UK - Court of Appeal, 31 July 2000, Revenko v Secretary of State for the Home Department [2000] EWCA Civ 500

Country of Decision:
Country of Applicant:
Date of Decision:
31-07-2000
Citation:
[2000] EWCA Civ 500
Additional Citation:
[2000] 3 WLR 1519, [2000] INLR 646, [2000] Imm AR 610, [2001] QB 601
Court Name:
Court of Appeal
Printer-friendly versionPrinter-friendly version
Headnote: 
A stateless person who is outside his or her country of former habitual residence and is unable to return there is not a refugee unless he or she is unable to return owing to a fear of persecution for a Convention reason.
Facts: 
The applicant was a stateless person from Moldova who was unable to return to his country of former habitual residence. He was found by the Tribunal not to have a well-founded fear of persecution in Moldova. However, in the Court of Appeal it was argued that he should be considered as a refugee within the meaning of Article 1A (2) of the 1951 Refugee Convention and amended by the 1967 Protocol.
Decision & Reasoning: 
The issue in the appeal was whether a stateless persons who was outside his country of former habitual residence but was unable to return there, was a refugee.
 
The relevant part of Art 1A (2) of the 1951 Refugee Convention as amended by the 1967 Protocol provides that;
 
“the term 'refugee' shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular political group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."
 
The applicant argued that on a literal interpretation of Art 1A (2) he was a refugee because he fulfilled the criteria of “not having a nationality and being outside the country of his former habitual residence, is unable…to return to it”.
The Court of Appeal considered caselaw from the UK, Australia and Canada, the UNHCR Handbook as well as academic writing. It concluded the applicant was not a refugee because he had not established that he had a well-founded fear of persecution for a Convention reason in Moldova.
 
The most important reasons for this finding were, as held by Lord Justice Pill in paragraph 67 of the judgment, “[t]he paragraph in Art 1A (2) should be read as a whole and does, in my judgment, set out a single test for refugee status. When the words in the first part of the paragraph “is unable or, owing to such fear, is unwilling” were repeated in the second part of the paragraph, it was intended that the entire paragraph should be governed by the need to establish a well-founded fear of persecution on a Convention ground. The existence of a well-founded fear was intended to be a pre-requirement of refugee status. It is significant that both categories, nationals and stateless persons, were dealt with in the same paragraph and indeed in the same sentence. I cannot conclude that by the order of words in the last part of the paragraph, the need for the fear was intended to be excluded in the case of what could be a large category of persons”.
 
Secondly, as found by Bennett, J in paragraph 153 of the judgment ”the meaning of Art 1A (2) which makes sense in the light of the Convention as a whole and the purposes which the framers of the Convention were seeking to achieve, is the protection of a person (or persons) whether outside the country of his nationality, or, not having a nationality and outside the country of his former habitual residence, who has a well-founded fear of being persecuted for the reasons therein set out.”  The applicant’s proposed interpretation of the provision was therefore inconsistent with the purpose of the 1951 Refugee Convention.
Outcome: 
Appeal dismissed.
Observations/Comments: 
The Court’s conclusion is consistent with the Qualification Directive, Art 2(c).  It defines “refugee” as “a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Art 12 does not apply.”
Other sources cited: 
Joint Position dated 4 March 1996 the Council of the European Union.

Goodwin-Gill, G. The Refugee in International Law, 2nd ed. (1996).

Hathaway, J. The Law of Refugee Status (1991).

Grahl Madsen, A. The Status of Refugees in International Law 1966.
Case Law Cited: 

Australia - Diatlov v Minister for Immigration and Multicultural Affairs [1999] FCA 468

Australia - Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Australia - Savvin v Minister for Immigration and Multicultural Affairs [1999] FCA 1265 and 171 ALR 483

UK - R v Chief Immigration Officer of Gatwick Airport, ex parte Harjender Singh [1987] Imm AR 346

UK - R v Secretary of State for Home Department, ex parte Bradshaw [1994] Imm AR 359

UK - R v Secretary of State for the Home Department Ex p Sivakumaran (and conjoined appeals) [1988] AC 958