QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF RAMA||(CLAIMANT)|
|IMMIGRATION APPEAL TRIBUNAL||(DEFENDANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(INTERESTED PARTY)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS LISA GIOVANNETTI (instructed by Treasury Solicitor) appeared on behalf of the INTERESTED PARTY
Wednesday, 15 January 2003
Crown Copyright ©
"Because the [claimant] and his aunt realised the problems and what had happened in other villages within Kosovo they fled before the police came to their house. They sought shelter in the mountains however later during the day in the evening when things seemed quieter they returned to the village. They were confronted with a scene of devastation, many houses were burnt or demolished and bodies were strewn everywhere. Their own house had not been burnt but was half demolished."
It was those events which provoked the claimant's departure from Kosovo and his subsequent arrival and applications in this country.
"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;
"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 former habitual residence."
In the UNHCR Handbook at paragraph 136 it is stated:
"The exception, however, reflects a more general humanitarian principle, which could also be applied to refugees other than statutory refugees. It is frequently recognised 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."
The case for the claimant depends upon that principle expounded in the UNHCR Handbook being found to exist in English law.
"i Article 1C(5) deals with the situation where someone has already been held to have refugee status but conditions in his country of nationality have since changed;
"ii Paragraph 136 of the UNHCR Handbook does not establish a legal obligation that the exception in Article 1C(5) could be applied to refugees other than statutory refugees;
"iii A current well-founded fear of persecution does not include the continuing effects of past acts of persecution."
The Court of Appeal, comprising the Master of the Rolls, Chadwick LJ and Keene LJ, were unanimous in dismissing the appeals from the earlier judgments of Turner J and Jackson J. They also refused permission to appeal to the House of Lords. However Hoxha and B are now petitioning the House of Lords for leave to appeal. I am told that that petition was presented probably in early to mid-December and that it is publicly funded by the Legal Services Commission who are relying on the advice of leading counsel. Copies of the petitions have been placed before me.
"The French Commission des recours des refugies takes the view that Article 1C(5)'s proviso is now applicable to all Convention refugees, and so does the equivalent body in Belgium."
My Lord, there is, therefore, law which other countries' courts have recognised, independent of legislation. May I pass it up to your Lordship?
" ... very convincing evidence of a widespread and general practice of the international community to establish that that restriction is no longer to be applied as a matter of international law."
" ... the evidence ... does not establish a clear and widespread state practice."
"This is the judgment of the court."
When that happens it means that the other two judges are already adopting it.