United Kingdom (Secretary of State for the Home Department) v. K., (2006) 364 N.R. 279 (HL)

• Case Date: October 18, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 364 N.R. 279 (HL)

U.K. v. K. (2006), 364 N.R. 279 (HL)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. MY.004

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] UKHL 46)

Indexed As: United Kingdom (Secretary of State for the Home Department) v. K.

House of Lords

London, England

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood

October 18, 2006.

Summary:

Two women, one from Iran (K) and one from Sierra Leone (Fornah) (the claimants), sought refugee status, claiming a well-founded fear of persecution in their home countries "for reasons of ... membership of a particular social group". An adjudicator allowed both their claims; however, the Immigration Appeal Tribunal reversed the adjudicator's decisions. The Court of Appeal agreed that the treatment which the claimants alleged they would suffer if returned home, although persecutory, would not be "for reasons of … membership of a particular social group" and therefore the claimants fell outside the definition of refugee. The claimants appealed, seeking to be recognized as refugees so that they would enjoy the stronger protection to which refugees were entitled.

The House of Lords allowed the appeals and restored the adjudicator's decisions.

Aliens - Topic 1323.1

Admission - Refugee protection, Convention refugees and persons in need of protection - "Particular social group" defined - Article 1A(2) of the United Nations Convention Relating to the Status of Refugees defined "refugee" as any person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…" - The House of Lords discussed the meaning of the phrase "a particular social group" as used in article 1A(2) - See paragraphs 10 to 122.

Aliens - Topic 1323.1

Admission - Refugee protection, Convention refugees and persons in need of protection - "Particular social group" defined - K fled Iran after her husband was imprisoned without charge or trial - The Revolutionary Guard had searched her house, raped her and made inquiries at school about her seven year old son - She sought refugee status in the United Kingdom under article 1A(2) of the United Nations Convention Relating to the Status of Refugees, alleging a well-founded fear of persecution "for reasons of ... membership of a particular social group", namely her husband's family - An adjudicator allowed her claim, but the Immigration Appeal Tribunal and Court of Appeal rejected her claim, holding that she was being persecuted as an individual because of her association with her husband, and not as the member of any particular social group, i.e., it was not the family of which she was a member that was being persecuted - K appealed - The House of Lords allowed the appeal - The court discussed the approach to be taken in determining when membership in a family constituted membership in a social group for purposes of article 1A(2) - See paragraphs 19 to 24, 39 to 52, 59 to 68, 88, 89, 104 to 107, and 116 to 122.

Aliens - Topic 1323.1

Admission - Refugee protection, Convention refugees and persons in need of protection - "Particular social group" defined - Fornah fled Sierra Leone to avoid female genital mutilation (FGM) - She sought refugee status in the United Kingdom under article 1A(2) of the United Nations Convention Relating to the Status of Refugees, alleging a well-founded fear of persecution "for reasons of ... membership of a particular social group" - An adjudicator found that her fear was for a Convention reason, i.e., because of her membership of a particular social group, that of young, single Sierra Leonean women, who were clearly at considerable risk of enforced FGM - The Immigration Appeal Tribunal and the Court of Appeal disagreed with the adjudicator, holding that the persecutory treatment was not for reasons of membership of a particular social group as claimed - Fornah appealed - The House of Lords allowed the appeal, holding that Fornah was a member of a particular social group - The members of the court expressed differing views of how broadly to define the social group in this case, i.e., whether the group included women in Sierra Leone generally or whether the group should be limited for example to "intact women in Sierra Leone" - See paragraphs 25 to 33, 53 to 58, 69 to 82, 90 to 103, 108 to 115 and 116 to 122.

Words and Phrases

For reasons of - The House of Lords discussed the meaning of this phrase as used in article 1A(2) of the United Nations Convention Relating to the Status of Refugees - See paragraphs 17 and 18.

Words and Phrases

Particular social group - The House of Lords discussed the meaning of this phrase as used in article 1A(2) of the United Nations Convention Relating to the Status of Refugees - See paragraphs 10 to 122.

Cases Noticed:

Quijano v. United Kingdom (Secretary of State for the Home Department), [1997] Imm. A.R. 227 (C.A.), refd to. [paras. 3, 42, 63, 104].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Adan, [2001] 2 A.C. 477, refd to. [para. 10].

Januzi v. United Kingdom (Secretary of State for the Home Department), [2006] 2 W.L.R. 397; 345 N.R. 345; [2006] UKHL 5, refd to. [para. 10].

Shah - see Islam v. United Kingdom (Secretary of State for the Home Department).

Islam v. United Kingdom (Secretary of State for the Home Department), [1999] 2 A.C. 629; 238 N.R. 97; [1999] UKHL 20 (H.L.), refd to. [paras. 12, 34, 74, 85].

Applicant A v. Minister for Immigration and Ethnic Affairs (1997), 190 C.L.R. 225 (Aust. H.C.), refd to. [paras. 13, 44, 77, 99, 120].

Acosta, Re (1985), 19 I. & N. 211 (U.S. Imm. Ap. Bd.), refd to. [paras. 14, 99].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [paras. 14, 99].

Chan v. Minister of Employment and Immigration, [1995] 3 S.C.R. 593; 187 N.R. 321, refd to. [para. 14].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Sivakumar, [2003] 1 W.L.R. 840; 308 N.R. 91; [2003] UKHL 14, refd to. [para. 18].

Sepet et al. v. United Kingdom (Secretary of State for the Home Department), [2003] 1 W.L.R. 856; 305 N.R. 366; [2003] UKHL 15, refd to. [para. 18].

Suarez v. United Kingdom (Secretary of State for the Home Department), [2002] E.W.C.A. Civ. 722; [2002] 1 W.L.R. 2663, refd to. [para. 18].

Chen Shi Hai v. Minister for Immigration and Multicultural Affairs (2000), 201 C.L.R. 293, refd to. [para. 18].

Minister for Immigration and Multicultural Affairs v. Sarrazola (No. 4), [2001] F.C.A. 263, refd to. [paras. 18, 65].

Thomas v. Gonzales (2005), 409 F.3d 1177 (9th Cir.), refd to. [paras. 18, 65].

Skenderaj v. United Kingdom (Secretary of State for the Home Department), [2002] E.W.C.A. Civ. 567; [2002] 4 All E.R. 555, refd to. [para. 19].

Savchenko v. United Kingdom (Secretary of State for the Home Department), [1996] Imm. A.R. 28 (C.A.), refd to. [paras. 19, 120].

R. v. Immigration Appeal Tribunal; Ex parte De Melo, [1997] Imm. A.R. 43 (C.A.), refd to. [paras. 20, 42, 65].

P. and M. v. United Kingdom (Secretary of State for the Home Department), [2004] E.W.C.A. Civ. 1640; [2005] Imm. A.R. 84 (C.A.), refd to. [paras. 26, 108].

Kasinga, Re (1996), 21 I. & N. Dec. 357 (U.S. Bd. Imm. App.), refd to. [paras. 26, 57].

Abankwah v. Immigration and Naturalization Service (1999), 185 F.3d 18 (2nd Cir.), refd to. [para. 26].

Mohammed v. Gonzales (2005), 400 F.3d 785 (9th Cir.), refd to. [para. 26].

P.V.B., Re, [1994] C.R.D.D. No. 12, refd to. [para. 26].

Minister for Immigration and Multicultural Affairs v. Khawar (2002), 210 C.L.R. 1 (Aust. H.C.), refd to. [para. 27].

Applicant S v. Minister for Immigration and Multicultural Affairs (2004), 217 C.L.R. 387, refd to. [paras. 41, 73].

Minister for Immigration and Multicultural Affairs v. Sarrazola (No. 3), [2001] F.C.A. 919 (Aust. F.C.), refd to. [para. 63].

Islam v. United Kingdom (Secretary of State for the Home Department), [1997] Imm. A.R. 145, refd to. [para. 107].

Statutes Noticed:

United Nations Convention Relating to the Status of Refugees, art. 1A(2) [para. 10].

Authors and Works Noticed:

Aleinikoff, T. Alexander, Protected characteristics and social perceptions: an analysis of the meaning of "membership of a particular social group" (2001), generally [paras. 14, 57]; p. 289 [para. 113].

Australia, Department of Immigration and Multicultural and Indigenous Affairs, Gender-Related Persecution Article 1A(2): An Australian Perspective (2001), generally [para. 26].

Canada, Immigration and Refugee Board, Compendium of Decisions (2003), pp. 31 to 35 [para. 26].

Canada, Women Refugee Claimants Fearing Gender-Related Persecution (November 13, 1996), generally [para. 26].

European Union, Council Directive (April 29, 2004), 2004/83/EC, art. 10 [para. 16].

Goodwin-Gill, Guy S., The Refugee in International Law (2nd Ed. 1996), p. 361 [para. 19].

Haines, Rodger, Gender-related Persecution, generally [para. 100].

Hansard (Can.) - see Canada, Hansard, Legislative Assembly Debates.

Hansard (U.K.) - see United Kingdom, Hansard, House of Commons Debates.

Hathaway, James C., The Law of Refugee Status (1991), pp. 164, 165, 166 [para. 19].

Hathaway, James C., The Rights of Refugees under International Law (2005), pp. 255, 256 [para. 84].

Home Office (U.K.), Gender issues in the asylum claim, para. 7(iv) [para. 26].

Michigan Guidelines on Nexus to a Convention Ground (2001), generally [para. 18].

San Remo Expert Roundtable - see United Nations High Commissioner for Refugees, Guidelines on International Protection.

UNISEF Innocenti Digest, Changing a Harmful Social Convention: Female Genital Mutilation/Cutting (2005), generally [para. 93].

United Kingdom, Hansard, House of Commons Debates (July 15, 1996), col. 818 [para. 26].

United Nations High Commissioner for Refugees, Executive Committee Conclusions on Refugee Women and International Protection (October 18, 1985), generally [para. 84].

United Nations High Commissioner for Refugees, Global Consultations on International Protection (2003), pp. 263 [para. 14]; 263 to 311 [paras. 57, 97]; 280 [para. 14]; 289 [para. 57].

United Nations High Commissioner for Refugees, Guidelines on Gender-Related Persecution (May 7, 2002), paras. 5 [para. 85]; 30, 31 [para. 100].

United Nations High Commissioner for Refugees, Guidelines on International Protection (May 7, 2002), paras. 8 [para. 107]; 10 [para. 15]; 11 [paras. 100, 118]; 12 [paras. 15; 100]; 13 [para. 15]; 17 [para. 52].

United Nations High Commissioner for Refugees, Guidelines on Membership of a Particular Social Group (May 7, 2002), para. 2 [para. 98].

United Nations High Commissioner for Refugees, Handbook on Procedure and Criteria for Determining Refugee Status, para. 77 [para. 98].

United Nations High Commissioner for Refugees, Position on claims for refugee status under the 1951 Convention relating to the Status of Refugees based on a fear of persecution due to an individual's membership of a family or clan engaged in a blood feud (March 17, 2006), p. 5 [para. 45].

United Nations Special Rapporteur, Report on violence against women (January 31, 2002), E/CN.4/2002/83, para. 6 [para. 8].

Counsel:

Nicholas Blake, Q.C., and Melanie Plimmer (Instructed by Browell Smith & Company), for the appellant, K.;

Rabinder Singh, Q.C., and Tim Eicke (Instructed by Treasury Solicitor), for the respondent, K.;

Frances Webber and Kathryn Cronin (Instructed by Brighton Housing Trust Immigration Legal Services), for the respondent, Fornah;

Rabinder Singh, Q.C., and Robin Tam, Q.C., (Instructed by Treasury Solicitor), for the respondent, Fornah;

Michael Fordham, Q.C. (Instructed by Baker & McKenzie LLP), for UNHCR, for the intervenor in Fornah.

These appeals were heard by Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood, of the House of Lords. The decision of the House was delivered on October 18, 2006, when the following opinions were filed:

Lord Bingham of Cornhill - see paragraphs 1 to 33;

Lord Hope of Craighead - see paragraphs 34 to 58;

Lord Rodger of Earlsferry - see paragraphs 59 to 82;

Baroness Hale of Richmond - see paragraphs 83 to 115;

Lord Brown of Eaton-under-Heywood - see paragraphs 116 to 122.