R (Hoxha) v Special Adjudicator

JurisdictionEngland & Wales
Judgment Date10 March 2005
Neutral Citation[2005] UKHL 19
Date10 March 2005
CourtHouse of Lords

[2005] UKHL 19


The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

In re B (FC)


Special Adjudicator
ex parte Hoxha (FC)

My Lords,


I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood. For the reasons they give I would dismiss these appeals.


My Lords,


I have read the opinions of my noble and learned friends Lord Hope of Craighead, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood. I agree with their opinions. I would also dismiss the appeals.


My Lords,


I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Brown of Eaton-under-Heywood. I agree with it and with the observations of my noble and learned friend Baroness Hale of Richmond on the subsidiary issue. For the reasons that they have given I too would dismiss these appeals.


I adopt with gratitude Lord Brown's description of the background and his analysis of the authorities and other relevant materials. This permits me to deal briefly with the points that lie at the heart of the case.


The appellants claim that they have produced a compelling body of evidence which shows that the modern construction of the proviso to article 1C(5) of the Geneva Convention Relating to the Status of Refugees of 28 July 1951 (Cmd 9171) ("the Convention") is one which covers all refugees and that it is not limited in its application to refugees falling under article 1A(1) ("statutory refugees"). In my opinion however one has only to scratch the surface to see that this proposition is not based on any hard evidence that this indeed is what the proviso is being regarded as meaning, as a matter of legal obligation binding on all states parties to the Convention. There is a profound gap between what various commentators would like the proviso to mean and what it has actually been taken to mean in practice.


No-one questions the broad humanitarian principles which underlie the Convention. The social and humanitarian nature of the problem of refugees was expressly recognised in the preamble to the Convention. So too was the fact that it was the express wish of all states to do everything within their power to prevent the problem from becoming a cause of tension between them. The 1967 Protocol Relating to the Status of Refugees ("the Protocol") (Cmnd 3906) recognised that new situations had arisen since the Convention was adopted and that further provisions were needed as persons who had become refugees since 1 January 1951 might not fall within its scope. As the third paragraph of the preamble to the Protocol put it, it was desirable that equal status should be enjoyed by all refugees covered by the definition in the Convention irrespective of the dateline of 1 January 1951.


As a result of the amendments which it made to article 1A(2) of the Convention, these two instruments now provide the cornerstone of the international legal regime for the protection of refugees: see paragraph (3) of the preamble to Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees ("the Directive"). These are to be seen as living instruments, to which the broadest effect must be given to ensure that they continue to serve the humanitarian principles for whose purpose the Convention was entered into.


Care nevertheless needs to be taken, when analysing the evidence on which the appellants rely, to distinguish between the meaning of the words which article 1 of the Convention uses to identify those who are entitled to the status of refugee and the practices which contracting states have chosen to adopt in their discretion to give effect to these humanitarian principles. A large and liberal spirit is called for when a court is asked to say what the Convention means. But there are limits to this approach. The court must recognise the fundamental fact that the Convention is an agreement between states. The extent of the agreement to which the states committed themselves is to be found in the language which gives formal expression to their agreement. The language itself is the starting point: see Adan v Secretary of State for the Home Department [1999] 1 AC 293, 305D-E, per Lord Lloyd of Berwick.


As Lord Bingham of Cornhill said it in Brown v Stott [2003] 1 AC 681, 703E, it is generally to be assumed that the parties included the terms that they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were unable to agree. Article 31(1) of the Vienna Convention on the Law of Treaties (1980) (Cmnd 7964) provides that a treaty must be interpreted in good faith in accordance with the ordinary meaning of the terms of the treaty in their context, and in the light of the object and purpose of the treaty. There is no warrant in this provision for reading into a treaty words that are not there. It is not open to a court, when it is performing its function, to expand the limits which the language of the treaty itself has set for it.


The structure of the definition of the term "refugee" in article 1 of the Convention was based on that of the Statute of the Office of the United Nations High Commissioner for Refugees, adopted by General Assembly Resolution 428(v) of 14 December 1950. This was the initial point of reference in formulating the definition in the Convention: Professor James Hathaway, The Law of Refugee Status (1991), p 66-69. Paragraph 6 of the Statute, which defines the competence of the High Commissioner, contains two subparagraphs. Paragraph A contains a definition of the persons to whom that competence was to extend in terms which were adopted by article 1A(1) and (2) of the Convention. It also contains a list of six circumstances in which his competence was to cease. Under this scheme the assumption of competence and the cessation of competence were kept separate. It was only if the High Commissioner had assumed competence that the question of cessation could arise.


This two stage approach was reproduced in article 1C of the Convention, but with some significant changes to the words used to describe the last two circumstances. Paragraph B of the Statute, on which article 1A(2) of the Convention was based, was in these terms:

"Any other person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had well-founded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence." [emphasis added]


As Professor Hathaway explains at p 68, the compromise that emerged from the drafting process when the definition for the purposes of the Convention was being formulated was to reject the past assessment of risk and to establish instead present or prospective assessment of risk as the norm for refugee protection. It was decided to honour the past persecution standard for persons who were within the scope of the agreements which had been entered into before 1 January 1951. But persons who were outside the scope of those agreements were to be required to demonstrate a current well founded fear of persecution in order to qualify for refugee status. The words "or had" which had been included in paragraph 6B of the Statute were omitted from article 1A(2) of the Convention. It is plain from the drafting history that this was no accident. The appellants are unable to establish a current well founded fear, so they are unable to bring themselves within the wording of article 1A(2).


A similar approach was taken to the cessation provisions which were derived from the Statute. As Lord Lloyd of Berwick observed in Adan v Secretary of State for the Home Department [1999] 1 AC 293, 306G, the cessation provision in article 1C(5) takes effect naturally when the refugee ceases to have a current well-founded fear. This is in symmetry with the definition in article 1A(2). The words "no longer", which were taken from the cessation provisions in paragraph 6A of the Statute, support that interpretation. On this approach the appellants are unable to bring themselves within the opening words of article 1C(5). This means that their case fails at the first hurdle before they reach the proviso which was added to that paragraph, whose its meaning lies at the heart of this case:

"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." [emphasis added]


The word "previous" makes it plain that in this context, in contrast to what was contemplated by the leading provision in article 1C(5), the test looks backwards. The question here is not whether the person has a current well-founded fear, but whether those who had previously been determined to be refugees under article 1A(1) – the statutory refugees – could justify their refusal by reference to what had happened in the past. A proviso in similar terms was inserted in article 1C(6).


Grahl–Madsen, The Status of Refugees in International Law (1966), vol 1, p 410 explains the reasoning...

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