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

 

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.

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.