IR v Secretary of State for the Home Department

For refugee status, the required nexus between feared persecution and a Convention ground requires a real-risk finding that the ground is an operative reason entertained by the persecutor. The claimant’s belief and the persecutor’s wider motive are distinct matters and do not replace that inquiry. The ground need not be the sole or primary reason, but an objective connection between the claimant’s characteristics and the risk is insufficient. Article 9(3) of the Qualification Directive does not create a looser EU test. Personal vulnerability and membership of a particular social group must be connected to the reason for the feared persecution.

The appellant, a Moroccan national, challenged the refusal of further leave to remain after claiming asylum and humanitarian protection. The First-tier Tribunal accepted the essentials of his account, found a real risk of inhuman or degrading treatment on return, and allowed his appeal on humanitarian protection and Article 3 grounds. It rejected his asylum claim because the required persecution nexus was not established. The Upper Tribunal dismissed his appeal, assuming that he could fall within a particular social group but finding no proof that the feared ill-treatment would be because of that membership. The central issue before the Court of Appeal was the nature of the required connection between persecution and a Convention ground.

1. Appeal dismissed. The Court unanimously upheld the dismissal of the asylum appeal. The favourable findings on humanitarian protection and Article 3 meant that the appellant was not at risk of removal, but did not resolve whether he was a refugee.
2. Under Article 1A(2) of the 1951 UN Convention relating to the status of refugees, the claimant must establish to the real-risk standard that the Convention characteristic is an operative reason entertained by the persecutor for the actual or feared persecution. The persecutor’s motive is irrelevant, but that does not make the persecutor’s reason irrelevant. The claimant’s belief about the persecutor’s motive is also not the test.
3. The Convention reason need not be the only or primary reason. More than one operative reason may suffice. This reading was consistent with Fornah, Sepet and Sivakumar, while the guidance in Suarez was valuable only when understood as concerning reasons for persecution rather than motives. The Court therefore applied the principles stated in [2007] 1 AC 412, [2003] 1 WLR 856 and [2003] 1 WLR 840.
4. Article 9(3) of the Council Directive 2004/83/EC, beginning with the words that it operates in accordance with Article 2(c), could not introduce a separate or looser EU meaning of refugee. The Convention definition remained controlling. A finding that the appellant’s characteristics were typical of a former street child, or that they contributed to his vulnerability in prison, did not establish that his membership of a particular social group would be a reason for the persecutors’ conduct. The findings in LQ and DS (Afghanistan) did not decide that nexus question.
5. Lord Justice Elias added that an inference may sometimes be available where the characteristic is closely, intimately and exclusively linked to a Convention ground, even if the persecutor is not consciously aware of the ground. That possible qualification did not assist on these facts. Lady Justice Gloster agreed with both judgments.

1. Court of Appeal (Civil Division) dismissed the appeal on 21 May 2014.
2. Upper Tribunal (Immigration and Asylum Chamber), determination dated 20 May 2013, dismissed the appellant’s appeal from the First-tier Tribunal.
3. First-tier Tribunal, decision dated 10 January 2012, allowed the appeal on humanitarian protection and Article 3 grounds but dismissed the asylum claim.