B., Re, (2005) 332 N.R. 295 (HL)

• Case Date: March 17, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 332 N.R. 295 (HL)

B., Re (2005), 332 N.R. 295 (HL)

MLB headnote and full text

Temp. Cite: [2005] N.R. TBEd. AP.013

In re B (FC) (appellant) (2002) Regina v. Special Adjudicator (respondent) ex parte Hoxha (FC) (appellant)

([2005] UKHL 19)

Indexed As: B., Re

House of Lords

London, England

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood

March 17, 2005.

Summary:

The refugee claimants in this case were ethnic Albanians from Kosovo and citizens of the Federal Republic of Yugoslavia, who had suffered gross ill-treatment by the Serbian authorities and fled to United King­dom, before NATO succeeded in driving the Serb army out of Kosovo and replaced it with an international peace-keeping force. Since circumstances had changed substan­tial­ly in Kosovo, an issue arose as to wheth­er the refugee claimants were entitled to protec­tion under the 1951 Convention Relat­ing to the Status of Refugees because they no longer had a current well-founded fear of persecution. The claimants argued that there were compelling reasons for them not to re­turn home because of their previous perse­cution and therefore claimed that they were entitled to rely on the proviso in art. 1C(5) of the Convention. Article 1C(5) provided that "this Convention shall cease to apply to any person falling under the terms of section A if ... (5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality" along with a provisio stating that "Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article [the statutory refugee provi­sion] who is able to invoke compelling rea­sons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality ...". The refugee claimants argued firstly that they were to be regarded as having been "recognised" as refu­gees within the meaning of art. 1C(5) simply by virtue of having at some time past fulfilled the criteria for refugee status under 1A(2); and secondly, that on its true inter­pretation the proviso to art. 1C(5) applied no less to 1A(2) refugees than to 1A(1) refugees ("statutory refugees", as 1A(1) refugees were generally known). Both the trial judge and the Court of Appeal rejected the refugee claimants' arguments. The refugee claimants appealed.

The House of Lords dismissed the appeal, holding that these claimants were not entitled to refugee protection under the Convention. The court held that the provisio in art. 1C(5) applied only to statutory refugees (section A(1) refugees). Further, the Conven­tion only protected those unable to return to their home country who have a present or current fear of persecution. However com­pelling may be the reasons why refugee claimants should not be returned to their home coun­try, there was no basis in the Convention, absent a continuing well-founded fear, for granting them refugee status.

Aliens - Topic 1313.6

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Refugee protection - Compelling reasons exception - Convention, art. 1C(5) - [See Aliens - Topic 1322 ].

Aliens - Topic 1322

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Grounds - Well-founded fear of persecution - The refugee claimants were ethnic Albanians from Kosovo who were grossly ill-treated by the Serbian author­ities - They fled to United Kingdom - Since circumstances had changed substan­tially in Kosovo, an issue arose as to whether the refugee claimants were entitled to protection under art. 1C(5) of the 1951 Convention Relating to the Status of Refu­gees - Although the claimants no longer had a current well-founded fear of persecu­tion, they argued that there were compel­ling reasons for them not to return home because of their previous persecution - Article 1C(5) provided that "this Conven­tion shall cease to apply to any person falling under the terms of section A if ... (5) He can no longer, because the circum­stances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his na­tionality" - The proviso to art. 1C(5) stated that "Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality ..." - The House of Lords inter­preted art. 1C(5) and held that the refugee claimants in this case were not entitled to Conven­tion protection - Article 1C(5) applied only to statutory refugees (i.e., section A(1) refugees) - The court held that the Conven­tion only protected those unable to return to their home country who have a present fear of persecution - How­ever compelling may be the reasons why refugee claimants should not be returned to their home coun­try, there was no basis in the Convention, absent a continuing well-founded fear, for granting them refugee status.

Words and Phrases

Recognized - The House of Lords dis­cussed the meaning of the word "recog­nized" as used in the phrase "recognized as a refugee" in art 1C(5) of the United Na­tions Convention Relating to the Status of Refugees, 1951 - See paragraphs 57 to 67.

Cases Noticed:

R. v. United Kingdom (Secretary of State for the Home Office); Ex parte Adan, [1999] 1 A.C. 293; 225 N.R. 126 (H.L.), refd to. [paras. 8, 29, 51].

Brown v. Stott, [2000] N.R. Uned. 256; [2003] 1 A.C. 681 (P.C.), refd to. [paras. 9, 85].

R. v. Immigration Appeal Tribunal; Ex parte Shah - see Islam v. United King­dom (Secretary of State for the Home Department).

Islam v. United Kingdom (Secretary of State for the Home Department), [1999] 2 A.C. 629; 238 N.R. 97 (H.L.), refd to. [para. 37].

Horvath v. United Kingdom (Secretary of State for the Home Department), [2001] 1 A.C. 489; 257 N.R. 358 (H.L.), refd to. [para. 38].

Arif v. Secretary of State for the Home De­partment, [1999] Imm. A.R. 271 (C.A.), refd to. [para. 66].

S. v. Secretary of State for the Home De­partment, [2002] I.N.L.R. 416, refd to. [para. 66].

Sepet et al. v. United Kingdom (Secretary of State for the Home Department), [2003] 1 W.L.R. 856; 305 N.R. 366 (H.L.), refd to. [para. 83].

R (European Roma Rights) v. Prague Im­mig­ration Officer, [2005] 2 W.L.R. 1, refd to. [para. 85].

Statutes Noticed:

United Nations, Convention Relating to the Status of Refugees, art. 1A, art. 1C(5) [para. 5 et seq.].

Authors and Works Noticed:

Aust, Anthony, Modern Treaty Law and Practice (2000), p. 195 [para. 74].

Crawley, Heaven, Refugees and Gender: Law and Process (2001), pp. 89, 90 [para. 30].

Feller, Turk and Nicholson, Refugee Pro­tection in International Law, UNHCR's Global Consultations on International Protection (2003), c. 5.1, p. 336 [para. 30]; c. 5.2, p. 351 [para. 34]; p. 32 [para. 78].

Goodwin-Gill, Guy, The Refugee in Inter­national Law (2nd Ed. 1996), p. 87 [para. 70].

Grahl-Madsen, Atle, The Status of Refugees in International Law (1966), vol. 1, p. 410 [paras. 15, 68].

Haines, Gender-related Persecution, para. 24 [para. 35].

Hathaway, James, The Law of Refugee Status (1991), pp. 66 to 69 [para. 10].

Milner, David, Exemption from Cessation of Refugee Status in the Second Sen­tence of article 1C(5)/(6) of the 1951 Refugee Convention (2004), 16 Int'l. J. of Refugee Law, No. 1, p. 92 [para. 80].

Sinclair, Ian, The Vienna Convention on the Law of Treaties (2nd Ed. 1984), p. 138 [para. 73].

United Kingdom, Home Office Immigra­tion and Nationality Directorate API, Gender issues in the asylum claim, para. 5 [para. 38].

United Nations, European Commission Re­port, Defining Refugee Status and those in need of International Protection: Ses­sion 2001-2002, HL Paper 156, generally [para. 23].

United Nations High Commissioner for Ref­u­gees, The Applicability of the "Com­pelling Reasons" exception to ces­sa­tion for refugees and asylum-seekers, generally [para. 79].

United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1979), para. 136 [para. 18].

United Nations High Commissioner for Refu­gees, Handbook on Procedures and Criteria for Determining Refugee Status (1992), para. 51 [para. 35].

Counsel:

[not disclosed]

Agents:

[not disclosed]

This appeal was heard before Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Baroness Hale of Rich­mond and Lord Brown of Eaton-under-Hey­wood of the House of Lords. The decision of the house was given on March 17, 2005, when the following speeches were delivered:

Lord Nicholls of Birkenhead - see para­graph 1;

Lord Steyn - see paragraph 2;

Lord Hope of Craighead - see paragraphs 3 to 26;

Baroness Hale of Richmond - see para­graphs 27 to 40;

Lord Brown of Eaton-under-Heywood - see paragraphs 41 to 88.