The decision of the Court of Appeal

Both women appealed to the Court of Appeal. The appeals were held together. In separate and careful judgments the Court of Appeal dismissed both appeals: Regina v. Immigration Appeal Tribunal and Another, Ex parte Shah [1998] 1.W.L.R. 74. Given that those judgments are reported, it will be sufficient to state in outline effect the judgments. All three members of the Court of Appeal found that the appeal in the case of Islam, so far as it was based on persecution on the ground of political opinion, failed on the facts. The principal issue revolved round the question of law whether appellants could claim to be members of the "particular social group" under article 1A(2). Waite L.J. based his decision on the ground that independently of the feared persecution there was no common uniting attribute which could entitle the appellants to the status of "membership of a particular social group" under article 1A(2): pp. 86A-87B. Staughton L.J. went further. He held that that what is required is a number of people "joined together with some degree of cohesiveness, co-operation and interdependence": at p. 93D. And this requirement was not satisfied. Henry L.J. agreed with the ground on which Waite L.J. decided the matter. It is not clear whether there was a second ground for his decision. Henry L.J. agreed with Waite L.J. that "cohesion" was not "not necessary in every case": p. 91H. Henry L.J. added that "it is not necessary where the particular social group is recognised as such by the public, though is not organized . . ." It would seem that Henry L.J. contemplated that cohesiveness is sometimes a requirement.

Article óKóóK1A(2) in the scheme of the Convention

The critical and operative provision of the Convention is article 1A(2). It provides as follows:

 "For the purposes of the present Convention, the term 'refugee' shall apply to any person who: . . . (2) . . . owing to 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; . . ."

In order to qualify as a refugee the asylum seeker (assumed to be a woman) must therefore prove:  (1) That she has a well founded fear of persecution.  (2) That the persecution would be for reasons of race, religion, nationality, membership of a particular social group, or political opinion.  (3) That she is outside the country of her nationality.  (4) That she is unable, or owing to fear, unwilling to avail herself of the protection of that country.

Article 1(F) provides for a number of circumstances in which the Convention does not apply including the case where the asylum seeker has previously committed a serious non-political crime outside the country of refuge: see paragraph (b). Article 1(C) provides for the termination of the application of the Convention due to a change of the circumstances in which she was recognised as a refugee, e.g. a material change of government. Article 32 provides for a right of expulsion of a refugee on the grounds of national security or public order: see also article 33.

In the search for the correct interpretation of the words "membership of a particular social group" the travaux preparatoires of the Convention are uninformative. The words in question were introduced at a late stage of the process leading to the finalization of the Convention. That fact tells one nothing about their contextual meaning. But the preambles to the Convention are significant. I set out the relevant preambles:

 "Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,

 "Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms.

 "Considering that it is desirable to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and the protection accorded by such instruments by means of a new agreement,

 "Considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation."

The relevance of the preambles is twofold. First, they expressly show that a premise of the Convention was that all human beings shall enjoy fundamental rights and freedoms. Secondly, and more pertinently, they show that counteracting discrimination, which is referred to in the first preamble, was a fundamental purpose of the Convention. That is reinforced by the reference in the first preamble to the Universal Declaration of Human Rights, 1948, which proclaimed the principle of the equality of all human beings and specifically provided that the entitlement to equality means equality "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.": see articles 1 and 2.

Narrowing the issue

Putting to one side the separate question whether the appellant in the Islam case can rely on the Convention ground of political opinion, the principal issue before the House is the meaning and application of the words "membership of a particular social group." It is accepted that each appellant has a well founded fear of persecution in Pakistan if she is returned to that country. The appellants are outside the country of their nationality. And they are unable to avail themselves of the protection of Pakistan. On the contrary, it is an unchallenged fact that the authorities in Pakistan are unwilling to afford protection for women circumstanced as the appellants are. Except for the requirements inherent in the words "persecution for reasons of . . . membership of a particular social group" in article 1A(2) all the conditions of that provision are satisfied. Two issues remain: (1) Do the women satisfy the requirement of "membership of a particular social group?" (2) If so, a question of causation arises, namely whether their fear of persecution is "for reasons of" membership of a particular social group. I will now concentrate on the first question. It is common ground that there is a general principle that there can only be a "particular social group" if the group exists independently of the persecution. In A. v. Minister for Immigration and Ethnic Affairs and Another (1997) 142 A.L.R. 331, 358 McHugh J. neatly explained the point as follows:

 ". . . If it were otherwise, Art. 1(A)(2) would be rendered illogical and nonsensical. It would mean that persons who had a well founded fear of persecution were members of a particular social group because they feared persecution. The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution . . ."

In other words relying on persecution to prove the existence of the group would involve circular reasoning. It is therefore unsurprising that counsel for the appellants and counsel for the United Nations High Commissioner for Refugees (UNHCR) accept the general principle that there can only be a "particular social group" if it exists independently of the persecution.

The first issue: is cohesiveness a requirement for the existence of a particular social group?

Before the Court of Appeal [1998] 1 W.L.R. 74 counsel for the Secretary of State submitted that "there is a need for the group to be homogeneous and cohesive." On that occasion counsel said that the adjective "social" refers to persons who are "interdependent or co-operative": at p. 85. This argument persuaded Staughton L.J. to rule that as a matter of law a particular social group can only exist if there is "some degree of cohesiveness, co-operation or interdependence": at 93D. If this ruling is right, the arguments of the appellants fail at the first hurdle. There is some authority for this view. The origin of the idea appears to be the decision of the United States Court of Appeals, Ninth Circuit, in Sanchez-Trujillo v. Immigration and Naturalization Service (1986) 801 F.2d 1571. This case involved young, working class Salvadoran males, who failed to do military service in El Salvador. They claimed that if they were repatriated to El Salvador they would be persecuted. They contended that they were members of a particular social group. The court held that "particular social group" implies a collection of people closely affiliated with each other: at 1576. The claimants to refugee status did not meet this standard and failed on this ground. But they also failed on the anterior ground that they were unable to demonstrate that the government of El Salvador had singled the alleged group out for persecution. On the contrary, the court found that the risk of persecution related to the existence of actual or imputed political opinion, which was found to turn on individual circumstances. This decision has been followed on the same Circuit in De Valle v. Immigration and Naturalization Service (1990) 901 F.2d 787, 793. Counsel for the Secretary of State suggested that the Court of Appeals for the Second Circuit followed Sanchez-Trujillo in Gomez v. Immigration and Naturalization Service (1990) 947 F.2d 660, 664. For my part I found the passage relied on equivocal.

In any event, on circuits other than the Ninth Circuit, a less restrictive interpretation of the words "particular social group" has been adopted. The foundation of the contrary view is the earlier decision of the Board of Immigration Appeals in In re Acosta (1985) 19 I. & N. 211. This decision was not mentioned in Sanchez-Trujillo. In Acosta the Board dismissed the claim of a collection of Salvadoran taxi drivers who allegedly feared persecution from an organised group of taxi drivers in El Salvador. The reasoning is important. The Board observed:

 "We find the well-established doctrine of ejusdem generis, meaning literally, 'of the same kind,' to be most helpful in construing the phrase 'membership in a particular social group.' That doctrine holds that general words used in an enumeration with specific words should be construed in a manner consistent with the specific words. . . . The other grounds of persecution in the Act and the Protocol listed in association with 'membership in a particular social group' are persecution on account of 'race,' 'religion,' 'nationality' and 'political opinion.' Each of these grounds describes persecution aimed at an immutable characteristic: a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed. . . Thus, the other four grounds of persecution enumerated in the Act and the Protocol restrict refugee status to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution.

 "Applying the doctrine of ejusdem generis, we interpret the phrase 'persecution on account of membership in a particular social group' to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. . . . By construing 'persecution on account of membership in a particular social group' in this manner, we preserve the concept that refuge is restricted to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution."

Support for this approach is to be found in a number of United States decisions: see Matter of Toboso-Alfonso, (unreported) 12 March 1990, Interim Decision, cited in Re: G.J. [1998] 1 N.L.R. 387, 418; Bastanipour v. Immigration and Naturalization Service (1992) 980 F.2d 1129; Fatin v. Immigration and Naturalization Service (1993) 12 F.3d 1233; Matter of Kasinga 13 June 1996, Interim Decision 3278, reported in International Journal of Refugee Law 1997, at pp. 213-234. It is therefore clear that there are divergent streams of authority in the United States. And it may be right to say that the preponderance of U.S. case law does not support Sanchez-Trujillo.