|Judgment - Islam (A.P.) v. Secretary of State for the Home Department Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.) (Conjoined Appeals) continued|
The third issue: The causation test
Having concluded on a two-fold basis that the appellants are within the scope of the words "particular social group," it is necessary to consider whether they have a well founded fear of being persecuted "for reasons of" their membership of the group in question. A question of causation is involved. Here a further legal issue arose. Counsel for the appellants argued that a 'but for' test is applicable. He relied on the adoption of such a test in the sex discrimination field: see James v. Eastleigh Borough Council  2 A.C. 751; and compare Hathaway, The Law of Refugee Status, 1991, at 140. Counsel for the Secretary of State challenged this submission. He argued that in the different context of issues of refugee status the test of effective cause--and there may be more than one effective cause--is the correct one. In the present case it makes no difference which test is applied. It matters not whether causation is approached from the vantage point of the wider or narrower social group I have identified. In either event it is plain that the admitted well founded fear of the two women is "for reasons" of their membership of the social group. Given the central feature of state-tolerated and state-sanctioned gender discrimination, the argument that the appellants fear persecution not because of membership of a social group but because of the hostility of their husbands is unrealistic. And that is so irrespective whether a "but for" test, or an effective cause test, is adopted. In these circumstances the legal issue regarding the test of causation, which did not loom large on this appeal, need not be decided.
The view of UNHCR
My Lords, Mr. Peter Duffy Q.C., counsel for the UNHCR, placed before the House all the relevant background materials and produced a valuable written review supplemented by helpful oral argument. Except to point out that the UNHCR view is wider than the grounds upon which I have reached my conclusion I do not propose to express a concluded view on the UNHCR position. My diffidence on this point is reinforced by an observation by Sedley J. in Shah. Commenting on the unique complexity of such issues Sedley J. said  Imm.A.R. 145, 153:
In the Islam case there was also a discrete issue as to whether the appellant can rely on the Convention ground of political opinion. Given my conclusions this issue falls away. Nevertheless, I must make clear that I was not attracted by this argument. The special adjudicator and the I.A.T. decided this issue against the appellant. The findings of fact were open on the evidence. There were no misdirections. In agreement with all members of the Court of Appeal I regard this ground of appeal as unsustainable.
In the Islam case I would allow the appeal and make a declaration in accordance with section 8(2) of the Asylum and Immigration Appeals Act 1993 that it would be contrary to the United Kingdom's obligations for her to be required to leave the United Kingdom. In the Shah appeal I would allow the appeal to the extent of setting aside the order of the Court of Appeal and restoring the order of Sedley J. remitting her case to the Immigration Appeal Tribunal.
In Pakistan there is widespread discrimination against women. Despite the fact that the constitution prohibits discrimination on grounds of sex, an investigation by Amnesty International at the end of 1995 reported that government attempts to improve the position of women had made little headway against strongly entrenched cultural and religious attitudes. Women who were victims of rape or domestic violence often found it difficult to obtain protection from the police or a fair hearing in the courts. In matters of sexual conduct, laws which discriminated against women and carried severe penalties remained upon the statute book. The International Bar Association reported in December 1998 that its mission to Pakistan earlier in the year "heard and saw much evidence that women in Pakistan are discriminated against and have particular problems in gaining access to justice." (Report on Aspects of the Rule of Law and Human Rights in the Legal System of Pakistan, p. 29).
These appeals concern two women who became victims of domestic violence in Pakistan, came to the United Kingdom and claimed asylum as refugees. Shahanna Islam is a graduate school teacher from Karachi. In 1990 she became involved in a playground dispute between rival gangs of politically motivated boys. Those supporting the Mohaijur Quami Movement or "MQM" told her husband, who belonged to the same party, that she had been unfaithful to him. As a result he gave her severe beatings which eventually drove her out of the house. The other woman, Syeda Shah is simple and uneducated. She was frequently beaten by her husband and eventually, when pregnant, turned out of the house. She too came to the United Kingdom, where her child was born.
Both women were given limited leave to enter the United Kingdom as visitors. Afterwards they claimed the right to remain as refugees under the 1951 Geneva Convention relating to the Status of Refugees as amended by the 1967 Protocol. The United Kingdom is a party to this Convention, which has been incorporated into domestic law by section 8 of the Asylum and Immigration Appeals Act 1993. Subsection (2) provides that a person who has limited leave to enter the United Kingdom may appeal to a special adjudicator against a refusal to vary the leave "on the ground it would be contrary to the United Kingdom's obligations under the Convention for him to be required to leave the United Kingdom after the time limited by the leave." Both accordingly appealed to a special adjudicator.
The Convention defines a refugee in article 1A(2) as a person who:
The question for the special adjudicators was whether Mrs Islam and Mrs Shah came within this definition.
Domestic violence such as was suffered by Mrs Islam and Mrs Shah in Pakistan is regrettably by no means unknown in the United Kingdom. It would not however be regarded as persecution within the meaning of the Convention. This is because the victims of violence would be entitled to the protection of the state. The perpetrators could be prosecuted in the criminal courts and the women could obtain orders restraining further molestation or excluding their husbands from the home under the Domestic Violence and Matrimonial Proceedings Act 1976. What makes it persecution in Pakistan is the fact that according to evidence which was accepted by the special adjudicator in Mrs Islam's case and formed the basis of findings which have not been challenged, the State was unwilling or unable to offer her any protection. The adjudicator found it was useless for Mrs Islam, as a woman, to complain to the police or the courts about her husband's conduct. On the contrary, the police were likely to accept her husband's allegations of infidelity and arrest her instead. The evidence of men was always deemed more credible than that of women. If she was convicted of infidelity, the penalties could be severe. Even if she was not prosecuted, as a woman separated from her husband she would be socially ostracised and vulnerable to attack, even murder, at the instigation of her husband or his political associates. The special adjudicator said:
The Immigration Appeal Tribunal summed up her position as follows:
In the case of Mrs Shah, the evidence of the legal and institutional background was much more sketchy. She said that she was afraid that if she returned to Pakistan her husband would deny paternity of the child to which she had given birth in England and either assault her himself or charge her with immorality before a religious tribunal. In her case, the special adjudicator found that she was simply a battered wife. Although as a matter of ordinary language her husband might be said to have persecuted her, it was not persecution within the meaning of the Convention.
The question in both cases was therefore whether the women had a well founded fear of persecution within the meaning of the Convention and, critically, whether such persecution was for one of the five enumerated reasons, namely, "race, religion, nationality, membership of a particular social group or political opinion." Of these, the only serious candidate for consideration was that they feared persecution because they were members of a "particular social group." There was an attempt to argue that Mrs Islam was being persecuted by the MQM and her husband for her political opinions, but I agree with my noble and learned friend Lord Steyn that this was not made out on the evidence.
The problem for both women was to specify the "social group" of which they claimed their membership had given rise to persecution. Mrs Shah's counsel seems to have tried to persuade the special adjudicator that "women who had suffered domestic violence" were a social group. This submission was rejected and the application dismissed. Her application to the Immigration Appeal Tribunal for leave to appeal was refused on the ground that the special adjudicator had found against her on the facts. She moved for judicial review before Sedley J., where counsel for the Home Office conceded that this reason was a bad one:  Imm.A.R. 145. The special adjudicator had entirely accepted her version of the facts but ruled that the reason for her apprehended persecution was not her membership of anything which could as a matter of law qualify as a "social group." Sedley J. then proceeded to consider whether she had any reasonable prospect of satisfying the tribunal that she was being persecuted for such a reason. Her counsel made several attempts to define the group: one was "women who are perceived to have transgressed Islamic mores" and another was "women rejected by their husbands on the ground of alleged adultery." Sedley J. was sceptical of both these formulations but said that there was nevertheless a sufficiently arguable case to go before the Tribunal, which would be entitled to hear evidence about the social and legal background which had not been before the special adjudicator. "Its adjudication", said the judge, at p. 153: