COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE MAURICE KAY
| CHUN LAN LIU
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Kate Gallafent (instructed by Treasury Solicitors) for the Respondent
Crown Copyright ©
Lord Justice Maurice Kay :
"Central Government policy formally prohibits the use of physical coercion….however intense pressure to meet birth limitation targets set by government regulations has resulted in instances in which local birth planning officials reportedly have used physical coercion to meet government goals."
The adjudicator also referred to an expert report by Dr. Harriet Evans which includes this description of the implementation of the "one child policy" at the local level:
"It is [in] the complex context of rural need and local official pressure that forced abortions and sterilisations have been and continue to be carried out on women into their third and subsequent term."
It is against this background, which is not disputed by the Secretary of State, that the events of October 2002 took place. The appellant was forcibly taken to a hospital and the eight month foetus was removed by caesarean section. No attempt at sterilisation occurred on that occasion but sometime later the appellant was required to attend hospital for sterilisation. She refused to do so. Officials came into her home in order to remove her to hospital by force. There was a fight in the course of which her husband returned home. The appellant sought to defend herself by taking up a stick of the kind used for carrying heavy weights across the shoulders. She struck one of the three officials. She succeeded in escaping to the railway station where she hid in a goods train which took her to another province. She remained there illicitly for some months before managing to leave China so as to make her way to this country. Her application for asylum is based on a fear of persecution in that she fears that upon return to China she would be forcibly sterilised and would be severely punished for having assaulted an official in self defence. She would be imprisoned in inhuman and degrading conditions.
"…..(2) 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; or who, not having a nationality and being outside the country of his former habitual residence is unable to or, owing to such fear, is unwilling to return to it."
Thus, the well founded fear of persecution has to be for a Convention reason. In this case the appellant had to establish that her well founded fear of persecution was for "membership of a particular social group". The adjudicator held that the appellant was a member of "a particular social group", that group being defined as "women of child bearing age in China". He did not consider it necessary for there to be any further refinement of the definition. He therefore concluded that the appellant had a well founded fear of persecution for a Convention reason. In view of his factual findings, it was inevitable that he would also conclude that upon return she would face a real risk of inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights and Fundamental Freedoms.
"Undoubtedly, women of child bearing age in [China] are a particular social group. However, that is not the reason that this appellant fears persecution. Counsel suggested that this appellant feared persecution because she was a member of a social group defined as
'rural women accused of transgressing social mores in relation to the population control policy by choosing to have a third child'.
The difficulty we have with that definition is that it is defining membership of a group, by reason of the persecution. What this respondent fears, is that on her return to China she will be forced to undergo sterilisation, because she has been pregnant for a third time and left [China] when efforts were made to remove her to undergo forced sterilisation. According to counsel's definition the group exists because rural women have been accused of transgressing social mores in relation to the government's population control policy by choosing to have a third child. Such a group would not exist independently of the persecution. We believe that counsel, in seeking to clarify the social group, has fallen into the trap of identifying it by means of the persecution.…..The adjudicator's definition of membership of a particular social group is far too wide, because there is no causal link between women of child bearing age in [China] and the persecution which this appellant claims to fear. Undoubtedly, if on return the appellant were forced to undergo sterilisation, that would amount to inhuman or degrading treatment or punishment, but in our view, ….the appellant is not at risk of persecution as a member of a particular social group."
Shah and Islam
"The Court of Appeal held (and counsel for the Secretary of State argued) that this argument [i.e. in support of a more narrowly defined group] falls foul of the principle that the group must exist independently of the persecution. In my view this reasoning is not valid. The unifying characteristics of gender, suspicion of adultery and lack of protection, do not involve an assertion of persecution. The principle that the group must exist independently of the persecution has an important role to play. But counsel for the Secretary of State is giving it a reach which neither logic nor good sense demands. In Applicant A v. Minister for Immigration and Ethnic Affairs, 71 ALJR 381, 402, McHugh J explained the limits of the principle. He said:
'Nevertheless, while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become 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. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group.'
The same view is articulated by Goodwin-Gill, The Refugee in International Law, 2nd ed. (1996). P 362. I am in respectful agreement with this qualification of the general principle. I would hold that the general principle does not defeat the argument of counsel for the appellants."
The primary submission on behalf of the Appellant
(1) Defining the group: evidence
"It is….a fallacy to say that because not all members of a class are being persecuted, it follows that persecution of a few cannot be on grounds of membership of that class."
Indeed if it were not a fallacy, "women in Pakistan" would not begin to constitute a particular social group. It is to be hoped that cases of this sort will not degenerate into nitpicking around the margins of definition. As it will be for the Immigration Appeal Tribunal to decide on the evidence at the remitted hearing whether and, if so, what particular social group has been established, it is inappropriate to say much more on the issue at this stage. I simply record that, when the Court indicated that it might be in a position to decide the case without a remittal, Miss Gallafent submitted that the evidence before this Court on this issue does not favour the appellant. I do not feel able to accept such a submission. The evidence merits the consideration of the specialist Tribunal. That is why it is necessary for the matter to be remitted, with no further comment about the evidence.
(2) Lord Steyn's qualification: further observations
"The essential question, however, is whether the persecution feared is the sole distinguishing factor that results in the identification of the particular social group. Taken out of context, this question is too simple, for whenever persecution under the law is the issue, legislative provisions will be but one facet of broader policies and perspectives, all of which contribute to the identification of the group, adding to its pre-existing characteristics.
For example, parents with one or more children can be considered as an identifiable social group because of (1) their factual circumstances and (2) the way in which they are treated in law and by society. Arbitrary laws might subject red-headed people, mothers of one or more children, and thieves to a variety of penalties, reflecting no more than the whims of the legislator. Where such laws have a social and political context and purpose, and touch on fundamental human rights, such as personal integrity or reproductive control, then a rational basis exists for identifying red-headed people and mothers of one or more children as a particular social group, in their particular circumstances, while excluding thieves. For the purposes of the Convention definition, internal linking factors cannot be considered in isolation, but only in conjunction with external defining factors, such as perceptions, policies, practices and laws.
Treatment amounting to persecution thus remains relevant in identifying a particular social group, where it reflects State policy towards a particular class."
I have set out this extract at length because it was incorporated by reference into Lord Steyn's speech (although not there set out) and, as I have said, I gratefully accept that speech to represent the law. The extract is also a useful elaboration of the passage from the judgment of McHugh J in Applicant A.
(3) Other authorities
"an immutable characteristic……that either is beyond the power of an individual to change [the Board later gave as examples 'sex, color or kinship ties'] or that is so fundamental to his identity or conscience that it ought not to be required to be changed."
In Shah and Islam, Lord Hoffman, having just set out that passage, added (at p 651F):
"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."
Neither Acosta nor Shah and Islam concerned reproductive control policies. However, the Canadian and Australian authorities did. Although they do not all speak with one voice, I have derived considerable assistance from the dissenting judgment of La Forest J (with whom L´Heureux-Dubé and Gonthier JJ agreed) in Chan. Commenting on Acosta and his own earlier judgment in Canada (Attorney General) v. Ward  2 SCR 689, he said ( 3 RCS at p. 644):
"It is still necessary under the second category to consider whether an association exists that is so fundamental to members' human dignity that they should not be required to forsake it. To apply this simplified distinction without proper consideration of the context in which it arose can lead to ludicrous results….I find it difficult to conceive that he associative qualities of having children may be considered so significantly analogous to the associative qualities of being a member of a taxi driver cooperative [i.e. the factual matrix of Acosta] to warrant any meaningful comparison. Moreover, if the distinction was treated as a hurdle claimants are obliged to pass, behaviour fundamental to one's basic humanity, such as having children, could always be classified out of context as something one merely does rather than something one actually is. To pursue this example, however, surely it is nonsensical to find other than that one fundamentally is a parent. Parenting cannot be considered an activity that one merely does, as interchangeable as a particular occupation, without distorting the primary forms of refugee law: the assurance that basic human rights are not fundamentally violated without international recourse."
Although this was a dissenting judgment, the difference between the minority and the majority related to matters of proof rather than principle. In my judgment, it is the approach of La Forest J that is the natural bedfellow of the majority of the House of Lords in Shah and Islam. I also observe that, whilst the approach of La Forest J did not impress Dawson J in the Australian case of Applicant A (above, at pp 17-18), in the recent case of VTAO (above), the Federal Court of Australia, having considered Applicant A, reached a conclusion about the identification of a particular social group arising out of the application of China's reproductive control law and policy which is consistent with the approach of La Forest J. It seems to me that if, upon a reconsideration by the Immigration Appeal Tribunal, the country evidence in the present case passes muster, this approach should inform the decision of the Tribunal on the question whether the Appellant's well-founded fear of persecution is "for reason of membership of a particular social group".
Lord Justice Rix:
"are united or identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it" (at 322).
"the appellant is voluntarily associated in a manner so fundamental to his human dignity that he should not be required to forsake it" (at para 84).
"Nevertheless, while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become 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. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group."
"19. Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group - for example, "black children", as distinct from children generally – cannot properly be described in that way."
"whether because of legal, social, cultural and religious norms prevalent in Afghan society, young able-bodied men comprised a social group that could be distinguished from the rest of Afghan society" (at 50).
"First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large."
"merely decided that the fear of harm resulting from a failure to abide by such a law cannot be relied upon alone as the defining or uniting characteristic of a particular social group" (emphasis added).
"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."
"a significant difficulty in the way of claimants to refugee status is the fact that the one child policy is apparently applied uniformly in China. There is no obvious element of discrimination. That may be the true basis of the decision of the Australian High Court." (at 642a).
Lord Justice Ward :
ORDER: Appeal allowed; draft order as agreed between the parties; case remitted to the Immigration Appeal Tribunal; application of the Secretary of State for permission to appeal to the House of Lords to be considered on the papers.