The Court of Appeal has held that the UN Refugee Convention should not be interpreted to include an implied type of derivative refugee status for the family members of refugees. As a result, anyone who was granted refugee status under UK law as the family member of a recognised refugee does not benefit from the protections in the Refugee Convention against withdrawal of refugee status.

The legal issue is a highly technical matter of treaty interpretation, but it has wide practical ramifications for the family members of recognised refugees. In effect, the Court of Appeal has ruled that the Home Office has been mistakenly giving out refugee status to the family members of actual refugees.

Family member of a refugee convicted of a crime

Secretary of State for the Home Department v JS (Uganda) [2019] EWCA Civ 1670 concerned a Ugandan man who had been admitted to the United Kingdom to be reunited with his mother. She had already been recognised as a refugee under the Refugee Convention. 

JS was granted leave to remain in the United Kingdom, apparently on the basis that he was also a refugee. However, at no point had there been any assessment of whether he was himself at risk of persecution in Uganda.

JS was then convicted of a serious criminal offence and the Home Office decided to deport him. At this point officials still believed that JS was a refugee under the Refugee Convention. They therefore proposed to cease his refugee status because he had been convicted of a serious crime. The case progressed through the First Tier Tribunal and the Upper Tribunal on that basis.

In the Court of Appeal, the Home Office changed its position and argued that JS had never been granted refugee status at all.

Relatives do not have refugee status themselves

JS accepted that he had not been granted refugee status directly, as someone meeting the Convention definition. Instead, he argued that the Home Office had granted him derivative refugee status on the ground that his mother met the definition of a refugee.

JS argued that the Refugee Convention should be interpreted widely and purposively. Even though the text does not mention any form of derivative refugee status for family members, the court should interpret it as including such status. JS claimed that he held derivative refugee status and was protected against refoulement unless the exceptions in Article 32 and 33 of the Refugee Convention were fulfilled.

The Court of Appeal rejected this argument and concluded that the Home Office was correct to claim that JS had never been granted refugee status under the Refugee Convention:

the meaning of Article 1A(2) of the Refugee Convention is clear and unambiguous: it defines a Refugee Convention “refugee” as a person who themselves have a “well-founded fear of being persecuted”, i.e. an individual or personal fear of persecution, not one derived from or dependent upon another person. This definition of “refugee” was intended to describe completely the class of people to whom the Refugee Convention applies.

Lord Justice Haddon-Cave also rejected the submission that other documents created during the negotiation of the Refugee Convention undermined this conclusion:

In my view, the plain ordinary meaning of the words of Article 1A is not displaced or altered by the travaux or State practice.

The result in this case can be contrasted with the Court of Appeal decision in SSHD v Mosira [2017] EWCA Civ 407, in which the Home Office was not allowed to raise the same issue at the last minute before the Court of Appeal when it had not been made before either tribunal.

Legitimate expectation argument failed

In a separate appeal, JS argued that he had a substantive legitimate expectation to benefit from the Refugee Convention because the Home Office had issued him with refugee status on his arrival in the United Kingdom. But the court decided that this issue was academic: even if JS were successful in establishing his entitlement to Refugee Convention protection, the Home Office could still lawfully cease his refugee status because political conditions have improved in Uganda. The legitimate expectations argument remains open to other people who were apparently granted refugee status under the family reunion policy.

Importance of making an independent asylum application

The modern Home Office guidance on refugee family reunion is now clear that the family members of refugees are not also refugees, even if they can benefit from similar rights to refugees (see page 25). This case emphasises the importance of family members admitted under the family reunion policy also making their own, separate claim for refugee status where appropriate. For those who were apparently granted refugee status in the past and now find that they do not have this status, they can claim entitlement to the same rights under domestic law on the ground that they have a substantive legitimate expectation to the rights in the Refugee Convention.

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