Islam v. Secretary of State for the Home Department; Immigration Appeal Tribunal and Another, Ex parte Shah; R v.

The House considered the meaning of "membership of a particular social group" in article 1A(2) of the 1951 Convention Relating to the Status of Refugees and the application of s.8(2) of the Asylum and Immigration Appeals Act 1993. The majority rejected a requirement that a "particular social group" must display cohesiveness, co-operation or interdependence, endorsing instead an approach based on whether a group shares an immutable or fundamental characteristic in the sense of ejusdem generis (following the reasoning in In re Acosta).

The majority held that Pakistani women (or a more narrowly defined subgroup characterised by sex, perceived adultery and lack of state protection) can constitute a "particular social group" and that persecution tolerated or sanctioned by the state because of discriminatory treatment of that group will satisfy the causation requirement in article 1A(2). The court emphasised that the group must exist independently of the persecution (to avoid circularity) but that evidence of state-tolerated discrimination may show the requisite causal link.

Background and facts:

• The appeals concerned two Pakistani married women (Mrs Islam and Mrs Shah) who had been forced to leave their homes after violence by husbands and others and who feared return to Pakistan because of a risk of being accused of sexual immorality and of suffering severe punishments. Both sought refugee status under article 1A(2) of the 1951 Convention; each already had limited leave to remain and invoked s.8(2) of the Asylum and Immigration Appeals Act 1993 to appeal refusals to vary leave.

Procedural history:

• Each claim was considered by a special adjudicator and the Immigration Appeal Tribunal; decisions of the IAT were challenged to the Court of Appeal which dismissed the appeals (Reg v Immigration Appeal Tribunal, Ex parte Shah [1998] 1 W.L.R. 74). Sedley J. in Ex parte Shah [1997] Imm.A.R. 145 granted relief in respect of Mrs Shah. The cases came to the House of Lords by way of appeal.

Issues framed:

• Primarily whether the appellants were members of a "particular social group" within article 1A(2).
• Whether an additional legal requirement of cohesiveness was necessary for a social group.
• Whether the appellants' fear of persecution was "for reasons of" membership of the social group (the causation test — e.g. "but for" or effective cause).

Court's reasoning and determination:

• The majority (Lords Steyn, Hoffmann, Hope and Hutton on the narrower ground) rejected the Court of Appeal's imposition of an indispensible cohesiveness requirement, following the ejusdem generis reasoning in In re Acosta and related authority (Canada, Australia, New Zealand decisions cited).
• The House held that women in Pakistan, in a factual context where discrimination is tolerated and sanctioned by the state, may constitute a "particular social group"; alternatively a narrower subgroup characterised by sex, perceived adultery and lack of state protection would suffice.
• On causation the majority held that state-tolerated discrimination linking failure of protection to membership of the group demonstrates that persecution is "for reasons of" group membership; mechanistic application of a strict "but for" test is unnecessary and common-sense assessment of causation in context is required.
• The majority would allow the appeals: in Islam make a declaration under s.8(2) that removal would be contrary to United Kingdom obligations; in Shah remit the matter to the IAT. Lord Millett dissented, concluding the appellants had not proved persecution "for reasons of" membership of a particular social group.

Wider context:

• The majority stressed that discrimination alone does not automatically found refugee status; persecution requires serious harm plus failure of state protection, and each case depends on its evidence.

Appeal allowed (majority). The House rejected the Court of Appeal's imposition of an indispensable cohesiveness requirement for "particular social group" under article 1A(2) of the 1951 Convention. It held that women in Pakistan (or a narrowly defined subgroup characterised by sex, perceived adultery and lack of state protection) can constitute a "particular social group" and that persecution tolerated or sanctioned by the state because of such discrimination satisfies the causation requirement. A declaration under s.8(2) of the Asylum and Immigration Appeals Act 1993 was to be made in Islam and the Shah matter remitted to the Immigration Appeal Tribunal. Lord Millett dissented.

Special adjudicator determinations and Immigration Appeal Tribunal decisions (IAT determinations dated 7 Dec 1995 and 2 Oct 1996); Sedley J judicial review decision: Reg v Immigration Appeal Tribunal and Secretary of State for the Home Department, Ex parte Shah [1997] Imm.A.R. 145; Court of Appeal dismissal: Reg v Immigration Appeal Tribunal, Ex parte Shah [1998] 1 W.L.R. 74; appeal to the House of Lords: [1999] UKHL 20; [1999] 2 AC 629.