IVANAUSKIENE'S v A SPECIAL ADJUDICATOR [2001] EWCA Civ 1271

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR. JUSTICE CRESSWELL

[2001] EWCA Civ 1271

Case No Case No: C/2001/0350

Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 31st July 2001

Between

IVANAUSKIENE'SAppellant

A SPECIAL ADJUDICATORRespondent

Before

Lord Justice Schiemann

Lord Justice Mance

Lord Justice Rix

Hugh SOUTHEY (instructed by Kay & Co. for the Appellant)

Khawar M. QURESHI (instructed by The Treasury Solicitors for the Respondent)

Date 31 July 2001

LORD JUSTICE SCHIEMANN:

Introduction

[1]The appellant comes from Lithuania. She was regularly assaulted by her former husband with whom she continued to share what had been their matrimonial home. She claimed asylum here as a refugee. The basis of her claim to asylum is that what her husband did to her in the past and threatened to do in the future amounted to persecution; that there has been and will be a failure by the state authorities in Lithuania to afford her protection from her ex husband and his associates; this is because she is a member of a particular social group, namely, women in Lithuania and that the degree of the failure to protect her was so great that she was entitled to seek the protection of the international community as a refugee.

[2]The Geneva Convention provides in Article 1A "the term 'refugee' shall apply to any person who …(2)…owing to well …founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country."

[3]From that definition it appears that in order to qualify as a refugee a number of preconditions must be fulfilled :- 1. The applicant must fear persecution; 2. The persecution feared must be persecution for a Convention reason; 3. The fear must be well founded; 4. The applicant must be outside the country of his nationality; 5. The applicant must be either a) unable to avail himself of the protection of the country of his nationality, or b) unwilling, owing to such fear, to avail himself of the protection of the country of his nationality.

[4]In the context of the present case two problems which frequently occupy the courts are engaged.

[5]One is whether an applicant is disqualified from refugee status by the fact that the persecution which he fears is not by the state of his nationality but rather by one or more persons within that state. It is now established that this does not disqualify him. However he will still need to satisfy precondition 5. Merely showing that protection against persecution can not be guaranteed by the country of his nationality to persons in his position is not enough. He must go further and be able to show that the standard of protection against persecution afforded by that country to persons in his position is so low as to call for the surrogate protection of the international community.

[6]The other problem which has occupied the courts arises from the fact that it is established that being a member of a class which is persecuted is not sufficient to constitute that class a "particular social group". The problem is to determine what can constitute "a particular social group" so as to enable an applicant to say that he fears persecution because he is a member of that group.

[7]Whether all the women in a country can be regarded as a particular social group for the purposes of the Geneva Convention was the problem which the House of Lords considered in R v Immigration Appeal Tribunal ex parte Shah

[1999] 2 AC 629

. The circumstances in which a person is to be regarded as being unwilling, owing to the fear of persecution by persons other than agents of the State, to avail himself of the protection of the country of his nationality was the problem which the House of Lords considered in Horvath v Secretary of State for the Home Department

[2001] 1 AC 489

[8]This appeal arises because each of these cases was decided after the Special Adjudicator in the present case had heard the parties' submissions. The Special Adjudicator and the parties in the present case acted on the basis that the law was as it had been declared to be by Court of Appeal in R v Immigration Appeal Tribunal ex parte Shah [1998] 1 W.L.R. 74. Three judgements were delivered each of which proceeded on the basis that in order to constitute a social group something more was required than being of the same gender and of the same nationality. Before the Special Adjudicator in the present case the appellant's counsel conceded, probably in the light of the Court of Appeal decision in Shah, that she could not show that the persecution was for a Convention reason and therefore merely asked for a recommendation that she be given exceptional leave to remain. Thereafter the House of Lords reversed the Court of Appeal decision. Their Lordships came to the conclusion that in Pakistan Pakistani women, because of the discrimination against them by the state, constituted a particular social group for the purposes of the Convention. The appellant now submits that she should not be bound by the concession which she made before the adjudicator and submits that the case might have gone differently before the Special Adjudicator had everyone known the effect of the House of Lords decision. She submits that justice requires that she should be given another chance to adduce material which is now perceived to be relevant but which at the time of the hearing before the Special Adjudicator was not regarded as relevant because of the decision of the Court of Appeal in Shah .

[9]It was on this basis that the present appellant asked Cresswell J., sitting in the Administrative Court, to send the case back to the Special Adjudicator to be decided again in the light of the law as it is now understood to be and to quash the decision of the Secretary of State for the Home Department to refuse the appellant exceptional leave to remain. This Cresswell J. refused to do. Hence this appeal to us which raises some points of general importance. The decision in Shah

[10]It is important to understand what happened in that case. The claimant in Shah came from Pakistan. She had been forced by her husband to leave home. She feared he suspected her of adultery. The claimant's root difficulty in Shah was showing that any persecution would be "for reasons of … membership of a particular social group". In the Court of Appeal no-one argued that the social group of which the claimant asserted that she was a member could consist women who lived in a society where women were discriminated against by the State. The members of the Court differed as to what extra elements were required but all agreed that something more was required before something could be described as a social group.

[11]The House of Lords decided that the evidence before it showed that the State of Pakistan itself discriminated against women by its actions. Thus women could be held imprisoned by the state for years without prior investigation simply on the basis that an allegation of sexual misconduct had been made against them by a man; if a woman suspected of adultery was returned home she would be unprotected by the state and would be subject to a risk of criminal proceedings for sexual immorality. If found guilty the punishment might be flogging or stoning to death. : see 635G-636E, 644E, 646C, 647D, and 658D. On those facts their Lordships decided that the claim to refugee status was made out. It was the fact that the state discriminated against women which entitled a woman to claim that she was a member of a particular social group : see 644E, 652B, 658D. Moreover, given the central feature of state-tolerated and state-sanctioned gender discrimination, the argument that the women feared persecution not because of membership of a particular social group but because of the hostility of their husbands was not accepted: see 646D, 654D, 655H. It is clear that their Lordships were of the view that the mere fact that domestic abuse of women and violence towards women was common in Pakistan did not by itself give rise to a claim of refugee status : see 635E,648B,656H and 658H. The decision in Horvath

[12]In that case the claimant was a Roma and the oppressive behaviour was by various skinheads. The issue was whether the claimant could claim to be a refugee given that the state had not prevented this behaviour. It was held that he could not. Lord Hope of Craighead, with whom Lords Browne-Wilkinson and Hobhouse of Woodborough agreed, said this at p.500F:

"The primary duty to provide protection lies with the home state. It is its duty to establish and operate a system of protection against persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute can not achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to its own nationals. …Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection."

The Special Adjudicator's determination in the present case

[13]The adjudicator had before her the Immigration interview conducted before the decision in Shah . From that interview the following emerged. The appellant became divorced from her husband in 1995 but they continued to live in the same flat. She claimed in her interview that under Lithuanian law if one party wished to stay in the flat they could do so. She claimed that he started ill-treating her in 1996 because she asked him to stop his Mafia connections and to stop drinking. She claimed that his ill-treatment included breaking her arm. She claimed that she went to the police and complained about the ill-treatment but they merely warned him. She claimed that from 1996 she made such reports practically every month, sometimes twice a month. She said there were no women's refuge groups. She claimed that her ex-husband had gone away for two months but had then repeatedly telephoned her to say that when he returned he would do away with her. She claimed that when she telephoned her erstwhile neighbours after having arrived here they told her that he had threatened to kill her when she returned and she feared being killed. On being asked whether there were no safe areas where she could go she claimed that her husband would find her anywhere. She was asked "Why do you think the police were unwilling or unable to help you?" and replied " I went to the police so many times but nothing helped, perhaps they have some connection (sc. with the Mafia?) too." She said she was just afraid of him. She was asked "If you were to return how would he know of your return?" and replied "As soon as I come into my flat he will know."

[14]There were before the Special Adjudicator a number of documents which the appellant produced. They were in Lithuanian and were very badly translated. We have not been supplied with any better translations by either side. A number of them preceded her divorce and neither side has relied on them. The only ones which were arguably relevant were (i) a medical report dated 16.1.1995 which indicates that she was diagnosed as having a broken left elbow bone;(ii) a letter from the local police dated 22.08.1996 indicating that her former husband had been given a written warning; (iii) a letter from the local police dated 15.2.1997, responding to a complaint by her dated 17.1.1997, which indicates that he had been warned once more about his improper and illegal behaviour and suggesting that she appeal to the Appeal Court of Kaunas Town in relation to the division of property; (iv) a letter from the local police dated 24.9.1997, responding to a complaint by her dated 12.9.1997, which (doing the best one can with the translation) seems to indicate that on this occasion the police considered her injuries to be slight, that he had been warned again, that he had promised not to act similarly in the future, that they had decided not to prosecute and that they once more suggested going to the Court of Kaunas; (v) the first page of a report dated 12.9.1997 by a forensic expert who had been engaged because of her complaint of that date. It can be assumed that this report was in the hands of the police before they wrote their letter of 24.9.1997.

[15]There was also before the Special Adjudicator a U.S. Department of State Report for 1997 which indicated that the position during that year was as follows. The Government generally respects the human rights of its citizens but problems remain in some areas. The constitution provides for equal rights for men and women. Violence and discrimination against women and child abuse are serious problems. Discrimination against women persists. Abuse of women at home is reportedly common but institutional mechanisms for coping with this problem are only now being formed. A women's shelter is now in operation. Significant inequalities in society based on gender continue.

[16]The Special Adjudicator said this in her determination "At the hearing Mr. Pedro conceded that there was no Convention reason and promptly asked me to make a recommendation because the appellant was being persecuted although there was no Convention reason. I agreed to hear evidence from the appellant in this connection. The appellant told me that the record of her interview was true and accurate and proceeded to inform me that she had been having difficulty with her ex-husband for 3 years and despite going to the police and "everywhere it was possible to go" even going twice a week to complain, nothing was done. The appellant told me that she had believed that nothing had been done because her ex-husband had been called to the police station for 10 minutes then would come home and the problems would begin all over again. The appellant told me that she did not seek asylum in Poland, Germany or France, countries through which she had passed on her way to the United Kingdom, because she wanted to be as far away as possible from Lithuania as the Mafia travelled to those countries. ………. The appellant told me that she had been in contact with her ex-husband, who was searching for her and threatening her and she had received a fax from her friend to inform her that he was still looking for her….. Mr. Pedro asked me to make a recommendation because there was a real risk of assault and possible death if the appellant were to return to Lithuania. Mr. Pedro submitted that the police had offered the appellant no protection and that her former husband's links with the Mafia helped him as far as immunity from prosecution was concerned. Mr. Pedro submitted that there was only one place for battered wives, adding that civil remedies would take too long and would not afford the appellant protection in any event. ……… On all the evidence which was before me (including that which I have not specifically mentioned) I agreed that Mr. Pedro was right to conceal (sc. "concede") the appeal, given the absence of any Convention reason…… I came to the conclusion that the appellant's removal would not cause the United Kingdom to be in breach of its obligations under the 1951 Geneva Convention. I therefore dismiss this appeal…. The Special Adjudicator then referred to the U.S. Department of State Report which I have quoted. She continued: I accepted as credible the account given to me by the appellant at the hearing of the violent abuse by her husband. While I accept that Lithuania has begun to address issues of criminal violence in general and domestic in particular, I do not consider that the authorities would be able to provide the appellant with adequate protection at this stage, nor have I found that they have done so in the past. I accepted, in particular, what the appellant said at the hearing about complaining to the police, her husband going to the police station and then returning home, when the problems would begin all over again. I agreed with what Mr. Pedro said about there being a real risk of assault and possible death if the appellant were to return to Lithuania. In my opinion this appellant was a desperate woman who had fled Lithuania to secure safety from only husband, but the Mafia, whose outstretched arms she had good reason to fear. …… I consider that, in the appeal which is before me, the appellant is at risk of persecution, but not for a Convention reason and is in danger or at risk if she were to return. I find that these are very strong compassionate circumstances which qualify the appellant for leave outside the Rules." The Appellant's solicitors' letter

[17]The Appellant's solicitors wrote to the Treasury Solicitor who was acting for the Secretary of State for the Home Department asking for(1) a review of the appellant's case in the light of the Special Adjudicator's determination and

(2) asking for their letter to be treated as a fresh claim to asylum.

[18]The Solicitors relied upon the findings of the Special Adjudicator and submitted that these findings bound the Secretary of State unless he had good reason for rejecting them: R v Secretary of State for the Home Department ex parte Danaei [1998] INLR 124 C.A.. They submitted that the findings of the Special Adjudicator entitled the appellant to refugee status and referred to the decision of the House of Lord in Shah . They submitted that the most recent U.S. State Department Report contained words identical to those which I have already quoted from the 1997 Report. They submitted that the Report clearly implied that the Lithuanian Authorities still have not devoted adequate resources to preventing violence against women. They ended their letter as follows:

"Our client's appeal was considered at a time when the decision of the Court of Appeal in Shah …. was binding. This decision was reversed by the House of Lords. This means our client's appeal was not an effective appeal as it was considered when there was a relevant binding precedent that has subsequently been shown to have been wrongly decided. The decision of the Court of Appeal in Shah meant that our client's appeal was bound to fail, and in contrast we would submit that the matter set out above show that it is arguable that our client is a refugee in light of the decision of the House of Lords in Shah . As a consequence, it is our submission that you should provide our client with an effective right of appeal by treating this letter as a fresh claim for asylum."

The Secretary of State's reply

[19]The Secretary of State replied 6 months later by letter dated 30 June 2000 as follows:

"Your client's case has been carefully reconsidered in the light of your representations and taking into account all the material now available. I am afraid that the Secretary of State remains of the view that your client has no basis of stay here and should make arrangements to leave United Kingdom. The Secretary of State has considered whether or not your client should now be granted asylum notwithstanding his earlier decision to the contrary. He has done so on the basis of the Special Adjudicator's findings of fact and taken fully into account the further representations made on your client's behalf. He has also taken into account judicial guidance on the relevant issues, including the decision of the House of Lords in the cases of Shah and Islam . The Secretary of State would point out the situation in Lithuania is very different from that in Pakistan…. The material demonstrated that in Pakistan the system of criminal justice operated so as to effectively exclude women from the protection of the law in many cases. This is far removed from the material to which you refer to the effect that in Lithuania there are "inequalities on society based on gender"

. The Secretary of State is willing to accept that mechanisms to provide societal support for victims of domestic violence are still at a stage of development in Lithuania and there is some discrimination against women. However on the totality on the material available and looking at the matter in the round, he does not consider that such discrimination is of a nature or degree to found a claim that women are (sc. "a") social group in Lithuania, nor does he accept that they are excluded from state protection…. As to the question whether your further material and representations should lead the Secretary of State to consider your client to have submitted a fresh claim for asylum he has considered this request in accordance with the provisions of paragraph 346 of the Immigration Rules…. . … in the light of the Secretary of State's conclusion that women do not form a social group in Lithuania and are not excluded from state protection, this material would not give rise to a claim for asylum and the Secretary of State is not satisfied that there is realistic prospect that the conditions set out in paragraph 334 of the Rules will be satisfied. As to the question of exceptional leave to remain, the Secretary of State has considered your client's circumstances with care, but even on the basis that her entire account is accepted as accurate, and bearing in mind the Special Adjudicator's recommendation, he does not consider that her circumstances would warrant a grant of exceptional leave to remain. It would be open to your client to live in a different part of Lithuania and to seek the assistance of the authorities there. In the context of the particular facts of your client's case and the current position in Lithuania, the Secretary of State does not accept that her removal to that country would conflict with the U.K's obligations under

Article 3 ECHR

. Overall the Secretary of State has had to balance your client's compassionate circumstances against the need to maintain a fair system of immigration control, and has concluded that the grant of exceptional leave to remain is not the proper course in this case." The present proceedings

[20]Following receipt of this letter the present proceedings were launched. The appellant seeks to review the decision of the Special Adjudicator and of the Secretary of State's letter of 20 June 2000. Cresswell J refused to quash either. Before us is an appeal from that decision.

[21]It will be recalled that the appellant's counsel before the Special Adjudicator conceded that the appellant was not a member of a particular social group and that this concession was made on the basis of the law as declared by the Court of Appeal in Shah . Mr Southey, who appears for the appellant points out that the concession made by her counsel before the Special Adjudicator was made before the decision of the House of Lords in Shah was handed down. He submits that the Special Adjudicator should have applied the law correctly and that if a tribunal of first instance applies the law as it is declared to be by the Court of Appeal and thereafter the House of Lords restates the law to different effect then the tribunal, wholly understandably, has made an error of law which is subject to review by this court. Alternatively he submits that, given that the House of Lords' decision was announced in the six month period between the hearing before the Special Adjudicator and the promulgation of her decision, she should of her own initiative recalled the parties for further submissions in the light of the new understanding of the law.

[22]Mr Qureshi, counsel for the Secretary of State, submits that it was not clear that the concession had been made on the basis of the Court of Appeal decision in Shah , that the House of Lords decision in that case had been announced a fortnight before the Special Adjudicator announced her determination, that it was the task of the appellant to bring to the attention of the Special Adjudicator the fact, if it was a fact, that the concession had been made on the basis of a misapprehension of the law and that this had not been done, that in those circumstances there had been no error of law on the part of the Special Adjudicator and the jurisdiction of this court was limited to quashing for legal or procedural errors. Mr Qureshi however, in reply to questions by me, made clear that he was not suggesting that the appellant should in practice be disadvantaged by any failure by her representatives to act differently so far as the concession was concerned. He submitted that where there is such a change in the perception of the law the applicant was entitled to treat this as the basis for the submission of a new claim for asylum. He submitted that the court should consider the concession and the change in the law in the context of the Secretary of State's reaction to the request to the solicitor's request to treat their letter as a fresh claim to asylum.

[23]The task of the adjudicator is to apply the law. She can not be blamed if she applies the law as declared by the Court of Appeal and indeed she is bound to do so. However, if the House of Lords thereafter declares that the law is different from what it was supposed to be by the Court of Appeal then it may be apparent that the adjudicator has misapplied the law. Parliament clearly wished an applicant for refugee status to have the opportunity to argue her case in the light of the law. Where the adjudicator misapplies the law then the applicant for refugee status has not had her case considered according to law. I do not consider that any ability to make a fresh claim in writing before the Secretary of State following a "change in the law" is a satisfactory substitute for having a proper appeal before a Special Adjudicator which is the mechanism for having such matters tested which parliament has prescribed.

[24]What then is the relevance of the concession? Many persons appearing before Special Adjudicators do not have the advantage of expert legal representation. Particularly in circumstances such as the present where the nature and basis of the concession is so obscure and what is at stake is something so important as a claim to refugee status, I would not think it right to allow the concession to influence our decision on this appeal.

[25]Mr Qureshi submits that the Secretary of State has looked at her claim in the light of the most recent House of Lords statements as to the relevant law and has concluded that the degree of state protection of women in Lithuania is not such as to call for international surrogate protection to be extended to women at risk of physical assault. The Secretary of State expressly proceeded on the basis of the Special Adjudicator's findings of fact. It thus appears that he accepted that "the authorities would not be able to provide her with adequate protection at this stage" and there was "a real risk of assault and possible death if the appellant were to return to Lithuania". However, any inadequacy in the protection which the state afforded to women in the appellant's position was, in the Secretary of State's opinion, not attributable in Lithuania to any discrimination against women.

[26]For my part I regard that as a conclusion which was not merely open to the Secretary of State but inevitable on such material as we have had placed before us. Indeed Mr Southey who skilfully argued the case was unable to point to significant evidence of any such discrimination.

[27]Had there been placed in front of the Secretary of State or indeed us material on the basis of which it was arguable that in Lithuania there was discrimination by the state against women then there would have been a case for saying that the matter ought to be remitted to a Special Adjudicator for him to evaluate whether women in Lithuania should be regarded as a "particular social group". However, no such material was placed before us and it was not suggested that such material was available. In those circumstances it would not be right to quash the decision of the Special Adjudicator. He came to the right decision and the concession was rightly made.

[28]Mr Southey drew our attention to what Lord Hoffmann said in Shah at p.654H :

"I am conscious ... that there are much more difficult cases in which the officers of the state neither act as the agents of discriminatory persecution nor, on the basis of a discriminatory policy, allow individuals to inflict persecution with impunity. In countries in which the power of the state is weak, there may be intermediate cases in which groups of people have power in particular areas to persecute others on a discriminatory basis and the state, on account of lack of resources or political will, and without its agents applying any discriminatory policy of their own, is unable or unwilling to protect them. I do not intend to lay down any rule for such cases. They have to be considered by adjudicators on a case by case basis as they arise."

[29]That passage however has no application to the facts of this case. The applicant's former husband was manifestly not acting on a discriminatory basis. It was in a part of the speech dealing with causation and was addressing the sort of problem which was the subject of the decision in Horvath which I have sought to summarise above.

[30]In the context of the present case the element of discrimination is essential before a claim by the applicant to refugee can succeed. There is nothing to suggest that either the state or her former husband will discriminate against her on that basis.

[31]In those circumstances I would dismiss the appeal against the refusal of the judge to quash the determination of the Special Adjudicator. For similar reasons I would dismiss the refusal of the judge to quash the decision of the Secretary of State to refuse to consider the appellant's solicitors letter as a fresh claim for asylum : it raised no point which overcame the difficulty of absence of discrimination.

[32]I turn therefore to the decision of the Secretary of State to refuse to follow the recommendation of the Special Adjudicator that the applicant be given exceptional leave to remain. The strength of the applicant's position arises from a combination of the following two factors. The Secretary of State states in his letter that he has considered the asylum claim on the basis of the Special Adjudicator's findings of fact. Those findings of fact include findings that there is a "real risk of assault and possible death if the appellant were to return to Lithuania" and that she "did not consider that the authorities would be able to provide the appellant with adequate protection at this stage".

[33]Mr Qureshi, rightly in my view, did not suggest that the basis which the Secretary of State took for consideration of the claim to exceptional leave to remain was a different basis from that which was applicable to the consideration of the claim to refugee status. However, he submitted that the Special Adjudicator's reference to "a return to Lithuania" was a reference to a return by the appellant to the former matrimonial home. I accept that this may be the case but I do not consider that it would be safe to rely on it being the case. The Special Adjudicator's letter is unclear. Similarly it is also not clear whether the Special Adjudicator was deciding that the level of protection was not up to that to be expected by the international community or whether she was deciding merely that the level of protection could not guarantee the appellant's safety. Mr Qureshi submitted that, in any event, the Secretary of State was obliged to and did consider the situation in Lithuania at the time of his decision not that which appertained when the Special Adjudicator came to her determination some time before. I accept that this was the Secretary of State's obligation and that he probably did just that.

[34]The lack of clarity in the Special Adjudicator's and consequently the Secretary of State's determination at first aroused in me a certain unease when giving this case the anxious scrutiny which it deserves although there could be no question of this court granting her exceptional leave to remain. I considered whether we should send the matter back to him for him to take the decision afresh and set out his reasoning process more clearly. However, there is outstanding an appeal by the appellant to a special adjudicator pursuant to s.65 of the Immigration and Asylum Act 1999 on the basis that the Secretary of State's decision was in breach of her human rights. As it seems to me, either that appeal succeeds or it fails. If it succeeds then she will receive the equivalent of exceptional leave to remain. If it fails then the very basis upon which she attacks the decision to return her to Lithuania, namely that her life will be in danger if she does return, will not have been made out in the light of present conditions. In those circumstances the quashing of the Secretary of State's decision not to grant her exceptional leave to remain would achieve no more than she is capable of achieving without such a quashing. In effect there is an alternative remedy which has already been revoked..

[35]Since drafting the foregoing I have had the advantage of reading in draft the judgments of Mance and Rix LJJ. The crucial point is whether we are in a position to rule out the possibility that, if the Special Adjudicator and the advocates had had before them the decision of the House of Lords in Shah , the Special Adjudicator might have come to the conclusion that this lady qualified as a refugee. My Lords take the view that we can not rule that possibility out. I had taken the contrary view but, that being their view, I would not wish to dissent.

[36]This appeal against the Special Adjudicator's decision will therefore be allowed and the matter remitted to a different Special Adjudicator. As regards the decision of the Secretary of State to refuse exceptional leave to remain, since this rested on the decision of the original Special Adjudicator and is subject to the shortcomings outlined in these judgments it seems appropriate to quash that also. If the new Special Adjudicator decides that the lady is not a refugee then the Secretary of State can deal with any application for exceptional leave to remain in the light of the facts as they then appear to him to be. Mance LJ:

[37]The appellant is a citizen of Lithuania. She entered the United Kingdom on 30 th December 1997 and claimed asylum under the Geneva Convention on 7 th January 1998. Her claim was refused by letter dated 11 th February 1998, in which the Secretary of State concluded that the appellant had not established a well founded fear of persecution in Lithuania, and also certified, under paragraph 5(4) of Schedule 2 ot the Asylum and Immigration Act 1993, that the appellant did not show a fear of persecution by reason of her race, religion, nationality, membership of a particular social group, or political opinion.

[38]The appellant appealed under s.8 of the 1993 Act to a Special Adjudicator, and by decision dated 9 th April 1999 Ms D. Levene sitting as a Special Adjudicator upheld the Secretary of State's certificate. The Adjudicator went on however to make an extra-statutory recommendation, finding that there were "very strong compassionate circumstances which qualify the appellant for leave outside the Rules". She identified these as a risk of persecution, though not for a Convention reason, if the appellant were to return to Lithuania. In her opinion, the appellant was "a desperate woman who had fled Lithuania to secure safety from not only her husband, but the mafia, whose outstretched arm she had good reason to fear". In support, she also referred to a US Department of State Lithuania Country Report on Human Rights Practices for 1997, dated 30 th January 1998, which recounted that "abuse of women is reportedly common, especially in connection with alcohol abuse by husbands, but institutional mechanisms for coping with this problem are only now being formed". She also said: "I do not consider that the authorities would be able to provide the appellant with adequate protection at this stage, nor have I found that they have done so in the past".

[39]By notice of application dated 1 st June 1999 the appellant sought permission to apply for judicial review in respect of the Special Adjudicator's decision. Later, she made further representations to the Secretary of State, and submitted further evidential material (to the effect that she had been raped in Lithuania), with a view to persuading him to arrive at a different conclusion on the issue of asylum, and if necessary to consider to treat the appellant as having made a fresh claim for asylum. However, the Secretary of State by letter dated 20 th June 2000 not only maintained the refusal to grant refugee status, and refused to treat the appellant as having made a fresh claim, but also refused to grant the appellant exceptional leave to remain. The notice of application dated 1 st June 1999 was then on 17 th July 2000 amended to seek permission judicially to review the Secretary of State's decisions by his letter dated 20 th June 2000.

[40]The matter came in due course before Cresswell J. who refused these applications for judicial review. The present appeal against his decision comes to us by permission of Buxton LJ.

[41]I have had the benefit of reading drafts of the judgments of both Schiemann and Rix LJJ. It seems to me clear that, when the appellant's counsel conceded before the Special Adjudicator "that there was no Convention reason", counsel was proceeding on the basis of the state of the law as it was then understood and as the Court of Appeal had expounded it in R. v. Immigration Appeal Tribunal, ex p. Shah

[1998] 1 WLR 74

. This was, in summary, that although there was no need for a group to be homogeneous and cohesive to constitute a "particular social group", it had to be both "particular" and "social" in the sense that its members shared something which united them and set them apart from the rest of society and which was recognised by society generally, and that such a common uniting attribute had to exist independently of the feared persecution.

[42]The argument in the Court of Appeal in ex p. Shah had sought to establish that women in Pakistan who were accused of transgressing social mores and who were unprotected by their husbands or other male relatives constituted a particular social group. Only when the matter reached the House of Lords in February 1999 was the suggestion raised in argument by Lord Hoffmann that all women in Pakistan could be regarded as a "particular social group" (cf

[1999] 2 AC 629

, 644C-D per Lord Steyn). When the House gave its decision on 25 th March 1999, that suggestion was adopted by Lords Steyn, Hoffmann and Hope. Lords Steyn and Hutton thought that the appellants also belonged to a narrower "particular social group", defined by the fact of their gender, the fact that they were suspected of adultery and the fact that they lacked protection from state and public authorities.

[43]The Special Adjudicator did not simply adopt counsel's concession. She said that she had herself considered all the evidence before her, and that she agreed that counsel was "right to conceal [sic] the appeal, given the absence of any Convention reason". By the time she issued her decision on 16 th April 1999, some six months after the hearing before her, the House of Lords had, however, announced its decision in ex p. Shah . One would have expected the Special Adjudicator to have been aware of this decision almost as soon as it was reached. She makes no reference to it in her reasons. It seems to me obvious that, if counsel had had the benefit of the House of Lords decision, he would have been most unlikely to make the concession that he did. He would have sought to establish that women in Lithuania constituted, and were persecuted for reasons of being members of, a particular social group. He would, one must presume, have focused on the headings and introduction to the passage from the US Department of State Lithuania Country Report on Human Rights Practices cited above, which read:

"Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status The Constitution prohibits discrimination based on race, sex, religion, disability, or ethnic background. However, discrimination against women persists."

[44]It is true that there is no evidence or, as it seems to me, possibility that the immediate cause of the appellant's fear could be attributed to any Convention reason. The immediate cause of her fear was that violence would continue to be inflicted on her by her husband. Her husband's violence was, on the appellant's account in interview and on her evidence as the Adjudicator recounts it, domestic violence, associated with his entitlement to continue living in the same flat despite the parties' divorce in 1995, with his drinking and with his mafia connections to which the appellant objected. On the Adjudicator's findings in making her extra-statutory recommendation, the appellant also "had good reason to fear" the mafia. So far as the mafia presented a threat, this arose out of the same root circumstances as the threat presented by her husband, although the basis for any finding that the mafia had any interest in the applicant away from her home (where she had apparently objected to her husband bringing them) is not easy to discern, and the parties were unable to produce any written material put before the Adjudicator to cast further light on these aspects. Neither of these causes of fear had on any view any possible discriminatory aspect, which could bring Convention protection into play.

[45]The appellant's case would, therefore, have had to rest on an argument that inability or unwillingness on the part of the Lithuanian state or state authorities to protect women against domestic violence supplied the necessary discriminatory element in the mistreatment handed out by others: see Horvath v. Secretary of State for the Home Department

[2000] 3 WLR 379

, 385a-d, where Lord Hope agreed with the views of the majority of the Court of Appeal in that case. It would, as it appears to me, also have been necessary to say that the state authorities' failure to protect against the feared violence was because the appellant was a woman; or, in other words, that the state was denying her a protection which it would have given to men: see ex p. Shah , at pp. 651A and 653F, per Lord Hoffmann. It is implicit in this that, if the state's inability or unwillingness was general, and (for example) applied to all victims of any violence, there would not be persecution, or a well-founded fear of persecution, for or by reason of membership of a particular social group. For the purposes of the Convention, what matters is not whether women might be regarded as a particular social group in any abstract sense, but whether the applicant for asylum has a well-founded fear of being persecuted for reasons of membership of a particular social group. Further (although this is a rule must not be applied outside its proper context), the bare fact of persecution and of a well-founded fear of persecution cannot of itself define a particular social group for the purposes of the Convention: see ex p. Shah , 658A-D, per Lord Hope. "The Convention is concerned not with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination": ex p. Shah , at p. 651A, per Lord Hoffmann.

[46]If there is any real prospect that the Special Adjudicator would have reached a different conclusion on the issue of asylum, had it been argued before her with reference to the decision and reasoning of the House of Lords in ex p. Shah , then I consider that we should grant the application for judicial review of her decision and remit the matter for further consideration. I would not hold the appellant bound by the concession made by her counsel. In an ideal world, those representing the appellant would have been alerted to the House of Lords decision and would have communicated with the Adjudicator to withdraw the concession, if they wanted to pursue the asylum claim. But it was the Adjudicator who was at that time actively handling the matter, and finalising or about to issue her decision. She could be expected to be aware of the potential effect of a decision of the importance of ex p. Shah . She did not view her duties regarding consideration of the asylum claim as discharged by the concession. In this, it seems to me she was right: see R. v. Secretary of State for the Home Department ex p. Robinson [1997] INLR 182 , where Lord Woolf MR said at p.194H-195A:

[47]"…. it is the duty of the appellate authorities to apply their knowledge of Convention jurisprudence to the facts as established by them when they determine whether it would be a breach of the Convention to refuse an asylum-seeker leave to enter as a refugee, and …. they are not limited in their consideration of the facts by the arguments actually advanced by the asylum-seeker or his representative."

[48]I do not think that it should matter in the present case that the appellant, originally an asylum-seeker, was led by authority in this Court to concede that the persecution that she feared was not for a Convention reason. The question, however, arises whether, if the Adjudicator had applied her mind to the House of Lords' decision in ex p. Shah , she might have considered that the facts "established" before her justified a conclusion that the appellant had a well-founded fear of persecution for a Convention reason, or whether, if not, it is sufficient that she might have called for further argument and allowed an opportunity for further investigation.

[49]The threshhold is not a high one at the present stage. First, the test which the Adjudicator would have had ultimately to apply was whether the existence of such a fear was established to "a reasonable degree of likelihood" or as "a real and substantial danger" or "a real and substantial risk". Secondly, on this appeal we do not have before us the full evidence which was before the Special Adjudicator and we must, I think, be concerned to ask ourselves whether there is a real prospect that the Special Adjudicator would, in one way or another, have reached a different conclusion to that which she did.

[50]Adopting that approach, I would agree that there is sufficient prospect that the Adjudicator might ultimately have reached a different conclusion, had she directed her mind to the House of Lords' decision in ex p. Shah , to require her decision to be set aside and the matter remitted for further adjudication. I say that, bearing in mind the strength of the Adjudicator's findings on other matters and the contents of the the US Department of State Lithuania Country Report on Human Rights Practices.

[51]However, I consider that the remission should be to a different Adjudicator, and that all aspects of the appellant's position should be considered afresh in the light of whatever findings he or she may make. As the judge observed, it took the Adjudicator the quite excessive period of six months to issue the decision which she did issue. It is fortuitous that this very delay now enables the appellant to challenge her decision on the ground that she failed to take into account the House of Lords' reasoning in ex p. Shah . The Adjudicator felt able to reach very strong conclusions in the context of her extra-statutory recommendation. The basis of some of her findings is not apparent either from the evidence which the Adjudicator recounts or the other (admittedly limited) material which we have been shown, and this may be part of the explanation why the Secretary of State reached a different conclusion in his letter dated 30 th June 2000. It would also be most unsatisfactory if the matter went back to a Special Adjudicator for fresh findings and a fresh decision on the issue of asylum, while the Secretary of State was having to reconsider the matter in the context of considering whether to grant exceptional leave on the basis of perhaps different findings. I would therefore set aside the whole of the Special Adjudicator's decision, and remit for reconsideration before another Adjudicator both the appellant's asylum claim and any claim she may still pursue for an extra-statutory recommendation. As I understand it, the latter may now be subsumed in an application which she is already pursuing under s.65 of the 1999 Act. Those representing the appellant have already proposed to the Secretary of State that the asylum application should be remitted to a Special Adjudicator for re-hearing at the same time as the application under s.65, and, on the face of it and unless there is some obstacle of which I am unaware, that proposal can now be achieved.

[52]Since the whole matter must go back to a different Adjudicator, I need say little about the submission that the Secretary of State should have accepted the further evidence of fact and/or the further representations regarding the House of Lords decision in ex p. Shah presented to him in December 1999 as a new claim. I see no reason to fault the Secretary of State's conclusion that the new evidence of fact could not satisfy paragraph 346 HC 395, as amended from 1 st September 1996. Since the Adjudicator's decision falls to be set aside for failure to consider the effect of the House of Lords decision in ex p. Shah , it follows that that decision can have no relevance as a new claim.

[53]I turn to the Secretary of State's decision letter dated 30 th June 2000, so far as that refused exceptional leave to remain. The Secretary of State, while purporting to accept the appellant's "entire account" nevertheless reached a conclusion regarding her ability "to live in a different part of Lithuania and to seek the assistance of the authorities there" which appears to depart from, and on any view substantially re-interprets and limits, the Adjudicator's finding that "there was a real risk of assault and possible death if the appellant were to return to Lithuania" and that "this appellant was a desperate woman who had fled Lithuania to secure safety from not only her husband, but the mafia, whose outstretched arm she had good reason to fear". I find it difficult to reconcile these apparently different conclusions. It may be that the Secretary of State had good grounds (either in material which we have not seen or in a lack of evidence before the Adjudicator) for expressing his conclusions in the way he did, but, if so, he did not explain them. As to the Secretary of State's reference to "the current position in Lithuania", I agree with Rix LJ that this is too brief and formalistic for us to be able to take it as an indication that the position in June 2000 was so significantly different from that in April 1999, or that described in the US Department of State Lithuania Country Report on Human Rights Practices of January 1998, as to justify a conclusion that the appellant could now safely return under appropriate state protection to other parts of Lithuania.

[54]In the light of this court's decision in R. v. Secretary of State for the Home Department ex p. Danaei [1998] INLR 124 , I consider that it was incumbent on the Secretary of State to give a more explicit explanation of what basis he had for departing from or rejecting the Special Adjudicator's conclusions of fact and recommendation. I would therefore set aside the Secretary of State's decision rejecting the Adjudicator's extra-statutory recommendation relating to exceptional leave. For reasons already given, however, the Adjudicator's extra-statutory recommendation should itself be set aside together with the whole of her decision. The whole matter should in these circumstances be remitted to another Special Adjudicator for fresh consideration.

LORD JUSTICE RIX:

[55]I have had the advantage of reading in draft the judgment of Schiemann LJ and gratefully adopt his account of the facts. I agree with what he says about the effect on the decision of the adjudicator of the reversal of the court of appeal by the House of Lords in Shah , and also with what he says about the irrelevance in the circumstances of the concession made before the adjudicator. It is at that point that, with diffidence, I part company with his analysis. I will try to explain why.

[56]Article 1A(2) of the Geneva Convention provides that the term "refugee" shall apply to any person who – "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…"

[57]In Shah the issue related to the words "for reasons of…membership of a particular social group". Not every person who has a well-founded fear of persecution can claim the surrogate protection of the Geneva Convention. A claimant to refugee status must also show (inter alia) that the persecution in question is to be ascribed to one of the stated categories. This is a limiting element in the Convention definition of a refugee, and as such has sometimes been referred to, for the sake of a short-hand label, as the "Convention reason": as in the phrase "persecution for a Convention reason". The only category that Mrs Shah could possibly bring herself within was "membership of a particular social group". The problem was in finding such a group. The starting point was that such a group could not be defined by the fact of persecution, since that would be arguing in a circle. The particular social group therefore had to exist independently of the persecution. The solution was to say ( per Lords Steyn, Hoffmann and Hope, see at 644D/645A, 650G/652E, 657B/658E) that "women in Pakistan" were a particular social group.

[58]Does it follow that "women in Lithuania" are equally a particular social group? Not necessarily, because the reasoning in Shah appears to have depended critically on a finding that women in Pakistan are constituted a particular social group for the purpose of the Convention because women are discriminated against in Pakistan as a group (644E, 651D and 652C/E, 658E). Without that discrimination, therefore, women do not, it seems, form a particular social group. The reason for that, I think, is because of the absence of the word "gender" from the list of categories in article 1A(2).

[59]Lords Steyn and Hutton went on to find a more narrowly defined group than "women in Pakistan" as also coming within the category of a "particular social group", viz those women in Pakistan who are unprotected by the state in circumstances where the suspicion of adultery is raised against them (645B/H and 658H/659A). In effect this narrower ground adds the suspicion of adultery as a defining characteristic, since the lack of protection from the state amounts to discrimination by the state. Lord Hoffmann expressed no opinion as to this narrower ground (653B) and Lord Hope considered it unnecessary to show discrimination based on some other characteristic as well as gender in the case of Pakistan, but recognised that such an approach could be both necessary and valid in another case (at 658G). Lord Millett dissented.

[60]I have said above that "the Convention reason" is a limiting element in the definition of a refugee for the purpose of the Convention. In truth it contains two limiting elements, because the claimant must not only show that his or her situation falls (or I suppose is perceived as falling) within the ambit of one of the listed categories in article 1A(2), but also that the persecution which is feared is "for reasons of" one or other of those categories. That element was identified by Lord Hoffmann in Shah as being a question of causation (at 653A/655B). In the course of discussing that question, Lord Hoffmann gave the example of the Jewish shopkeeper (at 654A/C):

"A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor who smash his shop, beat him up and threaten to do it again if he remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal scores, but they would not have done what they did unless they knew that the authorities would allow them to act with impunity. And the ground upon which they enjoyed impunity was that the victim was a Jew. Is he being persecuted on grounds of race? Again, in my opinion, he is. An essential element in the persecution, the failure of the authorities to provide protection, is based upon race. It is true that one answer to the question "

Why was he attacked?" would be "because a competitor wanted to drive him out of business." But another answer, and in my view the right answer in the context of the Convention, would be "he was attacked by a competitor who knew that he would receive no protection because he was a Jew.""

[61]Lord Hoffmann also gave the example of the problem of civil unrest (at 654F/G):

"Assume that during a time of civil unrest, women are particularly vulnerable to attack by marauding men, because the attacks are sexually motivated or because they are thought weaker and less able to defend themselves. The government is unable to protect them, not because of any discrimination but simply because its writ does not run in that part of the country. It is unable to protect men either. It may be true to say women would not fear attack but for the fact that they were women. But I do not think that they would be regarded as subject to persecution within the meaning of the Convention. The necessary element of discrimination is lacking."

[62]Lord Hoffmann concluded this passage on causation and the importance of the element of discrimination with these observations, which have been relied on by Mr Southey in the present case, (at 654H/655B):

"I am conscious, as the example which I have just given will suggest, that there are much more difficult cases in which the officers of the state neither act as the agents of discriminatory persecution nor, on the basis of a discriminatory policy, allow individuals to inflict persecution with impunity. In countries in which the power of the state is weak, there may be intermediate cases in which groups of people have power in particular areas to persecute others on a discriminatory basis and the state, on account of lack of resources or political will and without its agents applying any discriminatory policy of their own, is unable or unwilling to protect them. I do not intend to lay down any rule for such cases. They have to be considered by adjudicators on a case by case basis as they arise. The distinguishing feature of the present case is the evidence of institutionalised discrimination against women by the police, the courts and the legal system, the central organs of the state."

[63]Those observations raise directly the contrast between the positive case of state organised or supported discrimination and the much more ambiguous case where the state does not positively organise or support discrimination but is unable or unwilling to protect its citizens. If that failure of protection is complete, as in Lord Hoffmann's example of civil unrest, then no element of discrimination at any rate on the part of the state may be in question. If, however, the failure of protection operates in a discriminatory manner, what then? And what is the standard of protection required by the Convention? Those important questions were addressed in Horvath.

[64]In Horvath the claimant was a Roma and a citizen of Slovakia, and the ill treatment he feared was not that of the state but of skinheads. The "Convention reason" was not in doubt (at any rate it was not in doubt once the Immigration Appeal Tribunal had affirmed the claimant's credibility). The problem lay elsewhere, in particular in whether the claimant's complaint that Slovakia was unable or unwilling to protect him from the skinheads justified his refugee status. For present purposes it may be noted that two important issues arose for decision. One was as to the standard of protection required by the Convention: what was it and had Slovakia met it?

[65]On that issue, both the court of appeal and the House of Lords were unanimous to the effect that Slovakia had passed the test. The claimant therefore failed to bring himself within what Schiemann LJ in para 3 above has identified as the fifth precondition to refugee status. The test approved in the court of appeal was that formulated by Stuart-Smith LJ at [2000] INLR 15 at 26B/D:

"In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be reasonable willingness by the law enforcement agencies, that is to say the police and courts to detect, prosecute and punish offenders. It must be remembered that inefficiency and incompetence is not the same as unwillingness, unless it is extreme and widespread. There may be many reasons why criminals are not brought to justice including lack of admissible evidence even where the best endeavours are made; they are not always convicted because of the high standard of proof required, and the desire to protect the rights of accused persons. Moreover, the existence of some policemen who are corrupt or sympathetic to the criminals, or some judges who are weak in the control of the court or in sentencing, does not mean that the State is unwilling to afford protection. It will require cogent evidence that the State which is able to afford protection is unwilling to do so, especially in the case of a democracy."

[66]That test was expressly approved in the House of Lords in

[2000] 3 WLR 379

by Lord Lloyd of Berwick at 394F and by Lord Clyde at 398D/F. Lord Browne-Wilkinson agreed with Lord Clyde, and also with Lord Hope of Craighead (at 389A), who put the matter somewhat more broadly (at 388D/E):

"As regards the third issue, the answer to it also is to be found in the principle of surrogacy. The primary duty to provide the protection lies with the home state. It is its duty to establish and operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its nationals."

[67]Lord Hobhouse of Woodborough also agreed with Lord Hope (at 404F).

[68]However, the second issue which is important for the present case was more controversial and divided both the court of appeal (where Stuart-Smith LJ dissented) and the House of Lords (where Lord Lloyd dissented): and that was whether the absence of state protection was a necessary ingredient in the concept of "persecution" itself. Both courts held by a majority that it was, and that as a result the claimant failed on this ground as well, since he could not show a well-found fear of persecution in the first place. Thus what was described as "the protection test" was used as a limiting factor to deny the existence of "persecution". Lord Hope put the matter in this way (at 385F/H):

"I would hold therefore that, in the context of an allegation of persecution by non-state agents, the word "persecution" implies a failure by the state to make protection available against the ill-treatment or violence which the person suffers from at the hands of his persecutors. In a case where the allegation is of persecution by the state or its own agents the problem does not, of course, arise. There is a clear case for surrogate protection by the international community. But in the case of an allegation of persecution by non-state agents the failure of the state to provide the protection is nevertheless an essential element. It provides the bridge between persecution by the state and persecution by non-state agents which is necessary in the interests of the consistency of the whole scheme."

[69]Although the protection test was used as a limiting factor in Horvath it seems to me important to observe that in different situations, where the test may be failed rather than met, it could operate as an extending factor. This is because the surrogacy principle of the Convention approved in Horvath ensures that the protection test is used in a holistic way in the approach to be taken to the definition of "refugee". As Hale LJ put it (at 52A) in a passage approved by Lord Hope (at 385D) – "if [state protection] is sufficient, the applicant's fear of persecution by others will not be 'well founded'; if it is insufficient, it may turn the acts of others into persecution for a Convention reason; in particular it may supply the discriminatory element in the persecution meted out by others ; again if it is insufficient, it may be the reason why the applicant is unable, or if it amounts to persecution unwilling, to avail himself of the protection of the state" (my emphasis).

[70]Hale LJ expanded on that opening passage later in her judgment, and in particular addressed the words I have emphasised above in italics as follows (at 56B/E):

"Thirdly, it is crucial that the persecution be discriminatory: that is that the maltreatment is meted out to particular types of citizens defined by race, religion etc. The necessary discriminatory element may be supplied either by the non-State agents who perpetrate the maltreatment or it may be supplied by the State which fails to protect the victims. This seems to follow directly from the approach of the House of Lords in [ Shah's ] case. The domestic violence perpetrated by husbands upon their wives would not have amounted to persecution on its own; nor would a generalised inadequacy in the protection offered by the State of Pakistan against violence; it was the fact that the State was discriminatory in the protection it afforded to a particular group of its citizens, namely women, which turned those women into refugees within the definition."

[71]And then Hale LJ immediately went on to cite Lord Hoffmann's example of the Jewish shopkeeper.

[72]Lord Clyde also adverted to this aspect of the matter when he said (at 403F/G):

"It seems to me that on the contrary the applicant's approach gives rise to an anomaly. If consideration of the state's attitude is excluded from the definition of persecution and considerations of protection in the first part [of article 1A(2)] are confined to the well-foundedness of the fear, then it would seem that some cases which ought to justify asylum would be excluded. The persecution must be for a Convention reason. But it is not difficult to conceive of cases where a person might be persecuted by other citizens for reasons of private gain which involve no element of Convention rights. If the state was motivated by considerations which were contrary to the Convention rights to tolerate such activity and deliberately refrain from protecting the person, such a case would appear not to be covered by the approach promoted by the applicant. That does not seem to be sound."

[73]Lord Lloyd dissented on this point, but his dissent points up and illuminates the very fact that the opinions of the majority could have the effect, in certain cases, of extending and not merely limiting the scope of the Convention definition. Thus (at 392G/393D) he said this:

"Hale LJ agreed with Ward LJ that the state's role in providing protection is relevant to the "conception" of persecution itself. She gave a number of reasons of which the most powerful to my mind is the fifth, at p.57, para 17. "

If there are thugs about perpetrating serious acts of maltreatment against the population as a whole, but the state offers protection only to some of its citizens, and not to others, in my view those citizens are being persecuted in just the sort of way that merits the surrogate protection of other states under the Convention. But if the failure of state protection were relevant only to the fifth question" – i.e. the inability or unwillingness of the applicant to avail himself of the protection of his country – "it is difficult to see how the necessary link with discrimination can be made in such cases." This is, of course, a variation of the case of the Jewish shopkeeper described by Lord Hoffmann in Reg. Immigration Appeal Tribunal, Ex parte Shah

[1999] 2 AC 629

, 654 to which I will return later. I agree with Hale LJ that the activities of the gang of thugs in her example could not amount to persecution for a Convention reason, since their activities are directed against the population as a whole. But the failure of the state to provide protection to some but not all the victims does not change the nature of those activities; nor could it provide the missing element of discrimination, unless one assumes that the word "persecution" includes partial acquiescence by the state in non-discriminatory persecution by others. But this begs the question. To my mind it is most unlikely that the framers of the Convention had any such unusual case in mind, or that they intended to cover what the noble and learned Lord Clyde aptly refers to as "constructive" persecution by the state. If so then it is not for us to create a link between the activities of the thugs and discrimination by the state, so as to extend the scope of the Convention by judicial interpretation, any more than we should limit the meaning of persecution by introducing into the definition of persecution the concept of state protection."

[74]The relevance of all this to the present case is, in my judgment, as follows. The appellant here does not complain of ill-treatment directly by the state, or by the organs of the state, but by her ex-husband, with whom she says that she is forced to live. But she does complain that Lithuania is unable or unwilling to protect her from her ex-husband and that that failure of protection is symptomatic of a wider discriminatory failure of the state to protect women in her position from the violence of their partners and ex-partners. Her claim to refugee status therefore raises three critical issues which were discussed in Shah and Horvath . One is whether she can bring herself within a "particular social group". Are women in Lithuania in any way comparable to women in Pakistan? Is there a narrower group than "women in Lithuania" which she could claim to fall within? The second is whether ill-treatment at the hands of her ex-husband (or at the hands of the Mafia as his agents) amounts to "persecution". It will only do so if the protection available to her in Lithuania is inadequate and fails the Horvath test. The third is whether any "persecution" is "for reasons of" her membership of a particular social group. That is a question of causation. All three questions depend in one way or another on whether Lithuania discriminates between women or some narrower category of women and the rest of its citizenry in the protection afforded to them against violence. A fourth question arises as to whether she can succeed on the protection test incorporated in the final precondition of article 1A(2), but that question will in effect have already been answered under the second question.

[75]None of these three questions had been elucidated and analysed at the time of the appellant's hearing before the adjudicator. At the time of that hearing Shah had been decided by the court of appeal, and as a result her claim to refugee status was hopeless: she could not bring herself within a "particular social group" and thus could not get to first base in showing a Convention reason. It was, I am prepared to infer, on that ground that it was conceded on her behalf that "there was no Convention reason". It was not conceded that she did not have a well-founded fear of persecution, and on the contrary the adjudicator found that she "is at risk of persecution". Nor was it conceded that the state could provide her with adequate protection: on the contrary the adjudicator found that "I do not consider that the authorities would be able to provide the appellant with adequate protection at this stage, nor have I found that they have done so in the past". The question of causation had not been clarified at that stage, and in any event there was no need to decide it in the absence of membership of a particular social group. The importance of discrimination on the part of the state in the affording of protection to women in the appellant's situation had not yet been elucidated, but in any event the issue of discrimination in general had clearly been addressed (certainly the absence of it had not been conceded) because the adjudicator quoted from the US Department of State Lithuania Country Report on Human Rights Practices for 1997, dated 30 January 1998. She quoted the following passage:

"Abuse of women at home is reportedly common, especially in connection with alcohol abuse by husbands, but institutional mechanisms for coping with this problem are only now being formed…the Ministry of Interior did not provide statistics on the number of women killed due to arguments resulting from jealousy or domestic problems…"

[76]Although the adjudicator does not say so, those lines come from a passage in the Country Report set out immediately beneath the heading:

"Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language or Social Status The Constitution prohibits discrimination based on race, sex, religion, disability, or ethnic background. However, discrimination against women persists. Women"

[77]If the decision in Shah in the House of Lords had not preceded the adjudicator's publication of her determination on 16 April 1999, the position might have been different. It might then have been possible to say that, whatever the consequences of the subsequent reversal of the court of appeal might be, the adjudicator had not erred in law. After all at that time, on the hypothesis that the House of Lords had not yet reversed the court of appeal, it would have been the adjudicator's duty to follow the court of appeal. I would therefore prefer to reserve my opinion on whether in that situation it would have been open to seek judicial review of the adjudicator's determination on the ground of error of law, especially in circumstances where it is open to an applicant to make a "new claim" to refugee status. In this case, however, the House of Lords speeches in Shah had been published a few weeks before the adjudicator's determination, on 29 March 1999. In those circumstances, it seems to me that it is not a question of whether either the adjudicator or the applicant was at fault in not addressing the new situation. It may be that one or the other of them did not know of the House of Lords judgment. The fact is, however, that at the time of the adjudicator's determination, the concession on the basis of which the claim to refugee status had been made and accepted had been wholly undermined by the reversal of the court of appeal. I therefore consider that the determination proceeded on an error of law and that the avenue of judicial review is open to the appellant.

[78]Of course, the change in the law may not assist the appellant, and if this court were able to say that, as the law has developed, it is impossible or at least unrealistic for the appellant to succeed on a remission to a special adjudicator, then I would agree with Schiemann LJ that it would be wrong to quash the adjudicator's determination. However, with respect I feel unable to agree that there is no evidence or no arguable case of discrimination to be considered by a special adjudicator on a remission. It will be recalled that failure of protection can itself "supply the discriminatory element in the persecution meted out by others", as Hale LJ said in that passage approved by Lord Hope in Horvath . Although the adjudicator was not applying the test of adequacy of protection promulgated in Horvath , she did nevertheless find that the Lithuanian authorities would not "be able to provide the appellant with adequate protection at this stage". There was no suggestion in her determination that such failure of protection applied across the board to all the citizens of Lithuania. On the contrary, the citation from the US Department of State Lithuania Country Report suggested, under the heading of discrimination, that domestic abuse of women was reportedly common and that institutional mechanisms "are only now being formed". That report was dated 30 January 1998, and the determination of the adjudicator is dated 16 April 1999 and it is now more than 2 years later. The position could well have improved, and it is axiomatic that it is the current situation that is relevant. Nevertheless, it is not for this court to attempt to evaluate a factual question of this kind, and it is only in the light of this question that it will be possible to decide whether women in Lithuania (or some narrower category of women in Lithuania) can properly be regarded as a "particular social group" and whether the appellant as a member of such a group can be considered to be subject to a well-founded fear of "persecution".

[79]At para 29 above Schiemann LJ points out that the appellant's former husband was manifestly not acting on a discriminatory basis, deriving that test from Lord Hoffmann's speech in Shah (at 654H) where he spoke of cases where "groups of people have power to persecute others on a discriminatory basis". In so speaking, Lord Hoffmann was looking forward to a case such as that in Horvath where private persons, not acting as agents of the state, may persecute people on a discriminatory basis; but he was also assuming in that passage that the state's failure to protect the victim was, at any rate so far as the state's agents were concerned, without "applying any discriminatory policy of their own". He was not there directly contemplating a case where the state's failure of protection is itself seen to be discriminatory. In my judgment it is clear from the decision in Horvath (and from Lord Hoffmann's own example of the Jewish shopkeeper) that the ill treatment meted out by an individual aggressor need not itself be motivated by discrimination for the victim to complain of persecution for a Convention reason.

[80]Suppose a state in which young persons between the ages of 12 and 18 were subject to slave labour, enforced by any necessary brutality. That was the custom of its people, and the custom was enforced by the laws of the state, which gave the young persons no protection and rendered the adults responsible for the system immune from any legal prosecution or liability for their conduct. It would not be difficult in such circumstances to find all the preconditions for the existence of refugee status to be met in the case of any such young person who escaped to Britain. Suppose now that the state underwent a change of moral or political consciousness and resolved to abolish this system of slave labour, and therefore extended to these young persons the full nominal constitutional rights of all citizens: but the custom was ingrained and hard to eradicate, and the police unused to extending protection to the slave labourers, and in such circumstances the situation of these young persons was slow to improve. In respect of such a nation, which was on the road from state persecution to state protection, any claim to the surrogate protection of another nation might raise difficult issues of fact. But it would be irrelevant to say that any particular father or employer did not discriminate when he victimised the young slave.

[81]I use that merely as an example. I do not for a moment suggest that the status of women in Lithuania is in any way comparable. But the example demonstrates, to my mind, that it is impossible for this court to say that, on the findings made by the adjudicator, this appellant's case is hopeless or unrealistic.

[82]I come then to the Secretary of State's decision letter of 30 June 2000. Does that change the position? That letter had to consider both the appellant's submission of a fresh claim to asylum, and her request for the grant of exceptional leave to remain based on the adjudicator's recommendation of "very strong compassionate circumstances which qualify the appellant for leave outside the Rules". In connection with both Mr Qureshi submitted that, writing as he was more than a year after the adjudicator's determination, the Secretary of State was bound to have had new material on which to base his decision, and that in such circumstances it was impossible for this court to interfere, especially as the essential issue was as to the general situation in a foreign country rather than a specific finding of fact: see Elhasoglu v. Secretary of State for the Home Department [1997] Imm AR 380 at 383 and R v. Secretary of State for the Home Department ex parte Danaei [1998] INLR 124 at 133. Thus Mr Qureshi emphasised language in the decision letter such as "taking into account all the material now available" and "the current position in Lithuania".

[83]In my judgment, however, these expressions smack of formulaic language. The fact is that the letter states that the Secretary of State has considered the appellant's applications "on the basis of the Special Adjudicator's findings of fact"; and exceptional leave to remain is subsequently refused "even on the basis that [the appellant's] entire account is accepted as correct, and bearing in mind the Special Adjudicator's recommendation…". Yet among the adjudicator's findings of fact were these:

"I accepted as credible the account given to me at the hearing of the violent abuse by her husband. While I accept that Lithuania has begun to address issues of criminal violence in general and domestic violence in particular, I do not consider that the authorities would be able to provide the appellant with adequate protection at this stage, nor have I found that they have done so in the past. I accepted, in particular, what the appellant said at the hearing about complaining to the police, her husband going to the police station and then returning home, when the problems would begin all over again. "

I agreed with what Mr Pedro said about there being a real risk of assault and possible death if the appellant were to return to Lithuania. In my opinion this appellant was a desperate woman who had fled Lithuania to secure safety from not only her husband, but the mafia, whose outstretched arm she had good reason to fear."

[84]The reference to the outstretched arm of the Mafia was, as I infer, to colleagues of her ex husband being willing to assist him in his violence against the appellant: it responds inter alia to the answer she gave in interview to the question "Are there no safe areas to which you could move?", to which she replied "Such people like my husband will find you anywhere it is not difficult for them".

[85]In these circumstances and in the light of what the Secretary of State said about accepting the appellant's account and the adjudicator's findings, I am unable to find in the decision letter a clear explanation of how or why it is that the letter goes on to state that "It would be open to your client to live in a different part of Lithuania and to seek the assistance of the authorities there." The Secretary of State may have had good reason to say that, but it is not apparent from the letter. On the contrary, in an earlier part of the letter he appears to accept that the general situation in Lithuania remains what the adjudicator found it to be. It seems to me that where the Secretary of State purports to accept the findings of the adjudicator (by which of course for these purposes he is not bound), but seeks to come to a different conclusion, then he should give clear reasons why. It is not enough to express the formula of "the current position". Therefore the Secretary of State's decision to refuse exceptional leave to remain should be quashed.

[86]As for the request for consideration of a fresh claim: in as much as that was put on the basis of fresh evidence from the appellant to the effect that she had been raped by her ex husband, the Secretary of State was entitled to say that that was not credible; it remains the fact, however, that the Secretary of State had not heard the appellant in person. To the extent that the request was put on the basis of the House of Lords decision in Shah and a new submission that women form a particular social group in Lithuania, the Secretary of State would have been entitled to form his own view as to that question and as to the linked questions of the adequacy of state protection and degree of discrimination, if the matter were before him entirely afresh. Since, however, he purported to reconsider the matter on the basis of the adjudicator's findings, it is again unclear how he moves from there to his conclusion.

[87]In truth, however, it seems to me that the fresh claim request is subsidiary to the appellant's claim for judicial review of the adjudicator's determination. That determination, the findings of which were reached and expressed before the decisions in the House of Lords in both Shah and Horvath , is based on an error of law which in my judgment entitles the appellant to a remission of her appeal and a fresh determination. In the light of those important authorities and of such material, personal evidence from the appellant, analysis and submission as are presented on that occasion, a new special adjudicator will be put in a position to form a proper appreciation of the appellant's claim to refugee status. It seems to me that that is the correct way to proceed, particularly in a cause which, ex hypothesi were the last adjudicator's views to be given their due, could be a matter of life or death. In such a case it does not seem to me satisfactory to rest the appellant's status on whether or not the Secretary of State's refusal of her fresh claim is susc eptible or not to judicial review and ultimately I do not think it is necessary to decide that question.

[88]For the same reason, I do not think that it is satisfactory merely to rest the appellant's future on her separate appeal to a special adjudicator pursuant to section 65 of the Immigration and Asylum Act 1999 on the basis that the Secretary of State's decision was in breach of her human rights (the article 3 point).

[89]So in my judgment the appellant's claim should be remitted to a new special adjudicator for a fresh look. It is not for this court to suggest in any way what the correct conclusion on that appeal might be. That is a matter for the new adjudicator. It is merely sufficient to say that the appellant's claim is arguable and has never been properly considered. I speak of a "new" special adjudicator, because in my judgment this is a case where in fairness both to the appellant and to the Secretary of State it is necessary to start again. For that reason I would set aside the whole of the adjudicator's determination. It would be unsatisfactory for a recommendation as to exceptional leave to remain to survive on one factual basis while the question of refugee status is remitted for fresh consideration on an up to date basis which may result in different findings. It will be open to the appellant to pursue before the new adjudicator both her claim to asylum and, if she so wishes, her claim for a recommendation for exceptional leave to remain.

ORDER

Appeal allowed with costs; subject to detailed assessment together with funded client assessment; remit. (Order does not form part of approved Judgment)

IVANAUSKIENE'S v A SPECIAL ADJUDICATOR [2001] EWCA Civ 1271

LORD JUSTICE SCHIEMANN:

Introduction

LORD JUSTICE RIX:

ORDER

Cited in 3 later judgments