R (Hoxha) v Special Adjudicator (R (B) v Immigration Appeal Tribunal)

Article 1C(5) of the 1951 Convention Relating to the Status of Refugees applies only after refugee status has been formally recognised by a State or other competent body. A historical concession that a person previously fled because of a well-founded fear is not formal recognition. The proviso to Article 1C(5) remains confined to statutory refugees under Article 1A(1). Humanitarian purpose, recommendations and limited State practice cannot displace that express restriction. Subsequent practice can alter treaty meaning only where it establishes the agreement of the parties. Article 1A(2) requires a current well-founded fear of persecution. The continuing effects of past persecution, without a current fear of persecutory acts, do not satisfy that requirement.

These conjoined appeals concerned two ethnic Albanian applicants from Kosovo. Their accounts of past persecution were accepted, and it was accepted that they had previously been refugees or had left Kosovo because of a well-founded fear. Their asylum claims nevertheless failed because conditions in Kosovo had changed and they lacked a current well-founded fear of persecution.

Hoxha challenged Jackson J’s refusal of judicial review. B challenged Turner J’s dismissal of judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The central questions were whether Article 1C(5) required prior formal recognition as a refugee, whether its proviso extended beyond statutory refugees, and whether continuing consequences of past persecution could amount to current persecution.

Disposition. The court dismissed both appeals. Each appellant failed to establish a basis for applying Article 1C(5), and the subsidiary argument under Article 1A(2) also failed.

1. Formal recognition. Article 1C(5) concerns a person whose refugee status has already been determined. The phrase recognised as a refugee therefore requires a decision by a State or other competent body, whether through formal or informal procedures. A person may factually satisfy the refugee definition before recognition, but that does not engage the cessation clause. Khaboka v Secretary of State for the Home Department [1993] Imm A.R. 484 supported the distinction between being a refugee and being recognised as one. The Secretary of State’s concessions merely accepted historical facts and did not amount to recognition.
2. Scope of the proviso. Treaty interpretation follows the ordinary meaning of the text in context and in light of object and purpose under the Vienna Convention on the Law of Treaties, 1969. Humanitarian aims cannot justify disregarding an express limitation. Article 31(3)(b) requires subsequent practice to establish agreement among the parties. The evidence of minority State practice, recommendations and proposals did not meet that threshold. The failure of the 1967 Protocol to amend the proviso was also significant. The proviso therefore remained confined to statutory refugees under Article 1A(1).
3. Current persecution. Article 1A(2) requires a current well-founded fear of persecution. Past persecution and its continuing psychological or social consequences do not constitute current persecution where the feared future events are not themselves persecutory acts. Horvath v Home Secretary [2001] 1 AC 489 supported the requirement of sufficiently grave violence or ill-treatment. Svazas v Secretary of State for the Home Department [2002] EWCA Civ 74 was distinguishable because it concerned a subjective fear of future persecution despite available State protection.
4. Order. Both appeals were dismissed. The respondents were awarded their costs, to be assessed by a costs judge pursuant to the Community Legal Services Order 2000.

• Court of Appeal: Both appeals dismissed in [2002] EWCA Civ 1403.
• High Court, Administrative Court: Jackson J rejected Hoxha’s application for judicial review. Turner J dismissed B’s challenge on 15 January 2002.
• Immigration Appeal Tribunal: Leave to appeal in B’s case was refused on 6 March 2001.
• Special adjudicators: The asylum appeals of both appellants were dismissed after their past persecution or previous well-founded fears were accepted, but current fear was not.