UK - House of Lords, 18 October 2006, Fornah v. Secretary of State for the Home Department (linked with Secretary of State for the Home Department v. K) [2006] UKHL 46

The issue in the appeal was whether the applicant could establish a claim that she faced persecution on account of her membership of a particular social group. The applicant argued that she was a member either of the particular social group of ‘women in Sierra Leone’ or, alternatively, ’uninitiated women in Sierra Leone who had not been subjected to FGM.’  An intervention by UNHCR supported the interpretation of the 1951 Convention that the applicant put forward.

The Court of Appeal had held by a majority that the applicant had not established that she was a member of a particular social group for a number of reasons based on its interpretation of previous United Kingdom caselaw.  These reasons included that the practice of FGM in Sierra Leone was not discriminatory in a way that set those who are subjected to it apart from others in society and that FGM could not be used as the defining characteristic of the particular social group because it was inseparable from the persecution feared.

In the House of Lords, Lord Bingham held that the Court of Appeal had been mistaken.  He found that “[o]n that evidence, I think it clear that women in Sierra Leone are a group of persons sharing a common characteristic which, without a fundamental change in social mores is unchangeable, namely a position of social inferiority as compared with men. They are perceived by society as inferior. That is true of all women, those who accept or willingly embrace their inferior position and those who do not. To define the group in this way is not to define it by reference to the persecution complained of: it is a characteristic which would exist even if FGM were not practised, although FGM is an extreme and very cruel expression of male dominance”.  Consequently, women in Sierra Leone were a particular social group.  Baroness Hale agreed with this analysis. 

Lord Hope allowed the appeal on the basis that the applicant was the member of a particular social group of uninitiated women in Sierra Leone.  Lord Rodger and Lord Brown agreed with both Lord Bingham and Lord Hope

Importantly Lord Bingham approved the UNHCR Guidelines on membership of a particular social group.   Further, he held that Art 12 of the Qualification Directive “read literally...is in no way inconsistent with the trend of international authority. When assessing a claim based on membership of a particular social group national authorities should certainly take the matters listed into account. I do not doubt that a group should be considered to form a particular social group where, in particular, the criteria in sub-paragraphs (i) and (ii) are both satisfied. Sub-paragraph (iii) is not wholly clear to me, but appears in part to address a different aspect. If, however, this article were interpreted as meaning that a social group should only be recognised as a particular social group for purposes of the Convention if it satisfies the criteria in both of sub-paragraphs (i) and (ii), then in my opinion it propounds a test more stringent than is warranted by international authority.  Lord Brown expressly agreed with Lord Bingham on this point.