JUSTICE SIMON BROWN: These appeals concern four asylum seekers - two
Somalis and two Yugoslavs - who no one suggests can at present properly be
returned to their own countries, but who the Secretary of State asserts, and
the Immigration Appeal Tribunal has held, are nonetheless not entitled to
appeals raise a number of difficult questions as to the proper construction and
application of the 1951 Convention relating to the Status of Refugees (as
amended by the 1967 Protocol) (the Convention), one of them so apparently
fundamental that it seems remarkable that we are now, 46 years on, confronted
with it for the first time.
fundamental question (hereafter Issue 1) concerns the very definition of the
term refugee in Article 1A (2) of the Convention, the first paragraph of which
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 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."
bracketed clauses, although deleted by the 1967 Protocol, remain relevant to
the issue of construction.
1 is whether it is always necessary for a person unable to return to his home
country to show a current well-founded fear of persecution or whether a
historical fear may sometimes suffice - whether, to put it more precisely, the
Secretary of State is right in submitting that to be a refugee a person must in
every case have a current well-founded fear of persecution were he to be
returned to his country of origin, or whether (as the appellants argue) if in
fact he is currently "unable ... to avail himself of the protection of" his
country of origin, it is sufficient that at some time past he has come to be
abroad through fear of persecution - fear which made him either flee his
country of origin or, if he was already abroad, remain abroad due to
circumstances arising in his country of origin during his absence (a refugee
as such are known).
central issue arises, of course, independently of the facts of these individual
cases. It is nevertheless, I think, helpful to have their basic facts in mind
the practical advantages of being recognised as a refugee, as opposed to being
refused recognition, (even though, as stated, these appellants and others like
them are not in any event facing return home), and (b) the circumstances in
which its resolution is likely to prove decisive of an asylum claim.
basic facts of the four cases are these.
is aged 32 from Northern Somalia, a member of the Habrawal sub-clan of the
Isaaq clan; Ms Nooh is aged 46 from Mogadishu, in the south, a member of the
Marehan sub-clan of the Darod clan. Both arrived in the UK in October 1990
(Adan after fleeing Somalia in June 1988 and taking two years to make his way
here) and claimed asylum on arrival. Both were refused asylum by the Secretary
of State but were granted exceptional leave to remain (a policy applied
particularly to Somalis), Adan in July 1992, Ms Nooh in September 1992. Both
appealed against the Secretary of State's refusal of refugee status and
succeeded before special adjudicators, Adan in September 1995, Ms Nooh in
October 1995. Both, however, then lost before the Tribunal when the Secretary
of State appealed, Adan in December 1995, Ms Nooh in March 1996. Leave to
appeal was refused in each case by the Tribunal but later granted by the Court
neither case was there any question regarding the appellant's credibility, nor
indeed as to the background circumstances in Somalia. Rather the appellants
lost before the Tribunal on Convention issues, notably Issue 1 (which if
decided in their favour would of itself have secured them recognition as
refugees), and on a further question (Issue 2) as to the nature of the risk to
which a person must be exposed during inter-clan fighting before the undoubted
danger they face can properly be regarded as persecution (persecution being
serious harm inflicted for a Convention reason). I shall have to return
briefly to the facts when eventually I come to decide Issue 2. For present
purposes, however, it is sufficient to note, first that it is accepted that
both appellants fled Somalia as a result of a well-founded fear of persecution
for Convention reasons; second, that Somalia remains riven by clan and
sub-clan based ethnic conflict involving widespread killing, torture, rape and
pillage; and third, that the country's infrastructure has broken down to the
extent that neither appellant can obtain effective protection from any
recognised State authority so that each would face a risk to life upon return
to Somalia (if such return were physically possible, which realistically it is
not). The Tribunals nevertheless found that the appellants were not at risk
of Convention (as opposed to indiscriminate) danger. In Adan's case the
Tribunal said this:
must be shown) ... that the civil war or unrest and inter-clan tribal fighting
which an appellant feared, would, over and above the usual state of civil war
have exposed him or her to persecution on account of his or her previous
political beliefs or membership of a particular clan, and ... this is the point
which we must consider."
a little later the Tribunal concluded:
we find that there is no evidence (Adan) would suffer persecution on account of
his membership of the Habrawal sub-clan of the Isaaq clan, from members of the
armed groups of other clans or sub-clans, and we find that, while we accept
that inter-clan fighting continues, that fighting and the disturbances are
indiscriminate and that individuals of all sections of society are at risk of
being caught up therein, and that the situation is no worse for members of the
Isaaq clan and the Habrawal sub-clan, than for the general population and the
members of any other clan or sub-clan."
Tribunal in Ms Nooh's case expressly adopted that same approach and concluded
that she too was in no worse position than the population as a whole. In her
case, moreover, the Tribunal added a second, independent reason for rejecting
her claim to asylum:
if (Ms Nooh) was to be able to travel to her traditional homelands, she would
not suffer harassment and these areas can be regarded as "safe areas". We
accept that (Ms Nooh) might have to travel through "unsafe" areas to reach her
homelands, but the fact remains that, having regard to the present situation in
Somalia, (she) has been granted exceptional leave to remain in the United
appellants are Serbs, nationals of the former socialist Federal Republic of
Yugoslavia. Lazarevic is aged 38, Radivojevic 33. Both performed military
service some years before 1991 when a state of war was declared in Yugoslavia.
Lazarevic arrived in the UK in March 1991, obtained entry for six months as a
visitor, left in February 1992 for a holiday in Spain, and returned to the UK
in March 1992. Only then did he claim asylum. He was granted temporary
admission but his applications for asylum and leave to enter were both refused
in November 1994. Radivojevic arrived in the UK in November 1991 (via Mexico
where he had gone in October with a theatre group from Yugoslavia), obtained
six months leave to enter as a visitor, and in April 1992 claimed asylum. He
was refused both asylum and leave to remain in May 1994.
essential basis of both claims was that the appellants were draft evaders on
grounds of conscience for which they feared inappropriate or excessive
punishment on return. The appeals of both appellants were dismissed
successively by special adjudicators (who in each case made damaging findings
as to their credibility and sincerity), and by the Tribunal (Lazarevic's appeal
in January 1996, Radivojevic's in May 1996). In essence it was decided that
neither appellant had any conscientious objection to military service, that in
those circumstances it mattered not that the conflict had been condemned by the
international community, and that draft evaders per se are not a social group
within the Convention. The Tribunals, however, gave both appellants leave to
appeal to this Court.
the Somali appellants, both the Yugoslav appellants remain here unlawfully as
over-stayers. At present, however, they cannot be returned to Yugoslavia.
The simple reason for this is that Yugoslavia is refusing to accept the return
of all refused asylum-seekers until a bilateral agreement is signed with the
UK. No such agreement is apparently even on the horizon. Were they, however,
now able to return, both appellants would be safe from persecution for draft
evasion: on 18th June 1996, with immediate effect, Yugoslavia passed an
Amnesty Law granting amnesty to all conscripts who, between 1982 and December
1995, deserted, evaded conscription, or left the country before call-up papers
1 arises with regard to the Yugoslav appellants in this way. They, it is
said, are plainly unable to avail themselves of the protection of their home
country, being unable to return there. Were they able, therefore, to
establish that they had earlier been abroad in the UK for fear of Convention
persecution, that, on the appellants' contended for construction of Article 1A
(2), would be sufficient for their purpose. It would be nothing to the point
that they cannot possibly have any present fear given the recent Amnesty.
is time now to indicate in broad outline something of the advantages enjoyed by
those whose refugee status is recognised over those refused asylum (be they
lawfully here like the Somalis with exceptional leave to remain, or unlawfully
here as overstayers like the Yugoslavs).
those recognised as refugees are irremovable is, of course, obvious. But
that, it will be appreciated, gives them no advantage over these appellants
who, in present circumstances, are irremovable anyway. And if circumstances
change so that it does in future become possible to return them to their own
countries - because control is restored to the warring areas of Somalia or
because a bilateral agreement is signed with Yugoslavia - then they could still
be returned even if they had been recognised as refugees. Article 1C (5)
Convention shall cease to apply to any person falling under the terms of
Section A if: ... (5) he can no longer, because the circumstances in connection
with which he has been recognised as a refugee have ceased to exist, continue
to refuse to avail himself of the protection of the country of his nationality."
similar provision exists with regard to the stateless).
are, however, significant advantages beyond irremovability in being recognised
as a refugee. In the first place, there are advantages under the Convention.
For example, under article 28 refugees are entitled to travel documents to
enable them to travel abroad, and under article 23:
contracting states shall accord to refugees lawfully staying in their territory
the same treatment with respect to public relief and assistance as is accorded
to their nationals."
may not, therefore, be deprived of benefits (as, in the UK, refused
under national law too, there are significant advantages in recognition, albeit
conferred as a matter of discretion. One advantage is that refugees obtain
indefinite leave to remain after four years, whereas those granted exceptional
leave must generally wait for seven years. Similarly, refugees are entitled to
immediate family reunion whereas those with exceptional leave normally have to
wait four years and, moreover, a special policy is applied to Somali refugees
enabling them to bring in their extended families.
other matter which it seems to me helpful to consider before finally addressing
Issue 1 is just when it is likely to be determinative of whether or not refugee
status in fact arises. An understanding of that, coupled with an appreciation
of the advantages of recognition, provides, I believe, a useful context in
which to decide the central point of construction.
will readily be seen, the point can only ever be decisive when an asylum-seeker
is in reality unable to return home: if he can return home then he must,
unless only he can establish a present fear of persecution. Equally the point
will never be decisive unless the fear of persecution existed at some time past
but has now ended. The coincidence of these two circumstances will be rare,
which doubtless explains why the issue has not previously arisen (save at
Tribunal level). It is said to arise here in the case of the Yugoslav
appellants because, they argue (although the Secretary of State disputes), they
were in the past at risk of persecution, and because Yugoslavia now refuses to
let them in although, if it did, it would not persecute them; and in the case
of the Somali appellants because, argues the Secretary of State, the only
protection they would be denied on return would be from general (i.e.
indiscriminate as opposed to persecution-based) harm, so that their present
fear is merely of danger rather than of persecution.
these considerations in mind I turn at last to address the issue of
construction. The arguments upon it ranged, I should note, far and wide.
All agree that the Convention, and not least Article 1, is in many respects
most unsatisfactorily drafted - deficiencies attributed by contemporary
commentators to shortness of time, political compromises, a reluctance to
depart too radically from earlier drafts, and so forth. There being, of
course, no international tribunal empowered to rule authoritatively upon the
Convention (unlike the position with the ECHR) it is left to the courts of each
Contracting State to construe it as best they can with such assistance as may
be found in the
(admissible under Article 32 of the Vienna Convention), legal commentaries past
and present, the UNHCR handbook and, of course, the decisions of other
have to say that, promising although some of this material appeared at various
stages during the course of argument, in the end I have found it of precious
little help in resolving the core issue. The genesis of Article 1A (2), for
example, proved interesting but ultimately unilluminating. Grahl-Madsen, a
well-recognised authority on the Convention, says at page 151 of his work,
Status of Refugees in International Law (1966):
phrase 'is outside' means the same as the previous more elaborate draft phrase:
'has had to leave, shall leave or remains outside'. The chosen phrase
consequently includes persons who have fled from their home country
('escapees') as well as those who have become refugees sur place. This has
been confirmed in a number of decisions."
light that casts upon the concept of refugees
it leaves untouched the central issue which now confronts us.
return, therefore, to Article 1A (2) itself. This provision, although already
set out in extenso above, I now propose to break down into a series of clauses
which for convenience I shall also number. A refugee is someone who:
to well-founded fear of being persecuted for [a Convention reason] is outside
the country of his nationality, and
(b)(i) is unable to avail himself of the protection of that country, or
to such fear, is unwilling to avail himself of the protection of that country;
having a nationality and being outside the country of his former habitual
(b)(i) is unable to return to it, or
owing to a well-founded fear of being persecuted for [a Convention reason] is
unwilling to return to it.
strength of the Secretary of State's argument (for saying that no one is
entitled to refugee status unless at the time his claim is determined he is in
present fear of persecution were he to be returned home) lies in the use of the
phrase "is outside" in clause 1(a); its weakness lies in the difficulty in
finding convincing reasons why the definition also includes clause 1(b). As
to clause 1(b)(i), Mr Pannick QC submits that this further test is needed to
deal with "people who have a well-founded fear and who would wish to return
(for example, to work for the opposition to an evil regime, or to carry out
their normal work despite the threat of persecution from opposition forces
which the government cannot control) but who are simply unable to return." As
to clause 1(b)(ii) - a clause qualified, unlike clause 1(b)(i), by the
requirement that the applicant's unwillingness be "owing to such fear" - that
additional element in the definition Mr Pannick seeks to explain thus: "the
second alternative, being unwilling to return, does need to be qualified. That
is because there may be many reasons why a person is unwilling to return. So
the draftsman has made it plain that a mere unwillingness is not enough. He
must be unwilling because of "such fear", that is the current well-founded fear
to clause 1(a), as a matter of language it seems to me that the phrase "is
outside", although couched in the present tense, could sensibly be construed to
have any one of three meanings. It could mean, as Mr Pannick submits it does,
is outside owing to a well-founded fear of persecution still current at the
time the asylum application is under consideration; or it could mean has at
some time however long in the past come to be outside on account of such fear,
and for whatever reason has never thereafter left; or, and this I understand
to be Mr Blake QC's finally preferred submission for the appellants, it could
mean has come to be outside (or, being already outside, not to return) owing to
past persecution and still remains abroad on that account, in the sense that
the causal link remains operative and has never been broken.
although I recognise it may theoretically be on occasion to decide whether the
causal link required under that third formulation remains intact, I venture to
suggest that this is an area of decision-making where in any event a
broad-brush approach is generally required and that upon such an approach the
problem presented is far from insoluble. Ordinarily the decision-maker - be
it the Secretary of State, the Special Adjudicator or the Tribunal - will focus
on the temporal connection between the persecution suffered or threatened which
originally caused the asylum-seeker to escape or remain here, and the date of
his claim to refugee status. Assuming that there has been no substantial
delay between the two and that there was no obvious intermediate opportunity to
return home which reasonably he should have been expected to take, I would
expect the necessary causative link to be found established.
is, therefore, nothing in the language of clause 1(a) which to my mind compels
acceptance of Mr Pannick's construction. Still less does his argument derive
any support from Article 33 although he enthusiastically prayed it in aid.
Article 33 (1) provides:
contracting state shall expel or return (
a refugee in any manner whatsoever to the frontiers of territories where his
life or freedom would be threatened on account of [a Convention reason]."
is Mr Pannick's submission that Article 33 expressly only benefits those who
are at present risk of danger on return, that
it does not apply in the circumstances here postulated (i.e. no present fear
but an inability to return - or at any rate return safely because of
generalised danger), that accordingly the UK could properly return home for
example these two Somali appellants, and that its very non-application exposes
the falsity of Mr Blake's argument as to the width of Article 1A (2). I
unhesitatingly reject this submission. It examines the problem from the wrong
end. In my judgment it is Article 1 (and for present purposes 1A (2)) which
must govern the scope of Article 33 rather than the other way round. That
approach is to my mind supported, rather than, as Mr Pannick submitted,
contradicted, by the speeches in
v Secretary of State for the Home Department ex parte Sivakumaran
 1AC 958, a case concerned with whether the well-founded fear has to be
subjectively or objectively assessed. As Lord Goff said at page 1001, " ...
the non-refoulement provision in Article 33 was intended to apply to all
persons determined to be refugees under Article 1 of the Convention." By the
same token, therefore, as Article 33 precludes refoulement even of those who
face persecution short of threats to "life or freedom" provided only that it
involves serious harm (a position now, we are given to understand, recognised
by the Secretary of State despite the provisions of Rule 180 B (c) of HC725 and
the suggestions to the contrary in
v Secretary of State for the Home Department
 IAR 97), so too does it forbid returning home anyone who qualifies under
Article 1A (2) properly construed - or for that matter anyone who may qualify
on different grounds under Article 1A (1) or the second limb of Article 1D.
33, therefore, to my mind provides no help in construing Article 1A (2). In
any event, as I have sought to explain, non-refoulement constitutes part only
of the benefits attaching to refugee status and, as indicated, the part
presently least important to these appellants who cannot be removed anyway.
Their concern rather is not to remain here in limbo - without benefits, without
security, unable to travel, unable to bring in their families - but instead to
enjoy the specific advantages to which refugees are entitled under both
international and domestic law. They seek, in essence, the protection of this
country and a new home here.
however, asks Mr Pannick, should that be available to asylum-seekers merely
because they have suffered or feared persecution at some time past? Others, he
points out, who have no past history of persecution, may equally be marooned
here unable to return to their country of origin, and yet no one suggests that
they too (save for the stateless as to whom a discrete difficulty of
interpretation arises under Article 1A (2)) are entitled to recognition as
refugees. Take, for example, the Yugoslav appellants, unless they are able to
establish that at some time past they were in the UK through fear of
persecution, rather than merely prosecution, for draft evasion in Yugoslavia.
is not, I acknowledge, an easy question to answer. And yet I think one can
discern within the Convention signs that past persecution was indeed intended
to have a continuing relevance when it comes to determining entitlement to
refugee status. There is the fact that, prior to the 1967 amendments, refugee
status had to derive from events occurring before 1st January 1951. There is
Article 1A (1) which provides for "historic" refugees. There is the proviso
to Article 1C (5) which allows an Article 1A (1) refugee "to invoke compelling
reasons arising out of previous persecution for refusing to avail himself of
the protection of the country of nationality." And there must surely have
existed in the authors of the Convention a feeling that those displaced from
their homelands by the horrors of the Holocaust years, and were still unable to
return, were particularly deserving of refugee status and the protection and
security that that would bring. So far as the stateless are concerned,
moreover, the latter part of Article 1A (2) (my clauses 2(a) and 2(b)(i)),
construed literally, requires of those presently unable to return home nothing
more (save only that until 1967 they had to show that they were displaced as a
result of events prior to 1951). The position, however, with regard to the
stateless, is, as I recognise, of only marginal relevance in all this and,
indeed, as Mr Pannick points out, my clause 2(a) has been construed by the
Canadians as if in fact it were qualified (as clause 1(a) is) by a requirement
to be "outside" for fear of Convention prosecution - see the relevant Canadian
legislation (enacted no doubt in the light of Canada's construction of the
Convention) as set out in
v Attorney General of Canada
 2RCS 689.
me therefore return to the language of Article 1A (2) itself, and in particular
its first part dealing with foreign nationals - my clauses 1(a), 1(b)(i) and
1(b)(ii) - where in my judgment the answer to this conundrum must be found. I
regard the single most telling point in all this to be the difficulty, indeed
as I see it the impossibility, of attributing any useful purpose whatever to
clauses 1(b)(i) and (ii) if Mr Pannick is right about clause 1(a). His
illustrations of their intended role, ingenious though they are, seem to me not
merely unpersuasive but to dissolve entirely on close analysis. If
Pannick is right in saying that the applicant must always establish a
well-founded present fear, then, if that relates to the risk of non-government
persecution for a Convention reason (i.e. persecution against which the foreign
state is unable to protect him), he will by definition be able to say that he
is unable to avail himself of that state's protection. And if his present fear
is of governmental persecution, he will by definition be able to establish that
he is unwilling to return for a Convention reason. In either event, therefore,
clauses 1(b)(i) and 1(b)(ii) would add nothing; both would be otiose. Indeed,
as Mr Pannick was constrained to accept, on his approach to this Article, no
protection other than protection against persecution for a Convention reason
could ever have any relevance for Article 1A (2) purposes whereas it seems
clear from all the commentaries that the concept of protection is intended to
go a good deal wider than this. As paragraph 99 of the UNHCR Handbook puts it:
constitutes a refusal of protection must be determined according to the
circumstances of the case. If it appears that the applicant has been denied
services (e.g. refusal of a national passport or extension of its validity, or
denial of admittance to the home territory) normally accorded to his
co-nationals, this may constitute a refusal of protection within the definition."
therefore I readily accept that Issue 1 is one of very considerable difficulty,
and that anomalies may appear to arise on either view, I have concluded that Mr
Blake's arguments are to be preferred and that an asylum-seeker unable to
return to his country of origin may indeed be entitled to recognition as a
refugee provided only that the fear or actuality of past persecution still
plays a causative part in his presence here.
Issue arises only in regard to the Somali appellants and addresses the
circumstances in which persecution for a Convention reason can properly be said
to arise in the context of civil war.
is a great deal of literature upon the subject, only a tiny part of which can
sensibly be included in this judgment. A convenient starting point is perhaps
the beginning of paragraph 164 of the UNHCR handbook, in a section headed
"Special Cases: War Refugees":
compelled to leave their country of origin as a result of international or
national armed conflicts are not normally considered refugees under the 1951
Convention ... ."
said, other paragraphs of the handbook clearly recognise that refugee status
may indeed arise out of civil war:
The fear of being persecuted need not always extend to the whole territory of
the refugee's country of nationality. Thus in ethnic clashes or in cases of
grave disturbances involving civil war conditions, persecution of a specific
ethnic or national group may occur in only one part of the country. In such
situations, a person will not be excluded from refugee status merely because he
could have sought refuge in another part of the same country, if under all the
circumstances it would not have been reasonable to expect him to do so."
is the so called internal flight alternative and is certainly consistent with -
Mr Blake argues supportive of - my conclusion on Issue 1 insofar as it
exemplifies how refugee status may arise when there is an overall failure to
provide protection at home giving rise to persecution in part of the country
and ineffective internal protection from generalised danger in the rest.)
Being unable to avail himself of such protection [the protection of his
Government] implies circumstances that are beyond the will of the person
concerned. There may, for example, be a state of war, civil war or other grave
disturbance, which prevents the country of nationality from extending
protection or makes such protection ineffective. ..."
has been recognised too by foreign courts. Take, for example, this passage
from the judgment of the Canadian Federal Court of Appeal in
v Minister for Employment and Immigration
 3FC 250 to 258:
situation of civil war in a given country is not an obstacle to a claim
provided the fear felt is not that felt indiscriminately by all citizens as a
consequence of the civil war, but that felt by the applicant himself, by a
group with which he is associated or, even, by all citizens on account of a
risk of persecution based on one of the [Convention] reasons ..."
the best general exposition of the position is to be found in Professor
Hathaway's 1991 Canadian publication,
Law of Refugee Status
passages in which were urged upon us by both parties. The interested reader
should really study the whole of the section from pages 90 - 97 under the
heading: "Assessing Risk within the Context of Generalised Oppression." I
shall content myself, however, with these brief passages from pages 93 -95:
... refugee law is concerned only with protection from serious harm tied to a
claimant's civil or political status, persons who fear harm as the result of a
non-selective phenomenon are excluded. Those impacted by natural calamities,
weak economies, civil unrest, war, and even generalised failure to adhere to
basic standards of human rights are not, therefore, entitled to refugee status
on that basis alone.
having been said, refugee law does extend protection in even these situations
where there is some element of differential intent or impact based on civil or
political status. The genuineness of claims grounded in a form of broadly
based harm, like all others, is a function of two basic issues. First, is the
anticipated state-tolerated harm of sufficient gravity to constitute
persecution? If so, is there a connection between the risk faced and the
claimant's race, religion, nationality, social group or political opinion? If
the harm is both sufficiently serious and has a differential impact based on
civil or political status, then a claim to Convention refugee status is made
out, however many people are similarly affected.
way of example, the victims of a flood or earthquake are not
Convention refugees, even if they have fled to a neighbouring state because
their own government was unable or unwilling to provide them with relief
assistance. If, on the other hand, the government of the home state chose to
limit its relief efforts to those victims who were members of the majority
race, forcing a minority group to flee to another country in order to avoid
starvation or exposure, a claim to refugee status should succeed because the
harm feared is serious and connected to the state, and the requisite element of
civil or political differentiation is present. ...
examples would be the sheltering of only members of a particular political
group during civil insurrection or war ... however many people may be affected,
the relevant issues are the seriousness of the harm that may eventuate, and its
linkage to civil or political status.
the historical framework of the Convention makes clear that it was designed to
protect persons within large groups whose fear of persecution is generalised,
not merely those who have access to evidence of particularised risk. The
primary intended beneficiaries of the Convention were the many displaced
victims of the Second World War and the ideological dissidents from Eastern
Europe, virtually all of whom were assumed to be worthy of protection by reason
of their group-defined predicament. When refugee law evolved through the
 protocol to protect refugees from outside Europe, no new conceptual
limitations were added, as a result of which there is no basis in law for
reading a particularised evidence rule into the Convention-based regime.
it is logically inconsistent from either a humanitarian or human rights
perspective to refuse cases arising from broadly-based persecution."
Pannick fixes upon Professor Hathaway's reference to the requirement that the
harm feared or suffered have "a differential impact based on civil or political
status" before a claim to asylum is made out, and argues that on the Tribunal's
above-quoted findings of fact in Adan's case, although all members of whatever
clan are targeted and therefore at serious risk of harm from rival clans, his
clan is at no greater risk than others (indeed at one point the Tribunal
suggests that his clan and sub-clan are presently dominant) so that the
"differential impact" is missing. The putative refugee, he submits, must at
the very least be able to point to some group within the area of civil war less
at risk than his own and this Adan cannot do.
however, Mr Blake contends involves a misreading of Hathaway: "differential"
in the quoted passage refers simply to a difference based upon a Convention
reason. The position in other words is not that in a Convention-based
conflict (i.e. a conflict in which the warring parties are animated by
Convention considerations) only the under-dogs are refugees, but rather that
all are refugees save only those who are being targeted by neither side but who
nevertheless suffer (perhaps as acutely as any clan members) from the fall-out
of civil war, i.e. the innocent spectators.
that in reality virtually all civil wars will by their very nature be
Convention-based (the opposing factions divided by issues of race, politics or
the like), the difficulty of
Blake's argument lies in the proposition that all who may be identified with
the interests of either side, even if active participants in the conflict, are
potential refugees, and the only people excluded from Convention protection are
those put incidentally, even if equally, at risk. It is far from obvious why
those who prosecute, perhaps even promote, a civil war should be better placed
under the Convention than those lucklessly endangered on the sidelines. Just
possibly, however, some limitation upon so apparent an injustice is to be found
in the provisions of Article 1F which disapply the Convention from those who
have "committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make
provision in respect of such crimes", or have "been guilty of acts contrary to
the purposes and principles of the United Nations" (although the scope of these
provisions was not explored in argument and is, I suspect, distinctly narrow).
therefore, I readily acknowledge this unappealing aspect of Mr Blake's case and
see no real escape from it,
Pannick's competing argument that one simply casts around for a current
under-dog - to see if there is some other group presently at lesser risk -
seems to me no more inviting.
again I confess to finding this a difficult issue. On balance, however, I
have come to prefer Mr Blake's arguments, concluding as I do that they more
faithfully reflect the evident intentions of those responsible for the
Convention and give better effect to its broad humanitarian instincts.
present issue, I should note, arises solely in the context of hostilities
occurring in countries where the state authorities have lost all control, where
those threatening or inflicting the harm are known as "agents of persecution".
As it is put in paragraph 65 of the Handbook:
is normally related to action by the authorities of a country ... Where serious
discriminatory or other offensive acts are committed by the local populace,
they can be considered as persecution if they are knowingly tolerated by the
authorities, or if the authorities refuse,
to offer effective protection." (My underlining).
Convention is, in short, concerned in the last analysis to provide substitute
protection (surrogate protection as it is sometimes called) for those who
cannot find it from the authorities in their own country. That is not, of
course, to say that all who are put at risk by national, let alone
international, conflict are thereby candidates for refugee status. On the
contrary, as noted in paragraph 164 of the Handbook (see above), persons
compelled to leave their country of origin for those reasons are not ordinarily
writing this section of my judgment there has come to my attention an Act
adopted by the member states of the European Union pursuant to Title VI of the
Treaty setting out their Joint Position as at 4th March 1996 on the meaning of
the term "refugee" in the Convention. This has, as I understand it, no legal
force but is clearly intended to establish administrative and diplomatic norms
of interpretation. Much of it is instructive. Section 6 reads thus:
war and other internal or generalized armed conflicts.
to a civil war or internal or generalized armed conflict and the dangers which
it entails is not in itself sufficient to warrant the grant of refugee status.
Fear of persecution must in all cases be based on one of the grounds in Article
1A of the Geneva Convention and be individual in nature.
such situations, persecution may stem either from the legal authorities or
third parties encouraged or tolerated by them, or from
authorities in control of part of the territory within which the State cannot
afford its nationals protection.
principle, use of the armed forces does not constitute persecution where it is
in accordance with international rules of war and internationally recognized
practice; however, it becomes persecution where, for instance, authority is
established over a particular area and its attacks on opponents or on the
population fulfil the criteria in section 4 [section 4 discusses 'persecution'].
other cases, other forms of protection may be provided under national
own conclusion is, I believe, supported by that exposition, in particular by
its acknowledgment that in the context of civil war or internal armed conflict
persecution may stem from "
authorities in control of part of the territory within which the State cannot
afford its nationals protection." Whilst, of course, each case must be
decided on its own merits, it is perhaps worth quoting also paragraph 2 of the
or collective determination of refugee status
application for asylum is examined on the basis of the facts and circumstances
put forward in each individual case and taking account of the objective
situation prevailing in the country of origin.
practice it may be that a whole group of people are exposed to persecution.
In such cases, too, applications will be examined individually, although in
specific cases this examination may be limited to determining whether the
individual belongs to the group in question."
returning finally to the details of these appeals to see how my conclusions on
the two main issues affect their outcome, I would add just this. Lest anyone
be troubled that this judgment opens the Convention gates more widely to
asylum-seekers than has hitherto been recognised, this thought should be borne
in mind: it is a matter for the Secretary of State whether, in the long-term,
refugees are to be allowed to settle in the U.K. He is, it seems to me,
perfectly entitled to give them sanctuary here only for the limited period of
their actual need, returning them to their countries of origin once their
conflicts end and their borders re-open. Article 1C (5) expressly so allows.
That is not to say that I am recommending a change in the present practice.
Such a decision has nothing whatever to do with this court. I only observe
that the four-year rule is discretionary and that already, as I understand it,
it operates prospectively rather than retrospectively in the sense that time
runs from the date of recognition, not from when the applicant first fulfilled
the criteria for refugee status. Doubtless this delay itself often allows
foreign conflicts to resolve and in the result asylum-seekers to be returned
home rather than settled here.
the light of my conclusions on the issues of principle, very little more need
be said as to the facts of the two Somali cases. Although we were taken in
very considerable depth through the recent troubled history of that country, it
is sufficient to record the following. In the parts of Somalia from which
these two appellants fled there have been well-documented inter-clan struggles
for power over several years. When Adan fled the north, President Barre (of
the Darod clan) was persecuting the Isaaqs. During Adan's absence abroad the
agent of persecution shifted when in 1993 Egal became President. The Special
Adjudicator, however, found that if Adan returned, President Egal would prove
unable to offer him effective protection. She said this:
he were now to be returned to Somalia, assuming that to be physically possible,
there is a reasonable degree of likelihood that he would be in danger of
persecution by reason of his membership of the Isaaq clan or the Habrawal
sub-clan and in particular because of the political opinion that would be
attributed to him by reason of his membership of the Habrawal sub-clan, namely
that he was a supporter of Egal."
Nooh's case is yet more clear-cut. In her part of the country General
Aideed's faction has at all times remained the dominant force. The Special
Adjudicator in her case said this:
am satisfied that inter-clan fighting has gone on since 1993 to a greater or
lesser extent. ... the Hawyye under General Aideed have established an
ascendancy over other factions in Mogadishu, and the Marehan have largely been
pushed into enclaves in central and south-western Somalia where their position
remains under threat. I am also satisfied that, in the areas outside the
self-declared Republic of Somaliland, there is no formal government and there
are no effectively operating agencies of government. There are fiefdoms
subject to rival warlords. These are all matters of general public knowledge.
... Ms Nooh, because of clan intermarriage, has a set of conflicting perceived
allegiances, which would render her personal position particularly dangerous.
She would be at great risk in Mogadishu, because of being a Marehan, and
because she was known as a former supporter of Barre. ... she cannot look to
find any greater safety anywhere else in Somalia."
evidence in Ms Nooh's case, indeed, suggests that after she had fled precisely
what she had herself feared occurred to most of her family: thirty-one members
were raped or murdered.
is right to record that Mr Pannick in argument was substantially less concerned
to defend the decisions in the Somali cases than to argue the Secretary of
State's case on the disputed points of principle. The Secretary of State,
indeed, had already conceded that Ms Nooh's appeal must succeed (although only
to the extent of requiring a redetermination by the Tribunal, whereas Mr Blake
contends for more, namely a final decision upholding Ms Nooh's claim to refugee
final conclusions on the two Somali appeals can be stated as follows:
decided Issue 1 in their favour, their appeals necessarily succeed: in each
case it is accepted that they fled in fear and it is not suggested that either
of them could and should thereafter have returned home.
had Issue 1 been decided against them, I would still allow both appeals having
regard to my conclusion upon Issue 2. This would be decisive even in Adan's
case given that his sub-clan apparently remains at risk in the continuing
clan-based conflict in northern Somalia.
were both Issues decided against the appellants,
Nooh's appeal must in my judgment nevertheless succeed. As Mr Pannick came
close to conceding, even were he right on Issue 2, no factual basis existed
(certainly none was explained) for finding Ms Nooh at no greater risk than the
population as a whole. On the contrary, there was uncontroverted evidence
that her family connections put her at a substantially greater risk than most.
As to the Tribunal's conclusion that she would be safe in her homelands, they
gave no reason for ignoring the danger of her having to travel through unsafe
areas to get there, and in any event appear to have overlooked the Special
Adjudicator's finding that "she cannot look to find any greater safety anywhere
else in Somalia."
is no need to remit either of these cases to the respective Tribunals. These
are statutory appeals rather than judicial review challenges, and it is open to
this Court under the provisions of RSC Order 55 rule 7 (5) to substitute our
decision for that given below. It is not even as if the Tribunals here heard
any evidence: all the relevant facts had been found by the Special
would therefore allow both the Somali appeals and restore the determinations of
the Special Adjudicators in their favour.
for the two Yugoslav appeals, I have had the advantage of reading in draft
Hutchison LJ's judgment upon them. I find myself in full agreement with it.
For the reasons he gives I too would dismiss their appeals.
have had the advantage of reading the judgment of Simon Brown L.J. in draft and
I agree with his conclusions on the issues of law with which he deals and on
the Somali cases. The observations that follow are concerned with the Yugoslav
need add very little to Simon Brown L.J.'s brief summary of the facts. I
emphasise (which is of considerable significance, given the arguments advanced
on behalf of these appellants) that neither of them was believed when he
asserted conscientious objection to military service as the reason for not
answering his call-up.
the appellants Radivojevic and Lazarevic Mr. Lewis accepts that both have been
disbelieved as to their reasons for draft evasion and that as a result they are
to be regarded as persons who have chosen for other than conscientious reasons
to refuse to serve in the army. He also accepts that, by reason of the
amnesty, they are not now at risk of punishment for draft evasion. He
maintains, however, that they are refugees within the meaning of Article 1 A
(1) of the Convention, and that this is so whether or not Mr. Blake is correct
in arguing that it is unnecessary for a claimant who asserts that he is unable
to return to his country to show that he has a current well founded fear of
persecution for a Convention reason.
Lewis's first submission is that the denial of return is itself persecution.
Insofar as it is necessary to show a current well-founded fear of persecution
for a convention reason, he contends that these appellants are already subject
to such persecution because the denial of their country's protection inherent
in the refusal to re-admit them amounts to persecution by reason of their
membership of a social group - namely
alternatively failed asylum-seekers - or by reason of their political opinions.
that argument is rejected then, adopting Mr. Blake's submission as to the
distinction that article 1 A (1) draws between those unwilling and those unable
to return, Mr. Lewis contends that his clients can satisfy the requirement to
show that they are outside their country owing to a well-founded fear of
persecution for a convention reason on the basis that in the particular
circumstances of this case (and notwithstanding the adverse findings as to
their credibility) the risk, prior to the amnesty, of prosecution for draft
evasion amounted to a well-founded fear of persecution for a convention reason
arguments require determination of the following questions:-
refusal to permit the return of a person to the country of his nationality
amount to persecution?
the appellants, either as draft evaders or as failed asylum seekers, members of
a particular social group: and if so, does the refusal of readmittance amount
to persecution of them by reason of their membership of such group?
Alternatively, is it to be inferred from the refusal that they were being
persecuted for their political views?
it necessary for a person unable to return to show a current well-founded fear
or may a historical well-founded fear suffice? (Mr. Blake's first point).
the appellants show what Mr. Lewis concedes to be essential to their claim -
that they were, when their claims were determined, outside their country by
reason of a well-founded fear of persecution for a convention reason?
shall consider each of these questions.
of re-entry as persecution.
Convention contains no definition of persecution. Mr. Lewis submits that its
meaning is to be determined by having regard to the context in which it appears
and to the objects of the Convention. He places particular reliance upon and
asks us to adopt Professor Hathaway's formulation, to be found in his work
Law of Refugee Status
(1991) where, at page 104, he says:
persecution may be identified as the sustained or systemic violation of basic
human rights demonstrative of a failure of state protection.
the following pages, where the author is considering the nature of the state's
duty of protection, one finds these observations:
the international community has recognized that there are certain basic rights,
including both freedom from interference and entitlement to resources, which
all states are bound to respect as a minimum condition of legitimacy. (106)
mentions, among other instruments, the International Covenant on Civil and
Political Rights, which was the subject of a United Nations General Assembly
Resolution of 19th December 1966 and came into force on 23rd March 1976,
Article 12 paragraph 4 of which provides:
one shall be arbitrarily deprived of the right to enter his own country.
Lewis also relies on passages in the UNHCR Handbook on Procedures and Criteria
for Determining Refugee Status under the Convention, paragraph 98 of which reads:
to avail himself of .... protection [of his country] implies circumstances that
are beyond the will of the person concerned. There may, for example, be a
state of war, civil war on other grave disturbance, which prevents the country
of nationality from extending protection or makes such protection ineffective.
Protection by the country of nationality may also have been denied to the
applicant. Such denial of protection may confirm or strengthen the applicant's
fear of persecution, or may indeed be an element of persecution.
Lewis argues that, as the prohibition against return has been in force since
1994, it has plainly been sustained: and that since it is a decision of
government it is also systemic - a word which he suggests, in my view rightly
given the context, means institutionalized. The result is that over a
prolonged period there has been, and continues to be, a complete failure of
domestic protection. It is in such circumstances that an individual requires
the surrogate protection of the international community. Again he relies on
law is designed to interpose the protection of the international community only
in situations where there is no reasonable expectation that adequate national
protection of core human rights will be forthcoming. Refugee law is therefore
"substitute protection" in the sense that it is a response to disfranchisement
from the usual benefits of nationality. As Guy Goodwin-Gill puts it, ".... the
degree of protection normally to be expected of the government is either
lacking or denied".
means that in addition to identifying the human rights potentially at risk in
the country of origin, a decision on whether or not an individual faces a risk
of "persecution" must also comprehend scrutiny of the state's ability and
willingness effectively to respond to that risk. Insofar as it is established
that meaningful national protection is available to the claimant, a fear of
persecution cannot be said to exist. This rule derives from the primary status
accorded to the municipal relationship between an individual and her state, and
the principle that international human rights law is appropriately involved
only when a state will not or cannot comply with its classical duty to defend
the interests of its citizenry. Andrew Shacknove has helpfully phrased this
principle in terms of a breakdown of the protection to be expected of the
minimally legitimate state:
is but one manifestation of the broader phenomenon: the absence of state
protection of the citizen's basic needs. It is this absence of state
protection which constitutes the full and complete negation of society and the
basis of refugeehood.
second paragraph of this quotation shows that the author has uppermost in his
mind the question of protection within the state's borders but there is, it
seems to me, no reason to think that it does not apply equally to those other
important aspects of the rights and duties that apply between a State and its
citizens. Paragraph 99 of the Handbook makes this clear.
Pannick's submissions on this part of the case were mainly directed to arguing
that, assuming, as the Tribunal in
were inclined to accept, that refusal of entry could amount to prosecution,
there was a finding that on the facts here it did not. He did, however, argue
that a person could not be a refugee simply by virtue of his being prohibited
from returning, and posed the question: "How can one say that the applicants
are outside their country owing to a well-founded fear of persecution?" I
shall deal with this question in due course in a different context - it must be
remembered that I am here considering with a very limited point, which does not
include an enquiry as to whether any persecution is for a Convention reason.
a State arbitrarily excludes one of its citizens, thereby cutting him off from
enjoyment of all those benefits and rights enjoyed by citizens and duties owed
by a State to its citizens, there is in my view no difficulty in accepting that
amount to persecution. Such a person may properly say both that he
persecuted and that he
[continued] persecution in the future. I see no reason, given the scope and
objects of the Convention, not to accept Professor Hathaway's formulation; and
I am encouraged to do so by the fact that Simon Brown L.J. cited it in terms
which at least implied approval in
Ravichandran Imm AR 97 at 107. However, even accepting that refusal to permit
return can constitute persecution for a Convention reason, I would not myself
accept that that would be so in the case of those who, like these appellants,
are anxious at all costs not to return: how can they be said to be harmed by
such a refusal? I shall return to this in the context of the second of the
questions raised by Mr. Lewis's submissions, to which I now turn.
for a Convention reason?
Lewis submits that draft-evaders - not only those who are motivated by
conscientious objection but also those who, like his clients, simply avoid
military service for their own ends - are properly to be regarded as a
particular social group. One should focus, he argues, not on the reasons for
the evasion but on the reasons the prosecutor has for pursuing the prosecution:
it is the membership of the club that is important, not the reasons its members
may have had for joining. This argument, which at first sight seems, to me at
any rate, unattractive, is dependent upon Mr. Lewis's assertion that the
conflict or anticipated conflict in which the appellants were being called up
to serve was one which was condemned by the international community as contrary
to the basic rules of human conduct. In such a case, he argues, any punishment
for draft evasion is to be regarded as persecution, irrespective of the motives
of the evader. He relies on the Handbook, paragraph 171:
however, the type of military action, with which an individual does not wish to
be associated, is condemned by the international community as contrary to basic
rules of human conduct, punishment for desertion or draft-evasion could, in the
light of all other requirements of the definition, in itself be regarded as
Lewis also drew our attention to a Tribunal decision in
(13129) 25th March 1996, on page 4 of which one finds the following observations:
adjudicator does not seem to have made a positive finding that the hostilities
referred to have indeed been condemned internationally. But it is agreed that
they have been.
did he consider whether there was a serious possibility that the appellant may
be prosecuted and possibly convicted of draft evasion.
our view if there was such a likelihood then the level of punishment is
irrelevant. No one can be required to participate in hostilities which are
internationally condemned and therefore any persecution by the state for
failing to participate or taking steps to avoid serving them may result in
deprivation of liberty. This is persecution within the Convention.
my view there can be no doubt that a person who on grounds of conscience
objects to participating in an internationally condemned conflict can
legitimately assert that the risk of prosecution for his actions amounts to a
risk of persecution. As Mr. Pannick submitted, a person who objects to
fighting on the strength of such genuinely held views is impliedly expressing a
political view and the convention provides protection. However, I cannot
accept that persons in the position of these appellants can claim to be in fear
after refusing for extraneous reasons to fight - can seek, as Mr. Pannick put
it, to take opportunistic advantage of the nature of a war which excited them
not at all. I understand the basis of the appellants' argument, which involves
that they were doing the right thing for the wrong reason and should, because
it was the right thing, not be punished: so punishment equals persecution. It
seems to me, however, that it is impossible sensibly to say that it is
persecution on account of their political opinion. Mr. Lewis accepts that none
of the cases in which the question of internationally condemned conflicts has
been considered involves an applicant whose objection to serve was based on
reasons other than reasons of conscience. In this connection I must say that,
in any event, I regard as unsustainable the suggestion that mere prosecution
for draft-evasion involves the imputation of political opinion to the
defendant. The most obvious inference, where a person does not answer his call
up, is that he has reasons of his own for refusing to serve in the forces, as
was the case with these appellants on the findings of the adjudicators and the
should however express my views on the submission that, even though
opportunistic rather than conscientious draft-evaders, the appellants are part
of a "particular social group".
considering a recent Court of Appeal authority on the meaning of this term I
shall refer to Professor Hathaway's commentary between pages 157 and 161 of the
work from which I have already quoted. Having pointed out that this fifth
group was introduced into the Convention definition by a late amendment with
little explanation and was adopted without discussion, he says:
were the intended beneficiaries of this provision? On the one hand, it is
argued that membership of a particular social group should be seen as
"clarifying certain elements in the more traditional grounds for persecution",
those being race, religion, nationality, and political opinion.
refers to the fact that for a time, in Canada, this view prevailed, with the
the notion of membership of a particular social group became largely
superfluous, since the groups which were recognized - illegal expatriates,
human rights activists, and various anti-government associations - could
already be protected under the rubric of one of the other four categories.
page 158 Professor Hathaway identifies the view at the other extreme:
the plea has been made to interpret membership of a particular social group as
an essentially all-embracing "safety net", requiring only some recognizable
similarity of background among group members.
author then, having explained in terms which I find convincing why this
approach also is erroneous, propounds his own view in favour of what he calls a
"middle ground position which avoids reading "membership of a particular social
group" as either redundant or all-inclusive". This, he says was defined by the
United States Board of Immigration Appeals in
(Interim Decision 2986, March 1, 1985), and I quote part of the passage he
cites from that authority:
the other four grounds of persecution enumerated ... restrict refugee status to
individuals who are either unable by their own actions, or as a matter of
conscience should not be required, to avoid persecution. Applying the doctrine
of ejusdem generis, we interpret the phrase "persecution on account of
membership [of] a particular social group" to mean persecution that is directed
toward an individual who is a member of a group of persons all of whom share a
common, immutable characteristic. The shared characteristic might be an innate
one such as sex, color, or kinship ties, or in some circumstances it might be a
shared past experience such as former military leadership or land ownership.
The particular kind of group characteristic that will qualify under this
construction remains to be determined on a case-by-case basis. However,
whatever the common characteristic that defines the group, it must be one that
the members of the group either cannot change, or should not be required to
change because it is fundamental to their individual identities or conscience.
Only when this is the case does the mere fact of group membership become
something comparable to the other four grounds of persecution......
was to this formulation, among others, that the Supreme Court of Canada
referred when considering the meaning of the term in
v Attorney General of Canada
 2 RCS 689 at 739:
meaning assigned to "particular social group" in the Act should take into
account the general underlying themes of the defence of human rights and
anti-discrimination that form the basis for the international refugee
protection initiative. The tests proposed in
supra, Cheung, supra, and Matter of Acosta, supra,
provide a good working rule to achieve this result. They identify three
defined by an innate or unchangeable characteristic;
whose members voluntarily associate for reasons so fundamental to their human
dignity that they should not be forced to forsake the association; and
associated by a former voluntary status, unalterable due to its historical
first category would embrace individuals fearing persecution on such bases as
gender, linguistic background and sexual orientation, while the second would
encompass, for example, human rights activists. The third branch is included
more because of historical intentions, although it is also relevant to the
anti-discrimination influences, in that one's past is an immutable part of the
meaning of the term "a particular social group" has recently been considered by
this court in
of State for the Home Department v Savchenkov
Imm. AR 28. Mr. Lewis, who broadly accepted the
approach to construction of the phrase, conceded that this decision presented
him with a difficulty, which he sought to meet by the submission that the
damaging passages were obiter dicta.
was a case in which the issue was whether a Russian security guard, threatened
with assault and death by gangsters in his native country, had a good claim for
political asylum. One of the matters which it was necessary for him to
establish was that he was a member of a particular social group. The tribunal,
reversing the adjudicator, found that he was, and that the group, constituted
those whom the "mafia" approached and who refused their demands - this was said
to give them a recognizable social attribute. An alternative contention, which
the tribunal had rejected, was that the relevant group consisted of the body
of security guards who had been specially trained to provide security for
hotels in St. Petersburg as a kind of organized force.
the leading judgment McCowan L.J. said (33):
Pannick appearing for the Secretary of State said that article 1 (A) 2 of the
convention should be interpreted by reference to the following four principles.
Before I read them it is well to bear in mind when reading them that Mr. Blake
for the respondent specifically said - to make it clear - that he does not
quarrel with any one of those four. They are:
convention does not entitle a person to asylum whenever he fears persecution if
returned to his own country. Had the Convention so intended, it could and
would have said so. Instead, asylum was confined to those who could show a
well-founded fear of persecution on one of a number of specific grounds, set
out in Article 1 A (2);
give the phrase "membership of a particular social group" too broad an
interpretation would conflict with the object identified in (1) above;
other "Convention reasons" (race, religion, nationality and political opinion)
reflect a civil or political status. "Membership of a particular social group"
should be interpreted
concept of a "particular social group" must have been intended to apply to
social groups which exist independently of persecution. Otherwise the limited
scope of the Convention would be defeated: there would be a social group, and
so a right to asylum, whenever a number of persons fear persecution for a
reason common to them.
and citing part of the passage that I have cited, the Lord Justice said (36):
cannot see on what basis it can be said that the group to which the Immigration
Appeal Tribunal see the respondent as belonging is one whose members voluntary
associate, or one associated by a former voluntary status. There is here no
evidence that the respondent ever associated with other members of the alleged
group. That group as far as we know has not associated, they do not meet, they
do not know of the existence of the other alleged members. Those threatened by
the mafia in Russia, no doubt, have a multitude of different interests and
characteristics. I am comforted in that reaction by a decision of the Federal
Court of Australia. That is the case of
v Minister for Immigration, Local Government and Ethnic Affairs
 106 ALR 367. We have in the bundle a copy of the report from the
Australian Law Reports, the decision being one on 2nd March 1992. The only
relevant facts are these:
M applied for refugee status claiming that he had persecution in Bolivia by
virtue of his being "a member of a particular social group", that being a group
of persons who not only have provided information to the police but who have
been prepared to give evidence, and have given evidence, in support of the
was held, dismissing the application:
concept of "membership of a particular social group" involves the idea of a
group of people who can demonstrate cohesiveness and homogeneity. Here, there
was no suggestion that M was other than an individual who has informed on a
member of a particular family and no suggestion that he is a member of a group
of people who share similar characteristics.
dealing with the cross-appeal which sought to revive the alternative argument,
McCowan L.J. said:
to the cross-appeal, this avers that the respondent is at risk of persecution
because of his employment as a security guard. The adjudicator was against him
on that point. The Tribunal thought his advocate before them wise not to put
much weight on it. In my judgment, it cannot stand up to analysis. The
respondent does not have a fear of persecution by the mafia because he is a
security guard but because he refused their advances. Had he welcomed them he
would not have been persecuted.
L.J. and Pill L.J. delivered concurring judgments.
That the third of the four stated principles agreed between counsel has been
characterized by Morritt L.J. in
v Secretary of State for the Home Department
(unreported, 18th December 1996) as not forming part of the ratio of the case.
Morritt L.J. continued (transcript page 9):
course a particular social group will often have a particular civil or
political status but I do not think that that is a necessary condition for
making the social group particular for the purposes of the definition. Such a
requirement is not to be found in the express terms of the definition. Nor, in
my view, is such a requirement necessarily to be implied even if, as was common
ground, that which makes the social group particular must be of the same nature
as the classical Convention reasons of race, religion, nationality or political
opinion. To add the requirement of some distinguishing civil or political
status would narrow the types of persecuted minority capable of being
recognized as entitled to asylum without, in my view, sufficient justification.
L.J., on the other hand, was prepared to accept principle 3. He said
(transcript page 7):
it [the third agreed principle] may not strictly be the product of the ejusdem
generis rule it is in my judgment a sensible and necessary addition in order to
determine whether a social group is particular for the purposes of Article 1.
his judgment in the same case Roch L.J. said (page 12):
would subscribe to the third principle identified by counsel in the case of
v Secretary of State for the Home Department
 1 AR 28 according to which the phrase "social group" should be
interpreted, provided that it is accepted that there may be other "Convention
reasons" in addition to race, religion, nationality and political opinion which
can clothe a social group with "a civil or political status" which may emerge
in the future by the application of the "ejusdem generis" rule.
I have correctly understood this paragraph, the view of Roch L.J. about
principle (3) more nearly accords with that of Morritt L.J. than with that of
Thorpe L.J. What can, however, be said with confidence is that their judgments
at least raise a question as to the binding effect of, or possibly the need to
amend or qualify, principle (3) in the quoted passage from
Laws J. in
parte de Melo
(unreported 19th July 1996) expressed the view that the ratio of
"is found in the proposition that the social group asserted must exist
independently of the fact of persecution".
McCowan L.J.'s references to "voluntary association" echo the second, but not
the first or the third of the groups categorized in
these circumstances I am prepared, for the purposes of the decision in the
instant case, to treat
as supporting a construction consistent with rather than more restrictive than
that favoured by Professor Hathaway based on
This accords with Mr. Lewis's submissions; he accepts that the words have to
be construed ejusdem generis with the other four grounds, but not in the
restricted sense accepted in counsel's proposition three in
He argues that all Yugoslav draft-evaders do constitute a particular social
group. It is not necessary that there should have been any voluntary
association between its members, any fraternization or cohesion. By their
voluntary acts they have the status of draft-evaders; they have a common
characteristic, a shared experience. It is immutable, part of their history
which they cannot change. It matters not, in these circumstances, whether they
are draft-evaders by reason of conscientious objection or for reasons of
cannot accept these arguments, which seem to me to involve a wholly
unjustifiable extension of the meaning of the phrase "particular social
group". In the passage in
on which Mr. Lewis relied the words "innate or unchangeable characteristic"
and (on which he particularly relied) "associated by a former voluntary status,
unalterable due to its historical permanence" are altogether inapt to describe
the tenuous connection that exists between all the different categories of
draft-evaders. Moreover, I accept Mr. Pannick's submission that the group, if
there were one, could only be those with conscientious objections.
should record that in any event it seems to me impossible sensibly to assert
that the alleged social group consisted of draft-evaders: if it existed at all
it must have comprised all failed asylum-seekers; and they could not
conceivably be said to constitute such a group.
Pannick also submitted that it was at least questionable whether it was
established that the appellants, had they not evaded call up, would have been
required to serve in an internationally condemned war. In support of this
contention he relied on passages in the tribunal decisions - page 9 in the case
and pages 6 and 13 in the case of
Having considered these passages, which in the light of my earlier conclusions
I do not consider I need cite, I am persuaded of the correctness of this
a current well founded fear necessary in a case of a person unable to return?
this issue, as I have already said, I agree with the conclusion of Simon Brown
L.J. and I gratefully adopt his reasoning.
Outside country of nationality for Convention reason
fourth question only arises in the context of the following assumptions, namely
(1) that the third question has been answered favourably to the appellants (as
I, in agreement with Simon Brown L.J., have held that it should be) and (2)
that the second question, insofar as it asks whether the appellants as
draft-evaders are members of a particular social group or are to have
attributed to them particular political views has also been answered in their
favour (as I have held that it should not be). Accordingly, on the view I take
of the case it is academic; but in case I am wrong in relation to the second
question I shall consider it. I must, to do so, assume that historically the
appellants, by reason of being draft-evaders, were at risk of prosecution and
that prosecution would have amounted to persecution for a convention reason.
seems to me (as indeed I have earlier indicated) that the findings of the
adjudicators and the tribunals on credit are fatal to the applicants on this
question. If one asks whether, even at the time when the appellants were at
risk of prosecution, fear of prosecution or of being made to fight against
their fellow countrymen was the reason or one of the reasons for their being
out of their country, the answer in the case of both appellants is that on the
basis of the adjudicators' findings as to credit, accepted in each case by the
tribunals, they were not. I cannot accept as realistic Mr. Lewis's submission
that this appeal should succeed on the basis that the tribunals did not
consider the question of historical well-founded fear because it seems to me
implicit in the findings that the adjudicators made and the tribunals accepted
on the applicants' credibility that at no time did they genuinely hold any such
have had the great advantage of reading in draft the judgments of my lords,
Simon Brown LJ and Hutchison LJ, on these four appeals. I am in complete
agreement with their conclusions and, save in one respect, with their
reasoning. With some diffidence I wish to record that I would accept Mr
Pannick’s submissions on issue one.
his exposition of the evolution of the convention Mr Blake showed how it passed
from revision by the General Assembly at its Fifth Session to consideration by
a Conference of Experts. A commentary on the history, contents and
interpretation of the Convention written by Nehemia Robinson and published in
1953 by the Institute of Jewish Affairs, New York contained a section on
Article 1 and the definition of the term refugee. The first paragraph of Mr
Robinson’s contemporaneous commentary is in the following terms:
was pointed out at the Conference that Article 1 was not drafted very properly.
First, its heading is too narrow; it deals not only with the definition of a
‘refugee’ but also with the exclusion grounds, and the geographical
scope of application. Second, the sequence of the paragraphs is not very
logical (for instance, para (6) would logically belong to the end). Third,
three separate sections (d, e and f) beginning with the same words ‘This
Convention shall not apply ...’ were drafted instead of being combined
into one. Fourth the texts contain expressions about which even Members of the
Conference were not sure what they actually meant. There are further
obscurities dealt with below. These deficiencies were due mainly to the
shortness of the time available and the reluctance of several delegations to
change a text which had been adopted by the General Assembly.”
that was the contemporary view of the obscurity of the text it is not
surprising that its interpretation 45 years later continues to perplex even
specialist and skilled interpreters.
Pannick drew attention to this passage in introducing his written submissions.
Having heard Mr Blake’s argument on issue one he drafted a 14 page
response in which he set out his submissions on the content of the Convention,
the odd consequences to which Mr Blake’s submission leads, and the
absence both of judicial authority and of any clear statement in any other
material before the court to support Mr Blake’s submission. This was an
attractively clear and comprehensive presentation of the respondent’s
case on issue one. The only distinct flaw that I could perceive lay in the
introduction of Article 33(1) as a limitation to the interpretation of Article
1A. This flaw is fully exposed in the judgment of my lord, Simon Brown LJ.
in the end I accept Mr Pannick’s submission that:
terms of Article 1 are sufficiently obscure to allow a number of plausible
interpretations to be advanced.
the round the interpretation for which he contends is as permissible as any
construction has the virtue of simplicity and ease of application. If the
appellant’s construction prevails the application of the Convention in
individual cases may be rendered complex and uncertain in those cases from
States, such as Somalia and Rwanda, whose recent history has been so volatile.
perhaps over influenced by pragmatic considerations, I would accept Mr
Pannick’s submissions on the first issue. However that acceptance would
not alter the outcome of any of these appeals.
allowed in the cases Adan & Nooh; Leave to appeal to House of Lords
refused. Appeals refused in cases of Lazarevic & Radivojevic; leave to
appeal to appeal to House of Lords refused; legal aid taxation.