Judgment - Islam (A.P.) v. Secretary of State for the Home Department Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.) (Conjoined Appeals)  continued

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My Lords,

The question in these appeals is whether the appellants are refugees within the meaning of the Geneva Convention Relating to the Status of Refugees (1951) as amended by the 1967 Protocol. Article 1A of the Convention defines the term "refugee" to mean any person who:

     "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 appellants are women from Pakistan who claim to have a well founded fear of persecution by reason of their membership of a particular social group. They identify the particular social group to which they belong as consisting of (i) women in Pakistan (ii) accused of transgressing social norms (in the present case by adultery and disobedience to their husbands) and (iii) who are in consequence unprotected by their husbands or other male relatives. Both appellants have satisfied the authorities that they have a fear of persecution and that this fear is well founded. The Court of Appeal rejected their claims to asylum on the ground that the class of persons they identified as liable to persecution was not a social group. The appeal thus calls for an examination of the concept "membership of a particular social group" in the context of the 1951 Convention.

Persecution may be indiscriminate. It may be for any reason or none. It is not, however, enough for an applicant for asylum to show that he or she has a well founded fear of persecution. The persecution must be discriminatory and for a Convention reason. By limiting the persecution in this way, the Convention contemplates that the possibility that there may be victims of persecution who do not qualify for refugee status. Furthermore, if the reason relied upon is membership of a particular social group, it is not enough that the applicant is a member of a particular social group and has a well founded fear of persecution. The applicant must be liable to persecution because he or she is a member of the social group in question.

In A. v. Minister for Immigration and Ethnic Affairs (1997) 142 A.L.R. 331, 355 McHugh J. said:

     "Courts and jurists have taken widely differing views as to what constitutes 'membership of a particular social group' for the purposes of the Convention. This is not surprising. The phrase is indeterminate and lacks a detailed legislative history and debate."

The expression has, however, attracted a wealth of judicial analysis in the United States, Canada and Australia, and while considerable difficulties are likely to be encountered in applying the concept in practice, a broad consensus has emerged as to its nature. It is generally agreed that the group must constitute a cognisable group sharing common characteristics which set its members apart from society at large and for which they are jointly condemned by their persecutors. What constitutes a cognisable group is in my opinion a function of the particular society in which it exists. Westernised women may be cognisable as a distinct social group in an Islamic country in the Middle East but not in Israel; just as landowners were such a group in pre-revolutionary Russia but would not be in England today.

The qualifying bases of feared persecution were agreed at the Conference of Plenipotentiaries held at Geneva in July 1951. The inclusion of "membership of a particular social group" was made at the instance of the Swedish delegate because experience had shown that the other categories would be insufficient to cover all the situations intended. Although contemporary records of the discussions are not illuminating, it is not difficult in the light of history to discern what the delegates must have had in mind. Persecution of dissident minorities has often followed in the wake of social or cultural revolution. Class war has not been confined to our own continent and bloodstained century. Aristocrats during the French Terror, Kulaks in pre-war Soviet Russia, the intelligentsia and professional classes in Cambodia, have all been the victims of monstrous persecution not readily covered by the other Convention grounds. It does not, of course, follow that the expression should be confined to the social groups which the framers of the Convention are likely to have had in mind. But it should not be construed to exclude them.

In interpreting the expression "membership of a particular social group" I derive assistance from article 2 of the Universal Declaration of Human Rights. This was adopted by the General Assembly of the United Nations in December 1948, was still recent when the terms of the 1951 Convention were being settled, and is mentioned in the Preamble to the Convention. Article 2 prohibits the denial of the rights and freedoms set forth in the Declaration:

     "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (my emphasis)

The denial of human rights, however, is not the same as persecution, which involves the infliction of serious harm. The 1951 Convention was concerned to afford refuge to the victims of certain kinds of discriminatory persecution, but it was not directed to prohibit discrimination as such nor to grant refuge to the victims of discrimination. Moreover, while the delegates in Geneva were willing to extend refugee status to the victims of discriminatory persecution, they were unwilling to define the grounds of persecution which would qualify for refugee status as widely as the discriminatory denial of human rights condemned by the Universal Declaration. Discriminatory persecution "of any kind" would not suffice; the Convention grounds are defining, not merely illustrative as in the Universal Declaration. The inclusion of sex as a basis of discrimination in the Universal Declaration and the failure to include it as a ground of persecution in the 1951 Convention is noteworthy. It may be due to the fact that, while sexual discrimination was widely practised in 1951, and women are condemned to a subordinate and inferior status in many societies even today, it is difficult to imagine a society in which women are actually subjected to serious harm simply because they are women. But the words in article 2 which I have emphasised, "language . . . social origin, property, birth or other status", indicate to my mind the kind of characteristics which have commonly been shared by the victims of persecution and which the delegates must have had in mind when including the expression "membership of a particular social group". They are all matters of status rather than association; they have regard to the personal attributes of the victims rather than their behaviour.

It follows that I cannot accept the view of Staughton L.J. in the present case that the expression "particular social group" connotes a number of people joined together in a group with some degree of cohesiveness, co-operation or interdependence. It would exclude the victims of persecution on the ground of birth or social or economic class which was precisely the kind of persecution which the framers of the 1951 Convention are most likely to have had in contemplation. The requirement appears to have originated in the decision of the United States Court of Appeals (Ninth Circuit) in Sanchez-Trujillo v. Immigration and Naturalization Service (1986) 801 F.2d 1571 but the decision has not been followed in other circuits in the United States, and the requirement has been rejected in both Canada and Australia. In my opinion it should be rejected here also. The presence of such a factor may demonstrate that a distinct social group exists; its absence does not demonstrate the contrary.

In identifying the scope of the expression "a particular social group" the decision of the United States Board of Immigration Appeals in In re Acosta (1985) 19 I. & N. 211 has been very influential. This describes a social group as one consisting of persons who share an immutable characteristic, that is to say a characteristic that is beyond the power of the individual to change or is so fundamental to individual identity or conscience that it ought not to be required to be changed. A characteristic which is beyond the power of the individual to change may be innate or may consist of a shared past experience.

The suggestion that the defining characteristic need not be beyond the power of the individual to change has, however, been controversial. In Attorney-General of Canada v. Ward (1993) 103 D.L.R. (4th) 1, 33-34 La Forest J. offered the following as a useful working rule to identify the kinds of group contemplated by the Convention:

 (i) groups defined by an innate or unchangeable characteristic;

 (ii) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and

 (iii) groups associated by a former voluntary status which is unalterable due to its historical permanence.

La Forest J. later modified this in Chan v. Minister of Employment and Immigration (1996) 128 D.L.R. 213, 248-249. He emphasised that he had offered only a working rule, not a definitive test, and stated unequivocally that there was no requirement that the group should be a voluntary association of like-minded persons. This is plainly right. But I respectfully agree with the analysis of Dawson J. in A. v. Minister for Immigration and Ethnic Affairs (1997) 142 A.L.R. 331, 344-345 that the only relevance of the characterisation of the common element as a fundamental human right is that persons associated for the purpose of asserting that right are more readily recognisable as a distinctive social group. To go further would transform the nature of the Convention by converting it from a measure affording protection to the victims of persecution into a measure aimed at counteracting discrimination.

It is also clear that the group must exist independently of the persecution. The reason for this is explained by Dawson J. in A. v. Minister for Immigration and Ethnic Affairs at p. 341:

     "However, one important limitation which is, I think, obvious is 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 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)': Chan v. Canada [1993] 3 F.675, 692-693 per Heald J.A."