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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    27.  Asylum claims founded on gender-based discrimination have sometimes succeeded on the ground of membership of a particular social group widely defined. Shah and Islam, above, and Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 (in each case "women in Pakistan") are examples, and, with reference to FGM, P and M v Secretary of State for the Home Department, above, paras 41, 49 ("women in Kenya", although this was qualified by "particularly Kikuyu women under the age of 65) and Re B(PV), above ("women and minors"). In other FGM cases the particular social group has been more narrowly defined: "young women of the Tchamba-Kunsuntu Tribe [of northern Togo] who have not had FGM, as practiced [sic] by that tribe, and who oppose the practice" (In re Kasinga, above); "Cameroonian women subject to mutilation" (GZ, above); "Yoruba women in Nigeria" (RRT N97/19046, above) and "a Yopougon woman [of the Ivory Coast] who may be subject to FGM" (Yake, above). On occasion, as in Shah and Islam, above, alternative definitions of the particular social group have been found acceptable, as in Mohammed v Gonzales, above, where "young girls in the Benadiri clan" and "Somalian females" were both held to be particular social groups.

    28.  When the second appellant's case was presented in the Court of Appeal, her counsel submitted that the relevant particular social group was "young single women in Sierra Leone who are at risk of circumcision", which was between 80% and 90% of them ([2005] 1 WLR 3773, para 21) but Auld LJ considered (para 30) the nearest candidate for such grouping to be "young single women who have not been circumcised and who are, therefore, at risk of circumcision". Having reviewed the evidence and the authorities in some considerable detail, he expressed his conclusion in para 44 of his judgment:

    "Applying those considerations to the facts of this case, I have reached the view that the pointers are away from, rather than towards, female genital mutilation of young, single and uncircumcised Sierra Leonean women constituting persecution 'for reasons of' their membership of a 'particular social group'. They are as follows. (1) The practice, however repulsive to most societies outside Sierra Leone, is, on the objective evidence before the adjudicator and the tribunal, clearly accepted and/or regarded by the majority of the population of that country, both women and men, as traditional and part of the cultural life of its society as a whole. (2) Far from the persecution that the Pakistan women feared in R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629 by reason of their circumstances, namely ostracism by society and discrimination by the state in its failure to protect their fundamental human rights, the persecution here would result in a full acceptance by Sierra Leonean society of those young women who undergo the practice into adulthood, fit for marriage and to take a full part as women in the life of their communities. (3) It follows that, however harshly we may stigmatise the practice as persecution for the purpose of article 3, it is not, in the circumstances in which it is practised in Sierra Leone, discriminatory in such a way as to set those who undergo it apart from society. It is, as McHugh J observed in the Applicant A v Minister of Immigration and Ethnic Affairs 71 ALJR 381, 397 (see para 29 above), important to keep in mind the composite nature of the asylum test, and, as Lord Hope emphasised in Ex p Shah, at p 656 (see para 31 above), the distinction between persecution and discriminatory conduct giving rise to it. (4) Considered on its own, a critical common characteristic of the claimed 'particular social group' is that its members have not been circumcised. But, as soon as they have undergone the practice, they cease to be members of the group. To confine the grouping to young, single girls who, for the time being, have not been circumcised, though logical, would be contrary to the general rule that it is impermissible to define the group solely by reference to the threat of the persecution. (5) As to the possible qualification of the general rule by reference to insufficiency of state protection, this case, as I have said, is readily distinguishable from Ex p Shah. As Lord Steyn, put it in that case, at p 644, when identifying the rationale for the formula 'for reasons of … membership of a particular social group':

    'This reasoning covers Pakistani women because they are discriminated against and as a group they are unprotected by the state. Indeed the state tolerates and sanctions the discrimination.'

    See also, per Lord Hope, at p 658:

    'The unchallenged evidence in this case shows that women are discriminated against in Pakistan. I think that the nature and scale of the discrimination is such that it can properly be said the women in Pakistan are discriminated against by the society in which they live. The reason why the appellants fear persecution is not just because they are women. It is because they are women in a society which discriminates against women.'

    However, as I have said, although female circumcision in Sierra Leone may be condemned as a violation of article 3 and to constitute persecution of young uncircumcised girls on that account, its practice in that country's society is not discriminatory or one that results from society having set them apart, other than by the persecution itself. There is, therefore, no factual basis upon which the court could have resort to insufficiency of state protection against discriminatory conduct to qualify the general rule that, for the purpose of the Refugee Convention, a 'particular social group' cannot be defined solely by reference to the persecution."

    29.  In a reasoned judgment of his own, Chadwick LJ concluded (para 52) that the particular social group could not be defined as "all women in Sierra Leone", or "all young, single Sierra Leonean women". Were young Sierra Leonean women a particular social group? He concluded not, because (para 56) the defining characteristic of the group was inseparable from the persecution which the second appellant feared.

    30.  Arden LJ thought it clear (para 61) that Sierra Leonean women in general could not be a particular social group since the group so defined would include women who no longer feared FGM because they had undergone it and might practise it on others. But she concluded (paras 61, 66) that the persecutory treatment feared by the second appellant would be by reason of her membership of a particular social group, namely those prospectively adult women in Sierra Leone who had not yet undergone FGM and so remained intact. She would accordingly have allowed the appeal.

    31.  Departing from the submission made below, but with the support of the UNHCR, Miss Webber for the second appellant submitted that "women in Sierra Leone" was the particular social group of which the second appellant was a member. This is a submission to be appraised in the context of Sierra Leonean society as revealed by the undisputed evidence, and without resort to extraneous generalisation. On that evidence, I think it clear that women in Sierra Leone are a group of persons sharing a common characteristic which, without a fundamental change in social mores is unchangeable, namely a position of social inferiority as compared with men. They are perceived by society as inferior. That is true of all women, those who accept or willingly embrace their inferior position and those who do not. To define the group in this way is not to define it by reference to the persecution complained of: it is a characteristic which would exist even if FGM were not practised, although FGM is an extreme and very cruel expression of male dominance. It is nothing to the point that FGM in Sierra Leone is carried out by women: such was usually the case in Cameroon (GZ, above) and sometimes in Nigeria (RRT N97/19046, above), but this did not defeat the applicant's asylum claim. Most vicious initiatory rituals are in fact perpetuated by those who were themselves subject to the ritual as initiates and see no reason why others should not share their experience. Nor is it pertinent that a practice is widely practised and accepted, a contention considered and rejected in Mohammed v Gonzales, above. The contrast with male circumcision is obvious: where performed for ritualistic rather than health reasons, male circumcision may be seen as symbolising the dominance of the male. FGM may ensure a young woman's acceptance in Sierra Leonean society, but she is accepted on the basis of institutionalised inferiority. I cannot, with respect, agree with Auld LJ that FGM "is not, in the circumstances in which it is practised in Sierra Leone, discriminatory in such a way as to set those who undergo it apart from society". As I have said, FGM is an extreme expression of the discrimination to which all women in Sierra Leone are subject, as much those who have already undergone the process as those who have not. I find no difficulty in recognising women in Sierra Leone as a particular social group for purposes of article 1A(2). Had this submission been at the forefront of the second appellant's case in the Court of Appeal, and had that court had the benefit of the UNHCR's very articulate argument, it might, I think, have reached the same conclusion. If, however, that wider social group were thought to fall outside the established jurisprudence, a view I do not share, I would accept the alternative and less favoured definition advanced by the second appellant and the UNHCR of the particular social group to which the second appellant belonged: intact women in Sierra Leone. This was the solution favoured by Arden LJ, and in my opinion it meets the Convention tests. There is a common characteristic of intactness. There is a perception of these women by society as a distinct group. And it is not a group defined by persecution: it would be a recognisable group even if FGM were entirely voluntary, not performed by force or as a result of social pressure.

    32.  Since, in this case, there is no issue on causation, I would (in full agreement with my noble and learned friend Baroness Hale of Richmond) allow the second appellant's appeal on her preferred basis, set aside the orders of the Court of Appeal and the Immigration Appeal Tribunal and restore the order of the Adjudicator.

    33.  I would invite the parties to both appeals (other than the Intervener) to make written submissions on costs within 14 days.

LORD HOPE OF CRAIGHEAD

My Lords,

    34.  In agreement with all of your Lordships, I would allow these appeals and make the orders proposed by my noble and learned friend Lord Bingham of Cornhill. I should like however to add a few comments on the issues raised as to what constitutes a "particular social group" within the meaning of article 1A(2) of the Refugee Convention of 1951. I do not wish to depart from anything that I said about the meaning of these words, or about the definition of which they form part, in Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629. But there are some additional points that may be worth making in the light of developments following that judgment and on the facts of these appeals.

    35.  The question whether or not the appellants have refugee status is not just of theoretical importance to the appellants. They have been given leave to enter the United Kingdom because article 3 of the European Convention on Human Rights forbids their return to their home countries for so long as they are at risk of torture or inhuman or degrading treatment or punishment there. So far so good. But leave to enter does not give them a right to remain in this country. If their claims for asylum are recognised, however, all the benefits of the Refugee Convention will then be available to them. The uncertainty that attaches to their present lack of status will be replaced by the status which the Contracting States have undertaken to accord to a refugee and by all the rights that attach to it. This is a very substantial additional benefit which is well worth arguing for.

    36.  The issue in K's case centres on the family as a particular social group. The question is whether she can show that she has a well-founded fear of being persecuted in Iran for reasons of her membership of a particular social group where the persecution which she fears is directed at her as the wife of a man who is being held in detention. The Secretary of State accepts that a family can constitute "a particular social group" within the meaning of article 1A(2). The critical question, as it was put by Mr Rabinder Singh QC, is whether it can be said that the persecution which the appellant fears is "for reasons of" her membership of a particular social group at all. The issue which he raises is one of causation. But it gives rise to an important question about the family as a particular social group. What are the facts that an applicant must prove to establish that her well-founded fear is for reasons of her membership of a family?

    37.  The issue in Zainab Fornah's case is essentially one of definition. It is accepted that the appellant has a well-founded fear of being subjected to female genital mutilation were she to be returned to Sierra Leone. This is because she is an intact, or uninitiated, young woman who does not belong to the only ethic group in that country, the Krio of the old Sierra Leone colony, which does not participate in this practice. The question is whether a particular social group can be identified, for reasons of her membership of which she has a well founded fear of being persecuted in Sierra Leone. Female genital mutilation is practised on intact girls and young women who are indigenous to Sierra Leone. But it is in the nature of the process that it can be inflicted only once in any female's lifetime. So the question is whether, for the purposes of this case, females in Sierra Leone generally can be said to constitute "a particular social group" within the meaning of article 1A(2). If this definition is too wide, it would be possible to define the group so as to confine it to those within that broader group who are at risk of persecution. But the more qualifications the definition contains the more grounds there may be for objection. This gives rise to the further question as to how the balance is to be struck between definitions that are unnecessarily precise and those that are unnecessarily wide.

    38.  Miss Fornah's case, then, raises again the point that was discussed but did not have to be decided in Shah and Islam as to how precise the definition must be to satisfy the requirements of that article. The Secretary of State maintains that it is not possible, for reasons of principle, to identify a particular social group the appellant's membership of which gives rise to her well-founded fear. He says that a group which consists of females in Sierra Leone generally is too widely drawn because many of its members no longer fear female genital mutilation as they have already been initiated. He objects to a group which is defined more precisely so as to include only those females who are still at risk. He says that if this is done it is the fact of persecution alone that defines the group, and that the definition of it is therefore circular. He has other objections which apply however wide or precise the definition is, which I would reject for the reasons given by Lord Bingham and Lord Rodger.

    The "family" as a particular social group

    39.  I need not dwell for long on the question whether a person's family can, in principle, constitute a particular social group within the meaning of the article. Mr Rabinder Singh QC did not seek to dispute this point. He said that the question of causation had always been at the heart of K's case. His point was that it was not enough for her to show that she was at risk of being persecuted because of her association with her husband. It had to be shown that the persecution was for reasons of her membership of a particular social group. That could not be done because there was no evidence that any other members of her family were exposed to the same risk of persecution. Furthermore, it was not known why her husband, who was the primary member of the particular social group to which she claimed to belong, was being persecuted. So it was not possible to say that she and her husband were being persecuted for the same reason. The only conclusion that could be drawn from the evidence was that she was being persecuted as an individual because of her association with her husband, and not as the member of any particular social group. It was not the family of which she was a member that was being persecuted.

    40.  This approach raises two quite basic questions about the facts that need to be established where the particular social group is said to be the asylum seeker's family. Can the well founded fear of persecution be said to be for reasons of her membership of that particular social group where it cannot be proved that the primary member of the family - the person whose beliefs, actions or circumstances give rise to the persecution which she fears - is being persecuted for a Convention reason? And can the fear be said to be for reasons of her membership of the family of which she and the primary member are both members when there is no evidence that any other members of that family are at risk of being persecuted for reasons of their membership of that family?

    41.  I agree with my noble and learned friend Lord Rodger of Earlsferry (see para 75 of his speech) that it is not necessary to show that all members of the social group in question are persecuted before one can say that people are persecuted for reasons of their membership of that group. But does the fact that the group must be identifiable by a characteristic or attribute common to all members of the group (see Gleeson CJ, Gummow and Kirby JJ in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387, para 36) mean, as he suggests, that it is necessary that all members of the group should be susceptible to the persecution in question? If so, this requirement is likely to severely limit the utility of the family as a particular social group. It has not been satisfied in K's case. There is no evidence that any other member of her family is susceptible to the persecution of which she has a well founded fear.

    42.  In R v Immigration Appeal Tribunal, Ex p De Melo [1997] Imm AR 43, 49 Laws J said that membership of a family is, in the ordinary way, plainly membership of a particular social group and that if a man's family were persecuted because of their connection with him it was, as a matter of ordinary language and logic, for reasons of their membership of a family that they were persecuted. This is a simple and direct approach to the issue, but Mr Rabinder Singh said that it was wrong. He said that the correct approach was that indicated by the Court of Appeal in Quijano v Secretary of State for the Home Department [1997] Imm AR 227. In that case the appellant claimed to have been persecuted as a member of his stepfather's family, and thus of a particular social group, because members of a drug cartel had persecuted the stepfather because he refused to co-operate with them and had made attacks also on the appellant and other members of the family. Thorpe LJ said at p 323 that the persecution arose not because the appellant was a member of the stepfather's family but because of his stepfather's refusal to co-operate. The cartel's decision to take punitive action against an individual related by marriage was fortuitous and incidental.

    43.  Morritt LJ set out the central part of his reasoning in Quijano in following passage at p 233:

    "It is plain that the fear of the applicant, which is to be assumed, is the consequence of the refusal of his stepfather to comply with the illegal demands of the drugs cartel in Colombia and the determination of the drugs cartel to take revenge on those they considered to be related to him. It is true that each member of the social group apart from the stepfather is likely to have the same fear and for the same reason. But the fear of each member of the group is not derived from or a consequence of their relationship with each of 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."

    At p 234 Roch LJ said that his conclusion that in the circumstances of that case the family was not a particular social group was underlined by the fact that the stepfather would not be entitled to claim asylum under the Convention and because the question who constituted part of the family or social group was entirely a matter for the decision of the drug cartel when they decided to retaliate. He added that for the family to become a particular social group it must be a family that is being persecuted or likely to be persecuted because it is that family. The fact that the stepfather was not being persecuted for reasons of his membership of the family underlined his conclusion that in the circumstances of that case the family was not a particular social group.

    44.  I do not agree with the approach that the Court of Appeal took to this issue in Quijano. It is, of course, well established that the persecution which is feared cannot be used to define a particular social group: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 264 per McHugh J. But this simply means that there must be some characteristic other than the persecution itself, or the fear of persecution, that sets the group apart from the rest of society. This may be because its members share a common characteristic other than their risk of being persecuted, or because they are perceived as a group by society. It is the latter approach that defines the family as a particular social group. Each family is set apart as a social group from the rest of society because of the ties that link its members to each other, which have nothing to do with the actions of the persecutor.

    45.  It is universally accepted that the family is a socially cognisable group in society: UNHCR position on claims for refugee status under the 1951 Convention relating to the Status of Refugees based on a fear of persecution due to an individual's membership of a family or clan engaged in a blood feud, 17 March 2006, p 5. Article 23(1) of the 1966 International Covenant on Civil and Political Rights states that the family "is the natural and fundamental group unit of society and is entitled to protection by society and the State." The ties that bind members of a family together, whether by blood or by marriage, define the group. It is those ties that set it apart from the rest of society. Persecution of a person simply because he is a member of the same family as someone else is as arbitrary and capricious, and just as pernicious, as persecution for reasons of race or religion. As a social group the family falls naturally into the category of cases to which the Refugee Convention extends its protection.

    46.  In Applicant S v Minister for Immigration and Multicultural Affairs, paras 67-69 McHugh J was at pains to emphasise that it was a mistake to say that a particular social group does not exist unless it is always perceived as such by the society in which it exists. He said that it was not necessary that society itself must recognise the particular social group as a group that is set apart from the rest of that society, or that the persecutor or persecutors must actually perceive the group as constituting a particular social group. As he put it in para 69:

    "It is enough that the persecutor or persecutors single out the asylum-seeker for being a member of a class whose members possess a 'uniting' feature or attribute, and the persons in that class are cognisable objectively as a particular social group."

    In their judgment in paras 17-18 Gleeson CJ, Gummow and Kirby JJ appear to disagree with McHugh J in requiring recognition within the society subjectively that the collection of individuals is a group that is set apart from the rest of the community. My own preference, with respect, is for the more cautious approach of McHugh J that it would be a mistake to insist that such recognition is always necessary. I agree with him that it is sufficient that the asylum-seeker can be seen objectively to have been singled out by the persecutor or persecutors for reasons of his or her membership of a particular social group whose defining characteristics exist independently of the words or actions of the persecutor. That is as true in cases where the family is identified as the particular social group, as it was in that case where it was contended that the particular social group comprised young, able-bodied Afghan men.

    47.  The reasoning of the Court of Appeal in Quijano requires more of an asylum seeker who claims that the particular social group of which he or she is a member is the family than is required of those who claim that the persecution of which they have a well-founded fear is for reasons of race, religion, nationality or political opinion. It is, of course, critical to identify what lies at the root of the threat of persecution. But it is not necessary to show that everyone else of the same race, for example, or every other member of the particular social group, is subject to the same threat. All that needs to be shown is that there is a causative link between his or her race or his or her membership of the particular social group and the threat of the persecution of which there is a well-founded fear. The fact that other members of the group are not under the same threat may be relevant to an assessment of the question whether the causative link has actually been established. Especially in a case such as the present, where it is not suggested that any other member of the family is at risk of being persecuted for reasons of membership of the family, the evidence of causation will need to be scrutinised very carefully. But the mere fact that no other member of the family is in that position is not determinative.

    48.  Then there is Morritt LJ's observation at p 233 that, as the stepfather was not persecuted for any Convention reason, the family member's individual relationship with him could not cause a fear for a Convention reason. In my opinion that approach misconstrues article 1A(2). The article directs attention to the position of the asylum-seeker, not to that of any other person with whom he or she may be associated. It is his or her fear of persecution for a Convention reason, not someone else's fear, that is in issue. As Laws J said in De Melo at pp 49-50, the original evil that gives rise to persecution of the individual is one thing. If it is then transferred so that family members are persecuted by reason of their membership of the same family as the individual, that on the face of it will come within the scope of the article.

 
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