DH v The Secretary of State for the Home Department

A particular social group under the Geneva Convention relating to the Status of Refugees 1951 may be established by either a protected common characteristic or social perception in the country of origin. Article 10(1)(d) of Council Directive 2004/83/EC and regulation 6(1)(d) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 must therefore be read disjunctively, despite the word “and”.

Whether a person living with disability or mental ill health belongs to such a group is fact-specific. The inquiry includes how a potential persecutor views the person. A firm psychiatric diagnosis is not indispensable where cogent evidence establishes serious mental ill health and explains why precise diagnosis is unavailable. Refugee status still requires a causal nexus between group membership and persecution, and an absence of effective protection.

The appellant, an Afghan national with serious mental health problems and no litigation capacity, appealed refusals of his protection and human-rights claims. The First-tier Tribunal dismissed his asylum and humanitarian-protection claims but allowed his appeal under article 3 of the European Convention on Human Rights because his disinhibited behaviour on return to Afghanistan would expose him to serious harm.

An error of law was found because the First-tier Tribunal had not decided whether that risk arose for a Refugee Convention reason. The Secretary of State did not challenge the article 3 finding and accepted that the appellant had a serious condition, but contended that uncertain diagnosis prevented proof of an immutable characteristic. The Upper Tribunal remade the outstanding asylum issue: whether mental ill health could place the appellant in a particular social group and make the anticipated harm persecution for that reason.

1. Appeal allowed on asylum grounds. The appellant was a refugee. The accepted medical and country evidence established serious mental ill health, a real risk that its disinhibited manifestation would lead to persecutory ill-treatment in Afghanistan, and a lack of effective protection.

2. The Geneva Convention relating to the Status of Refugees 1951 provides protection wider than a literal cumulative reading of Article 10(1)(d) of Council Directive 2004/83/EC. The Tribunal held that the word “and” between Article 10(1)(d)(i) and (ii), and the corresponding regulation 6(1)(d) criteria, must be read as “or”. A group may therefore qualify through a shared innate, unchangeable or fundamental characteristic, or because it has a distinct social identity through perceived difference.

3. A person with disability or mental ill health may qualify under either route. The assessment is made at the decision or hearing date and is fact-sensitive. It depends on the nature and manifestation of the condition, conditions in the country of origin, and how a potential persecutor perceives the individual. Not every person with mental ill health will be at risk, and group membership alone does not establish refugee status.

4. The absence of a precise diagnostic label did not defeat the claim. Cogent evidence showed serious mental illness, while the inability to secure a firm diagnosis was itself satisfactorily explained by the severity of the appellant’s symptoms and incapacity. The necessary causal nexus was present because the prospective ill-treatment would arise on account of the appellant’s mental disability and the state could not provide effective protection.

• Upper Tribunal (Immigration and Asylum Chamber): An error of law was found in the failure to determine the Refugee Convention issue. The Tribunal remade that issue and allowed the asylum appeal.
• First-tier Tribunal: The appeal was dismissed on asylum and humanitarian-protection grounds but allowed under article 3 of the European Convention on Human Rights. No citation was stated.