Law Report: Refugee's fear of persecution need not be current

LAW REPORT: 12 March 1997

Adan and others v Secretary of State for the Home Department; Court of Appeal (Lord Justice Simon Brown, Lord Justice Hutchison, Lord Justice Thorpe) 13 February 1997

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

Suggested Topics
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

HR Manager - London - £40,000 + bonus

£32000 - £40000 per annum + bonus: Ashdown Group: HR Manager (Generalist) -Old...

Talent Manager / HR Manager - central London - £50,000

£45000 - £50000 per annum: Ashdown Group: Talent / Learning & Development Mana...

HR Manager (standalone) - London

Up to £40,000: Ashdown Group: Standalone HR Manager role for an SME business b...

HR Analyst - Banking - Bristol - £350-£400

£350 - £400 per day: Orgtel: HR Analyst - Banking - Bristol - £350 - £400 per ...

Day In a Page

Ukraine crisis: The phoney war is over as Russian troops and armour pour across the border

The phoney war is over

Russian troops and armour pour into Ukraine
Potatoes could be off the menu as crop pests threaten UK

Potatoes could be off the menu as crop pests threaten UK

The world’s entire food system is under attack - and Britain is most at risk, according to a new study
Gangnam smile: why the Chinese are flocking to South Korea to buy a new face

Gangnam smile: why the Chinese are flocking to South Korea to buy a new face

Seoul's plastic surgery industry is booming thanks to the popularity of the K-Pop look
From Mozart to Orson Welles: Creative geniuses who peaked too soon

Creative geniuses who peaked too soon

After the death of Sandy Wilson, 90, who wrote his only hit musical in his twenties, John Walsh wonders what it's like to peak too soon and go on to live a life more ordinary
Caught in the crossfire of a cyber Cold War

Caught in the crossfire of a cyber Cold War

Fears are mounting that Vladimir Putin has instructed hackers to target banks like JP Morgan
Salomé's feminine wiles have inspired writers, painters and musicians for 2,000 years

Salomé: A head for seduction

Salomé's feminine wiles have inspired writers, painters and musicians for 2,000 years. Now audiences can meet the Biblical femme fatale in two new stage and screen projects
From Bram Stoker to Stanley Kubrick, the British Library's latest exhibition celebrates all things Gothic

British Library celebrates all things Gothic

Forthcoming exhibition Terror and Wonder: The Gothic Imagination will be the UK's largest ever celebration of Gothic literature
The Hard Rock Café's owners are embroiled in a bitter legal dispute - but is the restaurant chain worth fighting for?

Is the Hard Rock Café worth fighting for?

The restaurant chain's owners are currently embroiled in a bitter legal dispute
Caribbean cuisine is becoming increasingly popular in the UK ... and there's more to it than jerk chicken at carnival

In search of Caribbean soul food

Caribbean cuisine is becoming increasingly popular in the UK ... and there's more to it than jerk chicken at carnival
11 best face powders

11 best face powders

Sweep away shiny skin with our pick of the best pressed and loose powder bases
England vs Norway: Roy Hodgson's hands tied by exploding top flight

Roy Hodgson's hands tied by exploding top flight

Lack of Englishmen at leading Premier League clubs leaves manager hamstrung
Angel Di Maria and Cristiano Ronaldo: A tale of two Manchester United No 7s

Di Maria and Ronaldo: A tale of two Manchester United No 7s

They both inherited the iconic shirt at Old Trafford, but the £59.7m new boy is joining a club in a very different state
Israel-Gaza conflict: No victory for Israel despite weeks of death and devastation

Robert Fisk: No victory for Israel despite weeks of devastation

Palestinians have won: they are still in Gaza, and Hamas is still there
Mary Beard writes character reference for Twitter troll who called her a 'slut'

Unlikely friends: Mary Beard and the troll who called her a ‘filthy old slut’

The Cambridge University classicist even wrote the student a character reference
America’s new apartheid: Prosperous white districts are choosing to break away from black cities and go it alone

America’s new apartheid

Prosperous white districts are choosing to break away from black cities and go it alone