Januzi and Others v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD NICHOLLS OF BIRKENHEAD,LORD HOPE OF CRAIGHEAD,LORD CARSWELL,LORD MANCE |
| Judgment Date | 15 February 2006 |
| Neutral Citation | [2006] UKHL 5 |
| Date | 15 February 2006 |
| Court | House of Lords |
[2006] UKHL 5
Appellate Committee
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Carswell
Lord Mance
HOUSE OF LORDS
Appellants:
Januzi
Nicholas Blake QC
Frances Webber
Stephanie Harrison
(Instructed by Tyndallwoods)
Hamid, Gaafar and Mohammed
Manjit Gill QC
Abid Mahmood
(Instructed by Blakemores for Mr Hamid))
Manjit Gill QC
Basharat Ali (Solicitor Advocate)
(Instructed by Noden & Company for Mr Gaafar)
Manjit Gill QC
Christopher Jacobs
(Instructed by White Ryland for Mr Mohammed)
Respondents:
Rabinder Singh QC
Lisa Giovannetti
Jason Braier
(Instructed by Treasury Solicitor)
Intervener
Written intervention by The Office of the United Nations High Commissioner for Refugees in the appeals of Hamid, Gaafar and Mohammed
My Lords,
In each of the four appeals before the House the appellant is a foreign national who suffered or would suffer persecution for Convention reasons at the place where he lived in the country of his nationality. Each appellant came to the United Kingdom and here claimed asylum as a refugee. In each case recognition as a refugee has been denied on the ground that there is another place ("the place of relocation"), within the country of the appellant's nationality, where he would have no well-founded fear of persecution, where the protection of that country would be available to him and where, in all the circumstances, he could reasonably and without undue harshness be expected to live. The common issue in the appeals is whether, in judging reasonableness and undue harshness in this context, account should be taken of any disparity between the civil, political and socio-economic human rights which the appellant would enjoy under the leading international human rights conventions and covenants and those which he would enjoy at the place of relocation. In the appeals of Messrs Hamid, Gaafar and Mohammed a further issue arises, on the approach to be followed where the persecution suffered or to be suffered was or would be sanctioned or connived at by the authorities of the country of the appellants' nationality. The answer to those questions must be found in the 1951 United Nations Convention relating to the Status of Refugees, as amended by the 1967 Protocol, and in such exegesis of the Convention as commands clear international acceptance.
I am indebted to my noble and learned friend Lord Hope of Craighead, whose comprehensive summary of the facts of the four cases enables me to be very brief on that aspect. Mr Januzi, an Albanian Kosovar, was the victim of ethnic cleansing at Serb hands at his home in Mitrovica in Kosovo. He fled to this country and claimed asylum. This claim was refused on the ground that he could reasonably be expected to relocate to Pristina. He claims, largely for medical reasons associated with his experience of persecution, that it would be unduly harsh to expect him to do so. Messrs Hamid, Gaafar and Mohammed were black Africans living in Darfur in western Sudan. Hamid and Gaafar were the victims of persecution by marauding Arab bands, which the Government encouraged or connived at and did not restrain. Mohammed, it has been found, would suffer such persecution were he to return to Darfur, whence (like Hamid and Gaafar) he fled. They all claimed asylum on arriving here. In each case, recognition as a refugee has been denied on the ground that the appellant could reasonably (and without undue harshness) be expected to relocate to Khartoum. They all fear that they might be the victims of adverse discriminatory treatment, even persecution, in Khartoum, and they contend that relocation there would be unreasonable and unduly harsh.
As in so many other cases the crux of the argument is found in the amended definition of a "refugee" in article 1A(2) of the Refugee Convention as any person who
"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it."
The closing words of the definition, applicable to stateless persons, have no immediate application to the appellants, all of whom have a nationality. In each of their cases the relevant persecution is for reasons of ethnicity, which is a reason falling within the Convention.
This definition must be read as a whole, in the context of the Convention as a whole, taking account of the Convention's historical setting and its objects and purposes, to be derived from its articles, and also from the recitals of its preamble which are quoted in extenso in R (European Roma Rights Centre and Others) v Immigration Officer at Prague Airport and Another (United Nations High Commissioner for Refugees intervening) [2004] UKHL 55, [2005] 2 AC 1, para 6. The Convention must be interpreted as an international instrument, not a domestic statute, in accordance with the rules prescribed in the Vienna Convention on the Law of Treaties. As a human rights instrument the Convention should not be given a narrow or restricted interpretation. Nonetheless, the starting point of the construction exercise must be the text of the Convention itself (Adan v Secretary of State for the Home Department [1999] 1 AC 293, 305; Roma Rights case, above, para 18), because it expresses what the parties to it have agreed. The parties to an international convention are not to be treated as having agreed something they did not agree, unless it is clear by necessary implication from the text or from uniform acceptance by states that they would have agreed or have subsequently done so. The court has "no warrant to give effect to what [states parties] might, or in an ideal world would, have agreed": Roma Rights case, above, para 18.
The definition of "refugee" quoted above, as it applies to nationals, has three qualifying conditions. The first is, clearly in my opinion, a causative condition which governs all that follows: "owing to well-founded fear of being persecuted for reasons of race … political opinion". The second, indispensable, condition, satisfied by all these appellants, is that the person should be "outside the country of his nationality". The third condition contains an alternative: the person must either be "unable … to avail himself of the protection" of the country of his nationality, or he must be "unwilling", owing to fear of being persecuted for a Convention reason, "to avail himself of the protection" of the country of his nationality.
This definition must be read in the light of three familiar and uncontentious but fundamental principles. First, the power to admit, exclude and expel aliens was among the earliest and most widely recognised powers of the sovereign state: see Roma Rights case, paras 11-12. Secondly, a person has no right to live elsewhere than in his country of nationality, and has no right to claim asylum: ibid. Thirdly, a state has an obligation to protect its nationals within its borders against persecution. The Refugee Convention, the latest in a series of similar instruments, adopted at a time when many people had been driven by persecution to leave their home countries, accepted the need for some limited relaxation of these principles to recognise the plight of those fleeing from intolerable oppression. But like any international convention it was the product of negotiation and compromise: Adan v Secretary of State for the Home Department, above, p 305; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 247-248, 274; Rodriguez v United States (1987) 480 US 522, 525-526; Roma Rights case, above, para 15.
The Refugee Convention does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. Although described by a number of different names this relocation alternative has now been recognised for a number of years, at any rate since publication of paragraph 91 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees in 1979:
"91. The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution...
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