Islam (A.P.) v. Secretary of State for the Home Department; R v. Immigration Appeal Tribunal and Another, Ex Parte Shah (A.P.)

Key issues and questions:

The principal question of law is whether the appellants are members of a particular social group within the meaning of article 1A(2) of the Convention Relating to the Status of Refugees, 1951.

Two issues remain: 
(1) Do the women satisfy the requirement of "membership of a particular social group?" 
(2) If so, a question of causation arises, namely whether their fear of persecution is "for reasons of" membership of a particular social group.

Relevant paragraphs of the decision:

Lord Steyn put forward the following:

"The first issue: is cohesiveness a requirement for the existence of a particular social group?"

"Apart from the judgment of Staughton L.J. in the present case, there is no English authority for the view that cohesiveness is an indispensable requirement for the existence of a 
"particular social group.""

"Given the unequivocal acceptance by Staughton L.J. of the restrictive theory of the interpretation of article 1A(2) I have thought it right to explain at some length why in my view his conclusion was not justified. In oral argument counsel for the Secretary of State expressly conceded that Staughton L.J. erred in ruling that cohesiveness is an indispensable requirement. Instead counsel submitted that "particular social group" normally requires cohesiveness. What the practical implications of this qualification are I do not know. For my part the position is as follows. Cohesiveness may prove the existence of a particular social group. But the meaning of "particular social group" should not be so limited: the phrase extends to what is fairly and contextually inherent in that phrase."

"The second issue: The different theories of "particular social group.""

"Women in Pakistan as a Group  
The idea so incisively put forward by Lord Hoffmann is neither novel nor heterodox. It is simply a logical application of the seminal reasoning in Acosta's case 19 I. & N. 211. Relying on an ejusdem generis interpretation the Board interpreted the words 'persecution on account of membership in a particular social group' to mean persecution "that is directed toward an individual who is a member of a group of persons all of whom share a common immutable characteristic." The Board went on to say that the shared characteristic might be an innate one "such as sex, color, or kinship ties." 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. The analogy of discrimination against homosexuals who may in some countries be a "particular social group" supports this reasoning. What is the answer to this reasoning? It avoids any objection based on the principle that the group must exist dehors the persecution. The objection based on a requirement of cohesiveness foists an impermissible restrictive requirement on the words of article 1A(2). What then is left by way of counter-argument? Counsel for the Secretary of State said that there is a clear answer to this line of reasoning. That turned out to be the fact that some Pakistani women are able to avoid the impact of persecution, e.g. because their circumstances enable them to receive protection. In such cases there will be no well founded fear of persecution and the claim to refugee status must fail. But this is no answer to treating women in Pakistan as a relevant social group. After all, following the New Zealand judgment in Re G.J. [1998] 1 N.L.R. 387 I regard it as established that depending on the evidence homosexuals may in some countries qualify as members of a particular social group. Yet some homosexuals may be able to escape persecution because of their relatively privileged circumstances. By itself that circumstance does not mean that the social group of homosexuals cannot exist. Historically, under even the most brutal and repressive regimes some individuals in targeted groups have been able to avoid persecution. Nazi Germany, Stalinist Russia and other examples spring to mind. To treat this factor as negativing a Convention ground under article 1A(2) would drive a juggernaut through the Convention. My Lords, on careful reflection there is no satisfactory answer to the argument that the social group is women in Pakistan."

"The narrower group  
If I had not accepted that women in Pakistan are a "particular social group," I would have held that the appellants are members of a more narrowly circumscribed group as defined by counsel for the appellants. I will explain the basis of this reasoning briefly. It depends on the coincidence of three factors: the gender of the appellants, the suspicion of adultery, and their unprotected position in Pakistan. The Court of Appeal held (and counsel for the Secretary of State argued) that this argument falls foul of the principle that the group must exist independently of the persecution. In my view this reasoning is not valid. The unifying characteristics of gender, suspicion of adultery, and lack of protection, do not involve an assertion of persecution. The cases under consideration can be compared with a more narrowly defined group of homosexuals, namely practising homosexuals who are unprotected by a state. Conceptually such a group does not in a relevant sense depend for its existence on persecution. The principle that the group must exist independently of the persecution has an important role to play. But counsel for the Secretary of State is giving it a reach which neither logic nor good sense demands."

"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 [1990] 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."

Lord Hoffmann put forward the following:

"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."

"There was in my view no suggestion that a woman was entitled to refugee status merely because she lived in a society which, for religious or any other reason, discriminated against women. Although such discrimination is contrary not merely to western notions but to the constitution of Pakistan and a number of international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination Against Women, which Pakistan ratified in 1996, it does not in itself found a claim under the Convention. The Convention is about persecution, a well founded fear of serious harm, which is a very different matter. The discrimination against women in Pakistan found by the special adjudicator to exist there is relevant to show that the fear of persecution is on a Convention ground but is not in itself enough. Furthermore, the findings of fact as to discrimination have not been challenged. They cannot be ignored merely on the ground that this would imply criticism of the legal or social arrangements in another country. The whole purpose of the Convention is to give protection to certain classes of people who have fled from countries in which their human rights have not been respected. It does not by any means follow that there is similar persecution in other Islamic countries or even that it exists everywhere in Pakistan. Each case must depend upon the evidence."