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Membership of a Particular Social Group’ LEGAL AND PROTECTION POLICY RESEARCH SERIES The ‘Ground with the Least Clarity’: A Comparative Study of Jurisprudential Developments relating to ‘Membership of a Particular Social Group’ Michelle Foster University of Melbourne, Australia DIVISION OF INTERNATIONAL PROTECTION AUGUST 2012 PPLA/2012/02 DIVISION OF INTERNATIONAL PROTECTION UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR) CP2500, 1211 Geneva 2 Switzerland E-mail: [email protected] Website: www.unhcr.org The opinions expressed in this paper are those of the authors and do not necessarily represent the position of the United Nations or the United Nations High Commissioner for Refugees. This paper may be freely quoted, cited and copied for academic, educational or other non-commercial purposes without prior permission from UNHCR, provided that the source and authors are acknowledged. The paper is available online at http://www.unhcr.org/protect. © United Nations High Commissioner for Refugees 2012. Table of Contents 1. INTRODUCTION AND BACKGROUND ....................................................................................................... 2 2. THE EMERGENCE OF TWO DOMINANT APPROACHES: PROTECTED CHARACTERISTICS/ EJUSDEM GENERIS AND SOCIAL PERCEPTION ....................................................................................... 5 2.1 THE REJECTION OF EARLIER APPROACHES AND SOME POINTS OF CONSENSUS ........... 5 2.2 PROTECTED CHARACTERISTICS/EJUSDEM GENERIS ................................................................... 6 2.3 SOCIAL PERCEPTION/SOCIOLOGICAL APPROACH ...................................................................... 9 2.4 SOME THEORETICAL NOTES ............................................................................................................... 12 3. THE ‘CODIFICATION’ OF THE PSG GROUND ......................................................................................... 13 3.1 UNHCR GUIDELINES .............................................................................................................................. 13 3.2 THE EUROPEAN COUNCIL’S QUALIFICATION DIRECTIVE ...................................................... 15 3.3 NATIONAL LEGISLATION AND GUIDELINES ............................................................................... 20 4. JUDICIAL INTERPRETATION SINCE 2002 ................................................................................................. 23 4.1 JURISDICTIONS THAT NOW REQUIRE SATISFACTION OF BOTH TESTS (NARROWING OF PSG ANALYSIS)................................................................................................................................... 24 4.1.1 Germany ............................................................................................................................................. 24 4.1.2 The United States ............................................................................................................................. 27 4.1.3 Others ................................................................................................................................................. 34 4.2 JURISDICTIONS THAT RETAIN THEIR PREVIOUS (SINGLE) APPROACH ............................ 36 4.3 JURISDICTIONS THAT REQUIRE EITHER OF THE TESTS TO BE SATISFIED (WIDENING OF PSG ANALYSIS)................................................................................................................................... 38 5. THE APPLICATION OF DIFFERENT TESTS TO PARTICULAR GROUPS .......................................... 40 5.1 WOMEN/GENDER/SEX AS A PSG ........................................................................................................ 40 5.2 CLAIMS BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY ................................ 48 5.3 FAMILY AS A PSG ..................................................................................................................................... 54 5.4 CLAIMS BASED ON AGE ........................................................................................................................ 57 5.5 PERSONS WITH DISABILITIES ............................................................................................................ 61 5.6 FORMER STATUS/ASSOCIATION (INCLUDING GANG MEMBERSHIP) ................................ 64 5.7 GROUPS BASED ON CLASS/WEALTH/OCCUPATION .................................................................. 67 5.7.1 Clan/Caste/Tribe ............................................................................................................................... 67 5.7.2 Economic Class/Wealth ................................................................................................................... 68 5.7.3 Occupation ......................................................................................................................................... 71 6. CONCLUSIONS AND RECOMMENDATIONS .......................................................................................... 73 1 1. INTRODUCTION AND BACKGROUND One of the most complex aspects of establishing qualification for refugee status is the need to link a well-founded fear of being persecuted to a Convention ground, that is, to one’s race, religion, nationality, political opinion or membership of a particular social group. 1 While each of the Convention grounds has been examined in case law across a very wide range of States Parties, none has been subject to the degree of rigorous scrutiny, debate and conflicting interpretative approaches as the most nebulous of the grounds: ‘membership of a particular social group’ (‘MPSG’).2 Due to several factors, including its last minute insertion by the drafters devoid of any explanation as to their intended meaning, 3 its arguable lack of self-evident ‘ordinary meaning’, and its concomitant ability to encompass a wide range of evolving contemporary claims, it has proven to be a promising yet highly controversial element of the refugee definition. While some early judicial forays into its interpretation were tempted to take an ‘I know it when I see it’ approach to identifying a ‘particular social group’,4 most decision-makers and particularly senior appellate courts now recognize that a commitment to the rule of law requires principled and clear standards to guide decision-makers, particularly in the context of decisions that ‘may The author is very grateful to Adrienne Anderson, Anne Kallies, Daniel Baker and Sienna Merope for very helpful research assistance with this paper and to Christopher Lum for editorial assistance. The excellent work of Adrienne Anderson is particularly acknowledged. 1 As the Summary Conclusions of the United Nations High Commissioner for Refugees (‘UNHCR’) Expert Roundtable on ‘Membership of a Particular Social Group’ noted in 2001, it is the ‘Convention ground with the least clarity’: E. Feller et al. (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge: Cambridge University Press, 2003), 312 [1]. 2 As explained by Lord Bingham in K v Secretary of State for the Home Department; Fornah v Secretary of State for the Home Department [2007] 1 AC 412 (‘Fornah’), in contrast to the other four grounds, ‘the meaning of “a particular social group”, for all the apparent simplicity and intelligibility of that expression, has been the subject of much consideration and analysis’: at 430. 3 As is well known, the inclusion of ‘particular social group’ was made at the suggestion of the representative of Sweden, Mr Petrén, who noted that ‘experience has shown that certain refugees had been persecuted because they belonged to particular social groups. The draft Convention made no provision for such cases, and one designed to cover them should accordingly be included’: United Nations General Assembly Conference of Plenipotentiaries on the Status of Refugees and Stateless persons, Summary Record of the Third Meeting held at Geneva, 3 July 1951, A/Conf 2/SR 3 at 14, cited in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 234 n 36 (Brennan J) (‘Applicant A’). However as Brennan J noted in Applicant A, ‘[n]either the Swedish proposal nor any reported discussion illuminates the intended scope of the term’. 4 See Applicant A (1997) 190 CLR 225. Kirby J stated that ‘courts and agencies should turn away from attempts to formulate abstract definitions. Instead, they should recognise ‘particular social groups’ on a case by case basis. This approach (…) accepts that an element of intuition on the part of decision-makers is inescapable, based on the assumption that they will recognise persecuted social groups of particularity when they see them’: at 307– 308. 2 determine the fate of individuals’,5 as is the case in refugee law. Further, it is well-accepted that any such interpretation must be undertaken in light of the rules of treaty interpretation set by the Vienna Convention on the Law of Treaties 6 notwithstanding that interpretation is usually undertaken in a domestic law setting. As concluded by the UNHCR expert roundtable on Membership of a Particular Social Group in 2001, ‘[t]he ground must be given its proper meaning within the refugee definition, in line with the object and purpose of the Convention’.7 The challenge is in identifying the ‘true autonomous and international meaning’8 of ‘particular social group’ that conforms with the object and purpose of the Convention and is able to be applied in a consistent and clear manner by decision-makers across
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