Revenko v. Secretary of State for the Home Department

An asylum applicant who was stateless and unable to return to his country of former habitual residence was not a refugee within the meaning of art 1A(2) of the Convention and Protocol Relating to the Status of Refugees 1951 and 1967 unless he also had a "well-founded fear of persecution."

The Court of Appeal so held when dismissing an appeal by the applicant, Oleg Andreevitch Revenko, from the dismissal by the Immigration Appeal Tribunal on 7 December 1999 of his appeal against the ruling of a special adjudicator. The applicant was born in 1955 in a part of the USSR which subsequently became the independent state of Moldova. He claimed asylum in 1991 and in 1996 his application was refused. The special adjudicator, affirming that refusal, found that the applicant was stateless within the meaning of the Convention, a finding not disputed by the Secretary of State. By the rules of citizenship currently applicable in Moldova, he was not considered a citizen. He was therefore unable to return to Moldova. But the special adjudicator found that the applicant had no present well-founded fear of persecution on Convention grounds and accordingly did not fall within the definition of "refugee". Art 1A(2) of the 1951 Convention as modified by the 1967 Protocol defined "refugee" as someone who: "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social 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."

It was contended for the applicant that the crucial part of the definition as far as he was concerned was to be found in the words, after the semi-colon, "or who, not having a nationality and being outside the country of his former habitual residence ... is unable ... to return to it." Read thus, and emphasising the use of the word "or", the definition of refugee in relation to stateless persons did not require them to establish a well-founded fear of persecution on Convention grounds.

LORD JUSTICE PILL

having referred to Adan v Secretary of State for the Home Department [1999] 1 AC 293, 304-305, per Lord Lloyd of Berwick, said art 1A(2) should be read as a whole and in the context of the broad intention of the Convention considered as a whole. Thus read, it set out a single test of refugee status. The repetition of the words "is unable or, owing to such fear, is unwilling..." in the second part of the definition, following the semi-colon, was intended to indicate that the entire paragraph was governed by the need to show a well-founded fear of persecution on Convention grounds if, hypothetically, he were to return to his country of former residence. Such a fear was the prerequisite of refugee status. Thus both persons having nationality and stateless persons were being dealt with in the same sentence. But mere statelessness or an inability to return to one's country of former residence was insufficient: to qualify as a refugee the stateless person must also show a well-founded fear of persecution on Convention grounds.

CLARKE LJ and BENNETT J

gave concurring judgments.

Appearances: Andrew Nicol QC and Mark Henderson (Wilson & Co) for the applicant; Steven Kovats (Treasury Solicitor) for the Secretary of State.