England and Wales Court of Appeal (Civil Division) Decisions

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

LORD JUSTICE THORPE: The appellant comes from Columbia. In 1987 his stepfather's food stall was blown up by a drugs cartel after he had refused to trade for them. In 1991 his brother arrived here after suffering at the hands of the same cartel. In August 1992 the appellant and his cousin were attacked in the street by the gang. The appellants cousin was shot dead and the appellant suffered gunshot wounds. This is the essential history asserted by the appellant which, for the purposes of this appeal, is assumed to be capable of proof.

In October 1993 the appellant arrived in the United Kingdom and sought asylum. In December 1994 the Secretary of State refused his application. In April 1996 his appeal was dismissed by the Special Adjudicator, who rejected his evidence and that of his brother. In July 1996 the Immigration Appeal Tribunal accepted the submission that the Special Adjudicator's findings could not stand but dismissed the appeal on the ground that, even if the appellant established his factual case, it would not in law entitle him to asylum.

The legal issue in this appeal arises out of section 8 of the Asylum and Immigration Appeals Act 1993 and Article I of the Geneva Convention. Section 8(1) provides a right of appeal against refusal of leave to enter "on the ground that his removal in consequence of the refusal would be contrary to the UK's obligations under the Convention". Article 1A(2) defines a refugee as a person who "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".

The first question that arises on this appeal is whether membership of a particular family is capable of falling within the category 'of a particular social group'. The Immigration Appeals Tribunal decided that question in the appellant's favour citing the decision of this court in Secretary of State v Savchenkov [1996] Imm AR 28 and particularly the judgment of McCowan LJ. That conclusion has not been challenged by the Secretary of State.

The second question is whether in order to qualify for Convention protection by virtue of membership of a family the applicant must show that other members of the family are persecuted for a Convention reason.

The Immigration Appeal Tribunal answered that question in the affirmative against the appellant. The Tribunal accepted the submission of the Secretary of State that it would be anomalous if the appellant's stepfather, the first victim of the persecution, could not claim Convention protection but the appellant, as a later victim., could invoke Convention protection simply by virtue of his relationship to the first victim. The reasoning of the Tribunal appears at page 7 of their judgment: "Further we agree with Ms Webber that it would be possible for a family as such to be a social group if that family was being persecuted as a family and because of membership of that family. That would be directly analogous to the cases based on clan membership such as occur in the case of Somali nationals.

However in this case the Martinez family is not being persecuted because of being the Martinez family. The persecution is directly linked to the actions of the stepfather and his refusal to join the Mafia. The only interest in any of the Martinez family is because of that act., That being so we agree with Mrs Sargent that it would be absurd that a member of a family of a person threatened would be within the ambit of the Convention when the person threatened would fall outside the Convention. Where a claim is made therefore as a member of the family it is critical to identify the root of the threat and to decide whether that root is the family itself or a particular member of the family. In the latter case any Convention foundation for the claim must be ancillary to and dependant on that of the person threatened. The fact that a member of the family cannot leave that family does not of itself create a social group - the inability to change a characteristic may be an essential element of a social group but it does not of itself create one.

It will be apparent that, with respect, we are taking a rather different approach to that of the Tribunal in Hernandez in that we take as critical the reason for the persecution of the family member. In this case the reason was nothing to do with the family as such but was based on the particular actions of another member of the family. It follows that in our view that even if the appellants evidence be accepted entirely he has no claim to asylum for any persecution there may be would not be for Convention reason.

The Tribunal's decision was notified on 16th July. On 19th July Laws J expressed the contrary view obiter in Ex Parte de Melo. At page 8 of the judgment he defined the questions thus: "In my judgment where an asylum claim is advanced on grounds of membership of a particular social group, two questions arise. The first is whether the applicant is a member of a particular social group; and this question falls to be decided irrespective of any persecution, actual or alleged, which figures in the case; Savchenkov. The second question, if the first be answered in the claimant's favour, is whether he has in the words of the convention a well founded fear of being persecuted 'for reasons of ...... membership' of that particular social group."

Having said that membership of a family is, in the ordinary way, plainly membership of a particular social group, Laws J turned to the second question: "It is necessary next to examine the second question; is the alleged or actual persecution 'for reasons of ....... membership of a particular social group?' Mr Kovats submits as follows. Where an individual is persecuted for a non-convention reason, concurrent or subsequent threats (or presumably, acts) against his family likewise cannot be regarded as persecution for a Convention reason. If it were otherwise, the person initially ill-treated - here, the father - would have no claim to asylum under the 1951 Convention, and so it would be anomalous were the members of his family, persecuted or ill-treated simply because of their association with him, to be accorded Convention rights.

I do not consider that this argument is correct. Let it be assumed that an individual has been ill treated or terrorised for a reason having nothing to do with the Convention. He has no Convention rights. But on the view I have taken, his family may form a particular social group within the meaning of the Convention. If then they are persecuted because of their connection with him, it is, as a matter of ordinary language and logic, for reasons of, their membership of the family - the group - that they are persecuted. I see nothing anomalous in this. The original evil which gives rise to persecution against an individual is one thing; if it is then transferred so that a family is persecuted, on the face of it that will come within the Convention. The definition of 'refugee' in Art 1 of the Convention treats membership of a particular social group as being in pari materia with the other 'Convention reasons' for persecution; race, religion, and so forth. Mr Kovats argument implies, however, that membership of a particular social group is (at least on some sets of facts) to be regarded as merely adjectival to or parasitic upon the other reasons. With deference to him, that in my judgment amounts to a misconstruction of Art 1 with the consequence that his submission proceeds on a false premise. Moreover I am inclined to think that the argument accords the persecutor's motive a status not warranted by the Convention's words. The motive may be to terrorise the person against whom the persecutor entertains ill will ( for a 'non-Convention' reason) by getting at his family; but when it comes to the question whether the family are persecuted by reason of their membership of a particular social group - the family - I do not see that the persecutor's motive has any relevance.

The reasoning is in my view consistent with the decision of the Court of Appeal in Savchenkov, because the ratio decidendi in that case is found in the proposition that the social group asserted must exist independently of the fact of persecution. Where family members are, as such, terrorised or ill-treated, subject to factual questions about who the members are, this requirement will on the face of it be made out."

The judgment in de Melo resulted in the Immigration Appeals Tribunal on 8th August granting the appellant leave to appeal to this court. The determination says succinctly: "In the light of the judgment of Laws J in R v Immigration Appeals Tribunal Ex Parte de Melo leave to appeal is granted."

In this court the essential argument for the appellant is that he would not be persecuted but for his membership of the Martinez family. That entitles him to Geneva Convention protection under the particular social group category. It is irrelevant that his stepfather would not so qualify. Miss Webber of course relies upon the reasoning of Laws J in de Melo.

The Secretary of State supports the Tribunal's conclusion on two grounds. First Mr Tam submits that mere membership of the Martinez family is not enough. There must be an additional element. The persecution must be of a classic Convention character, that is to say relating to race, religion, nationality, or political opinion. In Savchenkov it was agreed between counsel that the phrase 'social group' should be interpreted according to four stated principles. Those four principles were adopted by the court. The third principle is thus stated: 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 generis."

In the present appeal Mr Tam submits that there is no reflection of a civil or political status in the appellant's membership of the Martinez family - the particular social group relied upon.

Secondly Mr Tam submits that there is no causative link between the persecution and the membership of the particular social group relied upon. The appellant's persecution was the consequence of his stepfather's refusal to co-operate and the cartel's punitive reaction.

In reply Miss Webber relies upon the decision of Sedley J in the case of Ex Parte Syeda Shah (unreported 25 October 1996) in which he doubts that the third agreed principle in Savchenkov should be treated as definitive and emphasises the difficulties of identifying a civil or political status in some historic instances of persecution. She accepts that there is no reflection of political or civil status in the present case but submits that the principle in Savchenkov is no more than a useful guide and not a procrustean bed. As to causation she submits that the court should apply the 'but for' test borrowed from the field of causation in tort. On that test she submits that the appellant plainly would not have been persecuted but for his membership of the Martinez family.

Mr Tam in rejoinder suggests that Sedley J went too far in his criticism of the Savchenkov propositions. He says the Secretary of State seeks to appeal that judgment.

My conclusions are that this appeal fails. First the application of the Savchenkov principles to the interpretation of particular social group results in a sensible construction of the Article. The concept of civil or political status is apparently derived from Professor Hathaway's work, The Law of Refugee Status, and from Canadian authority. Although it may not strictly be the product of the ejusdem generis rule it is in my judgment a sensible and necessary addition in order to determine whether a social group is particular for the purposes of Article 1. Where the agent of persecution is the State that necessary element will readily be found. Where the only persecution is criminal activity then the ingredient will be hard to demonstrate. That is consistent with the objectives of the Convention. The victim of crime ordinarily looks internally to the State for protection. Of course if the State colludes with crime then the State becomes itself the agent of persecution. Second I conclude that the persecution arises not because the appellant is a member of the Martinez family but because of his stepfather's no doubt laudable refusal to do business with the cartel. The persecution has that plain origin and the cartel's subsequent decision to take punitive action against an individual related by marriage is fortuitous and incidental as would have been a decision to take punitive action against the stepfather's partners and their employees had the business been of that dimension.

For these reasons I would dismiss this appeal.

MR. JUSTICE MORRITT: The circumstances in which this appeal arises and the issues for determination have been described and explained by Thorpe LJ. I gratefully adopt his account of them. I agree with him that this appeal should be dismissed. I add a few words of my own because my reasons for dismissing the appeal are not quite the same as his.

The question is whether the Applicant is a refugee within the meaning of that word in the Geneva Convention, namely a person who "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".

I agree that the family is a "social group" within the meaning of those words in the definition I have quoted. Accordingly it is capable of being a "particular" social group within that definition. But the first argument for the Secretary of State suggests that to be a "particular social group" it is necessary that the social group should be distinguished from the generality of such groups by reason of some particular civil or political status stemming from reasons of race, religion, nationality and political opinion. This submission is based on the judgments of this court in Savchenkov and the third of the four principles there referred to which Thorpe LJ has already quoted.

If the application of that principle in the manner suggested is part of the ratio decidendi of that case then we are bound by it. But I do not think that it is. The principles were not in dispute. They were propounded by counsel for the Secretary of State and counsel for the respondent did not quarrel with them. But no member of the Court specifically adopted the third principle so as to require for the recognition of a particular social group the possession of a particular civil or political status. I do not think that the acceptance of such a requirement is necessarily implicit in the court's conclusion either.

Of course a particular social group will often have a particular civil or political status but I do not think that that is a necessary condition for making the social group particular for the purposes of the definition. Such a requirement is not to be found in the express terms of the definition. Nor, in my view, is such a requirement necessarily to be implied even if, as was common ground, that which makes the social group particular must be of the same nature as the classical Convention reasons of race, religion, nationality or political opinion. To add the requirement of some distinguishing civil or political status would narrow the types of persecuted minority capable of being recognised as entitled to asylum without, in my view, sufficient justification.

However the fear of persecution must be "for reasons of .... membership of a particular social group.." It is plain that the fear of the Applicant, which is to be assumed, is the consequence of the refusal of his step-father to comply with the illegal demands of the drugs cartel in Colombia and the determination of the drugs cartel to take revenge on those they considered to be related to him. It is true that each member of the social group apart from the step-father, is likely to have the same fear and for the same reason. But the fear of each member of the group is not derived from or a consequence of their relationship with each other or their membership of the group but because of their relationship, actual or as perceived by the drugs cartel, with the step-father of the Applicant. The step-father was not persecuted for any convention reason so that their individual relationship with him cannot cause a fear for a convention reason either. In short the assumed fear of the Applicant is not caused by his membership of a particular social group.

It follows that I agree with the views of the Immigration Appeal Tribunal quoted by Thorpe LJ and would dismiss this appeal.

MR. JUSTICE ROCH:

I agree. I add a short statement of my reasons for dismissing this appeal in deference to the arguments advanced by Ms Webber on behalf of the appellant and because we are differing from views expressed by Laws J and, possibly, Sedley J.

Article 1A (2) of the Geneva Convention relating to the status of refugees, 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 ......."

Where, as in this case, the ground relied upon by the applicant for refugee status is "a well founded fear of being persecuted for membership of a particular social group" the persecution feared must be persecution of the social group as a social group. A family is a social group. For the family to become "a particular social group" within the meaning of the convention, it must, in my judgment, be a family which is being persecuted or or likely to be persecuted because it is that family. In that situation membership of that family will entitle a claimant for refugee status to political asylum. The use of the word "particular" before the phrase "social group" is of great importance, in my opinion.

A good example of such a family in times past would have been the Bourbon family in France during the time of the French Revolution.

The anomaly that would arise in the present case, were the arguments of the appellant's counsel to be correct, that the appellant's step-father would not be entitled to claim political asylum under the convention, whereas all other members of the family would be entitled to political asylum, is merely an indicator that this family is not "a social group" liable to persecution because it is "a particular social group". The other members of the family are being persecuted because they are related to the step-father who has offended the drug cartel, who have decided to retaliate against the step-father by persecuting him and members of his family. Who will constitute part of the family or social group is entirely the decision of the drug cartel. It may include those living in the step-father's house who are not related to him by blood or marriage. These considerations underline, in my opinion the fact that in the circumstances of this case the Martinez family is not "a particular social group".

I would subscribe to the third principle identified by counsel in the case of Savchenkov -v- Secretary of State for the Home Department [1996] IAR 28 according to which the phrase "social group" should be interpreted, provided that it is accepted that there may be other "convention reasons" in addition to race, religion, nationality and political opinion which can cloth a social group with "a civil or political status" which may emerge in the future by the application of the "ejusdem generis" rule. In this appeal, it is not necessary to decide this issue.

I too agree with the decision of the Immigration Appeal Tribunal and this Appeal will be dismissed