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

Country of Decision:
Country of Applicant:
Date of Decision:
18-10-2006
Citation:
[2006] UKHL 46
Additional Citation:
[2007] 1 AC 412, [2007] 1 All ER 671, [2006] 3 WLR 733
Court Name:
House of Lords
National / Other Legislative Provisions:
ICCPR
ICCPR - Art 7
ICCPR - Art 23.1
UNCAT
UNCAT - Art 1
UNCAT - Art 16
UNCRC
UNCRC - Art 37 (a)
Printer-friendly versionPrinter-friendly version
Headnote: 

The case concerned the issue of whether ‘family’ constitutes a particular social group. The applicant was recognised as a refugee on the basis of her well founded fear of persecution as a member of her husband’s family.

Facts: 

This case is a decision in the first of two linked appeals.

The applicant was a woman from Iran whose husband disappeared.  He had been arrested and held without charge or trial by the authorities in Iran, but the reason for his detention was unknown.  A few weeks after his detention, the Revolutionary Guard searched her home.  A number of weeks later, she was raped at home by members of the Revolutionary Guard.  A few months later the Revolutionary Guard approached her 7 year old son’s new school to intimidate her.  She fled, fearing further persecution, and claimed asylum in the United Kingdom.

Her account was accepted.

Decision & Reasoning: 

In the appeal of K, the issue was whether the applicant could establish a claim that she feared persecution on account of her membership of a particular social group; namely her family.  She was at risk because of her family relationship to her husband.  However, the reason for her husband’s arrest and indefinite detention was unknown.  The Court of Appealhad dismissed the appeal on the basis of a previous binding decision of the Court of Appeal of England and Wales, Quijano v Secretary of State for the Home Department[1997] Imm AR 227.  Applying that decision to the applicant’s case, she could not establish that the persecution that she feared was on account of her membership of a particular social group and, in addition, it was necessary to establish that her husband was at risk of persecution for a convention reason if the applicant was to succeed in establishing that her family was a particular social group.  

In the House of Lords, Lord Bingham, with whom the other judges agreed, held that the Court of Appeal had been distracted from the key question of “what will be the real reason for the persecution of the claimant of which the claimant has a well-founded fear?”   Further, in these circumstances, family could constitute a particular social group “whether applying …Art 10(d)(i) and (ii) [of the Qualification Directive], jointly or alternatively”. Consequently, as a result of the finding of fact that the applicant feared persecution as a member of her husband’s family, the applicant’s appeal was allowed.

Outcome: 

The applicant’s appeal was allowed

Observations/Comments: 

The appeal was linked with the appeal in Fornah v. Secretary of State for the Home Department, which is separately summarised.

Other sources cited: 

Universal Declaration of Human Rights,

UNHCR Executive Committee Conclusions on Refugee Women and International Protection, 18 October 1985,

UNHCR Guidelines on Membership of a Particular Social Group,

UNHCR 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, 17 March 2006 Prohibition of Female Circumcision Act 1985,

Prohibition of Female Genital Mutilation (Scotland) Act 2005,

European Parliament Resolution A5-0285/2001, 20 September 2001,

UK Asylum Policy Instruction “Gender Issues in the Asylum Claim” Canada "Women Refugee Claimants Fearing Gender-Related Persecution", 13 November 1996,

"Gender-Related Persecution (Article 1A(2): An Australian Perspective", Department of Immigration and Multicultural and Indigenous Affairs, 2001, T Alexander Aleinikoff,

Protected characteristic and social perceptions: an analysis of the meaning of "membership of a particular social group", UNHCR's Global Consultations on International Protection, ed Feller, Turk and Nicholson (2003), pp 263-311,

James C Hathaway, The Rights of Refugees under International Law (2005, pp 255-256) andThe Law of Refugee Status (1991), pp 164-166,

G S Goodwin-Gill, The Refugee in International Law (1996), p 361,

Canada - Compendium of Decisions, Immigration and Refugee Board, February 2003, pp 31-35

Case Law Cited: 

UK - R (Adan and others) v Secretary of State for the Home Department [2001] 2 AC 477

Australia - Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1

Austria - 21 March 2002, GZ 220.268/0-XI/33/00 (unreported)

United States - In re Acosta (1985) 19 I & N 211

United States - Mohammed v Gonzales 400 F 3d 785 (9th Cir 2005)

United States - Abankwah v Immigration and Naturalization Service 185 F 3d 18 (2d Cir 1999)

United States - In re Kasinga (1996) 21 I & N Dec 357

Australia - Minister for Immigration and Multicultural Affairs v Sarrazola (No 4) [2001] FCA 263

United States - Thomas v Gonzales 409 F 3d 1177 (9th Cir, 2005),

Australia - 16 October 1997, RRT N97/19046 (unreported)

Australia - Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1998] INLR 1

Australia - Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387

UK - R v Immigration Appeal Tribunal, Ex p De Melo [1997] Imm AR 43

UK - Suarez v Secretary of State for the Home Department [2002] EWCA Civ 722

UK - R v Immigration Appeal Tribunal, Ex p Shah and Islam [1999] 2 AC 629

Australia - Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1998] INLR 1

UK - 19 July 1996, Quijano v Secretary of State for the Home Department, Ex parte de Melo [1997] Imm AR 227

Australia - Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293

UK - Secretary of State for the Home Department v Savchenkov [1996] Imm. AR 28

UK - Secretary of State for the Home Department v Skenderaj [2002] EWCA Civ 567

UK - R (Sivakumar) v Secretary of State for the Home Department [2003] UKHL 14

Canada - 10 May 1994, Re B(PV) [1994] CRDD No 12