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)

Article 1A(2) of the Geneva Convention requires a present or prospective well-founded fear of persecution when refugee status is determined. A past fear alone is insufficient, although it may provide important evidence of current fear. The claimant must also satisfy the separate protection requirement.

Persecution may affect a group without any member being individually singled out. During an ongoing civil war, however, exposure to the ordinary and indiscriminate risks of conflict does not establish persecution. The claimant or group must face a differential risk, for a Convention reason, over and above the ordinary dangers of the war.

Hassan Hussein Adan fled Somalia because of a well-founded fear of persecution by its former government. After the regime changed, he no longer feared persecution from that source, but faced danger arising from clan warfare. He and his family had exceptional leave to remain in the United Kingdom, but he sought the additional benefits of refugee status under article 1A(2) of the Geneva Convention and the 1967 Protocol.

The Special Adjudicator held that the danger from opposing clans qualified him for refugee status. The Immigration Appeal Tribunal disagreed because the conflict exposed all sections of society to indiscriminate risk. The Court of Appeal held, by a majority, that his historic fear could satisfy article 1A(2), and unanimously accepted his civil-war argument.

The Secretary of State appealed. The issues were whether article 1A(2) required a current well-founded fear and whether ordinary clan-based risks during civil war constituted persecution.

Disposition. The House unanimously allowed the Secretary of State’s appeal. Lord Lloyd of Berwick delivered the leading speech. Lord Goff of Chieveley, Lord Nolan and Lord Hope of Craighead agreed with his reasons. Lord Slynn of Hadley reached the same conclusions in a separate speech.

1. Current fear. Per Lord Lloyd and Lord Slynn, article 1A(2) of the Geneva Convention requires a well-founded fear of persecution existing when refugee status is determined. The provision is expressed in the present tense and concerns present or prospective risk. Historic fear is insufficient by itself, although it may be important evidence of current fear.
2. Fear and protection. Per Lord Lloyd, a national must satisfy two separate requirements: the fear test and the protection test. The protection requirement is not redundant because article 1A(2) includes persecution by non-state factions. A person threatened by such factions does not qualify if the home state can provide protection. Article 1C(5) did not directly determine the issue, but its contrast with article 1A(1) supported a current-fear construction.
3. Groups and civil war. The Convention protects groups as well as individuals. A claimant need not prove that he was personally singled out where a group is persecuted for a Convention reason. The reasoning in Salibian v Canada (Minister of Employment and Immigration) (1990) 3 F.C. 250 and Reg v Secretary of State for the Home Department, Ex parte Jeyakumaran [1994] Imm AR 45 was approved on that point.
4. Differential impact. Per Lord Lloyd and Lord Slynn, ordinary exposure to death, injury or loss of liberty during an ongoing civil war does not establish persecution. The claimant or group must face persecution for a Convention reason over and above the ordinary risks of the conflict. This requires a differential impact, but does not reintroduce a requirement that an individual member of a differentially persecuted group be singled out. Once the war ends and order is restored, oppression of the defeated group may establish Convention persecution.
5. Application. The Immigration Appeal Tribunal was entitled to find that the fighting in northern Somalia was indiscriminate and that members of Adan’s clan and sub-clan faced no greater risk than other sections of society. He was therefore not entitled to refugee status. His exceptional leave to remain was unaffected.

1. House of Lords: Unanimously allowed the Secretary of State’s appeal, rejected both grounds on which refugee status had been claimed, and held that the Immigration Appeal Tribunal’s conclusion was justified.
2. Court of Appeal: Simon Brown LJ and Hutchison LJ accepted that historic fear could satisfy article 1A(2), with Thorpe LJ dissenting. The court unanimously accepted that the clan-based danger amounted to persecution.
3. Immigration Appeal Tribunal: Held that Adan was not entitled to refugee status because the civil-war risks were indiscriminate and affected all sections of society.
4. Special Adjudicator: Held that Adan qualified for refugee status because, although his fear of the former government had ceased, he faced persecution from opposing clan forces.