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.

News
The surrealist comedian at the Q Awards in 2010
people
Life and Style
Six of the 76 Goats' cheese samples contained a significant amount of sheep's cheese
food + drink
News
Russell Brand arriving for the book launch in East London
peopleRussell Brand cancels his book launch debate due to concerns about the make-up of the panel
Life and Style
Could you tell the difference between this and an organic alternative?
food + drink

Culinary experts in The Netherlands thought it was 'fresh' and 'tasty'

PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksAn unforgettable anthology of contemporary reportage
Arts and Entertainment
Contestants during this summer's Celebrity Big Brother grand finale
tvBroadcaster attempts to change its image following sale to US
Life and Style
tech

Of all the computers Apple has ever made there’s only one that Steve Jobs had to sell his car to finance

News
New look: Zellweger at Elle's Women in Hollywood awards on Monday

Actress sees off speculation about her face in an amazing way

Arts and Entertainment
Sarah Dales attempts to sell British Breeze in the luxury scent task
tvReview: 'Apprentice' candidates on the verge of tears as they were ejected from the boardroom
News
Call me Superman: one of many unusual names chosen by Chinese students
newsChinese state TV offers advice for citizens picking a Western moniker
Arts and Entertainment
film

Marvel has released first teaser trailer week early after it leaked online

Arts and Entertainment
Awesome foursome: Sam Smith shows off his awards
music22-year-old confirms he is 2014’s breakout British music success
Arts and Entertainment
Frank Sivero in Goodfellas; Simpsons' wise guy Louie

The sound of Goodfellas mafioso Frankie Carbone demanding $250m in “damages” would be chilling enough on film, let alone in real life.

News
Let’s pretend: KidZania in Tokyo
educationKidZania lets children try their hands at being a firefighter, doctor or factory worker for the day
News
i100
Voices
'Irritatingly Disneyfied': fashion vlogger Zoella
voicesVicky Chandler: Zoella shows us that feminism can come in all forms
Life and Style
health
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Front end web developer - URGENT CONTRACT

£250 - £300 Per Day: Clearwater People Solutions Ltd: **URGENT CONTRACT** Our...

Year 3 Teacher

£21000 - £31000 per annum: Randstad Education Chelmsford: KS2 Teachers - Chelm...

ABAP Developer

£32000 - £38000 per annum: Ampersand Consulting LLP: SAP ABAP Developer - Rugb...

Head of Finance - Media

£80000 - £90000 per annum: Sauce Recruitment: Working for an International Mul...

Day In a Page

How could three tourists have been battered within an inch of their lives by a burglar in a plush London hotel?

A crime that reveals London's dark heart

How could three tourists have been battered within an inch of their lives by a burglar in a plush London hotel?
Meet 'Porridge' and 'Vampire': Chinese state TV is offering advice for citizens picking a Western moniker

Lost in translation: Western monikers

Chinese state TV is offering advice for citizens picking a Western moniker. Simon Usborne, who met a 'Porridge' and a 'Vampire' while in China, can see the problem
Handy hacks that make life easier: New book reveals how to rid your inbox of spam, protect your passwords and amplify your iPhone

Handy hacks that make life easier

New book reveals how to rid your email inbox of spam, protect your passwords and amplify your iPhone with a loo-roll
KidZania lets children try their hands at being a firefighter, doctor or factory worker for the day

KidZania: It's a small world

The new 'educational entertainment experience' in London's Shepherd's Bush will allow children to try out the jobs that are usually undertaken by adults, including firefighter, doctor or factory worker
Renée Zellweger's real crime has been to age in an industry that prizes women's youth over humanity

'Renée Zellweger's real crime was to age'

The actress's altered appearance raised eyebrows at Elle's Women in Hollywood awards on Monday
From Cinderella to The Jungle Book, Disney plans live-action remakes of animated classics

Disney plans live-action remakes of animated classics

From Cinderella to The Jungle Book, Patrick Grafton-Green wonders if they can ever recapture the old magic
Thousands of teenagers to visit battlefields of the First World War in new Government scheme

Pupils to visit First World War battlefields

A new Government scheme aims to bring the the horrors of the conflict to life over the next five years
The 10 best smartphone accessories

Make the most of your mobile: 10 best smartphone accessories

Try these add-ons for everything from secret charging to making sure you never lose your keys again
Mario Balotelli substituted at half-time against Real Madrid: Was this shirt swapping the real reason?

Liverpool v Real Madrid

Mario Balotelli substituted at half-time. Was shirt swapping the real reason?
West Indies tour of India: Hurricane set to sweep Windies into the shadows

Hurricane set to sweep Windies into the shadows

Decision to pull out of India tour leaves the WICB fighting for its existence with an off-field storm building
Indiana serial killer? Man arrested for murdering teenage prostitute confesses to six other murders - and police fear there could be many more

A new American serial killer?

Police fear man arrested for murder of teen prostitute could be responsible for killing spree dating back 20 years
Sweetie, the fake 10-year-old girl designed to catch online predators, claims her first scalp

Sting to trap paedophiles may not carry weight in UK courts

Computer image of ‘Sweetie’ represented entrapment, experts say
Fukushima nuclear crisis: Evacuees still stuck in cramped emergency housing three years on - and may never return home

Return to Fukushima – a land they will never call home again

Evacuees still stuck in cramped emergency housing three years on from nuclear disaster
Wildlife Photographer of the Year: Intimate image of resting lions claims top prize

Wildlife Photographer of the Year

Intimate image of resting lions claims top prize
Online petitions: Sign here to change the world

Want to change the world? Just sign here

The proliferation of online petitions allows us to register our protests at the touch of a button. But do they change anything?