The decision

Heard at Field House Appeal No: HX50211-2001
On 13 August 2002 KH (Risk-Maoist) Nepal CG [2002] UKIAT 03945


Date Determination notified:
22ND AUGUST 2002

Mrs J A J C Gleeson (Chairman)
Mr R Hamilton
Mrs S Hewitt



The Secretary of State for the Home Department



1. The appellant, Mr Krishna Bahadur Lamich Hane, appeals with leave against the determination of an Adjudicator (Mr A Talbot), promulgated on 21 May 2002. He is a national of Nepal. The Adjudicator found that he was a member of the Maoist Party, which is a violent terrorist organisation. The respondent dismissed his appeal against the decision of the respondent on 1 August 2001, setting removal directions after refusal of asylum.
2. At the hearing, Ms S Folkes of Counsel appeared for the appellant. Mr S Bilbe, Home Office Presenting Officer, represented the respondent.
3. The Adjudicator’s determination accepts that the appellant is a Maoist party member in Nepal, and is a combatant, having been involved in an armed raid on a police station as a result of which two policemen were injured. The Adjudicator also accepted that when the appellant came to the United Kingdom he was ‘wanted’ and that the police were still interested in his whereabouts. The Adjudicator’s core findings of fact are that -
“31. It is clear from the [U.S. State Department Report p1] that the police and state authorities are responsible for human rights abuses, albeit in the context of a campaign against armed opponents who commit what could reasonably be described as terrorist activities.
32. Relating the above to the situation of the appellant; the evidence indicates that he is wanted by the authorities on suspicion of having been involved in an armed attack on a police post during which two policemen were described as having been badly injured. Clearly the authorities have a legitimate interest in finding the culprits for this attack and if the appellant was returned to Nepal, there is a clear risk to him that he would be arrested for this.”
4. The Adjudicator considered that to be prosecution not persecution and outwith the United Nations Convention Relating to the Status of Refugees 1951, as amended by the New York Protocol of 1967. He does not seem to have been taken to the exclusion clause at paragraph 1F of that Convention. His consideration of Article 3 of the European Convention on Human Rights and Fundamental Freedoms 1950 is disposed of on the same basis as that for the Refugee Convention, without making any distinction of breadth in relation to terrorists such as the appellant.
5. Ms Folkes on behalf of the appellant accepted that the only relevant issue was whether there was a risk on return which engaged Article 3 of the European Convention on Human Rights. Given the provisions of article 1F, the appellant was excluded from the Refugee Convention on the facts found. She also accepted that as Nepal was currently in a formal state of emergency, only those Articles of the human rights convention which were unqualified were applicable, but sought to rely only on Articles 2 and 3 in any event.
6. Ms Folkes took the Tribunal to an Amnesty International report of 7 May 2002 entitled ‘Nepal: Unlawful Killings must be prevented’ –
“Amnesty International today called for an independent investigation in response to reports that more than 500 members of the Communist Party of Nepal (Maoist) have been killed by the security forces at Lisne Lek in Rolpa district since 3 May. The organisation warned there could be more killings as the security forces’ operation is continuing and several hundred Maoists are reportedly being surrounded.
The official figures are: 548 Maoists, three soldiers and one policeman killed. “So far, no figs have been released with the number of Maoists wounded or arrested. That could be an indication that the security forces went out to deliberately kill rather than arrest, a common practice in Nepal: Amnesty International said…
Since the start of the ‘people’s war’, there has been increasing concern that the authorities have failed to impose strict limitations on the use of force and firearms by the security forces or to take appropriate actions against abuses. This concern has heightened after the army was called out and the state of emergency imposed in late November 2001. Since then, the number of alleged unlawful killings have increased dramatically. The reported incidents have included killings of civilians in reprisal for the killing of police and army personnel by members of the CPN (Maoist); killings of armed members of the CPN (Maoist) in circumstances where they could have been taken into custody or where they already had been taken prisoner; and the avoidable use of lethal force.”
7. The appellant also relied upon the U.S. State Department Report, and in particular: in Section 1(a), (Arbitrary or unlawful deprivation of life) the confirmation that extra-judicial killings continued, mostly during efforts to control violent demonstrations, or while suspects were in police custody; in Section 1(b) (Disappearance) which indicates that the disappearance of persons in police custody was a problem; and in Section 1(c) (Torture and other cruel, inhuman or degrading treatment or punishment) the observations that the Government has begun human rights education for the police force, who were often unwilling to investigate or discipline fellow officers, with those abused afraid to bring cases against the police for fear of reprisals. Prison conditions were reportedly poor.
8. Ms Folkes relied upon the Tribunal determination in Rajesh Gurung [01/TH/1371], which approved an Adjudicator determination in Chhetri [HX/11502/2001]. Both decisions find that since the state of emergency, the risk to perceived Maoist combatants has increased above the standard necessary for 1950 and 1951 Conventions. In Gurung, the Tribunal found that –
“Not only would there be a real risk of ill-treatment during the pre-trial process and of judicial susceptibility to political influence during the trial itself, there would be a risk that after conviction the appellant would also face further ill-treatment.”
9. In Prakesh Sharma [2002] UKIAT 02943, the Tribunal approved the Gurung decision and said this –
“8…it is plain that the situation in Nepal is tense. Since 26 November 2001 it appears that the security forces had killed over 2000 Maoists while the Maoists for their part had killed 106 soldiers, 291 policemen, 54 political party members, 6 students and 100 civilians. …
12 The appellant would be returned to a country in which the authorities are to a high degree mobilised in their prosecution of a campaign against Maoists…”
10. For the respondent, Mr Bilbe made no submissions in the light of the Adjudicator’s findings and the Article 3 point.
11. The Tribunal reserved its determination, which we now give. In the light of the very plain findings by the Adjudicator, but with the benefit of the documentary evidence now before us, we do not uphold his conclusion. We find that this appellant is indeed at risk of prosecution, and that such a risk engages the greater breadth of Article 3 of the European Convention on Human Rights, which makes no distinction between prosecution and persecution, and is not limited by an exclusion clause such as that in article 1F of the 1951 convention.
12. We further find that the appellant is very likely to be killed or to be treated in an inhuman or degrading manner either during his arrest, during lengthy pre-trial detention, or after conviction. As the likelihood of unlawful killing does not reach ‘near certainty’, we do not consider that the appeal engages Article 2 of the European Convention on Human Rights.
13. The evidence is that the Nepalese authorities are operating a ‘shoot to kill’ policy and we have no hesitation in finding on the facts of this particular appeal that this appellant is at risk of treatment contrary to Article 3 of the European Convention on Human Rights.
14. For these reasons, the appeal is allowed on human rights grounds. We direct that the respondent grant the appellant appropriate leave to remain.

J A J C Gleeson