In re B (FC) (Appellant) (2002) Regina v. Special Adjudicator (Respondent) ex parte Hoxha (FC) (Appellant)

Refugee status under article 1A(2) of the Refugee Convention requires a current well-founded fear of persecution for a Convention reason. The cessation provision in article 1C(5) applies only after refugee status has been formally recognised. Its compelling-reasons proviso is confined to statutory refugees under article 1A(1). Humanitarian purpose and inconsistent state practice cannot extend its express scope.

Past persecution remains relevant evidence of present fear. Later ill-treatment of a different kind may also constitute current persecution. Its gravity must be assessed cumulatively and in the individual context, including gender and the continuing effects of earlier persecution.

Two ethnic Albanian appellants from Kosovo had suffered grave persecution before leaving the country. By the time their asylum claims were determined, changed conditions meant that neither could establish a current well-founded fear of persecution. They nevertheless relied on compelling reasons arising from past persecution. They argued that the proviso to article 1C(5) of the Refugee Convention extended beyond article 1A(1) statutory refugees to applicants under article 1A(2).

Their claims had failed before Jackson J and Turner J respectively. The Court of Appeal, in a judgment reported at [2003] 1 WLR 241 and arising under [2002] EWCA Civ 1403, rejected both appeals. A subsidiary issue was whether the continuing effects of past persecution, including feared community ostracism following wartime rape, could establish a current claim under article 1A(2).

1. Appeals dismissed unanimously. Lord Brown of Eaton-under-Heywood delivered the principal analysis of article 1C(5). Lord Hope of Craighead agreed with and supplemented it. Baroness Hale of Richmond addressed the subsidiary issue. Lord Nicholls of Birkenhead and Lord Steyn agreed with those speeches.
2. Per Lord Brown and Lord Hope, article 1A(2) requires a current well-founded fear of persecution. Historic fear may be important evidence of present fear, but it does not itself confer refugee status. The initial determination of refugee status under article 1A(2) and its later cessation under article 1C(5) are separate processes.
3. Article 1C(5) operates only where a person has already been formally recognised as a refugee and the state later seeks to withdraw that status. It cannot be used by an applicant to obtain refugee status at the initial determination stage. The proviso expressly protects only article 1A(1) statutory refugees who can invoke compelling reasons arising from previous persecution.
4. The Convention and Protocol are living instruments and should receive a generous construction consistent with their humanitarian purpose. That approach cannot add words which the contracting states deliberately omitted. The text, structure and drafting history showed that the limitation to article 1A(1) was intentional. The 1967 Protocol did not amend it.
5. Subsequent practice did not establish an agreement among contracting states that the proviso applied to article 1A(2) refugees. The evidence disclosed inconsistent national approaches, including grants of subsidiary protection rather than refugee status. Recommendations and humanitarian practice outside the Convention could not create a binding treaty obligation contrary to its clear language.
6. Per Baroness Hale, an understandable unwillingness to return because of the continuing effects of past persecution is insufficient without a current fear of Convention persecution. Earlier persecution may, however, lead to later persecution of a different kind. Whether feared ill-treatment is sufficiently grave must be assessed in the claimant's individual context. Gender, cumulative discrimination, the effects of earlier sexual violence and the availability of state protection may all be material. Women previously subjected to sexual violence may be capable of forming a particular social group where their shared immutable characteristic is independent of, and causes, their current ill-treatment.
7. The evidence concerning feared ostracism of the B family had not been fully explored. It was unnecessary to reopen that issue because the family had received indefinite leave to remain. A person vulnerable because of past persecution might seek discretionary leave on compassionate grounds, but that possibility did not create entitlement to Convention refugee status.

1. House of Lords: The appeals were dismissed unanimously. The Court of Appeal's rejection of the claims was upheld: [2005] UKHL 19.
2. Court of Appeal: Lord Phillips of Worth Matravers MR, Chadwick LJ and Keene LJ dismissed both appeals. They rejected the appellants' arguments concerning recognition and the reach of the article 1C(5) proviso: [2002] EWCA Civ 1403; [2003] 1 WLR 241.
3. High Court: Jackson J rejected Mr Hoxha's claim on 24 July 2001. Turner J rejected B's claim on 15 January 2002.