Adan v Secretary of State for the Home Department

2 April. Lord Goff Of Chieveley. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Lloyd of Berwick. For the reasons he gives I would allow the appeal.

Lord Slynn of Hadley. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Lloyd of Berwick.

As to the first issue raised in the case, there is, it seems to me, force in Mr. Blake's argument that on huminatarian grounds a person who leaves his own country because of a well-founded fear of being persecuted for a Convention reason and later is unable, or, owing to that fear, is unwilling, to avail himself of that country's protection even when the grounds for his fear have gone should be able to claim the status of a refugee.

I am satisfied, however, that the Geneva Convention, in article 1A(2), does not confer that status. The first matter to be established under the article is that the claimant is outside the country of his nationality owing to a well-founded fear of persecution. That well-founded fear must, as I read it, exist at the time his claim for refugee status is to be determined; it is not sufficient as a matter of the ordinary meaning of the words of the article that he had such fear when he left his country but no longer has it. Since the second matter to be established, namely, that the person “is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” (emphasis added) clearly refers to an inability or unwillingness at the time his claim for refugee status is to be determined, it seems to me that the coherence of the scheme requires that the well-founded fear, the first matter to be established, is also a current fear. The existence of what has been called a historic fear is not sufficient in itself, thought it may constitute important evidence to justify a claim of a current well-founded fear.

Like Lord Lloyd of Berwick I, also, attach importance to the passages in Professor James Hathaway's book, The Law of Refugee Status, set out in his speech and to the state practice recommended in the “Joint Position” dated 4 March 1996 (O.J. 1996 L. 63, p. 2) of the Council of the European Union although the latter is not conclusive.

Reference has been made in argument to article 1C(5) of the Convention. That article is, however, dealing only with the stituation where a person has qualified as a refugee but (a) the circumstances have changed so that he has no longer a well-founded fear of persecution for a Convention reason, and (b) the protection of the country of his nationality is available. If (a) is satisfied then he cannot say that he is unwilling because of the previous fear to accept the protection of his country of nationality. I do not think that the special circumstances in which the Convention is said to cease to apply to someone who was within article 1A in determining the general question as to whether for the purposes of article 1A(2) it is a current or a historic fear which has to be proved.

As to the second issue there is on the face of it more difficulty once it is accepted, as on the authorities and in principle it must be accepted, that there can be persecution of a group and that the individual in the group does not have to show that he has a fear of persecution distinct from, or over and above, that of his group, Thus if in a state two groups exist, A and B, and members of group A threaten to or do persecute members of group B the latter should, other necessary matters being established, be able to claim refugee status. If at the same time members of group B are persecuting or threatening to persecute members of group A the claim should be the same. The position is even stronger if the persecution is not exactly simultaneous but those in power change from time to time so that the persecutors become the persecuted.

Looking, however, at the language of the Convention and its object and purpose I do not consider that it applies to those caught up in a civil war when law and order have broken down and where, as in the present case, every group seems to be fighting some other group or groups in an endeavour to gain power. In such a situation what the members of each group may have is a well-founded fear not so much of persecution by other groups as of death or injury or loss of freedom due to the fighting between the groups. In such a situation the individual or group has to show a well-founded fear of persecution over and above the risk of life and liberty inherent in the civil war. The line may be a fine one to draw in some situations but I agree with my noble and learned friend that the Immigration Appeal Tribunal was entitled in the present case to find that such persecution over and above the risk of the civil war was not established, though I share his satisfaction that on the facts of this case exceptional leave to remain in the United Kingdom has been given to the applicant, his wife and children.

Accordingly I, too, would allow the appeal of the Secretary of State.

Lord Lloyd Of Berwick. My Lords, Hassan Hussein Adan is a Somali national who fled from Somalia in June 1988 owing to a well-founded fear of persecution at the hands of the then government. On 15 October 1990 he arrived in the United Kingdom with his wife and two children. He was refused asylum on arrival, but he and his...