Social Group

Membership in a particular social group and the Refugee Issues

As published by the UNHCR in relation to Membership in a particular social group: Assuming that the acts involved in the trafficking for sexual exploitation are determined to constitute persecution, it must be assessed whether the persecution or threat of persecution is on account of one of the five enumerated grounds: race, religion, nationality, membership in a particular social group, or political opinion. While it is possible for female victims of trafficking to be targeted because of their race, religion, nationality or political opinion, as well as any combination of the above, membership in a particular social group will frequently provide the most promise for those women who cannot readily claim persecution on the basis of one of the other four grounds. It is also possible that one or more of the listed grounds may factor into the claim based on membership in a particular social group. The discussions surrounding membership in a particular social group, and, more specifically, gender based persecution are of primary relevance to women seeking asylum in association with trafficking for sexual exploitation.

The category of “membership in a particular social group” has been the source of a variety of interpretations by jurists and scholars around the world, resulting in the lack of a viable clear standard for use in refugee status determinations. There is no explanation of the term contained in the 1951 Convention and there is relatively no discussion contained in the travaux preparatoires regarding the reason for the adoption of this fifth category within the refugee definition.42 The UNHCR Handbook does not provide a great deal more assistance to deciphering the parameters of this category; it states:

77. A “particular social group” normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality.

78. Membership of such a particular social group may be at the root of persecution because there is no confidence in the group's loyalty to the Government or because the political outlook, antecedents or economic activity of its members, or the very existence of the social group as such, is held to be an obstacle to the Government's policies.

79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution.

The guidance provided by the UNHCR Handbook leaves a wide scope for national adjudicators in the interpretation of refugee claims of persecution for reason of membership in a particular social group. It is argued that “a sensible interpretation of the term must be responsive to victims of persecution without so expanding the scope of the 1951 Convention as to impose upon States obligations to which they did not consent.”43 The difficulty of achieving this balance is illustrated through national decisions interpreting the meaning of membership in a particular social group.

In the United States, the BIA decision in Matter of Acosta provided an influential interpretation of membership in a particular social group, which has been citied by jurists in a number of national jurisdictions.44 The case involved the member of a taxi cooperative operating in San Salvador, El Salvador who became the target of threats and physical violence from anti-government guerrilla operations.45 The BIA applied the principle of ejusdem generis, meaning “of the same kind,” to interpret membership in a particular social group in accordance with race, religion, nationality and political opinion.46 In explaining the content inherent in each of the four categories, it stated, “Each of these grounds describes persecution aimed at an immutable characteristic: a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed.”47 The BIA went on to apply this interpretation to membership in a particular social group:

[W]e interpret the phrase '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 shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. Only when this is the case does the mere fact of group membership become something comparable to the other four grounds of persecution under the Act, namely, something that either is beyond the power of an individual to change or that is so fundamental to his identity or conscience that it ought not be required to be changed.48

Several jurisdictions have relied on the interpretation provided by the United States BIA in Acosta. For example, the Canadian Supreme Court attempted to strike the balance between ensuring the protection of human rights and respect for the principle of non-discrimination,49 while limiting the State's obligation to offer protection to individuals fleeing their countries of origin.50 In furtherance of these efforts, the Court agreed with the interpretation taken by the BIA in Acosta and also identified three possible categories falling within the boundaries of particular social group:

(1) Groups defined by an innate or unchangeable characteristic;

(2) Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and

(3) Groups associated by a former voluntary status, unalterable due to its historical permanence.51

The Court indicated that the first category includes individuals facing persecution based on their “gender, linguistic background and sexual orientation,” and that the second group may, for example, contain individuals persecuted for their role as human rights activists.52

The United Kingdom has taken a similar position in the Islam and Ex Parte Shah case where the House of Lords applied the reasoning by the BIA in Acosta in the application of the particular social group category.53 The reasoning employed by the House of Lords to recognize women in Pakistan as a particular social group is discussed in more detail below.

The High Court of Australia has taken a slightly different approach. The Court outlined three principles that must be identified before an individual may be considered to be a member of a particular social group. First, the group must be “identifiable by a characteristic or attribute common to all members of the group,” next, “the characteristic or attribute … cannot be the shared fear of persecution, and finally, “the possession of that characteristic or attribute must distinguish the group from society at large.”54 The Court departed from the cases in the United States, Canada and the United Kingdom when it indicated that it is not necessary for a characteristic to be innate or immutable to define a group.55

The Australian Federal Magistrates Court took an extremely broad view of membership in a particular social group under the 1951 Convention. It explained that the category is “intended to apply whenever persecution is found directed at a group or section of society not necessarily persecuted for racial, religious, national or political reasons.”56 This is the sort of 'catch-all' interpretation of particular social group rejected by the Canadian Supreme Court in Ward because, according to the Court, it would render the enumeration of the five specific categories superfluous.57

In 2002, UNHCR issued guidelines on the application of membership in a particular social group under the 1951 Convention (UNHCR PSG Guidelines).58 The guidelines acknowledge the interpretations taken in national jurisdictions, noting the existence of two specific approaches: the “protected characteristics” approach and the “social perception” approach.59 Jurisdictions utilizing the protected characteristics approach examine “whether a group is united by an immutable characteristic that is so fundamental to human dignity that a person should not be compelled to forsake it.”60 This somewhat more restrictive approach is seen in the decisions in Canada and the United States.

The Guidelines include the three categories outlined in the Ward decision above as a method for identifying groups within the protected characteristics approach.61 In contrast, the social perception approach “examines whether or not a group shares a common characteristic which makes them a cognizable group or sets them apart from society at large.”62 This approach may be more inclusive in practice because it has the possibility of including groups defined by characteristics that would not meet the requirements contained in the protected characteristics approach.63 In a decision of the High Court of Australia, Justice McHugh provided a valuable example of the social perception approach, he writes:

[W]hile persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognisable in their society as a particular social group. Their persecution for being left-handed would create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group.64

This example identifies a reoccurring problem found in refugee status decisions dealing with the category of particular social group. While it is true that a social group must not be defined solely by the persecution, or fear of persecution, suffered by its members,65 it appears that adjudicators have a tendency to conflate the characteristics necessary to constitute a particular social group and the requirement for a well founded fear of persecution in denying recognition of particular social groups. As the Court makes clear above, while persecution may make a group visible as a particular social group in society, it is the characteristic of being left-handed, not the acts of persecution that define the particular social group. Moreover, it is not necessary that all members of the group maintain a well founded fear of persecution; it is sufficient that the characteristic that unites the group serves as a target for persecution.

The UNHCR Guidelines attempt to provide a working definition of particular social group that unifies the “protected characteristics” and “social perception” approaches. The Guidelines state:

[A] particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one's human rights.

It is further explained that sex is a characteristic falling within the ambit of particular social group and that women are a “clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently to men. It is undeniable that women are targets of persecution in some countries because of the simple fact that they are women and UNHCR, as well as many national jurisdictions, has acknowledged this fact with respect to refugee status determinations under the 1951 Convention.