Secretary of State for the Home Department v Skenderaj

A family or kinship group may constitute a particular social group for refugee purposes, but family membership alone does not invariably do so. The group must possess a characteristic independent of the feared persecution and be recognised as distinct by the relevant society. Discrimination or stigmatisation is not an essential defining characteristic, particularly in cases of non-state persecution.

The persecution must have group membership as its effective cause. A private reprisal arising from one relative’s conduct does not become Convention persecution merely because other relatives are threatened.

Where the state could not provide sufficient protection even if asked, the claimant’s failure to request protection is irrelevant. Where sufficient protection is available, unwillingness to seek it satisfies the Convention only when it flows from a well-founded fear of Convention persecution.

The claimant, an Albanian national, feared that another family would kill him in revenge after his uncle killed one of its members during a land dispute. An adjudicator accepted that the resulting blood feud created a well-founded fear of persecution, that the claimant belonged to a particular social group, and that the Albanian authorities could not protect him even if asked.

The Immigration Appeal Tribunal overturned the adjudicator’s determination. It reasoned that no failure of state protection arose because participants in Albanian blood feuds customarily did not invoke state machinery. The Tribunal did not determine whether the claimant’s family was a particular social group or whether the feared reprisal was for reasons of family membership.

The claimant appealed. By a respondent’s notice, the Secretary of State also raised the two unresolved issues. The Court therefore considered the existence of a particular social group, the causal connection between membership and persecution, and the effect of failing to seek state protection.

Appeal dismissed unanimously. Lord Justice Auld delivered the judgment, with which Lord Justice Waller and Lady Justice Arden agreed.

1. A particular social group ordinarily requires a common innate or otherwise fundamental characteristic, an internal characteristic giving the group particularity, and recognition of the group as distinct within the relevant society. The group must possess a defining characteristic other than merely a shared fear of persecution. Cohesiveness is unnecessary.

2. Discrimination, stigmatisation or societal setting apart is not an essential defining characteristic of a particular social group, particularly where the persecution is committed by a non-state actor. Discrimination may instead be found in persecution directed at an independently identifiable group. Persecution cannot, however, be the sole fact creating or defining that group.

3. Family or kinship may, depending on the social context, support recognition as a particular social group. The claimant’s family was not shown to be recognised as a distinct group by Albanian society. Recognition only by the opposing family through a private feud was insufficient and would impermissibly allow the persecution itself to create the group.

4. Even if the family were a particular social group, the feared persecution was not for reasons of membership of it. The effective cause, rather than a mere “but for” connection, was required. The effective cause here was revenge for the uncle’s killing, not persecution of the family as a family. A private dispute does not acquire Convention content merely because reprisals extend to a wrongdoer’s relatives.

5. The Tribunal’s reasoning on state protection was erroneous. Under article 1A(2) of the Geneva Convention of 28 July 1951, inability and unwillingness to obtain national protection are alternative grounds. If the state cannot provide sufficient protection even when asked, failure to ask is irrelevant, whether caused by fear or by an acceptance that seeking help would be futile.

6. If sufficient protection is available and the claimant is able to request it, unwillingness qualifies only when it flows from a well-founded fear of persecution for a Convention reason. A social custom against approaching the police is insufficient. Protection is one of relative sufficiency, not an absolute guarantee, and must accommodate practical limits upon policing.

7. Although the accepted findings established that Albania could not provide sufficient protection, the claimant had not established persecution for a Convention reason. His appeal was therefore dismissed.

1. Court of Appeal (Civil Division): The claimant’s appeal was dismissed unanimously. The court rejected the Tribunal’s reasoning concerning failure to seek protection but upheld the result because the claimant had neither established membership of a particular social group nor shown that the feared reprisal was for reasons of such membership: [2002] EWCA Civ 567.
2. Immigration Appeal Tribunal: The Tribunal overturned the adjudicator’s determination. It held that no failure of state protection arose because those participating in Albanian blood feuds did not seek to engage state machinery. It left unresolved the particular-social-group and causation issues.
3. Adjudicator: The adjudicator allowed the asylum appeal, finding a well-founded fear of persecution for reasons of membership of a particular social group and an inability by the Albanian authorities to provide effective protection.