Fornah v Secretary of State for the Home Department

The question in each of these appeals, arising on very different facts, is whether the appellant falls within the familiar definition of "refugee" in article 1A(2) of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol. It is common ground in each case that the appellant has a well-founded fear of being persecuted if she were to be returned to her home country, Iran (in the first case) and Sierra Leone (in the second). In each case the appellant is outside the country of her nationality and is unable or, owing to her fear of persecution unwilling, to avail herself of the protection of that country. The only issue in each case is whether the appellant's well-founded fear is of being persecuted "for reasons of … membership of a particular social group". The practical importance of this issue to the appellants is somewhat mitigated by the Secretary of State's acceptance that article 3 of the European Convention on Human Rights precludes the return of the appellants to their home countries, because of the treatment they would be liable to suffer if returned. But the Secretary of State contends, and the Court of Appeal has in each case held, that such treatment, although persecutory, would not be "for reasons of … membership of a particular social group" and therefore the appellants fall outside the definition of refugee. The correct understanding of this expression is a question of theoretical but also practical importance since the appellants enjoy stronger protection if recognised as refugees.

The first appeal: the facts

The first appellant is an Iranian citizen. She is married to B with whom, and their child, she lived in Iran. In about April 2001 B disappeared. It appears he was arrested, and he has since been held in prison without, so far as the first appellant is aware, charge or trial. On her one visit to him in prison he appeared to her to show signs of ill-treatment. The grounds for his detention are not known. About two or three weeks after B's disappearance Revolutionary Guards, agents of the Islamic Iranian state, searched the first appellant's house and took away books and papers. About a week later the Revolutionary Guards again visited the first appellant's house: they searched the house further, and insulted and raped her. Following this incident the first appellant made herself scarce. She was not again approached by Revolutionary Guards and nor were members of her family. But the school year began on 23 September 2001 and on the following day the headmaster of the school attended by her son, then aged 7, told her that the Revolutionary Guard had been to the school to make enquiries about the boy. The Adjudicator found that the Revolutionary Guards had approached the school in an open manner knowing that this would come to the attention of the first appellant and that it would cause her great fear. She was indeed very frightened, and fled from Iran with her son. The Adjudicator accepted that in the then current situation in Iran the families of those of adverse interest to the authorities could well be targeted. The first appellant travelled via Turkey to the United Kingdom where, on 5 October 2001, the day after her arrival, she claimed asylum.

The first appellant's asylum claim was refused by the Secretary of State on 30 November 2001. She appealed to an Adjudicator (Mr D J B Trotter) who upheld her claim, holding that she had a well-founded fear of persecution for reasons of her membership of a particular social group, namely her husband's family. He also upheld her human rights claim under article 3, a decision which the Secretary of State has not challenged. But he appealed successfully against the asylum decision to the Immigration Appeal Tribunal which held, in a Determination dated 29 September 2003, that "the family is the quintessential social group" but that the Court of Appeal decision in Quijano v Secretary of State for the Home Department[1997] Imm AR 227, showed (para 12 of the Determination) that

"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."

Here, B was not shown to be detained for a Convention reason, and so the first appellant could not succeed. In a judgment considered in more detail below, the Court of Appeal (Tuckey, Clarke and Laws LJJ: [2004] EWCA Civ 986) upheld this conclusion, which the first appellant challenges and the Secretary of State supports.

The second appeal: the facts

The second appellant was born in Sierra Leone on 23 May 1987. She arrived in the United Kingdom on 15 March 2003, aged 15, and claimed asylum. The basis of her claim was that, if returned to Sierra Leone, she would be at risk of subjection to female genital mutilation (FGM).

In 1998 the second appellant and her mother were living in her father's family village to escape the civil war, and she overheard discussions of her undergoing FGM as part of her initiation into womanhood. In order to avoid this she ran away, but she was captured by rebels and repeatedly raped by a rebel leader, by whom she became pregnant. An uncle had arranged her departure from Sierra Leone to the United Kingdom. She resisted return on the ground that, if returned, she would have nowhere to live but her father's village, where she feared she would be subjected to FGM.

FGM is performed on the overwhelming majority of girls in Sierra Leone apart from Krios, a small minority of the population. The operation, often very crudely performed, causes excruciating pain. It can give rise to serious long-term ill-effects, physical and mental, and it is sometimes fatal. The operation is performed by older women, members of secret societies, and is a rite of passage from childhood to full womanhood, symbolised by admission of the initiate to these secret societies. Even the lower classes of Sierra Leonean society regard uninitiated indigenous women as an abomination fit only for the worst sort of sexual exploitation. Because of its totemic significance the practice is welcomed by some women and accepted by almost all. In society as a whole the practice is generally accepted where it is not approved, and the authorities do little to curb or eliminate it.

The practice of FGM powerfully reinforces and expresses the inferior status of women as compared with men in Sierra Leonean society. The evidence is that despite constitutional guarantees against discrimination, the rights of married women, particularly those married under customary and Islamic laws, are limited. Their position is comparable with that of a minor. Under customary law, a wife is obliged always to obey her husband, with whom she can refuse sexual intercourse only in limited circumstances. She is subject to chastisement at his hands.

FGM has been condemned as cruel, discriminatory and degrading by a long series of international instruments, declarations, resolutions, pronouncements and recommendations. Nothing turns on the detail of these. Their tenor may be illustrated by a recent Report of the UN Special Rapporteur on violence against women (E/CN.4/2002/83, 31 January 2002, introduction, para 6):

"Nevertheless, many of the practices enumerated in the next section are unconscionable and challenge the very concept of universal human rights. Many of them involve 'severe pain and suffering' and may be considered 'torture like' in their manifestation. Others such as property and marital rights are inherently unequal and blatantly challenge the international imperatives towards equality. The right to be free from torture is considered by many scholars to be jus cogens, a norm of international law that cannot be derogated from by nation States. So fundamental is the right to be free from torture that, along with the right to be free from genocide, it is seen as a norm that binds all nation States, whether or not they have signed any international convention or document. Therefore those cultural practices that involve 'severe pain and suffering' for the woman or the girl child, those that do not respect the physical integrity of the female body, must receive maximum international scrutiny and agitation. It is imperative that practices such as female genital mutilation, honour killings, Sati or any other form of cultural practice that brutalizes the female body receive international attention, and international leverage should be used to ensure that these practices are curtailed and eliminated as quickly as possible."

In some countries, including the United Kingdom, effect is given to this international consensus by the prohibition of FGM on pain of severe criminal sanctions.

By letter dated 24 April 2003 the Secretary of State granted the second appellant limited leave to enter but rejected her claim to asylum because (so far as now relevant) he did not consider that girls who...