Past ill treatment can identify social group
In SB (PSG - Protection Regulations – Reg 6) Moldova CG [2008] UKAIT 00002 the Asylum and Immigration Tribunal had to decide whether the Appellant, a young Moldovan woman who had been trafficked into the United Kingdom was a refugee because she was a member of a “particular social group” (“PSG”). She was trafficked so that she could be sexually exploited in the UK.
The question of what is and what is not a particular social group in the context of refugee law has been the subject of complicated litigation in the Immigration Appeal Tribunal (before it was replaced by the Asylum and Immigration Tribunal in April of 2005), the Court of Appeal and the House of Lords for many years. The litigation has taken account of cases decided in Canada, Australia and the United States. The House of Lords’ most recent judgment on it is Fornah v. SSHD, K. v. SSHD [2006] UKHL 46. The Lords’ judgment in R v Immigration Appeal Tribunal ex parte Shah; Islam v Secretary of State [1999] 2 AC 629 (always referred to as “Shah & Islam”), in which their Lordships found that “women in Pakistan” constituted a particular social group, continues to be the major landmark in the development of the law.
In SB (PSG - Protection Regulations – Reg 6) Moldova CG [2008] UKAIT 00002 the Asylum and Immigration Tribunal had to consider this and much more case law in the context of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, which in the United Kingdom give effect to Council Directive 2004/83/EC of 20 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. (Luckily the Asylum and Immigration Tribunal refers to this directive throughout its lengthy determination as “the Qualification Directive”).
Regulation 6(1)(d) reads:
"(d) a group shall be considered to form a particular social group where, for example:
(i) members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and
(ii) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;"
It is a fundamental principle of the law relating to particular social group that the suggested group can be defined without reference to the persecution feared. In SB’s case three possible groups were suggested on her behalf. These were:
i) women in Moldova
ii) former victims of trafficking in Moldova and
iii) victims of trafficking for the purpose of sexual exploitation
With respect to the last two of these suggested particular social groups – it might be thought that they would be disqualified because of the reference within them to the persecution feared by its members. But the Tribunal in this case has, significantly, pointed out that an individual’s past experience is independent of the reason for acts of persecution in the future which the individual fears. It gained support for its reasoning from paragraph 37 of Baroness Hale of Richmond’s speech in R on the application of Hoxha v Secretary of State [2005] UKHL in which she said:
“37. If what they fear is capable of amounting to persecution, is it for a Convention reason? It is certainly capable of being so. In R v Immigration Appeal Tribunal and another, Ex p Shah [1999] 2 AC 629, this House held that women in Pakistan constituted a particular social group, because they shared the common immutable characteristic of gender and were discriminated against as a group in matters of fundamental human rights, from which the State gave them no adequate protection. The fact of current persecution alone is not enough to constitute a social group: a group which is defined by nothing other than that its members are currently being persecuted would not qualify. But women who have been victims of sexual violence in the past are linked by an immutable characteristic which is at once independent of and the cause of their current ill-treatment. They are certainly capable of constituting a particular social group under the Convention."
(The Tribunal’s emphasis)
The Tribunal concluded that its own reformulation of the second and third groups suggested by on the Appellant’s behalf, which is “former victims of trafficking for sexual exploitation” – survived the concern that the group must not be defined by the persecution feared by its members. Instead the past event stipulated in the group – having been a victim of trafficking for sexual exploitation – was the immutable characteristic required by the law found in the authorities, and now enshrined in Regulation 6 (1) (d) (1).
As a consequence of its reasoning the Tribunal found that a decision of the Immigration Appeal Tribunal, MP (Trafficking – Sufficiency of Protection) Romania [2005] UKIAT00086, had been incorrectly decided. In that case (which was heavily relied on by counsel for the Secretary of State) the Appellant had relied upon the group described the by sentence: “people who had been trafficked” Of this the Tribunal had stated:
“…“people who have been trafficked” falls foul of the principle that the group must exist independently of the persecution it fears. Such a group is defined by no more than the persecutory element of trafficking.”
The identical reasoning (not essential to its decision and so “obiter”) of the Immigration Appeal Tribunal in JO (internal relocation - no risk of re-trafficking) Nigeria [2004] UKIAT 00251 was also incorrect, in the Tribunal’s view, because the Tribunal had there also confused past events with the Appellant’s fear of being persecuted in the future.
Counsel for the Secretary of State also relied on the proposition that the stipulated group must be identifiable by discrimination suffered by its members within the society of which it formed a group. He relied upon Rix LJ’s judgment in Chun Lan Liu v Secretary of State [2005] EWCA Civ 249. In the Tribunal’s view this submission – even if it was correct – did not assist the Secretary of State since the group the Tribunal had defined was identifiable by other people in Moldova. However the Tribunal also embarked upon a detailed examination of the authorities to locate the stipulation that such discrimination was an essential feature of a particular social group. It found that the authorities did require such a feature – despite various remarks made in Skenderaj v Secretary of State [2002] EWCA Civ 567 by Auld LJ which suggested that it was doubtful that the Shah & Islam case had indicated that the group had to suffer discrimination.
The Tribunal is careful in its determination to make clear that the discrimination required to identify the group is not necessarily of the kind which could have been invoked on behalf of the women seeking to be recognised as refugees in Shah & Islam. This kind of discrimination was discrimination in “a wide sense” since in Pakistan women are the subject of discriminatory legislation. There was institutionalized discrimination against women in Pakistan. In its judgment the jurisprudence did not indicate the existence of discrimination in this wide sense (as opposed to that contended for by counsel for the Appellant – i.e. “the mere act of targeting an individual for ill treatment is itself discrimination).
The Tribunal then turned to the word “and” linking sub paragraph 6 (1) (d) (i) to 6 (1) (d) (ii) of the Regulations. Drafted as they were it followed that the Regulations required not just that both of the conditions set down in these paragraphs needed to be fulfilled for an applicant to succeed in being recognised as a refugee because of his or her membership of a particular social group. These sub paragraphs of Regulation 6 of the Regulations implemented Article 10 (i) and (ii) of the Qualification Directive, which had been the subject of the following comment by Lord Bingham in his speech in Fornah:
"If, however, this article were interpreted as meaning that a social group should only be recognised as a particular social group for purposes of the Convention if it satisfies the criteria in both of sub-paragraphs (i) and (ii), then in my opinion it propounds a test more stringent than is warranted by international authority."
Also in Fornah Lord Hope suggested that it was not necessary to satisfy both of the conditions in Article 10 (i) and (ii) of the Qualification Directive. If a group could be postulated which satisfied Article 10 (i) then it would not be necessary also to show that that group was perceived within a wider society as being different.
The Tribunal however noted that both of these remarks (by the most senior judges in the country) were asides, and not essential to their Lordships’ judgment in Fornah. It decided that the word “and” meant what it said and that in order to satisfy Regulation 6 (1) (d) both the elements referred to in (i) and (ii) had to be fulfilled.
The Tribunal then turned to the issue of causation, bearing in mind that Regulation 5(3) of the Regulations required a person’s well founded fear of persecution to be for one of the reasons set out in Article 1A of the 1951 Convention relating to the status of refugees. The Tribunal rejected Counsel for the Secretary of State’s submission to the effect that the Appellant could not claim that her fear of persecution was caused by her membership of the group concerned. They said that the submission was not consistent with the content of paragraph 102 of the House of Lords’ opinions in Fornah. There Baroness Hale had said, quoting from UNHCR's PSG Guidelines, as follows:
"102. In cases where there is a risk of being persecuted at the hands of a non-State actor (eg husband, partner or other non-State actor) for reasons which are related to one of the Convention grounds, the causal link is established, whether or not the absence of State protection is Convention related. Alternatively, where the risk of being persecuted at the hands of a non-State actor is unrelated to a Convention ground, but the inability or unwillingness of the State to offer protection is for reasons of a Convention ground, the causal link is also established."
(the Tribunal’s emphasis)
For all these reasons the Tribunal allowed SB’s appeal. Enquiries have revealed that the Secretary of State did seek permission to appeal to the Court of Appeal against the Tribunal's determination, but this was refused by the Tribunal and the Secretary of State has indicated that her application will not be renewed before the Court of Appeal.
