The position in the United Kingdom
42 The House of Lords in its recent decision, Islam v Secretary of State for the Home Department [1999] 2 AC 629 (the case is sometimes reported as ex parte Shah, a result of the fact that two cases with similar facts were heard and decided together, but I shall refer to it here as Islam,considered the question of the meaning of particular social group in a way relied upon by the applicant before us. Not surprisingly, we were urged to apply what was there said, particularly the dictum of Lord Hoffman at 653-4, to the facts of the present case. It is thus necessary to analyse the decision and determine whether it is consistent with the approach taken by the majority in Applicant A. If it is, and assuming that it is not relevantly distinguishable, we should, in applying an international convention adopt an interpretation consistent with that of other countries and follow it, although noting that it may not be consistent with the approaches taken in Canada and the United States.
43 The applicant in Islam (as I have noted earlier, there were two applicants, each claiming on the basis of similar facts - I shall refer only to the facts of one of them) claimed to suffer violence in her country of origin, Pakistan, after she had been falsely accused by her husband of adultery. She claimed to fear persecution by reason of her membership of a particular social group, that being women who had offended against social mores or against whom there were imputations of sexual misconduct. As the report of the argument notes (see at 633), the Minister argued, consistently with Applicant A, that a particular social group could not be defined by the existence of persecution. The House of Lords unanimously upheld the claim to be treated as a refugee, overruling the Court of Appeal which had found that there was no common uniting feature which could constitute a relevant social group.
44 Lord Steyn commenced his reasons by noting that domestic abuse and violence against women was prevalent in Pakistan, as in many countries, but that that itself did not give rise to a claim to be treated as a refugee. What distinguished the case before the House of Lords was that the discrimination against women was partly tolerated and partly sanctioned by the State. Further, in considering the meaning of the phrase "particular social group" it was relevant to note that the preamble showed that countering discrimination was a fundamental purpose of the Convention.
45 His Lordship then referred with approval to that part of the judgment of McHugh J in Applicant A,as held that the particular social group of which the Convention spoke had to be one which existed independently of the persecution itself. After reviewing the American decisions, including Sanchez-Trujillo,and noting that the decision in that case had adopted a rather restrictive interpretation of the phrase "particular social group" and was not supported by the preponderance of case law in that country, his Lordship turned to Applicant A. That case was, according to his Lordship, different because the one child policy was a law of general application where there was no obvious element of discrimination. That, said Lord Steyn "may be the true basis of the decision of the High Court". I would interpolate here that there is nothing in the reasons of the majority in Applicant A to suggest that that was the basis of the decision. Chen,which was decided subsequently to Islam, does mention that the one child policy was a law of general application, but the reasons of the majority do not expressly suggest that this was the real reason for the decision in Applicant A and there is no comment at all on Islam. Applicant A itself was, in my view, decided upon the ground there was no basis other than persecution which defined the social group there claimed to exist. It is true that McHugh J did refer to the law as one of general application, as did the joint judgment in Chen. However, in my view, the joint judgment did not see the general nature of the law as the basis of the decision. That this is so appears from the following passage from Chen at 559:
"The question whether 'black children' can constitute a social group for the purposes of the Convention arises in a context quite different from that involved in Applicant A. That case was concerned with persons who feared the imposition of sanctions upon them in the event that they contravened China's 'one child policy'. In this case, the question is whether children, who did not contravene that policy but were born in contravention of it, can constitute a group of that kind. to put the matter in that way indicates that the group constituted by children born in those circumstances is defined other than by reference to the discriminatory treatment or persecution that they fear."
46 Returning to the judgment of Lord Steyn, it is sufficient to say that his Lordship was of the view that cohesiveness was not an indispensable requirement for the existence of a particular social group. In so doing, his Lordship disapproved the suggestion to this effect in Sanchez-Trujillo. His Lordship said, a limitation in the words "particular social group" but that was not cohesiveness. Homosexuals were capable of being a particular social group so that persecution of them could qualify a homosexual for refugee status. Yet as a class homosexuals could hardly be called cohesive.
47 Although the social group contended for was narrower, his Lordship was of the view that the relevant social group was women. It did not matter (and this is an important question) that not all women would be the subject of persecution. Some Pakistani women would avoid persecution because their situation was not such that they were labelled as adulterous, just as some homosexuals might avoid persecution because of their particular privileged circumstances. One may say that it is not really correct to say that Pakistani women "avoid persecution" because they are not labelled as adulterous. Rather they are not subject to the persecution unless they have been. In other words, his Lordship, by framing the matter in terms of some members of the group avoiding persecution, has without really acknowledging it expanded the group so that he is able to say that the social group is women and that it is women who are the subject of persecution.
48 Had it been necessary to consider a narrower class, his Lordship would have accepted that Pakistani women who had not accepted the social mores of their country (ie those who were labelled adulterous or perhaps suspected of being adulterous) could be a particular social group. Such a class was, in his Lordship's opinion, similar to the class of left-handed persons discussed by McHugh J in Applicant A.
49 One further issue arose in the case; it arises in the present case and it is convenient to raise it at this stage while dealing with Islam. The words "by reason of" indicate causation. How should causation be looked at? Should a "but for" test of causation be applied? It was his Lordship's view that it was immaterial whether a "but for" test of causation or a test of effective cause was used. It could not, in his Lordship's opinion, be said that the fear of persecution arose because of the hostility of the husbands. Rather it arose because of the membership of the social group.
50 Lord Hoffman was likewise of the view that there existed a particular social group - women. There was widespread discrimination against women in Pakistan and the fundamental core of the Convention was persecution based on discrimination. Hence the phrase "particular social group" should be read as encompassing whatever groups might be regarded as coming within the anti-discriminatory objectives of the Convention. No element of cohesiveness, cooperation or interdependence was necessary to support the finding of a relevant social group. The applicant's fear of persecution was made up of two elements. The first was personal, addressed against her as an individual, that is to say, the threat of violence from the husband and his associates. The second fear arose because the State would not assist them because they were women. His Lordship said at 653:
"It is … a fallacy to say that because not all members of the class are being persecuted, it follows that persecution of a few cannot be on grounds of membership of that class."
51 I would interpolate here that the fallacy may, perhaps, be accepted. But to state the fallacy is not to answer whether that fallacy has application on the facts of a particular case. It is of course true that a member of the Jewish faith in Nazi Germany would have had a well-founded fear of persecution because she or he is a member of a social group of those professing the Jewish religion. (Of course religion is a separate Convention ground, but that may for present purposes be put to one side.) The fact that not all members of that group were in fact the subject of persecution would say nothing against the claim. There could be all sorts of reasons why they were not, for example, because they hid their religion, they were protected by associates in the upper echelons of the Nazi hierarchy and so on. The point is, however, that all members of the class are potentially liable to discrimination. In the present case the circumstances are different. Not all women are at risk of persecution, because not all women have abusive and alcoholic husbands.
52 The crux of his Lordship's reasons on the general issue before their Lordships is to be found in the following passage at 654:
"In the case of Mrs Islam, the legal and social conditions which according to the evidence existed in Pakistan and which left her unprotected against violence by men were discriminatory against women. For the purposes of the Convention, this discrimination was the critical element in the persecution. In my opinion, this means that she feared persecution because she was a woman. There was no need to construct a more restricted social group simply for the purpose of satisfying the causal connection which the Convention requires."
In considering the issue of causation it was necessary to take a common sense approach. At the heart of the case was the evidence of institutionalised discrimination against women by the police, the courts and the legal system, the central organs of the State.
53 May I here again be permitted an interpolation, albeit that so to do rather interrupts the analysis of the decision. With respect, I agree completely with the view that the issue of causation be approached on a common sense basis. A "but for" test of causation would be too rigid an approach. Having said this, however, the application of a common sense approach may lead one in different directions. For my part, I think there is a difficulty in the present case in characterising the persecution suffered by the appellant as caused by anything other than the personal characteristics of the relationship in which the appellant found herself. I do not think that a common sense approach would lead to the conclusion that the situation the applicant found herself in, and the situation in which she might find herself were she repatriated to Pakistan, would warrant a finding that she was persecuted just because she was a woman. No doubt the fact that she was a woman had a part to play in the alleged persecution, both because it was the foundation of her marriage to an alcoholic and abusive husband and because of the fact that she was a married woman meant that the police offered her no assistance. But I do not think that it is correct to say in all the circumstances that her persecution was by reason of her membership of any particular social group, however it may be defined. But that is but another matter.
54 Having regard to the way the present case was argued before us it is convenient here to set out the dicta upon which senior counsel for the respondent relied. His Lordship said, while discussing the issue of causation at 653-4:
"Suppose oneself in Germany in 1935. There is discrimination against Jews in general, but not all Jews are persecuted. Those who conform to the discriminatory laws, wear yellow stars out of doors and so forth can go about their ordinary business. But those who contravene the racial laws are persecuted. Are they being persecuted on grounds of race? In my opinion, they plainly are. It is therefore a fallacy to say that because not all members of a class are being persecuted, it follows that persecution of a few cannot be on grounds of membership of that class. Or to come nearer to the facts of the present case, suppose that the Nazi government in those early days did not actively organise violence against Jews, but pursued a policy of not giving any protection to Jews subjected to violence by neighbours. A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor who smash his shop, beat him up and threaten to do it again if he remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal scores, but they would not have done what they did unless they knew that the authorities would allow them to act with impunity. And the ground upon which they enjoyed impunity was that the victim was a Jew. Is he being persecuted on grounds of race? Again, in my opinion, he is. An essential element in the persecution, the failure of the authorities to provide protection, is based upon race. It is true that one answer to the question 'Why was he attacked?' would be 'because a competitor wanted to drive him out of business.' But another answer, and in my view the right answer in the context of the Convention, would be 'he was attacked by a competitor who knew that he would receive no protection because he was a Jew'."
55 The example is a powerful one, as one might expect from Lord Hoffmann. Few would have difficulty with the conclusion that the person attacked would be entitled to be considered as a refugee. However one must take care, with respect, not to be distracted by the abhorrence civilised people undoubtedly have of the persecution of the Jews in Nazi Germany from noting the implicit assumptions in the example. First, the question of social group does not arise - no question of coherence or common thread need arise where the persecution is on the grounds of religion as I would prefer to say, rather than race. Secondly, it is far from clear from the example that all Jews are not subject to persecution, whether or not it be the case that all Jews are actually persecuted. A governmental policy that would, for example, imprison Jews who did not wear yellow stars out of doors in an environment coloured as it was by Nazism, where the wearing of yellow stars out of doors led to those who did being humiliated, would in my view amount to a policy to persecute Jewish people by reason of their Jewishness. Thirdly, the postulated facts in the second example given by his Lordship include as a fact that the physical violence of the attack against the competitor would not happen unless the government pursued the policy of allowing those who wished to attack Jews with impunity. In other words the government has actively pursued a policy which would encourage attacks on Jews. So the example postulates a case where the government was complicit in the violence to which Jewish people (that is to say all Jewish people) were potentially subjected.
56 This second example of Lord Hoffmann is, with respect to the submission made before us, a long way from the facts of the present case. If the social class is taken to be women, then two circumstances would need to be found before an applicant could succeed to make out the Convention ground. The first is that all women are potentially subject to violence. It hardly makes sense to say that women can avoid being persecuted by not marrying into an abusive relationship, whatever may be the case with women whose husbands accuse them of adultery. All women in Pakistan are not potentially subject to the violence which can constitute persecution. This has only to be stated to be accepted. It is only women in an abusive relationship whose husbands are alcoholically or otherwise abusive (or women who are labelled as adulterous) who are potentially subject to the violence. Secondly, there would be a need for a finding of fact (it is not there at the moment, so the case would need to be remitted for it to be found) that the government was complicit in (or at the very least officially tolerated) violence to women in abusive relationships. The example given by Lord Hoffman is not an example of mere inaction, it is an example of direct government policy influencing, perhaps even encouraging the actual act of persecution.
57 Lord Hope agreed with both Lord Steyn and Lord Hoffmann. In separate comments his Lordship expressed approval with McHugh J in Applicant A that to define the social group by reference to the persecution would be circular. However, there was, in his Lordship's view, a difference between defining the group by reference to persecution and defining it by reference to the discrimination which existed. Having regard to the laws of Pakistan, women are discriminated against. The reason why the appellant feared persecution was not just because she was a woman, it was because she was a woman in a society which discriminated against women.
58 Lord Hutton agreed also with Lord Steyn, but was of the view that the particular social group should be taken as the narrower group, women suspected of adultery, rather than the wider group of all women in Pakistan.
59 Lord Millett dissented. His Lordship was of the view that for a group to constitute a particular social group within the Convention it had to be a cognisable group sharing common characteristics which set its members apart from society at large and for which they are jointly condemned by their persecutors. In his Lordship's view no cognisable group existed independent of the social conditions on which the persecution was founded. It would seem that it was equally as circular in his Lordship's view to define the group by reference to discrimination (itself the source of the persecution) and the persecution itself.
60 The question that has to be resolved is whether Islam can stand with Applicant A. If it can, and leads to the conclusion that the appellant here must succeed, then for my part I would follow it. If it can not, then we are bound to follow Applicant A, unless it is distinguishable.
61 I have great difficulty in reconciling Islam with Applicant A. If the group is taken here as women as a whole, it is difficult with respect to see why the persecution feared arose by reason of the appellant being a woman. The causation difficulty is, in my opinion, not so readily dismissed as the majority of their Lordships appear to say. This is the problem which McHugh J drew attention to in Applicant A, when pointing out that to define the class too widely means that it will be more difficult to find that the persecution arises by reason of membership of that group. In one sense, in Applicant A one could easily define the social group as parents - for the law discriminated against parents because they were parents. There was no discrimination against any other group. But something more had to be satisfied so that the persecution feared arose by reason of membership of the social group of parents - that was the fact that the couple have more than one child. No one suggested in Applicant A that parents as such were a relevant social group, although there is no reason to suspect that parents could be a social group. But the problem was that not all parents were subjected to persecution, it was only a sub-group of parents, namely at least parents with one child, that was the subject of persecution. However, that sub-group of parents with one child was in fact expressly rejected.
62 To delineate on the facts of Islam the social group as the narrower group, that is to say, women whose husbands had (perhaps falsely) labelled them as adulterous is to define the group by reference to the persecution which was inflicted. The only thing in common these women had as a group was their persecution. There was no other common thread. I can, with respect, see no difference, at least in a case such as the present, between the circularity involved in defining the group by reference to persecution and the circularity involved in defining the group by reference to discrimination. For it was the discrimination which gave rise to the persecution.