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R. (on the application of Hoxha) v Special Adjudicator

DATE: 14 Oct 2002

H, an ethnic Albanian from Kosovo, appealed against the refusal to grant judicial review ([2001] EWHC Admin 708) of the decision not to afford him asylum in the United Kingdom. H had fled to Albania, having suffered violence at the hands of Serbian soldiers, and he subsequently travelled to the UK in spite of the withdrawal of the Serbian forces from Kosovo. The special adjudicator had accepted that H had fled Kosovo under a well founded fear of persecution but held that H was no longer a refugee as further persecution was unlikely. H submitted that his past experiences had left him fearful and in a position where he would be unable to cope with daily life in Kosovo. It was argued that the continuing effect of his persecution amounted to a compelling reason why he could continue to refuse to avail himself of the protection of his country of nationality and that he was entitled, under the proviso to Convention Relating to the Status of Refugees 1951 (United Nations) Art.1C(5) , to remain in the UK as a refugee.

Held, dismissing the appeal, that Art.1C(5) was expressly concerned with individuals who had previously been recognised as statutory refugees under Art.1A of the Convention. The special adjudicator had determined that H was not a refugee at the date of his asylum application and his acknowledgment of H’s past fear of persecution did not amount to recognition of refugee status under Art.1A. The proviso to Art.1C(5) had no application other than to statutory refugees as the evidence did not show a clear agreement between states that this limitation should be disregarded. The continuing effect of past acts of persecution did not amount to a current well founded fear of persecution, entitling H to refugee status; such an interpretation would render the provisions of Art.1C(5) unnecessary.