R (Hoxha) v Special Adjudicator
Jurisdiction | England & Wales |
Judge | Lord Justice Keene |
Judgment Date | 14 October 2002 |
Neutral Citation | [2002] EWCA Civ 1403 |
Court | Court of Appeal (Civil Division) |
Docket Number | Case No: C/2001/1823 & C/2002/0169 |
Date | 14 October 2002 |
[2002] EWCA Civ 1403
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISON
ADMINISTRATIVE COURT LIST
(MR JUSTICE TURNER)
The Master of the Rolls
Lord Justice Chadwick and
Lord Justice Keene
Case No: C/2001/1823 & C/2002/0169
Mr Gill QC, Mr C Jacobs & Mr F Omere (instructed by Messrs Berryman Shacklock, Nottingham NG1 6DN & Messrs White Ryland, London W12 8HA) for the Appellants
Miss Carss-Frisk QC & Miss Giovannetti (instructed by Treasury Solicitor, London SW1J 9HS) for the Respondent
This is the judgment of the court.
1. The principal issues raised in these two appeals concern the proper interpretation of one of the provisions in the 1951 Convention Relating to the Status of Refugees ("the 1951 Convention"), as amended by the 1967 Protocol. The provision in question is Article 1C(5), one of the so-called "cessation clauses" dealing with the circumstances in which refugee status can be lost.
The Facts
2. Both the appellants are ethnic Albanians from Kosovo, and are citizens of the Federal Republic of Yugoslavia. Mr. Hoxha arrived in the United Kingdom in June 2000 and claimed asylum, which was refused by the Secretary of State for the Home Department. His appeal to a special adjudicator was dismissed, but the special adjudicator did accept this appellant's account of what had happened to him in Kosovo. He described how in September 1997 Serb soldiers and paramilitaries had come to his village and had forced their way into the houses. He was shot three times in the leg when he tried to protect his father, and he became unconscious. Other villagers took him to a hospital in Albania. He stayed in that country until October 1998 and then returned to his village in Kosovo. However, he was again attacked by Serb soldiers, who hit his leg with a metal bar, breaking his leg. He stayed with his aunt in the village for about a month, recovering from the fracture.
3. In November 1998 he went again to live in Albania, where he stayed until June 2000, despite the departure of the Serb army from Kosovo in June 1999 and the arrival there of international forces. It was in June 2000 that he decided to leave Albania and travelled in the back of a lorry to the United Kingdom. There was medical evidence before the special adjudicator to support the account of the shooting of Mr Hoxha in the leg. Moreover, the Home Office Presenting Officer accepted at that hearing that this appellant had been a refugee when he left Kosovo in 1998 and went to Albania.
4. However, the special adjudicator, having considered the evidence about the situation in Kosovo at the time of his determination, concluded that Mr. Hoxha did not have a genuine fear of persecution, were he now to be returned to Kosovo, and that it was also objectively safe for him to return there because of the change of circumstances since 1998. The appeal was therefore dismissed, and an application for judicial review of that decision was subsequently rejected by Jackson J. It is from that decision by Jackson J. that the appeal in Mr. Hoxha's case is brought.
5. The appellant B, together with his wife and sons, arrived in the United Kingdom clandestinely by lorry on 26 July 1999, and claimed asylum. That was refused and an appeal to a special adjudicator was dismissed in January 2001. However, the basic account of events given by this appellant was accepted. In particular, the Serb police had ransacked his house in October 1998, beating him and then stabbing him with a knife. One of his sons was slashed with the same knife and B's wife was raped in front of a number of people.
6. The situation in Kosovo got worse and the family fled to Prishtina and from there to Macedonia, where they stayed for between 4 and 6 months. They then travelled to the United Kingdom in July 1999. There was some medical evidence placed before the special adjudicator showing that at least the son who had been slashed with the knife was suffering from post-traumatic stress disorder. The Home Office Presenting Officer accepted that this appellant had left Kosovo as a result of a well-founded fear of persecution, and the special adjudicator likewise accepted that. But he concluded that the situation in Kosovo had changed since the appellant's departure to such an extent that there was no longer a well-founded fear of persecution, were he and his family to be returned there. Leave to appeal was refused by the Immigration Appeal Tribunal on 6 March 2001. That refusal was challenged by way of judicial review, but the challenge was dismissed by Turner J. on 15 January 2002. The matter now comes to this court on appeal from Turner J.
The relevant Convention provisions
7. Although the main issues concern Article 1C(5) of the 1951 Convention, it is necessary to see that provision in the context of a number of other parts of the Convention. Article 1A in its original unamended form reads as follows:
"A For the purpose of the present Convention, the term 'refugee' shall apply to any person who:
(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;
Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;
(2) As a result of events occurring before 1 January 1951 and 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term 'the country of his nationality' shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national."
8. Article 1B is not of significance for present purposes. Article 1C itself provides:
"C This Convention shall cease to apply to any person falling under the terms of section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired it; or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;
(6) Being a person who has no nationality he is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his formed habitual residence."
9. A number of subsequent Articles in the 1951 Convention deal with the rights of refugees within the territories of the Contracting States, including the right to practise their religion (Article 4), the right to favourable treatment as regards the acquisition of property (Article 13) and as regards employment (Article 12 and 18), and the right to the same treatment as nationals with respect to elementary education (Article 22). Article 45 provides for revision of the Convention, stating:
"1. Any Contracting State may request revision of this Convention at any time by a notification addressed to the Secretary-General of the United Nations.
2. The General Assembly of the United Nations shall recommend the steps, if any, to be taken in respect of such request."
10. In January 1967 a Protocol Relating to the Status of Refugees was adopted ("the 1967 Protocol") and came into force on 4 October 1967. The preamble recited that new refugee situations had arisen since the 1951 Convention had been adopted and that it was desirable that equal status be enjoyed by all refugees covered by the definition in the Convention irrespective of the dateline 1 January 1951. Article 1, insofar as material for present purposes, then provided:
"1. The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter defined.
2. For the purposes of the present Protocol, the term "refugee" shall, except as regards the...
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