England and Wales High Court (Administrative Court) Decisions

1. MISS K SMITH (Instructed by The Treasury Solicitor, SW1H 9JS) appeared on behalf of the Respondent

2. MR JUSTICE LAWS: These applications for judicial review are brought by two sisters. Each seeks to challenge the refusal of the Immigration Appeal Tribunal to grant leave to appeal against the special adjudicator's decision in her case. The same Adjudicator dismissed the applicants' appeals against the Secretary of State's refusal of asylum to both of them. The decisions of the Tribunal simply uphold those of the Adjudicator in short form, so that the judicial review proceedings have been directed to the findings and reasoning of the Adjudicator.

3. The applicants are Brazilian nationals. They arrived together in the UK on 1st June 1994 and claimed asylum. Essentially the cases of both on the facts were the same. Their father was a farmer in Brazil. In 1991 a drug trafficker, said to be a man called Jabas Rabelo, had approached the father to get him to grow drugs on his farm, and another member of the family to peddle them. They would have nothing to do with it. At this time the applicants were living in Rio de Janeiro, which is a great distance from the father's farm in Recefa. Later, the father, who by then had also come to Rio, was shot at (though I think not injured) in his car. After that he and the applicants' mother went to Argentina. Other members of the family came to the UK and claimed asylum. The applicants remained in Brazil - in Rio. In 1992 two of the applicants' cousins (or, I think, their brother-in-law's cousins) were shot dead by persons unknown. Still the applicants remained in Rio. In about April 1994 one of the sisters, Claudette, began to receive anonymous phone calls asking about the family's whereabouts. The next month the applicants said that there had been a kidnap attempt upon Claudette's daughter on her way to school.

4. These primary facts were in essence accepted by the Special Adjudicator, who heard a great deal of evidence which she meticulously recorded in her Determinations. However there were two further factual issues which she had to decide, and also an issue of law which is of some importance in relation to the judicial supervision of decisions taken, like those here subject to review, under the 1951 Geneva Convention. The first factual issue was whether the incidents which had happened, in particular the attack on the father and the murder of the cousins, were connected: that is, whether they were all part of a campaign by the drug trafficker or his associates to terrorise members of the family because of the father's initial refusal to grow drugs on his farm. The applicants said that the events were connected and amounted to persecution within the Convention. That assertion engages the point of law which the Adjudicator had to decide, to which I will come in a moment. The second factual issue was whether the applicants could look to the authorities in Brazil for protection from any threats from drug traffickers; since the form of persecution relied on by the applicants was not on any view put in hand by the State authorities, but by criminals, there could be no case for asylum under the Convention if the applicants were able to look to the State to protect them.

5. On the two factual points the Adjudicator's reasoning was of course the same in both Determinations, the points themselves being identical. I may take it from page 25 in the Determination of Claudette's appeal:

6. In order to establish a claim to asylum under the 1951 Convention, the appellants of course had to show (a) that they feared that they would be persecuted for a Convention reason if they were returned to Brazil, and (b) that the fear was well founded. I need not for the purposes of this judgment discuss the well-known learning relating to the standard of proof applicable to these questions. The applicants' case as to (b) depended on the two propositions, first, that they could not avail themselves of protection from the Brazilian authorities against the drug traffickers' threats, and, secondly, that the events which they described were indeed connected. Unless the first proposition were true they had no Convention complaint given that the persecution alleged had not been inflicted by authorities of the State. Unless the second proposition were true there was no basis on which it was or could be asserted that any fear they entertained of future persecution for a Convention reason was well founded. As I understood it, Mr Richmond for the applicants did not dispute any of this logic. It follows that he faces a grave difficulty on the facts: in the passage from the Determination which I have cited, the Adjudicator rejected both factual propositions necessary to the establishment of the applicants' case. Mr Richmond did not before me suggest that the findings of the Adjudicator could be assaulted on Wednesbury grounds. Indeed, as the argument proceeded he accepted with commendable candour that they presented him with an insuperable difficulty. He conceded in effect that the Adjudicator was entitled to arrive at the findings in question, and that they were fatal to the judicial review applications.

7. I have considered whether this concession was rightly made, having regard to the special care which it is the duty of the courts to take in asylum cases. I have looked through the voluminous Determinations of the Adjudicator. I will not set out more of her findings of fact in this judgment. It is enough to say that, as it seems to me, the Adjudicator was entitled to arrive at the conclusions which she reached on the evidence. Mr Richmond was quite right to accept that that was so. The result is that, irrespective of the point of law which arose and which I will articulate in a moment, these applications are bound to fail.

8. The point of law was as follows. Article 1 of the 1951 Geneva Convention defines the term "refugee" as any person who:

9. It was asserted on the applicants' behalf that they were entitled to the Convention's protection as members of "a particular social group". It was put in two ways. First, it was said that the applicants belonged to the farming community "whose members have been persecuted for resisting drug racketeers' demands to grow and traffic drugs". Secondly, it was said that they belonged to a "family unit whose members have been persecuted for resisting drug racketeers' demands to grow and traffic drugs." Other points were put before the Adjudicator, relating to the applicants' religion and political beliefs, but no argument has been advanced to me based on those dimensions in the case.

10. At pages 24-25 of her Determination in the case of the applicant Claudette, the Adjudicator said:

11. The legal issue to which I referred earlier concerns the question what is meant by the words in the Convention "persecuted for reasons of ... membership of a particular social group ...". More concretely, where it is shown that A (here, the applicants' father) has been ill treated for a reason having nothing to do with the Geneva Convention, can it be said that concurrent or subsequent ill treatment of members of his family, or his "community", inflicted as indirect reprisals or pressure upon A, amounts to persecution by reason of membership of a particular social group?

12. What I have said about the facts, as I have indicated, concludes these applications on their merits against the applicants. I have therefore entertained considerable doubt whether it would be profitable for me to enter into the question whether the Adjudicator was right, as a matter of law, in holding that the applicants did not belong to a "particular social group". Whatever I said would be obiter. However counsel indicated that it would be helpful if I were to express a reasoned view: I understand that actual or putative "social group" cases are coming more frequently before the appellate authorities. Moreover, there is a decision of the Tribunal, Hernandez (75256), which Mr Kovats for the Secretary of State submits is inconsistent with Court of Appeal authority to be found in Savchenkov [1996] IAR 28, to which the Adjudicator referred.

13. With diffidence I have come to the view that there might be some utility in my expressing my views on the legal issue. I will do so as shortly as I can. In Savchenkov the facts were very different from those of the present case. The asylum-seeker had been one of a number of security guards at a hotel in Russia; he had been approached by the mafia who desired him to act as an informer; he refused, was harassed, physically assaulted and threatened with death. When his case went to the Tribunal, it concluded that he was a member of a social group within the Convention and allowed his appeal. As the headnote shows, the Court of Appeal "considered the principles by reference to which the term 'social group' in the Convention should be interpreted". Leading counsel for the Secretary of State advanced four propositions by reference to which she said the definition of "refugee" in the Convention should be interpreted; and leading counsel for the asylum-seeker did not dissent. Though it is not I think patently expressed, it seems that the Court of Appeal accepted these propositions. They were:

14. The Court plainly endorsed and accepted this fourth proposition (see, for example, page 38). McCowan LJ said this at 36-37:

15. Thus Savchenkov clearly establishes the proposition that for the purposes of the Convention any "social group" relied on must exist independently of the fear of persecution: see also per Evans LJ at 38.

16. Hernandez was an appeal to the Tribunal by the Secretary of State. The asylum-seeker's husband had been killed. Her case was that the mafia, having been responsible for the killing, proceeded to make threats of death against her. As in the present case, there was seemingly a drugs background. It was submitted to the Tribunal that the asylum-seeker (respondent to the appeal) had a well-founded fear of persecution by reason of her membership of a particular social group, namely the family to which she belonged with her husband. The Tribunal said (at page 7):

17. The Secretary of State's appeal to the Tribunal, which also considered other grounds, was dismissed. The Tribunal had before it the decision of the Court of Appeal in Savchenkov.

18. 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. It is of the first importance that these questions be kept separate. Otherwise, as McCowan LJ in Savchenkov said at page 37:

19. It seems to me that membership of a family is, in the ordinary way, plainly membership of a particular social group. It is of interest to note that in Savchenkov that seems to have been accepted by the Secretary of State. At page 34 of the report the Secretary of State's submissions were recorded by the learned Lord Justice to the effect that:

20. Of course, a question may arise on particular facts whether a person is or is not a member of a family, such as where there has been a divorce or a claim is made by a distant relative. The term "extended family" has become a familiar one in modern parlance. I should by no means be taken as indicating a view to the effect that any or every relationship which might be put forward would qualify the claimant as a family member.

21. The point in Savchenkov was that the social group alleged did not exist independently of the persecution alleged. But in Hernandez the asylum-seeker belonged to a social group - the family - which was independent of the persecution alleged. In the present case, there is no doubt but that the applicants belonged in a family with their father, and that was, in my view, a "particular social group". In my judgment there is nothing in Hernandez inconsistent with the Court of Appeal's reasoning in Savchenkov.

22. 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 understanding 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.

23. 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 a 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 Article 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 Article 1 with the consequence that his submission proceeds on a false premise. Moreover I incline to think that the argument accords to 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.

24. This 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.

25. For the reasons I have given, I take the view that the Adjudicator erred in holding that the applicants did not belong to a particular social group. I will not deal at any length with the argument that the farming community was itself a social group; Mr Richmond rightly accepted that in that regard he was on weaker ground. Whether a community said to be defined by reference to its members' occupation constitutes a particular social group will depend on the facts, which may vary enormously. Prima facie I doubt whether a common occupation will in practice very often give rise to the existence of a particular social group, though in special circumstances it may. In the present case I do not think that the Adjudicator can be criticised for declining to recognise the applicants as members of a social group on this ground.

26. However that may be, and notwithstanding the views I have expressed concerning membership of a family as a membership of a social group, the applicants' claim was as I have explained independently dismissed on the facts of the case. It follows that these applications for judicial review must also be dismissed.

27. Order: Application dismissed; legal aid taxation of applicants' costs