The appellant asylum seeker claimed to have been persecuted as a member of his stepfather’s family, and thus of a particular social group, because members of a drug cartel had first persecuted the stepfather after he refused to co-operate with them and then also had made attacks on the appellant and other members of the family. The court asked what would constitute membership of a social group when looking at a well founded fear of prosecution as a member of such a group.
Held: The claimant’s appeal failed. The persecution arose not because the appellant was a member of the stepfather’s family but because of his stepfather’s refusal to co-operate. The cartel’s decision to take punitive action against an individual related by marriage was fortuitous and incidental: ‘where the primary member of a family is not persecuted for a Convention reason, then the secondary members cannot be said to be persecuted for being members of the primary person’s family.’
Thorpe LJ: ‘Second I conclude that the persecution arises not because the appellant is a member of the Martinez family but because of his stepfather’s no doubt laudable refusal to do business with the cartel. The persecution has that plain origin and the cartel’s subsequent decision to take punitive action against an individual related by marriage is fortuitous and incidental as would have been a decision to take punitive action against the stepfather’s partners and their employees had the business been of that dimension.’
Morritt LJ: ‘But the fear of each member of the group is not derived from or a consequence of their relationship with each other or their membership of the group but because of their relationship, actual or as perceived by the drugs cartel, with the stepfather of the appellant. The stepfather was not persecuted for any Convention reason so that their individual relationship with him cannot cause a fear [for] a Convention reason either. In short the assumed fear of the appellant is not caused by his membership of a particular social group.’
Roch LJ: ‘The anomaly that would arise in the present case, were the arguments of the appellant’s counsel to be correct, that the appellant’s stepfather would not be entitled to claim political asylum under the Convention, whereas all other members of the family would be entitled to political asylum, is merely an indicator that this family is not ‘a social group’ liable to persecution because it is ‘a particular social group’. The other members of the family are being persecuted because they are related to the stepfather who has offended the drug cartel, who have decided to retaliate against the stepfather by persecuting him and members of his family. Who will constitute part of the family or social group is entirely the decision of the drug cartel. It may include those living in the stepfather’s house who are not related to him by blood or marriage. These considerations underline, in my opinion, the fact that in the circumstances of this case the Martinez family is not ‘a particular social group’.’
Judges:
Thorpe LJ, Morritt LJ, Roch LJ
Citations:
[1996] EWCA Civ 1244, 1997] Imm AR 227
Links:
Jurisdiction:
England and Wales
Citing:
Rejected – Regina v Immigration Appeal Tribunal ex parte De Melo and ex parte De Araujo Admn 19-Jul-1996
The court considered a fear of persecution as founding a claim for asylum where a family member attracts the adverse attention of the authorities, whether for non-Convention reasons or reasons unknown, and persecutory treatment is then directed to . .
Cited by:
Criticised – Secretary of State for the Home Department v K, Fornah v Secretary of State for the Home Department HL 18-Oct-2006
The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Immigration
Updated: 04 November 2022; Ref: scu.141112