Adan v Secretary of State for the Home Department (Lazarevic v Secretary of State for the Home Department, Nooh v Secretary of State for the Home Department, Radivojevic v Secretary of State for the Home Department)

A person who cannot return to the country of nationality may qualify as a refugee although the original fear of persecution is no longer current. The past persecution or fear must remain a cause of that person’s continued presence abroad.

General danger arising from civil war is insufficient. Refugee status may nevertheless arise where serious harm is linked to race, religion, nationality, membership of a particular social group or political opinion. The claimant need not show that another faction is exposed to less danger.

Arbitrary exclusion by a state can amount to persecution, but draft evaders and failed asylum seekers do not constitute particular social groups merely because they share that history.

Four appeals concerned two Somali and two Yugoslav asylum seekers whom the Secretary of State could not then return to their countries. Adan and Nooh had fled clan-based persecution in Somalia. Special adjudicators recognised them as refugees, but the Immigration Appeal Tribunal reversed those decisions. Lazarevic and Radivojevic claimed to have evaded military service, but the adjudicators and Tribunal rejected their claimed conscientious objections.

The common questions concerned the construction of article 1A(2) of the 1951 Convention relating to the Status of Refugees. The court considered whether an applicant unable to return required a current fear of persecution, when civil-war violence constituted Convention persecution, whether exclusion from one’s country could itself be persecution, and whether draft evaders or failed asylum seekers constituted a particular social group.

1. Disposition. The court allowed Adan’s and Nooh’s appeals and restored the special adjudicators’ determinations recognising them as refugees. It dismissed Lazarevic’s and Radivojevic’s appeals. Leave to appeal to the House of Lords was refused in all four cases.
2. Historical persecution. Simon Brown LJ, with Hutchison LJ agreeing, held that article 1A(2) of the 1951 Convention relating to the Status of Refugees does not invariably require a current fear of persecution where the applicant cannot return. Past persecution or fear may suffice if it continues to play a causative part in the applicant’s presence abroad. Ordinarily, the decision-maker should consider the temporal connection, any substantial delay and any intermediate opportunity to return which the applicant could reasonably have taken. Thorpe LJ dissented on this issue, preferring the simpler requirement of a current well-founded fear, but agreed that this difference did not affect the disposition of any appeal.
3. Article 33. Article 1 determines who is a refugee and therefore governs the scope of article 33, rather than article 33 restricting article 1A(2). Non-refoulement consequently protects every person qualifying as a refugee, including a person facing serious Convention persecution which does not specifically threaten life or freedom.
4. Civil war. Simon Brown LJ, with the other members of the court agreeing, held that general danger from civil war does not by itself establish refugee status. The relevant questions are whether the anticipated harm is sufficiently serious and whether it is connected to a Convention reason. A person targeted because of clan or another protected status need not prove that some opposing group is less endangered. Group-wide persecution may qualify, even where many people are similarly affected. Applying that principle, both Somali appellants faced serious clan-based harm without effective state protection.
5. Exclusion and social groups. Hutchison LJ, with Simon Brown and Thorpe LJJ agreeing, held that arbitrary exclusion of a citizen from the state, cutting the person off from the benefits and rights of nationality, can amount to persecution. It did not do so for these appellants, who wished to avoid return and therefore suffered no relevant harm from the refusal. Draft evaders and failed asylum seekers did not become particular social groups merely through that shared history.
6. Draft evasion. A genuine conscientious objection to participation in an internationally condemned conflict may express a political opinion, making punishment persecution. An opportunistic draft evader cannot rely on the character of the conflict where conscientious or political opposition did not motivate the evasion. The adverse credibility findings established that neither Yugoslav appellant had ever remained abroad because of a genuine Convention fear.

1. Court of Appeal: Adan’s and Nooh’s appeals were allowed and the favourable determinations of the special adjudicators were restored. Lazarevic’s and Radivojevic’s appeals were dismissed. Leave to appeal to the House of Lords was refused.
2. Immigration Appeal Tribunal: The Secretary of State’s appeals in Adan and Nooh were allowed, reversing the special adjudicators. The Tribunal dismissed Lazarevic’s and Radivojevic’s appeals from the special adjudicators.
3. Special adjudicators: Adan and Nooh succeeded in their appeals against refusal of refugee status. Lazarevic’s and Radivojevic’s appeals were dismissed following adverse findings about their credibility and asserted conscientious objections.