R v. Immigration Appeal Tribunal, Ex parte Shah

R v IMMIGRATION APPEAL TRIBUNAL AND SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE SHAH; ISLAM AND OTHERS v SECRETARY OF STATE FOR THE HOME DEPARTMENT
Court of Appeal
Staughton, Waite and Henry LJJ
23 July 1997

Asylum - Meaning of 'particular social group' - Fear of violence and harsh criminal sanctions based on unfounded accusations of adultery - Whether a defined group of women in Pakistani society constitute a 'particular social group' - Convention relating to the Status of Refugees 1951, Art 1A(2) The asylum-seekers, SS and SI, were female nationals of Pakistan who arrived in the UK in 1992 and 1991 respectively. Both were married and had been exposed to false allegations of adultery and violence by their husbands in Pakistan and claimed asylum on the grounds that they would be persecuted on return because of those allegations. SI further claimed that she was likely to be persecuted on account of the 'political opinion' which had been imputed to her by the Mohaijir Quami Movement (MQM) after she had intervened in a fight between supporters of the Pakistan Peoples Party (PPP) and the MQM in the school in which she was teaching. Both their applications were rejected by the Secretary of State. Both appealed to special adjudicators who, in turn, dismissed their appeals on the ground that their claims for asylum did not fall within any of the enumerated grounds of persecution in the Convention relating to the Status of Refugees 195 1. St appealed to the Immigration Appeal Tribunal but her appeal was dismissed on the grounds that she was not a member of 'a particular social group'. The Court of Appeal subsequently granted Sl leave to appeal. SS was refused leave to the appeal by the Immigration Appeal Tribunal and on 25 October 1996 Sedley J, on an application for judicial review, quashed the Immigration Appeal Tribunal's refusal of leave on the grounds that, on the facts that had been established, SS was capable in law of bringing herself within the definition of a 'particular social group'. The Secretary of State was granted leave to appeal by the Court of Appeal against Sedley Fs judgement. Before the Court of Appeal SS and Sl argued that they feared persecution by reason of their membership of a particular social group, namely Pakistani women accused of transgressing social mores (adultery, disobedience to husbands) and who were unprotected by their husbands or other male relatives. The Secretary of State accepted that SS and SI, in the event of their being forcibly returned to Pakistan, would: (a) suffer persecution in the form of physical and emotional abuse by their husbands, and (b) such persecution would not only be condoned by the local Islamic law but would also be aggravated by that law which would subject them to criminal processes and accompanying severe punishment. Held - allowing the Secretary of State's appeal in the case of SS and dismissing SI's appeal1[1] - (1)For a person to qualify under the 'membership of a particular social group' limb of Art 1A(2) of the Convention relating to the Status of Refugees, 1951, that person must show that the group exists independently of the feared persecution.

Secretary of State for the Home Department v Savchenkov followed.

(2)The decision in Savchenkov was too restrictive an interpretation of the phrase 'membership of a particular social group' insofar as it held that that phrase had to be interpreted ejusdem generis in the light of the other 'Convention reasons' which reflected a civil or political status. (3)Per Staughton and Henry LJJ: as a 'particular social group' has to be 'social' and 'particular' as well as existing independently of the persecution, it has to consist of a number of people joined together in a recognisable group with some degree of cohesiveness, co-operation or interdependence; the members must not be solitary individuals. Per Waite LJ: a 'particular social group' has to be a 'particular' and 'social' group which means that its members must share something which unites them, and which sets them apart from the rest of society and which is recognised as such by society generally. The adoption of concepts such as 'cohesion' and 'homogeneity' was unhelpful and the creation of a more specific formulation would not only be difficult, but undesirable. A and Another v Minister for Immigration and Ethnic Affairs and Another approved. Per Henry LJ: although most 'particular social groups' will in the ordinary course of things have a cohesive element, involving the ordinary social concepts associated with membership (such as organisation, strength through association, fund-raising, publicity or protest), there would also exceptionally be groups of persons who, though lacking any 'cohesion' amongst their homogeneous fellow members and remaining as disparate individuals, nevertheless qualify as 'particular social groups' because they were recognised by society as such. Further, although persecutory conduct could not define the group, the actions of persecutors could serve to identify or even cause the creation of a 'particular social group'. Thus, 'membership of a particular social group' may not protect the victims of persecution whereas it might protect those persons who had formed pressure groups to support such victims. In such circumstances it was to be hoped that the Secretary of State would anxiously consider exercising his discretion to grant exceptional leave to remain. A and Another v Minister for Immigration and Ethnic Affairs and Another approved. (4)The features relied upon by SI and SS could not be shown to exist independently of the feared persecution since they were not independent attributes of a particular social group. Once the heads of the possible forms of persecution to which SS and SI were likely to be subjected were taken away, the defining characteristics of the group, namely stigma and isolation, necessarily departed with them. Accordingly, this was determinative of each appeal in favour of the Secretary of State. (5)In the case of SI, both the special adjudicator and the Immigration Appeal Tribunal had held that there was no evidence that SI had an imputed political opinion, and, as those findings had been open on the evidence presented to them and on the facts which they found, the Immigration Appeal Tribunal had not erred in law in rejecting SI's claim that she had a well-founded fear of persecution on the ground of real or imputed political opinion. International Treaties, Conventions and documents referred to in judgment Convention relating to the Status of Refugees 1951, Art 1A(2) Joint Position of 4 March 1996 (Official Journal of the European Communities, 13 March 1996) Cases referred to in judgment Quijano v Secretary of State for the Home Department [1997] Imm AR 227, CA R v Immigration Appeal Tribunal and Secretary of State for the Home Department ex parte Syeda Shah [1997] Imm AR 145, QBD R v Secretary of State for the Home Department ex parte Sivakumaran [1988] AC 958, [1988] 2 WLR 92, [19881] 1 All ER 193, [1988] Imm AR 147, HL Secretary of Statefor the Home Department v Savchenkov [1996] Imm AR 28, CA T v Secretary of State for the Home Department [1996] AC 742, [1996] 2 All ER 865, HL International cases referred to in judgment A and Another v Minister for Immigration and Ethnic Affairs and Another [1998] INLR 1, Aust HC Canada (Attorney-General) v Ward [1997] INLR 42, [1993] 2 SCR 689, Sup Ct of Canada Chan v Canada [1996] 28 DLR 213, Sup Ct of Canada Morato v Minister for Immigration, Local Government and Ethnic Affairs [1992] 39 FCR 401, Fed Ct of Australia Sanchez- Trujiullo v Immigration and Naturalization Service (1986) 801 F 2d 1571, US Ct of Apps Mr D. Pannick QC and Mr M. Shaw for the Secretary of State Mr N. Blake QC and Ms F. Webber for Ms Shah Mr N. Blake QC and Ms S. Harrison for Ms Islam WAITE LJ: These appeals, which have been heard together, both concern Pakistani women who are seeking asylum in this country as refugees. Both are married, and both are exposed to false allegations by their husbands that they have been guilty of adultery. It is accepted that they have a well founded fear, in the event of their being forced to return to Pakistan, of persecution taking the form of physical and emotional abuse by their husbands which the local Islamic law would not only condone but would aggravate by subjecting them to the criminal processes of Sharia law under which the punishment for sexual immorality is severe and may lead to death by stoning. The sole question raised by the appeals is whether or not the women can claim to be members of a particular social group, for the purposes of Art 1A of the Geneva Convention relating to the Status of Refugees 1951 as amended by the 1966 Protocol ('the Convention') which reads:

'... for the purposes of the present Convention, the term "refugee" shall apply to any person who -
(2) ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...'

The UK is a signatory of the Convention, to which effect is given within our domestic law through s 8(1) of the Asylum and Immigration Appeals Act 1993 which provides that a person refused leave to enter the UK may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the UK's obligations under the Convention. Because the facts are not in dispute, and the question is one of law, the background to the two appeals can be stated shortly.

The Islam appeal

The first applicant Shahanna Sadiq Islam was born in Pakistan in 1952, where her children the second and third applicants were born in 1977 and 1982 respectively. She married her husband in 1976, only discovering after the ceremony that he had a first wife still living. She had a career of her own as a schoolteacher and occasional broadcaster. She suffered some violence from her husband during the early years of the marriage, which intensified as a result of the following incident. In 1990 a fight broke out in the playground of the school where she was teaching. It was between two groups of boys - one supporting the Pakistan Peoples Party (PPP) and the other the Mohaijir Quami Movement (MQM). She intervened to put a stop to the fighting. Although her peace-keeping had no political motive, it was seen as hostile by the MQM supporters. From then on they harassed her, and made allegations to her husband (who was a MQM supporter) that she had been unfaithful to him. In consequence he became more violent to her. Her injuries were serious enough to require hospital treatment. She left her husband and went to the house of her brother who is paralysed and could not protect her. Night visits were made to his home by unknown men threatening him and carrying Kalashnikov rifles. After a temporary stay in an Army Club, she came on 13 October 1991 to England with the children where she was granted leave to enter as a visitor for 6 months. She applied for asylum for herself and the children (who are formally co-applicants and appellants in these proceedings although the case has been realistically dealt with throughout on the basis of her own primary claim) on 18 October 1991. The applications were refused on 20 August 1992. After abortive appeal proceedings relevant only to explain the delay which has occurred in her case, her effective appeal to the adjudicator was dealt with on 7 December 1995. Her fear of persecution was held to be well founded, but the adjudicator rejected her appeal on the ground that she had established no Convention reason for the persecution. On her subsequent appeal to the Immigration Appeal Tribunal the adjudicator's finding as to her well-founded fear of persecution was not disturbed, her sad plight being thus summed up by the Tribunal:

'She cannot return to her husband. She cannot live anywhere in Pakistan without male protection. She cannot seek assistance from the authorities because in Pakistan society women are not believed or they are treated with contempt by the police. If she returns she will be abused and possibly killed.'

Despite that finding, the appeal tribunal held that the persecution she feared was not for a Convention reason: specifically it was not derived from any political opinion of hers, nor (applying Secretary of State for the Home Department v Savchenkov [1996] Imm AR 28) from her membership of any particular social group within the terms of the Convention. From the consequent dismissal of her appeal Mrs Islam now by leave of this court appeals.

The Shah appeal

Mrs Syeda Khatoon Shah was born in Pakistan in 1956. Virtually all her family now live in the UK. She herself lived in this country from 1968 to 1972. When she was 17 she went back to Pakistan to marry her husband who was then aged between 20 and 25. She bore him six children. Throughout the marriage her husband beat her up regularly, and finally in August 1992 she came to this country, leaving the children with members of the extended family in Pakistan. She was granted leave to enter for 6 months as a visitor. She found that she was pregnant, and her seventh child was born in this country in December 1992. In June 1994 (having been served in the meantime with notice of illegal entry) she applied for asylum. That application was refused by the Secretary of State in June 1994. Her appeal was heard by the adjudicator on 25 July 1995. Her fear of persecution by her husband was held to be well-founded, aggravated as it now is by fear that he will treat the latest birth as illegitimate and rely on that to brand her as an adulteress and bring or support criminal proceedings against her under Sharia statute law with the consequences already mentioned. The adjudicator nevertheless held that she came within no accepted definition of membership of a particular social group in the Convention sense, and her appeal was accordingly dismissed. Having been refused leave to appeal by the Immigration Appeal Tribunal she obtained leave to apply for judicial review to challenge that refusal, and on 25 October 1996 Sedley J quashed the refusal of leave and ordered the Immigration Appeal Tribunal to entertain the appeal, holding that although the final outcome would depend on the factual findings of the appeal tribunal, on the facts so far established the applicant was capable in law of bringing herself within the definition of membership of a social group. From that decision the Secretary of State now by leave of this court appeals. Although there are thus technically cross-appeals before the court, there is a sufficient identity between the circumstances of the two women to have enabled Mr Nicholas Blake QC on behalf of the asylum-seekers and Mr David Pannick QC on behalf of the Secretary of State to assist us with a single submission devoted to both appeals.

Political opinion

It will be convenient, although it played only a brief part in the argument, to deal at the outset with one issue that applies to the Islam application alone. It is contended that the Immigration Appeal Tribunal erred in law in rejecting a plea that the applicant had a well-founded fear of persecution on the ground of her real or imputed political opinion. I have described the circumstances in which Mrs Islam incurred the hostility of youthful adherents of the MQM. She intervened to stop a playground battle with another gang of pupils with opposing political allegiance. Although she thus became politically attainted in the eyes of a body of her pupils which saw any obstruction of their wishes (whether it be to fight other pupils or to cheat in their exams) as an affront to their MQM allegiance, it was held both by the adjudicator and the appeal tribunal that there was no evidence of an imputed political opinion formed on her own part, and that it was not possible in the circumstances to infer a political opinion of her own from the fact that she had been branded as a political enemy by others. Those are holdings which were in my view undoubtedly open to those tribunals on the evidence presented to them and on the facts which they found, and despite all that Mr Blake urged on us to the contrary I cannot see any basis in law for disturbing that conclusion.

Membership of a particular social group

Mr Blake formulated the social group of which he claims membership for his clients, the characteristics which distinguish that group, and the persecution which its members fear, in the following definition: (1)The social group:

(a)Pakistani women

(b)accused of transgressing social mores (in the instant cases adultery, disobedience to husbands)

(c)who are unprotected by their husbands or other male relatives.

(2)The distinguishing characteristics:

The members of the group have the following characteristics which distinguish them from others in society and which they cannot change or be expected to change in Pakistan:

(a)sex and gender (the biological and social identification as women)

(b)isolation (being abandoned and rejected by the husband and having no male relatives to turn to)

(c)being ostracised (perceived to be deserving condemnation by the community for infringement of the sexual code for women).

(3)Persecution:

The persecution feared consists of

(a)severe violence and risk of death by the spouse or his agents and associates

(b)popular retribution by the broader community

(c)severe discrimination in personal life: inability to live a separate social existence, employment, financial security, keep custody of the children, obtain a divorce and remarry and reacquire male protection

(d)severe discrimination vis-à-vis public authority: the unwillingness of police to protect women from domestic violence or false accusations of adultery, the risk of being victimised by the police and the Sharia legal system, the diminished value of women's testimony, discrimination in the application of the laws on sexual behaviour, undeserved and disproportionate detention and punishment.

The case-law

There is a general desirability that in construing an international Convention the decisions in different jurisdictions should, so far as possible, be kept in line with each other - T v Secretary of State for the Home Department [1996] AC 742, 779 per Lord Lloyd of Berwick. It is right, therefore, to give some consideration to overseas and domestic authority in case there is some theme to be found there with which the decision in the present case should harmonise.

(A)Overseas authority

The draft of the Convention originally prepared by the Commission stated the reasons of race, religion, nationality, and political opinion without making any reference to membership of a particular social group. That phrase was introduced, at a late stage of the drafting process, on a motion by the Swedish delegate. Whatever he intended to cover by such breadth of language, he cannot have imagined the scale of employment it would provide for the legal profession around the world. A useful summary of all that activity is to be found in the judgments of Mc Hugh J and Kirby J in the decision of the High Court of Australia in A and Another v Minister for Immigration and Ethnic Affairs and Another [1998] INLR 1. Like those judges, I do not find it easy to discern a consistent thread in them. Argument was concentrated in this court, no doubt for that very reason, on the overseas authorities in which some attempt has been made to depart from a case-by-case approach and state a principle or touchstone which can be applied by those who have to advise on, and to decide, the asylum claims of applicants who (without being able to bring themselves under one of the other specific Convention reasons) share a common vulnerability. It will be sufficient to refer to decisions in three jurisdictions only. In Sanchez Trujiullo v Immigration and Naturalization Service [1986] 801 F 2d 1571 the United States Court of Appeals, 9th Circuit, was dealing with a claim to refugee status by El Salvadorans who had been non-combatants in the war in their own country and feared persecution on that account if they were repatriated. Membership, for Convention purposes, was claimed on their behalf of a social group comprising:

'... young, urban, working class males of military age who had never served in the military or otherwise expressed support for the government of El Salvador.'

In rejecting that claim the court said:

'The statutory words "particular" and "social" which modify "group"... indicate that the term does not encompass every broadly defined segment of a population, even if a certain demographic division does have some statistical relevance. Instead the phrase "particular social group" implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group... In sum, such an all-encompassing grouping as the petitioners identify simply is not that type of cohesive, homogeneous group to which we believe the term "particular social group" was intended to apply.'

The Supreme Court of Canada was required in Canada (Attorney-General) v Ward [1997] INLR 42 to deal with an asylum claim by a resident of Northern Ireland who had joined a paramilitary terrorist group - the INLA. For a breach of the group's orders (detention of hostages) he had been confined and tortured and sentenced to death by their 'court-martial'. Having made his escape to Canada he pleaded that if repatriated to Northern Ireland he would be persecuted by the INLA, asserting as the reason for such persecution his membership of the social group represented by the INLA. La Forest J identified three possible subcategories which he accepted as coming within the category of a particular social group (at 70A): '(1)groups defined by an innate or unchangeable characteristic (2)groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association (3)groups associated by a former voluntary status, unalterable due to its historical permanence.' He added that (at 70C):

'The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person.'

When the Supreme Court was called upon, not long afterwards, to decide a case in a very different context (refugees from China's enforced sterilisation policy towards those with more than one child) in Chan v Canada [1996] 28 DLR 213 La Forest J felt obliged to qualify his second category by saying (at 248):

‘... a refugee alleging membership in a particular group does not have to be in voluntary association with other persons similar to him - or herself. Such a claimant is in no manner required to voluntarily associate, ally, or consort with kindred persons.'

In A v Minister for Immigration and Ethnic Affairs (above) the High Court of Australia was also required to deal with refugees from China's enforced sterilisation (or abortion) policy. The Immigration Tribunal had ruled that:

'The criteria laid down for defining a particular group in the Morato case permit the recognition of "those who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised" as such. The group exists by virtue of government policy and government action and is thereby cognisable. The persecution feared is precisely because the applicant is defined into the group by government policy...'

and that on that basis the applicants were in well-founded fear of persecution for a Convention reason - ie membership of the social group as so defined. That finding was upheld on appeal to the judge (Sackville J) but overturned by the Federal Full Court. By a majority of 3-2 the High Court dismissed an appeal from that decision. Working without the assistance of a head note (the case does not yet appear to be in the Law Reports) the ratio of the decision, gleaned from judgments of substantial length appears to be expressed in the following extracts, taking first the views of the majority:

Dawson J:

'In truth the social group contended for by counsel for the appellants may be described in these words of... the court below:

"X fears persecution by reason of circumstances A, B and C which are applicable to him or her, X is therefore a member of a particular social group constituted by all people to whom circumstances A, B and C are applicable."

As their Honours pointed out, that is an argument which has been rejected by a line of United States cases. The argument amounts to little more than the assertion of common demographic factors. What the appellants need to demonstrate is that circumstances A, B and C, or any one of them, operate to unite people such that they are an identifiable social group apart from the fact that they all face persecution. They have not done so.' McHugh J:

'There is simply a disparate collection of couples throughout China who want to have more than one child contrary to the one child policy. Some may wish to have a child as soon as possible; some in the near future; and others in the distant future. There is no social attribute or characteristic linking the couples, nothing external that would allow them to be perceived as a particular social group for Convention purposes. To classify such couples as "a particular social group" is to create an artificial construct that bears no resemblance to a social group as that term is ordinarily understood. Indeed it is hard to see how such couples are even a group for demographic purposes.'

Gummow J:

'... a disparate collection of parents, and those desiring to be parents, who do not accept and have difficulties in complying with a "one child policy" are at risk of the application of a general law of conduct required by the State and, on the assumptions I have made, brutally enforced. But they are not members of a particular social group with a fear of persecution by reason of membership thereof.'

The majority view appears therefore to have been that something more is needed, some hallmark independent of the anticipated persecution itself, which marks out the asylum claimants as members of a distinctive social group. Brennan CJ, one of the minority, referred to, but did not adopt the holdings of, La Forest J in Canada, preferring to state simply that the term 'a particular social group':

'... should be understood simply to connote a group constituted by those who share a common distinguishing characteristic which is the "reason" for persecution that is feared.'

Applying that to the facts before the court he said:

'The characteristic of being the parent of a child and not having voluntarily adopted an approved birth-preventing mechanism distinguishes the appellants as members of a social group that share that characteristic. It is their membership of that group that makes them liable to sterilisation if they return...'

Kirby J, the remaining dissenting judge, said:

'The conduct which the appellants fear is conduct targeted at them precisely because of the characteristics which they have as members of their community. Yet it is those characteristics that constitute them as members of a "particular social group" within that community. Their vulnerability to enforced sterilisation or abortion arises precisely because they have those characteristics.'

It is, I think, a permissible paraphrase of the minority view to say that there may be cases in which vulnerability to a common form of persecution is sufficient by itself to define the social group - even if its members have no other common trait marking them out from society as a whole.

(B)English authority

The asylum claimant in Secretary of State for the Home Department v Savchenkov [1996] Imm AR 28 was a Russian citizen who had been one of a number of security guards at an hotel. He had been approached by the mafia in that country who wished him to act as informer regarding the identity and activities of hotel guests. He refused. In consequence he was harassed, physically assaulted and threatened with death by members or supporters of the mafia. He claimed that hotel security guards constituted a particular social group for the purposes of the Convention. That claim was rejected by the adjudicator. On appeal to the Immigration Appeal Tribunal he restricted the group to that which was constituted by hotel security guards who have been approached by the mafia and refused to co-operate. That was upheld by the Tribunal, saying:

'In our view, given the evidence of the existence and insidious power of the mafia, individuals which the mafia seeks to recruit and who refuse do form a social group. They are identified by the approach and refusal and clearly are of considerable social benefit in refusing to participate in an organisation striking at the heart of the society in which it operates. So, independently of any threat of persecution we see the group as identifying and identified by an important recognisable social attribute. Whether or not the group is liable to persecution is then a question of evidence.'

That view was overturned on appeal by this court. McCowan LJ first rejected a specific submission founded on La Forest J's formulation in Ward by holding that there was no evidence of voluntary (or any) association between the members of the alleged group. Dealing with the more general claim that the group was constituted in the sense found by the tribunal, he said:

'In fact the particular social group for which the respondent contended before the Tribunal is defined by and has no existence independent of the persecution which he fears. If a group can have existence solely based on fear of being subjected to persecution, then any person who can establish that he would be persecuted for a reason other than race, religion, nationality or political opinion could automatically claim to be part of the social group and meet the requirements of Art 1. Had this interpretation been intended, the words "or any other reason" could have been substituted for the words "membership of a particular social group".'

It will be apparent that this reasoning, which was supported by Evans and Pill LJJ, anticipated the reasoning that was adopted, not long afterwards, in the majority decision in A v Minister for Immigration and Ethnic Affairs, and in particular in the judgment of Dawson J. McCowan LJ referred in his judgment to a formulation which had been advanced by Mr Pannick QC, counsel in that case for the Secretary of State, without dissent (though with no formal acceptance) on the part of Mr Blake QC for the claimant. It reads: '(1)The Convention does not entitle a person to asylum whenever he fears persecution if returned to his own country. Had the Convention so intended, it could and would have said so. Instead, asylum was confined to those who could show a well-founded fear of persecution on one of a number of specific grounds, set out in Art 1A(2); (2)To give the phrase "membership of a particular group" too broad an interpretation would conflict with the object identified in (1) above; (3)The other "Convention reasons" (race, religion, nationality and political opinion) reflect a civil or political status. "Membership of a particular social group" should be interpreted ejusdem generis; (4)The concept of a "particular social group" must have been intended to apply to social groups which exist independently of persecution. Otherwise the limited scope of the Convention would be defeated: there would be a social group, and so a right to asylum, whenever a number of persons fear persecution for a reason common to them.' These Savchenkov principles (as it will be convenient to call them) have been treated as part of the holding in that case, and (whether or not it was right to give them that status) have been applied in other cases, where they have come in for further judicial scrutiny. Sedley J in the Shah case now before this court (reported in [1997] Imm AR 145) found difficulty (at 150) with the principle (number 3, above) that the genus must be 'a civil or political status'. Morritt LJ expressed similar doubts (not shared by the other members of the court) when it was decided in Quijano v Secretary of State for the Home Department [1997] Imm AR 227, that although a family is capable of constituting a 'particular social group' for Convention purposes, no such group had been established in the circumstances - which were that the claimant came from Columbia, where in 1987 his stepfather's food stall had been blown up by members of a drugs cartel because he had refused to trade for them. In 1991 the claimant's brother escaped to England after suffering ill-treatment at the hands of the same cartel. In August 1992 the claimant and his cousin were attacked in the street by the same gang: the cousin was shot dead and the claimant suffered gunshot wounds. It was held (per Thorpe LJ) that the feared persecution had arisen not because the appellant was a member of the family in question but because of his stepfather's refusal to do business with the cartel. The family relationship was merely fortuitous, We have had the advantage in this court of representation by the same leading counsel as appeared in Sevchenkov. Mr Pannick acknowledged that Sevchenkov principle number 3 may be too restrictive in its insistence on a genus of 'civil or political status'. I will mention shortly the alternative formulation that he proposes in its place.

The argument in this court

(A)The law

Mr Pannick included in the outline submissions originally lodged on behalf of the Secretary of State (as appellant in the one instance and respondent in the other) a helpful analysis of the reasoning in A and Another v Minister for Immigration and Ethnic Affairs and Another. His paraphrase of the majority reasoning included this paragraph:

'(2) The Convention emphasises that the group must be a "particular" and "social" group. This suggests that the members of the group must share something which unites them, and which sets them apart from the rest of society and is recognised as such by society generally.'

In his closing submissions in reply, Mr Blake not only accepted that as being a correct summary of the views of the Australian court but also went further and adopted it as a statement of the law as it ought to be applied by this court in the present case. Given (as is accepted) that Savchenkov principle number 3 requires some amendment, that is the proposition which he would put in its place. In his final submissions to the court Mr Pannick repeated his reliance on Savchenkov principles 1, 2 and 4. His fourth proposition (which I take to be his intended substitution for Savchenkov principle number 3) reads as follows:

'Because the group must be "social" and "particular", as well as existing independently of the persecution, there is a need for the group to be homogeneous and cohesive, with links between the members other than their fear of persecution, albeit the group does not need to meet together in a social club. The adjective "social" refers to persons who are interdependent or co-operative. The word does not refer to persons who simply have a shared characteristic.'

He also relied on the causative element introduced into Art 1A(2) by use of the phrase 'fear of being persecuted for reasons of The claimant must not only establish membership of a particular social group: he or she must be able to demonstrate that it is such membership which is the causal factor behind the form of persecution feared.

(B)Application of the law to this case

Mr Blake relies, as I have already indicated, upon certain distinguishing characteristics which isolate from the rest of society the particular group in respect of which he claims membership for his clients - namely Pakistani women accused of adultery and domestic disobedience who are unprotected by their husbands or other male relatives. He has drawn attention to them in moving terms which could not fail to attract sympathy for their wretchedness and alarm for their safety. If returned to Pakistan, they would suffer the consequences of being branded as adulterous and disobedient wives. They would be shunned (even by members of their own sex), exposed to vilification as infringers of the code of sexual behaviour applying to women, and made defenceless against physical attack by their husbands as well as by others. These characteristics are rendered more frightful and more conspicuous by the fact (on which Mr Blake relies as an important background factor although he does not claim for it the status of an index of class membership in its own right) that they are vulnerable under Sharia law to a criminal process which is merciless in application and dreadful in execution. Their plight marks them out, he submits, as a section of society which is not merely pitiable but is also conspicuously identifiable, through those same characteristics, as carrying with them membership of a defined and particular social group. Mr Pannick has not sought, on behalf of the Secretary of State, to play down any of the concern which all people of sympathy and goodwill must feel towards the applicants. Nor do I understand him to quarrel in the least with the general proposition voiced by Sedley J in Shah that the adjudication of Art 1A(2):

'... is not a conventional lawyer's exercise of applying a legal litmus test to ascertained facts; it is a global appraisal of an individual's past and prospective situation in a particular cultural, social, political and legal milieu, judged by a test which, though it has legal and linguistic limits, has a broad humanitarian purpose.'

Mr Pannick submits nevertheless that even adopting the most humanitarian stance possible in the construction of the Convention: (1)The applicants have failed to show that any social group exists independently of the feared persecution. Take out the persecution, and there is no social group. (2)The elements (referring to his fourth proposition mentioned above) of cohesion and homogeneity are absent in this case. The members of the claimed group are in no sense interdependent or co-operating with each other. They are, on the contrary, a disparate group of people who have nothing in common but their fear of persecution based on breach of social mores, and who have no contact or links with each other. (3)The essential causative element is lacking, because the reality of this case is that the applicants fear persecution not because of their membership of any particular group but because of the hostility of the men they are unfortunate enough to have as husbands. If (contrary to his previous submissions) they can properly be described as members of a group at all, that is the consequence of the persecution which they fear, not the cause of it.

Conclusion

(A)The law

There is no dispute as to the Savchenkov principles numbers 1, 2 and 4. I would approve them, and follow other judges in commending them for general use in these difficult cases. As for the form now to be taken by the third principle, the difference lies between Mr Blake's adoption for that purpose on the one hand of the ratio of the majority decision in A v Minister for Immigration and Ethnic Affairs (as paraphrased by Mr Pannick) and Mr Pannick's own preference on the other hand for his fourth proposition to this court. The feature which differentiates them is Mr Pannick's adoption of the concepts of 'cohesion' and 'homogeneity'. Although that draws some justification from the US authorities, I do not myself find those concepts helpful. They bring undesirable vagueness into an area already fraught with uncertainty because of the breadth of language adopted by the Convention. From the standpoint of the immigration authorities who have to apply the Convention day by day to the frightened victims of feared persecution and the professional advisers and charitable organisations who try to assist them in gauging their eligibility for refugee status they must be of very little practical utility at all. I prefer, accepting Mr Blake's submission in this respect, to adopt the principle supported by the majority in A v Minister for Immigration and Ethnic Affairs which I have already quoted, but which it may be convenient here to repeat in the summary form which both counsel are agreed is appropriate:

'The Convention emphasises that the group must be a "particular" and "social" group. This means that the members of the group must share something which unites them, and which sets them apart from the rest of society and is recognised as such by society generally.'

I doubt whether it is possible to attempt any more specific formulation than that, and in view of the difficulties which have been experienced by judges in other jurisdictions who have sought to mark the channel with greater precision, I doubt whether it is desirable either.

(B)Application of that principle to the facts

It follows from the acceptance by both sides of Savchenkov principle number 4 that the common uniting attribute setting the group apart from the rest of society and recognised as such by society generally must be an attribute which exists independently of the feared persecution. The characteristics or attributes relied on for this purpose by Mrs Islam and Mrs Shah are isolation (through abandonment and rejection by their husbands with no male support elsewhere) and ostracism (condemnation by the Pakistan community for infringement of the sexual code for women). No one would dispute the gravity of these features or could fail to sympathise with the terror they have inspired in the applicants. It may not be beyond hope, for that very reason, that the Secretary of State may feel moved to regard their cases as calling for special leave to remain on compassionate and discretionary grounds. But the sterner task for this court is to interpret a Convention which set out, as part of the price of achieving international acceptability, to impose limits on the definition of refugee status by abandoning a general recognition of rights of asylum whenever they are seen to be justified on broad humanitarian grounds and imposing instead a formalistic requirement to fitful specific category qualifications. In so interpreting it, the question has to be asked: do the features relied upon in this case represent attributes which can be shown to exist independently of the feared persecution itself? They cannot in my judgment be so regarded. Mr Blake spoke of them as 'the mark of Cain', and so they may be aptly called, but that branding is itself the product of the very persecution which they fear. The heads of persecution relied on are extreme violence at the hands of a husband or his associates, legal disabilities and discrimination, the harshness of Sharia law and the absence of protection by the authorities. Take all those away, and the stigma and the isolation necessarily depart with them. They are not the independent attributes of a particular group. For these reasons, the adjudicator and the Immigration Appeal Tribunal were entitled to conclude in Mrs Islam's case that the persecution she fears is not persecution for a Convention reason. Sedley J was incorrect in holding in Mrs Shah's case that the facts on which she relies are capable in law of bringing her within Art 1A(2) of the Convention. I reach those conclusions on the basis of Mr Pannick's first submission, preferring that (for reasons which I have already indicated) to his second, and it is unnecessary in my view to deal with the causation issue (if indeed it be in truth a separate issue) raised by his third submission. I would accordingly dismiss the appeal in Islam and allow the appeal in Shah. HENRY LJ: I have read, and agree with, the ratio decidendi and the reasons for it in the judgment delivered by my Lord, Waite LJ. I take it to be clearly established up to Court of Appeal level in these courts that for 'membership of a particular social group' to qualify a person with a well-founded fear of persecution as a refugee under the Geneva Convention 1951 (as amended), that person must show that that group existed independently of the feared persecution. Persecution cannot be the defining element of that group (see the decision of another division of this court, Secretary of State for the Home Department v Savchenkov [1996] Imm AR 28). The High Court of Australia in A and Another v Minister for Immigration and Ethnic Affairs and Another [1998] INLR 1 has reached the same conclusion, by a majority. I quote from Mc Hugh J's judgment dealing with 'Persecution as a defining element of "a particular social group" ':

'The concept of persecution can have no place in defining the term "a particular social group". While decisions that have sought to apply the ejusdem generis principle to discern the meaning of "particular social group" are problematic because it is difficult to identify a genus common to "race, religion, nationality... [and] political opinion", one factor common to these four categories is that the fact or fear of persecution plays no role in understanding their content. If the drafters did not intend persecution to be relevant in defining those four categories, it would seem likely that they did not intend persecution to play any part in defining what is a "particular social group". Allowing persecutory conduct of itself to define a particular social group would, in substance, permit the "particular social group" ground to take on the character of a safety-net. It would impermissibly weaken, if it did not destroy, the cumulative requirements of "fear of persecution", "for reasons of' and "membership of a particular social group" in the definition of "refugee". It would also effectively make the other four grounds superfluous.

That being so, persons who seek to fall within the definition of "refugee" in Art 1A(2) of the Convention must demonstrate that the form of persecution they fear is not a defining characteristic of the "particular social group" of which they claim membership. If it were otherwise, Art 1A(2) would be rendered illogical and nonsensical. It would mean that persons who had a well-founded fear of persecution were members of a particular social group because they feared persecution. The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution. The words of Heald JA, sitting in the Canadian Federal Court of Appeal on a claim for membership of a "particular social group" because of a fear of compulsory sterilisation under the PRC's One Child Policy, seem as applicable in Australia as they were in Canada. His Lordship said:

"This leads me to a fundamental objection to acceptance of the group of parents with more than one child who are faced with forced sterilisation as a 'particular social group'. This group, it seems to me, is defined solely by the fact that its members face a particular form of persecutory treatment. To put it another way, the finding of membership in a particular social group is dictated by the finding of persecution. This logic completely reverses the statutory ground of Convention refugee in issue (wherein persecution must be driven by one of the enumerated grounds and not vice versa) and voids the enumerated ground of content... While some may believe that the definition of Convention refugee should embrace all persons who have a reasonable fear of persecution, this is not the definition which Parliament has seen fit to enact." ' (see Chan [1993] FC 675, 692-693.)

That was the view of the majority in that case, and I agree with them and Waite LJ that the applicants must show that the social group they claim exists independently of the persecution they fear. That they have failed to do, and that decision is determinative of this appeal. Mr Blake's carefully constructed group did not and does not exist independently of the persecution complained of. Waite LJ has founded his judgment on this point. As he puts it 'Take out the persecution, and there is no social group'. I agree with him. That point reflected the first submission made by Mr Pannick. It is inescapable that the language of the Convention throws up a lot of hard cases: for instance the families with children under 2 in Herod's Bethlehem in the year of our Lord's birth (Matthew 2:16) would, initially at any rate, be defined solely by persecution. But the likelihood is that supporters of the Bethlehem parents would soon become a particular social group. I deal with this question when considering Mr Pannick's second and third submissions. I have also had the benefit of reading the judgment of Staughton LJ, who agrees with Waite LJ's conclusion - but on the basis of Mr Pannick's second submission, which Waite LJ did not accept in its entirety. For convenience I repeat the second submission:

'Because the group must be "social" and "particular" as well as existing independently of the persecution, there is a need for the group to be homogeneous and cohesive, with links between the members other than their fear of persecution, albeit that the group does not need to meet together in a social club. The adjective "social" refers to persons who are interdependent or co-operative. The word does not refer to persons who simply have a shared characteristic.'

This restating of Savchenkov principle number 3 was put forward by Mr Pannick in opposition to Mr Blake's adoption as representing the law of Mr Pannick's précis of the finding on 'membership of a particular social group' in A v Minister for Immigration and Ethnic Affairs (above). This read:

'The Convention emphasises that the group must be a "particular" and "social" group. This suggests that the members of the group must share something which unites them and which sets them apart from the rest of society and is recognised as such by society generally.'

Waite LJ identifies the 'feature which differentiates [the two rival submissions] is Mr Pannick's adoption of the concepts of "cohesion" and "homogeneity"'. He finds these concepts unhelpful, because they introduce undesirable vagueness. He therefore prefers Mr Blake's submission. Staughton LJ, while agreeing with Waite LJ in the result expresses the view that membership of a particular social group does require:

'... a number of people being joined together in a group with some degree of cohesiveness, co-operation or interdependence; the members must not be solitary individuals.'

I would find for the Secretary of State on this issue. We are here concerned with the existence of the particular social group. In my judgment the particular social group as carefully defined by Mr Blake does not exist because it is not a group that is, in the word used by the Australian judges, 'cognisable'. It is not recognisable as such, although certain individuals share the defining factors identified by Mr Blake. Black CJ said in the Federal Court in Australia in Morato v Minister for Immigration, Local Government and Ethnic Affairs [1992] 39 FCR 401, 405:

'There must be a social group sufficiently cognisable as such to enable it to be said that persecution is feared for reasons of membership of that group.'

Dawson J in A v Minister for Immigration and Ethnic Affairs (above) referred to that judgment with overall approval and said this:

'The adjoining of "social" and "group" suggests that the collection of persons must be of a social character, that is to say the collection must be cognisable in a group of society such that its members share something which unites them and sets them apart from society at large. The word "particular" in the definition merely indicates that there must be an identifiable social group such that a group can be pointed at as a particular social group. A particular social group therefore is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such members exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.'

He then goes on to reiterate the point that the characteristic or element which unites the group cannot be a common fear of persecution:

'There is more than a hint of circularity in the view that a number of persons may be held to fear persecution by reason of membership of a particular social group where what is said to unite those persons into a particular social group is their common fear of persecution. A group thus defined does not have anything in common save for fear of persecution, and allowing such a group to constitute a particular social group for the purposes of the Convention "completely reverses the statutory definition of 'Convention Refugee' in issue (wherein persecution must be driven by one of the enumerated grounds and not vice versa)". That approach would ignore what Birchett J in Ram v The Minister of Immigration [1995] 57 FCR 565, 568 called the "common thread" which links the expressions "persecuted", "for reasons of' and "membership of a particular social group" namely "a motivation which is implicit in the very idea of persecution is expressed in the phrase for reasons of, and fastens upon the victims' membership of a particular social group he is persecuted because he belongs to that group".'

However, it is clear that he recognised that the particular social group did not necessarily have to have a public front, typically a pressure group operating on its behalf, see his judgment at 17E (emphasis added):

'A fundamental human right could only constitute a unifying characteristic if persons associated with each other on the basis of the right, or, it may be added, if society regarded those persons as a group because of their common wish to exercise the right.'

That indication that non-cohesive, disparate individuals may, in certain situations, be capable of being a particular social group is followed by McHugh J in that case. Having emphasised that the persecutory conduct cannot define the group, he sensibly concedes that the actions of the persecutors 'may serve to identify or even cause the creation of a particular group in society'. He says of this:

'The fact that the actions of the persecutors can serve to identify or even create "a particular social group" emphasises the point that the existence of such a group depends in most, perhaps all, cases on external perceptions of the group. The notion of persecution for reasons of membership of a particular social group implies that the group must be identifiable as a social unit. Only in a "particular social group" category is the notion of membership expressly mentioned. The use of the term in conjunction with "particular social group" connotes persons who are defined as a distinct social group by reasons of some characteristic, attribute, activity, belief, interest or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as a particular social group...

A group may qualify as a particular social group, however, even though the distinguishing features of the group do not have a public face. It is sufficient that the public is aware of the characteristics or attributes that, for the purposes of the Convention, unite and identify the group.' (Emphasis added.)

I agree with the analysis of this issue by those two judges. Most ‘particular social groups' will in the ordinary course of things have a cohesive element, involving the ordinary social concepts associated with membership such as organisation, strength through association, fund-raising, publicity or protest. But there will exceptionally be those who though recognised by society as a social group lack any 'cohesion' with their homogeneous fellows and remain disparate individuals. From the hypothetical examples to be found in the authorities, one could take the case of witches, of aristocrats lying low in the French Revolution, of Jews wholly assimilated into German life before the Nazis came to power, and hoping to escape detection. I therefore agree with Waite LJ that 'cohesion' is not necessary in every case. In my judgment it is not necessary where the particular social group is recognised as such by the public, though is not organised, following the Australian High Court's decision in A v Minister for Immigration and Ethnic Affairs. In my judgment Mr Pannick goes too far in his submission. But I agree with Staughton LJ that there is no evidence of any such social group here, neither one inchoate yet recognised by the public, nor one existing in fact. Accordingly, I would find for the Secretary of State on the second issue also. Mr Pannick's third submission is that even if there were such a social group, the persecution that these applicants fear is not for membership of that social group. The persecution they fear is because of the hostility of their husbands. This conclusion seems to me to follow inevitably from my finding on the first and second issues. But the issue usefully focuses on the requirement of membership: this Convention ground protects supporters who, in a loose sense of the words, belong and associate from persecution because of such support (see Black CJ in Morato v Minister for Immigration, Local Government and Ethnic Affairs above). This again highlights the fact that, where there is a particular social group in existence, it will be easier for an active supporter of that group to show persecution for his or her membership than for the victim whose persecution led to the protest showing that his or her feared persecution was because of belonging rather than for what he or she had done, not done, or suffered or feared. Thus this Convention ground may protect the victim's supporters where it does not protect the victim. Where that happens it is to be hoped that the Secretary of State will anxiously consider whether to exercise his discretion to grant exceptional leave to remain. STAUGHTON LJ: On the Statue of Liberty in New York harbour there is this inscription:

'Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refries of your teeming shore,

Send these, the homeless, tempest-tost to me.'

It has from time to time been the policy of civilised nations to allow entry to those who suffer, or fear that they may suffer, persecution in other countries. The concerted effort to that end in recent times has been the convention adopted by the UN Conference on the Status of Refugees and Stateless Persons at Geneva in July 1951, as amended by the Protocol adopted in December 1966. This is restrictive enough in all conscience. In the first place, and for present purposes, it affords relief only to those outside their country of nationality. Hundreds of thousands may be persecuted, but only the very few who escape to a State which is party to the Convention can claim protection. The second major limitation on the Convention is that refugees from persecution can only claim asylum if, in terms of Art 1(A), it is persecution:

'... for reasons of race, religion, nationality, membership of a particular social group or political opinion.'

This restrictive attitude must be the deliberate choice of States that adopt the Convention, and in the case of States with a democratic system of government, must ultimately reflect the will of the people who are already citizens of those States. One may criticise that attitude but one cannot deny that it exists. The tension between humanitarian concern on the one hand and self-interest on the other has produced in this country the whole elaborate apparatus of immigration control, with immigration officers, adjudicators, appeal tribunals, judicial review and a greater burden on the Civil Division of the Court of Appeal than any other single topic. Some States in the past when their territory was sparsely occupied have been more willing than others to receive refugees, notably the USA and Canada but also New Zealand and Australia. I can understand that the United Nations High Commissioner for Refugees wishes the words of the Convention to be given the widest possible meaning. She probably has greater knowledge than anybody else of the world's misery; and there may not be any other means available whereby she can induce States to take a larger proportion of the persecuted into their territory. Some governments may be prepared to publish guidelines, perhaps at the same time disclaiming any intention to bind their national courts (as with the Joint Position of the European Community). But I would imagine that there is no prospect of a new and wider Convention being adopted by a significant number of States in the foreseeable future. Our task is to do justice according to law. If we find, as Lord Goff did in R v Secretary of State for the Home Department ex parte Sivakumaran [1988] AC 958, 1000 that:

'... the High Commissioner's approach is not supported, as a matter of construction, by the words of the convention, even having regard to its objects and to the travaux préparatoires...'

then we must reject it.

In agreement with Waite LJ, I am unable to hold that the women in the present cases are members of a particular social group. That expression does to my mind involve a number of people being joined together in a group with some degree of cohesiveness, co-operation or interdependence; the members must not be solitary individuals. By contrast a social category could be defined in almost any way; if that had been what the framers of the Convention intended, they would have said so, although they would thereby (as it seems to me) have undermined the manifest intention to place some limit on the kind of persecution which was needed to make someone a refugee. Likewise for the reasons given by Waite LJ, I find that Mrs Islam has shown no case for asylum on the basis of political opinion. I would allow the appeal of the Secretary of State in Shah's case, and dismiss the appeal in the Islam case. Appeal in Shah allowed and matter remitted to the High Court for determination of an outstanding issue. Appeal of Islam dismissed. Leave to appeal to House of Lords refused. Solicitors: Treasury Solicitor
Malik Gould Associates
Gulbenkian Harris Andonian

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[1] The Court of Appeal remitted Ex parte Shah back to the High Court for determination of the outstanding issue of whether the Secretary of State, when considering Ms Shah's application for exceptional leave to remain in the UK, was entitled to disagree with the special adjudicator's findings of fact in her asylum appeal.