England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/06/1995

1. LORD JUSTICE McCOWAN: Section 8 (1) of the Asylum & Immigration Appeals Act 1993 states:

"A person who is refused leave to enter the United Kingdom under the 1971 Act [Immigration Act] may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention."

2. Section 1 of the 1993 Act defines the Convention to mean "the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol that that Convention" adopted in 1966.
3. Article 1A (2) of the Geneva Convention 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....."
4. The issue on this appeal is whether the respondent has a well-founded fear of being persecuted "for reasons of membership of a particular social group". The respondent to the present appeal Mr Sergei Savchenkov is a citizen of Russia born on 28th February 1959. He appealed to a special adjudicator against a decision of the Secretary of State made on 12th May 1994 refusing to grant him leave to enter under provisions of paragraph 180 of HC725, the Secretary of State having decided that the respondent did not qualify for asylum. He arrived in the United Kingdom on 26th April 1994 having travelled from St Petersburg via Prague. He held a visa for a visit issued on 10th November 1993. On the 27th April 1994 he was refused leave to enter and A on the 29th April 1994 he claimed asylum. He said that the basis of his claim was because of a very difficult situation with criminals and the economy. He was interviewed on the 1st May 1994 through a Russian interpreter. He said he had left Russia by plane - it was no problem - travelling by Czech airlines via Prague. He had not claimed asylum there because it was a former Communist country. He said that he had previously travelled to Stockholm in October 1993 for tourism but he had not claimed asylum there, adding that it was his intention to claim it in the United Kingdom or the United States. He had not been a member of any political party or organisation.
5. The basis of the claim for asylum was that he was being ersecuted by criminals while working as a security officer in a hotel in St Petersburg. He had been approached by them and threatened by them. They suggested he should act as an informer for them. These approaches, according to him, started in September 1993. Later the suggestion was made that he might work for one of the top criminal bosses as a bodyguard. He said he had been threatened on three occasions. He was asked whether these threats and the beatings which resulted from them had been reported to police and he said they had not because the bandits would have killed him. On one occasion he was taken to a cemetery and shown an open grave and told if he refused to work for them he would be lying there next. He did not go to the police because they worked hand in hand with the mafia.
6. The Secretary of State in giving his decision noted the account given by the Appellant but considered that without any supporting evidence his statements by themselves did not provide conclusive proof of his claim. The Appellant's fear was one of indiscriminate violent criminality which was not a criterion for the persecution as defined by the 1951 Convention. On the totality of the evidence the Secretary of State was not satisfied that he qualified for asylum.
7. In his appeal to the special adjudicator he gave oral evidence through an interpreter. He said that those who approached him wanted him to be an informer. The idea was that he should tell them when rich people were staying at the hotel so they could rob them. He refused, he said, because that was illegal and against the law. After he had refused he was threatened physically. He described how three men pulled up in front of his car and got out and threatened him. He was beaten right outside his own house. Two cars drew up, and he was beaten on his arms and legs and face. They used their fists but no weapons. He elaborated on the visit to the cemetery. He said that there a gun was put into his mouth and he was told that if he was not going to work for them he could be sure that the grave would be his grave.
8. At his hotel there were thirty security guards including a friend called Piotr Yashin. He had also been approached by gangsters. There had been a fight between him and the gangsters in the hotel and he had detained one of them and handed him over to the police. Soon afterwards he was stabbed to death.
9. It was submitted on behalf of the Appellant that the Appellant worked as a security guard and was being pressurised into joining the mafia. If he had not been a security guard he would not have been pressurised. His persecution arose from his membership of that group and as a matter of conscience he refused to join the mafia. The adjudicator was referred to a relevant paragraph of HC725 and emphasis was placed before him of the fact he had to consider the question of membership of a particular social group. Having heard all the evidence and the argument, the adjudicator said:

"I am left in a state of considerable uncertainty as to what to make of the appellant's oral evidence."

10. He set out the reasons why his mind wavered on that question.

"Having seen the appellant give evidence and giving due weight to the very considerable doubts raised by the matters I have set out above, I am left in a position where I do not entirely reject the appellant's account of what has taken place and I am in the position of being satisfied that it is at least a serious possibility that the events described by the appellant have taken place. Therefore so far as the appellant's account of what has happened to him is concerned he does satisfy the criterion that there is a reasonable degree of likelihood that they have occurred.

"However, I have to be satisfied that the appellant is in fear of returning to Russia and that his fear is well-founded and arises out of a Convention reason. On the basis of the appellant's account of the events which have occurred I accept that there is a reasonable likelihood that in fact he is in fear of returning to Russia. He has good grounds for fearing to return. The Russian mafia have sought to recruit him and they do not appear to take no for an answer. However, those who have persecuted the appellant and who the appellant fears are criminals. They are those involved in organised crime. I am not satisfied on the evidence before me that it can be said there is any reasonable likelihood that the Russian government has committed, condoned or tolerated the persecution."

11. Finally, the adjudicator said this:

"..... the appellant would still need to show that he feared persecution for a Convention reason. The appellant's fear of persecution arises out of his refusal to be recruited into the Russian mafia. It has nothing to do with the appellant's membership of a particular social group. It may be that the appellant was approached because he was a security guard working in a large hotel. It does not follow that the appellant is now being persecuted because he is a security guard and that security guards can properly be categorised as a particular social group. The appellant is being persecuted because on his account he is an honest law-abiding person who would not join the Russian mafia. It is not because he is a member of a particular social group.

"In these circumstances, the appellant does not demonstrate a reasonable likelihood of persecution for a Convention reason. A return of the appellant to Russia would not be a breach of the Convention and the decision of the Secretary of State dated 12 May 1994 is in accordance with the law and the immigration rules."

12. He appealed to the Immigration Appeal Tribunal. Professor Jackson was the chairman on this occasion. He had this to say beginning on page 12 of the tribunal's determination:

"In our opinion given the general documentary evidence together with the adjudicator 's belief in the appellant's story there must be a serious possibility that the appellant would not be protected by the police or government authorities from harm by the mafia were he to return to Russia ..... Mr Jorro"

who was appearing for Mr Savchenkov,

"put his arguments in regard to this aspect of the case on two grounds - first, as a security guard working at a hotel, and secondly (and primarily), on the appellant as a person who had been approached by the mafia to join them and had refused.

"We think Mr Jorro was wise not to place a great deal of emphasis on the creation of a social group on the basis of the appellant's occupation as a security guard. We cannot believe that any such group would be recognised in Russian society as having any identity. It reflects an occupation which could be changed and, more, there is no evidence that any injurious action being threatened because of the appellant's occupation as a guard. While that occupation may have led to the approach by the mafia, it cannot be said that the occupation of itself is the foundation of any injurious action."

13. However, at page 15 of the determination the tribunal continued:

"We accept, as Mr Thursby argued,"

for the Home Office,

" ..... that indiscriminate violence and general instability could not of themselves provide a Convention reason for persecution. In this case, however, the evidence shows that

(i) the mafia is an organisation which reaches into many parts of Russian society and aims to have and has a destabilising effect on that society

(ii) the mafia has powers to affect and harm an individual should it choose so to do

(iii) the mafia made a number of approaches to the appellant to join

(iv) threats of serious harm were made to the appellant because of his refusal to join.

It seems to us that these elements create a 'social group' identifiable as such precisely because of the existence of the mafia."

14. I cannot resist pointing out that those four characteristics seem to be characteristics of the mafia rather than of the appellant because, indeed, what it says here would seem to make a better case for the mafia being a social group.
15. The tribunal continued on the following page:

"In our view, given the evidence of the existence and insidious power of the mafia, individuals which the mafia seeks to recruit and who refuse do form a social group. They are identified by the approach and refusal and clearly are of considerable social benefit in refusing to participate in an organisation striking at the heart of the society in which it operates. So, independently of any threat of persecution we see the group as identifying and identified by an important recognisable social attribute. Whether or not the group is liable to persecution is then a question of evidence.

"An alternative approach, (again dependent on the evidence) is that the liability to persecution is part of the identifying characteristic .....

"In this case, however, we tend to the former view - that the refusal to join the mafia when approached creates the group. Whichever approach is adopted on the evidence accepted the appellant's case is made."

16. The tribunal subsequently granted leave in respect of this matter.
17. Did the tribunal err in law in holding that on the evidence, and in the context of Russian society, persons approached by the mafia to join that organisation and refusing so to do are to be identified as a social group, the characteristic being one of historic immutability? Mr Pannick appearing for the Secretary of State said that Article 1(A)2 of the Convention should be interpreted by reference to the following four principles. Before I read them it is well to bear in mind when reading them that Mr Blake for the respondent specifically said - to make it clear - that he does not quarrel with any one of those four. They are:

(1) The Convention does not entitle a person to asylum whenever he fears persecution if returned to his own country. Had the Convention so intended, it could and would have said so. Instead, asylum was confined to those who could show a well-founded fear of persecution on one of a number of specific grounds, set out in Article 1A(2);

(2) To give the phrase "membership of a particular social group" too broad an interpretation would conflict with the object identified in (1) above;

(3) The other "Convention reasons" (race, religion, nationality and political opinion) reflect a civil or political status. "Membership of a particular social group" should be interpreted ejusdem generic.

(4) The concept of a "particular social group" must have been intended to apply to social groups which exist independently of persecution. Otherwise the limited scope of the Convention would be defeated: there would be a social group, and so a right to asylum, whenever a number of persons fear persecution for a reason common to them."

18. The Secretary of State submits that the Immigration Appeal Tribunal erred in law because those who refused to join the mafia in Russia do not fall into a particular social group for the purposes of the Convention. The Secretary of State submits, we were told by Mr Pannick, that the concept of membership of a particular social group covers persecution in three types of case: (1) membership of a group defined by some innate or unchangeable characteristic of its members analogous to race, religion, nationality or political opinion, for example, their sex, linguistic background, tribe, family or class; (2) membership of a cohesive, homogenous group whose members are in a close voluntary association for reasons which are fundamental to their rights, for example, a trade union activist; (3) former membership of a group covered by (2).
19. For the respondent Mr Blake took us to various academic views and particularly - the most recent in 1991 - the views of James Hathaway in his book The Law of Refugee Status. Mr Blake says that Mr Hathaway takes the middle ground. He cited this phrase from Mr Hathaway's work:

" ..... a 'particular social group' must be definable by reference to a shared characteristic of its members which 'is fundamental to their identity'."

20. Mr Blake continued in his skeleton argument:

"Hathaway is firmly of the view that gender based groups fall within the definition of social group - as do those based on sexual orientation and family affiliation. Class or caste can found the basis of a social group. Hathaway recognises that groups based on voluntary association are the most contentious."

21. Turning to the United States and Canadian authorities, Mr Blake makes mention of a United States' case called Sanchez-Trujillo and I quote one passage in the judgment of Circuit Judge Beezer:

" ..... the phrase 'particular social group' implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest."

22. Mr Blake looked next at the Canadian case of Canada (Attorney General) v Ward [1993] 2 RCS 689. That is a case on which Mr Pannick also placed reliance. It is of importance so I shall look at it in a little more detail. The short facts were that in order to protect his family, namely from the IRA, the applicant voluntarily joined the INLA, a para-military terrorist group. He was detailed to guard innocent hostages but he secured their escape when he learned they were to be executed. This was for reasons of conscience. The INLA who suspected him confined and tortured him and sentenced him to death following a court martial by a "kangaroo" court. He escaped from the INLA and arrived in Toronto where he sought admission to Canada as a visitor. He became the subject of an inquiry. He claimed refugee status, citing the fear of persecution because of his membership of a particular social group, namely the INLA. The Immigration Appeal Board found him to be a Convention refugee, but the Federal Court of Appeal set aside the decision and referred the matter back to the Board for reconsideration. An important passage in the case is to be found in the judgment of Judge La Forest at page 739 of the report. It reads:

"The meaning assigned to a 'particular social group' in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, Cheung and Matter of Acosta, supra, provide a good working rule to achieve this result. They identify three possible categories:

(1) groups defined by an innate or unchangeable characteristic;

(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and

(3) groups associated by a former voluntary status, unalterable due to historical permanence."

23. The headnote sums it up. The court went on to hold:

"[The] Appellant did not meet the definition of 'Convention refugee' with respect to his fear of persecution at the hands of the INLA upon his return to Northern Ireland. The group of INLA members is not a 'particular social group'. Its membership is neither characterized by an innate characteristic nor is it an unchangeable historical fact. Its objective of obtaining specific political goals by any means, including violence, cannot be said to be so fundamental to the human dignity of its members that it constitutes a 'particular social group'. In any event, the appellant's fear was not based on his membership. Rather, he felt threatened because of what he did as an individual. His membership in the INLA placed him in the circumstances that led to his fear, but the fear itself was based on his action, not on his affiliation."

24. Mr Blake submits:

"The Respondent submits that no single test or authority is determinative of the meaning of social group. Notwithstanding that a purposive and liberal construction is to be given to an international treaty designed to provide protection from persecution, the category of social group cannot be so broadly interpreted so as to render meaningless the other categories relating to the reasons for protection.

25. However, he further submits that -

"In the instant case the social group could fall into either the second or third of La Forest's J three categories."

26. That is a point which I find very hard to accept. I cannot see on what basis it can be said that the group to which the Immigration Appeal Tribunal see the respondent as belonging is one whose members voluntarily associate, or one associated by a former voluntary status. There is here no evidence that the respondent ever associated with other members of the alleged group. That group as far as we know has not associated, they do not meet, they do not know of the existence of the other alleged members. Those threatened by the mafia in Russia, no doubt, have a multitude of different interests and characteristics. I am comforted in that reaction by a decision of the Federal Court of Australia. That is the case of Morato v Minister for Immigration Local Government and Ethnic Affairs (1992) 106 ALR 367. We have in the bundle a copy of the report from the Australian Law Reports, the decision being one on 2nd March 1992. The only relevant facts are these:

" ..... M applied for refugee status claiming that he faced persecution in Bolivia by virtue of his being 'a member of a particular social group', that being a group of persons who not only have provided information to the police but who have been prepared to give evidence, and have given evidence, in support of the police."

27. It was held, dismissing the application:

"The concept of 'membership of a particular social group' involves the idea of a group of people who can demonstrate cohesiveness and homogeneity. Here, there was no suggestion that M was other than an individual who has informed on a member of a particular family and no suggestion that he is a member of a group of people who share similar characteristics."

28. In fact, the particular social group for which the Respondent contended before the IAT is defined by and has no existence independent of the persecution which he fears. If a group can have existence solely based on fear of being subjected to persecution, then any person who can establish that he would be persecuted for a reason other than race, religion, nationality or political opinion could automatically claim to be part of the social group and meet the requirements of Article 1. Had this interpretation been intended, the words "or any other reason" could have been substituted for the words "membership of a particular social group". In my judgment, the IAT view when boiled down amounts to saying that all law abiding citizens can form a social group. That could well be, and perhaps it is, the great majority of the population of Russia, that is to may, many many millions. Are they a social group as contemplated by the Convention? In my judgment, the answer is clearly in the negative. In a democratic society it is deemed to be the duty of all citizens to obey the law. How then can it be permissible to say that performing that duty puts one in a separate social position?
29. As to the cross appeal, this avers that the respondent is at risk of persecution because of his employment as a security guard. The adjudicator was against him on that point. The IAT thought his advocate before them wise not to put much weight on it. In my judgment, it cannot stand up to analysis. The respondent does not have a fear of persecution by the mafia because he is a security guard but because he refused their advances. Had he welcomed them he would not have been persecuted.
30. Mr Blake, however, has advanced what seems to me to be a new point. He says that the social group in question is not as the IAT have it "all those in Russia who resist the mafia" but the security guards at a particular hotel in St Petersburg where the respondent works. An affidavit from his solicitor tells us that the security guards at that hotel were carefully selected and rigorously trained and, although an identifiable group, one of their characteristics being that they could lawfully carry guns. That, he said, made them attractive to the mafia. There were thirty of these guards. No doubt, the respondent associated with them. There was also evidence before the adjudicator and the tribunal that one of them called Piotor Yashin had also been approached by gangsters. There had been a fight between him and the gangsters at the hotel and he had detained one of them and handed him over to the police. Soon afterwards Yashin was stabbed to death. More than this we do not know. Mr Blake, if I understood him aright - and this argument did seem to be an afterthought, not anticipated in the skeleton - submits that the characteristics of this social group are (1) they work in that particular hotel as security guards; (2) they were approached by the mafia; (3) they refused the mafia's blandishments; and (4) they were persecuted. We do not know this about the other twenty-eight. We do not know if they were approached or if they refused or if they were persecuted. For all we know, they may have welcomed the mafia's approaches and be working for them. This point is much narrower than the point on which the IAT decided the case. I see no support for it on the evidence before the adjudicator or the tribunal. Furthermore, I ask myself where does it stand in relation to Mr Pannick's fourth point which, as I pointed out, was accepted by Mr Blake. I remind myself of its contents:

"The concept of a 'particular social group' must have been intended to apply to social groups which exist independently of persecution. Otherwise the limited scope of the Convention would be defeated: there would be a social group, and so a right to asylum, whenever a number of persons fear persecution for a reason common to them."

31. The short answer, in my judgment, is that this new point is inconsistent with Mr Pannick's fourth point. I would therefore reject this point along with the two which I considered earlier.
32. Accordingly, I would allow the appeal and restore the decision of the special adjudicator that the respondent is not entitled to asylum.
33. I think, however, it is only fair to both sides to add to this judgment the following passage from Mr Pannick's skeleton argument:

"The Secretary of State reminds the Court that the Convention deals with those to whom the Secretary of State is legally obliged to grant asylum. A person who is refused asylum in the United Kingdom is not necessarily refused permission to remain on some other basis. The Secretary of State has a discretion to grant exceptional leave to remain to a person . who fears ill-treatment abroad but for a non-Convention reason. The exercise of that discretion is subject to judicial review. In the present case the Secretary of State has recently reviewed the circumstances of the Respondent's case and has decided to grant him exceptional leave to remain in the United Kingdom for one year."

34. LORD JUSTICE EVANS: I agree. My Lord has read paragraph 8 (4) from the skeleton argument of Mr Pannick QC for the Secretary of State and noted that its terms were broadly accepted by Mr Blake QC for the applicant. I would hold that the group must be one which exists and can be identified independently of the risk of persecution upon which the applicant relies. In my judgment, the present application depends upon the meaning not only of the words "particular social group" but of the full phrase found in Article 1A (2) of the Convention, that is to say, the fear of being persecuted by reason of membership of what can be identified as a particular social group. The appeal tribunal held that a relevant group does exist consisting of those who have been approached by the mafia and refused their demands. I agree with my Lord that such individuals as come within this definition from the whole of Russian society cannot be regarded as a particular social group within the Convention.
35. The alternative ground put forward by way of cross appeal is based upon the submission that the relevant group consists of the body of security guards who have been specially trained to provide security for hotels in St Petersburg as a kind of organised force. This submission was rejected by the appeal tribunal. It seems to me that the highest at which the submission could be put is by suggesting this body of men form a relevant group, all of whom are liable to persecution; not to the risk of violence but because they are liable to be approached and given the choice of becoming either a party to criminal conduct or a victim of violence that might cause injury or death. However, there are no findings to support this argument in the present case and even if the affidavit read to us, although not referred to by the appeal tribunal, was taken into account the necessary finding would not be justified. It is necessary that the risk of persecution should arise by reason of the applicant's membership of the group. The applicant is at risk of violence because of his refusal to comply with demands made upon him. His membership of the security guards, even if that is capable of being called a particular social group, is the reason why he was in that situation. The risk of persecution relied upon arises from his own acts. Viewed in this light, the case comes close D to the second ground of decision in the Ward case before the Supreme Court of Canada to which reference has already been made. If this submission is limited to guards like Mr Blake's client who are employed at this hotel, it is impossible to regard those individuals as a particular social group.
36. I therefore agree that the cross appeal should be dismissed.
37. I am glad to note that the Secretary of State has already considered the case on humanitarian grounds. If the facts as we have been told them are correct, I, for my part, hope that he will continue to take the same attitude as he does at present.
38. LORD JUSTICE PILL: The appeal turns upon the meaning of the expression "membership of a particular social group" in Article lA (2) of the Geneva Convention. Mr Blake for the respondent sought to identify as a particular social group the highly trained security guards at the particular hotel in St Petersburg where the respondent works. I regard that argument as having been rejected by the immigration appeal tribunal on the evidence and rightly so in my judgment. The tribunal sought to identify, as a particular social group in Russia, individuals whom "the mafia seeks to recruit and who refuse". The refusal which is of course commendable and courageous identified the group by "an important and recognisable social attitude, the refusal to join the mafia when approached." Mr Blake put it in this way:

"The essence of such group therefore is the refusal of those approached to join a criminal organisation because of their belief in democratic society governed by the rule of law."

39. It is not necessary to attempt a comprehensive definition of what constitutes membership of a particular social group. It is common ground that the expression should be interpreted ejusdem generis with the other Convention reasons, that is, race, religion, nationality and political opinion. I accept for present purposes that the respondent is not alone in St Petersburg in having refused to join the mafia. I agree with my Lord, Lord Justice McCowan that on the evidence in this case individuals who refuse to join the mafia in St Petersburg because they believe in the rule of law do not constitute or become members of a particular social group within the meaning of the Convention.
40. I do not consider that conclusion to be in any way inconsistent with and I consider it to be supported by the American and Commonwealth cases to which we have been referred. In Sanchez Trujillo v Immigration and Naturalisation Service (1985) the United States' Court of Appeal had to consider whether "the class of young, working class, urban males of military age" in E1 Salvador constituted a particular social group. It was stated that "Individuals falling within the parameters of this sweeping demographic division naturally manifest a plethora of different lifestyles, varying interests, diverse cultures, and contrary political leanings."
41. The court concluded:

"In In sum, such an all-encompassing grouping as the petitioners identify simply is not that type of cohesive, homogenous group for which we believe the term 'particular social group' was intended to apply."

42. In Morato v Minister for Immigration, Local Government and Ethnic Affairs [1992] 106 ALR 367 in the Federal Court of Australia Olney J considered the meaning of the expression at page 377. He concluded that what is meant is "a group of people who can be readily identified by reason of some shared social characteristic".
43. In Ward, to which my Lords have referred, the Supreme Court of Canada did contemplate that groups of human rights activists whose members voluntarily associate could, in some circumstances, constitute a group within the meaning of the Convention. But that, in my judgment, is far from holding that persons who each take a decision to refuse to join the mafia in St Petersburg thereby become members of and constitute a particular social group.
44. I agree that the appeal should be allowed and the cross appeal dismissed.

Order: Appeal allowed. Cross appeal dismissed. Legal aid taxation. Leave to appeal is refused.