Liu v Secretary of State for the Home Department

For Refugee Convention purposes, a particular social group cannot be defined solely by the persecution feared. That principle does not prevent persecution from helping to identify or create a group, provided the group has other defining characteristics. Characteristics may include immutable attributes or matters so fundamental to identity or conscience that a person should not be required to change them. The group need not be defined with excessive precision, and persecution of only some members does not prevent persecution from being for reasons of membership of the group. Whether the evidence establishes the relevant group is a fact-sensitive question for the specialist tribunal.

The appellant, a Chinese citizen, claimed asylum after being subjected to a forced caesarean abortion at eight months’ pregnancy and later resisting an attempt to take her for sterilisation. The Secretary of State rejected her asylum claim, but an adjudicator allowed her appeal on asylum and human-rights grounds. The Secretary of State accepted the human-rights decision and appealed only on asylum. The Immigration Appeal Tribunal allowed that appeal, holding that the proposed social group was defined by the persecution and that the adjudicator’s wider group lacked a causal link to the feared persecution.

The appellant challenged that reasoning. The central issue was whether the Tribunal had properly considered the qualification to the principle that a particular social group must exist independently of the persecution.

1. Appeal allowed and case remitted. The Court of Appeal held that the Immigration Appeal Tribunal had materially erred in law by considering the general principle that a social group must exist independently of persecution without considering the qualification recognised in Shah and Islam [1999] 2 AC 629. The matter was remitted to a differently constituted Immigration Appeal Tribunal.
2. In Shah and Islam, Lord Steyn’s treatment of the narrower social-group definition was technically obiter, but Maurice Kay LJ regarded it as a correct statement of law and followed it. Persecution cannot itself define the group, but persecutors’ actions may help identify or create a group where an attribute other than the persecutory acts supplies the relevant identity.
3. The definition of the proposed group remained for the Tribunal to determine on the evidence. The process should not become an obstacle course of constant redefinition or marginal linguistic disputes. It is not essential that every member of a group suffers persecution. The evidence before the Court required consideration by the specialist Tribunal, and the Court declined to determine the group finally.
4. Maurice Kay LJ accepted the approach in the passage from Goodwin-Gill adopted by Lord Steyn: internal characteristics must be considered with external factors such as perceptions, policies, practices and laws. Rix LJ described two related strands in the authorities: the nature of a defining characteristic, and the means by which the group may be identified. A group may be objectively observable, socially perceived, or identified partly through discriminatory treatment, provided persecution is not its sole defining feature.
5. The Court treated the Canadian and Australian authorities as potentially supporting the possibility of a particular social group arising from China’s reproductive-control policy, while emphasising that the ultimate decision depended on country evidence and factual findings. The Secretary of State’s permission application to the House of Lords was to be considered on the papers.

• Court of Appeal (Civil Division): [2005] EWCA Civ 249. Appeal allowed and case remitted to a differently constituted Immigration Appeal Tribunal.
• Immigration Appeal Tribunal: The Tribunal allowed the Secretary of State’s appeal on the asylum issue in a determination notified on 25 March 2004.
• Adjudicator: The adjudicator allowed the appellant’s appeal on asylum and human-rights grounds. The Secretary of State accepted the human-rights decision.