Hoxha & Anor v Secretary of State for the Home Department

The House of Lords held that, read in context, article 1A(2) of the 1951 Refugee Convention requires a present or prospective well‑founded fear of persecution and that the proviso to article 1C(5) (the "compelling reasons arising out of previous persecution" exception) is expressly limited to refugees falling under article 1A(1) (the statutory refugees). The court applied ordinary treaty interpretation (Vienna Convention article 31 approach), considered the drafting history and UNHCR materials, and concluded that state practice relied upon by the appellants is insufficiently uniform to displace the clear text of the proviso. The House therefore dismissed the appeals. The Lords also confirmed the two‑stage schema — determination under article 1A(2) and, separately, cessation under article 1C(5) — and reiterated that humanitarian or compassionate relief may be available by national discretion even where Convention status is not established.

This is an appeal from the Court of Appeal concerning whether the proviso to article 1C(5) of the 1951 Convention Relating to the Status of Refugees applies to persons who seek recognition under article 1A(2) (often called "non‑statutory" or Convention refugees arising from events after 1 January 1951). The appellants (Mr Hoxha and the B family), ethnic Albanians from Kosovo who suffered serious ill‑treatment before NATO intervention, claimed asylum in the United Kingdom and argued that compelling reasons arising from previous persecution prevented their status from ceasing or required them to be treated as refugees even though the circumstances in their home country had changed.

Procedural posture: appeals to the House of Lords from the Court of Appeal (reported [2003] 1 WLR 241; on appeal from [2002] EWCA Civ 1403). The appellants had lost in earlier hearings and in the Court of Appeal.

Relief sought: recognition as refugees under the Convention (with all attendant rights) despite the changed circumstances in their country of origin, by relying on the proviso to article 1C(5); alternatively, that continuing effects of past persecution suffice to establish refugee status under article 1A(2).

Issues framed:

• whether article 1A(2) requires a current well‑founded fear of persecution (or whether historic/continuing effects of past persecution may suffice);
• whether the proviso to article 1C(5) (the "compelling reasons" exception) extends to refugees under article 1A(2) or is confined to article 1A(1) refugees;
• whether subsequent state practice and UNHCR materials establish a different, binding interpretation of the proviso;
• subsidiary question whether gender‑related or cumulative effects of past persecution can amount to a Convention reason or otherwise amount to persecution sufficient to attract protection.

Reasoning: the court emphasised textual and contextual treaty interpretation and the two‑stage structure: article 1A(2) determines who is entitled to recognition as a refugee (requiring present well‑founded fear), and article 1C(5) is a cessation clause addressing withdrawal of status once recognised. The drafting history and the Protocol did not alter the clear textual limitation of the proviso to article 1A(1). The court examined UNHCR materials and recent state practice and found them insufficiently uniform and, in many cases, to afford only subsidiary or discretionary forms of protection rather than continuing Convention status. Baroness Hale addressed gender‑related persecution, accepting that continuing effects of past sexual violence can be relevant to a current fear or may combine cumulatively to amount to persecution, but emphasised that there must still be a current Convention reason and that the specific facts on protection and state ability/willingness to protect were not fully explored in these cases.

Disposition: appeals dismissed. The Lords noted that discretionary or compassionate leave may remain available in appropriate cases; in fact the B family subsequently received indefinite leave to remain under a Home Office concession.

Appeals dismissed. The House of Lords held that article 1A(2) requires a current well‑founded fear of persecution and that the proviso to article 1C(5) is expressly limited to refugees falling under article 1A(1); subsequent UNHCR commentary and state practice did not displace the Convention's clear language. The court adopted a two‑stage approach: initial determination under article 1A(2) and separate cessation analysis under article 1C(5).

Appeal to the House of Lords from the Court of Appeal ([2002] EWCA Civ 1403), judgment of the Court of Appeal reported at [2003] 1 WLR 241; earlier appeals and decisions at first instance (Jackson J; Turner J) are described in the judgment.