Islam v Secretary of State for the Home Department; R v IAT, ex parte Shah

JurisdictionEngland & Wales
JudgeLORD JUSTICE WAITE,LORD JUSTICE HENRY,LORD JUSTICE STAUGHTON
Judgment Date23 July 1997
Judgment citation (vLex)[1997] EWCA Civ J0723-13
Docket NumberQBCOF 97/0033/D
CourtCourt of Appeal (Civil Division)
Date23 July 1997

[1997] EWCA Civ J0723-13

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

APPLICATION FOR JUDICIAL REVIEW

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Staughton

Lord Justice Waite

Lord Justice Henry

QBCOF 97/0033/D

Regina
and
The Immigration Appeal Tribunal
The Secretary of State for the Home Department
Appellant
and
Ex Parte Syeda Khatoon Shah
Applicant/Respondent
and
Shahana Sadiq Islam
Jahanzab Islam
Orangzeb Islam
Appellants
and
The Secretary Of State for the Home Department
Respondent

MR N BLAKE and MS S HARRISON and MS F WEBSTER (Instructed by Malik Gould Associates, London E1 2DA ) appeared on behalf of the Applicant

MR D PANNICK QC and MR M SHAW (Instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent

1

Wednesday 23rd July, 1997

LORD JUSTICE WAITE
2

These appeals, which have been heard together, both concern Pakistani women who are seeking asylum in this country as refugees. Both are married, and both are exposed to false allegations by their husbands that they have been guilty of adultery. It is accepted that they have a well-founded fear, in the event of their being forced to return to Pakistan, of persecution taking the form of physical and emotional abuse by their husbands which the local Islamic law would not only condone but would aggravate by subjecting them to the criminal processes of Sharia law under which the punishment for sexual immorality is severe and may lead to death by stoning.

3

The sole question raised by the appeals is whether or not the women can claim to be members of a particular social group, for the purposes of Article 1 A of the 1951 Geneva Convention Relating to the Status of Refugees as amended by the 1966 Protocol ("the Convention") which reads:

"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….."

4

The United Kingdom is a signatory of the Convention, to which effect is given within our domestic law through S 8 (1) of the Asylum and Immigration Appeals Act 1993 which provides that a person refused leave to enter the United Kingdom may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention.

5

Because the facts are not in dispute, and the question is one of law, the background to the two appeals can be stated shortly.

6

THE ISLAM APPEAL

7

The first applicant Shahanna Sadiq Islam was born in Pakistan in 1952, where her children the second and third applicants were born in 1977 and 1982 respectively. She married her husband in 1976, only discovering after the ceremony that he had a first wife still living. She had a career of her own as a schoolteacher and occasional broadcaster. She suffered some violence from her husband during the early years of the marriage, which intensified as a result of the following incident. In 1990 a fight broke out in the playground of the school where she was teaching. It was between two groups of boys—one supporting the Pakistan Peoples Party (PPP) and the other the Mohaijir Quami Movement (MQM). She intervened to put a stop to the fighting. Although her peace-keeping had no political motive, it was seen as hostile by the MQM supporters. From then on they harassed her, and made allegations to her husband (who was a MQM supporter) that she had been unfaithful to him. In consequence he became more violent to her. Her injuries were serious enough to require hospital treatment. She left her husband and went to the house of her brother who is paralysed and could not protect her. Night visits were made to his home by unknown men threatening him and carrying Kalashnikov rifles. After a temporary stay in an Army Club, she came on 13 October 1991 to England with the children where she was granted leave to enter as a visitor for six months. She applied for asylum for herself and the children (who are formally co-applicants and appellants in these proceedings although the case has been realistically dealt with throughout on the basis of her own primary claim) on 18 October. The applications were refused on 20 August 1992. After abortive appeal proceedings relevant only to explain the delay which has occurred in her case, her effective appeal to the Adjudicator was dealt with on 7 December 1995. Her fear of persecution was held to be well founded, but the Adjudicator rejected her appeal on the ground that she had established no convention reason for the persecution. On her subsequent appeal to the Immigration Appeal Tribunal the Adjudicator's finding as to her well-founded fear of persecution was not disturbed, her sad plight being thus summed up by the Tribunal:

"She cannot return to her husband. She cannot live anywhere in Pakistan without male protection. She cannot seek assistance from the authorities because in Pakistan society women are not believed or they are treated with contempt by the police. If she returns she will be abused and possibly killed."

8

Despite that finding, the appeal tribunal held that the persecution she feared was not for a convention reason: specifically it was not derived from any political opinion of hers, nor (applying Savchenkov [1996] Imm AR 28) from her membership of any particular social group within the terms of the Convention. From the consequent dismissal of her appeal Mrs Islam now by leave of this court appeals.

9

THE SHAH APPEAL

10

Mrs Syeda Khatoon Shah was born in Pakistan in 1956. Virtually all her family now live in the United Kingdom. She herself lived in this country from 1968 to 1972. When she was 17 she went back to Pakistan to marry her husband who was then aged between 20 and 25. She bore him six children. Throughout the marriage her husband beat her up regularly, and finally in August 1992 she came to this country, leaving the children with members of the extended family in Pakistan. She was granted leave to enter for six months as a visitor. She found that she was pregnant, and her seventh child was born in this country in December 1992. In June 1994 (having been served in the meantime with notice of illegal entry) she applied for asylum. That application was refused by the Secretary of State in June 1994. Her appeal was heard by the Adjudicator on 25 July 1995. Her fear of persecution by her husband was held to be well-founded, aggravated as it now is by fear that he will treat the latest birth as illegitimate and rely on that to brand her as an adulteress and bring or support criminal proceedings against her under Sharia statute law with the consequences already mentioned. The Adjudicator nevertheless held that she came within no accepted definition of membership of a particular social group in the Convention sense, and her appeal was accordingly dismissed. Having been refused leave to appeal by the Immigration Appeal Tribunal she obtained leave to apply for judicial review to challenge that refusal, and on 25 October 1996 Sedley J quashed the refusal of leave and ordered the Immigration Appeal Tribunal to entertain the appeal, holding that although the final outcome would depend on the factual findings of the appeal tribunal, on the facts so far established the applicant was capable in law of bringing herself within the definition of membership of a social group. From that decision the Secretary of State now by leave of this court appeals.

11

Although there are thus technically cross-appeals before the court, there is a sufficient identity between the circumstances of the two women to have enabled Mr Nicholas Blake QC on behalf of the asylum-seekers and Mr David Pannick QC on behalf of the Secretary of State to assist us with a single submission devoted to both appeals.

12

POLITICAL OPINION

13

It will be convenient, although it played only a brief part in the argument, to deal at the outset with one issue that applies to the Islam application alone. It is contended that the Immigration Appeal Tribunal erred in law in rejecting a plea that the applicant had a well-founded fear of persecution on the ground of her real or imputed political opinion. I have described the circumstances in which Mrs Islam incurred the hostility of youthful adherents of the MQM. She intervened to stop a playground battle with another gang of pupils with opposing political allegiance. Although she thus became politically attainted in the eyes of a body of her pupils which saw any obstruction of their wishes (whether it be to fight other pupils or to cheat in their exams) as an affront to their MQM allegiance, it was held both by the Adjudicator and the appeal tribunal that there was no evidence of an imputed political opinion formed on her own part, and that it was not possible in the circumstances to infer a political opinion of her own from the fact that she had been branded as a political enemy by others. Those are holdings which were in my view undoubtedly open to those tribunals on the evidence presented to them and on the facts which they found, and despite all that Mr Blake urged on us to the contrary I cannot see any basis in law for disturbing that conclusion.

14

MEMBERSHIP OF A PARTICULAR SOCIAL GROUP

15

Mr Blake formulated the social group of which he claims membership for his clients, the characteristics which distinguish that group, and the persecution which its members fear, in the following definition:

1. THE SOCIAL GROUP

(1) Pakistani...

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