UK - House of Lords, 2 April 1998, Secretary of State for the Home Department, Ex parte Adan, [1998] UKHL 15

Country of Decision:
Country of Applicant:
Date of Decision:
02-04-1998
Citation:
[1998] UKHL 15
Additional Citation:
[1998] 2 WLR 702, [1999] 1 AC 293, [1998] 2 ALL ER 453, [1998] 2 All ER 453, [1998] Imm AR 338
Court Name:
House of Lords
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Headnote: 
A person who leaves his own country because of a well-founded fear of being persecuted for a Convention reason and later is unable, or, owing to that fear is unwilling, to avail himself of that country's protection even when the grounds for his fear have gone, does not have the status of a refugee.
 
In addition, in a State where there is a civil war when law and order has broken down and every group is fighting one another for political power then, to be entitled to refugee status, a group or individual the individual or group has to show a well-founded fear of persecution over and above the risk to life and liberty inherent in the civil war.
Facts: 
The applicant fled Somalia with his wife and two children in June 1988 and arrived in the UK on 15 October 1990, claiming asylum on arrival.  His claim was based on a fear of persecution from the government of President Barre. He was refused asylum but granted exceptional leave to remain in the UK. He applied for Judicial Review of the decision to refuse him asylum.  By this time there had been a change in government in Somalia.
Decision & Reasoning: 
The House of Lords considered two issues. 

The first issue was if the applicant “has no current well-founded fear of persecution for a Convention reason, is he nevertheless to be recognised as a refugee for the purposes of Art 1A(2) of the 1951 Convention … if he fled his country of nationality as a result of a well-founded fear of Convention persecution and has been unable to return to that country or to avail himself of its protection subsequently?" The applicant had left Somalia because he had a fear of persecution from the government of President Barre that was in power at that time. Although the situation in Somalia had changed since then, he argued that he was entitled to recognition as a refugee because he had left Somalia on account of a well-founded fear of persecution and was, at present, unwilling or unable to return there. The House of Lords held that an applicant had to establish a present fear in order to be entitled to refugee status and therefore his appeal failed on this ground.
 
The second issue was "[c]an a state of civil war whose incidents are widespread clan and sub-clan-based killing and torture give rise to well-founded fear of persecution for the purposes of the 1951 Convention … notwithstanding that the individual claimant is at no greater risk of such adverse treatment than others who are at risk in the civil war for reasons of their clan and sub-clan membership?"  The House of Lords held that “where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be at risk if he were returned to his country. He must be able to show…a differential impact. In other words, he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare.”
Outcome: 

Appeal dismissed.

Observations/Comments: 
This decision is inconsistent with UNHCR’s position contained in UN High Commissioner for Refugees, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, April 2001, available at:
 
 
The correctness of this decision has not been considered following the coming into force of the Qualification Directive and, in particular, whether it is consistent with Art 9 of the Directive.
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).
 
Case Law Cited: 

Canada - Salibian v. Canada (Minister of Employment and Immigration) (1990) 3 F.C. 250

New Zealand - Refugee Appeal No. 70366/96 Re C

UK - R v Secretary of State for the Home Department, Ex parte Jeyakumaran [1994] Imm.A.R. 45