Future Work

Although the 1951 Convention did not provide for the preservation of family reunification, the Final Act of the Conference that adopted the Convention did address the issue. The 1951 United Nations Conference called on governments:

• to take the necessary measures for the protection of the refugee’s family especially with the view to:

1. ensuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular county;

2. the protection of refugees who are minotS, in particular unaccompanied children and girls with special reference to guardianship and adoption.

This principle has been adopted in UNHCR Executive Committee Conclusions and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.

The key Principle is that if the head of the family is granted refugee status, then family dependants are accorded similar status.

SELF ASSESSMENT EXERCISE

1. What is the status of the principles that relate to the protection of women and children who are refugees? Are there similar considerations in relation to family reunification?

Summary

We have been considering two areas in which the Convention does not go into great detail: the protection of women and girls and family reunification. We have seen that certain Executive Committee Conclusions have elaborated the principles that are important in this area.

v Secretary of State for the Home Department, Ex parte Sivakumaran [1988] 1 All ER 193 HL,

Karanakaran v Secretary of State for the Home Department (CA (Civ Div)) (2000] Imm AR 271 and Kaja v Secretary of State for the Home Department (1995] InIm AR 1.

These cases show how the courts approached the issue of the test for determination of refugee status, and the standard of evidence required under the test.

In R v Secretary of State for the Home Department, Ex parte Sivakumaran (1988] 1 All ER 193 HL, the House of Lords held that the question of whether or not there was a ‘well-founded fear’ of persecution within the meaning of Article 1A(2) of the Convention and Protocol was to be determined by an objective test.

This had to take into account the circumstances existing in the country of the refugee's nationality. Furthermore, the applicant had to show that there Was a reasonable degree of likelihood that he or she would be persecuted for one of the reasons referred to in article 1A(2) if s/he were returned to that country. On the facts, there was no real risk of persecution if the applicants were returned to Sri Lanka, and their asylum claim was unsuccessful.

Some have argued that this is a very stringent test. For instance, the Court of Appeal itself preferred a different interpretation of the Convention in this case. This is how the Court of Appeal’s argument was understood by the House of Lords:

The Court of Appeal's formulation would accord refugee status to one whose fears, though genuine, were objectively demonstrated to have been misconceived, that is to say one who was at no actual risk of persecution for a Convention reason. The Court of Appeal would qualify this by denying refugee status to one who, while holding a genuine fear, was not a person of reasonable courage, so that his fears were not such as a person of that degree of courage would entertain. The differentiation means that the fears of some, but not those of others, would be allayed, and it might be by no means easy to decide what degree of courage a person of ordinary fortitude might be expected to display. Further, the court's illustration of the bank cashier threatened by an imitation firearm does not truly support the thesis for which it is prayed in aid. An objective observer of the scene would agree that at the time the imitation firearm was presented the cashier's fear was well founded. But once it became clear that the firearm was an imitation the fear, if it continued to exist, would no longer be well founded. Fear of

fear of instant personal danger arising out of an immediately presented predicament. The claimant to refugee status is not immediately threatened with danger arising out of a situation then confronting him.

The question is what might happen if he were to return to the country of his nationality. He fears that he might be persecuted there. Whether that might happen can only be determined by examining the actual state of affairs in that country. If that examination shows that persecution might indeed take place then the fear is well-founded. Otherwise it is not.

How are the interpretations of the test by the two courts different? The test preferred by the Court of Appeal would allow a refugee who had genuine fears, even though objectively these fears could be shown to be unfounded, to claim refugee status. However, the Court of Appeal did make a significant qualification to this test. The genuine fear would have to be that of a person of reasonable courage. This does impose something of a limit on the degree of fear that would have to be shown.

Yet it is arguably a less stringent test than that preferred by the House of Lords, even though there may be problems in its application; for instance, determining what are the reasonable fears of a person of reasonable courage. The question raised by the House of Lords, in questioning the analogy that the Court of Appeal was using, is interesting because it shows how the court is approaching the issue of fear of persecution. The Court of Appeal had used the analogy of a bank clerk threatened in a robbery with an imitation gun. An objective observer would conclude that in the moment that the gun is produced, and the clerk threatened, there is a well-founded fear. However, if and when it becomes obvious that the weapon is an imitation, then the fear would not be objectively well-founded. The House of Lords is critical of this analogy, because the claimant is not immediately threatened with persecution; rather the issue is what might happen were he or she to go back to the country of his or her nationality. It may be that, objectively, there is no possibility of persecution, in which case an objective observer would have to assume that the fear was unfounded. The House of Lords went on to argue that:

It is a reasonable inference that the question of whether the fear of persecution held by an applicant for refugee status is well-founded is likewise intended to be objectively determined by reference to the circumstances at the time prevailing in the country of the applicant’s nationality…….

This inference is fortified by the reflection that the general purpose of the Convention is surely to afford protection and fair treatment to those for whom neither is available in their own country, and does not extend to the allaying of fears not objectively justified, however reasonable

these fears may appear from the point of view of the individual in question.

The argument of the House of Lords is supported by their interpretation of the Convention. It is contended that the purpose of the Convention as a whole is to afford protection to those in genuine fear; a fear that can be objectively demonstrated. From the viewpoint of the individual claiming refugee status, the fear might be real, but this is not the acid test. In stressing the objective test, the House of Lords thus make it more difficult to claim refugee status.

As Clayton explains, it is now ‘settled law’ (353) that an asylum seeker must show, objectively, that there is a reasonable degree to That he would face persecution. But what standard of proof should be used?

Should it be a lower standard of proof than a civil case?

This issue, amongst others, was examined in Karanakaran v Secretary of State for the Home Department (CA (Civ Div)) [2000] Imm AR 271.

The facts concerned a Tamil refugee:

The appellant is a young Tamil from the Jaffna peninsula whose community was destroyed by the civil conflict and who fled from his home area in fear of both the government forces and the terrorist movement. All this was found as fact. So was the consequent history of flight, first to Colombo and ultimately to the United Kingdom. It followed that (unless there were a finding that flight was not a logical reaction to the persecution -a possibility in certain cases but not in this one) the appellant was outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race. He was therefore entitled by virtue of Article 1 (A) (2) of the 1951

Geneva Convention to asylum provided that, in addition, it could be established that he was 'unable or, owing to such fear, ….unwilling to avail himself of the protection' of his home state. The latter-unwillingness through fear -is what this appeal is, at least initially, about.

In allowing the plaintiffs appeal, Karanakaran builds on the issues in Sivakumaran. Lord Justice Sedley, in his summary of the facts of the case Sivakumaran, returns to the issue of the well-founded fear of persecution. The issue here, however, is that the appellant had been internally displaced from his home on the Jaffna peninsula to the city of Columbo. Although the well-founded fear of persecution could be shown on these facts, an associated issue had also to be determined: that the fear of persecution meant that he was 'unwilling to avail himself of

Karanakaran should be returned to Columbo, and that, as he was not fearing persecution there, this would not be in breach of the Convention;

the appellant accepted this point, but was arguing that it was unreasonable to send him there as he had no work, no housing and no friends or family in that country. The case thus raises the issue of ‘how a decision-maker, a tribunal or a court is to gauge whether internal relocation is a legitimate alternative to asylum for a person who otherwise ranks as a Convention refugee’ (para. 7). It raises a question of evidence, and how that evidence is to be judged:

• Is the want of such an option i.e. internal relocation is not an option]

to be proved by the asylum seeker (in which case it is common ground that proof would not have to go as high as a balance of probability); or disproved by the Home Secretary (in which case it would follow that the standard exceeds a bare balance of probability); or simply gauged on the evidence?

If the asylum seeker had to prove that internal relocation was not an option, then the standard of proof is higher than it wound be if it had to be disproved by the Home Secretary. The third option suggests a different standard. How, then, should the court proceed? Sedley L. J begins by pointing out that the task facing the decision- maker under the Convention is an issue of ‘evaluation’ (para. 15). The applicant will lead evidence on issues such as that of fear of prosecution; and the decision-maker must evaluate questions such as the one in the present appeal: is Columbo safer than the applicant's home? or is it unduly harsh to expect this applicant to survive in a new and strange place?' (para. 15). This must be placed in context:

• What matters throughout is that the applicant's autobiographical account is only part of the picture. People who have not yet suffered actual persecution (one thinks of many Jews who fled Nazi Germany just in time) may have a very well-founded fear of persecution should they remain. People who have suffered appalling persecution may for one reason or another not come within the protection of the Convention.

Sedley L. J then goes on to argue that a claim to asylum was not like a claim made in civil litigation, where a judge must act as umpire between two competing versions of events. It is in fact an administrative process, and thus cannot be modeled on civil litigation. Rather than treat facts as established on a civil standard, the evidence offered must be treated as a whole:

The question whether an applicant for asylum is within the protection of the 1951 Convention is not a head-to-head litigation issue. Testing a

claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant’s case. Finally, and importantly, the Convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions. How far this process truly differs from civil or crirnina1 litigation need not detain us now.

His argument concludes that the question to be determined is whether,

‘taking a1J relevant matters into account, it wound be unduly harsh to return the applicant to Colombo’.

This issue was further explored in Kaja v Secretary of State for the Home Department [1995] Imm AR 1. Z, a national of Zaire, had appealed against a decision to refuse him entry to the UK. The decision maker had stated that he did not believe Z’s evidence, rather than making reference to a standard of proof. He appealed on a number of points, but the one we will examine is the claim that the decision-maker had to make a reference to a standard of proof. The Tribunal accepted this argument. It was necessary to make reference to a standard of proof, and that the lower standard set out in Sivakumaran applies to a determination of the likelihood that both a future event will happen, and that a past event has happened.

These cases as a whole show that the courts approach the issue of the determination of refugee status as a public law inquiry into the relevant evidence. The process is not to be thought of as modeled on civil litigation; rather the decision-maker must evaluate all the evidence to the standard of proof articulated in Sivakumaran. Clayton observes that this means that decision-makers should not approach their task in a 'mechanistic manner' and the asylum seeker does not have to bear a burden of proof to the standard of reasonable probability. Assessing an asylum claim is ultimately a matter of evaluation: '[I]t must be approached as a whole, as a public law exercise in the need for protection rather than as an exercise in proving facts to a standard'.

(Clayton, p.354).

SELF ASSESSMENT EXERCISE

1. What is the relevant standard of proof for an asylum claim?

Summary

We have been studying R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] Karanakaran v Secretary of

the Home Department [1995]. In the first case the court determined the nature of the test for refugee status; in the second two the issue of the standard of proof required in an asylum hearing was addressed. The hearing is to be approached in a different way to civil litigation. The correct approach was one of evaluation, rather than choosing l5etween the evidence presented by two parties.

1.4.2 Refugees, asylum and Immigration in