B e f o r e :
LORD JUSTICE AULD
LORD JUSTICE WALLER
and
LADY JUSTICE ARDEN
____________________
Between:
| | SECRETARY OF STATE FOR THE HOME DEPARTMENT
| Appellant
|
| | - and -
|
|
| | SKENDERAJ
| Respondent
|
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(Transcript of the Handed Down Judgment of
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____________________
Stephen Vokes (instructed by Nelsons) for the Appellant
Eleanor Grey (instructed by The Treasury Solicitors) for the Respondent
____________________
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Lord Justice Auld:
- This appeal concerns the definition of refugee in Article 1(A) of the Geneva Convention of 28th
July 1951 in its application to non-state persecution. In particular,
it is concerned, in the context of Albanian blood feuds, with the
definition and consequence of membership of a “particular social group”
and the availability and sufficiency of protection when it is not
sought. The material words of Article 1A are that:
“ … the term ’refugee’ shall apply to any person who:…
owing to a 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; … ”
- Hasan Skederaj, a citizen of Albania,
appeals against the decision of the Immigration Appeal Tribunal
declining to uphold the determination of an adjudicator that he should
be granted asylum. The facts as found by the adjudicator, though of a
somewhat general nature, are not in dispute. Mr Skederaj, with his wife
and two children, entered this country illegally in July 1999 and
immediately claimed asylum. He did so, having initially left Albania in
1997 to spend two years in Italy, then returning to Albania in May 1999
before leaving again in July 1999 and travelling to this country via
France. In interview he said that he had left Albania because of a
dispute between his and another family about ownership of land, that
the dispute had led to violence and the death of one of the other
family’s members and that he feared being killed by the other family.
- The Secretary of State, in his decision
letter refusing Mr. Skenderaj’s claim for asylum: 1) expressed doubts
as to the veracity of his account, given his lengthy stay in Italy and
return to Albania before finally making his way to this country; 2)
said that, in any event, his claim was not for a Convention reason, in
particular it did not amount to a claim of a well-founded fear of
persecution for reason of his membership of a particular social group;
3) said that even if his account was true he had not exhausted domestic
legal remedies before seeking international protection; and 4) added
that he had failed to claim asylum at the first available opportunity
on his route to this country.
- I summarise the account that Mr.
Skenderaj gave to the adjudicator on appeal from the Secretary of
State’s decision and which the adjudicator accepted. When the Communist
State in Albania collapsed, land that had been in public ownership was
returned to private owners. Mr Skenderaj’s family received a particular
plot, their entitlement to which was disputed by a neighbouring family.
There was a confrontation between the two families with some minor
violence followed by a further more serious one in which Mr Skenderaj’s
uncle shot and killed one of the other family. This killing, as the
adjudicator found, “set up a blood feud between the two families which
the … [other] family wished to resolve by a revenge killing”.
- Mr. Skenderaj remained at his house under
fear of that threat until his uncle died of natural causes some two
years later. Because he then felt that he or a cousin would become the
primary object of the feud, he left for Italy and stayed there for two
years. However, the other family discovered his whereabouts and he
decided that he was no longer safe in Italy. So he returned to Albania,
collected his family and finally sought asylum in the United Kingdom.
The adjudicator’s determination
- The adjudicator, in the light of that
account, found that Mr. Skenderaj had a well-founded fear of
persecution in a blood feud. The question was whether the risk of
persecution was because of his membership of a particular social group
so as to engage the Refugee Convention. The adjudicator found that he
was a member of such a group and that the persecution was therefore for
a Convention reason, relying on an obiter observation of Laws J, as he
then was in R. v. IAT, ex p. de Melo & Anor. [1997] Imm AR 43, at 49; and R v. IAT, ex p. Shah [1999] 2 WLR 1015, HL. He said:
“13. I accept that the Appellant, as a male in a family
which is part of a blood feud in Albania, is a member of a social group
and the persecution is therefore for a Convention reason.”
- The adjudicator then turned to the
sufficiency of state protection. He found that it was custom –not fear
of persecution – that stopped those involved in blood feuds in Albania
from seeking police protection and that prompted them to look after
themselves. He added, however, that if they had sought such protection,
the police would not have been able to provide it. This is how he put
it, referring to the sufficiency of state protection test laid down by
the House of Lords in Horvath v SSHD [2002] 3 WLR 379:
“14... The question is whether in fact … [Mr. Skenderaj]
could obtain protection from the State … Mrs Walker argues that it is
not that the police are unable to offer protection in these cases. It
is the choice of the parties not to seek police protection and to
pursue their feuds according to the custom of the country … Taking the
evidence overall, I have come to the conclusion that while it is
reasonable for Mrs. Walker to argue that the parties to the feuds do
not seek police protection nevertheless even if they did so the police
would not be able to offer it. Using the test in the case of Horvath I
accept that although in theory the machinery of prosecution may be in
place the authorities do not in fact have the ability to stop blood
feuds or to protect this particular appellant...
16. ...using the appropriate standard of proof for asylum
cases I consider that the Appellant has established that he has a
well-founded fear of persecution for a convention reason and that the
State is not able to offer him protection against that.”
The Tribunal’s decision
- The Secretary of State appealed to the Immigration Appeal Tribunal on two grounds:
1) that the adjudicator should have found that the social group
argued for does not exist independently of the persecution – put more
shortly, a social group is not created by a common fear; and
2) that the adjudicator failed to consider whether the family was being persecuted for a convention reason.
As those grounds indicate, the Secretary of State did not challenge
the adjudicator’s acceptance of Mr Skenderaj’s account nor his finding
that Mr Skenderaj would not receive effective protection from the
Albanian authorities even if he asked for it.
- The Tribunal did not decide the matter on
the issues raised by the grounds of appeal. It acknowledged that the
grounds went straight to the root of the claim in arguing that fear of
persecution arising from a blood feud was not capable of founding a
case under the Refugee Convention. However, apart from referring to the
adjudicator’s brief ruling on that issue and making oblique references
to it in considering some authorities, it left it unresolved and
disposed of the appeal on the issue of failure to seek state
protection. The Tribunal appears to have accepted, in paragraphs 3 and
8 of its decision, that the state would not have been able to protect
Mr. Skenderaj even if he had sought protection, though this reasoning
shades in paragraph 9 so as to focus more on the reluctance of those
involved to seek protection:
“3 … For present purposes, we accept the adjudicator’s
rather general analysis of the background evidence as showing that the
Albanian authorities would not have been able to protect the
asylum-seeker, even if he had gone so far as asking them to. Since the
internal flight alternative has not been raised in the grounds of
appeal, we accept for present purposes only that this inability would
extend to the country at large; so there was no point in the
asylum-seeker seeking to engage the machinery of State protection at
all. …
8. We can see well enough that there is a serious
protection problem for men involved in blood-feuds in Shkoder: [the
region in which Mr. Sjebnderaj and his family lived]: on the
adjudicator’s findings … this may extend to the country as a whole.
However, what is also quite clear is that the police, typically in a
traditional blood-feud culture, are faced with a wall of silence. …
9. Certainly in a situation of this kind the authorities
are unable to protect those involved; but there is no question of their
practising any discrimination against them in the protection they do
not extend. The problem is not one caused by the State apparatus, … but
by the traditional unwillingness of ordinary people to involve it in
their quarrels. As will be remembered, the adjudicator accepted the
presenting officer’s argument that those involved in feuds do not by
their custom seek police protection; but, taking the view that it would
not be effective in any case, he regarded that as no obstacle to the
claim.”
- The Tribunal developed that reasoning in paragraphs 10 and 11 of its decision:
“10 It is a commonplace of refugee law that international
protection is a surrogate for national. Clearly where seeking national
protection would itself be risky, or where, as in Shah, the
national system itself is the cause of risk, then an asylum-seeker is
not bound to take pointless or counter-productive action to claim it.
On the other hand, the nature of the Albanian blood feud system (as no
doubt with most of its kind) is such that no question of State
protection ever arises. Not only is there no discrimination against
blood feudsmen either in law or police practice: the community as a
whole has simply taken the stand that the feud system falls outside
those areas, and is in effect autonomous. While it is perfectly
possible, on the adjudicator’s findings, to say that this asylum-seeker
faces persecution, in the ordinary sense, from members of the opposing
Alikaj clan, because he is a member of his own, there has not been the
failure of State protection which would turn it into Convention
persecution as a member of a particular social group, because it has
simply never occurred to anyone to engage the State machinery.
11. The asylum-seeker himself did not claim to have tried
to do so; …. Without deciding what view should be taken of an
asylum-seeker who had clearly put himself outside the blood feud
consensus by seeking some solution within Albania, that is not this
case. To say that this asylum-seeker should be entitled to asylum here,
because State protection is not available in Albania, in effect because
neither he nor anyone else caught up in a feud is prepared to seek it,
is in our view to use the Refugee Convention for a purpose for which it
was never intended, and which does not fit.”
- In summary, therefore, the Tribunal
seems to have been prepared to accept that the Albanian authorities
were unable to protect Mr. Skenderaj. However, it found that the
Albanian blood feud system, by the consent of the community, stood
outside the law, with the result that, as the state machinery of
protection was never engaged, there was no failure of protection.
The issues on this appeal
- Mr. Skenderaj now appeals to this Court
on the state protection issue. He maintains that the Tribunal wrongly
relied on his failure to seek state protection when it accepted that
there was a consensus in Albanian society that the state was not
expected to, and would not, provide protection to victims of blood
feuds.
- It seemed to the Court before the start
of the hearing of the appeal that it was unsatisfactory in this case
that the Tribunal had largely ignored the two issues raised by the
appeal before it and had taken the short-cut to deciding the case on
the simple failure of Mr. Skenderaj to seek State protection. All three
issues are important under the Convention and any of them could be
determinative in this case or future cases like it. The first is
whether the potential victim of a blood feud in Albania or other
country with similar traditions may, on that account, be a member of a
particular social group within the Convention. If so, the second is
whether, on the facts of the case the persecution feared is “for
reasons of” such membership. And the third – the only one raised by Mr.
Skenderaj’s appeal - is the sufficiency of state protection in Albania,
whether or not it is available, if it is not sought in such cases.
Accordingly, at the beginning of the hearing of the appeal we invited
Miss Eleanor Grey, for the Secretary of State, to consider advising him
to serve a respondent’s counter-notice out of time so as to enable the
Court to deal with all those issues.
- The Secretary of State then, with the
consent of Mr. Stephen Vokes, for Mr. Skeneraj, and the permission of
the Court, filed and served a counter-notice, seeking to uphold the
order of the Tribunal for the reason it gave and also on the two issues
whether Mr. Skenderaj was a member of a particular social group and, if
so, whether he was persecuted for that reason. The grounds in the
Secretary of State’s counter-notice are that the Tribunal should have
allowed his appeal for the following two reasons in addition to the one
it gave::
i) that Mr. Skenderaj had failed to establish that his family
constituted a particular social group within the meaning of the
Convention, in particular because such a group did not and cannot exist
independently of the persecution, that is, of the common fear; and
ii) that Mr. Skenderaj had failed to establish that he was
persecuted “for reasons of” his membership of a particular social
group.
- To succeed in his claim Mr. Skenderaj
had to establish three things: first, that he was a member of a
particular social group; 2) that his fear of persecution flowed from
such membership; and 3) that the state was unable to protect him from
such persecution or that, owing to such fear, he was unwilling to avail
himself of such state protection as was available.
Particular social group
- Before turning to the submissions of
counsel on this issue, we should briefly refer to the meaning of the
term “particular social group” and to its main non-contentious and
contentious elements. In doing so, we recognise that it is an imprecise
and fact-sensitive term which, depending on the circumstances, can also
involve difficult questions of judgment. We also acknowledge the number
of recent and highly authoritative judicial analyses of the term in
this and other common law countries and do not intend what follows to
be another attempt at a comprehensive analysis of the topic.
- To put counsel’s respective submissions
in context, we suggest that membership of a particular social group
exhibits the following uncontroversial and sometimes over-lapping
features: 1) some common characteristic, either innate or one of which,
by reason of conviction or belief, its members, cannot readily accept
change; 2) some shared or internal defining characteristic giving
particularity, though not necessarily cohesiveness, to the group, a
particularity which, in some circumstances can usefully be expressed as
a setting it apart from the rest of society; 3) subject to possible
qualification that we discuss below, a characteristic other than a
shared fear of persecution; and 4) subject to possible qualification in
non-state persecution cases, a perception by society of the particularity of the social group.
- Though guidance can be derived from the
particular groups identified in Article 1A)(2) and the application of
the ejusdem generis rule, there is potential for a broad range of
collectivities. Whether there is a particular social group of which a
claimant is a member is essentially a mixed question of fact, policy
and judgment in the context of the society in which it is claimed to
exist. Persons with common innate characteristics, such as persons of
the same gender or family, do not necessarily constitute a particular
social group. And particular social groups can be very large or very
small and, depending on the circumstances, can consist of a clan or a
family. See e.g. In re Acosta (1985) I & N 211; Re GJ [1998] INLR 387, NZRSA; Attorney-General of Canada v. Ward [1993] 2 SCR 689; Applicant A v. Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381; Minister for Immigration and Multicultural Affairs v. Sarrazola [1999] FCA 1124; ex p. Shah; Chen Shi Hai v. The Minister for Immigration and MulticulturalAffairs [2000] HCA 19; Refugee Appeal No 71427/199 [2000] INLR, 608; and R v. SSHD, ex p. Montoya, (00TH0016), IAT, 27th April 2001.
- Those familiar with the issue and the
authorities may wonder why, in the light of the House of Lords’
treatment of the matter in ex p. Shah, we have qualified the
notion of “setting apart from society” and have made no mention of
discrimination or stigmatisation as defining characteristics of a
particular social group. We acknowledge that the protection provided by
the refugee test as a whole is undoubtedly inspired by
anti-discrimination notions; see, e.g., Refugee Appeal No 71427/199 and ex p. Shah.
But we have held back on them for the moment because they have been
live issues in this appeal and because we believe it is open to
question whether, in a non-state persecution case as here, it is a necessary
defining characteristic of a particular social group. There is a
particular difficulty where the persecution is by somebody other than
the state. In such a case, if setting apart, discrimination or
stigmatisation is an essential element, who is doing the setting apart,
discriminating or stigmatising? Not necessarily society. It may just be
those doing the persecuting. The state comes into it if it fails to
protect, as some of their Lordships observed in ex p. Shah, but
that failure, though a product or symptom of discrimination, goes to a
different part of the refugee test. In short can a claimant, in a
non-state persecution case, establish that he is a member of a
particular social group simply by proving that someone - anyone- has
marked out his group - in this case a family - for special attention,
say, a quarrelsome and violent neighbour or a gang leader in pursuit of
some private spite or vengeance?
- Mr. Vokes initially appeared to accept
the need to establish some setting apart or discrimination on this part
of the refugee test. He submitted that Mr. Skenderaj was a member of
particular social group that faced discrimination amounting to
persecution because he was a male in a family involved in a blood feud
prompted by his uncle’s killing of a member of the other family. Such
family membership giving rise to such discrimination, he argued,
amounted to an immutable social characteristic rendering him a member
of a social group “set apart from society” and thus within the
Convention. To the Court’s enquiry whether that did not infringe the
principle that the group should not be defined by the persecution, he
submitted that it was only “partially defined” by the persecution since
there was also the immutable tie of kinship.
- Miss Grey acknowledged that a family
group could be a particular social group, since society recognises the
family bond as distinct and attaches importance to it, but only if
society also sets it apart in such a way as to stigmatise or
discriminate against it for that reason. She maintained that Mr.
Skenderaj had failed to establish before the adjudicator that his
family constituted a particular social group within this meaning. She
submitted that there was no discrimination here other than that
identified by the persecution itself, that is, the social grouping was
based solely on the blood feud manifested in the persecution.
- Miss Grey submitted that there was no
evidential basis for recognising Mr. Skenderaj’s family as a “group
apart” or stigmatised in any way or discriminated against. She said
that the family was not on the facts of this case recognised as a
distinct group by society and to the extent that it was so regarded by
the family with whom it was feuding, it was essentially a private
matter, as in Pedro v. IAT [2000] Imm AR 489, CA. And the
state’s non-intervention, to the extent that it resulted either from
incapacity, unwillingness or ignorance of the matter did not provide
the discrimination, because it did not intervene generally in such
feuds. She added that unless every land owning family in Albania were
to constitute a particular social group, which is not Mr. Skenderaj’s
case, only the start of a feud can mark a family group out. Such an
approach would impermissibly rely on the act or acts of persecution to
define the group. Accordingly, she submitted, neither Mr. Skenderaj’s
family nor the male members of it formed a particular social group
within the Convention.
- Now that we have identified the area of dispute on this issue, we return to ex p. Shah.
There was clear discrimination of Pakistani women in that case, but we
doubt whether that factor was necessary to the House of Lords’
determination that they or some of them constituted a particular social
group. The main reason for the resort to anti-discriminatory principles
was to dismiss the notion that cohesiveness was a necessary element of
such a group. Given the approach of the US Board of Immigration and
Appeals in Acosta and of the reasoning of La Forest J. in the Supreme Court of Canada in Attorney-General of Canada v. Ward [1993] 2 SCR 689 on which their Lordships drew heavily in ex p. Shah,
it may be that, on this part of the refugee test at least,
discrimination was not an essential. Thus, as Lords Steyn and Hoffmann
mentioned, at 1026e-h and 1033b-h respectively, in Acosta, the Board said that a particular social group was one distinguished by an immutable characteristic; and in Ward,
La Forest J. said simply, and by reference, to the whole refugee
concept, that it could include individuals fearing persecution on “such
bases as gender, linguistic background and sexual orientation”.
- Lord Hope seemingly did not regard the
notion of discrimination as essential to the definition of a particular
social group, as distinct from the whole concept of refugee status. He
said, at 1038e-g and1039c-d:
“In general terms a social group may be said to exist when
a group of people with a particular characteristic is recognised as a
distinct group by society. The concept of a group means that we [are]
dealing here with people who are grouped together because they share a
characteristic not shared by others, not with individuals. The word
‘social’ means that we are being asked to identify a group of people
which is recognised as a particular group by society. …
The rule that the group must exist independently of the
persecution is useful, because persecution alone cannot be used to
define the group. But it must not be applied outside its proper
context. This point has been well made by Goodwin-Gill … He
observes at pp 47-48 that the importance, and therefore the identity,
of a social group is an open-ended one, which can be expanded in favour
of a variety of different classes susceptible to persecution …
Persecution may be but one facet of broader policies and perspectives,
all of which contribute to the group and add to its pre-existing
characteristics.”
- Lord Millett, in his dissenting speech
(which turned on the reason for persecution of the women applicants),
clearly found a degree of difficulty in the overlap of the two concepts
of discrimination and persecution, a difficulty which, with respect, we
share. Persecution of members of a particular social group only
qualifies as persecution for a Convention reason if it is for reasons
of such membership, which of necessity must be discriminatory. It is
otiose and circular that the group should have to be defined by some
discriminatory element before consideration of whether it is persecuted
for that reason. Providing that there is a social group in the Acosta sense, the discrimination is to be found in the persecution. Lord Millett said, at1043f-g and 1044d-e:
“… it is not enough for the applicant for asylum to
establish that he or she is a member of a particular social group and
is liable to persecution. The applicant must also establish that he or
she is liable to persecution because he or she is a member of the
group. The applicant must be the subject of attack, not for himself or
herself alone, but because he or she is one of those jointly condemned
in the eyes of their persecutors for possession of the characteristic
which is common to the group. …
Whether the social group is taken to be that contended for
by the appellants, however, or the wider one of Pakistani women who are
perceived to have transgressed social norms, the result is the same. No
cognisable social group exists independently of the social conditions
on which the persecution is founded. The social group which the
appellants identify is defined by the persecution, or accurately (but
just as fatally) by the discrimination which founds the persecution. It is an artificial construct called into being to meet the exigencies of the case. [my emphasis].
- We also draw strength in this regard from the judgment of the High Court of Australia in Chen, where
one of the issues was whether black children in China constituted a
particular social group. The Court was firmly of the view that
discrimination is not an essential defining characteristic of a
particular social group:
“22 …the group constituted by children born in those
circumstances is defined other than by reference to the discriminatory
treatment or persecution that they fear. And so much was recognised by
the Tribunal in its finding that a ‘child is a black child’
irrespective of what persecution may or may not befall him or her.
23 The circumstance that ‘black children’ receive adverse
treatment in China is descriptive of their situation and, as McHugh J
pointed out in Applicant A, that may facilitate their recognition as a social group for the purposes of the Convention but it does not define it.
Accordingly, there was no error in the Tribunal’s finding that, for the
purposes of the Convention, the appellant is a member of a particular
social group.” [our emphasis]
- There is plenty of scope for giving
effect to anti-discriminatory principles underlying the protection of
refugees when considering whether membership of such a group attracts
persecution of all or, as in Shah, some of them. Put
another way, it is not necessary to insist upon discrimination as a
defining element of a particular social group to satisfy McHugh J’s
proposition in Applicant A, at 401, that the latter must exist
independently of, and not be defined by, persecution. If, we are right
about this, it could explain the thinking behind McHugh J’s
qualification of the proposition, at 402, that “while persecutory
conduct cannot define the social group, the actions of persecutors may
serve to identify or even cause the creation of a particular social
group.” Professor Goodwin-Gill in The Refugee in International Law, 2nd ed. (1996) at, 362, expressed much the same view:
“In Ward the Supreme Court was clearly of the view
that an association of people should not be characterised as a
particular social group, ‘merely by reason of their common
victimisation as the objects of persecution’. The essential question,
however, is whether the persecution feared is the sole distinguishing fact that results in the identification of the particular social group”
He added, referring to state persecution, which is not this case:
“Taken out of context, this question is too simple, for
wherever persecution under the law is the issue, legislative provisions
will be but one facet of broader polices and perspectives all of which contribute to the identification of the group, adding to its pre-existing characteristics.”
- Moreover, as Miss Grey commented in
argument, McHugh J’s proposition that a particular social group must
have an existence independently of the persecution is difficult to fit
with non-state persecution. Lord Steyn’s and Lord Hope’s concern in ex p. Shah,
at 1027d-e, and 1039c-d respectively, that it should not be given a
reach which neither logic nor good sense demands also found expression
in relation to non-state persecution in the caution of Lord Hoffmann,
at 1036C-E, that such cases should be considered by adjudicators on a
case by case basis. In, ex p. Shah, as he said, the distinguishing feature was the evidence of institutionalised discrimination against women by the state.
- As we have already indicated there is
powerful authority that kinship or family membership may, depending on
the circumstances, qualify as membership of a particular social group.
Lord Steyn indicated as much in Shah, at 1026e-h, drawing on what he
described as “the seminal reasoning” of the United States Board of
Immigration Appeals in In re Acosta:
“Relying on an ejusdem generis interpretation the Board
interpreted the words ‘persecution on account of membership in a
particular social group’ to mean ‘persecution ‘that is directed toward
an individual who is a member of a group of persons all of whom share a
common immutable characteristic’ The Board went on to say that the
shared characteristic might be an innate one ‘such as sex, color or
kinship ties”
See also: ex p. de Melo & Anor, per Laws J at 49; Quijano v. SSHD [1997] Imm AR 227, CA., per Thorpe LJ at 229 and 230, per Morritt LJ at 233, and per Roch LJ at 234; and. Sarrazola.
- In our view, on the evidence accepted
by the adjudicator and not challenged before the Tribunal, Mr.
Skenderaj has not made out his claim that he was a member of a
particular social group so as to engage the other elements of the test
of a refugee in Article 1A(2). We say that, not for the reason
principally relied on by Miss Grey that there was no setting apart or
stigmatisation of, or discrimination against, the family outside the
persecution alleged since, for the reasons we have given, we do not
regard that as a necessary part of the definition of a particular
social group, particularly in a non-state persecution case. We say it
because, as Miss Grey also submitted, the Skenderaj family was not
regarded as a distinct group by Albanian society any more than, no
doubt, most other families in the country. To rely on the attitude of
the family with whom it was feuding, as a marking out of the Skenderaj
family so as to make it a particular social group for this purpose
would be artificial. The threat was, as in Pedro (which
concerned the rape of a woman in Angola by a soldier) a private matter,
just as would be a long-standing and violent feud between neighbours or
threats of violence from criminals for some actual or perceived slight
or with some motive of dishonest gain. It would be absurd to regard the
first limb of the refugee test as engaged every time a family is on the
receiving end of threatening conduct of that sort.
- If, contrary to our view, some element
of discrimination is required to establish the Skenderaj family as
particular social group, it could not be found in the state’s
non-intervention, since that would arise, if at all, only as a result
of the private persecution and then in the context of the second limb
of the definition of refugee concerned with lack of protection. Nor
could it be found in the other family’s persecutory attitude since,
again, it is impermissible to rely on persecution to establish the
group for Convention purposes where no other distinguishing feature
other than that it is a family is made out. As Miss Grey observed,
unless every land-owning family in Albania were to constitute a
particular social group, which is not Mr. Skenderaj’s case, only the
start of a feud can mark such a family group out.
Persecution “for reasons of” membership of a particular social group
- On the issue whether, if, contrary to
our view, Mr. Skenderaj’s family is a particular social group, he fears
persecution for reasons of that membership, Mr. Vokes submitted that he
fears persecution for who he was, that is, a member of a family
involved in a blood feud resulting from the Government’s
re-distribution of land. In fact, as we have said, the adjudicator’s
finding was narrower, namely that Mr. Skenderaj feared persecution
because he was a member of a family, a senior member of whom had killed
a member of another family
- Miss Grey submitted that Mr. Skenderaj
had failed to establish that the reasons for his fear of persecution
was membership of his family. She said that the effective cause of his
fear was the threat of reprisal for his uncle’s unlawful killing of a
member of the other family, the threat flowing from his relationship
with his uncle. She added that the deceased’s family could have
targeted anyone whom they regarded as associated with the uncle,
whether or not a member of the family. In short, the effective cause
was criminality – a threat of a revenge attack by another individual -
rather than action taken for a Convention reason.
- Their Lordships’ reasoning in ex p. Shah,
in particular of Lord Steyn at 1028a-d, Lord Hoffmann at 1034h-1036b
and Lord Millett at 1044a-b, favours an “effective cause” rather than a
“but for” test. That is of a piece with the common-sense approach urged
by Kirby J. in Chen, at paras. 32 and 66-69.
- In Quijano, there was a claim
for asylum on the ground of persecution by reason of the claimant’s
membership of his stepfather’s family. The Secretary of State did not
contest that in certain circumstances a family could be a social group
within the Convention. However, the Court of Appeal rejected the claim
because it arose, not because the claimant was a member of his
stepfather’s family, but because the stepfather was being persecuted
for refusal to co-operate with a drug cartel, which was not a
Convention reason. The Court considered that, as persecution of the
stepfather had not been for a Convention reason, persecution of the
claimant could not be transformed into persecution for such a reason
simply because he was a member of the same family. In doing so they
took a different view from that of Laws J in ex p. de Melo, who
had said obiter that persecution of a person for a non-convention
reason could lead to persecution of other members of his family for the
same reason becoming persecution of them for a Convention reason,
because their membership of the family made them a particular social
group. Thorpe LJ said, at 232:
“… I conclude that the persecution arises not because the
appellant is a member of the Martinez family but because of his
stepfather’s no doubt laudable refusal to do business with the cartel.
The persecution has that plain origin and the cartel’s subsequent
decision to take punitive action against an individual related by
marriage is fortuitous and incidental as would have been a decision to
take punitive action against the stepfather’s partners and their
employees had the business been of that dimension.”
Morritt LJ said at 233:
“… the fear of each member of the group is not derived from
or a consequence of their relationship with each other or their
membership of the group but because of their relationship, actual or as
perceived by the drugs cartel, with the stepfather of the appellant.
The stepfather was not persecuted for any Convention reason so that
their individual relationship with him cannot cause a fear of a
Convention reason either. In short, the assumed fear of the appellant
is not caused by his membership of a particular social group.”
Roch LJ made the same point, but in more general terms, at 234:
“Where … the ground relied upon by the applicant for
refugee status is ‘a well-founded fear of being persecuted for
membership of a particular social group’ the persecution feared must be
persecution of the social group as a social group. A family is a social
group. For the family to become a ‘particular social group’ within the
meaning of the Convention, it must, in my judgment, be a family which
is being persecuted or likely to be persecuted because it is that
family.”
- Quijiano must now be read in the light of ex p. Shah
in that the definition of a particular social group does not depend on
whether all its members are persecuted by reason of their membership.
However, the reasoning still stands on the issue whether, given that a
family is or may be a particular social group, the fear of persecution
is “for reasons of” that membership. And it is important in the
distinction that it draws between identification of the group where
there is some societal discrimination or, as here, a dispute between
two neighbouring families, and the conduct prompting fear of
persecution. The relationship of members of a family to one of their
number facing persecution for a non-convention reason is one thing, the
membership of a family which, as a family, faces persecution is
another. As always, the decision on causation in such cases will be one
of fact and degree and decision-makers should keep their feet on the
ground, notwithstanding the heady issues that Balkan blood feuds can
engender. We are talking about neighbours’ quarrels, albeit of a most
serious nature, in which the action of one individual, here a killing,
may lead to persecution of him and/or those associated with him. The
following remarks of the Tribunal in Correa (01TH01177), 7th June 2001, are pertinent:
“In our view, a straightforward family feud does not engage
the protection of the Refugee Convention, unless for example there is
some evidence of a differential lack of protection, or some Convention
content over and above the family background (as required in Quijano).
Otherwise one might be faced with bizarre situation that one man would
not be protected against fear of his personal enemies; but if they took
out vengeance on his brother, then the brother would be protected. No
doubt if the first man sought to protect his brother, and brought down
the wrath of his enemies on himself while engaged in that, then he too
could expect protection.”
- For those reasons, we are of the view
that, even if Mr. Skenderaj’s family is a particular social group, his
fear of persecution was not because of that membership but because of
fear of reprisal for his uncle’s act of killing one of the other
family.
Failure to seek State protection
- Mr.Vokes challenged the conclusion of
the Tribunal that Mr. Skenderaj’s failure to invoke the protection of
the State because that was the norm in Albania blood-feud cases took
his claim outside Convention because of failure to “engage the State
machinery”. He relied on the reasoning of the House of Lords in Horvath,
in particular of Lord Hope, at 498E-H, 499H and 500E-H, and of Lord
Clyde, at 510E-H, in support of the proposition that states cannot, by
a known “helpless acceptance” of third party persecutory acts accepted
by society, be relieved of the obligation to provide sufficient
protection against them. He submitted that in non-state persecution
claims the availability or otherwise of sufficient state protection is
not the sole test, since a product of a well-founded fear of
persecution may well be an unwillingness to seek it. He drew attention
to the wording of the second limb of Article 1A(2) which, for
convenience, we repeat:
“ … is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ..”
He stressed the breadth of the state’s obligation in this respect, citing the words of Lord Lloyd in Adan v. SSHD [1999] AC 293, HL, at 306C, in his discussion of both limbs of the definition,
which he called respectively the “fear” and “protection” tests:
“But if, for whatever reason, the state in question
is unable to afford protection against factions within the state, then
the qualifications for refugee status are complete. Both tests would be
satisfied.” [our emphasis]
- Mr. Vokes sought to support this
challenge by reference to much literature showing the prevalence of
blood feuds in Albania and of the unwillingness and/or inability of the
Albanian police to protect persons who are potential victims of such
feuds. He also drew particular attention to the following passage from
the speech of Lord Clyde in Horvath, at 510A-C:
“Professor Goodwin-Gill …, p. 73 .. observes: ‘where the
state is either unable or unwilling to satisfy the standard of due
diligence in the provision of protection, the circumstances may equally
found an international claim.’ The important consideration here to my
mind is that the persecution is encouraged or permitted by the
authorities or they are unable or unwilling to prevent it. Even in
cases where the state may not initiate or direct the acts complained
of, its encouragement, permission, toleration or helpless acceptance of
the act may constitute a case of persecution. Thus the acts may be seen
as constructively acts by the state and so be within the kind of acts
which the Convention is concerned to cover.”
- Miss Grey also took the Court to their Lordships’ treatment of the topic in Horvath, in which, having taken into account the guidance of the European Court of Human Rights in Osman v. UK
(1998) 29 EHRR 245 and applying the principle of surrogacy, they
identified the test and standard as one of relative sufficiency, not an
absolute guarantee, of protection. See also Hari Dhima v. IAT [2002] EWHC 80 (Admin).
She submitted that the Tribunal correctly applied that test and
standard to the circumstances here, where Mr Skenderaj did not, and no
one would, invoke the protection of the state in a case involving a
blood feud. She said that, to hold that the state had failed in its
duty to protect him would, paraphrasing the words of the European Court
in Osman, ignore the constraints on the provision of police
protection and impose an impossible or disproportionate burden upon the
authorities. The root cause of the inability of the state to protect
him was his and other blood feud victims’ unwillingness to seek its
protection rather than any inherent inability or unwillingness of the
state to provide it if asked.
- The difficulty about that submission is the adjudicator’s finding, purporting to apply the Horvath
test, that even if victims of blood feuds in Albania did seek state
protection, the police could not provide it. As we have noted, the
Secretary of State did not challenge that finding on his appeal to the
Tribunal, confining his grounds to fear of persecution. The matter only
arises for consideration now because of the Tribunal’s reliance on it,
seemingly as a short cut, to its decision.
- As Lord Clyde pointed out in Horvath,
at 516F-517D, there are two alternative parts of the lack of protection
limb of the definition of a refugee, and each case must be considered
on its own facts. Satisfaction of either alternative will meet it. The
first is a claimant’s inability to avail himself of state protection,
which may be because it is non-existent or insufficient; see, for
example, in the context of Albanian blood feuds, Bregu v. SSHD, IAT Decision 01TH02286, 17th
October 2001. Or it may be because he is in some way personally
disabled from seeking it. The second is his unwillingness to avail
himself of it because of fear of persecution for a Convention reason.
Such fear must be a well-founded fear of persecution, not just an
expectation, however well founded, that the police cannot or will not
do anything about it. Thus, if the state cannot or will not provide a
sufficiency of protection, if sought, the failure to seek it is
irrelevant. And that is so whether the failure results from a fear of
persecution or simply an acceptance that to do so would be futile.
- There may be difficulty, where the
sufficiency of protection has to be measured against the practical
limitations on a state to protect its citizens from violence or threats
of violence to which it is not alerted and its protection is
deliberately not sought. To stigmatise a state so hampered as providing
insufficient protection would wrongly impose on it a duty of guarantee,
which, as Lords Hope and Clyde said in Horvath¸ respectively at 500F-H and 510F-H, would be beyond what is required or, as the European Court held in Osman,
at paragraph 116 in relation to Article 2 of the ECHR, would be
disproportionate. Effective policing depends heavily on policing by
consent. The Court has recently determined that such an approach
conforms with Strasbourg jurisprudence; see Dhima v. IAT (CO/2392/2001),
…. 2002. However, given the adjudicator’s finding and the Tribunal’s
acceptance of the Albanian authorities’ inability to provide protection
even if sought, this difficulty does not arise in this case.
- On the other hand, if the state can
provide a sufficiency of protection which an applicant is not disabled
from seeking, he can only rely on the alternative of his unwillingness
to do so, if it flows from a well-founded fear of persecution, for
example of collusion of the authorities with his persecutors, in
effect, an insufficiency of protection rendering him unable to avail
himself of it. It would not qualify under this alternative that he does
not seek protection because he has a well-founded belief that the state
won’t provide it or, as the adjudicator appears to have found, because
of a societal norm not to seek it. We do not regard Lord Lloyd’s use of
the words “for whatever reason” in the passage from Lord Lloyd’s speech
in Aden, on which Mr. Vokes relied, as applicable to inability
to afford protection produced by unwillingness of an applicant to seek
protection for reasons other than fear of persecution, since that would
make the second alternative of unwillingness “owing to such fear”
otiose. If the reason is a well-founded belief that the State would not
provide protection, such a construction is, in any event, unnecessary,
since such a state of mind would amount to well-founded fear that would
satisfy the first alternative of inability to avail himself of
protection. Lord Lloyd touched on this point in Horvath, at 507D-E:
“As for the second part of the protection test, there will
not be many cases in which an applicant who is able to avail himself of
the protection of his country of origin, will succeed on the ground
that he is unwilling to do so. Here the applicant’s case … is that he
regards the local police as ineffective and indifferent. But he is not
the sole judge of that. The test is objective. The Immigration Appeal
Tribunal has found as a fact that the available protection satisfies
the Convention standard. There are no special circumstances which would
enable the applicant to succeed on the second branch of the protection
test, having failed on the first. …”
- In our view, it was inappropriate for
the Tribunal when considering the issue of state protection, on which
it based its decision, to argue that there was no discrimination by the
state because the absence of protection flowed from unwillingness of
blood feud victims to seek it rather than the state’s failure to extend
it to them. Such reasoning begs the essential question under Article 1A
(2) whether unwillingness, as distinct from inability, is “owing to” a
fear of persecution. As Mr. Vokes submitted, such a blanket exclusion
from state protection is plainly discriminatory, amounting as it would
to an autonomous persecutory system lying “outside society”. In any
event, despite the close inter-relationship of the fear and protection
tests, it is, in our view, unhelpful and unnecessary in non-state
persecution cases to turn to discrimination or the lack of it when
focusing on the latter.
- The critical factor in cases where a
victim of non-state persecution is unwilling to seek state protection
is not necessarily whether the state is able and willing to provide a
sufficiency of protection to the Horvath standard, though in
many cases it may be highly relevant to the victim’s well-founded fear
of persecution. The test is whether the potential victim’s
unwillingness to seek it flows from that fear. As we have said, the
Tribunal clearly accepted, in paragraph 9 of its decision, the
adjudicator’s finding that those involved Albanian blood feuds,
including by implication Mr. Skenderaj, do not seek police protection
because they consider it would not be effective.
- However, as we have said, the Tribunal
appears to have been satisfied, as was the adjudicator, that, whatever
Mr. Skenderaj’s reason for not seeking protection, the state could not
have provided it anyway, thus bringing his claim within the first
alternative of inability to provide protection. Nevertheless, for the
reasons we have given earlier in relation to the fear of persecution
limb of the definition of refugee, we are of the view that he has not
established he had such a fear for a Convention reason so as to take
advantage of the second limb of the definition. Accordingly, we dismiss
his appeal.
Lord Justice Waller:
- I agree.
Lady Justice Arden:
- I also agree.
Order:
- The appeal be dismissed
- The Appellant to pay Respondent’s costs of the appeal and that there be detailed assessment of such costs
- Detailed legal aid assessment of the Appellant’s costs.
(Order does not form part of the approved judgment)
