Secretary of State for the Home Department v Savchenkov

For the Convention ground of membership of a particular social group, the group must exist and be identifiable independently of the persecution feared. A group cannot be created merely because its members share a risk or have responded similarly to a persecutor. Individuals who refused mafia recruitment were not thereby a qualifying social group. Nor did the evidence establish that hotel security guards formed such a group, since the threats arose from individual refusal rather than group membership. The appeal was allowed, the cross-appeal dismissed, and the special adjudicator’s decision restored.

The respondent, a Russian citizen and hotel security guard, claimed asylum after alleged threats and violence by criminals who sought to recruit him. The special adjudicator accepted that the events and his fear might be genuine, but found no persecution for a Convention reason and no sufficient state involvement or tolerance.

The Immigration Appeal Tribunal held that persons approached by the mafia who refused to join it constituted a particular social group. The Secretary of State appealed. The respondent cross-appealed, arguing that specially trained security guards at his hotel formed the relevant group. The central issue was whether either formulation satisfied the Convention ground of membership of a particular social group.

Disposition. McCowan LJ gave the leading judgment. Evans LJ and Pill LJ agreed. The appeal was allowed, the cross-appeal was dismissed, and the special adjudicator’s decision was restored. Leave to appeal was refused and legal aid taxation was ordered.

1. Independent existence of the group. The phrase membership of a particular social group, read with the full Convention definition, requires a group which exists and can be identified independently of the risk of persecution relied upon. Otherwise any person fearing harm for a reason outside race, religion, nationality or political opinion could create a social group from that risk and circumvent the limited Convention grounds. The court accepted, for present purposes, that the phrase should be interpreted ejusdem generis with the other Convention reasons, but did not attempt a comprehensive definition.
2. Refusal of mafia recruitment. The Tribunal’s proposed group comprised persons approached by the mafia who refused to join. McCowan LJ held that this reduced to an excessively broad class, potentially including all law-abiding citizens, with no demonstrated association, cohesion or shared social identity. The refusal was the reason for the threats, rather than evidence of persecution because of membership of an existing group. The reasoning in Morato v Minister for Immigration, Local Government and Ethnic Affairs [1992] 106 ALR 367 and Sanchez Trujillo v Immigration and Naturalisation Service (1985) supported that conclusion.
3. Security-guard alternative. Employment as a security guard explained why the respondent was approached, but did not establish that the risk arose by reason of membership of that occupational group. There were no findings that the other guards had been approached, had refused recruitment or had been persecuted. Evans LJ treated the case as close to the reasoning in Canada (Attorney General) v Ward [1993] 2 RCS 689, where fear arose from individual conduct rather than affiliation.
4. Additional observation. McCowan LJ recorded that refusal of Convention asylum for a non-Convention reason does not necessarily prevent other permission to remain. The Secretary of State may grant exceptional leave to remain, subject to judicial review, and had granted it to the respondent for one year. This did not affect the appeal’s disposition.

• Court of Appeal (Civil Division). Allowed the Secretary of State’s appeal, dismissed the respondent’s cross-appeal, restored the special adjudicator’s decision, refused leave to appeal and ordered legal aid taxation.
• Immigration Appeal Tribunal. Held that persons approached by the mafia who refused to join it constituted a particular social group and granted leave to appeal.
• Special adjudicator. Accepted a reasonable likelihood of the respondent’s account and fear, but found no persecution for a Convention reason and dismissed the asylum appeal.