England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		15 January 2003

1. MR JUSTICE MAURICE KAY: This case is listed before me today as the substantive hearing of an application for judicial review. The claimant is a young man from Kosovo who came to this country in June 1999. He had an asylum claim and a claim under the Human Rights Convention. His claim did not find favour with the Secretary of State. An appeal was dismissed under both headings by an adjudicator on 20 September 2001. On 1 November 2001 the Immigration Appeal Tribunal refused the claimant leave to appeal. It is that refusal which is the subject of the present challenge.
2. The claimant had the misfortune to lose his mother when he was 7 years old, although that was nothing to do with the circumstances of civil strife in his home country. In January 1998 the claimant's father went from his home village to Pristina and in the course of that trip his father was shot dead in what the adjudicator described as "mysterious circumstances". The adjudicator found that the only problem which the claimant had personally experienced during the war in Kosovo was that on July 1998 his home village had been raided by the Serbian authorities, who were looking for solders of the KLA. The determination states in paragraph 17:

"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.

3. His case before this court turns upon the construction of Article 1C(5) of the Geneva Convention, which provides that its protection shall cease to apply to any person falling under the terms of section A if:

"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.

4. The claimant was given permission to proceed with this application for judicial review on 22 March 2002. The substantive hearing was first fixed for 31 July 2002. However, it became known that a day or two before 31 July 2002 the Court of Appeal was to hear the conjoined appeals in R (Hoxha and B) v An Adjudicator and The IAT [2002] EWCA Civ 1403. Those cases were concerned with this very legal point. In the event, the hearing of this case, which had been fixed for 31 July, was adjourned by agreement pending the outcome of the case in the Court of Appeal.
5. The decision of the Court of Appeal was against the interests of the claimant. Mr Mullins helpfully summarises that unanimous decision in the following three propositions:

"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.

6. The position today, therefore, is this: Mr Mullins accepts that the decision of the Court of Appeal in Hoxha and B presently stands in the way of any prospect of success that he might have in this court, but he invites me to adjourn the matter until the House of Lords has considered the petition. On behalf of the Secretary of State, Miss Giovannetti invites me to dismiss the present case today. This kind of circumstance arises with some frequency in the Administrative Court, particularly, but not only, in relation to immigration and asylum cases. One is often requested to stand-out cases which may be affected by pending appeals in higher courts. It is a scenario with which we are all familiar.
7. If it were the case that the Court of Appeal or the House of Lords had granted leave to appeal, there is little doubt that the Secretary of State would have agreed to the adjournment that is sought. The position adopted by Miss Giovannetti, however, is that that type of adjournment should only be granted if two criteria are satisfied: (1) that there is uncertainty as to the relevant law, which is likely to be resolved by a forthcoming decision of the higher court; and (2) that the facts of the case which it is sought to adjourn are such that the decision which is awaited is likely to be determinative or substantially affect the outcome of the present case. In my judgment, those are sensible criteria for this court to adopt and I propose to adopt them.
8. The main question then becomes whether it can properly be said that there is today uncertainty as to the relevant law. This is not a case in which the decision of the Court of Appeal manifested any division of opinion amongst its members (indeed, there was a single judgment of the Court), and the two appeals were from judgments which were to like effect. In other words, the five judges who have considered the point, including the three in the Court of Appeal, have rejected the arguments and, as I have said, those in the Court of Appeal refused leave to appeal. It seems to me that, in the present circumstances, it cannot properly be said that there is today uncertainty as to the relevant law.
9. I do not accept the proposition, if such it is, that simply because public funding has been provided for a particular case or application, even if it has been granted on the basis of advice from leading counsel, that that is such that can be said to manifest uncertainty as to the relevant law. To accept that would be for the court to defer to an unseen opinion of counsel as to the merits of the decision of the Court of Appeal.
10. I have already referred to the unequivocal unanimity of the law as it has been pronounced. I have been concerned to explore with counsel whether there is any contrary interpretation of Article 1C(5) in other jurisdictions. I am told that that matter was canvassed before the Court of Appeal and it was ascertained that, whereas there are some states which adopt the principle contended for by Mr Mullins within their domestic legislation, none does so as an interpretation of Article 1C(5) of the Refugee Convention.
11. Applying my own impression of the contention advanced on behalf of the claimant, I am bound to say that, in my judgment and with respect, the decisions reached by Turner J, Jackson J and the Court of Appeal are correct and the contrary appears to me to be unarguable, having considered the wording of the Convention. In those circumstances, I find myself unable to say that there is, at present, uncertainty as to the relevant law.
12. The question of the facts of the case might have been more difficult. Miss Giovannetti seeks to distinguish this case on the basis that it is not as strong a case factually as those of Hoxha and B. Whilst that may be so, it seems to me that, if the principle for which Mr Mullins contends existed, then the claimant's case would call for consideration by reference to it. It is a matter of degree and, even though his merits may be less than those of Hoxha and B, he, nevertheless, on the findings of the adjudicator did suffer grave experiences in Kosovo before his departure. So, I do not decide a refusal of an adjournment on the basis of the facts.
13. I am, however, going to refuse to adjourn the case because, in my judgment, there is no present uncertainty as to the relevant law. That being the case, and the decision of the Court of Appeal being conclusive against the claimant, it seems to me that the appropriate course is to dismiss this application for judicial review.
14. MR MULLINS: My Lord, I ought just to draw your Lordship's attention to what is said in the judgment about the practice of other states, where, in fact, contrary, I think, to what was indicated by my learned friend:

"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?

15. MR JUSTICE MAURICE KAY: Yes, certainly.
16. MR MULLINS: It is paragraph 40.
17. MR JUSTICE MAURICE KAY: Yes, certainly. Is this the only copy in court?
18. MR MULLINS: It appears so.
19. MR JUSTICE MAURICE KAY: What is the "Commission des recours des refugies"?
20. MR MULLINS: It is the equivalent of the Immigration Appeal Tribunal.
21. MR JUSTICE MAURICE KAY: When it says it "takes the view", does that mean that that is a decision or ... ?
22. MR MULLINS: My Lord, I cannot take that any further, I am afraid.
23. MISS GIOVANNETTI: I would not put it -- I do not have a transcript, which is not very sensible, but I think there was evidence that the appellant authority equivalent -- it may also have been in New Zealand -- adopted that construction. I do not think there are any decisions of the courts in any signatory states saying that that was the right construction.
24. MR MULLINS: The issue is whether or not the rulings of the lower courts were overruled by the higher courts; there is no indication that they were.
25. MR JUSTICE MAURICE KAY: Just pause for a moment. I would just like to read ahead a little.
26. The judgment goes on to say what has to be established, if the practices of other states are to have a particular impact:

" ... 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."

Paragraph 49:

" ... the evidence ... does not establish a clear and widespread state practice."

27. MR MULLINS: Your Lordship will be aware of what Professor Goodwin-Gill said.
28. MR JUSTICE MAURICE KAY: Yes. In view of what you say, it seems that the way in which I have put it in the judgment initially, on the basis of what Miss Giovannetti had submitted which had not then been contradicted, may have put it slightly too high. But, looking at the passages in the judgment between paragraphs 40 and 49, that does not divert me from the view that I was expressing as to what ought to happen in the present case.
29. It was, in fact, a single judgment of the court given by Keene LJ. Can I hand that back to you.
30. MR MULLINS: I could not see, at the end, the other two judges' comments agreeing or disagreeing.
31. MR JUSTICE MAURICE KAY: No, it says at the beginning:

"This is the judgment of the court."

When that happens it means that the other two judges are already adopting it.

32. MR MULLINS: My Lord, the claimant is subject to funding by the Legal Services Commission; may I ask for detailed assessment?
33. MR JUSTICE MAURICE KAY: Yes, certainly.
34. MR MULLINS: Secondly, may I ask for leave to appeal?
35. MR JUSTICE MAURICE KAY: You may ask.
36. MR MULLINS: I do.
37. MR JUSTICE MAURICE KAY: I am not going to grant you leave to appeal. You will have to take that elsewhere, if you wish to. It seems to me that there is no prospect of success and no other compelling reason.
38. Thank you both very much.
39. MISS GIOVANNETTI: I do apologise. I came armed with everything except what I really needed, I think, which was the Court of Appeal transcript.
40. Would your Lordship mind directing an expedited transcript of our application today?
41. MR JUSTICE MAURICE KAY: Yes, certainly.
42. MISS GIOVANNETTI: Thank you very much.