SB (PSG - Protection Regulations – Reg 6) Moldova CG  UKAIT 00002
Date of hearing: 25 & 26 April 2007
Date Determination notified: 26 November 2007
|Secretary of State for the Home Department||RESPONDENT|
1.If individuals share a common background which is an immutable characteristic they cannot change and which defines the group by giving it a distinct identity in the society in question which has nothing to do with the actions of the future persecutors, then the group exists independently of the feared future act(s) of persecution. It is not necessary to show general discrimination as an identifying characteristic of the group.
2."Former victims of trafficking" and "former victims of trafficking for sexual exploitation" are capable of being members of a particular social group within regulation 6(1)(d) because of their shared common background or past experience of having been trafficked.
3.The word "and" in regulation 6(1)(d) of the Protection Regulations should be given its natural meaning.
4.In the context of Moldovan society, a woman who has been trafficked for the purposes of sexual exploitation is a member of a particular social group within regulation 6(1)(d), the particular social group in question being "former victims of trafficking for sexual exploitation". Whether a particular individual is at risk of persecution for membership of that group needs to be decided on the facts of the case.
Basis of claim
The hearing before us
(a) whether the Appellant is a member of a particular social group;
(b) whether the risk of any future persecution would be for a Geneva Convention reason or ground – i.e. whether the Appellant is at real risk of persecution by reason of her membership of the particular social group. This is the causation question.
Application to rely on an unreported determination
(i) women in Moldova;
(ii) former victims of trafficking in Moldova; and
(iii) victims of trafficking for the purposes of sexual exploitation.
(i) the group is defined by no more than the persecutory element of trafficking;
(ii) the evidence does not establish the discriminatory treatment of victims of trafficking in relation to the lack of protection by the state authorities in Moldova;
Alternatively, Mr. Patel submitted that causation is not established. The Appellant's fear of persecution arises because she is likely to be the subject of reprisals from Z (or Z's powerful family and associates) against whom the Appellant gave evidence to secure Z's conviction in the United Kingdom. In other words, it is not the fact of having been trafficked, or that the Appellant is a woman, which is the reason for the fear of persecution. The lack of protection against the fear is not on account of the Appellant's gender, or the fact that she has been trafficked. The state is unable to protect the Appellant, because of the powerful reach of Z or Z's family and associates. The necessary element of discrimination, either because the Appellant is a woman or because she is a former victim of trafficking, is missing. Accordingly, it has not been shown that the Appellant's membership of her particular social group is the effective reason for the lack of state protection.
Consideration of the issues
"owing to a 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, unwilling to avail himself of the protection of that country."
(A) "Particular social group"
"(d) a group shall be considered to form a particular social group where, for example:
(i) members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and
(ii) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;"
"making distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being to equal treatment and respect…."
and also as explained by Lord Hope of Craighead in Fornah and K (paragraph 54) in the following terms:
"Discrimination involves making unfair or unjust distinctions to the disadvantage of one group or class of people as compared with others."
From the speech of Lord Steyn in Shah and Islam.
(i) "………. The distinctive feature of this case is that in Pakistan women are unprotected by the state: discrimination against women in Pakistan is partly tolerated by the state and partly sanctioned by the state."
(ii) "Women are also disadvantaged generally in the criminal justice system because of their position in society……"
(iii) "For what may be a small minority, who are convicted of sexual immorality, there is the spectre of 100 lashes in public or stoning to death in public. This brief description of the discrimination against women, which is tolerated and sanctioned by the state in Pakistan, is the defining factual framework of this case."
From the speech of Lord Hoffmann in Shah and Islam:
(iv) "In my opinion, the concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention. It is concerned not with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination. And in the context of a human rights instrument, discrimination means making distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being to equal treatment and respect. The obvious examples, based on the experience of the persecutions in Europe which would have been in the minds of the delegates in 1951, were race, religion, nationality and political opinion. But the inclusion of "particular social group" recognised that there might be different criteria for discrimination, in pari materiae with discrimination on the other grounds, which would be equally offensive to principles of human rights. It is plausibly suggested that the delegates may have had in mind persecutions in Communist countries of people who were stigmatised as members of the bourgeoisie. But the concept of a social group is a general one and its meaning cannot be confined to those social groups which the framers of the Convention may have had in mind. In choosing to use the general term "particular social group" rather than an enumeration of specific social groups, the framers of the Convention were in my opinion intending to include whatever groups might be regarded as coming within the anti-discriminatory objectives of the Convention……."
(v) "To what social group, if any, did the appellants belong? To identify a social group, one must first identify the society of which it forms a part. In this case, the society is plainly that of Pakistan. Within that society, it seems to me that women form a social group of the kind contemplated by the Convention. Discrimination against women in matters of fundamental human rights on the ground that they are women is plainly in pari materiae with discrimination on grounds of race. It offends against their rights as human beings to equal treatment and respect."
(vi) "I am conscious, as the example which I have just given will suggest, that there are much more difficult cases in which the officers of the State neither act as the agents of discriminatory persecution nor, on the basis of a discriminatory policy, allow individuals to inflict persecution with impunity. In countries in which the power of the State is weak, there may be intermediate cases in which groups of people have power in particular areas to persecute others on a discriminatory basis and the State, on account of lack of resources or political will and without its agents applying any discriminatory policy of their own, is unable or unwilling to protect them. I do not intend to lay down any rule for such cases. They have to be considered by adjudicators on a case by case basis as they arise. The distinguishing feature of the present case is the evidence of institutionalised discrimination against women by the police, the courts and the legal system, the central organs of the State."
From the speech of Lord Hope of Craighead in Shah and Islam:
(vii) ".…………… a feature which is common to all five of the Convention reasons which are set out in the paragraph. The first preamble to the Convention explains that one of its purposes was to give effect to the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. This principle was affirmed in the Charter of the United Nations and in the Universal Declaration of Human Rights approved by the General Assembly of the United Nations on 10 December 1948. If one is looking for a genus, in order to apply the eiusdem generis rule of construction to the phrase "particular social group," it is to be found in the fact that the other Convention reasons are all grounds on which a person may be discriminated against by society."
From the opinion of Lord Millett [His Lordship's dissent related to the question of causation and not whether the applicants in that case were members of a particular social group]:
(viii) "Persecution may be indiscriminate. It may be for any reason or none. It is not, however, enough for an applicant for asylum to show that he or she has a well founded fear of persecution. The persecution must be discriminatory and for a Convention reason. By limiting the persecution in this way, the Convention contemplates that the possibility that there may be victims of persecution who do not qualify for refugee status. Furthermore, if the reason relied upon is membership of a particular social group, it is not enough that the applicant is a member of a particular social group and has a well founded fear of persecution. The applicant must be liable to persecution because he or she is a member of the social group in question."
(ix) "In interpreting the expression "membership of a particular social group" I derive assistance from article 2 of the Universal Declaration of Human Rights. This was adopted by the General Assembly of the United Nations in December 1948, was still recent when the terms of the 1951 Convention were being settled, and is mentioned in the Preamble to the Convention. Article 2 prohibits the denial of the rights and freedoms set forth in the Declaration:
"without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (my emphasis)
The denial of human rights, however, is not the same as persecution, which involves the infliction of serious harm. The 1951 Convention was concerned to afford refuge to the victims of certain kinds of discriminatory persecution, but it was not directed to prohibit discrimination as such nor to grant refuge to the victims of discrimination. Moreover, while the delegates in Geneva were willing to extend refugee status to the victims of discriminatory persecution, they were unwilling to define the grounds of persecution which would qualify for refugee status as widely as the discriminatory denial of human rights condemned by the Universal Declaration. Discriminatory persecution "of any kind" would not suffice; the Convention grounds are defining, not merely illustrative as in the Universal Declaration. The inclusion of sex as a basis of discrimination in the Universal Declaration and the failure to include it as a ground of persecution in the 1951 Convention is noteworthy. It may be due to the fact that, while sexual discrimination was widely practised in 1951, and women are condemned to a subordinate and inferior status in many societies even today, it is difficult to imagine a society in which women are actually subjected to serious harm simply because they are women. But the words in article 2 which I have emphasised, "language . . . social origin, property, birth or other status", indicate to my mind the kind of characteristics which have commonly been shared by the victims of persecution and which the delegates must have had in mind when including the expression "membership of a particular social group". They are all matters of status rather than association; they have regard to the personal attributes of the victims rather than their behaviour."
From the speech of Lord Bingham of Cornhill in Fornah and K:
(x) "10. ……… It is well-established that the Convention must be interpreted in accordance with its broad humanitarian objective and having regard to the principles, expressed in the preamble, that human beings should enjoy fundamental rights and freedoms without discrimination……"
(xi) "13. Certain important points of principle relevant to these appeals are to be derived from the opinions of the House [in Shah and Islam]. First, the Convention is concerned not with all cases of persecution but with persecution which is based on discrimination, the making of distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being: pp 651, 656. …………………….."
(xii) "31. ……… FGM may ensure a young woman's acceptance in Sierra Leonean society, but she is accepted on the basis of institutionalised inferiority…………. FGM is an extreme expression of the discrimination to which all women in Sierra Leone are subject, as much those who have already undergone the process as those who have not. I find no difficulty in recognising women in Sierra Leone as a particular social group for purposes of article 1A(2)………"
"young, single Sierra Leonean women" and "young Sierra Leonean women" (paragraph 9);
"young single women in Sierra Leone who are at risk of circumcision" (paragraph 28);
"young single women who have not been circumcised and who are, therefore, at risk of circumcision" and "women in Sierra Leone" (paragraph 31).
"19. The persecution feared by the first appellant was said to be for reasons of her membership of a particular social group, namely her husband's family. In resisting her claim the Secretary of State did not seek to contend that a family cannot be a particular social group for purposes of the Convention. He accepted that it could, consistently with the submission of counsel on his behalf in Skenderaj v Secretary of State for the Home Department  EWCA Civ 567,  4 All ER 555, para 21, that
"a family group could be a particular social group, since society recognises the family bond as distinct and attaches importance to it, but only if society also sets it apart in such a way as to stigmatise or discriminate against it for that reason."
The Secretary of State's acceptance reflects a consensus very clearly established by earlier domestic authority such as Secretary of State for the Home Department v Savchenkov  Imm AR 28, and also by international authority. In Minister for Immigration and Multicultural Affairs v Sarrazola FCA 263, paras 28-34, there was held to be little doubt that persecution by reason of being a member of a particular family could constitute persecution for reasons of membership of a particular social group. In Thomas v Gonzales, above, the conclusion was reached "that the harm suffered by the Thomases was not the result of random crime, but was perpetrated on account of their family membership, specifically on account of the family relationship with Boss Ronnie."
45. It is universally accepted that the family is a socially cognisable group in society: UNHCR position on claims for refugee status under the 1951 Convention relating to the Status of Refugees based on a fear of persecution due to an individual's membership of a family or clan engaged in a blood feud, 17 March 2006, p 5. Article 23(1) of the 1966 International Covenant on Civil and Political Rights states that the family "is the natural and fundamental group unit of society and is entitled to protection by society and the State." The ties that bind members of a family together, whether by blood or by marriage, define the group. It is those ties that set it apart from the rest of society. Persecution of a person simply because he is a member of the same family as someone else is as arbitrary and capricious, and just as pernicious, as persecution for reasons of race or religion. As a social group the family falls naturally into the category of cases to which the Refugee Convention extends its protection.
does not show that any discrimination other than in the form of the feared act of persecution was relied upon. Accordingly, paragraph 45 does not help Mr. Patel. It may be that the answer lies in the fact that, given that the family is a quintessential social group or given that it already exists independently, it is not necessary to invoke any other characteristic or circumstance in order to define the group as a particular social group. Since the family exists as a social group independently of the actions of the persecutor, the imputation of circularity is avoided.
"(vi) the PSG ground is further limited by the Convention's integral reliance on anti-discrimination notions inherent in the basic norms of International Human Rights Law;
applying the eiusdem generis principle to the other 4 grounds, the PSG category must be concerned with discrimination directed against members of the group because of a common immutable characteristic;
a broad range of groups can potentially qualify as a PSG, including private landowners;"
(a) Mr. Patel submitted that the Court of Appeal in Montoya had approved of the IAT's "PSG guidelines". We do not consider that it can be said that the Court of Appeal did approve of these guidelines. At paragraph 15, Lord Justice Schiemann, who delivered the judgment of the Court, said:
"15. We were addressed by both sides on the basis that the Tribunal's summary of the basic principles as set out in their paragraph 55B was a broadly correct summary of the existing law binding on this Court. This we are content to do."
In the end, the Court in Montoya did not decide whether Mr. Montoya was a member of a particular social group. Schiemann LJ said, at paragraph 26, that a possible approach in that case was to assume two matters in Mr. Montoya's favour; first, that he is a member of a particular social group; and, second, that he has a well-founded fear of being persecuted. Even on this basis, the Court concluded that Mr. Montoya had not established his claim because the necessary causal nexus was not established – see paragraphs 27 to 33 of the judgment. Accordingly, it is clear that the Court in Montoya did not find it necessary to decide whether the claimant was a member of a particular social group. In our view, it is for this reason that the Court was "content" to proceed on the basis that the IAT's summary of the basic principles in establishing whether a particular social group exists was a broadly correct summary of the case-law.
(b) Further, and in any event, there is nothing in the IAT's summary of "principle" (vi) which suggests that the IAT had in mind that discrimination in the wider sense was a necessary identifying characteristic of a particular social group, whatever the social group is and whether or not it is a gender-based group.
"37. If what they fear is capable of amounting to persecution, is it for a Convention reason? It is certainly capable of being so. In R v Immigration Appeal Tribunal and another, Ex p Shah  2 AC 629, this House held that women in Pakistan constituted a particular social group, because they shared the common immutable characteristic of gender and were discriminated against as a group in matters of fundamental human rights, from which the State gave them no adequate protection. The fact of current persecution alone is not enough to constitute a social group: a group which is defined by nothing other than that its members are currently being persecuted would not qualify. But women who have been victims of sexual violence in the past are linked by an immutable characteristic which is at once independent of and the cause of their current ill-treatment. They are certainly capable of constituting a particular social group under the Convention."
Although we acknowledge that Baroness Hale was specifically referring to women who have suffered sexual violence in the past, her formulation supports the proposition that it is possible for individuals who share a past experience to show that they are linked by an immutable characteristic (i.e. their common past experience) which is capable of being independent of and the cause of their current ill-treatment. This would be consistent with the wording of regulation 6(1)(d)(i), which refers to the sharing of a common background which cannot be changed.
(a) the family already exists in society as a social group; the ties which bind members of the family together define the group and set it apart from the rest of society. Accordingly, it is not necessary to invoke any other characteristic or circumstance in order to define the particular social group. If, contrary to our view, discrimination is necessary, then the feared future act(s) of persecution can provide the necessary discriminatory element without falling foul of the principle that the group must not be solely defined by the fear of persecution because the family already exists as a social group;
(b) where the particular social group being relied upon is the broad one of gender or where any further features to narrow the group are gender-based, then discrimination against the gender (i.e. discrimination in the wider sense) must be shown to exist. Further, in the words of Lord Justice Keene in RG (Ethiopia) (paragraphs 24 and 32), some degree of state involvement is important, although the P and M case,  EWCA Civ 1640, lessens the need for discrimination to be part of the law of the land before women can be regarded as a particular social group, if there is in practice a systematic lack of protection. In addition, there must be an absence of adequate protection when the persecution is alleged to emanate from non-state actors of persecution. These observations would apply to the first of the three suggested groups in this case – i.e. "women in Moldova". (It is possible for a particular social group involving men to be gender-based. If that is the case, discrimination in the wider sense must be shown to exist as an identifying characteristic of the particular social group);
(c) In cases where the members of a social group share a common background which is an immutable characteristic and which they cannot change (for example, the sharing of a common past experience) or they ought not to be required to change, it may be that such common background defines the group by giving it a distinct identity in the society in question (see, further, paragraphs 67 to 74 below) which has nothing to do with the actions of the would-be persecutors. If this is the case, then the group exists independently of the feared future act(s) of persecution and circularity is avoided (see paragraph 37 of the speech of Baroness Hale in ex parte Hoxha. If an element of discrimination is necessary, it can be provided by the feared act(s) of persecution without leading to circularity. In other words, a particular social group which shares a common background is defined not only by their description of the members but also, in part, by their place in society.
"29. In my judgment, there are at least two strands apparent in this jurisprudence. The first relates to what can amount to a defining characteristic of a particular social group. In this connection Acosta, Ward [(1993) 2 SCR 689] and Cheung [Cheung v. Canada (Minister of Employment & Immigration) (1993) 2 FC 314] are of particular interest and are probably saying much the same thing. In Islam and Shah Lord Hoffmann adopted the language of Acosta (at 651e/f):
"where it was said that a social group for the purposes of the Convention was one distinguished by:
"an immutable characteristic…[a characteristic] that either is beyond the power of an individual to change or that is so fundamental to his identity or conscience that it ought not to be required to be changed."
This was true of the other four grounds enumerated in the Convention. It is because they are either immutable or part of an individual's fundamental right to choose for himself that discrimination on such grounds is contrary to principles of human rights."
30. The second strand relates to how the characteristic and thus the particular social group in question may be identified. It may be identified by discrimination and even in part by means of discrimination amounting to persecution: but that will not matter as long as such persecution is not the sole means of definition or identification. It may be identified by the recognition or perception of the surrounding society in general that the group in question shares a particular characteristic. Or it may be that the distinguishing characteristic and thus the group in question may simply be objectively observable, irrespective of the insight of the general society in which it is placed. It may be said that these concepts have not yet been fully worked out in the jurisprudence.
"95) ………………. The social group was "people who had been trafficked". The required immutable characteristic, which could not be changed, was the fact that she had been trafficked. It was because she was a member of that social group that she would be targeted. Alternatively, causation was made out because she would be denied the protection generally available in Romania because she was someone who had been trafficked. We note that he did not seek to argue that there was a particular social group of "women in Romania" or even "women in Romania who have been trafficked". We find that the Adjudicator was right to conclude that the Appellant did not fall within a particular social group. Firstly, "people who have been trafficked" falls foul of the principle that the group must exist independently of the persecution it fears. Such a group is defined by no more than the persecutory element of trafficking. Secondly, for reasons to which we will return in connection with sufficiency of protection, the country material before us does not establish discriminatory treatment of the victims of trafficking by the Romanian state analogous to that of women in Pakistan."
(i) SK (Albania)  UKIAT 00023 does not assist the Appellant because, as Mr. Patel contends and as explained by the Tribunal in VD (Trafficking) Albania CG  UKIAT 00115, the SK Albania case turned on its own particular facts; and
(ii) VD Albania does not help because that was a case about the risk of being trafficked in the future. The Tribunal did not consider whether the appellant was a member of a particular social group.
"19. ………….We acknowledge that the protection provided by the refugee test as a whole is undoubtedly inspired by anti-discrimination notions; see, e.g., Refugee Appeal No 71427/199 and ex p. Shah. But we have held back on them for the moment because they have been live issues in this appeal and because we believe it is open to question whether, in a non-state persecution case as here, it is a necessary defining characteristic of a particular social group. ……………….
23. Now that we have identified the area of dispute on this issue, we return to ex p. Shah. There was clear discrimination of Pakistani women in that case, but we doubt whether that factor was necessary to the House of Lords' determination that they or some of them constituted a particular social group. The main reason for the resort to anti-discriminatory principles was to dismiss the notion that cohesiveness was a necessary element of such a group. Given the approach of the US Board of Immigration and Appeals in Acosta and of the reasoning of La Forest J. in the Supreme Court of Canada in Attorney-General of Canada v. Ward  2 SCR 689 on which their Lordships drew heavily in ex p. Shah, it may be that, on this part of the refugee test at least, discrimination was not an essential. Thus, as Lords Steyn and Hoffmann mentioned, at 1026e-h and 1033b-h respectively, in Acosta, the Board said that a particular social group was one distinguished by an immutable characteristic; and in Ward, La Forest J. said simply, and by reference, to the whole refugee concept, that it could include individuals fearing persecution on "such bases as gender, linguistic background and sexual orientation".
24. Lord Hope seemingly did not regard the notion of discrimination as essential to the definition of a particular social group, as distinct from the whole concept of refugee status. He said, at 1038e-g and1039c-d:
"In general terms a social group may be said to exist when a group of people with a particular characteristic is recognised as a distinct group by society. The concept of a group means that we [are] dealing here with people who are grouped together because they share a characteristic not shared by others, not with individuals. The word 'social' means that we are being asked to identify a group of people which is recognised as a particular group by society. …
The rule that the group must exist independently of the persecution is useful, because persecution alone cannot be used to define the group. But it must not be applied outside its proper context. This point has been well made by Goodwin-Gill … He observes at pp 47-48 that the importance, and therefore the identity, of a social group is an open-ended one, which can be expanded in favour of a variety of different classes susceptible to persecution … Persecution may be but one facet of broader policies and perspectives, all of which contribute to the group and add to its pre-existing characteristics."
25. Lord Millett, in his dissenting speech (which turned on the reason for persecution of the women applicants), clearly found a degree of difficulty in the overlap of the two concepts of discrimination and persecution, a difficulty which, with respect, we share. Persecution of members of a particular social group only qualifies as persecution for a Convention reason if it is for reasons of such membership, which of necessity must be discriminatory. It is otiose and circular that the group should have to be defined by some discriminatory element before consideration of whether it is persecuted for that reason. Providing that there is a social group in the Acosta sense, the discrimination is to be found in the persecution. Lord Millett said, at1043f-g and 1044d-e:
"… it is not enough for the applicant for asylum to establish that he or she is a member of a particular social group and is liable to persecution. The applicant must also establish that he or she is liable to persecution because he or she is a member of the group. The applicant must be the subject of attack, not for himself or herself alone, but because he or she is one of those jointly condemned in the eyes of their persecutors for possession of the characteristic which is common to the group. …
Whether the social group is taken to be that contended for by the appellants, however, or the wider one of Pakistani women who are perceived to have transgressed social norms, the result is the same. No cognisable social group exists independently of the social conditions on which the persecution is founded. The social group which the appellants identify is defined by the persecution, or accurately (but just as fatally) by the discrimination which founds the persecution. It is an artificial construct called into being to meet the exigencies of the case. [my emphasis].
26. We also draw strength in this regard from the judgment of the High Court of Australia in Chen, where one of the issues was whether black children in China constituted a particular social group. The Court was firmly of the view that discrimination is not an essential defining characteristic of a particular social group:
"22 …the group constituted by children born in those circumstances is defined other than by reference to the discriminatory treatment or persecution that they fear. And so much was recognised by the Tribunal in its finding that a 'child is a black child' irrespective of what persecution may or may not befall him or her.
23 The circumstance that 'black children' receive adverse treatment in China is descriptive of their situation and, as McHugh J pointed out in Applicant A, that may facilitate their recognition as a social group for the purposes of the Convention but it does not define it. Accordingly, there was no error in the Tribunal's finding that, for the purposes of the Convention, the appellant is a member of a particular social group." [our emphasis]
27. There is plenty of scope for giving effect to anti-discriminatory principles underlying the protection of refugees when considering whether membership of such a group attracts persecution of all or, as in Shah, some of them. Put another way, it is not necessary to insist upon discrimination as a defining element of a particular social group to satisfy McHugh J's proposition in Applicant A, at 401, that the latter must exist independently of, and not be defined by, persecution."
"30. In our view, on the evidence accepted by the adjudicator and not challenged before the Tribunal, Mr. Skenderaj has not made out his claim that he was a member of a particular social group so as to engage the other elements of the test of a refugee in Article 1A(2). We say that, not for the reason principally relied on by Miss Grey that there was no setting apart or stigmatisation of, or discrimination against, the family outside the persecution alleged since, for the reasons we have given, we do not regard that as a necessary part of the definition of a particular social group, particularly in a non-state persecution case. We say it because, as Miss Grey also submitted, the Skenderaj family was not regarded as a distinct group by Albanian society any more than, no doubt, most other families in the country.
31. If, contrary to our view, some element of discrimination is required to establish the Skenderaj family as particular social group, it could not be found in the state's non-intervention, since that would arise, if at all, only as a result of the private persecution and then in the context of the second limb of the definition of refugee concerned with lack of protection. Nor could it be found in the other family's persecutory attitude since, again, it is impermissible to rely on persecution to establish the group for Convention purposes where no other distinguishing feature other than that it is a family is made out. As Miss Grey observed, unless every land-owning family in Albania were to constitute a particular social group, which is not Mr. Skenderaj's case, only the start of a feud can mark such a family group out."
In other words, Auld LJ was saying that, if discrimination (and, in this regard, it should be remembered that his Lordship was referring to discrimination in the wider sense) is a necessary identifying characteristic of a particular social group, then private landowners are unlikely to qualify as members of particular social group.
"(d) a group shall be considered to form a particular social group where, for example:
(i) members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and
(ii) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;"
"……. is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one's human rights."
(a) that sub-paragraphs (i) and (ii) of regulation 6(1)(d) are separate examples of situations in which a group shall be considered to form part of a particular social group and that the reason for the use of the adjunctive "and" between sub-paragraphs (i) and (ii) of regulation 6(1)(d) is that it was intended to provide the reader with two separate examples, each of which would qualify as social groups under the Protection Regulations; and
(b) that the adjunctive "and", as well as the words "for example", were used advisedly and intentionally, to mean that any particular social group must satisfy two criteria, the second of which (i.e. sub-paragraph (ii) of regulation 6(1)(d)) is always necessary whereas the first would be satisfied if an individual falls within any one or more of the five examples of particular social groups given in sub-paragraph (i) of regulations 6(1)(d). On this interpretation, given that the five examples are only examples, a particular social group may be shown to exist in other circumstances subject to eiusdem generis principle of interpretation, by reference to the five examples given in sub-paragraph (i) of regulation 6(1)(d).
"…..they would no doubt be quickly recognisable in their society as a particular social group. Their persecution for being left-handed would create a public perception that they were a particular social group."
"In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1."
and regulation 5(3) of the Protection Regulations states:
"(3) An act of persecution must be committed for at least one of the reasons in Article 1A of the Geneva Convention."
"102. In cases where there is a risk of being persecuted at the hands of a non-State actor (eg husband, partner or other non-State actor) for reasons which are related to one of the Convention grounds, the causal link is established, whether or not the absence of State protection is Convention related. Alternatively, where the risk of being persecuted at the hands of a non-State actor is unrelated to a Convention ground, but the inability or unwillingness of the State to offer protection is for reasons of a Convention ground, the causal link is also established."
(C) Country evidence relating to Moldova
"……In my comments of February 13, I noted that while the Home Office had listed examples of legal and policy initiatives which suggest gender equality in Moldova, my experience was that the implementation of these laws and polices was generally weak. As such, based on my experience in the country, I am inclined to agree with the argument that legislative, economic and social provision in Moldova (and/or the lack of enforcement of these provisions) fail to provide 'women in Moldova' with effective protection from the harm of domestic and other gender-based violence."
"Moldova is a major source country for trafficking in women and girls for the purpose of sexual exploitation. Victims are trafficked throughout Europe and the Middle East, increasingly to Turkey, Israel, the U.A.E., and Russia. To a lesser extent, Moldova serves as a transit country to European destinations for victims trafficked from other former Soviet states. Reports of internal trafficking of girls from rural areas to Chisinau continued. The small breakaway region of Transnistria in eastern Moldova is outside the central government's control and remained a significant source and transit area for trafficking in persons.
The Government of Moldova does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. In 2005, the government continued to improve its law enforcement response, increasing trafficking investigations and convicting more traffickers. It passed comprehensive anti-trafficking legislation and updated and improved its National Action Plan. However, the government showed a lack of anti-trafficking leadership by depending almost exclusively on NGOs to carry out its work on prevention and protection. The government, through its National Committee on Trafficking in Persons, should implement the new National Action Plan, devote increased resources to prevention, and provide victims with protection and assistance.
The Government of Moldova made modest progress in its efforts to punish acts of trafficking over the last year. Although the Moldovan criminal code contains specific penalties for trafficking, some prosecutors continued to use lighter pimping charges. In December 2005, the government passed comprehensive anti-trafficking legislation, criminalizing both sexual exploitation and forced labor trafficking. However, successful implementation of the law remains unclear without a commitment of resources from the government. The government increased its law enforcement efforts, investigating 386 cases of trafficking in 2005. Of the 314 cases referred for prosecution, 58 traffickers were convicted, an increase from 23 convictions in 2004. Only 36 traffickers received actual imprisonment; the rest paid fines or were granted amnesty. Unfortunately, the government increased its use of suspended sentences in 2005. Although some suspended sentences resulted from inadequate investigations, others continued to be related to judicial corruption. During the reporting period, the government disbanded the Ministry of Interior's Anti-Trafficking Unit and replaced it with a new inter-agency Center to Combat Trafficking in Persons. Allegations of trafficking related corruption among some law enforcement officials continued, although the government did not take action. In 2005, the government sentenced a police officer accused of collaborating with a Turkish trafficker to 10 years in prison. A former Moldovan policeman charged with trafficking women to the U.A.E. remains free on bail pending completion of his trial after deportation from the Emirates.
The Government of Moldova's efforts to protect and reintegrate trafficking victims remained weak throughout the reporting period. The government did not fund NGOs providing shelter and assistance to trafficking victims, but it continued to cooperate with them on a limited basis. In June 2005, the Moldovan Parliament amended a law on employment and social protection to allow trafficking victims and other vulnerable populations to receive government benefits; however, the government did not report providing any benefits to trafficking victims. Contrary to what was stated in last year's Report, the government did not provide space in state buildings for a rehabilitation center run by IOM [the International Organization for Migration]. The government's witness protection law remained inadequately implemented and thus, while in some cases police posted guards outside witnesses' homes, many victims did not feel secure enough to testify against their traffickers. No progress was made in the development of a formal referral system; however, the police informally referred 88 victims to IOM during the reporting period. Overall, IOM reported assisting 464 victims during the reporting period. In January 2006, the government, in partnership with IOM, launched a program to build the capacity of Moldovan consular officers abroad to assist potential and actual victims of trafficking.
NGOs and international organizations continued to conduct the bulk of anti-trafficking prevention and education campaigns in 2005, with periodic participation from the government. NGO prevention efforts included outreach to potential victims of trafficking in the mass media and in rural areas as well as education efforts in schools. The National Committee on Trafficking in Persons continued to meet to review the government's anti-trafficking efforts, but met less often during the reporting period. In August 2005, the government approved a new National Action Plan based on regional best practices, developed with the active guidance of a local NGO."
TIER 1: Countries whose governments fully comply with the Act's minimum standards. [detailed on p. 288]
TIER 2: Countries whose governments do not fully comply with the Act's minimum standards but are making significant efforts to bring themselves into compliance with those standards.
TIER 2 SPECIAL WATCH LIST: Countries whose governments do not fully comply with the Act's minimum standards but are making significant efforts to bring themselves into compliance with those standards, and:
a) The absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; or
b) There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or
c) The determination that a country is making significant efforts to bring themselves into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.
TIER 3: Countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so."
"Trafficking in Persons
The law prohibits trafficking in persons and it carries criminal penalties. However, trafficking remained a serious problem and the country is a major source for trafficked persons, particularly women and girls for sexual exploitation.
To a lesser extent the country is also a transit point for trafficking victims, and there were reports of some internal trafficking of girls from rural areas to the capital.
A significant amount of trafficking continued to occur in the breakaway region of Transnistria, which is outside of the government's control. The separatist region remained a significant source and transit area for trafficking in persons.
Women and children were trafficked for sexual exploitation, and men and children were trafficked to Russia and neighboring countries for forced labor and begging. The country was also a transit point for victims trafficked from Ukraine. Victims were increasingly trafficked to Russia and countries of the Middle East, such as Turkey, Israel, and the United Arab Emirates (UAE). According to International Organization for Migration (IOM), 12 percent of the trafficking victims it assisted were minors under 18 years of age. The IOM also noted that the percentages of victims trafficked from rural and urban areas closely corresponded to residence statistics from the country's 2004 census. Most victims had suffered some form of sexual or physical abuse at home and were willing to face significant risk to escape abuse.
The government's newly-formed Center to Combat Trafficking in Persons (CCTIP) stated that information indicated that men were trafficked for agricultural and construction work to the Baltic States and to the Commonwealth of Independent States (CIS). There also were reports that women were trafficked to Lebanon, Greece, Macedonia, Serbia (including Kosovo), and Montenegro, Bosnia and Herzegovina, Poland, Croatia, the Czech Republic, Belarus, France, the United Kingdom, and Austria.
The law provides criminal penalties for trafficking ranging from seven years to life imprisonment depending on the circumstances and severity of the offense.
During the first 11 months of the year, authorities opened 333 trafficking-related investigations. According to CCTIP, during the year authorities convicted 62 persons for trafficking, 85 for pimping, 13 for organizing begging, seven for trafficking in children, four for organizing illegal migration, and two for forced labor. Of the 173 convictions, 67 persons were sent to prison, 36 received a suspended sentence, 59 were fined, and 11 were amnestied or acquitted.
During the first eight months of the year the interior ministry reported that it conducted 35 raids to inspect 143 travel and employment agencies; it withdrew the licenses of four for suspected trafficking.
In 2005 the government merged the interior ministry's antitrafficking section into a new national entity, the CCTIP, which is composed of senior officials from all relevant government ministries and includes prosecutors, analysts, and investigators. There is also a multiagency task force under the leadership of the prosecutor general's office to monitor trafficking law enforcement activities, coordinate intelligence, provide witness protection, and provide advice on prosecuting complex cases.
During the year the government improved cooperation with other member countries of the Southeast European Cooperative Initiative, Interpol, and with other trafficking destination countries such as Italy, the United Arab Emirates (UAE), and Turkey, resulting in a number of convictions.
On February 8, the government ratified an agreement with Turkey to combat trafficking as part of a broad effort to fight illegal drug trafficking, international terrorism, and other organized crime.
There have been longstanding reports of involvement by some government officials in trafficking. On October 18, the Ministry of Interior dismissed several senior officials for trafficking, including a former CCTIP deputy director, Ion Bejan, who was under investigation on charges of protecting a major trafficker. According to the interior ministry, other government investigators and prosecutors were also involved in the protection scheme and are under investigation. The ministry also reported that, in the first 11 months of the year, it investigated and eradicated 39 trafficking networks. Turkey was the destination country in 14 of the cases; UAE in five; Russia in five; the Kosovo region of Serbia in three; and other countries in the remaining 12.
Elsewhere in the country, widespread corruption and lack of resources prevented adequate border control and monitoring of traffickers, particularly in areas near Transnistria. Observers alleged that corrupt low and high-level Moldovan government officials were either involved in or routinely ignored trafficking crimes. In September trafficking charges levied in November 2004 against a former policeman who was deported from the UAE back to the country were downgraded to pimping; he was amnestied. The prosecutor and the victims' lawyer appealed the court decision.
On June 20, police arrested Alexander Covali, an alleged leader of a trafficking ring. He was charged with trafficking after police found confined women on his properties. He was released on bail and arrested again on August 4 when an investigation revealed that he had received police protection. He remained in jail in year's end awaiting a court hearing.
On December 27, Ion Gusin was convicted of trafficking in persons and sentenced to 22 years in jail for his role as pimp and translator for a foreign sex tourist.
On October 20, the finance ministry created a special fund to pay for free social services for trafficking victims, including modest medical and psychiatric services, new identity documents and residence permits, legal counseling, vocational training, and professional counseling. The fund is part of a comprehensive trafficking in persons law passed by parliament in October 2005.
The government had no other programs to assist victims. Several NGOs offered repatriation assistance, temporary housing, and medical care for victims, as well as job training. The NGO Save the Children worked with trafficking victims, particularly repatriated girls. The NGO La Strada Moldova provided informational and educational services as well as a national toll-free hotline.
During the first eight months of the year IOM assisted 193 returned trafficking victims, the majority of whom had been trafficked to Turkey, Russia, and the UAE.
The government took some steps to prevent the trafficking of persons and to assist victims through its network of national antitrafficking committees. Local committees in each region of the country and officials from a variety of ministries and local governments were required to present reports on their antitrafficking efforts. In August 2005 the government approved a new national action plan for combating trafficking in persons, which was developed in conjunction with international organizations.
Local NGOs operated public school programs to educate young women about the dangers of prostitution. During the year, the IOM continued its information program aimed at providing information to help citizens going abroad to avoid exploitation."
"Overall, it is reasonable to assert that re-trafficking is a common phenomenon in a source country like Moldova. Many victims report attempting to migrate again shortly after return because of the need to earn money, lack of opportunity or problems in the home. Another contributor to re-trafficking may also be the difficulties faced in reintegration, including stigma and shame associated with sexual exploitation as well as dissatisfaction with the material conditions at home……."
Moldova 1.28 % of the general population of Moldova
Ukraine 0.25 % of the general population of the Ukraine
Belarus 0.14 % of the general population of Belarus
Bulgaria 0.128 % of the general population of Bulgaria
Romania 0.125 % of the general population of Romania
"Public opinion with regard to whether human trafficking should be blamed on personal irresponsibility of its victims or on poor social institutions differs across the countries. In Moldova, Ukraine and Romania public opinion blames human trafficking on poor legal environment and corruption, while in Belarus and Bulgaria it is blamed on recklessness and imprudence of human trafficking victims. Consequently, trafficking victims in Belarus and Bulgaria may face more difficulties in their social adaptation after the human trafficking case has happened to them……"
"To my knowledge in Moldova in the past there have been cases of reprisals and retaliation against victims of trafficking or their loved ones from criminals and there is a possibility of being re-trafficked…….
Additionally, according to information from NGOs there have been also individual cases of abuse and sexual violence against returned victims of trafficking. In general trafficked persons are stigmatised upon return by the community and/or the family in Moldova……………"
"Prostitution is socially stigmatised and most people do not differentiate between someone who has worked in prostitution and someone who was trafficked and forcibly sexually exploited. Both are stigmatised and face serious problems when dealing with family and community members and when attempting to socially reintegrate. The issue of stigma also directly informs a victim's access to assistance, with some victims unwilling to accept services from anti-trafficking [sic] organization as they fear stigma associated with trafficking.
Much reintegration depends on the support of the victim's family. While accommodation is available in the short term, returning to one's family is the most common strategy and often the only real option available to victims…….
Communities stigmatise returning victims, often labelling them as prostitutes rather than victims of exploitation, and victims may not feel comfortable returning home where they will face questions about their experience abroad. With communities increasingly aware of sex trafficking, there is often the assumption that any woman who has returned home from abroad has been working in prostitution. Community stigma can impede a victim's ability to receive training, find employment, find housing options and socially reintegrate in the community……….."
"In some areas the stigma associated with prostitution is so acute that it is almost impossible for the woman to lead a normal life. In Moldova, for example, service providers referred to a practice of identifying 'prostitutes' (and, by implication, often also trafficking victims) by painting the woman's gate in black. The tradition is closely connected with prostitution, with women working in prostitution seen as 'dirty'. This organisation had assisted several victims who had been subjected to this ostracism…… ." Stigma can also have very real physical consequences. One psychologist explained that one of her clients who had been abroad was brutalised in her community because of the stigma associated with her (forced) prostitution: ….."[She] did not tell anything, but there were a lot of people suspecting because she had been away for four years. She went to a party in the village, and guys there took her out and raped her - 'you were there and did this for money, why not do it for us free of charge'. She came here very depressed. So stigmatisation is a very serious problem". "
(D) Summary of general conclusions:
112. (a) (i) Given that the family is a quintessential social group which exists independently in society, it is not necessary to invoke any other characteristic or circumstance in order to define it. This means that it is not necessary to show general discrimination as an identifying characteristic of the group. If, contrary to our view, discrimination is necessary, then the feared future act(s) of persecution can provide the necessary discriminatory element without falling foul of the principle that the group must not be solely defined by the fear of persecution because the dam already exists as a social group;
(ii) Similarly, in cases where the members of a social group share a common background which is an immutable characteristic and which they cannot change (for example, the sharing of a common past experience) or they ought not to be required to change, then if the common background defines the group by giving it a distinct identity in the society in question which has nothing to do with the actions of the future persecutors, then the group exists independently of the feared future act(s) of persecution and circularity is avoided. It is not necessary to show general discrimination as an identifying characteristic of the group. If an element of discrimination is necessary, it can be provided by the fear act(s) of persecution without leading to circularity.
(b) Where the particular social group relied upon is the broad one of gender or a group with gender-based identifying features, then discrimination in the wider sense against the gender must be shown to exist as an identifying feature of the group.
(c) "Former victims of trafficking" and "former victims of trafficking for sexual exploitation" are capable of being members of a particular social group within regulation 6(1)(d) because of their shared common background or past experience of having been trafficked. MP Romania should no longer be relied upon, as it was wrongly decided. However, we emphasise that, in order for "former victims of trafficking" or "former victims of trafficking for sexual exploitation" to be members of a particular social group, the group in question must have a distinct identity in the society in question.
(d) The adjunctive "and" in regulation 6(1)(d) of the Protection Regulations should be given its natural meaning.
(e) In the context of Moldovan society, a woman who has been trafficked for the purposes of sexual exploitation is a member of a particular social group within regulation 6(1)(d), the particular social group in question being "former victims of trafficking for sexual exploitation".
Ms. D. K. GILL
Senior Immigration Judge Date: 31 October 2007
Approved for electronic distribution
|Country background materials considered by the Tribunal||Date|
|Kartusch, Thompson and Sorrentino: Trafficking in Persons, Witness Protection and the Legislative Framework of the Republic of Moldova||2003|
|International Organisation for Migration: Moldova||2004|
|Poppy Project: When Women are Trafficked||April 2004|
|R Surtees: Report for Nexus Institute||21.6.2005|
|Raviv and Andreani: The Changing Patterns and Trends of Trafficking in Persons in the Balkan Region||July 2005|
|R Surtees: Second Annual Report on Victims of Trafficking in South-Easter Europe||2005|
|Immigration and Refugee Board of Canada: Victims of Organised Crime and State Protection et seq||17.2.2006|
|E-mail from L Sorrentino||16.5.2006|
|E-mail from A Andreani||17.5.2006|
|US State Department: 2006 Trafficking in Persons Report: Moldova||6.6.2006|
|Amnesty International Report 2006: Moldova||23.6.2006|
|UN Committee: Report on Elimination of Discrimination against Women||16.8.2006|
|United Nations: Concluding Comments of the Committee on the Elimination of Discrimination against Women.||25.8.2006|
|UK Home Office IND: Operational Guidance Note: Moldova||9.10.2006|
|United Nations: Domestic Violence in Moldova Ending the Silence||11.10.2006|
|E-Mail from R Surtees and newspaper articles||30.10.2006|
|OSCE Mission to Moldova: Anti-Trafficking in Human Beings||2006|
|Extracts from US State Department Report on Victims of Trafficking||2006|
|Normative Acts: Trafficking in Human Beings in Moldova||2006|
|UNDP Human Development Report 2006: Moldova||2006|
|UNDP Human Development Indicators Country Fact Sheets||13.2.2007|
|E-mail from Rebecca Surtees||13.2.2007|
|International Organisation for Migration: Research Shows Significant Figures on Human Trafficking||16.2.2007|
|International Organisation for Migration: Human Trafficking Survey||16.2.2007|
|US State Department: Country Reports on Human Rights Practices in Moldova - 2006||6.3.2007|
|Extracts from La Strada||Undated|
|Extract from www.protectionproject.org||Undated|