B (FC)(Appellant) (2002) Regina v. Special Adjudicator (Respondent) ex parte Hoxha (FC) (Appellant) [2005]
- Facts and Procedural History
Both appellants, Mr Xhevdet Hoxha and B, are ethnic Albanians from Kosovo and Yugoslavian citizens. Before June 1999, the Serb army was deployed in Kosovo until NATO drove them out and replaced it with international peace-keeping troops from KFOR and UNMIK. During that period, both appellants experienced significant mistreatment by the Serbian authorities and fled Kosovo before June 1999. In Kosovo, they suffered gross ill-treatment, which was appalling. Back in September 1997, while trying to help and protect his father from Serb paramilitaries and soldiers, Mr Hoxha was shot three times in the leg by Serb troops who had forced their way into his house. He returned to Kosovo after receiving treatment in an Albanian hospital and staying for one year. Serb soldiers attacked him again in October-November 1998 and broke his leg using a metal bar.
However, treatment of B and his family by the Serbs was even worse. In October 1998, Serb soldiers invaded B’s house, beating him and stabbing him using a knife. Furthermore, Serb police slashed B’s son across the stomach, and when B’s wife tried to intervene and help, police raped her in front of their 10-years-old son and her husband. Ethnic Albanian neighbours witnessed the entire incident. Mr Hoxha fled Kosovo in November 1998 to Albania, while B, his wife and two sons travelled to Macedonia in early 1999. Later, they travelled and entered the United Kingdom in the back of lorries, where they claimed asylum on arrival. The Secretary of State denied their claims, and they subsequently appealed, which consistently failed.(unique_solution)
- Concerned Body
The United Nations High Commissioner for Refugees (UNHCR) has been concerned with the [2005] UKHL 19 House of Lords’ judgement, specifically the interpretation of the Convention regarding the 1951 Status of Refugees (United Nations) Article 1C(5). The House of Lords’ in [2005] UKHL 19 argued that Article 1C(5) could not be applied or relied on before determining if an asylum seeker satisfied the requirement of being entitled to refugee status under Article 1A(2). The UNHCR issued Guidelines on International Protection in 2006 with substantive analysis of Article 1A(2), which clarified the sexual and gender-related persecution.[1]
- Jurisdictions
The United Kingdom House of Lords is entitled to exercising prima facie exclusive jurisdiction over its territory. Therefore, it decides who among the non-citizens (migrants or refugees) shall be allowed to stay or enter the country.
- Legal Issues
The case was brought before the House of Lords by the appellants,, Mr Xhevdet Hoxha and B, after the Secretary of State denied their claims for asylum and they subsequently appealed, which consistently failed. The primary issues raised by the appellants concerns the proper interpretation of Article 1C(5) (Cessation Clause) of the 1951 Convention Relating to the State of Refugees. A subsidiary issue was whether an individual might fall within the definition as articulated by the Convention’s Article 1A(2) of refugee, mainly due to fear of the continued impact of persecution inflicted upon him in the past. The UNCR intervened before the House of Lords, arguing that the State should not deprive refugee of their protection under Article 1C(5) solely b because of lack of formal “recognition” of the person’s refugee status.
- Applicable Legal Standards
The relevant legal standards in those cessation case under Article 1C(5) include the general Humanitarian Principle advocated by the provision and the significant number of other International Human Rights instruments. They should be applied broadly to bridge the gap in the protection sought by individuals, and the protection should be provided based on the provision’s rationale. The case fits the International Refugee Protection Laws.
[1] UNHCR, Guidelines on International Protection No. 12: HCR/GIP/16/12, Retrieved from http://www.rulac.org/assets/downloads/UNHCR_Guidance_Armed_Conflict_2016.pdf