Secretary of State for the Home Department v. K

The House of Lords considered whether two appellants feared persecution "for reasons of membership of a particular social group" within article 1A(2) of the 1951 Refugee Convention. The court reaffirmed that the Convention must be interpreted in light of its humanitarian object and relevant international guidance (including UNHCR materials) and that a "particular social group" may be identified either by a protected or immutable characteristic or by social perception.

First, the House held that a family can, in principle, be a particular social group and that an individual need not show that the primary family member was persecuted for a Convention reason or that other family members are similarly at risk; it is sufficient that the persecutory treatment feared is causally linked to membership of that family. Thus the Adjudicator's finding that K would be persecuted as a member of her husband’s family was tenable and her appeal was allowed.

Second, the House held that women in Sierra Leone (or more narrowly uninitiated indigenous females) may constitute a particular social group for Convention purposes and that female genital mutilation, practised and tolerated by the state or its agents, may amount to persecution "for reasons of" membership of that group. Fornah's appeal was therefore allowed. The Court overruled any inconsistent authority and applied UNHCR and comparable international guidance in construing article 1A(2).

This appeal bundle comprised two separate asylum appeals. Both appellants had been found to have a well-founded fear of serious ill-treatment but the Secretary of State and the courts below rejected that this would be "for reasons of membership of a particular social group" under article 1A(2) of the 1951 Convention.

• Nature of the claims: K claimed persecution on return to Iran because she would be persecuted as a member of her husband’s family following his arrest and detention; Fornah claimed persecution on return to Sierra Leone because she would be subjected to female genital mutilation (FGM).
• Procedural history: Both appellants were refused asylum by the Secretary of State, allowed by Adjudicators, reversed by the Immigration Appeal Tribunal, and the Court of Appeal upheld the Tribunal decisions ([2004] EWCA Civ 986 and [2005] EWCA Civ 680). The appeals came to the House of Lords.
• Issues framed: (i) The proper meaning and scope of "membership of a particular social group" in article 1A(2); (ii) whether family membership may ground refugee status when the underlying reason for a primary family member’s persecution is not shown to be a Convention reason; (iii) whether women in Sierra Leone (or uninitiated indigenous females) constitute a particular social group such that FGM is persecution "for reasons of" membership.

Court’s reasoning: the House reviewed domestic, Commonwealth and international authority and endorsed the UNHCR approach reconciling the "protected characteristics" and "social perception" approaches. On causation the court explained the Convention requires that the Convention ground need be an effective reason for persecution, but need not be the sole or primary reason; a simple "but for" test is inadequate and a contextual causal inquiry is required. Applying these principles, the court held that the Adjudicator’s factual findings in K’s case supported the conclusion that she would be persecuted for reasons of family membership. In Fornah the court concluded that women in Sierra Leone (or more precisely uninitiated indigenous females) share characteristics independent of the persecution and are perceived as a distinct group; FGM is an extreme manifestation of entrenched gender discrimination and is persecutory, and therefore Fornah fell within article 1A(2).

The House restored the Adjudicators' grants of asylum in both cases and invited written submissions on costs.

Appeals allowed. The House held that (1) a family may constitute a "particular social group" and an applicant need not show that the primary family member was persecuted for a Convention reason or that other family members are at risk; it is sufficient that the real reason for the feared persecution is membership of that family. The Adjudicator's factual conclusion in K's case was tenable and her appeal was allowed. (2) Women in Sierra Leone, or more precisely uninitiated indigenous females, constitute a particular social group; FGM is persecutory and, where the state is unwilling or unable to protect, constitutes persecution "for reasons of" membership of that group. Fornah's appeal was allowed.

Adjudicators allowed both appellants' claims; the Secretary of State successfully appealed to the Immigration Appeal Tribunal (Determinations dated 29 September 2003 and 5 August 2004 respectively); the Court of Appeal ([2004] EWCA Civ 986 and [2005] EWCA Civ 680) upheld the Tribunal decisions; both appeals were allowed by the House of Lords ([2006] UKHL 46).