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

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    32.  If sexual violence is used in this way, the consequences, not only for the woman herself but also for her family, may be long-lasting and profound. This is particularly so if she comes from a community which adds to the earlier suffering she has endured the pain, hardship and indignity of rejection and ostracism from her own people. There are many cultures in which a woman suffers almost as much from the attitudes of those around her to the degradation she has suffered as she did from the original assault. The UNHCR Guidelines recognise that punishment for transgression of unacceptable social norms imposed upon women is capable of amounting to persecution.

    33.  Nonetheless, it seemed to the Court of Appeal in this case (para 53) that

    "the appellants are right not to seek to allege that what would happen to the applicants on their return would itself amount to persecution, since that entails 'acts of violence or ill-treatment' of a sufficiently grave nature: see Horvath v Secretary of State for the Home Department [2001] 1 AC 489, per Lord Hope of Craighead, at p 499H and per Lord Lloyd of Berwick, at p 504C to D."

    34.  However, whether feared ill-treatment is sufficiently grave to amount to persecution has to be seen in the context of each individual case. Gender is an important component of that context. The San Remo roundtable concluded that there was no need to add sex or gender to the Convention grounds, because "the text, object and purpose on the Convention require a gender-inclusive and gender-sensitive interpretation" (see Feller, Turk and Nicholson, op cit, Chapter 5.2, "Summary Conclusions: gender-related persecution", p 351).

    35.  The UNHCR Handbook (1992) states (at para 51) that there is no universally accepted definition of persecution, although a threat to life or liberty or other serious violations of human rights for a Convention reason would amount to persecution. Further:

    "52. Whether other prejudicial actions or threats would amount to persecution will depend on the circumstances of each case, including the subjective element to which reference has already been made . . . The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary.

    53. In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on 'cumulative grounds'."

The Handbook's guidance on discrimination is developed in the 2002 Guidelines on Gender-related Persecution:

    "14. While it is generally agreed that 'mere' discrimination may not, in the normal course, amount to persecution in and of itself, a pattern of discrimination or less favourable treatment could, on cumulative grounds, amount to persecution and warrant international protection. It would, for instance, amount to persecution if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned…

    15. Significant to gender-related claims is also an analysis of forms of discrimination by the State in failing to extend protection to individuals against certain types of harm. . . "

As Haines states at para 24 of his paper on "Gender-related Persecution" (citing Refugee Appeal No 71427/99[2000] NZAR 545; [2000] INLR 608):

    "However discrimination can affect individuals to different degrees and it is necessary to recognise and to give proper weight to the impact of discriminatory measures on women. Various acts of discrimination, in their cumulative effect, can deny human dignity in key ways and should properly be recognised as persecution . . . "

    36.  To suffer the insult and indignity of being regarded by one's own community (in Mrs B's words) as 'dirty like contaminated' because one has suffered the gross ill-treatment of a particularly brutal and dehumanising rape directed against that very community is the sort of cumulative denial of human dignity which to my mind is quite capable of amounting to persecution. Of course the treatment feared has to be sufficiently severe, but the severity of its impact upon the individual is increased by the effects of the past persecution. The victim is punished again and again for something which was not only not her fault but was deliberately persecutory of her, her family and her community. Mrs B is fortunate indeed because her husband has stood by her. But Mrs B states that this is seen as a 'big disgrace for a man' and Mr B states that 'according to our culture I should reject her.' The pressure to do so adds to the severity of the ill-treatment they may fear on return.

    37.  If what they fear is capable of amounting to persecution, is it for a Convention reason? It is certainly capable of being so. In R v Immigration Appeal Tribunal and another, Ex p Shah [1999] 2 AC 629, this House held that women in Pakistan constituted a particular social group, because they shared the common immutable characteristic of gender and were discriminated against as a group in matters of fundamental human rights, from which the State gave them no adequate protection. The fact of current persecution alone is not enough to constitute a social group: a group which is defined by nothing other than that its members are currently being persecuted would not qualify. But women who have been victims of sexual violence in the past are linked by an immutable characteristic which is at once independent of and the cause of their current ill-treatment. They are certainly capable of constituting a particular social group under the Convention.

    38.  However, it is not suggested that the Kosovan authorities would discriminate against the B family in this way. So the final question is whether the authorities would be able and willing to provide sufficient protection against their ill-treatment at the hands of their own community: see Horvath v Secretary of State for the Home Department [2001] 1 AC 489. This has not been explored in evidence or argument. The most one can say is that it is not easy to protect against this sort of deep-seated prejudice but that in international law there is a clear duty to do so. The Convention on the Elimination of All Forms of Discrimination against Women, article 5(a), requires States parties to take all appropriate measures

    "to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women."

    The Home Office Immigration and Nationality Directorate API on Gender issues in the asylum claim, para 5, points out that:

    "The existence of particular laws or social policies/practices (including traditions and cultural practices) or the manner in which they are implemented may themselves constitute or involve a failure of protection. . . . Women may be subject to gender-related abuse resulting from social customs or conventions because there is no effective means of legal recourse to prevent, investigate or punish such acts."

    39.  Understandable concentration on the totality of the abuse which this family had suffered may have obscured the importance of these gender-related issues. The evidence may not have been sufficient to support a claim of the sort I have been discussing, but I regret that the issues were not fully explored at an earlier stage in the proceedings. As, happily, the family have now been given indefinite leave to remain in this country, it is unnecessary to do so now.

    40.  For these, together with the reasons given by my noble and learned friends, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, on the other part of the case, I too would dismiss this appeal.


My Lords,

    41.  These two appeals raise an important question upon the proper construction and application of the 1951 Convention Relating to the Status of Refugees (Cmd 9171) ("the Convention") as amended by the 1967 Protocol (Cmnd 3906). Assume that a person flees his home country at a time when he has a well-founded fear of being persecuted (and has already been persecuted) for a Convention reason, later arriving in another country where he claims refugee status under the Convention. Assume next that, before his claim has been finally determined, the circumstances in his home country change so that he no longer has a current well-founded fear of persecution; he could, indeed, safely return home. Assume finally, however, that compelling reasons exist arising out of his previous persecution for him not to return home. Is he, in those circumstances, entitled to protection under the Convention? Is he, in other words, when finally his asylum claim comes to be determined, entitled to be treated for all purposes as a refugee—entitled, for example, to have travel documents issued to him under article 28 and to have any naturalisation proceedings facilitated and expedited under article 34—or is he dependant for any further protection upon a favourable exercise of discretion by the host country, there being no continuing Convention obligation owed to him? That crucially is the issue before your Lordships on these appeals.

    42.  It is convenient at once to set out articles 1A and 1C of the Convention, the provisions most directly bearing upon the points arising. Both are to be found under the general heading of article 1: Definition of the Term "Refugee". Article 1A (2) was later amended by the 1967 Protocol so as to delete the words which, for ease of understanding, I have italicised:

    "A  For the purposes 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.

    . . .

    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."

    43.  It is article 1 C (5) which lies at the heart of this case, the appellants' principal argument being that the decision-maker (be it the Secretary of State or, on appeal, the adjudicator or Immigration Appeal Tribunal) must, in determining their asylum claims, give effect to the compelling reasons (for present purposes to be assumed) for not returning them to their home country by granting them refugee status. Although their claimed entitlement to such status arises under section A (2) of article 1—1A (2) as I shall henceforth call it, similarly abbreviating the other provisions—and not, therefore, under 1A (1) to which the proviso expressly refers, and although there has been no prior determination of their asylum claims and so no question of their having "been recognised as" refugees, at least in any formal sense, it is their central contention that they are nevertheless entitled to benefit from the 1C (5) proviso.

    44.  To succeed on their appeals, the appellants must accordingly make good each of two arguments: first, that they are to be regarded as having been "recognised" as refugees within the meaning of 1C (5) simply by virtue of having at some time past fulfilled the criteria for refugee status under 1A (2); secondly, that on its true interpretation the proviso to 1C (5) applies no less to 1A (2) refugees than to 1A (1) refugees ("statutory refugees", as 1A (1) refugees are generally known).

    45.  The appellants failed in both arguments before the Court of Appeal (Lord Phillips of Worth Matravers MR, Chadwick and Keene LLJ, the judgment of the court being given by Keene LJ on 14 October 2002: [2003] 1 WLR 241), as they had in the courts below—in Mr Hoxha's case before Jackson J on 24 July 2001, in B's case before Turner J on 15 January 2002.

    46.  Having now sought to identify the core issue arising, let me turn briefly to the facts of these two cases—very briefly since, for reasons which will be apparent, the outcome of the appeal cannot depend on the facts of any individual case.

    47.  Both appellants are ethnic Albanians from Kosovo, citizens of the Federal Republic of Yugoslavia. Both suffered gross ill-treatment by the Serbian authorities in the period prior to June 1999 when NATO succeeded in driving the Serb army out of Kosovo and replacing it with international peace-keeping forces from UNMIK and KFOR. Both in fact fled Kosovo before June 1999, Mr Hoxha in November 1998 when he went to Albania (where he had already been from September 1997 to October 1998); B and his wife and two sons in early 1999 when they went to Macedonia. Both later travelled to the United Kingdom, entering this country clandestinely in the backs of lorries, Mr Hoxha in or shortly before June 2000, B and his family on 26 July 1999. Both claimed asylum on arrival, their claims being refused by the Secretary of State respectively on 10 June 2000, and on 12 June 2000. As already noted, their subsequent appeals have consistently failed.

    48.  The appellants' ill-treatment whilst in Kosovo was appalling. In September 1997 Mr Hoxha was shot three times in the leg whilst trying to protect his father from Serb soldiers and paramilitaries who had forced their way into his house. After treatment in an Albanian hospital and a year's stay in that country he returned to Kosovo where again, in October-November 1998, he was attacked by Serb soldiers who broke his leg with a metal bar. B and his family's treatment was yet worse. In October 1998 Serb police ransacked his house, beating him and then stabbing him with a knife. They then slashed his eight year old son across the stomach and, when his wife intervened, raped her in front of B and their ten year old son, the whole incident being witnessed by 20 or 30 ethnic Albanian neighbours. There is, as a result, a serious risk that if the family returned to Kosovo they would be ostracised by the rest of their community.

    49.  Besides the central argument for refugee status based on 1C (5), both appellants (although more particularly B) advance a subsidiary argument that in any event, even without resort to 1C (5), they should be recognised as 1A (2) refugees because of their fear, not of further or future persecution, but rather of the continuing effects of past persecution, most notably B and his family's fear of likely ostracism by their community. On this subsidiary point I need say no more than that it cannot succeed for the reasons given by my noble and learned friend, Baroness Hale of Richmond, with whose judgment I entirely agree.

    50.  I should next briefly note the appellants' present position. Were Mr Hoxha's present appeal to fail he could still apply for discretionary leave to remain and advance any Human Rights Act claim available to him. Subject to that, however, he could be returned to Kosovo. B and his family, by contrast, were granted indefinite leave to remain on 9 March 2004 (well after the Court of Appeal's judgment). This was granted pursuant to a Home Office concession extended generally in late 2003 to families who had applied for asylum before 2 October 2000 and who had remained here since that date with at least one dependent child under the age of 18.

    51.  Finally before coming to the detailed arguments on 1C (5) it is, I think, helpful to take note of the one previous decision of this House which on any view bears closely on the present question and which could, indeed, be thought to stand squarely in the appellants' path: Adan v Secretary of State for the Home Department [1999] 1 AC 293. Mr Adan had fled Somalia in 1988 owing to a well-founded fear of persecution at the hands of the then government. Having made his way to the United Kingdom he was refused asylum but granted exceptional leave to remain—a leave which safeguarded him against return to Somalia but denied him several benefits attaching to refugee status. By this time Somalia was in the grip of civil war between opposing clans, a conflict which put all sections of society (and would have put Mr Adan on return) at grave but equal risk of death or torture against which no protection was afforded. The risk being common to all, the House held that it did not give rise to a well-founded fear of being "persecuted" within the meaning of 1A (2). That defeated one of Mr Adan's arguments. But it left open another, an argument of obvious present relevance. This was that Mr Adan had no need to show a present fear of persecution; it was enough to show a fear of persecution when he left Somalia—a "historic fear" as it was called—coupled with a present inability to avail himself of his country's protection. This argument too, however, failed.

    52.  Lord Lloyd of Berwick (with whose speech all the other members of the Appeal Committee agreed) found compelling reasons in the language of 1A (2)—with its constant emphasis on the present tense—for holding that it could only be satisfied by proof of a current well-founded fear of persecution. He then turned (p306) to 1C (5):

    "I had at first thought that article 1C (5) provided a complete answer to [Mr Adan's] argument. If a present fear of persecution is an essential condition of remaining a refugee, it must also be an essential condition for becoming a refugee. But it was pointed out in the course of argument that article 1C (5) only applies to [nationals who are outside their country owing to a well-founded fear of persecution for a Convention reason, and, owing to such fear, are unwilling to avail themselves of the protection of their country]. It does not help directly as to [nationals who are outside their country owing to a well-founded fear of persecution for a Convention reason, and are unable to avail themselves of the protection of their country]. This is true. But the proviso does shed at least some light on the intended contrast between article 1A (1) and 1A (2). Article 1A (1) is concerned with historic persecutions. It covers those who qualified as refugees under previous Conventions. They are not affected by article 1C (5) if they can show compelling reasons arising out of previous persecution for refusing to avail themselves of the protection of their country. It would point the contrast with article 1A (1), and make good sense, to hold that article 1A (2) is concerned, not with previous persecution at all, but with current persecution, in which case article 1C (5) would take effect naturally when, owing to a change of circumstance, the refugee ceases to have a fear of current persecution."

    53.  Finally, with regard to this argument Lord Lloyd (p308) said this:

    "I am glad to have reached that conclusion. For a test which required one to look at historic fear, and then ask whether that historic fear which, ex hypothesi, no longer exists is nevertheless the cause of the asylum-seeker being presently outside his country is a test which would not be easy to apply in practice. This is not to say that historic fear may not be relevant. It may well provide evidence to establish present fear. But it is the existence, or otherwise, of present fear which is determinative."

    54.  Lord Slynn of Hadley said (p301) that there seemed to him:

    "force in [Mr Adan's] argument that on humanitarian grounds a person who leaves his own country because of a well-founded fear of being persecuted for a Convention reason and later is unable, or, owing to that fear, is unwilling, to avail himself of that country's protection even when the grounds for his fear have gone, should be able to claim the status of a refugee."

    He concluded however:

    "[T]he coherence of the scheme requires that the well-founded fear, the first matter to be established, is also a current fear. The existence of what has been called a historic fear is not sufficient in itself, though it may constitute important evidence to justify a claim of a current well-founded fear."

    55.  In the light of that authority (from which your Lordships are not in any way invited to depart), sympathetic though inevitably one is to these appellants and persuasive though for my part I acknowledge their humanitarian case to be, their legal arguments appear distinctly unpromising.

    56.  Their case comes to this. To qualify for refugee status they have to satisfy the requirements of 1A (2). This they seek to do—in the face of Adan's requirement that they demonstrate a current well-founded fear—by resort to a cessation provision, 1C (5). 1C (5), quite apart from appearing to apply not when first an asylum seeker's refugee status is determined but only in connection with its possible later loss, in any event appears not to solve but to compound the appellants' difficulties, expressly postulating as it does that the circumstances earlier giving rise to refugee status "have ceased to exist" i.e. that by now they no longer have a well-founded fear. To escape this further difficulty, however, the appellants seek to invoke the "compelling reasons" proviso notwithstanding its apparent limitation to 1A (1) refugees. Putting it another way, the appellants seek by way of the proviso to disapply a cessation provision which, were it to apply, would itself take effect not to confer on them but rather to deny them refugee protection ("This Convention shall cease to apply"). Quite how the disapplication of a provision itself otherwise disapplying the Convention can assist an asylum seeker to qualify for Convention protection in the first place is not altogether easy to understand. Plainly, moreover, the argument is irreconcilable with the passage already cited from Lord Lloyd's speech in Adan [1999] 1 AC 293, 306, where he points to the contrast logically and intentionally struck in 1C (5) between on the one hand 1A (1) refugees, who have already been "considered" refugees (and thus recognised as such) and who, although potentially amenable to the loss of that status under 1C (5), will not in fact lose it if they can show "compelling reasons", and on the other hand 1A (2) refugees who must demonstrate a current well-founded fear of persecution not only when first seeking recognition of their status but also thereafter in order not to lose it.

    57.  Before turning to some of the many texts put before the House in connection with the true construction of 1C (5), it is convenient next, whilst still laying the ground for your Lordships' consideration of both the questions arising—what is meant by "recognized" and the reach of the proviso given its reference to 1A (1)—to set out the more directly relevant paragraphs of the UNHCR 1979 Handbook, issued, as its foreword (para iv) states, pursuant to a request from the Executive Committee in 1977: "for the guidance of Governments a handbook relating to procedures and criteria for determining refugee status". Noteworthy amongst the Committee's express recommendations was: "v. If the applicant is recognised as a refugee, he should be informed accordingly and issued with documentation certifying his refugee status." (emphasis added)

    58.  The foreword to the Handbook states (para ii) that the Convention and the 1967 Protocol apply "to persons who are refugees as therein defined" and continues:

    "The assessment as to who is a refugee, i.e. the determination of refugee status under the 1951 Convention and the 1967 Protocol, is incumbent upon the Contracting State in whose territory the refugee applies for recognition of refugee status." (emphasis added)

    59.  The foreword was revised in 1992; the body of the Handbook, however, remained as initially published in 1979. It includes the following paragraphs:

    "26.  With respect to the treatment within the territory of States, this is regulated as regards refugees by the main provisions of the 1951 Convention and 1967 Protocol … Furthermore, attention should be drawn to Recommendation E contained in the Final Act of the conference of Plenipotentiaries which adopted the 1951 Convention:

    'The Conference expresses the hope that the Convention relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons in their   territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides.'

    27.  This recommendation enables States to solve such problems as may arise with regard to persons who are not regarded as fully satisfying the criteria of the definition of the term 'refugee'.

    28.  A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.

    30.  The provisions of the 1951 Convention defining who is a refugee consist of three parts, which have been termed respectively 'inclusion,' 'cessation' and 'exclusion' clauses.

    31.  The inclusion clauses define the criteria that a person must satisfy in order to be a refugee. They form the positive basis upon which the determination of refugee status is made.

    112.  [Under the heading: Cessation clauses] Once a person's status as a refugee has been determined, it is maintained unless he comes within the terms of one of the cessation clauses. This strict approach towards the determination of refugee status results from the need to provide refugees with the assurance that their status will not be subject to constant review in the light of temporary changes - not of a fundamental character - in the situation prevailing in their country of origin.

    135.  Circumstances [in 1C (5)] refer to fundamental changes in the country, which can be assumed to remove the basis of the fear of persecution. A mere - possibly transitory - change in the facts surrounding the individual refugee's fear, which does not entail such major changes of circumstances, is not sufficient to make this clause applicable. A refugee's status should not in principle be subject to frequent review to the detriment of his sense of security, which international protection is intended to provide.

    136.  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.

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