Fornah v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Auld
Judgment Date09 June 2005
Neutral Citation[2005] EWCA Civ 680
Date09 June 2005
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C4/2004/2047

[2005] EWCA Civ 680

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL APPEALS DIVISION)

ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

The Right Honourable Lord Justice Auld

The Right Honourable Lord Justice Chadwick and

The Right Honourable Lady Justice Arden

Case No: C4/2004/2047

Between
Zainab Esther Fornah
Appellant
and
Secretary of State for the Home Department
Respondent

Miss Kathryn Cronin (instructed by Brighton Housing Trust) for the Appellant

Mr Robin Tam (instructed by The Treasury Solicitor) for the Respondent

Lord Justice Auld

Lord Justice Auld

1

This case is about the practice of female sexual mutilation – circumcision—of young, single girls in Sierra Leone. It is an evil practice internationally condemned and in clear violation of Article 3 of the European Convention of Human Rights ("ECHR"). As a practice, it is not peculiar to Sierra Leone. But it so widespread there and so bound up in the culture and traditions of that country at all levels that it causes difficulties in claims for asylum by young Sierra Leonean girls who fear it. As a clear violation of their Article 3 right not to be subjected to inhuman or degrading treatment, it would undoubtedly amount to persecution in the general sense of that word. But, for young girls in Sierra Leone, seeking asylum in another country because they fear it, is it persecution for a Refugee Convention reason, namely because they belong to a "particular social group"?

2

In Sierra Leone, as the objective evidence before the Adjudicator and the Immigration Appeal Tribunal in this case indicates: it is practised widely in all levels of society, although with varying frequency; 80–90% of all women and girls have undergone the practice; women, not men, conduct it as part of an initiation rite to adulthood and hence entrée to their powerful female secret societies; it is undertaken on girls as young as 5 and now, also on adult women and pregnant girls and mothers; uncircumcised girls are perceived as less eligible for marriage and many future husbands sponsor such initiation of their future brides; no law prohibits it; and efforts by NGOs to eradicate it are actively resisted by the women's secret societies.

3

In March 2003, the applicant for permission to appeal, Zainab Esther Fornah, then a 15 year old girl from Sierra Leone, claimed asylum on her arrival in this country, on account of her fear that, as a member of a particular social group, namely of "young Sierra Leonean women", she would be subjected against her will to female genital mutilation if she returned to her home country.

The Secretary of State's decision

4

On 24 th April 2003 the Secretary of State refused her claim, though he has since granted her leave to enter on humanitarian grounds under Article 3 ECHR, such leave entitling her to remain for 3 years. This appeal is concerned solely with the refusal of her claim for asylum, which, if successful, would give her leave to remain indefinitely. The Secretary of State gave two alternative reasons for refusing it: first, that the practice did not come within the definition of persecution under the Refugee Convention because girls at risk of circumcision in Sierra Leone did not form a "particular social group" within Article 1A(2) of the Convention; and secondly, because the authorities in Sierra Leone had a will to challenge the practice should she turn to them for protection.

The Adjudicator's determination

5

On 6 th October 2003, an Adjudicator allowed Miss Fornah's appeal against the Secretary of State's refusal to grant her asylum. He found that the practice amounted to persecution and that she had a well-founded fear of it. And he found that the feared persecution was for a Convention reason, namely her membership of a "particular social group", which he described as one of "young, single Sierra Leonean women, who are clearly at considerable risk of enforced …[female genital mutilation]" and, in respect of which the State provided them with no protection. He did not elaborate on that finding, either as to the facts in Sierra Leone or as to the law, save, as to the latter, to state that his "findings were based on the leading authority of R v IAT, ex parte Shah and Islam [1999] AC 629. He seemingly had in mind the broader base of the majority's decision in that case that Pakistani women in general were discriminated against in Pakistan in matters of fundamental human rights, in respect of which the State offered them no protection and that they were, therefore, capable of being a "particular social group" within the Refugee Convention.

The Immigration Appeal Tribunal's Determination

6

The Secretary of State appealed to the Immigration Appeal Tribunal maintaining that Miss Fornah's claim did not engage the Refugee Convention because "young, single Sierra Leonean women" were not a "particular social group" within Article 1A(2) of the Convention. On 5 th August 2004 the Tribunal allowed the appeal and quashed the Adjudicator's determination. It held that the group of which she was a member was not simply that of "young Sierra Leonean women", but of "young Sierra Leonean women who [had] not undergone female genital mutilation", and that, having regard to the reasoning of the House of Lords in Shah & Islam, such a group could not qualify as a "particular social group" under the Convention because it did not exist independently of the feared persecution.

7

In the course of the Tribunal's determination, it observed, correctly, that what constitutes a particular social group in a particular country is a question of fact for consideration on a case-by-case basis. As to Sierra Leone, it made, in paragraph 22 of its determination, the following brief reference to the objective evidence in the case:

"Not all young Sierra Leonean women fear female genital mutilation. Some 80% of them have already undergone circumcision and it is not inconceivable that there may be some who, perhaps out of ignorance, do not have any fear of undergoing initiation because they are looking forward to becoming women rather than being considered as children."

The Tribunal went on to find that Miss Fornah was not at risk of persecution by reason of her membership of a "particular social group" and, therefore, that her claim did not engage the Convention. In so finding, the Tribunal expressed, in paragraph 23, its reliance on the well established principle that their Lordships, in Shah & Islam, had acknowledged, albeit with some qualification, and with which they had to grapple on the facts of that case, that persecution cannot itself define a "particular social group".

"23. This Respondent does not fear persecution simply because she is a young Sierra Leonean woman. What she fears is persecution, because she is a young Sierra Leonean woman who has not undergone female genital mutilation. The fact that she is young is not an immutable characteristic; … She will remain a woman, but it is not because she is a woman that she fears persecution and it is not said on behalf of the Respondent that all women in Sierra Leone suffer persecution. A definition of the social group which includes within it a reference to the feared persecution, ignores the point in Shah & Islam that the social group has to exist independently of the persecution."

The issue for determination by this Court and some basic propositions of law

8

Miss Fornah now seeks permission to appeal against the Tribunal's decision. As we have said, although there was no human rights appeal before the Adjudicator, the Secretary of State has accepted that it would be a breach of Article 3 to return her to Sierra Leone for the reasons on which she bases her asylum claim. However, he continues to resist that claim. In the result, the only issue before the Court is whether Miss Fornah qualifies for refugee status in addition to the humanitarian protection to which she is, in any event, entitled under the United Kingdom's obligations under the ECHR.

9

The proposed issue for appeal is, therefore, whether the persecution that Miss Fornah fears, if she were returned to Sierra Leone, would result from her membership of a "particular social group" that exists independently of the feared persecution, and, if so, what that "particular social group" is.

10

Article 1A(2) of the Refugee Convention provides:

"For the purposes of the present Convention, the term 'refugee' shall apply to any person who … (2) … 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 …"

11

The starting point is the difference between the rights conferred on a fugitive from persecution conferred by Article 3 ECHR and the Refugee Convention, as recently underlined by Lord Hope of Craighead in R v Special Adjudicator, ex p. Hoxha [2005] UKHL 19, in paras. 5–26, and by Lord Brown of Eaton- under-Heywood, at para 86. Much of Miss Kathryn Cronin's arguments, on behalf of Miss Fornah, went to the horrific nature of the practice and the international condemnation to which it is subject. She cited the accounts of it given by Amnesty International in a paper of 17 th July 2003 and in other authoritative international literature. And she drew the Court's attention to the Female Genital Mutilation Act 2003 rendering the practice an offence with a maximum penalty on indictment of 14 years imprisonment. Such arguments went to Article 3, rather than the more confined question before the court as to the reach...

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