UK: Gender as a 'particular social group'
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WLUML networker A casenote on a recent House of Lords case on gender as a 'particular social group' under the 1951 Refugee Convention - including a striking dictum from Baroness Hale, the first female Law Lord.
House of Lords, Secretary for the Home Department v. K (FC), [2006] UKHL 46 (October 18, 2006).
At issue before the House of Lords was whether the appellants’ well-founded fear of being persecuted for membership in a “protected social group” entitles them to refugee status pursuant to Article 1(A)(2) of the 1951 Convention Relating to the Status of Refugees (the Convention) and the 1967 Protocol. The Convention defines a “refugee” as any 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, 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. . . .”
All of the Law Lords held that the appellants did fall within respective “particular social groups” and would allow appellants to appeal.
The first appellant is Iranian. After the arrest and disappearance of her husband in 2001, Revolutionary guards appeared at her home and insulted and raped her. She fled to the United Kingdom and claimed asylum. The Secretary of State denied her asylum claim and appellant appealed this decision to an adjudicator who held that she had a well-founded fear of persecution. The Secretary of State appealed this determination to an Immigration Appeal Tribunal that held that because the appellant’s husband had not been persecuted for a Refugee Convention reason, the members of his family could not also be viewed as being so persecuted.
The second appellant is from Sierra Leone. She claimed asylum in March 2003, claiming that, if she returned to her home nation she would be subjected to female genital mutilation (FGM). The Secretary of State granted her limited leave to enter but denied her claim of asylum because he did not view girls at risk of FGM as a social group under the Refugee Convention. The second appellant appealed this determination to an Adjudicator, who held that the appellant’s fear to return to her home nation was because of her membership in a particular social group, that of young, single Sierra Leonean women at risk of FGM. The Secretary of State appealed this determination to an Immigration Appeal Tribunal and the decision was reversed. The second appellant then appealed the challenged the Immigration Tribunal’s decision.
In his opinion, the Lord Bingham of Cornhill noted that for refugees to obtain sanctuary under the Convention, they must fall within one of five categories:
While the Lords concurred in permitting both appellants to appeal, their analyses and definitions of “particular social group” differ slightly. Lord Bingham and Lord Rodger held that they would allow the first appellant’s appeal, finding that her membership in her husband’s family constituted a “particular social group,” for the purposes of the Convention. Lord Bingham and Baroness Hale would allow the second appellant’s appeal on the ground that she is a member of the particular group of uncircumcised women in Sierra Leone.
Baroness Hale added that “[t]he answer in each case was so blindingly obvious that it must be a mystery to some why either of them had to reach this House,” and she focused specifically upon the persecution the appellants faced because of their gender.
Lord Craighead would avoid defining the second appellant in terms of whether she is likely to be persecuted, and instead focus on second appellant’s status as an uninitiated woman in Sierra Leone. Lord Rodger would focus on both uninitiated and intact women forced to undergo FGM.
All of the Law Lords held that the appellants did fall within respective “particular social groups” and would allow appellants to appeal.
The first appellant is Iranian. After the arrest and disappearance of her husband in 2001, Revolutionary guards appeared at her home and insulted and raped her. She fled to the United Kingdom and claimed asylum. The Secretary of State denied her asylum claim and appellant appealed this decision to an adjudicator who held that she had a well-founded fear of persecution. The Secretary of State appealed this determination to an Immigration Appeal Tribunal that held that because the appellant’s husband had not been persecuted for a Refugee Convention reason, the members of his family could not also be viewed as being so persecuted.
The second appellant is from Sierra Leone. She claimed asylum in March 2003, claiming that, if she returned to her home nation she would be subjected to female genital mutilation (FGM). The Secretary of State granted her limited leave to enter but denied her claim of asylum because he did not view girls at risk of FGM as a social group under the Refugee Convention. The second appellant appealed this determination to an Adjudicator, who held that the appellant’s fear to return to her home nation was because of her membership in a particular social group, that of young, single Sierra Leonean women at risk of FGM. The Secretary of State appealed this determination to an Immigration Appeal Tribunal and the decision was reversed. The second appellant then appealed the challenged the Immigration Tribunal’s decision.
In his opinion, the Lord Bingham of Cornhill noted that for refugees to obtain sanctuary under the Convention, they must fall within one of five categories:
- race;
- religion;
- nationality;
- political opinion;
- particular social group.
While the Lords concurred in permitting both appellants to appeal, their analyses and definitions of “particular social group” differ slightly. Lord Bingham and Lord Rodger held that they would allow the first appellant’s appeal, finding that her membership in her husband’s family constituted a “particular social group,” for the purposes of the Convention. Lord Bingham and Baroness Hale would allow the second appellant’s appeal on the ground that she is a member of the particular group of uncircumcised women in Sierra Leone.
Baroness Hale added that “[t]he answer in each case was so blindingly obvious that it must be a mystery to some why either of them had to reach this House,” and she focused specifically upon the persecution the appellants faced because of their gender.
Lord Craighead would avoid defining the second appellant in terms of whether she is likely to be persecuted, and instead focus on second appellant’s status as an uninitiated woman in Sierra Leone. Lord Rodger would focus on both uninitiated and intact women forced to undergo FGM.
