Secretary of State for the Home Department, Ex parte Adan, R v.

The House of Lords held that Article 1A(2) of the 1951 Convention relating to the Status of Refugees requires a current well-founded fear of persecution for Convention reasons at the time the claim is determined; an historic fear alone is insufficient. The present-tense language of Article 1A(2) and the linked protection limb support a forward‑looking test. The court also held that generalized risks arising from a continuing civil war do not, by themselves, amount to persecution for Convention purposes: an asylum-seeker caught up in clan-based civil war must show a differential impact or specific targeting for a Convention reason beyond the ordinary risks of the conflict. Applying those principles, the Immigration Appeal Tribunal was entitled to find that the respondent was not a refugee.

The respondent, a Somali national, fled Somalia in 1988 and was refused asylum on arrival in the United Kingdom but granted exceptional leave to remain. He sought recognition as a refugee under Article 1A(2) of the 1951 Convention. The Special Adjudicator found a current well-founded fear from clan-based forces and granted refugee status; the Immigration Appeal Tribunal disagreed, finding the risk was indistinctive of the general risks of civil war. The Court of Appeal by majority (Simon Brown L.J. and Hutchison L.J., Thorpe L.J. dissenting) allowed the respondent's appeal. The Secretary of State appealed to the House of Lords.

The Lords addressed two issues: (i) whether a claimant must show a current well‑founded fear of persecution under Article 1A(2) or whether an historic fear that caused flight suffices; and (ii) whether clan-based civil war can give rise to persecution where the claimant is at no greater risk than others in the conflict. The court analysed the present‑tense language of Article 1A(2), the protection limb, Article 1C(5), academic commentary and state practice. It concluded that Article 1A(2) requires a present or continuing well‑founded fear of persecution; historic fear may be evidence but is not enough. On the second issue the court concluded that victims of generalised violence in an ongoing civil war are not normally Convention refugees unless they can show differential victimisation or specific targeting for a Convention reason above the ordinary hazards of conflict. Applying those principles to the facts, the House of Lords allowed the Secretary of State's appeal and held that the respondent was not entitled to refugee status, while noting exceptional leave to remain had been granted on humanitarian grounds.

Nature of the claim: claim for recognition as a refugee and associated benefits under the 1951 Convention and 1967 Protocol; relief sought was grant of refugee status. Issues framed: (i) construction of Article 1A(2) (current vs historic fear); (ii) whether clan-based civil war amounts to persecution absent differential impact. Reasoning: textual construction of Article 1A(2) as a present-tense, forward-looking test; Article 1C(5) and international guidance support the approach; civil war risks require evidence of differential persecution for Convention reasons to qualify.

The appeal by the Secretary of State was allowed. The House of Lords held that Article 1A(2) requires a current well-founded fear of persecution at the time the claim is decided and that general risks arising from an ongoing clan-based civil war do not constitute persecution under the Convention unless the claimant shows a differential impact or specific targeting for a Convention reason. The Immigration Appeal Tribunal was entitled to refuse refugee status to the respondent.

Special Adjudicator: granted refugee status. Immigration Appeal Tribunal: disagreed and refused refugee status. Court of Appeal: majority allowed the respondent (Simon Brown L.J. and Hutchison L.J.), Thorpe L.J. dissenting. House of Lords: allowed the Secretary of State's appeal. (See final appeal [1998] UKHL 15.)