions of the higher courts, including Sepet and Bulbul [2003] UKHL 15 and Krotov [2004] EWCA Civ 69 as well as in the light of the Protection Regulations.
ii) Whether an asylum claimant is a soldier rather than a civilian has a significant impact on risk assessment. Assessment of any harm a soldier if returned might face must take account of his particular circumstances, including when he is not in barracks or on active duty. However, in general, serving soldiers cannot expect to be protected against military violence.
iii) As a general rule fears a soldier may have about having to perform military service cannot give rise to a refugee claim. That rule, however, is subject to exception. One exception already identified by the Tribunal and higher courts concerns those who would face punishment for being forced to participate in acts contrary to international humanitarian law (IHL). A further exception may arise when serving soldiers face being exposed by their country’s commanders to a consistent pattern of military violence contrary to the laws of war. However, where fighting of this kind is taking place the state’s duty to protect its soldiery will be heavily attenuated, by virtue of its primary responsibility to defend itself and its citizenry and will in any event vary depending on a wide range of circumstances.
iv) Enemy targeting of a soldier off duty or of members of his family is not necessarily contrary to IHL but may very often be contrary to IHL norms of military necessity, distinction and proportionality.
v) Insofar as the risk categories of NS (Iraq; perceived collaborator; relocation) Iraq CG [2007] UKAIT 00046 may cover persons who by virtue of their work have become members of the Multinational Forces or the Coalition Provisional Authority, application of its guidance will need to bear in mind that the state’s duty to protect them will be very limited.
vi) NH (Iraq-Yazidis) Iraq CG [2004] UKIAT 00306 is no longer to be followed. Whilst being a Yazidi does not as such place a person at risk on return to central and southern Iraq, it is a significant risk factor and special reasons would need to exist for not finding that such a person faces a real risk of persecution or treatment contrary to Article 3 ECHR.
Storey, Mather SIJJ, Cox IJ
[2009] UKAIT 00048
Bailii
England and Wales
Updated: 06 August 2021; Ref: scu.384470 br>