RG (Ethiopia) v Secretary of State for the Home Department

Membership of a particular social group is a mixed question of law and fact. Women, or a subset of women, may constitute such a group where gender is an immutable characteristic and the group is not defined by persecution. Serious discrimination, coupled with state complicity or inadequate state protection, may satisfy the Convention test. State complicity need not always be embodied in legislation. An appellate tribunal’s reasons must address the substantial issues, although they need not refer to every piece of evidence. Failure to consider whether safe and reasonable internal relocation is available is an error of law and may require remittal.

The appellant, an Ethiopian girl, claimed asylum after suffering abduction, rape, forced marriage and other abuse. The adjudicator accepted the core elements of her account, found that women and young girls in Ethiopia constituted a particular social group, and concluded that adequate state protection was unavailable.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, holding that women and young girls in Ethiopia were not a particular social group. It relied principally on differences between Ethiopia and Pakistan and on the availability of police and court remedies. The Court of Appeal considered the IAT’s jurisdiction, the adequacy of the reasoning on social group membership, and the failure to address internal relocation.

Majority: Keene LJ, with Wilson LJ agreeing. The appeal was allowed. The IAT had jurisdiction because the question whether a person belonged to a particular social group involved applying the legal test in Article 1A(2) to facts, rather than determining a pure question of fact. Failure to consider a relevant matter, including internal flight, was also capable of constituting an error of law. Ground 3, concerning credibility without alleging a legal error, raised no point of law.

1. The IAT’s reasoning was legally deficient. The fact that Ethiopia differed from Pakistan in Islam v Secretary of State for the Home Department; R v IAT, ex parte Shah [1999] 2 AC 629 did not answer the Convention question. Nor did the general availability of police and court remedies, without considering their practical limitations.
2. Women or a subset of women could constitute a particular social group where gender was an immutable characteristic, the group existed independently of persecution, and serious discrimination was accompanied by state complicity or inadequate protection. Complicity need not always be embodied in law. The evidence of institutionalised legal discrimination, widespread abuse and inadequate protection entitled the adjudicator to reach that conclusion.
3. The adjudicator’s reasons were adequate. Reasons had to be intelligible and address the substantial issues, but need not refer to every item of often voluminous country evidence. Her references to the objective evidence and to the cultural traditions and Civil and Penal Code provided a sufficient basis for her findings.
4. The adjudicator had failed to consider whether the appellant could safely and reasonably relocate elsewhere in Ethiopia, particularly Addis Ababa. That was an error of law. Under section 103 B(4) of the Nationality, Immigration and Asylum Act 2002, the issue was remitted to the IAT. The scope of reconsideration was limited to internal relocation; the accepted core facts and the adjudicator’s conclusion on particular social group membership were not reopened.

Pill LJ dissented on the scope of remittal. He considered that the adjudicator had failed to conduct the thorough and systematic analysis of the country evidence required by the importance and complexity of the issue. He would have remitted the social-group issue as well as internal relocation, while preserving the accepted core facts.

1. Court of Appeal (Civil Division): Allowed the appeal by majority and remitted the internal-relocation issue to the IAT. The adjudicator’s finding on particular social group membership and the accepted core facts were not to be reopened.
2. Immigration Appeal Tribunal: By a determination notified on 28 January 2005, allowed the Secretary of State’s appeal from the adjudicator and held that women and young girls in Ethiopia were not a particular social group.
3. Adjudicator: On 2 January 2004, allowed the asylum appeal, finding a well-founded fear of persecution based on membership of a particular social group and insufficient state protection.