K & Anor v Secretary of State for the Home Department

For refugee status based on membership of a particular social group, the group must be identified using the ejusdem generis and immutable-characteristic approach under the 1951 Convention Relating to the Status of Refugees. A family may constitute such a group, but that does not establish the necessary Convention nexus. Where a family member is targeted only as a means of reaching a primary victim persecuted for a non-Convention reason, the feared persecution is not for reasons of family membership. The claimant must show that the persecutor objects to the family as such. The persecutor’s purpose is central: feared persecution must be the end, rather than merely a means to another end. The distinction is one of fact and degree. The Court of Appeal followed Quijano and held that Shah and Islam did not displace that approach.

An Iranian national claimed asylum after leaving Iran, alleging that she would be detained and ill-treated because of her association with her imprisoned husband. The Adjudicator allowed her appeal on asylum and European Convention on Human Rights Article 3 grounds, but rejected her Article 8 ground. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, holding that the feared persecution lacked a Convention reason because the husband’s detention had not been shown to be politically motivated.

The appeal concerned whether the Tribunal was bound by Quijano [1997] IAR 227, and whether Shah and Islam [1999] 2 AC 629 had altered its approach. The central issue was whether family members targeted to reach a person persecuted for a non-Convention reason are persecuted for reasons of membership of a particular social group.

1. Disposition. Laws LJ gave the leading judgment and would dismiss the appeal. Clarke LJ agreed, analysing the issue through the persecutor’s purpose. Tuckey LJ agreed with both judgments. The appeal was dismissed.
2. The relevant question under Article 1A(2) of the 1951 Convention Relating to the Status of Refugees was distinct from the identification of a particular social group. Shah and Islam [1999] 2 AC 629 supported the ejusdem generis and immutable-characteristic approach. No additional requirement of cohesiveness, co-operation or interdependence was necessary. The court nevertheless left open the extent to which a putative group must be recognised by society and assumed, for this appeal, that the family qualified.
3. The decisive issue was the Convention nexus. Quijano [1997] IAR 227 had addressed whether persecution of a family member was for reasons of family membership where the primary family member was targeted for a non-Convention reason. Its answer remained binding and had not been overturned or cast into doubt by Shah and Islam. The earlier approach in de Mello [1997] IAR 43 had been overruled by Quijano.
4. The court held that the focus must be on the persecutor’s purpose. Family membership must be the primary reason for targeting the claimant. If the claimant is targeted merely to reach another family member, family membership is instrumental and the feared persecution is not for a Convention reason. The persecutor must object to the family as such. The issue is one of fact and degree. Sarrazola [2000] FCA 919 did not contradict that rule; it illustrated that a secondary reason may, over time, become the primary reason for persecution.
5. The Immigration Appeal Tribunal was therefore entitled to allow the Secretary of State’s appeal on the asylum issue.

1. Court of Appeal (Civil Division): determination dated 28 July 2004; appeal dismissed. [2004] EWCA Civ 986
2. Immigration Appeal Tribunal: determination dated 29 November 2003; allowed the Secretary of State’s appeal against the Adjudicator’s decision.
3. Adjudicator: decision dated 16 October 2002; allowed the appellant’s appeal on asylum and Article 3 grounds, but rejected the Article 8 ground.