Particular social group

Last updated

Particular social group (PSG) is one of five categories that may be used to claim refugee status according to two key United Nations documents: the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees. The other four categories are race, religion, nationality, and political opinion. As the most ambiguous and open-ended of the categories, the PSG category has been the subject of considerable debate and controversy in refugee law. [1] [2] Note that just as with the other four categories, membership in a PSG is not sufficient grounds for being granted refugee status. Rather, to be granted refugee status, one must both demonstrate membership in one of the five categories (race, religion, nationality, particular political opinion, and particular social group) and a nexus between that membership and persecution one is facing or risks facing. [3] [4]

Contents

PSG determination is part of the general refugee determination process in most countries that are signatories to the 1951 Convention. In particular, these decisions are made by the immigration bureaucracies, immigration courts, and the general courts (to which immigration decisions may need to be appealed). Past decisions create guidelines and precedents for future decisions in the same country. In general, decisions in one country do not create precedents for decisions in other countries, but there is some influence through the influence on periodically updated UNHCR guidelines and through lawyers' use of these cases. Two particularly seminal decisions influencing PSG determination worldwide have been Matter of Acosta (1985, United States), and Ward (1993, Canada).

Examples of PSGs identified in various countries include women (and various subsets thereof), homosexuals and others with non-mainstream sexual orientations, specific families, and the poor. [5]

United Nations documents

In 2002, the United Nations High Commission for Refugees (UNHCR) published updated guidance for the interpretation of the PSG category. [1]

Broad guidelines

Two approaches: protected characteristics (immutability) and social perception

The UNHCR document identified two approaches have been used to determine membership in and legitimacy of PSGs:

  1. The protected characteristics (or immutability) approach: This approach examines whether a group is united by one of these:
    • An innate immutable characteristic (such as sex or ethnicity)
    • An immutable characteristic that is not innate but is unalterable for other reasons (such as the historical fact of a past association, occupation, or status)
    • A characteristic that is so fundamental to human dignity that a person should not be required to change it.
  2. The social perception approach: This approach examines whether or not the group shares a common characteristic which makes them a cognizable group or sets them apart from the society at large.

The UNHCR document provides the following guidance regarding the interpretation of the protected characteristic approach:

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

Additional observations

The UNHCR document offered the following additional guidelines regarding PSG membership:

United States

The application of the PSG criterion in the United States is governed by decisions and clarifications made by the Board of Immigration Appeals as well as the United States courts of appeals. Officials and judges have considerable interpretive latitude in determining PSG status.[ citation needed ]

Membership in a particular social group must be based on a characteristic that one either cannot change or should not be forced to change

In Matter of Acosta (1985), the Board of Immigration Appeals interpreted the 1951 Convention to come up with a rule of thumb for determining what constitutes a PSG for the purpose of the Convention. BIA compared it to the other four grounds for refugee status, and noted that two of them (race and nationality) were based on characteristics that one cannot change, whereas the other two (religion and political opinion) were based on characteristics one should not be required to change. Generalizing from this, they argued that for a group to qualify as a PSG for the purpose of refugee status, it must be either a characteristic one cannot change or a characteristic one should not be required to change. [6] This approach would be characterized by the UNHCR in 2002 as the "protected characteristics" approach. [1]

Particularity and social visibility

Drawing on the 2002 UNHCR guidelines, a series of decisions by BIA made 2008 onward gave importance to two additional criteria for defining a PSG: particularity and social visibility. However, unlike the UNHCR guidelines, which suggested social visibility as a way to identify PSGs that might get filtered out by the protected characteristics approach, the BIA decisions endorsed the logic that these criteria need to be met over and above the protected characteristic criterion. [6] [7] [8]

  1. Particularity: The social group in question must be identified in the broader society as a discrete class of persons.
  2. Social visibility: Membership in the social group should generally be recognizable by others in the community.

The BIA decisions received criticism from many angles. Some critics argued that the notions of particularity and social visibility had been conflated, and that the decision left unclear whether social visibility ought to be interpreted as literal or figurative visibility. [7]

Australia

Refugee law in Australia is decided de facto by refugee tribunals and the Federal Court of Australia. As with the United States, judges have considerable interpretive latitude and decisions create precedents for further decisions.

Discretion requirement

One of the distinguishing features of the PSG definition in Australia has been the discretion requirement, particularly in connection with sexuality. While the Australian courts have generally accepted that if somebody needs to hide his or her political or religious beliefs in order be free from persecution, that itself counts as persecution, the same logic was not applied to homosexuality or other non-standard sexual orientations. The courts have upheld the view that sexuality is not something that one needs to openly disclose, so if one can be free from persecution by hiding it, then one does not qualify for refugee status. This contradicts the view expressed in UNHCR documents, where it is said that people's ability to prevent persecution by hiding their status does not undermine the case for persecution. [9]

Canada

The Immigration and Refugee Board of Canada is responsible for guidelines related to determining refugee status, including criteria for membership in a particular social group. [5] The IRB and various scholars of Canadian refugee law have identified two key Supreme Court of Canada decisions that have helped delineate the definition of PSG: Canada (Attorney General) v. Ward (1993) and Chan v. Canada (Minister of Employment and Immigration) (1995). [5] [10] [11] [12]

The Ward decision cited the Supreme Court's use of tests in Mayers, Cheung, and the United States' Matter of Acosta to identify three possible categories of PSGs: [5]

  1. Groups defined by an innate or unchangeable characteristic;
  2. groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
  3. groups associated by a former voluntary status, unalterable due to its historical permanence.

The IRB has identified the Supreme Court of Canada's decision in Ward as providing an interpretative foundation for PSG membership. [5]

The categories identified in Ward were further clarified in Chan: [5]

  1. The Ward decision enunciated a working rule and "not an unyielding deterministic approach to resolving whether a refugee claimant could be classified within a particular social group." The paramount consideration in determining a particular social group is the "general underlying themes of the defence of human rights and anti-discrimination."
  2. The "is versus does" distinction was not intended to replace the Ward categories. There must be proper consideration of the context in which the claim arose.
  3. With respect to category two of the Ward categories and the position taken by the Court of Appeal in Chan that this category required an active association between members of the group, Mr. Justice La Forest stated: "In order to avoid any confusion on this point let me state incontrovertibly that a refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him- or herself."

PSGs identified in Canadian jurisprudence include the family, homosexuals, trade unions, the poor, women subject to abuse or coercion of various kinds, and others. [5]

United Kingdom

Asylum cases are first processed by the Home Office. They may be appealed to the First-Tier Tribunal of the Immigration and Asylum Chambers. The unsuccessful side may appeal to the Upper Tribunal. The unsuccessful side may then appeal to the Court of Appeal. Precedents may be set by previous decisions at each stage.

Asylum decisions in the UK based on particular social groups have stressed the need to make a two-fold case: [13]

Tests for domestic violence asylum decisions

In 1999, the House of Lords in the United Kingdom granted asylum to two Pakistani women based on severe violence they faced at their husbands' hands and their fears of false charges of adultery. The case established three necessary conditions for women to get asylum for domestic violence based on particular social group status: [13]

  1. A failure of state protection
  2. Women in her state are treated sufficiently poorly as to constitute a PSG
  3. She lacks an internal flight alternative, i.e., she cannot realistically relocate elsewhere within the country and avoid persecution.

Related Research Articles

An asylum seeker is a person who leaves their country of residence, enters another country and applies for asylum in this other country. An asylum seeker is an immigrant who has been forcibly displaced and might have fled their home country because of war or other factors harming them or their family. If their case is accepted, they become considered a refugee. The terms asylum seeker and refugee are often confused.

Refugee law is the branch of international law which deals with the rights and duties states have vis-a-vis refugees. There are differences of opinion among international law scholars as to the relationship between refugee law and international human rights law or humanitarian law.

Right of asylum Juridical concept in which someone persecuted by their country may take refuge in another

The right of asylum is an ancient juridical concept, under which people persecuted by their own rulers might be protected by another sovereign authority, like a second country or another entity which in medieval times could offer sanctuary. This right was recognized by the Ancient Egyptians, the Greeks, and the Hebrews, from whom it was adopted into Western tradition. René Descartes fled to the Netherlands, Voltaire to England, and Thomas Hobbes to France, because each state offered protection to persecuted foreigners.

Convention Relating to the Status of Refugees United Nations multilateral treaty

The Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention or the Geneva Convention of 28 July 1951, is a United Nations multilateral treaty that defines who a refugee is, and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The Convention also sets out which people do not qualify as refugees, such as war criminals. The Convention also provides for some visa-free travel for holders of refugee travel documents issued under the convention.

Non-refoulement is a fundamental principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on "race, religion, nationality, membership of a particular social group or political opinion". Unlike political asylum, which applies to those who can prove a well-grounded fear of persecution based on certain category of persons, non-refoulement refers to the generic repatriation of people, including refugees into war zones and other disaster locales. It is a principle of customary international law, as it applies even to states that are not parties to the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol. It is also a principle of the trucial law of nations.

The New Zealand Refugee Status Appeals Authority or RSAA, was an independent authority that heard the appeals of people who had been declined refugee status by the Refugee Status Branch of the New Zealand Immigration Service. It was established in 1991, and was replaced by the Immigration and Protection Tribunal in 2010. New Zealand established the RSAA as part of its responsibility to uphold the right of asylum as a result of being a signatory of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol. The decisions of the RSAA are not binding, but have had a significant impact on refugee jurisprudence.

Asylum in the United States Overview of the situation of the right for asylum in the United States of America

The United States recognizes the right of asylum for refugees as specified by international and federal law. A specified number of legally defined refugees who are granted refugee status outside the United States are annually admitted under 8 U.S.C. § 1157 for firm resettlement. Other people enter the United States as aliens either lawfully or unlawfully and apply for asylum under section 1158.

Immigration and Naturalization Service v. Elias-Zacarias, 502 U.S. 478 (1992), is a case in which the United States Supreme Court ruled that a Guatemalan man seeking asylum in the United States of America as a result of forced conscription in a guerrilla army did not establish persecution on account of political opinion, a legal requirement for asylum.

Immigration and Naturalization Service v. Predrag Stevic, 467 U.S. 407 (1984), was a Supreme Court of the United States decision that held if an alien seeks to avoid deportation proceedings by claiming that he will be persecuted if he is returned to his native land, he must show a "clear probability" that he will be persecuted there.

Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421 (1987), was a United States Supreme Court case that decided that the standard for withholding of removal, which was set in INS v. Stevic, was too high a standard for applicants for asylum to satisfy. In its place, consistent with the standard set by the United Nations, the Court in held that an applicant for asylum in the United States needs to demonstrate only a "well-founded fear" of persecution, which can be met even if the applicant does not show that he will more likely than not be persecuted if he is returned to his home country.

Immigration and Naturalization Service v. Aguirre-Aguirre, 526 U.S. 415 (1999), examined a doctrinal question last presented to the U.S. Supreme Court in Immigration and Naturalization Service v. Cardoza-Fonseca. In Aguirre-Aguirre, the Court determined that federal courts had to defer to the Board of Immigration Appeals's interpretation of the Immigration and Nationality Act.

The Russian Federation's Law on Refugees defines who is a refugee for purposes of obtaining asylum in the country. The Law defines a refugee as a "person who is outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution. Upon receiving an asylum seeker's application, the Russian Migration Service determines whether the asylum seeker meets the legislative definition of a "refugee" and should be granted asylum.

The United Nations High Commissioner for Refugees Representation in Cyprus is an office of the United Nations High Commissioner for Refugees (UNHCR) opened in August 1974 upon the request of the Government of Cyprus and the Secretary-General of the United Nations. UNHCR Representation in Cyprus was designated as Coordinator of the United Nations Humanitarian Assistance for Cyprus. UNHCR was also responsible upon the request of the Cyprus Government to examine applications for refugee status.

<i>HJ and HT v Home Secretary</i>

HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 is a case decided by the Supreme Court of the United Kingdom concerning two men, from Iran and Cameroon respectively, claiming asylum in the United Kingdom on the grounds of their homosexuality. The men's claims had previously been turned down on the basis they would not face persecution in their own countries if they would conceal their sexuality. The appeal therefore centred on the question as to whether the men on their return could reasonably be expected to tolerate this requirement of discretion; the so-called 'discretion' or 'reasonable tolerability' test. Interventions were made by the Equality and Human Rights Commission and the United Nations High Commissioner for Refugees.

The Immigration and Protection Tribunal is a specialist, independent tribunal established in New Zealand under the Immigration Act 2009 with jurisdiction to hear appeals and applications regarding residence class visas, deportation, and claims to be recognised as a refugee or as a protected person. The Tribunal is administered by the Ministry of Justice and is chaired by a District Court Judge, appointed by the Governor General on the recommendation of the Attorney-General.

LGBT migration is the movement of lesbian, gay, bisexual, transgender, and queer (LGBT) people around the world and domestically, often to escape discrimination or ill treatment due to their sexuality. Globally, many LGBT people attempt to leave discriminatory regions in search of more tolerant ones.

Credible fear is a concept in United States asylum law whereby a person who demonstrates a credible fear of returning to their home country cannot be subject to deportation from the United States until the person's asylum case is processed.

LGBT refugees and asylum seekers in Canada

In Canada, Lesbian, Gay, Bisexual, or Transgender (LGBT) or Gender and Sexual Minority (GSM) refugees and asylum-seekers are those who make refugee claims to Canada due to their sexual orientation or gender identity.

<i>Chen Shi Hai v MIMA</i>

Chen Shi Hai v MIMA, also known as 'Chen' is a decision of the High Court of Australia.

<i>MIMA v Haji Ibrahim</i> Court decision

MIMA v Haji Ibrahim is a decision of the High Court of Australia.

References

  1. 1 2 3 "GUIDELINES ON INTERNATIONAL PROTECTION: "Membership of a particular social group" within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees". UNHCR.
  2. ↑ "Hot Topics in Asylum: An Examination of Particular Social Group and Other Serious Harm". Department of Homeland Security. June 29, 2012. Retrieved July 11, 2015.
  3. ↑ "Asylum Eligibility Part Three: Nexus and the Five Protected Characteristics" (PDF). United States Citizenship and Immigration Services. Archived from the original (PDF) on 2015-09-27. Retrieved September 26, 2015.
  4. ↑ Arnold, Samantha K. (2012). "Nexus with a Convention Ground: The Particular Social Group and Sexual Minority Refugees in Ireland and the United Kingdom" (PDF). Irish Law Journal . 1: 93. Archived from the original (PDF) on September 28, 2015. Retrieved September 26, 2015.
  5. 1 2 3 4 5 6 7 "Chapter 4: Grounds of Persecution". Immigration and Refugee Board of Canada . Retrieved August 31, 2015.
  6. 1 2 "Particular Social Group Practice Advisory: Applying for Asylum After Matter of M-E-V-G-and Matter of W-G-R" (PDF). National Immigrant Justice Center. January 2016.
  7. 1 2 Marouf, Fatma E. (January 2008). "The Emerging Importance of 'Social Visibility' in Defining a Particular Social Group and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender". Yale Law and Policy Review . 47: 419.
  8. ↑ Kowalski, Daniel (February 7, 2014). "New BIA Precedent Decisions on Social Group, Social Visibility" . Retrieved July 11, 2015.
  9. ↑ Dauvergne, Catherine; Millbank, Jenni (January 2003). "Before the High Court. Applicants S396/2002 and S395/2002, a gay refugee couple from Bangladesh". Sydney Law Review . 25 (1): 97–124. hdl:10453/866.
  10. ↑ Shacter, Ron (1997). "The Cases of Ward and Chan". Osgoode Hall Law Journal. 35 (3/4): 723–36.
  11. ↑ "Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689" . Retrieved September 1, 2015.
  12. ↑ "Chan v. Canada (Minister of Employment and Immigration)" . Retrieved September 1, 2015.
  13. 1 2 Bethany Christa Lobo (2012). "Women as a Particular Social Group: A Comparative Assessment of Gender Asylum Claims in the United States and United Kingdom". Georgetown Immigration Law Review. 26. SSRN   2263350.

Further reading

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.