UK - Court of Appeal, 13 February 1998, Lazarevic v Secretary of State For Home Department [1997] EWCA Civ 1007; [1997] Imm AR 251
| Country of Decision: | United Kingdom |
| Country of applicant: | Somalia |
| Court name: | Court of Appeal |
| Date of decision: | 13-02-1998 |
| Citation: | [1997] EWCA Civ 1007 |
| Additional citation: | [1997] 1 WLR 1107 |
Keywords:
| Keywords |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Nationality
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. Nationality can be defined generally as the legal bond between a person and a State which does not indicate the person's ethnic origin. According to the Qualification Directive, when considered as a reason for persecution, the concept of nationality is not confined to citizenship or lack thereof and, in particular, includes membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State |
Headnote:
The Court of Appeal held that an asylum-seeker unable to return to his country of origin may indeed be entitled to recognition as a refugee provided only that the fear or actuality of past persecution still plays a causative part in his or her presence here. Further, the refusal of the State of nationality to permit return can constitute persecution.
Facts:
Two of the applicants in this case were from Somalia. They had fled Somalia and claimed asylum in the UK. They had been refused asylum but had been granted exceptional leave to remain. They currently feared the civil war in Somalia.
The other two applicants were Serbs from the former Federal Republic of Yugoslavia. Their claims for asylum had failed but they were unable to return, because their State of nationality was refusing to admit any refused asylum seekers until a readmission agreement had been agreed with the UK.
Decision & reasoning:
The Court of Appeal dismissed the appeals. In doing so, it considered a number of issues.
First, in relation to the Yugoslav cases, the applicants argued that they should be considered refugees because they were outside their State of nationality because they previously had a well-founded fear of persecution and currently unable to return to their State of nationality. The Court held that “an asylum-seeker unable to return to his country of origin may indeed be entitled to recognition as a refugee provided only that the fear or actuality of past persecution still plays a causative part in his presence here.”
Secondly, the Court held that if a State “arbitrarily excludes one of its citizens, thereby cutting him off from enjoyment of all those benefits and rights enjoyed by citizens and duties owed by a State to its citizens” that this “conduct can amount to persecution”. However establishing this may be difficult evidentially if the applicant is anxious not to return at all costs and the applicant must also establish that this is caused by a convention reason.
Thirdly, the Court considered whether the Somali applicants should be considered as refugees on the basis of their fear of harm on return as a result of the civil war. It held, by a majority, that they did not have to establish a different risk to that of the civilian population as a whole as their fear was linked to a Convention reason because of the clan-nature of the conflict in Somalia.
Outcome:
Appeals of the Somali applicants were allowed. Appeals of the Yugoslav applicants were dismissed.
Subsequent proceedings:
The case of Adan, one of the Somali applicants before the Court of Appeal, was considered by the House of Lords. See separate summary of Secretary of State for the Home Department, Ex parte Adan, R v. [1998] UKHL 15. The House of Lords overturned the Court of Appeal’s findings on the first and the third issue. It did not consider the second issue.
The issue of the effect of the inability to return on a claim for refugee status (the second issue) was considered in EB (Ethiopia) v Secretary of State for the Home Department [2007] EWCA Civ 809; Revenko v Secretary of State for the Home Department [2000] EWCA 5000; MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289, ST (Ethnic Eritrean - nationality - return) Ethiopia CG [2011] UKUT 252 (IAC).
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| ICCPR |
| ICCPR - Art 4 |
Cited Cases:
| Cited Cases |
| Canada - Salibian v. Canada (Minister of Employment and Immigration) (1990) 3 F.C. 250 |
| United States - Matter of Acosta (Interim Decision 2986, March 1, 1985) |
| UK - 19 July 1996, Quijano v Secretary of State for the Home Department, Ex parte de Melo [1997] Imm AR 227 |
| UK - R v Secretary of State for the Home Department Ex p Sivakumaran (and conjoined appeals) [1988] AC 958 |
| UK - Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97 |
| UK - Secretary of State for the Home Department v Savchenkov [1996] Imm. AR 28 |
Follower Cases:
| Follower Cases |
| UK - Immigration Appeal Tribunal, 3 October 2000, EG, Colombia, [2000] UKIAT 00007 |
Other sources:
European Union Joint Position as at 4th March 1996 on the meaning of the term "refugee" in the Convention,
Grahl- Marsden The Status of Refugees in International Law (1966), Hathaway The Law of Refugee Status, Neremiah Robinson A commentary on the history, contents and interpretation of the Convention.