Secretary of State for the Home Department (Respondent) v. K (FC) (Appellant)
Fornah (FC) (Appellant) v. Secretary of State for the Home Department (Respondent)
13. Certain important points of principle relevant to these appeals are to be derived from the opinions of the House. First, the Convention is concerned not with all cases of persecution but with persecution which is based on discrimination, the making of distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being: pp 651, 656. Secondly, to identify a social group one must first identify the society of which it forms part; a particular social group may be recognisable as such in one country but not in another: pp 652, 657. Thirdly, a social group need not be cohesive to be recognised as such: pp 643, 651, 657. Fourthly, applying Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 263, there can only be a particular social group if it exists independently of the persecution to which it is subject: pp 639-640, 656-657, 658.
14. In Shah and Islam, the House cited and relied strongly on In re Acosta (1985) 19 I&N 211, a relatively early American decision given by the Board of Immigration Appeals. Construing "membership of a particular social group" ejusdem generis with the other grounds of persecution recognised by the Convention, the Board held the expression to refer to a group of persons all of whom share a common characteristic, which may be one the members cannot change or may be one that they should not be required to change because it is fundamental to their individual identities or consciences. The Supreme Court of Canada relied on and elaborated this approach in Attorney-General of Canada v Ward  2 SCR 689, 738-739, and La Forest J reverted to it in his dissent in Chan v Canada (Minister of Employment and Immigration)  3 SCR 593, 642-644. The trend of authority in New Zealand has been generally in accord with Acosta and Ward: T A Aleinikoff, "Protected characteristics and social perceptions: an analysis of the meaning of 'membership of a particular social group'" UNHCR's Global Consultations on International Protection, ed Feller, Türk and Nicholson, (2003), pp 263, 280. The leading Canadian authorities were considered by the High Court of Australia in Applicant A, above, where the court was divided as to the outcome but the judgments yield valuable insights. Brennan CJ, at p 234, observed:
Dawson J (p 241) saw no reason to confine a particular social group to small groups or to large ones; a family or a group of many millions might each be a particular social group. Gummow J (p 285) did not regard numerous individuals with similar characteristics or aspirations as comprising a particular social group of which they were members: there must be a common unifying element binding the members together before there would be a social group of this kind.
15. Increased reliance on membership of a particular social group as a ground for claiming asylum prompted the UNHCR to convene an expert meeting at San Remo in September 2001, which was followed on 7 May 2002 by the issue of Guidelines on International Protection directed to clarifying this ground of claim. Having identified what it called the "protected characteristics" or "immutability" and "social perception" approaches, which it suggested would usually, but not always, converge, the UNHCR proposed:
The UNHCR accepted that a particular social group could not be defined exclusively by the persecution members suffer or fear, but also accepted the view advanced in Applicant A and accepted by some members of the House in Shah and Islam that persecutory action towards a group may be a relevant factor in determining the visibility of a group in a particular society. It appears to me that the UNHCR Guidelines, clearly based on a careful reading of the international authorities, provide a very accurate and helpful distillation of their effect.
16. EU Council Directive 2004/83/EC of 29 April 2004, effective as of 10 October 2006, is directed to the setting of minimum standards among member states for the qualification and status of third country nationals or stateless persons as refugees, or as persons who otherwise need international protection, and setting minimum standards for the content of the protection granted. The recitals recognise the need for minimum standards and common criteria in the recognition of refugees, and for a common concept of "membership of a particular social group as a persecution ground". The Directive expressly permits member states to apply standards more favourable to the applicant than the minimum laid down. Article 10 provides (with Roman numerals added to the text):
Read literally, this provision is in no way inconsistent with the trend of international authority. When assessing a claim based on membership of a particular social group national authorities should certainly take the matters listed into account. I do not doubt that a group should be considered to form a particular social group where, in particular, the criteria in sub-paragraphs (i) and (ii) are both satisfied. Sub-paragraph (iii) is not wholly clear to me, but appears in part to address a different aspect. If, however, this article were interpreted as meaning that a social group should only be recognised as a particular social group for purposes of the Convention if it satisfies the criteria in both of sub-paragraphs (i) and (ii), then in my opinion it propounds a test more stringent than is warranted by international authority. In its published Comments on this Directive (January 2005) the UNHCR adheres to its view that the criteria in sub-paragraphs (i) and (ii) should be treated as alternatives, providing for recognition of a particular social group where either criterion is met and not requiring that both be met. With regard to (iii), the UNHCR comments:
The meaning of "for reasons of"
17. The text of article 1A(2) of the Convention makes plain that a person is entitled to claim recognition as a refugee only where the persecutory treatment of which the claimant has a well-founded fear is causally linked with the Convention ground on which the claimant relies. The ground on which the claimant relies need not be the only or even the primary reason for the apprehended persecution. It is enough that the ground relied on is an effective reason. The persecutory treatment need not be motivated by enmity, malignity or animus on the part of the persecutor, whose professed or apparent motives may or may not be the real reason for the persecution. What matters is the real reason. In deciding whether the causal link is established, a simple "but for" test of causation is inappropriate: the Convention calls for a more sophisticated approach, appropriate to the context and taking account of all the facts and circumstances relevant to the particular case.
18. I do not understand these propositions to be contentious. They are in my opinion well-attested by authorities such as Shah and Islam, above, pp 653-655; R(Sivakumar) v Secretary of State for the Home Department  UKHL 14,  1 WLR 840, paras 41-42; Sepet v Secretary of State for the Home Department  UKHL 15,  1 WLR 856, paras 21-23; Suarez v Secretary of State for the Home Department  EWCA Civ 722,  1 WLR 2663, para 29; Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, paras 32-33, 67-71; Minister for Immigration and Multicultural Affairs v Sarrazola  FCA 263, para 52; and Thomas v Gonzales 409 F 3d 1177 (9th Cir, 2005). They are also reflected in the Michigan Guidelines on Nexus to a Convention Ground, published following a colloquium in March 2001. Whatever the difficulty of applying it in a particular case, I do not think that the test of causation is problematical in principle.
The claim of the first appellant
19. The persecution feared by the first appellant was said to be for reasons of her membership of a particular social group, namely her husband's family. In resisting her claim the Secretary of State did not seek to contend that a family cannot be a particular social group for purposes of the Convention. He accepted that it could, consistently with the submission of counsel on his behalf in Skenderaj v Secretary of State for the Home Department  EWCA Civ 567,  4 All ER 555, para 21, that
The Secretary of State's acceptance reflects a consensus very clearly established by earlier domestic authority such as Secretary of State for the Home Department v Savchenkov  Imm AR 28, and also by international authority. In Minister for Immigration and Multicultural Affairs v Sarrazola  FCA 263, paras 28-34, there was held to be little doubt that persecution by reason of being a member of a particular family could constitute persecution for reasons of membership of a particular social group. In Thomas v Gonzales, above, the conclusion was reached
The consensus is clearly reflected in the academic literature: J Hathaway, The Law of Refugee Status (1991), pp 164-166; G S Goodwin-Gill, The Refugee in International Law (1996), p 361.
20. A special problem has been thought to arise where a family member attracts the adverse attention of the authorities, whether for non-Convention reasons or reasons unknown, and persecutory treatment is then directed to other family members. Laws J, sitting at first instance, addressed this problem in obiter observations in R v Immigration Appeal Tribunal, Ex p De Melo  Imm AR 43, 49-50, when he said:
These observations of Laws J were relied on by the appellant in Fabian Martinez Quijano v Secretary of State for the Home Department  Imm AR 227, where the appellant's claim related to persecutory treatment directed to him because of his relationship with his stepfather who had crossed a Columbian drug baron. His appeal to the Court of Appeal against an adverse decision given before De Melo was unsuccessful. The reason given by Thorpe LJ at p 232 was this:
Morritt LJ (p 233) put it a little differently:
Roch LJ (p 234) also put the point differently:
21. The reasoning of Laws J in De Melo was in my respectful opinion correct, and the Court of Appeal were wrong to reject it in Quijano. The drug baron's persecution of the stepfather was plainly not for a Convention reason, and he could not have claimed recognition as a refugee. But there was nothing in the facts as briefly reported to suggest that the real reason for the persecutory treatment of the appellant was anything other than his family relationship with his stepfather. That relationship may in one sense have been fortuitous and incidental, as Thorpe LJ described it, but if it was the reason for the persecution he feared it was, in principle, enough. Morritt LJ, as I read him, asked himself what was the cause of the appellant's fear and not, as he should, what was the cause of the apprehended persecution. Roch LJ accepted the argument which Laws J rejected, in my view rightly, in De Melo.
22. In the present case the Immigration Appeal Tribunal followed Quijano (see para 3 above), as it was bound to do. The Court of Appeal were also bound by the court's earlier decision which, as accepted by Laws LJ in his leading judgment (para 11), had overruled his judgment in De Melo. The short answer to the appeal, he held (para 20), was the answer given in Quijano. Clarke LJ had obvious difficulty accepting the ratio of Quijano, but did so for reasons which he expressed in this way (para 27):
Tuckey LJ agreed with both judgments. The binding authority of Quijano presented the court with an insoluble problem, by distracting attention from the crucial question: what will be the real reason for the persecution of the claimant of which the claimant has a well-founded fear?
23. I am satisfied that the Immigration Appeal Tribunal and the Court of Appeal, through no fault of their own, reversed the Adjudicator's decision on a false basis. But it does not follow that the first appellant's claim should have succeeded. The Secretary of State points out that when the first appellant made herself scarce after the two visits to her house by Revolutionary Guards, there was no further approach to her, even when she visited her husband in prison, and there was no evidence of pressure on any other family member. These are fair points, and the Adjudicator might have accepted them and rejected the first appellant's claim. But having heard the evidence he did not, and made a clear finding that the persecution she feared would be of her as a member of her husband's family. It is not indeed easy to see any basis other than their relationship with her husband for the authorities' severe ill-treatment of the first appellant and their deliberately menacing conduct towards her young son. The Secretary of State suggests that the real reason for the persecution feared was not her membership of her husband's family but her bilateral marriage relationship with her husband, but this does not account for the implied threat to the child.
24. Since it is common ground that a family may be a particular social group for purposes of article 1A(2), the questions here are whether the Adjudicator was entitled to conclude that on the facts the family of the first appellant's husband was such a group and, if so, whether the real reason for the persecution which she feared was her membership of that group. Whether applying the UNHCR definition (para 15 above) or article 10(d)(i) and (ii), jointly or alternatively, of the EU Directive (para 16 above), I am of opinion that he was clearly so entitled. Subject to a correct self-direction of law, the second question is one of fact: the Adjudicator did not misdirect himself and reached a tenable conclusion. For these reasons, and those given by my noble and learned friend Lord Rodger of Earlsferry, I would accordingly allow the first appellant's appeal, set aside the orders of the Immigration Appeal Tribunal and the Court of Appeal and restore the order of the Adjudicator.
The second appellant's claim
25. It is common ground in this appeal that FGM constitutes treatment which would amount to persecution within the meaning of the Convention and that if the second appellant was, as she contends, a member of a particular social group the persecution of her would be for reasons of her membership of that group. Thus the very limited issue between the parties is whether the second appellant was a member of a particular social group, however defined. The parties' agreement that fear of FGM may found a successful claim to recognition as a refugee (if for reasons of membership of a particular social group) obviates the need to analyse a mass of material which would otherwise be relevant. But in truth the parties' agreement on this point is all but inevitable, for a number of reasons.
26. First, claims based on fear of FGM have been recognised or upheld in courts all round the world. Such decisions have been made in England and Wales (Yake v Secretary of State for the Home Department, 19 January 2000, unreported; P and M v Secretary of State for the Home Department  EWCA Civ 1640  Imm AR 84), the United States (In re Kasinga (1996) 21 I & N Dec 357, Abankwah v Immigration and Naturalization Service 185 F 3d 18 (2d Cir 1999), Mohammed v Gonzales 400 F 3d 785 (9th Cir 2005), Australia (RRT N97/19046, unreported, 16 October 1997), Austria (GZ 220.268/0-XI/33/00, unreported, 21 March 2002), and Canada (Re B(PV)  CRDD No 12, 10 May 1994; and Compendium of Decisions, Immigration and Refugee Board, February 2003, pp 31-35). Secondly, such agreement is consistent with clearly expressed opinions of the UNHCR. Representative of its consistent view is a memorandum of 10 May 1994 on Female Genital Mutilation, which in para 7 says:
Thirdly, this agreement is consistent with the view taken by the European Parliament, which on 20 September 2001 adopted a resolution (A5-0285/2001) expressing the hope that the European institutions and member states should recognise the right to asylum of women and girls at risk of being subjected to FGM and calling for the UN General Assembly to give priority to the topic 'access to asylum procedures for women at risk of female genital mutilation.' Fourthly, the agreement is consistent with guidelines issued by national authorities, including those of Canada ("Women Refugee Claimants Fearing Gender-Related Persecution", 13 November 1996), Australia ("Gender-Related Persecution (Article 1A(2): An Australian Perspective", Department of Immigration and Multicultural and Indigenous Affairs, 2001). A similar approach has been officially taken in this country. In guidance entitled "Gender issues in the asylum claim" the Home Office states (in para 7(iv)):
This reflects a statement made by Miss Ann Widdecombe MP in the House of Commons on 15 July 1996 (HC Hansard, col 818):
Fifthly and more generally, the parties' agreement is wholly consistent with the humanitarian objectives of the Convention and reflects the international abhorrence of FGM expressed in the instruments compendiously referred to in para 8 above.