RG (Ethiopia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Wilson,Lord Justice Pill |
| Judgment Date | 04 April 2006 |
| Neutral Citation | [2006] EWCA Civ 339 |
| Docket Number | Case No: C4/2005/0624 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 April 2006 |
[2006] EWCA Civ 339
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Keene and
Lord Justice Wilson
Case No: C4/2005/0624
Melanie Plimmer (instructed by Messrs Howells, Sheffield S8 8NW) for the Appellant
Susan Chan (instructed by Treasury Solicitor) for the Respondent
INTRODUCTION
This appeal raises once again the issue, amongst others, of what constitutes a "particular social group" within the meaning of Article 1A(2) of the 1951 Convention Relating to the Status of Refugees ("the Refugee Convention") . That paragraph defines a refugee as a person who
"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; …".
This is an appeal from a decision of the Immigration Appeal Tribunal (IAT) , which by a determination notified on 28 January 2005 allowed an appeal by the Secretary of State from an adjudicator. The adjudicator's decision in favour of the present appellant, Ms. RG, was promulgated on 2 January 2004, and consequently the right of appeal to the IAT lay only in respect of an error of law.
THE FACTUAL CONTEXT
The appellant is a female citizen of Ethiopia, born on 15 September 1986. She came to this country on 21 April 2002 and claimed asylum on arrival. She was at that time 15 years of age. She was granted limited leave to remain as a minor, a leave which would expire when she reached the age of 18, an event which has now happened. Nonetheless, the various appeals have as a result dealt with this matter solely in relation to the Refugee Convention and her status thereunder and not with her rights under the European Convention on Human Rights.
The appellant is of Oromo-Gille ethnicity, and part of her original asylum claim was based on that ethnicity. It was, however, rejected by the adjudicator and can now be put on one side. The other basis for her claim concerned the treatment of unmarried females in Ethiopia.
The primary facts about the appellant are not in dispute. The adjudicator accepted the "core elements" of the appellant's account of events. These were that her older sister had been married at the age of 13 to a much older man, known as Amana. He ill-treated her and used her in black magic rituals. She became ill and eventually died while trying to escape from him.
He then sought to insist upon the appellant marrying him, according to local custom. She was then aged 14. Her mother refused to let this happen, but in December 2000 he abducted her from school, took her to his house, beat her and raped her. She became very ill because of this mistreatment. She too was used in his black magic rituals and was repeatedly raped by him. Eventually she escaped, and she and her mother fled to another town. He pursued her there, and so they fled to another town.
According to the adjudicator's account of her evidence,
"They were rejected in that town because people there were afraid of Amana's black magic. They went to Addis Ababa. The appellant's mother was advised to flee the country. They were introduced to an American named Tilahun Abay who said that the appellant could go and live with him in the USA and be a nanny to his children. The appellant's mother sold her property and gave Talihun (sic) some money to take the appellant away from Ethiopia. Tilahun took the appellant to Zimbabwe and there he raped her. Tilahun later brought the appellant to the UK and abandoned her at the airport."
The adjudicator summarised in paragraphs 18 and 19 the background evidence about the treatment of women in Ethiopia as follows (the references are to the C.I.P.U. report from the Home Office, October 2003) :
"The 1994 Constitution provides for the equality of women but this provision is not always applied in practice. The provisions of the Constitution are often in conflict with the 1960 Civil Code and the 1957 Penal Code. The 1960 Civil Code is based on a monarchical constitution that treated women as if they were children and disabled. Culturally based abuses including wife beating and marital rape are pervasive social problems. Although women have recourse to the police and the courts, societal pressures and limited court facilities reduce the availability of these remedies, particularly in rural areas. Discrimination is most acute in rural areas where 85% of the population live (6.115) . The tradition (sic) practice of abduction as a form of marriage is illegal under the penal code but is still believed to be practised widely in many rural areas particularly the Oromiya region and SNNPRS. Women are often abused physically during abduction and forced sexual relationships accompany many marriages by abduction (6.116)
The World Organisation against Torture (OMCT) report (1997) "Rights of the Child in Ethiopia" stated that numerous laws in Ethiopia still discriminate against women and girls. Penal law legitimises the marriage of abducted and raped girls to their violators, guaranteeing the exemption of their punishment. "
The date of the last-mentioned report seems in fact to be 2001, not 1997
The adjudicator's conclusion was effectively set out in paragraph 26 of her determination:
"On the facts as found in this appeal, I accept that the appellant has a well founded fear of persecution on ground that she is a member of a particular social group. By reference to the objective evidence regarding the serious discrimination faced by women and young girls in Ethiopia by reason of their gender, which is attributed both to cultural traditions and the Civil and Penal Code in Ethiopia as described above. The objective evidence also supports a finding that there is insufficient state protection for women and girls from serious abuse in Ethiopia by reason of the cultural and legislative discrimination ( Shah and Islam) ."
That last reference is no doubt a reference to the House of Lords' decision in Islam v. Secretary of State for the Home Department and R v. IAT, ex parte Shah. [1999] 2 A.C. 629, the leading authority on what is meant by the phrase "a particular social group" in the Refugee Convention. Consequently the adjudicator allowed the asylum appeal.
THE APPEAL TO THE IAT
The Secretary of State sought permission to appeal to the IAT on four grounds. Since a point is raised in this appeal about whether those grounds spelt out a point of law, I summarise them briefly. First, it was said that the adjudicator failed to indicate which immutable characteristics were shared by members of this particular social group, and her approach to and finding on this issue were flawed. Secondly, it was argued that her approach to the objective evidence had been selective, though it was conceded that she had been entitled to draw the conclusion she did about insufficient state protection. Thirdly, it was said that the adjudicator had not adequately considered the credibility of the appellant. Finally, the fourth ground of appeal was that the adjudicator had failed to consider the internal flight alternative, when there was no evidence that the man Amana had followed the appellant to Addis Ababa or that she would not be safe there.
That summary of the grounds of appeal by itself is enough to indicate, in my judgment, that ground 3 raised no point of law. The concession in ground 2 to which I have referred might seem to rob that ground of any prospect of an error of law being established on that basis, but Ms. Chan who appears on behalf of the Secretary of State argues that it challenged the adequacy of the adjudicator's reasoning. But ground 3 alleges no error of law at all. It does not assert that the adjudicator's finding on credibility was perverse or that she had failed to take account of relevant matters or taken account of irrelevant ones. Sensibly Ms. Chan does not seek to argue that that ground raised any point of law.
When the appeal came before the IAT, that tribunal dealt with it very briefly. It referred to a passage from Lord Steyn's judgment in Shah and Islam where he said
"the distinctive feature of this case is that in Pakistan women are unprotected by the state: discrimination against women in Pakistan is party tolerated by the state and partly sanctioned by the state."
Then it noted that the adjudicator had referred to objective evidence that women do have recourse to the police and the courts in Ethiopia, and it commented:
"This is a different situation to that which the House of Lords found in Pakistan".
It then concluded at paragraph 10:
"We find that the Adjudicator has not carefully considered the reasoning in Shah and Islam and her failure to do so is a material error of law. We find that 'women and young girls in Ethiopia' are not a particular social group and a finding by the Adjudicator that there is a Convention Reason under the Refugee Convention is flawed and cannot be sustained."
Despite a request from counsel for the present appellant to consider the other grounds of appeal, the IAT declined to do so.
DID THE IAT HAVE JURISDICTION?
On behalf of Ms. RG, Ms. Plimmer raises first the issue to which I have referred already, namely whether the Secretary of State's grounds of appeal to the IAT disclosed an error of law. If they did not, then she rightly submits that the IAT had no...
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