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Published: Fri, 02 Feb 2018
This essay will examine the criteria for the convention ground of membership of a particular social group and will assess how the Law Lords have been able to extend this concept to enable them to deal with asylum claims based on gender persecution. To be recognised as a refugee it must be established that a person comes within the definition provided in Article 1A (2) of the 1951 Convention relating to the Status of Refugees, which states that a person must have a well founded fear of persecution for reasons of race, relation, nationality, membership of a particular social group (PSG) or political opinion. Four of these grounds are very straightforward and have not required much input from the national courts; however, membership of a PSG is very ambiguous and has, thus, incurred more judicial decisions and input as to its definition.
The Convention did not exclude any particular form of persecution in its drafting stage intentionally, rather the focus was on the ‘definition of persecution’itself, which was based on ‘serious harm’. According to Aleinikoff “persecution might be established by showing deprivation of fundamental human rights or serious harm imposed as a penalty on the exercise of a fundamental human right”. Relating this to Gender, which could be either male of female, but the general conception from CSR 1951 construed it to be male dominant. Nonetheless, most case scenarios seem to place the pressure on women due to their vulnerable nature, which feature them more in the PSG norm.
Gender Based Groups
There have been several schools of thought regarding gender persecutions, considering the occurrences in the second and third world countries, especially the cultural differences and practices. The situation is very alarming, but unfortunately individuals affected in these acts don’t enjoy the kind of negative impact it has on their persons, if not life threatening, humiliations and disgrace meted as a result. Take for instance places like Pakistan where the Sharia law require four witnesses when an adultery case is alleged. Naturally, you expect an absolute privacy to commit adultery; but the law places a burden of “let people see” approach to people’s personal life. Will it not be possible in a community where women are coerced into satisfying their husbands/partners or opposite sex against their wishes to a blackmail set up? Especially where things fall apart? In other words, if a group of females’ belief in the western world’s culture which some extreme fundamentalists, which I will refer to as “non-state agents,” would not agree, they might attribute these to undermining their faith and beliefs, which could cause coalition of false evidence and discrimination in order to punish them. In N v SSHD, even though unsuccessful, the court agreed there were some form of discrimination against women in Acholi area of Uganda, but not up to the level seen in Shah and Islam.
This reminds me of the conventional rights to respect for private and family life as guaranteed by article 8. Despite the unfair treatments to the vulnerable weaker sex, I think their private life fall short of being protected both by their partners and the community as a whole, which call into question the insufficient protection authorities themselves provides, as we would see in the UK leading case of Shah and Islam.
The Refugee Convention recognises the activities of these non-state agents which actively carry out persecutions as a result of the authorities silence and indirect alignment with the practices and such situations would be adequate to make an asylum claim. The case of Fauziya Kasinga in the USA granted asylum by the BIA after being able to proof that she escaped for fear of female genital mutilation (FGM), when the authorities actively tracked her down in support of the persecution practice of her native tribe of Tchamba-Kunsuntu of Northern Togo. Granting the asylum, the BIA attributed this to “permanent disfiguration” which could pose a risk of serious harm, contrary to the 1951 Refugee Convention requirement. Domestic violence cases also complicates several state authorities in African continent, as they tend to turn against victims of abuse in their ignorance of the non-state agents activities as demonstrated in the Matter of R-A, also another BIA case where the victim was ignored after several pleas for help from the law enforcement agencies and judiciary, was condemned. Two other women from Kenya also brought cases of FGM and Domestic violence which was successful in the UK.
Gender groupings have featured in so many legal cases across the world within the framework of domestic violence claims. Courts in several jurisdictions like in Australia that categorised single Indian women, Tanzanian married women, young Somalia women and divorcees or new convert Christian women in Nepal to probably constitute members of a PSG for the purpose of the convention. Meanwhile, Wilcox J concluded in Lek that “young single women” in China could not be members of PSG, but Goldberg J was of a different view in Jayawardene, that such single women or those without protection in Sri Lanka satisfies the purposes of Refugee Convention of belonging to a PSG. In Japan, the Court in an unreported tribunal case of MIMA v Kobayashi & Anor did not accept the findings that women and unmarried mothers constitute a persecuted group. In other words, Bennett J in Applicant gave an open verdict that Thailand females did not constitute a PSG.
Membership of a PSG
The judiciary are not able to obtain any assistance from the UNHCR handbook, in which there is a distinct lack of discussion and clarity regarding the definition of a PSG, which has, perhaps, led to differing interpretations being developed. Aleinikoff says the lack of depth is, “…reflecting, no doubt, the undeveloped nature of such claims at the time of the UNHCR handbook’s writing.” The judiciary are also not able to obtain any assistance from the recently created 2004 EU Qualification Directive, which seeks to provide a universal standard for the processing of asylum claims within Europe. However, this Directive does not go as far as the HL in the cases of Shah and Islam, which confirmed that women are capable of forming a PSG.
Claims upon this convention ground have increased substantially in recent times, creating additional pressure on the judiciaries to develop a workable and precise definition on what constitutes membership of a PSG. Goodwin-Gill in his opinion thinks women including mothers, vulnerable to homosexualism, capitalism and those at risk of domestic violence could form a group of PSGs, because they are sort of disconnected and unassociated.
There have been over 250 reported case decisions in this area since 1985. Brenden Kelly submits that, “domestic courts have struggled over time to achieve a coherent interpretation and application of the law relating to PSGs…” Many national courts have raised fears regarding the definition and application of this convention ground, as they are anxious not to make this ground too wide which would substantially reduce the effectiveness of the other grounds and could make them superfluous. Nonetheless, the numerous attempts that have so far been made, for example, by the judiciaries in the subsequent cases, in an attempt to limit its definition could prove to be detrimental to the fundamental nature and original purpose of the 1951 Convention.
Social group was also classified in the New Zealand leading case, Refugee Appeal which has long been differently interpreted in Australia, Canada and UK courts with emergence of consensus over the following cases respectively: Applicant A; Ward; and aproved by Lords Steyn, Hope and Hutton in the Shah case. The court in Ward established the law on PSG in Canada which was said to have followed Hathaway and USBIA case, Acosta.
In 2002, the UNHCR published their Guidelines on International Protection and established that there are currently two approaches taken by decision-makers, in common law jurisdictions. These two approaches are: 1) The ‘protected characteristics’ approach, which examines whether a group is united by an immutable characteristic or by a characteristic that is so fundamental to human dignity that a person should not be compelled to forsake it. This approach is favoured by Canada and New Zealand. 2) The ‘Social Perception’ approach, which examines whether or not a group shares a common characteristic that makes them a cognisable group or sets them apart from society at large. This approach is favoured by Australia.
The UK does not appear to favour one approach over the other, which was aptly shown in the cases of Shah and Islam as Lords Steyn and Hoffman mainly applied the protected characteristic analysis established in Ward, whilst Lords Hope of Craighead and Millet appeared to use the social perception approach as used in the Australian case, Applicant A In light of this, the UNHCR proposed a new definition, which is a reconciliation of the two approaches:
A particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.
In Ward, there was an in-depth discussion of what constituted membership of a PSG using the protected characteristics approach; this case concerned a former member of the INLA who was sentenced to death for assisting in the escape of hostages. Canada, along with most other jurisdictions, did not want to interpret this Convention ground too widely, as they were conscious that they did not want to render it a “safety net to prevent any possible gap in the other four categories.” Thus gender based persecution can come within the Ward definition of a PSG, by stating that a person’s gender is an innate and unchangeable characteristic, as well as encompassing homosexuals, transsexuals and transvestites.
Although the decision to accept the women as refugees was unanimous in the cases of Shah and Islam where the Law Lords took various routes to reach virtually the same decision. Lord Millett did not accept the proposed PSG of ‘women in Pakistan who have been or who are liable to be accused of adultery or other conduct transgressing social norms and who are unprotected by their husbands or other male relatives' and stated that:
…No cognisable social group exists independently of the social conditions on which the persecution is founded. The social group which the appellants identified is defined by the persecution, or more accurately (but just as fatally) by the discrimination which found the persecution. It is an artificial construct called into being to meet the exigencies of the case.
HL further stated that being discriminated against as a woman was not enough to come within the refugee convention; it must be shown that the discrimination is widespread and it must be intense in nature; for example, it must include discrimination within legislation, the juduciary and the police. In addition, the lack of State protection is an inherent element of discrimination. Meanwhile, Lords Hope, Rodger and Brown adopted a very narrow definition of the PSG in the cases of K and Fonah, their perspective PSGs were ‘uninitiated/indigenous women in Sierra Leone.' While Lord Bingham accepted the widest possible PSG as ‘all women in Sierra Leone.'
The UK immigration authority policy guidelines show that people claiming membership of a PSG may extend beyond other grounds. The question is whether the facts of a PSG situation existing in one country is the same in another country. The answer to this depends on circumstances peculiar to that country. It is very important for immigration caseworkers to refer to the CGR for guidance because what seems to be a PSG in country A, may not be in B.
It had already been recognised, in the UK at least, that persecution does not necessarilly have to flow directly from the State or a State body, rather it was held in the Horvath case that a non state actor could commit the persecution as long as it could be established that the State was unable or unwilling to provide the victim with protection. In the cases discussed above in which women have been recognised as refugees; they either were victims of domestic violence or were about to be inflicted with female mutilation against their wishes. Overall, the courts held that whilst the women feared harm from either their male family members or their communities, there was also wide spread acceptance or ignorance surrounding these issues and their respective States were unable or unwilling to provide them with protection. The judiciary have extended upon the principle of a PSG but this has been a gradual extension from Horvath. It is also supposed that not only women would be able to enjoy protection from this principle as there may be some occasions in which men faces persecution on the basis of their gender too.
* D Seddon, Immigration, Nationality and Refugee Law Handbook (JCWI, London 2006)
* Feller, Tuck and Nicolson, Refugee Protection in International Law: UNHCR’s Global
Consultations on International Protection (Cambridge University Press, 2003)
* JC Hathaway, The Law of Refugee Status (Butterworths Canada Ltd, 1991)
* M Phelan, J Gillespie, Immigration Law Handbook (6th ed Oxford University Press,2009)
* CEDAW (Convention on the Elimination of All Forms of Discrimination against Women) 1979
* Refugee Appeal No. 1312/93 Re GJ (30 August 1995);  INLR 387
* Handbook on procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, 1979, re-edited 1992) (UNHCR Handbook)
* Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (HCA)
* Applicant S469 of 2002 v MIMIA
* Canada (Attorney General) v Ward  2 SCR 689 (SC:Can)
* Horvath v Secretary of State for the Home Department (2000) 3 All ER 577
* Islam v Secretary of State for the Home Department and R v Immigration Appeal
Tribunal and Secretary of State for the Home Department, ex parte Shah, UK House
of Lords  2 WLR 1015 (Shah and Islam)
* Jayawardene v MIMA  FCA 1577
* K and Fornah v SSHD  UKHL 46  3 WLR 733
* Lek v MILGEA (1993) 43 FCR 100 (No.2)
* Matter of Acosta, Interim Decision 2986, 1985 WL 56042 (B.I.A.)
* Matter of KASINGA A73-476-695, decided 13 June 1996
* Matter of R-A 22 I&N Dec. 3403, at 2 (BIA 1999)
* N v SSHD  EWCA
* P & M v SSHD 
* R v Immigration Appeal Tribunal; Ex Parte Shah  2 AC 629, 643E, 644G-H (HL)
* Secretary of State for the Home Department v K (FC) (2006)
Journals, Articles & Publications
* M Chaudhry, ‘Particular social groups post Fornah’ (2007) Journal of Immigration
Asylum and Nationality Law 21 (2) 137 – 146
* M Chaudhry, ‘Secretary of State for the Home Department (Respondent) v K (FC)
(Appellant); Fornah (FC) (Appellant) v Secretary of State for the Home Department
(Respondent)’ (2006) Journal of Immigration Asylum and Nationality Law 20 (4) 300 – 302
* B Kelly, ‘What is a “particular social group”? A review of the development of the
Refugee Convention in England’ (2010) Journal of Immigration Asylum and Nationality Law 24 (1) 9 – 28
* H Lambert, ‘The EU asylum qualification directive, its impact on the jurisprudence of the United Kingdom and international law’ (2006) International & Comparative Law Quarterly 55 (1) 161 – 192
· ‘Guidelines on International Protections: Gender-Related Persecution within the Context of Article 1A (2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees’ (7 May 2002) found on www.unhcr.org/443b626b2.html accessed 27 April 2010
* ‘Handbook on procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’ (Geneva, 1979, re-edited 1992) (UNHCR Handbook) found on www.unhcr.org/publ/PUBL/3d58e13b4 accessed 27 April 2010
* Prof T A Aleinikoff, ‘Protected Characteristics and social perceptions: an analysis of the meaning of “membership of a particular social group” (Cambridge University Press, June 2003) found on http://www.unhcr.org/refworld/docid/470a33b30.html accessed 27 April 2010
* Working Paper: ‘Membership in a Particular Social Group: The protection afforded to African refugees in the Czech Republic, Canada, Australia, and the UK’.
It is now becoming a more volatile world with unimaginable regular human displacements, due to war, revolutions, military coups and human rights violations in the name ‘national interest’ protection. This new dimension gave birth to problems of refugees and asylum seekers forcefully living in hostile conditions. This now triggers the question; who is an asylum seeker and who is a refugee?
This question will explore the fate of an asylum seeker regarding responsibilities of EU member states to his arriving EU borders from a third country for protection from persecution; analysis of the regulation criteria guiding EU-States and the legal interventions to prevent his pending removal from the UK under the Dublin Convention 1997 and Human Rights Act 1998. The first part of this answer will outline the criteria of the Convention, and second part will analyse the decisions vis-à-vis the human rights law and other statutory provisions.
An asylum-seeker ordinarily is one that is requesting protection available to refugees under the 1951 Refugee Convention. However, in the case of the UK law and asylum support, it includes someone in fear of being removed to a place where they claim might put them at risk of torture or serious harm.
The Dublin Convention came into force on 1st September 1997, providing criteria for establishing which Member State of the EU is responsible for hearing the asylum application of any given applicant. While this Convention was replaced in 2003 by the Dublin II Convention, for the purposes of this present paper it will be assumed that the Dublin Convention criteria are still operative, today. Based on their affirmed Geneva Convention commitment to cooperate with the UNHCR services as stipulated and their undertaking to take responsibility for the asylum applications lodged by an alien in their borders, some guiding criteria are used to examine these applications.
The relevant criteria are provided in Articles 4 to 8, and by virtue of Article 3(2) of the Convention, these criteria must be applied in the order which they appear; for example, if a criterion from Article 4 applies and so too does a criterion from Article 5, then the criterion from Article 4 will prevail.
The first level of criteria is provided by Article 4 of the Convention and these apply where the applicant has a spouse or a child, who has qualified for refugee status under Article 1(2) of the UNC relating to the Status of Refugees 1951, in the Member State where he wishes to apply for asylum. Elyas does not have a qualifying spouse or child in the UK.
The second level of criteria is provided by Article 5 of the 1997 Convention and these apply where the applicant is in possession of a valid visa. While we have been told that Elyas is in possession of a visa, and the visa was stamped onto a purported forged passport; strictly speaking, this fact calls into question the validity of that visa. Nevertheless, it seems that a stamp on a forged or falsified passport is generally accepted as probative evidence; this fact may therefore prove evidential if no other, more persuasive, proof can be adduced.
The third level of criteria is provided by Article 6 of the Dublin Convention which provides, so long as the applicant has not been present in the Member State for more than six months, “when it can be proved that an applicant for asylum has irregularly crossed the border into a Member State by land, sea or air, having come from a non-member State of the European Communities, the Member State thus entered shall be responsible for examining the application for asylum.” In order to make this assessment, it is necessary for the UK asylum authorities to retrace the itinerary of Elyas, to determine whether or not he came from another Member State of the EU or from a third country.
Elyas is said to be ‘multilingual-speaking,’ even though, he appeared mentally disturbed and speaks incoherently, assuming no document was found on him, confirmation of his nationality will be very difficult. The fact that Elyas claimed he has European relative and can speak few languages, it is advisable to increase effort to establish if he was an EU citizen who could have relocated and now planning to return. If this fails, the assessment provisions of the Dublin Convention will apply, which has now been superseded by Dublin II.
On the facts presented, it will be difficult to make an assessment – there is too much conflicting evidence; namely, 20 Dutch Guilders, 100 Moroccan Dirhams, a map of Amsterdam, a map of Berlin, a newspaper from Kigali and a ferry ticket, with a cancelled name, from Tangier to Tarifa. Because of the difficulty in proving where the applicant came from this criteria is rarely ever applied successfully.
Where there is valid proof that an asylum-seeker illegally crosses through one EU member country’s border or several other countries’ by any means from non-EU member’s, the first entry determines their application for asylum, to prevent multiple asylum applications being made throughout the EU and stopping the ‘refugees in orbit’ trend. But the difficulties in obtaining tangible proof significantly blemished the Convention’s objective in this respect, which places awkward delays on claims.
The fourth level criterion is provided by Article 7 of the Convention for the same reason stated above, unless there was a visa waiver policy in place in that member state. However, it will be difficult to identify the “Member State responsible for controlling the entry of Elyas,” and, therefore, even if all other conditions are met, it might not be possible to determine which Member State ought to be responsible for determining Elyas’ application.
The final criterion is provided by Article 8 of the Convention which states, “where no Member State responsible for examining the application for asylum can be designated on the basis of the other criteria listed in this Convention, the first Member State with which the application is lodged shall be responsible for examining it.” The application of this criterion leads one to the same conclusion which must be reached if the probative value of Elyas’ visa is accepted: the correct place in this case for Elyas asylum application to be considered is the United Kingdom.
Generally, there wasn’t any system in place to monitor asylum seekers after removal, and this substantially encourages different member states to change their laws indiscriminately, increasing the risk of returning applicants to the country they escaped. Asylum seekers could also be removed to an unsafe non-EU state without being challenged. Dublin II established two secured practices namely DubliNet and EURODAC; to avert these problems and maintain confidentiality of information exchange between countries since that practically rendered the original Convention ‘unworkable and unproductive’.
According to Dublin II, for Elyas to be returned anywhere, it must be to an obligated safe third country subjected to the 1951 Refugee Convention and complies with guidelines. Meanwhile, the Dublin II Convention caters for the fairness of rules governing EU countries in the south where very high movement of refugees occur due to their geographical location with insertion of the ‘Sangatte Clause’ to absolve member states of responsibilities for undetected individuals for minimum of five months unlawful stay.
Elyas is therefore entitled, under Article 6 of the ECHR which was incorporated into the HRA 1998, to have his application determined by a fair and impartial tribunal and to enjoy all of the procedural safeguards that are guaranteed under Article 6(3) of the ECHR; these include the right to free legal representation and the right to have a translator or interpreter if he cannot understand the language being used (although, it must be noted that to accept an interpreter might lead the authorities to determine his country of origin, which could weaken his claim).
If the UK immigration authorities were to deport Elyas to Germany without first hearing his application for asylum, then those authorities would be in breach of his conventional Rights to a fair trial, for it has been held and settled at law that the right to a fair hearing cannot be deemed discharged if no hearing takes place. In this instance, Elyas can invoke s6(1) of the HRA 1998 which makes it unlawful for any public body to act in a way that is incompatible with convention rights. Moreover, Immigration Act 1999 made provision for an asylum seeker to challenge the authority where their human rights are breached. In Asaratnam, Penry-Davey J ordered the Secretary of State to return a Sri-Lankan asylum seeker who was deported before he’s ECHR case could be heard in court back to UK, claiming unlawful removal despite being an illegal entrant.
If the UK immigration authorities were to deport Elyas to Germany without first hearing his application for asylum, then those authorities would also be acting in violation of Article 5(1) of that Act which provides not only that, “Everyone has the right to liberty and security of person,” but also that, “Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
It should also be noted that if Elyas has a genuine fear that, if he was returned home, he would be subjected to ill-treatment, and then he may be able to invoke Article 3 of the ECHR, which provides that, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” In the case of Chahal v UK it was held that national authorities must act with due diligence when determining whether or not to deport any given immigrant and, where there is a ‘real risk’ that they will suffer inhuman or degrading treatment or punishment as a result of being deported, then they must not be so deported, even if they are believed to represent a threat to national security.
In TI v UK, the ECHR placed responsibility on UK to make sure there was no risk of refoulement against asylum seekers to prevent article 3 breaches despite Dublin II provisions. This case was followed by Nasseri where it was agreed that Greek’s asylum and Human rights claim was not credible, but no proof that anyone had been refouled in the past. This is now becoming a trend as in EW, the claim of shamble treatment of asylum seekers in Italy was “comprehensively dismissed on the ground that failure to provide reception facilities did not even engage Article 3 as it was not ‘treatment’ and even if it did the conditions did not pass the threshold for ‘inhuman or degrading’ act”.
In just another recent related case in the UK, two known al-Queda operatives who is a threat to the public was allowed an appeal by SIAC, against deportation to Pakistan for the sake of non-refoulment and protection of their article 3 rights of ECHR.
It may also be sufficient for Elyas to argue that he has no money to pay for shelter and food and that his home State will not provide him with this welfare if he is returned there by the UK authorities.
Nonetheless Elyas is still subject to deportation order from UK to Germany. The issue now is, which country would consider Elyas’s asylum application, since he is presumed to be a ‘third-country national’. He probably arrived UK from Germany, an EU country due to the visa on forged German Passport but then, there are traces of via France, (an EU state), and was possible that he also crossed the border from Kigali, Tangier to Tarifa, with a cancelled name. He has family member in the UK whose location and status is unknown.
For any EU member state to remove an asylum seeker to another member state, a certification must have been made to the receiving state and accepted the responsibility under the standing arrangements. Therefore, in the case of Elyas, the Secretary of State must have gotten the consent of Germany for his asylum consideration and that his removal certificate is not subject to court appeal. UK must also be certain that Elyas is not a citizen of a member state and they have satisfied all convention conditions before issuing the certificate.
On a separate note: It must be noted that unless the United Kingdom authorities can satisfy the Court of Elyas’ identity, then they must discharge him in accordance with section 7(4) of the Extradition Act 2003.
In conclusion, while Elyas is still in the UK, he can appeal under NIAA 2002, unless the Secretary of State have not issued removal certificate. But he could make human rights claim under ECHR or Geneva Convention. If it has not been certified to be clearly unfounded, s.93 provided it can be pursued, or challenged by judicial review if certified. Elyas should not be deported to Germany, or anywhere else, until his application for asylum has been heard by the UK Courts. If his identity cannot be established, then he must be discharged.
In conducting the research for this paper, I first consulted the collection of Immigration law resources provided in my module guide and UEL which took me to the indices of the following works, I knew from library database search and where relevant to the ‘Dublin Convention and EU law’, using the search term ‘Dublin Convention’: Craig and De Burca (2008); Noll (2000); Fraser and Harvey (2004); Da Lomba (2004); James Hathaway; Professor Aleinikoff; and Professor Goodwin-Gill.
These sources each provided some useful guidance on the scope of the criteria under the Dublin Convention. However, despite this guidance, I was unable to immediately determine the significa
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