Law Report: 12 November 1997; Particular social group not created by employment

The expression "particular social group" in article 1A(2) of the Geneva Convention on the status of refugees did not ordinarily cover a body of people linked only by the work which they did.

Secretary of State for the Home Department v Ouanes; Court of Appeal (Lord Justice Hobhouse, Lord Justice Pill and Lord Justice Mummery) 7 November 1997

The Court of Appeal allowed the Home Secretary's appeal against a determination of the Immigration Appeal Tribunal that Mrs Hafsa Ouanes, an Algerian citizen, qualified for asylum because she had well founded fear of persecution if she were returned to Algeria because of her membership of a particular social group, within the terms of article 1A(2) of the 1951 Geneva Convention on the status of refugees.

The respondent was employed by the Algerian Ministry of Health as a midwife, part of her duties being to advise about contraception. She claimed to be in danger from Islamic fundamentalist terrorists who were opposed to contraception.

Ian Burnett (Treasury Solicitor) for the Home Secretary; Charles Bloomer (Davis Blank Furniss, Manchester) for the respondent.

Lord Justice Pill said that the Immigration Appeal Tribunal had, in effect, found the respondent to be a member of a particular social group within the meaning of article 1A(2) of the Geneva Convention, and that the group was to be defined by reference to the duties which each of them had to perform on behalf of their employer. One of those duties, which was essential to continued employment as a midwife, was to provide advice on contraception. The well founded fear of persecution arose because the Islamic fundamentalists were opposed to that duty being performed, and the authorities were unable to provide protection for the respondent.

It had been submitted for the Home Secretary that the expression "particular social group" did not cover groups of employees sharing a common employer, or a common employment, or both in combination. In Secretary of State for the Home Department v Savchenkov [1996] Imm App R 28, counsel had put forward the proposition that the other Convention reasons (race, religion, nationality and political opinion) reflected a civil or political status, and that "membership of a particular social group" should be interpreted ejusdem generis.

In R v Secretary of State for the Home Department, ex p Shah (unreported, 23 July 1997), a revised formulation of that proposition had been adopted, ie:

the Convention emphasises that the group must be a "particular" and "social" group. This means that the members of the group share something which unites them, and which sets them apart from the rest of society and is recognised as such by society generally.

The main point at issue in ex p Shah was the degree of cohesiveness required for a particular social group to exist, and a proposition was required to deal with that question. That was not the critical factor in the present case. The people in the present case did have common interests which were identifiable, and by reason of their duties would be regarded as a distinct group for the purposes of employment. The issue was whether identity of interest in employment was sufficient to constitute a particular social group within article 1A(2).

While the proposition might have been stated too narrowly or in too condensed a form in Savchenko, the ejusdem generis principle did appear to have a part to play in the present context. That principle was not a rigid rule but an aid to construction, and the substance of the links required to constitute people as a "particular social group" must be considered in the context of the Convention and article 1A(2).

The Convention, as its preamble recited, was concerned with fundamental rights and freedoms. Whilst the "right to work" appeared as such a right in article 23 of the Universal Declaration of Human Rights 1948, it did not readily convert into a right of asylum for inability to do a specific job. The characteristic that defined the particular social group must, in situations such as the present, be one that the members should not be required to change because it was fundamental to their individual identities or conscience. Such a group must be one "whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association" (see Ward v Attorney General of Canada [1993] 2 RCS 689).

Shared duties in midwifery did not come within that principle. The expression "particular social group" did not ordinarily cover a body of people linked only by the work they did. A common employment did not ordinarily have that impact upon individual identities or conscience which was necessary to constitute a particular social group within the meaning of the Convention. The appeal would be allowed.