R v. Immigration Appeal Tribunal and Secretary of State for the Home Department, Ex parte Syeda K-Hatoon Shah

R v IMMIGRATION APPEAL TRIBUNAL and SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte SYEDA K-HATOON SHAH

CO/4330/95

11 November 1996

Queen's Bench Division: Sedley J Asylum-domestic violence-persecution by husband - fear of threat of persecution for adultery-whether Pakistani women rejected by their husbands on the grounds of alleged adultery constitute a social group within the Convention. The applicant for the judicial review of the refusal by the Tribunal to grant leave to appeal from the- determination of a special adjudicator dismissing her appeal against the refusal of the Secretary of State to grant her asylum was a citizen of Pakistan. The applicant asserted that her husband had been violent. She had been driven out of her home. On arrival in the United Kingdom she was pregnant. She believed her husband, if she returned to Pakistan would accuse her of having conceived the child adulterously and she would be subject to penalties under the Shariah law. The adjudicator found the applicant had been persecuted but not for a Convention reason. Before the court it was argued that the applicant fell within a social group within the Convention. It appears that the definition of the relevant social group caused counsel some difficulty but the court permitted counsel to vary the definition.

Held:

1. The facts established were capable of bringing the applicant within the Convention.

2. "This did not mean that if the fact-findings stand she is bound to succeed. In this highly specialized field of adjudication a great deal depends upon the expertise of the Immigration Tribunal itself. Its adjudication 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.

Miss F Webber for the applicant

M Shaw for the respondent

Cases referred to in the judgment:

Sanchez-Trujillo v Immigration and Naturalisation Service 801 F 2nd 1571 (9th Circ 1986). Canada (Attorney General) v Ward [1993] 2 RCS 689. Secretary of State for the Home Department v Sergei Savchenkov [1996] Imm AR 28. McGregor (unreported). Islam (unreported).

SEDLEY J:

By leave of Tuckey J granted on 9 February 1996 Miss Webber moves on the applicant's behalf:

(1)for mandamus to require the Immigration Appeal Tribunal to hear and determine the applicant's appeal from the decision of a special adjudicator, the Tribunal having refused leave to appeal;

and

(2)for mandamus requiring the Secretary of State to reconsider his refusal to accept the special adjudicator's recommendation that, notwithstanding the refusal of asylum, the applicant should have exceptional leave to remain.

By agreement of Miss Webber and Mr. Shaw, for the Home Secretary, (the Tribunal being unrepresented before me), the second issue was stood over pending resolution of the first. At the conclusion of argument I gave my conclusion that the applicant succeeded on the first issue, reserving my reasons, which I now set out. In consequence (unless my decision is overset on appeal) the second issue becomes otiose. If it revives, it will be in fresh circumstances not apt for consideration on the present motion. The material findings of the special adjudicator, Mrs. J L Weinberg, may be summarised as follows. The applicant, a citizen of Pakistan, was a battered wife. She had been brought up partly in the United Kingdom but had returned to Pakistan at 17 in order to marry. She and her husband had six children, all of whom are being brought up by the extended family. Her husband, after years of violence, had finally driven her out of her home. On arrival in the United Kingdom she found that she was pregnant. She has given birth and now credibly fears that if she has to return she will be accused by him of conceiving the child adulterously, exposing her to the operation of the Shariah statute law which prescribes stoning to death as the punishment for adultery. If returned to Pakistan she would have nowhere but her husband's house to go. The special adjudicator held:

"I am satisfied that she has been persecuted and that there is a reasonable expectation that she would be persecuted by her husband in the future if she were to return to him."

Pausing here, the first reference to persecution is evidently to domestic violence; the second may be to domestic violence alone or to the anticipated accusation of adultery. The special adjudicator in the event concluded:

"Her fear of persecution is well-founded, and there is a reasonable degree of likelihood that she will be persecuted if she is returned to Pakistan. I nevertheless do not find that persecution or fear of persecution falls within the terms of the Convention."

She accordingly dismissed the appeal against the adverse decision of the Secretary of State, who had very fairly treated the applicant's appeal against notice of illegal entry, which spoke of her fear of persecution, as an asylum claim. The decision letter, without a trace of irony. had given as one of the Secretary of State's reasons "that since 1988 no individual has been punished by the authorities by use of the death penalty for adultery". The key to the special adjudicator's decision was the meaning of "social group" in the United Nations Convention of 1951 on the status of refugees. The applicant's case, which was presented by counsel, had been that she belonged to a definable group, namely women who had suffered domestic violence in Pakistan. The special adjudicator said:

"It appears to me that there is no accepted definition of social group and it is no more possible for a woman who has suffered domestic violence to bring herself within the meaning of social group in the Convention that it is for anyone who has been divorced to say that she/he is a member of a social group for the purposes of [the] Convention or, indeed, for anyone who has a criminal record to be able to say similarly."

The refusal of leave by the Immigration Appeal Tribunal is an unhappy document. It is not helped by the fact that the grounds submitted to the Tribunal were (I am told. and can readily believe) written by an unqualified individual in the applicant's solicitor's office. They included, however, the following:

"I will face problems in Pakistan and may be arrested under Sharia Laws of Pakistan on the charge of giving birth to a child which my former husband would deny the legitimacy."

The Tribunal chairman, Mr. Maddison, refusing leave to appeal, wrote:

"The adjudicator came to clear adverse findings of fact, after giving to each element in the evidence the weight she considered appropriate."

The decision, in a form familiar to this court, goes on to say

"The Tribunal has read all the papers on file."

It is frankly impossible, with respect, to accept this. The adjudicator had come to entirely favourable findings of fact. It was on their significance in law that she had found against the applicant. Mr. Shaw has accordingly not sought to defend the Tribunal's decision. His case has very properly been that although it cannot stand, this court should not remit the case because even with the facts found in her favour the applicant cannot as a matter of law succeed. Before I turn to this question I must look at the somewhat protean way in which the issue has taken shape on the applicant's side. Before the special adjudicator, as I have said, it was submitted that the material social group was battered wives. Opening the application before me, and building on the notice of appeal submitted to the Tribunal, Miss Webber recast the group as women who are perceived to have transgressed Islamic mores. In the course of argument it became apparent that this too might attract problems, and Miss Webber redefined the relevant group as women rejected by their husbands on the ground of alleged adultery. In each case the group was, of course, further defined by its location in Pakistani society. Mr. Shaw understandably asked at what point the applicant's case must arrive at its final form. It is not, of course, ordinarily open to an applicant for judicial review to alter the issues upon which the challenged decision was made. But in the area of asylum law, potentially involving as it always does the right to life, the court ought not in my view to be difficult or rigid provided a sensible endeavour is being made to crystallise in serviceable form the legal issue thrown up the evidence and findings. What matters is that proper consideration should be given to the question whether the applicant's case as accepted by the special adjudicator is capable of founding a claim for asylum, and Miss Webber's final formulation has enabled Mr. Shaw to advance helpful and cogent submissions on an undoubtedly difficult question. Article 1 (A) of the 1951 Geneva Convention relating to the status of refugees provides:

"For the purposes of the present Convention, the term ‘refugee' shall apply to any person who:

…

(2)As a result of events occurring before 1 January 1951 and owing to a 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…"

In Secretary of State for the Home Department v Savchenkov [1996] Imm AR 28 the Court of Appeal had to consider the meaning of "social group" in the Convention in relation to one of a group of hotel security guards who had been harassed and threatened by organised criminals. The Immigration Appeal Tribunal had concluded that in contemporary Russia persons approached by the mafia to join it or co-operate with it, and who refused to do so, constituted a social group liable thereafter to persecution by the mafia. This conclusion was overset by the Court of Appeal, which in a judgment drawing on a range of international authorities concluded that a social group for Convention purposes must be identifiable by something other than the very risk of persecution relied on as a ground of asylum. The group to which Mr. Savchenkov belonged did not pass this test. Although this alone was the ratio decidendi of the case, the judgments, in particular the leading judgment given by McCowan LJ, give detailed consideration to what the phrase "particular social group" does embrace. The court derived particular assistance from the judgment of La Forest J in Canada (Attorney General) v Ward [1993] 2 SCR 689. La Forest J held:

"The meaning assigned to a ‘particular social group' in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis of the international refugee protection initiative. The tests proposed in Mayers, Cheung and Matter of Acosta ... provide a good working rule to achieve this result. They identify three possible categories:

(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; and

(3)Groups associated by a former voluntary status. unalterable due to historical permanence."

Because of the standing and experience of counsel in the case it is also relevant to set out four principles upon which they agreed:

"(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 article 1(A)(2).

(2)To give the phrase "membership of a particular social group" too broad an interpretation would conflict with the object identified in (1).

(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 of asylum, whenever a number of persons fear persecution for a reason common to them."

There are obvious dangers in attempting any kind of lexicographical definition of "particular social group". Mr. Shaw, rightly in my view, accepted that at the applicability of the phrase is essentially a question of fact in every case, but one which is bounded by law. One such boundary-namely where the group is defined solely by persecution-is drawn by the Savchenkov decision but great care must in my view be taken not to treat the "good working rule summarised by La Forest J in Ward as similarly definitive. Nor. it seems so me, should counsel's a-reed parameters in Savchenkov be treated as definitive. What, for example, is the genus constituted by race, religion, nationality and political opinion, with which a "particular social group- must fit? I find difficulty with the proposition that the genus is "a civil or political status. The framers of the Geneva Convention must have had in the forefront of their minds the Jews of pre-war Germany who, however, varied from cohesive orthodox communities to culturally assimilated families. All were persecuted on grounds of race, but it is not easy to identify any civil or political status which marks out those who were assimilated: for their persecutors it was simple racial origin which marked them out, while for those assimilated German Jews who became refugees it was their persecution alone which Marked them out. It is no doubt for this reason that race forms a discrete ground in the Convention; but it is not, it seems to me, easy to deduce from it in all cases a civil or political status divorced from the fact of persecution. Similar problems attend the category of nationality. Professor Guy Goodwin-Gill in The Refugee in International Law (second edition 1996) raises other questions about the meaning of "a particular social group". At pages 362-5 he writes:

"In Ward the Supreme Court was clearly of the view that an association of people should not be characterised as a particular social group ‘merely by reason of their common victimisation as the objects of persecution'. The essential question, however, is whether the persecution feared is the ‘sole' distinguishing factor that results in the identification of the particular social group. Taken out of context, this question is too simple, for whenever persecution under the law is the issue, legislative provisions will be but one facet of broader policies and perspectives all of which contribute to identification of the group, adding to its pre-existing characteristics.

…

Treatment amounting to persecution thus remains relevant in identifying a particular social group, where it reflects state policy towards a particular class."

The author goes on (p 363) to consider Executive Committee Conclusion No 39 (1985) that states "in the exercise of their sovereignty" may interpret "social group" to include women who face harsh or inhuman treatment for having transgressed the social mores of their community. He notes that the categorisation of women as in themselves a social group has found no support within the Convention. But he goes on:

"What might at first glance appear may enter the public arena and therefore the traditional refugee domain when it passes into the ambit of state-sanctioned or state-tolerated oppression. This raises evidential considerations of some magnitude. however. and at a certain point cases call rather for a value judgment than a purely factual assessment of conditions in this or that country".

He concludes (p 365):

"Clearly there are social groups other than those that share immutable characteristics. or which combine for reasons fundamental to their human dignity [reference to the Ward categories]. Drawing the contours of such groups by reference to the likelihood of persecution confuses the issues of identity and risk, despite the fact that each is relevant to the other. The individualised approach of the Convention refugee definition requires attention to personal circumstances, time and place, all of which may combine to distinguish those at risk from others who may share similar characteristics and yet not be in danger. Although there will be policy pressures to limit refugee categories in periods of increased population displacement, there is no rational basis for denying protection to individuals who, even if divided in lifestyle, culture, interests and politics, may yet be linked across another dimension of affinity."

Mr. Shaw for his part accepts that, at least in theory, persecution may create a social group if it causes a disparate segment of society to cohere. Professor Goodwin-Gill goes on:

"If such groups are not excluded as a matter of policy, then decision-makers may need to accept that, with respect to a particular social group, there is probably no single coherent definition, but rather a set of variables, ‘a range of permissible descriptors'. These would include for example (1) the fact of voluntary association, where such association is equivalent to a certain value and not merely the result of accident or incident, unless that in turn is affected by (3); (2) involuntary linkages, such as family, shared past experience, or innate, unalterable characteristics; and (3) the perception of others."

One sees, therefore, that if the view of James Hathaway, in The Law of Refugee Status (Toronto, 1991) is right, that "class or caste can found the basis of a social group", then the decision of Circuit Judge Beezer in the case of Sanchez Trujillo (cited, like Hathaway, by Mr. Nicholas Blake QC in Savchenkov) cannot be comprehensive:

"The phrase ‘particular group' implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest."

While, therefore, Miss Webber must be able on the evidence to place the applicant in a group which is not defined solely by persecution, it is not in my judgment necessary for her to situate the applicant within one of the Ward categories, though it would no doubt be valuable to be able to do so. These are aids to interpretation, not an exhaustive definition of the phrase "a particular social group" in the Convention. The dangers of a prescriptive approach will be apparent on any consideration of the shifting focus of systematic persecution in what has been a dreadful century for much of the human race. Take the street children of many South American cities, at constant risk of being killed by armed men beyond the control of the state. it might be difficult in the case of any one street child who reached a safe country to allocate him or her to a closely affiliated or cohesive social group except one defined by the fact that it is persecuted; yet it is hard to think that the framers of the 1951 Convention would have expected such a child to fall outside the protection which they were providing. Although, therefore, I am not convinced by Miss Webber's endeavour to fit women in the applicant's prospective situation into the category of a croup defined by an innate or unchangeable characteristic (viz an accusation of conceiving a child out of wedlock), I do not think that this is necessarily the right way to approach the Convention. Unless it is seen as a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form, the Convention will eventually become an anachronism. The fact that it is today groaning under other burdens, ranging from exploitation by the unscrupulous or the opportunistic to genuine invocation by a previously unimagined volume of asylum seekers, calls for scrupulous attention to every claim but cannot redefine its meaning. I have been shown two relevant decisions of the Immigration Appeal Tribunal. In Islam (2 October 1996) a Tribunal chaired by Mr. Maddison rejected a case very close to the present one, holding:

"We do not accept that all Pakistani women who leave their husbands nor indeed all those who commit adultery or are accused of it are persecuted-but again, all those who fall into the sub-group as defined, fall into it because it is alleged, they are persecuted."

The Tribunal recognised that in following the Court of Appeal's decision in Savchenkov, as it was bound to do, it was following "guidelines…more restrictive than the interpretation of social group in some other jurisdictions." Moreover, in McGregor (20 January 1995), decided at a time when Savchenkov had gone the applicant's way before the Tribunal and was awaiting a hearing in the Court of Appeal, an Immigration Appeal Tribunal again chaired by Mr. Maddison adopted a formula which, it seems to me, properly respects the negative principle subsequently laid down by the Court of Appeal but also respects the potential breadth of the phrase social group":

"We think that a social group must have some distinguishing and recognisable characteristic which is independent of the special event which lays the basis of the claim for asylum."

The broad notion of a distinguishing characteristic, in contrast to the narrower concept of a "civil or political status" (even if status is enlarged to include situation or condition) seems to me to afford a proper range of significance to the wording of the Convention and also to provide a better idea of the genus to which the ejusdem generis rule should be applied. Although Miss Webber does not have an easy task in the light of current jurisprudence on the Convention, the facts established in her client's favour to the satisfaction of the special adjudicator are capable in law of bringing her within article 1(A)(2) of the 1951 Convention. This does not mean that if the fact-findings stand she is bound to succeed. In this highly specialised field of adjudication, a eat deal depends upon the expertise of the Immigration Appeal Tribunal itself. Its adjudication 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. It was for these reasons that I indicated at the conclusion of argument that I proposed to grant certiorari to quash the determination of the Immigration Appeal Tribunal dated 7 August 1995 by which leave to appeal from the special adjudicator's decision was refused and (since the Tribunal is not present to volunteer it) mandamus requiring the Tribunal to grant leave and to hear and determine the appeal.

DISPOSITION

Application granted

Solicitors:

Malik Gould Associates, London E1; Treasury Solicitor