Islam v Secretary of state for the home department
| Jurisdiction | England & Wales |
| Judgment Date | 25 July 1997 |
| Date | 25 July 1997 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Staughton, Waite, Henry LJJ
N Blake QC and Miss F Webber for Shah
N Blake QC and Miss S Harrison for Islam
D Pannick QC and M Shaw for the Secretary of State
Cases referred to in the judgments:
Sanchez-Trujillo v Immigration and Naturalisation ServiceECAS [1986] 801 F 2d 1571.
Sivakumaran and ors v Secretary of State for the Home DepartmentELR [1988] AC 958: [1988] Imm AR 147.
Morato v Minister for Immigration, Local Government and Ethnic AffairsUNK [1992] 39 FCR 401.
Attorney General, Canada v Patrick Francis WardUNK [1993] 2 SCR 689.
Secretary of State for the Home Department v Sergei Savchenkov [1996] Imm AR 28.
T v Secretary of State for the Home DepartmentELR [1996] AC 742: [1996] Imm AR 443.
Chan v CanadaUNK [1996] 28 DLR 213.
R v Secretary of State for the Home Department ex parte Syeda Shah [1997] Imm AR 145.
Fabian Quijano v Secretary of State for the Home Department [1997] Imm AR 227.
A v Minister for Immigration and Ethnic Affairs (MIEA) (unreported, HCA, 24 February 1997).
Asylum — Pakistani women exposed to false allegations of adultery by their husbands — no male relatives whose protection they could seek — fear of persecution — whether members of a particular social group within the Convention — the Savchenkov principles reviewed. United Nations Convention relating to the status of refugees (1951), Protocol (1967), art. 1A(2)
The respondent Shah and the appellant Islam (who had two dependent children) were citizens of Pakistan. They were both married to violent husbands. Both asserted that if they returned to Pakistan they would be falsely accused of adultery: they would be outcasts from society, they had no male relatives to protect them and they would be at risk from provisions of the shariah law. They claimed asylum. They were refused: both lost appeals before special adjudicators. Shah was refused leave to appeal to the Tribunal: she sought judicial review which was granted by Sedley J who concluded that prima facie she fell within a social group within the Convention. The Secretary of State appealed. In the case of Islam, the Tribunal dismissed her appeal following Savchenkov, holding that she did not come within a particular social group: with leave of the court she appealed.
The court reviewed the leading cases on ‘particular social group’ and accepted an amended version of the third principle set out in Savchenkov.
Held:
1. A ‘particular social group’ could only exist where it was identified absent of the fear of persecution.
2. Membership of ‘a particular social group’ was not necessarily to be interpreted ejusdem generis the other Convention reasons as reflecting civil or political status. Per Staughton LJ, to be such a group it had to have some degree of cohesiveness or interdependence. Per Henry LJ, that was not necessary where a particular social group was recognised as such by the public. Per Waite LJ, it sufficed if the group shared something which united them and set them apart from the rest of society, which character was recognised by society.
3. In the instance cases no particular social group existed independently of the fear of persecution.
Waite LJ: 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 shariah law under which the punishment for sexual immorality is severe and may lead to death by stoning.
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 1A of the 1951 Geneva Convention relating to the status of refugees as amended by the 1967 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…’
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 grounds that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention.
Because the facts are not in dispute, and the question is one of law, the background to the two appeals can be stated shortly.
The Islam appeal
The first appellant Shahana Sadiq Islam was born in Pakistan in 1952, where her children, the second and third appellants 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.’
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.
The Shah appeal
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 shariah 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...
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