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.

PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksAn unforgettable anthology of contemporary reportage
News
Teeth should be brushed twice a day to prevent tooth decay
education
News
Bryan Cranston as Walter White, in the acclaimed series 'Breaking Bad'
news
Sport
footballChelsea 6 Maribor 0: Blues warm up for Premier League showdown with stroll in Champions League - but Mourinho is short of strikers
News
Those who were encouraged to walk in a happy manner remembered less negative words
science
Arts and Entertainment
Princess Olga in 'You Can't Get the Staff'
tvReview: The anachronistic aristocrats, it seemed, were just happy to have some attention
News
Renee Zellweger as Bridget Jones
i100
Life and Style
tech

Board creates magnetic field to achieve lift

News
There have been various incidents of social media users inadvertently flouting the law
news

Life and Style
Stack ‘em high?: quantity doesn’t always trump quality, as Friends of the Earth can testify
techThe proliferation of online petitions allows us to register our protests at the touch of a button. But do they change anything?
News
Bourgogne wine maker Laboure-Roi vice president Thibault Garin (L) offers the company's 2013 Beaujolais Nouveau wine to the guest in the wine spa at the Hakone Yunessun spa resort facilities in Hakone town, Kanagawa prefecture, some 100-kilometre west of Tokyo
i100
Sport
CSKA Moscow celebrate after equalising with a late penalty
footballCSKA Moscow 2 Manchester City 2: Premier League champions let two goal lead slip in Russia
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

IT Project Manager

Competitive: Clearwater People Solutions Ltd: Our client based in Chelmsford a...

Business Intelligence Specialist - work from home

£40000 per annum: Ashdown Group: An established and growing IT Consultancy fir...

Business Intelligence Specialist - work from home

£40000 per annum: Ashdown Group: An established and growing IT Consultancy fir...

IT Manager

£40000 - £45000 per annum + pension, healthcare,25 days: Ashdown Group: An est...

Day In a Page

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?
Ed Sheeran hits back after being labelled too boring to headline festivals

'You need me, I don’t need you'

Ed Sheeran hits back after being labelled too boring to headline festivals
How to Get Away with Murder: Shonda Rhimes reinvents the legal drama

How to Get Away with Murder

Shonda Rhimes reinvents the legal drama
A cup of tea is every worker's right

Hard to swallow

Three hospitals in Leicester have banned their staff from drinking tea and coffee in public areas. Christopher Hirst explains why he thinks that a cuppa is every worker's right
Which animals are nearly extinct?

Which animals are nearly extinct?

Conservationists in Kenya are in mourning after the death of a white northern rhino, which has left the species with a single male. These are the other species on the brink
12 best children's shoes

Perfect for leaf-kicking: 12 best children's shoes

Find footwear perfect to keep kids' feet protected this autumn
Anderlecht vs Arsenal: Gunners' ray of light Aaron Ramsey shines again

Arsenal’s ray of light ready to shine again

Aaron Ramsey’s injury record has prompted a club investigation. For now, the midfielder is just happy to be fit to face Anderlecht in the Champions League
Comment: David Moyes' show of sensitivity thrown back in his face by former Manchester United manager Sir Alex Ferguson

Moyes’ show of sensitivity thrown back in his face... by Ferguson

Manchester United legend tramples on successor who resisted criticising his inheritance
Two super-sized ships have cruised into British waters, but how big can these behemoths get?

Super-sized ships: How big can they get?

Two of the largest vessels in the world cruised into UK waters last week
British doctors on brink of 'cure' for paralysis with spinal cord treatment

British doctors on brink of cure for paralysis

Sufferers can now be offered the possibility of cure thanks to a revolutionary implant of regenerative cells
Ranked seventh in world’s best tourist cities - not London, or Edinburgh, but Salisbury

Lonely Planet’s Best in Travel 2015

UK city beats Vienna, Paris and New York to be ranked seventh in world’s best tourist destinations - but it's not London