Secretary of State for the Home Department v. Kwame Otchere and the United Nations High Commissioner for Refugees

Immigration Appeal Tribunal

[1988] Imm AR 21

Hearing Date: 30 July 1987

30 July 1987

Index Terms:

Political asylum -- refugee status -- qualification through "membership of a particular social group" -- criteria to be applied. HC 169 para 134: UNHCR Handbook for . . . determining refugee status, paras 77-79.

Held:

The Secretary of State appealed against the decision of an adjudicator allowing the appeal of a citizen of Ghana against refusal to grant him political asylum. The respondent had been a member of Military Intelligence under a previous regime. He asserted that his membership of that group, which was regarded with deep and particular suspicion by the new rulers of Ghana would lead to his persecution if he returned. Before the Tribunal it was submitted that the employment followed by the respondent could not bring him within the definition of a "social group", contained in the United Nations Convention. The Tribunal's review of the matter was assisted by submissions from the UN High Commissioner for Refugee's Office. Held: In the light of the criteria to be applied and the facts of the case, the respondent was a refugee.

Cases referred to in the Judgment:

Acosta (USA: Board of Immigration Appeals) BIA 1985: Int Dec 2986.

Counsel:

A Cunningham for the appellant; K Drabu of the United Kingdom Immigrants Advisory Service for the respondent; Miss I Khan for the United Nations High Commissioner for Refugees. PANEL: DL Neve Esq (President), Mrs JM Abrahams JP, EA Lewis Esq JP

THE TRIBUNAL:

The respondent is a citizen of Ghana. He applied to the Secretary of State for asylum in this country. His application was refused and he appealed to an adjudicator against the refusal. His appeal was heard by Mr EJT Housden and was allowed on 16 February last. Against Mr Housden's determination the Secretary of State now appeals to the Tribunal. We reserved our determination and the parties agreed to postal delivery of it. The respondent arrived in this country on 20 July 1984 and was given leave to enter for one month as a visitor. Nineteen days later, on 8 August he applied for asylum. He did so by letter which reads as follows:

"I Sgt Patrick Okyere arrived in this country (UK) on the 20th July 1984 which I was given one month to leave in UK, but I fear of my life if I go back to Ghana as I am among the wanted people in Ghana.

The reason is I 168857 Sgt Patrick Okyere was enlisted in the Ghana Armed Forces on the 6th Feb 1965 as a Boy in the Boys Company. I passed out in 1967 from the Boys Company in Kumasi joined the United of Medium Mortar Regiment in Accra now stationed in HO in the Volta Region. In 1976 I was selected to be the Body Guard to Col GK Ahlijah one time Commissioner for Industries in Gen Achampong's Regime. By being a body guard you come under the Unit of Military Intelligence (MI). On 1980 I was again selected to be a personal body guard to Dr de Graft Johnson Vice President of then Dr Liman Regime. I was later on brought back to the Unit MI on Nov 1980 and assigned for duties at HO attached to the United of Mortar Regiment.

On 31st December 1981 Fl Lt JJ Rawlings took over the administration of the Nation. Upon the Orders of the Chairman of PNDC that all MI personnels should report themselves to the Gonda Barracks Burma Camp, Accra, or to the nearest Police Station, I was locked up at Mortar Regiment Guard Room including the MI personnels attached to the Unit. We were transferred from HO to Accra Gonda Barracks where we met most of the MI personnels at the Guard Room. We were later on sent to Hsanam Medium Security Prison where we were kept as Protective Custody (PC).

The reason why I was arrested was in fact sending info to the Campaign for Democracy in Ghana based in London with their co-ordinator Nafir Boachie Djan who was a spokesman in AFRC Regime in 1979. In fact I was severely beaten, and tortured and sent to jail nearly two years. Until on the 19th June 1983 the Prison Main Gate is broken by some soldiers to allow the soldiers in the prison numbered about hundred and over to go out free, but the PDCs around the prison village arrested most of us including my self sent us to police station at Nsawam town and later on sent to the prison again by the police.

On the 13th October 1983 we were released from prison and immediately discharged from the Ghana Armed Forces. After our discharge from the Armed Forces the soldiers were still hunting for us to be killed the reason nobody knows. Since our release from prisons about (3) of our released men have been killed without any cause and also some of our Unit MI personnel are still in prison.

The reason why I am applying for political asylum in UK is I am a married man with three (3) children and also I am the one looking after my mother who is still hidden including my wife and the children because of my life in danger. In fact I dont want to go home (Ghana) as I will be arrested and tortured, which I fear to be tortured to death because of my wife and children. Due to this valuable information I do hope that you will be able to grant me an interview."

He was interviewed on 19 November 1984 in English, which language he speaks well. He enlarged on the account given in his letter quoted above, and going into some detail. He said that when he was out of prison in October 1983 he went home to stay with his parents. However, there still seemed to be a campaign against ex-members of the Military Intelligence and he heard that two of his colleagues, a staff sergeant and a sergeant, had been picked up and killed. He, therefore, left his parents' home and went to stay with brothers in Kumasi, where his wife visited him from time to time. He thought that he was still in danger and after consulting his family it was agreed that he should come to the United Kingdom to seek asylum. At the hearing before the adjudicator he gave evidence, as did his wife, and various documentary evidence was produced which confirmed the story which he told -- including a letter from the former Vice-President Johnson of Ghana whose bodyguard the respondent had been, a copy of a Ghana newspaper showing him as being a wanted man, and identity cards confirming that he was a member of Military Intelligence. Also produced was a letter from Amnesty International stating that former members of the Military Intelligence Staff in Ghana were held in considerable suspicion in that country as forming an unofficial opposition movement, and that such persons were liable to detention. The respondent's application had to be considered under the provisions of paragraph 134 of HC 169. Having reviewed the evidence before him, the adjudicator records:

". . . I find that his former membership of Military Intelligence puts him at greater than average risk of re-arrest and persecution were he to return to Ghana.

As regards the category in paragraph 134 into which he falls I have greater difficulty. It is clear that he would not be persecuted (were he to return to Ghana) for reasons of race, religion or nationality. That leaves only membership of a particular social group or political opinion. I find that the latter category is not appropriate to his case . . .

That leaves only membership of a particular social group as a basis for a possibly well-founded fear of persecution. Of that category the UNHCR's Handbook on Procedures and Criteria for Determining Refugees Status reads:

"77.A "particular social group" normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with the claim to fear of persecution on other grounds, ie race, religion or nationality.

78. Membership of such a particular social group may be at the root of persecution because there is no confidence in the group's loyalty to the government or because the outlook, antecedents or economic activity of its members, or the very existence of a social group as such, is held to be an obstacle to the government's policies.

79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution."

On the basis of the evidence before me, and particularly Amnesty International's letter to which I have already referred, I accept that Military Intelligence in the Ghanaian Army was such a social group and that the current administration of Flight Lieutenant Rawlings probably finds former members of Military Intelligence a considerable embarrassment and possibly a source of discontent and opposition to the government's policies. By definition, persons employed in the intelligence services (whether civil or military) are likely to be expected to discover and report on activities dangerous to the State, whether these are the result of foreign interference or of opposition political groups within the state itself, which may later take power. I accept that Mr Otchere was a member of Military Intelligence under the Liman Government which was overthrown by the current administration of Flight Lieutenant Rawlings in December 1981. Although in a more stable and democratic country, such as the United Kingdom, one would not expect the members of the intelligence services to be dismissed on a change of government, it would not surprise me to learn that such was the result of the coup of December 1981.

I bear in mind that the degree of proof required, in such a case, of the likelihood of persecution, were Mr Otchere to return to Ghana, is less than that in ordinary immigration appeals.

I find this a rather marginal case, but on the evidence before me I accept that Mr Otchere has proved that he has a well-founded fear of persecution should he return to Ghana. I therefore allow this appeal, as provided for in Section 19 of the Immigration Act, 1971."

The Secretary of State has filed three grounds of appeal against the adjudicator's determination. They are:

"1.The adjudicator has erred in failing to fully consider the major part of the Home Office case as set out in paragraph 17 of the explanatory statement of 27 March 1986, this being that from his release from custody in October 1983 until his departure from the United Kingdom in July 1984 the appellant remained at liberty in Ghana and neither he nor his family suffered any persecution or harassment.

2. In referring to the period in question as set out in ground 1, the adjudicator finds in paragraph 2 of page 3 of his determination that the evidence was conflicting and describes the appellant's wife as a "near disaster as a witness" in particular with regard to her evidence concerning that period, but thereafter fails to properly consider this in arriving at his determination.

3. The adjudicator erred in holding that the applicant had a well-founded fear of persecution by virtue of membership of a particular social group. It is contended that the Military Intelligence Unit of the Ghanaian Army is not a social group for the purposes of determining refugee status."

At the appeal before us Mr Cunningham informed us that he did not place great reliance on the first two of these grounds, although he did not by any means abandon them. However, his principal ground of appeal was the third ground. It is perhaps convenient to deal with the first two grounds first. With regard to the first ground, the adjudicator evidently accepted the respondent's account that between his release from prison and his departure for this country the respondent believed that he could be picked up at any time and for that reason moved away from his parents' house and went to live with his brother at Kumasi. He was prompted to do this when he heard that two of his colleagues had been picked up and killed. With regard to the second ground of appeal, it is true that the respondent's wife gave evidence before the adjudicator and that he described her as a "near disaster as a witness" but we take this remark to convey that her evidence was worth very little, and having regard to it as recorded in the record of proceedings, this certainly appears to be the case. It is for this reason that we have not alluded to it earlier in this determination. We do not consider that her evidence had the effect of rendering the evidence of the respondent himself less reliable. In our view there is more substance in the third ground of appeal, which is of much greater interest. Paragraphs 77, 78 and 79 of the Handbook of the United Nations High Commissioner for Refugees read as follows:

"77.A "particular social group" normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with the claim to fear of persecution on other grounds, ie race, religion or nationality.

78. Membership of such a particular social group may be at the root of persecution because there is no confidence in the group's loyalty to the government or because the outlook, anticedents or economic activity of its members, or the very existence of a social group as such, is held to be an obstacle to the government's policies.

79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution."

Mr Cunningham referred to paragraph 77 and pointed out that the persons comprised in that paragraph did not include members of a "professional" or "occupational" group. In his submission former members of the Military Intelligence were not such a group. It was possible for such a group to consist of persons sharing a common system of mores and values, sharing a common culture and who perceives themselves as such a group. In Mr Cunningham's submission the possibility of persecution could not be a factor creating such a group -- the group must exist in its own right irrespective of the possibility of persecution. To view the matter otherwise would be to put the cart before the horse. Thus the adjudicator had misdirected himself in finding that former members of the Military Intelligence belonged to such a group. Miss Khan put before us the views of the United Nations' High Commissioner in the most lucid and helpful manner. She informed us that the phrase a "particular social group" had been added to the Convention in 1951 and had been deliberately left vague so that it could be a "catch-all" provision which could be interpreted by countries as necessary to fit any particular case. Thus in the past, in Canada it had been held to include families assisting the poor. And in West Germany to include homosexuals; family members in service to a Royal family; and businessmen. In the United States, in a case called Acosta Int Dec 2986 (BIA 1985), it had been held to include membership of a taxi drivers co-operative. A passage from the Board of Immigration Appeals finding in that case reads as follows:

"We interpret the phrase 'persecution on account of membership in a particular social group' to mean persecution that is directed towards an individual who is a member of a group of persons all of who share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, colour, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the characteristic that defines the group, it must be one that the members of the group cannot change, or should not be required to change because it is fundamental to their individual identities or consciences."

Miss Khan appreciated that this was not binding upon us, but hoped that we might find it useful as being of persuasive value. Miss Khan informed us that in the view of the High Commissioner there were a number of criteria which needed to be considered:

1The group must be distinct as an identity within the broader society and definable by characteristics shared by its members.

2Common characteristics or uniting factors could be various -- ethnic, cultural or linguistic, or educational; they could include family background, economic activity, shared experiences, or shared values, outlook or aspirations.

3The attitude of other members of society to the group.

It was agreed that the characteristics must exist independently of the fact of persecution, but nevertheless the characteristics must play a significant role in the persecution. The persecution must be feared, or exist, on account of the characteristics. There must of course be evidence of persecution and simple membership of a group was not enough. The High Commissioner would consider that members of a group do not have to share all the characteristics mentioned above. In Miss Khan's submission, if these considerations were to be applied to the respondent's case, the adjudicator did not misdirect himself. However, in the view of the High Commissioner the membership of a social group might overlap with other grounds -- for example, political opinion. In the Commissioner's view political opinion could include an opinion imputed by others to the applicant for asylum, even if he did not hold such an opinion. In view of the letter from Amnesty International to the effect that the Ghanaian regime regarded former members of Military Intelligence as an unofficial opposition movement to be viewed with suspicion, this was a fact which had to be considered in the respondent's case and the adjudicator had misdirected himself in not so regarding it. In his submission to us Mr Drabu argued that it had been unnecessary for the adjudicator to go into the question of the respondent's membership of any particular group. The truth of the respondent's story had not been in dispute. He had been a member of Military Intelligence for a government which had now been deposed by military coup, following which he had been detained for two years, tortured and beaten. The facts spoke for themselves and indicated perfectly clearly what the present government's view of the respondent's political opinion and activities had been. In reply Mr Cunningham submitted that we should not lose sight of the fact that the respondent had not left Ghana until six months after his discharge from prison. When he had been asked whether during this time his family had been approached by the security forces or their home searched, he had replied that he had no knowledge of that happening. To which Mr Drabu responded that that may be the case, but that it was during this six months that the respondent had got to hear that three of his former colleagues had been killed, which had prompted his departure. We have carefully considered Mr Cunningham and Mr Drabu's submissions in the light of the agreed facts of this case. We are particularly grateful to Miss Khan for her most helpful observations. We do not think that it would be at all helpful were we to attempt to define any more closely the expression "particular social group" -- a phrase which has been deliberately left somewhat vague. However, we have no doubt that there is a real possibility that the respondent would be persecuted should he have to return to Ghana, and that his fear in this regard is well-founded. The persecution which he might face would be occasioned by the view which the present government in Ghana might take of his past activities, having regard to what they considered to be his political opinions and membership of a military unit, part of whose duties at least was to put into effect certain aspects of the political decisions of the former government relating to the activities of members of the present government in Ghana. For these reasons this appeal is dismissed and we direct that the respondent be granted twelve months leave to be in this country, at the conclusion of which time the situation can be reviewed in the light of events then obtaining in Ghana.

DISPOSITION:

Appeal dismissed

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