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Judgments - In re B (FC) (Appellant) (2002) Regina v. Special Adjudicator (Respondent) ex parte Hoxha (FC) (Appellant)




In re B (FC) (Appellant) (2002)

Regina v. Special Adjudicator (Respondent) ex parte Hoxha (FC) (Appellant)

[2005] UKHL 19


My Lords,

    1.  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,

    2.  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,

    3.  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.

    4.  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.

    5.  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.

    6.  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.

    7.  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.

    8.  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.

    9.  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.

    10.  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.

    11.  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]

    12.  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).

    13.  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]

    14.  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).

    15.  Grahl-Madsen, The Status of Refugees in International Law (1966), vol 1, p 410 explains the reasoning behind this exception in this way:

    "What the drafter of the Convention had in mind was the situation of refugees from Germany and Austria, who were unwilling to return to the scene of the atrocities which they and their kin had experienced, or to avail themselves of the protection of a country which had treated them so badly. The fact was appreciated that the persons in question might have developed a certain distrust of the country itself and a disinclination to be associated with it as its national."

The drafting history indicates that, while the framers of the Convention had the opportunity to extend the benefit of this proviso to all refugees, a deliberate decision was taken to confine its application to the statutory refugees who had been identified in article 1A(1). A distinction was thus created between them and those identified in article 1A(2).

    16.  It can no doubt be said that the effect of this distinction was that these two classes of refugees were not to be treated equally. It can also be said that unequal treatment is inconsistent with the general humanitarian principle underlying the Convention and with the principle which is revealed by the prohibition on discrimination in article 3. This point was not overlooked by the United Kingdom delegate at the Geneva Conference, Mr Hoare. He stated that he regretted the limitation of the proviso to article 1A(1) "statutory" refugees, although he appreciated the motives that had prompted it. Nevertheless he accepted it in the interests of accommodating the concerns of other states. There is, then, no getting away from the plain words of the proviso. The only conclusion that can properly be drawn from its terms, having regard to their context and the drafting history, is that the contracting parties were not willing at the time the Convention was entered into to extend the benefit of the proviso to non-statutory refugees.

    17.  The appellants say that there was no need for article 1A(2) to spell out in terms that it contained a similar rule, based on the humanitarian principle, to that expressly identified in the proviso to article 1C(5) in the case of refuges under article 1A(1). This is because there were hardly any article 1A(2) refugees at the stage when the wording was being finalised. They also maintain that, if the Convention is interpreted consistently with that principle as a living instrument capable of changing with the modern world, the proviso is capable of being applied to all refugees. They point to various texts which urge states to adopt practices which give practical effect to that construction of it.

    18.  For example, paragraph 136 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979) states with reference to article 1C(5):

    "The second paragraph of this clause contains an exception to the cessation provision contained in the first paragraph. It deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. The reference to article 1A(1) indicates that the exception applies to 'statutory refugees'. At the time when the 1951 Convention was elaborated, these formed the majority of refugees. The exception, however, reflects a more general humanitarian principle, which could also be applied to refugees other than statutory refugees. It is frequently recognized that a person who - or whose family - has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." [emphasis added]

    19.  The reasoning in this passage reflects a long standing concern on the part of the UNHCR that the cessation clauses in the Convention are being taken too literally. On 11 October 1991 its Executive Committee, in its General Conclusion on International Protection (Doc No 65 (XLII) 1991), para (q), underlined the possibility of the use of this clause more generally where compelling reasons might, for certain individuals, support the continuation of their refugee status. But in footnote 8 to para 24 of its Note on the Cessation Clauses dated 30 May 1997 the Standing Committee of the Executive Committee of the High Commissioner's Programme (EC/47/SC/CRP.30) accepted that the proviso expressly covered only those refugees falling under article 1A(1). The only qualification which it contains is that para 136 of the Handbook "suggests" that the exception reflects a more general humanitarian principle and that it "could" also be applied to refugees other than those in article 1A(1). The point is not developed further. I take this to be an acknowledgment that there is nothing in the Convention that actually obliges contracting states to apply the proviso to other refugees.

    20.  An opportunity to address this issue arose in 1967 when the Protocol was being entered into. The preamble to the Protocol indicates that there was a desire to bring those affected by refugee situations that had arisen since the Convention within its scope and that equal status should be enjoyed by all refugees covered by the definition in the Convention. But the preamble to article 1C(5) was left untouched. I think that we must take it that, although they were aware that events had moved on since 1951, the states parties were still not willing to agree to a relaxation of the limitation that had been expressly written into the proviso.

    21.  A further opportunity to address this issue arose when the European Commission was framing its proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees. Its purpose was to lay down a common definition of the concept of "refugee" as contained in the Convention, and to provide a minimum standard of protection for those who fell outside that definition to complement the Convention in all member states. Article 13 of the proposal, which was in the same terms as paragraph 1 of article 11 in what is now Council Directive 2004/83/EC, describes the circumstances in which a third country national or a stateless person is to cease to be a refugee. It repeats the language of article 1C of the Convention, except that it omits the provisos to paragraphs 5 and 6 of that article.

    22.  The Commission's commentary on the proposal contains this paragraph with reference paragraph (e) of article 13, which is the equivalent to article 1C(5):

    "The Member State invoking this cessation clause should ensure that an appropriate status, preserving previously acquired rights, is granted to persons who are unwilling to leave the country for compelling reasons arising out of previous persecution or experiences of serious and unjustified harm, as well as to persons who cannot be expected to leave the Member State due to a long stay resulting in strong family, social and economic links in that country." [emphasis added]

    23.  The proposal having thus been initiated by the Commission, it was subject to scrutiny by the legislatures of member states in accordance with the principle of subsidiarity enshrined in article 5 of the EC Treaty and with article 3 of the Protocol on the role of national parliaments in the European Union. As part of this process it was examined by the House of Lords Select Committee on the European Union in 2002: see its report, Defining Refugee Status and those in need of International Protection: Session 2001-02, HL Paper 156. The inquiry was conducted by Sub-Committee E under the Chairmanship of Lord Scott of Foscote. Evidence was taken, both written and oral. Comments were received in the course of that process from, among others, Mr Goodwin-Gill, UNCHR and the European Council on Refugees and Exiles (ECRE). A striking feature of this inquiry, in the light of the arguments that have been advanced in this case, is the absence of any suggestion from Mr Goodwin-Gill or from UNHCR that paragraph (e) of article 13 should be qualified by a proviso in relation to those who had ceased to be refugees as defined by the Directive in the same way as, in relation to article 1A(1) refugees, article 1C(5) of the Convention was qualified.

    24.  Mr Goodwin-Gill made this comment on article 13 in para 15 of his memorandum:

    "While the commentary to article 13(e) (cessation of status by reason of change of circumstances in the country of origin) recognizes the special situation of person who have compelling reasons arising out of previous persecution or other serious and unjustified harm, their continuing protection should be formally included in the Directive. The numbers will always be small, and this interpretation has already been adopted, sometimes by legislation, in states aware of the reality of the refugee experience."

He stops short of saying that it is the general practice of states to interpret the proviso to article 1C(5) in this way and that a proviso to this effect was needed in order to reflect the existence of this general practice in the Directive. In para 37 of its memorandum the UNHCR expressed its pleasure at the fact that article 13 had taken in the cessation clauses of the Convention and that it placed the burden of proving the cessation of refugee status on the state asserting it. In the following paragraph it added its only other comment. This was raising a different point:

    "UNHCR would, however, recommend that the commentary on this article be amended to reflect the generally accepted position that, in certain circumstances, the refugee may be able to obtain or renew his or her national passport without forfeiting his or her refugee status."

    25.  In its comment on article 13 the ECRE did raise the issue about inserting a proviso to article 13(e):

    "ECRE agrees with the provisions of this article which in most aspects reflect those of article 1C of the Refugee Convention. We would propose that a provision is added to paragraph (e) to ensure that Member States exempt from the application of article 13(e) refugees who are able to invoke compelling reasons arising out of previous persecution for refusing to avail themselves of the protection of the country of nationality or persons who cannot be expected to leave the Member State due to a long stay resulting in strong family, social and economic links in the country. This is referred to in the Commission's Commentary on article 13 and should be reflected in the main text of the proposal."

This recommendation went further than the Commission's Commentary, which had referred instead to ensuring that "an appropriate status" was granted to such persons. But it was not backed up by the assertion that the practice of states showed that this was how the proviso to article 1C(5) of the Convention was currently being interpreted It was not adopted when the Directive was finalised, as one would have expected if there had been evidence to this effect from other member states. The terms of the Directive, in its final form, must be taken to reflect the common position of member states as to the meaning and effect of the Convention. This evidence is wholly inconsistent with the appellants' argument that it is the general practice of states parties to construe the proviso to article 1C(5) as applying to persons who had acquired the status of refugees under article 1A(2) of the Convention.

    26.  I would hold therefore that the answer to the question whether the appellants are entitled to the status of refugee within the meaning of article 1 of the Convention, and to all the rights that flow from that status, must be in the negative. As the Court of Appeal said [2003] 1 WLR 241, para 49, the evidence does not establish a clear and widespread state practice sufficient to override the express words of limitation in the proviso. But this does not mean that it would not have been open to the Secretary of State in his discretion to allow the appellants to remain in this country. In cases where a person is or may be particularly vulnerable by reason of the continuing effects of the persecution that he has suffered in the past, and is thus less able to cope with the conditions which he would have to face in his country of origin, he may be given leave to remain here on compassionate grounds. This is the way in which the United Kingdom gives effect to the humanitarian principle.


My Lords,

    27.  A subsidiary issue in this appeal is whether a person may fall within the definition of a refugee in article 1A(2) of the Convention in circumstances where he has a fear of the continuing effects of persecution inflicted upon him in the past. Both appellants suffered appalling ill-treatment at the hands of Serbian soldiers or policemen. In Mr Hoxha's case it is said that as a result he continues to fear life in Kosovo where he will be destitute, lack medical treatment, accommodation, employment, and the ability to earn a living. In the case of the B family, it is said that their younger son is still suffering mental and physical problems as a result of the knife attack upon him and that the whole family will face ostracism from their own community as a result of the wife's rape in front of so many villagers and her husband's determination to stand by her.

    28.  The Court of Appeal observed (paras 53 and 54) that it was implicit in the appellants' reliance on the continuing effects of past persecution that what might happen to them on their return to Kosovo did not amount to persecution. As it is well established that the fear of persecution and its well-founded nature have to be current, their argument could not succeed. If it could, there would have been no need for the proviso to article 1C(5) because all those with compelling reasons arising out of past persecution not to return would still have qualified as refugees.

    29.  Put in the broad way that the issue was framed before us, the answer must be 'no'. An understandable unwillingness to return based upon the continuing effects of past persecution is not enough. There must be a current fear of persecution for a Convention reason upon return: see Adan v Secretary of State for the Home Department [1999] 1 AC 293. But of course the persecution suffered in the past is relevant to whether a person has a current well-founded fear of persecution. Generally the past persecution will lead to the fear of similar persecution on return but that need not always be the case.

    30.  Hence there is a rather different case, which was touched on but not fully developed both in the Court of Appeal and before us, in relation to Mrs B and her family. This is that earlier persecution of one sort may lead to later persecution of a different sort. All four members of the B family suffered persecution at the hands of the Serb police because they were Kosovan Albanians and Mr B was suspected of involvement with the KLA. But the persecution of Mrs B was expressed in a different way from the persecution of her husband and sons. She was raped in front of her husband, her sons and twenty to thirty of their neighbours. As Rodger Haines QC notes in his paper on "Gender-related persecution", prepared for the UNHCR's San Remo expert roundtable in 2001 (see Feller, Turk and Nicholson, Refugee Protection in International Law, UNHCR's Global Consultations on International Protection, (2003), Chapter 5.1, p 336):

    "Women are particularly vulnerable to persecution by sexual violence as a weapon of war."

He goes on to quote Heaven Crawley, Refugees and Gender: Law and Process, 2001, pp 89-90:

    "During war, women's bodies become highly symbolic and the physical territory for a broader political struggle in which sexual violence including rape is used as a military strategy to humiliate and demoralise an opponent; women's bodies become the battleground for 'pay-backs', they symbolise the dominance of one group over another . . . It is important to recognise that sexual violence and rape may be an actual weapon or a strategy of war itself, rather than just an expression or consequence. In the context of armed conflict or civil war, the rape of women is also about gaining control over other men and the group (national, ethnic, political) of which they are a part."

    31.  Following the San Remo roundtable, the UNHCR published Guidelines on Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCRR/GIP/02/01, 7 May 2002). These make the same point at para 24:

    " . . . the persecutor may choose to destroy the ethnic identity and/or prosperity of a racial group by killing, maiming or incarcerating the men, while the women may be viewed as propagating the ethnic or racial identity and persecuted in a different way, such as through sexual violence or control of reproduction."