Revenko v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 2000 |
| Judgment citation (vLex) | [2000] EWHC J0731-1 |
| Docket Number | C/2000/0135 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2000 |
[2000] EWHC J0731-1
IN THE HIGH COURT OF JUSTICE
CIVIL APPEALS OFFICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2
lord Justice Pill
Lord Justice Clarke
Mr Justice Bennett
C/2000/0135
MR NICOL QC (Instructed by Wilson & Co, 697 High Road, Tottenham, London, N17 8AD) appeared on behalf of the Appellant.
MR KOVATS (Instructed by the Treasury Solicitors, Queen Anne's Chambers, 28 Broadway, London, SW1H 9JS) appeared on behalf of the Respondent.
Monday, 31st July 2000
LORD JUSTICE PILL: This is an appeal, with leave of the Immigration Appeal Tribunal, against a majority decision of the Tribunal notified on 8th September 1999. The issue is whether a stateless person who is unable to return to the country of his former habitual residence is, by reason of those facts alone, a refugee within the meaning of the 1951 Convention relating to the Status of Refugees ("the 1951 Convention"), as modified by the 1967 New York Protocol ("the 1967 Protocol"). The Tribunal found, and the Secretary of State for the Home Department ("the Secretary of State") contends, that it is also necessary to establish a present well-founded fear of persecution for reasons of "race, religion, nationality, membership of a particular social group or political opinion" ("the Convention grounds").
The applicant, Oleg Andreevich Revenko, was born in Moldova, then a part of the USSR, in 1955. He claimed asylum in the United Kingdom in April 1991. The application was refused on 16th January 1996. Appeals against that refusal have been dismissed. The Special Adjudicator found that the applicant was stateless. The IAT found that the applicant was unable to return to Moldova. Moldova had become an independent State and by its Law of Citizenship, the applicant was not a citizen. The Special Adjudicator's conclusion that he was stateless was not challenged before the IAT and the conclusion that he was unable to return to Moldova was not challenged. Both the IAT and the Special Adjudicator held on the evidence that the applicant did not have a well-founded fear of persecution, on Convention grounds, in Moldova.
The word "refugee" is, for the purposes of the Convention, defined in Article 1.
The first paragraph of Article 1A(2) reads:
"1A. For the purposes of the present Convention, the term 'refugee' shall apply to any person who …
"[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 political 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."
The words "as a result of events occurring before 1 January 1951 and" and the words "as a result of such events" were deleted from Article 1A(2) by Article 1(2) of the 1967 Protocol. The reasons emerge from the preamble to the protocol:
"The States Parties to the present protocol,
" Considering that the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (hereinafter referred to as the Convention) covers only those persons who have become refugees as a result of events occurring before 1 January 1951,
" Considering that new refugee situations have arisen since the Convention was adopted and that the refugees concerned may therefore not fall within the scope of the Convention,
" Considering that it is desirable that equal status should be enjoyed by all refugees covered by the definition in the Convention irrespective of the dateline 1 January 1951,
"Have agreed as follows …"
The Convention has been ratified by many States. We are told that the current number is 138. Most of those States have also ratified the 1967 Protocol.
The United Nations Economic and Social Council ('ECOSOC') had set up an ad hoc committee on statelessness and related problems which reported to ECOSOC on 17th February 1950 and again on 25th August 1950. This work followed the adoption by the General Assembly of the United Nations, in December 1948, of the Universal Declaration of Human Rights. That provides for rights of asylum and of nationality as set out in Articles 14 and 15:
"Article 14:
"(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
"(2) This right may not be invoked in the case of persecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
"Article 15:
"(1) Everyone has the right to a nationality.
"(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality."
The ad hoc committee submitted a revised draft convention relating to the status of refugees. It also submitted a draft protocol relating to the status of stateless persons. The General Assembly convened a conference of plenipotentiaries to complete the drafting of, and to sign, a convention relating to the status of refugees and a protocol relating to the status of stateless persons. In the event, the 1951 Convention was adopted on 25th July but in an annex to the Final Act of the conference of plenipotentiaries it was stated:
"With respect to the draft protocol relating to the Status of Stateless Persons, the Conference adopted the following resolution:
"The Conference,
" Having considered the draft protocol relating to the Status of Stateless Persons,
" Considering that the subject still requires more detailed study,
" Decides not to take a decision on the subject of the present Conference and refers the draft protocol back to the appropriate organs of the United Nations for further study."
A Convention relating to the status of stateless persons was eventually adopted in 1954. Drummond J, in a decision of the Federal Court of Australia ( 171 ALR 483), to which I will refer, indicated the extent of the problem by reference to a paper produced by the Canadian Council for Refugees. He stated at paragraph 19 of his judgment:
"Statelessness appeared as a mass phenomenon after World War I and the revolutionary upheaval that followed, while World War II left even larger numbers of people stateless."
Though they may be related, the phenomenon of statelessness is distinct from that of persecution giving rise to a right of asylum.
Under the 1954 Convention, stateless persons are given protection similar to, though not identical with, the protection given to refugees under the 1951 Convention. In general, the 1954 Convention requires States to give to stateless persons the same rights of admission as they give to aliens. There is no doubt that some stateless persons came within the definition of "refugees" adopted in the 1951 Convention. The issue is whether stateless persons qualify as refugees and thereby for the protection of the 1951 Convention merely by establishing that they are unable to return to the country of their former habitual residence. That there are many stateless persons who are not covered by the 1951 Convention is recognised by the third preamble to the 1954 Convention. Paragraph 3 of the preamble reads:
" Considering that only those stateless persons who are also refugees are covered by the Convention relating to the Status of Refugees of 28 July 1951, and that there are many stateless persons who are not covered by that Convention,
" Considering that it is desirable to regulate and improve the status of stateless persons by an international agreement."
Significant omissions from the 1954 Convention, as compared with the 1951 Convention, are articles equivalent to Articles 31 and 33 of the 1951 Convention. Article 31(1) provides:
"Refugees unlawfully in the country of refuge.
"(1) The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."
Article 33 provides:
"Prohibition of expulsion or return ('refoulement').
"(1) No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
"(2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
I have referred to the 1967 Protocol and its preamble. The reason for the presence of the words "as a result of such events" in Article 1A(2) of the 1951 Convention emerges from the report of Professor Guy S Goodwin-Gill prepared for the purposes of this hearing on behalf of the applicant. He refers, in paragraphs 29 and 30, to the 34th meeting of the conference of plenipotentiaries on 25th July 1951. The record states:
"… the United Kingdom delegate, Mr Hoare, drew attention to,
"'the anomoly, which was really a drafting point, in sub-paragraph (2) of paragraph A resulting...
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