Judgments - Secretary of State for the Home Department (Respondent) v. K (FC) (Appellant) Fornah (FC) (Appellant) v. Secretary of State for the Home Department (Respondent)

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    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 [1993] 2 SCR 689, 738-739, and La Forest J reverted to it in his dissent in Chan v Canada (Minister of Employment and Immigration) [1995] 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:

    "By the ordinary meaning of the words used, a 'particular group' is a group identifiable by any characteristic common to the members of the group and a 'social group' is a group the members of which possess some characteristic which distinguishes them from society at large. The characteristic may consist in any attribute, including attributes of non-criminal conduct or family life, which distinguish the member of the group from society at large. The persons possessing any such characteristic form a particular social group".

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:

    "B.  UNHCR's Definition

    10.  Given the varying approaches, and the protection gaps which can result, UNHCR believes that the two approaches ought to be reconciled.

    11.  The protected characteristics approach may be understood to identify a set of groups that constitute the core of the social perception analysis. Accordingly, it is appropriate to adopt a single standard that incorporates both dominant approaches:

    a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one's human rights.

    12.  This definition includes characteristics which are historical and therefore cannot be changed, and those which, though it is possible to change them, ought not to be required to be changed because they are so closely linked to the identity of the person or are an expression of fundamental human rights. It follows that sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently to men.

    13.  If a claimant alleges a social group that is based on a characteristic determined to be neither unalterable or fundamental, further analysis should be undertaken to determine whether the group is nonetheless perceived as a cognizable group in that society. So, for example, if it were determined that owning a shop or participating in a certain occupation in a particular society is neither unchangeable nor a fundamental aspect of human identity, a shopkeeper or members of a particular profession might nonetheless constitute a particular social group if in the society they are recognized as a group which sets them apart."

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):

    "Reasons for persecution

    I  Member States shall take the following elements into account when assessing the reasons for persecution …

    (d)  a group shall be considered to form a particular social group where in particular:

    [(i)]  members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and

    [(ii)]  that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;

    [(iii)]  depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article."

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:

    "With respect to the provision that '[g]ender related aspects might be considered, without by themselves alone creating a presumption for the applicability of the article,' UNHCR notes that courts and administrative bodies in a number of jurisdictions have found that women, for example, can constitute a particular social group within the meaning of Article 1A(2). Gender is a clear example of a social subset of persons who are defined by innate and immutable characteristics and who are frequently subject to differentiated treatment and standards. This does not mean that all women in the society qualify for refugee status. A claimant must demonstrate a well-founded fear of being persecuted based on her membership in the particular social group.

    Even though less has been said in relation to the age dimension in the interpretation and application of international refugee law, the range of potential claims where age is a relevant factor is broad, including forcible or under-age recruitment into military service, (forced) child marriage, female genital mutilation, child trafficking, or child pornography or abuse. Some claims that are age-related may also include a gender element and compound the vulnerability of the claimant."

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 [2003] UKHL 14, [2003] 1 WLR 840, paras 41-42; Sepet v Secretary of State for the Home Department [2003] UKHL 15, [2003] 1 WLR 856, paras 21-23; Suarez v Secretary of State for the Home Department [2002] EWCA Civ 722, [2002] 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 [2001] 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 [2002] EWCA Civ 567, [2002] 4 All ER 555, para 21, that

    "a family group could be a particular social group, since society recognises the family bond as distinct and attaches importance to it, but only if society also sets it apart in such a way as to stigmatise or discriminate against it for that reason."

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 [1996] Imm AR 28, and also by international authority. In Minister for Immigration and Multicultural Affairs v Sarrazola [2001] 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

    "that the harm suffered by the Thomases was not the result of random crime, but was perpetrated on account of their family membership, specifically on account of the family relationship with Boss Ronnie."

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 [1997] Imm AR 43, 49-50, when he said:

    "It is necessary next to examine the second question: is the alleged or actual persecution 'for the reasons of … membership of a particular social group'? Mr Kovats [for the Secretary of State] submits as follows. Where an individual is persecuted for a non-Convention reason, concurrent or subsequent threats (or, presumably, acts) against his family likewise cannot be regarded as persecution for a Convention reason. If it were otherwise, the person initially ill treated—here, the father—would have no claim to asylum under the 1951 Convention, and so it would be anomalous were the members of his family, persecuted or ill-treated simply because of their association with him, to be accorded Convention rights.

    I do not consider that this argument is correct. Let it be assumed that an individual has been ill-treated or terrorised for a reason having nothing to do with the Convention. He has no Convention rights. But, on the view I have taken, his family may form a particular social group within the meaning of the Convention. If then they are persecuted because of their connection with him, it is as a matter of ordinary language and logic, for reasons of their membership of a family—the group—that they are persecuted. I see nothing anomalous in this. The original evil which gives rise to persecution against an individual is one thing; if it is then transferred so that a family is persecuted, on the face of it that will come within the Convention. The definition of 'refugee' in article 1 of the Convention treats membership of a particular social group as being in pari materia with the other 'Convention reasons' for persecution: race, religion and so forth. Mr Kovats' argument implies, however, that membership of a particular social group is (at least on some sets of facts) to be regarded as merely adjectival to or parasitic upon the other reasons. With deference to him, that in my judgment amounts to a misconstruction of article 1 with the consequence that his submission proceeds on a false premise. Moreover I incline to think that the argument accords to the persecutor's motive a status not warranted by the Convention's words. The motive may be to terrorise the person against whom the persecutor entertains ill will (for a 'non-Convention' reason) by getting at his family; but when it comes to the question whether the family are persecuted by reason of their membership of a particular social group—the family—I do not see that the persecutor's motive has any relevance."

These observations of Laws J were relied on by the appellant in Fabian Martinez Quijano v Secretary of State for the Home Department [1997] 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:

    "Second I conclude that the persecution arises not because the appellant is a member of the Martinez family but because of his stepfather's no doubt laudable refusal to do business with the cartel. The persecution has that plain origin and the cartel's subsequent decision to take punitive action against an individual related by marriage is fortuitous and incidental as would have been a decision to take punitive action against the stepfather's partners and their employees had the business been of that dimension."

Morritt LJ (p 233) put it a little differently:

    "But the fear of each member of the group is not derived from or a consequence of their relationship with each other or their membership of the group but because of their relationship, actual or as perceived by the drugs cartel, with the stepfather of the appellant. The stepfather was not persecuted for any Convention reason so that their individual relationship with him cannot cause a fear [for] a Convention reason either. In short the assumed fear of the appellant is not caused by his membership of a particular social group."

Roch LJ (p 234) also put the point differently:

    "The anomaly that would arise in the present case, were the arguments of the appellant's counsel to be correct, that the appellant's stepfather would not be entitled to claim political asylum under the Convention, whereas all other members of the family would be entitled to political asylum, is merely an indicator that this family is not 'a social group' liable to persecution because it is 'a particular social group'. The other members of the family are being persecuted because they are related to the stepfather who has offended the drug cartel, who have decided to retaliate against the stepfather by persecuting him and members of his family. Who will constitute part of the family or social group is entirely the decision of the drug cartel. It may include those living in the stepfather's house who are not related to him by blood or marriage. These considerations underline, in my opinion, the fact that in the circumstances of this case the Martinez family is not 'a particular social group'.

    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):

    "The reference to 'for reasons of membership' of such a group, say a family, suggests that the focus should be on the persecutor's purpose (my emphasis). As Laws LJ put it, the feared persecution must be the persecutor's end and not a means to another end. That is essentially what was decided in Quijano. It is not therefore sufficient to ask simply why B was being persecuted. The answer to that question could be that it was for two reasons, namely the persecutor's wish to persecute A and the family relationship between B and A. If, as Quijano shows, the purpose or end of the persecutor is the key factor in the context of the Convention, the answer becomes clear. It is that B does not have a well founded fear of persecution for reasons of membership of his or her family because the persecution feared is not for those reasons but for whatever reasons prompted the authorities to persecute A."

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 [2004] EWCA Civ 1640 [2005] 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) [1994] 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:

    "On this basis, we must conclude that FGM, which causes severe pain as well as permanent physical harm, amounts to a violation of human rights, including the rights of the child, and can be regarded as persecution. The toleration of these acts by the authorities, or the unwillingness of the authorities to provide protection against them, amounts to official acquiescence. Therefore, a woman can be considered as a refugee if she or her daughters/dependents fear being compelled to undergo FGM against their will; or, she fears persecution for refusing to undergo or to allow her daughters to undergo the practice."

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)):

    "Women who may be subject to FGM have been found by the courts in some circumstances to constitute a particular social group for the purposes of the 1951 Convention. Whether a PSG exists will depend on the conditions in the 'society' from which the claimant comes. If there is a well-founded fear, which includes evidence that FGM is knowingly tolerated by the authorities or they are unable to offer effective protection, and there is no possibility of an internal flight option, a claimant who claims that she would on return to her home country suffer FGM may qualify for refugee status."

This reflects a statement made by Miss Ann Widdecombe MP in the House of Commons on 15 July 1996 (HC Hansard, col 818):

    "I stress that both personally and as a Minister I utterly accept that forcible abortion, sterilisation, genital mutilation and allied practices would almost always constitute torture. In fact, they would probably always constitute torture. There is no doubt in my mind that anyone making a case to us on those grounds would have an extremely good case for asylum."

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.

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