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

(back to preceding text)
     "is not a conventional lawyer's exercise of applying a legal litmus test to ascertained facts; it is a global appraisal of an individual's past and prospective situation in a particular cultural, social, political and legal milieu, judged by a test which, though it has legal and linguistic limits, has a broad humanitarian purpose."

He therefore made granted mandamus ordering the Tribunal to hear and determine the appeal.

Mrs Islam also argued before the special adjudicator that she feared persecution because she belonged to a social group defined as "Pakistani women subject to domestic violence, namely wife abuse." The special adjudicator found that such a group, defined by reference to its fear of persecution, could not constitute a social group for the purposes of the Convention. The argument was a circular one: if one belonged to a group because one shared a common fear of persecution, one could not be said to be persecuted because one belonged to that group. This decision was upheld by the Immigration Appeal Tribunal.

The Secretary of State appealed against the decision of Sedley J. and Mrs Islam appealed against the decision of the Immigration Appeal Tribunal. The Court of Appeal (Staughton, Waite and Henry L.JJ.) heard both appeals together. By this time, the definition of the social group had been greatly elaborated. Mr. Blake Q.C. who appeared, as he did before your Lordships, for the women, defined it as "Pakistani women . . . accused of transgressing social mores (in the instant case, adultery, disobedience to husbands) . . . who are unprotected by their husbands or other male relatives." This, he submitted, was not a group defined by its common fear of persecution. It had objective distinguishing features in its sex, isolation (being abandoned by the husband and having no male relative to turn to) and being ostracised because perceived to be deserving of condemnation by the community for infringement of the sexual code for woman. But the Court of Appeal [1998] 1 W.L.R. 74 held that these features (apart from sex) were all the product of the persecution itself. If one took away the persecution, then, as Waite L.J. said, at p. 87G, "the stigma and the isolation necessarily depart with them. They are not the independent attributes of a particular group." Staughton and Henry L.JJ. agreed but Staughton L.J., at p. 93D and possibly also Henry L.J. (the judgment is not altogether free from ambiguity on this point) also rejected the alleged social group on the additional ground that it lacked "cohesiveness, co-operation or interdependence." Its members were solitary individuals having no contact with each other. The Court of Appeal therefore allowed the appeal against the judgment of Sedley J. in favour of Mrs Shah and dismissed Mrs Islam's appeal from the Immigration Appeal Tribunal. Against those decisions, Mrs Shah and Mrs Islam appeal to your Lordship's House. In hearing the appeal, the House has been greatly assisted by the intervention of the United Nations High Commissioner for Refugees, who was represented by Mr. Peter Duffy Q.C., whose untimely death since the hearing in this appeal has deprived the Bar and the cause of human rights of one of its brightest talents,

The travaux preparatoires for the Geneva Convention shed little light on the meaning of "particular social group." It appears to have been added to the draft at the suggestion of the Swedish delegate, who said that "experience had shown that certain refugees had been persecuted because they belonged to particular social groups." It seems to me, however, that the general intention is clear enough. The preamble to the Convention begins with the words:

     "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."

In my opinion, the concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention. It is concerned not with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination. And in the context of a human rights instrument, discrimination means making distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being to equal treatment and respect. The obvious examples, based on the experience of the persecutions in Europe which would have been in the minds of the delegates in 1951, were race, religion, nationality and political opinion. But the inclusion of "particular social group" recognised that there might be different criteria for discrimination, in pari materiae with discrimination on the other grounds, which would be equally offensive to principles of human rights. It is plausibly suggested that the delegates may have had in mind persecutions in Communist countries of people who were stigmatised as members of the bourgeoisie. But the concept of a social group is a general one and its meaning cannot be confined to those social groups which the framers of the Convention may have had in mind. In choosing to use the general term "particular social group" rather than an enumeration of specific social groups, the framers of the Convention were in my opinion intending to include whatever groups might be regarded as coming within the anti-discriminatory objectives of the Convention.

The notion that the Convention is concerned with discrimination on grounds inconsistent with principles of human rights is reflected in the influential decision of the U.S. Board of Immigration Appeals in In re Acosta (1985) 19 I. & N. 211 where it was said that a social group for the purposes of the Convention was one distinguished by:

     "an immutable characteristic . . . [a characteristic] that either is beyond the power of an individual to change or that is so fundamental to his identity or conscience that it ought not to be required to be changed."

This was true of the other four grounds enumerated in the Convention. It is because they are either immutable or part of an individual's fundamental right to choose for himself that discrimination on such grounds is contrary to principles of human rights.

It follows that I cannot accept that the term "particular social group" implies an additional element of cohesiveness, co-operation or interdependence. The fact that members of a group may or may not have some form of organisation or interdependence seems to me irrelevant to the question of whether it would be contrary to principles of human rights to discriminate against its members. Among the other four categories, "race" and "nationality" do not imply any idea of co-operation; "religion" and "political opinion" might, although it could be minimal. In the context of the Convention it seems to me a contingent rather than essential characteristic of a social group. In the opinion of Judge Beezer for the U.S. Court of Appeals in Sanchez Trujillo v. Immigration and Naturalization Service (9th Cir. 1986) 801 F.2nd 1571) it was said that "'particular social group' implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest." This remark has been taken up in some (but not all) other U.S. cases. It has however been rejected by the Supreme Court of Canada in Attorney-General of Canada v. Ward (1993) 103 D.L.R. (4th) 1 and the High Court of Australia in A. v. Minister for Immigration and Ethnic Affairs [1998] I.N.L.R. 1 I would reject it also. I agree with La Forest J. in the Ward case when he said (at p. 34) that "social group" could include individuals fearing persecution on "such bases as gender, linguistic background and sexual orientation." None of these implies any form of interdependence or co-operation.

To what social group, if any, did the appellants belong? To identify a social group, one must first identify the society of which it forms a part. In this case, the society is plainly that of Pakistan. Within that society, it seems to me that women form a social group of the kind contemplated by the Convention. Discrimination against women in matters of fundamental human rights on the ground that they are women is plainly in pari materiae with discrimination on grounds of race. It offends against their rights as human beings to equal treatment and respect. It may seem strange that sex (or gender) was not specifically enumerated in the Convention when it is mentioned in article 2 of the Universal Declaration of Human Rights. But the Convention was originally limited to persons who had become refugees as a result of events occurring before 1 January 1951. One can only suppose that the delegates could not think of cases before that date in which women had been persecuted because they were women. But the time limit was removed by the 1967 New York Protocol and the concept of a social group is in my view perfectly adequate to accommodate women as a group in a society that discriminates on grounds of sex, that is to say, that perceives women as not being entitled to the same fundamental rights as men. As we have seen, La Forest J. in the Ward case had no difficulty in saying that persecution on grounds of gender would be persecution on account of membership of a social group. I therefore think that women in Pakistan are a social group.

As we have seen, however, the appellants in the Court of Appeal did not say that they feared persecution simply on the ground that they were women. They produced a much more restricted and complicated definition of the social group to which they claimed to belong and membership of which was said to be the ground for their persecution. In so doing, they introduced into the definition elements which the Court of Appeal regarded as arbitrary except by reference to the persecution they feared. Thus they found that the parts of the definition which restricted the group to anything narrower than the entire sex were essentially circular and incapable of defining a group for the purposes of the Convention.

The reason why the appellants chose to put forward this restricted and artificial definition of their social group was to pre-empt the question of whether their feared persecution was "for reasons of" their membership of the wider group of women. It was argued for the Secretary of State that they could not fear persecution simply for the reason that they were women. The vast majority of women in Pakistan conformed to the customs of their society, did not chafe against discrimination or have bullying husbands, and were not persecuted. Being a woman could not therefore be a reason for persecution. The question is essentially one of causation. Being a woman does not necessarily result in persecution and therefore cannot be the reason for those cases in which women are persecuted. The appellants' argument in the Court of Appeal accepted this reasoning and tried to confess and avoid by opting for a sub-category of women.

I do not need to express a view about whether this strategy should have succeeded because, as I shall explain in a moment, I think that the argument on causation which it was designed to meet is fallacious. The question is therefore capable of being given a much simpler answer. The strategy probably derives from conclusion 39 "Refugees, Women and International Protection" adopted by the Executive Committee of the United Nations High Commission for Refugees in 1985, which read as follows:

     ". . . [S]tates in the exercise of their sovereignty, are free to adopt the interpretation that women asylum seekers who face harsh or inhuman treatment due to their having transgressed social mores of the society in which they live may be regarded as a 'particular social group' within the meaning of article 1 A(2) of the 1951 United Nations Refugee Convention."

This was a well-meaning attempt to encourage a more liberal treatment of women refugees, who frequently did not conform to the standard characteristics of the male refugees, fleeing for racial or political reasons, with which national authorities were familiar. But I think that, whether right or wrong, it unnecessarily overcomplicates the matter.

I turn, therefore, to the question of causation. What is the reason for the persecution which the appellants fear? Here it is important to notice that it is made up of two elements. First, there is the threat of violence to Mrs Islam by her husband and his political friends and to Mrs Shah by her husband. This is a personal affair, directed against them as individuals. Secondly, there is the inability or unwillingness of the State to do anything to protect them. There is nothing personal about this. The evidence was that the State would not assist them because they were women. It denied them a protection against violence which it would have given to men. These two elements have to be combined to constitute persecution within the meaning of the Convention. As the Gender Guidelines for the Determination of Asylum Claims in the UK (published by the Refugee Women's Legal Group in July 1988) succinctly puts it (at p. 5): "Persecution = Serious Harm + The Failure of State Protection."

Answers to questions about causation will often differ according to the context in which the question is asked. (See Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd. [1998] 2 W.L.R. 350). Suppose oneself in Germany in 1935. There is discrimination against Jews in general, but not all Jews are persecuted. Those who conform to the discriminatory laws, wear yellow stars out of doors and so forth can go about their ordinary business. But those who contravene the racial laws are persecuted. Are they being persecuted on grounds of race? In my opinion, they plainly are. It is therefore a fallacy to say that because not all members of a class are being persecuted, it follows that persecution of a few cannot be on grounds of membership of that class. Or to come nearer to the facts of the present case, suppose that the Nazi government in those early days did not actively organise violence against Jews, but pursued a policy of not giving any protection to Jews subjected to violence by neighbours. A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor who smash his shop, beat him up and threaten to do it again if he remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal scores, but they would not have done what they did unless they knew that the authorities would allow them to act with impunity. And the ground upon which they enjoyed impunity was that the victim was a Jew. Is he being persecuted on grounds of race? Again, in my opinion, he is. An essential element in the persecution, the failure of the authorities to provide protection, is based upon race. It is true that one answer to the question "Why was he attacked?" would be "because a competitor wanted to drive him out of business." But another answer, and in my view the right answer in the context of the Convention, would be "he was attacked by a competitor who knew that he would receive no protection because he was a Jew."