|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|
In the case of Mrs Islam, the legal and social conditions which according to the evidence existed in Pakistan and which left her unprotected against violence by men were discriminatory against women. For the purposes of the Convention, this discrimination was the critical element in the persecution. In my opinion, this means that she feared persecution because she was a woman. There was no need to construct a more restricted social group simply for the purpose of satisfying the causal connection which the Convention requires.
Mr. Blake, in supporting this argument, suggested that the requirement of causation could be satisfied by applying a "but for" test. If they would not have feared persecution but for the fact that they were women, then they feared persecution for reason of being women. I think that this goes from overcomplication to oversimplification. Once one has established the context in which a causal question is being asked, the answer involves the application of common sense notions rather than mechanical rules. I can think of cases in which a "but for" test would be satisfied but common sense would reject the conclusion that the persecution was for reasons of sex. Assume that during a time of civil unrest, women are particularly vulnerable to attack by marauding men, because the attacks are sexually motivated or because they are thought weaker and less able to defend themselves. The government is unable to protect them, not because of any discrimination but simply because its writ does not run in that part of the country. It is unable to protect men either. It may be true to say women would not fear attack but for the fact that they were women. But I do not think that they would be regarded as subject to persecution within the meaning of the Convention. The necessary element of discrimination is lacking. (Compare Gomez v. Immigration and Naturalization Service (1991) 947 F.2d 660).
I am conscious, as the example which I have just given will suggest, that there are much more difficult cases in which the officers of the State neither act as the agents of discriminatory persecution nor, on the basis of a discriminatory policy, allow individuals to inflict persecution with impunity. In countries in which the power of the State is weak, there may be intermediate cases in which groups of people have power in particular areas to persecute others on a discriminatory basis and the State, on account of lack of resources or political will and without its agents applying any discriminatory policy of their own, is unable or unwilling to protect them. I do not intend to lay down any rule for such cases. They have to be considered by adjudicators on a case by case basis as they arise. The distinguishing feature of the present case is the evidence of institutionalised discrimination against women by the police, the courts and the legal system, the central organs of the State.
Finally, I must say something about the general implications of this case. The Chairman of the Immigration Appeal Tribunal which heard Mrs Islam's case was dismissive about the evidence of discrimination against women in Pakistan. He said that it contained:
There was in my view no suggestion that a woman was entitled to refugee status merely because she lived in a society which, for religious or any other reason, discriminated against women. Although such discrimination is contrary not merely to western notions but to the constitution of Pakistan and a number of international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination Against Women, which Pakistan ratified in 1996, it does not in itself found a claim under the Convention. The Convention is about persecution, a well founded fear of serious harm, which is a very different matter. The discrimination against women in Pakistan found by the special adjudicator to exist there is relevant to show that the fear of persecution is on a Convention ground but is not in itself enough. Furthermore, the findings of fact as to discrimination have not been challenged. They cannot be ignored merely on the ground that this would imply criticism of the legal or social arrangements in another country. The whole purpose of the Convention is to give protection to certain classes of people who have fled from countries in which their human rights have not been respected. It does not by any means follow that there is similar persecution in other Islamic countries or even that it exists everywhere in Pakistan. Each case must depend upon the evidence.
I would therefore allow the appeals. In the case of Mrs Islam, I would make a declaration in accordance with section 8(2) of the Asylum and Immigration Appeals Act 1993 that it would be contrary to the United Kingdom's obligations under the Convention for her to be required to leave the United Kingdom. In the case of Mrs Shah, I would restore the order of Sedley J. remitting her case to the Immigration Appeal Tribunal.
LORD HOPE OF CRAIGHEAD
I have had the advantage of reading in draft the speeches which have been prepared by my noble and learned friends Lord Steyn and Lord Hoffmann. I agree with them that these appeals should be allowed, and I would make the same orders as they have proposed. I also agree with what they have said on the questions of causation and political opinion. I should like to make these observations on the question of "particular social group".
Article 1A(2) of the United Nations Convention Relating to the Status of Refugees, 1951 defines the term "refugee" for the purposes of the Convention. The relevant part of that definition, as amended by the 1966 Protocol, states that "refugee" means any person who:
The issue which is common to these appeals is whether the appellants, who are both married women of Pakistani nationality, are members of a "particular social group." The "particular social group" to which they claim to belong is said to comprise women in Pakistan accused of transgressing social mores who are unprotected by their husbands or other male relatives.
I would make three general points about the definition before I examine the phrase "particular social group". The first is that the characteristics, commonly referred to as the Convention reasons, which are set out in paragraph (2) of article 1A are designed to provide an inclusive list of the reasons for which the person who is seeking refugee status must claim that he has a well founded fear of being prosecuted. The list is not, as one finds in some human rights instruments, an illustrative one. This means that it is necessary for the person to be able to show that his fear is of persecution for a Convention reason, not just that he has a fear of being persecuted.
The second relates to a feature which is common to all five of the Convention reasons which are set out in the paragraph. The first preamble to the Convention explains that one of its purposes was to give effect to the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. This principle was affirmed in the Charter of the United Nations and in the Universal Declaration of Human Rights approved by the General Assembly of the United Nations on 10 December 1948. If one is looking for a genus, in order to apply the eiusdem generis rule of construction to the phrase "particular social group," it is to be found in the fact that the other Convention reasons are all grounds on which a person may be discriminated against by society.
The third point is that, while the risk of discrimination by society is common to all five of the Convention reasons, the persecution which is feared cannot be used to define a particular social group. The rule is that the Convention reasons must exist independently of, and not be defined by, the persecution. To define the social group by reference to the fear of being persecuted would be to resort to circular reasoning: A. and Another v. Minister for Immigration and Ethnic Affairs and Another (1997) 142 A.L.R. 331, 358, per McHugh J. But persecution is not the same thing as discrimination. Discrimination involves the making of unfair or unjust distinctions to the disadvantage one group or class of people as compared with others. It may lead to persecution or it may not. And persons may be persecuted who have not been discriminated against. If so, they are simply persons who are being persecuted. So it would be wrong to extend the rule that the Convention reasons must exist independently of, and not be defined by, the persecution so as to exclude discrimination as a means of defining the social group where people with common characteristics are being discriminated against. That would conflict with the application of the eiusdem generis rule, and it would ignore the statement of principle which is set out in the first preamble to the Convention.
I turn now to the phrase "particular social group." As a general rule it is desirable that international treaties should be interpreted by the courts of all the states parties uniformly. So, if it could be said that a uniform interpretation of this phrase was to be found in the authorities, I would regard it as appropriate that we should follow it. But, as my noble and learned friend Lord Steyn has demonstrated in his review of the United States, Australian and Canadian case law, no uniform interpretation of it has emerged. The only clear rule which can be said to have been generally recognised is that the persecution must exist independently of, and not be used to define, the social group. I agree that the traveaux preparatiores of the Convention are uninformative. But it is more important to have regard to the evolutionary approach which must be taken to international agreements of this kind. This enables account to be taken of changes in society and of discriminatory circumstances which may not have been obvious to the delegates when the Convention was being framed.
In general terms a social group may be said to exist when a group of people with a particular characteristic is recognised as a distinct group by society. The concept of a group means that we dealing here with people who are grouped together because they share a characteristic not shared by others, not with individuals. The word "social" means that we are being asked to identify a group of people which is recognised as a particular group by society. As social customs and social attitudes differ from one country to another, the context for this inquiry is the country of the person's nationality. The phrase can thus accommodate particular social groups which may be recognisable as such in one country but not in others or which, in any given country, have not previously been recognised.
Mr. Pannick Q.C. said that a social group normally required cohesion between its members, and that if it lacked cohesion this was a very strong indication that it was not a group. But I think that this cannot be so in all cases. There are various ways in which a social group may be formed. It may be voluntary and self-generating. In that event it makes good sense to say, as Staughton L.J. said in the Court of Appeal at p. 93D, that it must have some degree of cohesiveness, co-operation or interdependence among its members. But, in the context of article 1A(2) of the Convention, I do not think that it needs to be self- generating. It may have been created, quite contrary to the wishes of the persons who are comprised in it, by society. Those persons may have been set apart by the norms or customs of that society, so that all people who have their particular characteristic are recognised as being different from all others in that society. This will almost certainly be because they are being discriminated against by the society in which they live as they have that characteristic. I do not think that the fact that it is discrimination which identifies the group to which these people belong as a "particular social group" within that society offends against the rule that the group must exist independently of, and not be defined by, the persecution. As I said earlier, people can be and often are discriminated against without being persecuted.
The rule that the group must exist independently of the persecution is useful, because
persecution alone cannot be used to define the group. But it must not be applied outside its
proper context. This point has been well made by Guy S. Goodwin-Gill, The
Refugee in International Law, 2nd ed. (1996). At pp. 47-48 he observes that the
importance, and therefore the identity, of a social group may well be in direct proportion to
the notice taken of it by others. Thus the notion of social group is an open-ended one, which
can be expanded in favour of a variety of different classes susceptible to persecution. In a
footnote at p. 361, under reference to the analysis in Ward v. Attorney-General of
Canada (1993) 103 D.L.R. (4
The unchallenged evidence in this case shows that women are discriminated against in Pakistan. I think that the nature and scale of the discrimination is such that it can properly be said the women in Pakistan are discriminated against by the society in which they live. The reason why the appellants fear persecution is not just because they are women. It is because they are women in a society which discriminates against women. In the context of that society I would regard women as a particular social group within the meaning of article 1A(2) of the Convention.
In the decision of the U.S. Board of Immigration Appeals in In re Acosta
(1985) 19 I. & N. 2H, it was recognised that, on the application of the eiusdem generis
principle, the shared common, immutable characteristic which would qualify to form a
particular social group could include the person's sex. La Forest J. in Attorney-General
v. Ward (1993) 103 D.L.R. (4
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn, and I agree that the appeals should be allowed on the ground described by him as "the narrower ground" which was relied on by the appellants. I prefer to express no view on the wider issue whether women in Pakistan constitute "a particular social group" within the meaning of article 1A(2) of the Convention.