Both applicants, Islam and Shah, citizens of Pakistan, but otherwise unconnected with each other, had suffered violence in Pakistan after being falsely accused them of adultery. Both applicants arrived in the UK and were granted leave to enter as visitors for six months. Both applicants subsequently applied for asylum on the ground that having been abandoned by their husbands, lacking any other male protection and condemned by the local community for sexual misconduct, they feared that if they were returned to Pakistan they would suffer persecution in the form of physical and emotional abuse. They would be ostracised and unprotected by the authorities. Indeed they might even be liable to death by stoning in accordance with Pakistani Sharia law. Asylum was rejected on the basis that they did not form part of a social group.
Held: Discrimination against women and a refusal to protect them against domestic violence, could make them a social grouping, and therefore two women facing accusations of adultery, which might lead to their being stoned to death if returned to their home country, were properly found to be refugees. Each claim to refugee status case must always depend on the evidence.
Lord Hoffmann said: ‘The concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention. It is concerned not with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination. And in the context of a human rights instrument, discrimination means making distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being to equal treatment and respect.’ and ‘ Discrimination against women in matters of fundamental human rights on the ground that they are women is plainly in pari materiae with discrimination on grounds of race. It offends against their rights as human beings to equal treatment and respect.’ In general, there can only be a ‘particular social group’ if that group exists independently of the persecution alleged.
Lord Steyn considered the decision in Acosta: ‘I am satisfied that for the reasons given in Acosta’s case the restrictive interpretation of ‘particular social group’ by reference to an element of cohesiveness is not justified. In 1951 the draftsman of article 1A(2) of the Convention explicitly listed the most apparent forms of discrimination then known, namely the large groups covered by race, religion, and political opinion. It would have been remarkable if the draftsman had overlooked other forms of discrimination. After all, in 1948 the Universal Declaration had condemned discrimination on the grounds of colour and sex. Accordingly, the draftsman of the Convention provided that membership of a particular social group would be a further category. It is not ‘an all-encompassing residual category:’ Hathaway, The Law of Refugee Status, p 159. Loyalty to the text requires that one should take into account that there is a limitation involved in the words ‘particular social group.’ What is not justified is to introduce into that formulation an additional restriction of cohesiveness. To do so would be contrary to the ejusdem generis approach so cogently stated in Acosta’s case.’
Judges:
Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton, Lord Millett
Citations:
Gazette 28-Apr-1999, Times 26-Mar-1999, [1999] UKHL 20, [1999] 2 AC 629, [1999] 2 All ER 545, [1999] Imm AR 283, 6 BHRC 356, [1999] 2 WLR 1015, [1999] INLR 144
Links:
Statutes:
Geneva Convention and Protocol relating to the Status of Refugees 1951 (1951) (Cmd 9171) 1A(2)
Jurisdiction:
England and Wales
Citing:
Appeal from – Regina v Immigration Appeal Tribunal Secretary of State for Home Department ex parte Shah and Others CA 23-Jul-1997
Even the justified fears of being stoned to death for adultery did not create a particular separate group from which protection from persecution could be claimed in support of an application for asylum. A ‘social group’ for refugee applicants, had . .
Cited – A v Minister for Immigration and Ethnic Affairs and Another 1997
(Australia) A claim to refugee status was made by a husband and wife who had come from China to Australia. They said that they feared sterilization under the ‘one child policy’ of China if they were returned.
Held: There is a general principle . .
Cited – Savchenko v Secretary of State for the Home Department CA 1996
The alleged group of Russian security guards at a hotel who feared victimisation by the mafia, did not exist independently of the persecution and were not protected as a group under the Convention: ‘The Secretary of State submits . . that the . .
Cited – Empress Car Company (Abertillery) Ltd v National Rivers Authority HL 22-Jan-1998
A diesel tank was in a yard which drained into a river. It was surrounded by a bund to contain spillage, but that protection was over ridden by an extension pipe from the tank to a drum outside the bund. Someone opened a tap on that pipe so that . .
Cited – In re Acosta 1985
US Board of Immigration Appeals –
Held: ‘We find the well-established doctrine of ejusdem generis, meaning literally, ‘of the same kind,’ to be most helpful in construing the phrase ‘membership in a particular social group.’ That doctrine . .
Cited by:
Applied – Choudhrey v Immigration Appeal Tribunal Admn 1-Aug-2001
The applicant sought to review refusal of his request to appeal in turn the refusal of his request for asylum as an Ahmadi from Pakistan. He had twice been assaulted by a non-government racist group. There was legislation having the effect of . .
Applied – Regina (Ivanauskiene) v A Special Adjudicator CA 31-Jul-2001
The applicant had sought asylum. Her case had been refused, according to the law as stated at that time, but the decision then binding on the adjudicator (Shah), had been reversed in the House of Lords. It had now been held that the women of a . .
Cited – Regina v Secretary of State for the Home Department, ex parte Sivakumar HL 20-Mar-2003
The appellant sought asylum. He had fled Sri Lanka. He was a Tamil and feared torture if he returned. His application had been rejected because the consequences flowed from his suspected involvement in terrorism, and that was not a Convention . .
Cited – Regina (Husan) v Secretary of State for the Home Department QBD 24-Feb-2005
The applicant sought asylum from Bangladesh. His application was refused, and the respondent issued a certificate to say that his claim was hopeless. He sought judicial review.
Held: There was so much evidence that Bangladesh suffered . .
Cited – Hoxha and Another v Secretary of State for the Home Department HL 10-Mar-2005
The claimants sought to maintain their claims for asylum. They had fled persecution, but before their claims for asylum were determined conditions in their home country changed so that they could no longer be said to have a well founded fear of . .
Applied – Chun Lan Liu v Secretary of State for the Home Department CA 17-Mar-2005
The applicant for refugee status said she had a well founded fear of persecution if returned to China, saying that as a pregnant mother of a third child, the foetus had been removed at eight months against her will. She had refused sterilisation, . .
Cited – Fornah v Secretary of State for the Home Department CA 9-Jun-2005
The applicant sought refugee status, saying that if returned home to Sierra Leone, she would as a young woman be liable to be circumcised against her will.
Held: Female sexual mutilation ‘is an evil practice internationally condemned and in . .
Cited – 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 . .
Cited – HJ (Iran) v Secretary of State for The Home Department; HT (Cameroon) v Same SC 7-Jul-2010
The claimants sought to prevent their removal and return to their countries of origin saying that as practising homosexuals they would face discrimination and persecution. They appealed against a judgment saying that they could avoid persecution by . .
Cited – RT (Zimbabwe) and Others v Secretary of State for The Home Department SC 25-Jul-2012
The claimants said it would be wrong to return them to Zimbabwe where they would be able to evade persecution only by pretending to a loyalty to, and enthusiasm for the current regime.
Held: The Secretary of State’s appeals failed. The HJ . .
Cited – Evans, Regina v CACD 23-Jan-2013
The defendant appealed against his conviction in a case concerning the use of a false passport. The central issue was whether the appellant had a defence based upon the proposition that he was a refugee entitled to asylum in this country. He had . .
Lists of cited by and citing cases may be incomplete.
Immigration, Discrimination, Human Rights
Updated: 19 May 2022; Ref: scu.88505
