To qualify as a refugee for the purposes of article 1A(2) of the 1951 Convention Relating to the Status of Refugees and its 1961 Protocol, it was not necessary for the applicant to have a current well-founded fear of persecution if he were returned to his country of origin, so long as he had through such a fear of persecution initially fled his own country or remained abroad due to circumstances (such as a civil war) arising there during his absence and would currently be unable to avail himself of that country's protection if he were returned there.
The Court of Appeal (Lord Justice Thorpe dissenting on the above issue) allowed appeals against decisions of the Immigration Appeal Tribunal on 7 December 1995 and 22 March 1996 that the applicants Hassan Hussein Adan and Lool Isaak Nooh, both of whom had fled from ethnic conflict in Somalia, were not entitled to refugee status. At the same time the court dismissed appeals against the tribunal's decisions on 22 January 1996 and 7 May 1996 that Boban Lazarevic and Zoran Radivojevic, both Serbian draft-evaders who had fled from former Yugoslavia to avoid the fighting, and who were currently unable to return there, were not refugees.
Nicholas Blake QC and Raza Husain (Wilson & Co, Tottenham) for Adan and Nooh; Ian Lewis (Sutovic & Hartigan, Acton) for Lazarevic and Radivojevic; David Pannick QC and Mark Shaw (Treasury Solicitor) for the Home Secretary.
Lord Justice Simon Brown said the fundamental issue in these cases was whether, to be recognised as a refugee, it was 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 might sometimes suffice.
Article 1A(2), which could be broken down into a series of clauses as follows, a refugee was someone who:
1(a) Owing to well-founded fear of being persecuted for [a Convention reason, i.e. race, religion, nationality, membership of a particular social group or political opinion], is outside the country of his nationality, and (b)(i) is unable to avail himself of the protection of that country, or (ii) owing to such fear, is unwilling to avail himself of the protection of that country; or who
2(a) not having a nationality and being outside the country of his former habitual residence, (b)(i) is unable to return to it, or (ii) owing to a well-founded fear of being persecuted for [a Convention reason] is unwilling to return to it.
The strength of the Home Secretary's argument, that no one was entitled to refugee status unless at the time his claim was determined he was in present fear of persecution were he to be returned home, lay in the use of the phrase "is outside" in clause 1(a); its weakness lay in the difficulty in finding convincing reasons why the definition also included clause 1(b).
As a matter of language is seemed the phrase "is outside", although couched in the present tense, could sensible construed to have any one of three meanings. It could mean, as Mr Pannick submitted, "is outside" owing to a well-founded fear of persecution still current at the time the applicant's claim was being determined; 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, as Mr Blake submitted, it could mean has come to be outside (or being outside, not to return) owing to past persecution and still remained abroad on that account, in the sense that the causal link remained operative and had never been broken.
Though it might on occasion be difficult to decide whether the causal link under that third formulation remained intact, this was an area of decision-making where a broad-brush approach was generally required and on such an approach the problem was far from insoluble.
While anomalies might appear to arise on either view, Mr Blake's arguments were to be preferred. An asylum seeker unable to return to his country of origin might indeed be entitled to recognition as a refugee provided only that the fear or actuality of past persecution still played a causative part in his presence in the UK.
Paul Magrath, Barrister