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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 issues these Guidelines pursuant to its mandate, as
contained in the Statute of the Office of the United Nations High
Commissioner for Refugees, and Article 35 of the 1951 Convention relating to the Status of
Refugees and/or its 1967 Protocol. These
Guidelines complement the UNHCR Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees (Reedited, Geneva, January 1992). They further supersede IOM/132/1989 – FOM/110/1989
Membership of a Particular Social Group (UNHCR, Geneva, 12 December 1989), and
result from the Second Track of the Global Consultations on International
Protection process which examined this subject at its expert meeting in San
Remo in September 2001.
These Guidelines are intended to provide legal interpretative guidance
for governments, legal
practitioners, decision-makers and the judiciary, as well as UNHCR staff
carrying out refugee status determinations in the field.
“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
I. INTRODUCTION
1. “Membership of a particular social group” is one of the five grounds enumerated in Article 1A(2) of the 1951 Convention relating to the Status of Refugees (“1951 Convention”). It is the ground with the least clarity and it is not defined by the 1951 Convention itself. It is being invoked with increasing frequency in refugee status determinations, with States having recognised women, families, tribes, occupational groups, and homosexuals, as constituting a particular social group for the purposes of the 1951 Convention. The evolution of this ground has advanced the understanding of the refugee definition as a whole. These Guidelines provide legal interpretative guidance on assessing claims which assert that a claimant has a well-founded fear of being persecuted for reasons of his or her membership of a particular social group.
2.
While
the ground needs delimiting—that is, it cannot be interpreted to render
the other four Convention grounds superfluous—a proper interpretation
must be consistent with the object and purpose of the Convention. [1] Consistent with the language of the
Convention, this category cannot be interpreted as a “catch all”
that applies to all persons fearing persecution. Thus, to preserve the structure and integrity of the
Convention’s definition of a refugee, a social group cannot be defined exclusively
by the fact that
it is targeted for persecution (although, as discussed below, persecution may
be a relevant element in determining the visibility of a particular social
group).
3. There is no “closed list” of what groups may constitute a “particular social group” within the meaning of Article 1A(2). The Convention includes no specific list of social groups, nor does the ratifying history reflect a view that there is a set of identified groups that might qualify under this ground. Rather, the term membership of a particular social group should be read in an evolutionary manner, open to the diverse and changing nature of groups in various societies and evolving international human rights norms.
4.
The
Convention grounds are not mutually exclusive. An applicant may be eligible for refugee status under more
than one of the grounds identified in Article 1A(2).[2] For example, a claimant may
allege that she is at risk of persecution because of her refusal to wear
traditional clothing. Depending on
the particular circumstances of the society, she may be able to establish a
claim based on political opinion (if her conduct is viewed by the State as a
political statement that it seeks to suppress), religion (if her conduct is
based on a religious conviction opposed by the State) or membership in a
particular social group.
II. SUBSTANTIVE ANALYSIS
A.
Summary
of State Practice
5. Judicial decisions, regulations, policies, and practices have utilized varying interpretations of what constitutes a social group within the meaning of the 1951 Convention. Two approaches have dominated decision-making in common law jurisdictions.
6.
The
first, the “protected characteristics” approach (sometimes referred
to as an “immutability” approach), examines whether a group is
united by an immutable characteristic or by a characteristic that is so
fundamental to human dignity that a person should not be compelled to forsake
it. An immutable characteristic
may be innate (such as sex or ethnicity) or unalterable for other reasons (such
as the historical fact of a past association, occupation or status). Human rights norms may help to identify
characteristics deemed so fundamental to human dignity that one ought not to be
compelled to forego them. A
decision-maker adopting this approach would examine whether the asserted group
is defined: (1) by an innate,
unchangeable characteristic, (2) by a past temporary or voluntary status that
is unchangeable because of its historical permanence, or (3) by a
characteristic or association that is so fundamental to human dignity that
group members should not be compelled to forsake it. Applying this approach, courts and administrative
bodies in a number of jurisdictions have concluded that women, homosexuals, and
families, for example, can constitute a particular social group within the
meaning of Article 1A(2).
7.
The
second approach examines whether or not a group shares a common characteristic
which makes them a cognizable group or sets them apart from society at large.
This has been referred to as the “social perception” approach. Again, women, families and homosexuals
have been recognized under this analysis as particular social groups, depending
on the circumstances of the society in which they exist.
8.
In
civil law jurisdictions, the particular social group ground is generally less
well developed. Most
decision-makers place more emphasis on whether or not a risk of persecution
exists than on the standard for defining a particular social group. Nonetheless, both the protected
characteristics and the social perception approaches have received mention.
9.
Analyses
under the two approaches may frequently converge. This is so because groups whose members are targeted based
on a common immutable or fundamental characteristic are also often perceived as
a social group in their societies.
But at times the approaches may reach different results. For example, the social perception
standard might recognize as social groups associations based on a
characteristic that is neither immutable nor fundamental to human
dignity—such as, perhaps, occupation or social class.
B. UNHCR’s Definition
10.
Given
the varying approaches, and the protection gaps which can result, UNHCR
believes that the two approaches ought to be reconciled.
11.
The
protected characteristics approach may be understood to identify a set of
groups that constitute the core of the social perception analysis. Accordingly, it is appropriate to adopt
a single standard that incorporates both dominant approaches:
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.
12.
This
definition includes characteristics which are historical and therefore cannot
be changed, and those which, though it is possible to change them, ought not to
be required to be changed because they are so closely linked to the identity of
the person or are an expression of fundamental human rights. It follows that sex can properly be
within the ambit of the social group category, with women being a clear example
of a social subset defined by innate and immutable characteristics, and who are
frequently treated differently to men.[3]
13.
If a
claimant alleges a social group that is based on a characteristic determined to
be neither unalterable or fundamental, further analysis should be undertaken to
determine whether the group is nonetheless perceived as a cognizable group in
that society. So, for example, if
it were determined that owning a shop or participating in a certain occupation
in a particular society is neither unchangeable nor a fundamental aspect of human
identity, a shopkeeper or members of a particular profession might nonetheless
constitute a particular social group if in the society they are recognized as a
group which sets them apart.
The
role of persecution
14.
As
noted above, a particular social group cannot be defined exclusively by the
persecution that members of the group suffer or by a common fear of being
persecuted. Nonetheless,
persecutory action toward a group may be a relevant factor in determining the
visibility of a group in a particular society.[4] To use an example from a widely cited
decision, “[W]hile persecutory conduct cannot define the social group,
the actions of the persecutors may serve to identify or even cause the creation
of a particular social group in society.
Left-handed men are not a particular social group. But, if they were persecuted because
they were left-handed, they would no doubt quickly become recognizable in their
society as a particular social group.
Their persecution for being left-handed would create a public perception
that they were a particular social group.
But it would be the attribute of being left-handed and not the
persecutory acts that would identify them as a particular social group.” [5]
No
requirement of cohesiveness
15.
It
is widely accepted in State practice that an applicant need not show that the
members of a particular group know each other or associate with each other as a
group. That is, there is no
requirement that the group be “cohesive.”[6] The relevant inquiry is whether there is
a common element that group members share. This is similar to the analysis adopted for the other
Convention grounds, where there is no requirement that members of a religion or
holders of a political opinion associate together, or belong to a
“cohesive” group. Thus
women may constitute a particular social group under certain circumstances
based on the common characteristic of sex, whether or not they associate with
one another based on that shared characteristic.
16.
In
addition, mere membership of a particular social group will not normally be
enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere
membership can be a sufficient ground to fear persecution.[7]
Not all members of the group
must be at risk of being persecuted
17.
An
applicant need not demonstrate that all members of a particular social group
are at risk of persecution in order to establish the existence of a particular
social group.[8] As with the
other grounds, it is not necessary to establish that all persons in the
political party or ethnic group have been singled out for persecution. Certain members of the group may not be
at risk if, for example, they hide their shared characteristic, they are not
known to the persecutors, or they cooperate with the persecutor.
Relevance of size
18.
The
size of the purported social group is not a relevant criterion in determining
whether a particular social group exists within the meaning of Article
1A(2). This is true as well for
cases arising under the other Convention grounds. For example, States may seek to suppress religious or
political ideologies that are widely shared among members of a particular
society—perhaps even by a majority of the population; the fact that large
numbers of persons risk persecution cannot be a ground for refusing to extend
international protection where it is otherwise appropriate.
19.
Cases
in a number of jurisdictions have recognized “women” as a
particular social group. This does
not mean that all women in the society qualify for refugee status. A claimant must still demonstrate a
well-founded fear of being persecuted based on her membership in the particular
social group, not be within one of the exclusion grounds, and meet other
relevant criteria.
Non-State actors and the causal
link (“for reasons of”)
20.
Cases
asserting refugee status based on membership of a particular social group
frequently involve claimants who face risks of harm at the hands of non-State
actors, and which have involved an analysis of the causal link. For example, homosexuals may be victims
of violence from private groups; women may risk abuse from their husbands or
partners. Under the Convention a
person must have a well-founded fear of being persecuted and that fear of being
persecuted must be based on one (or more) of the Convention grounds. There is no requirement that the
persecutor be a State actor. Where
serious discriminatory or other offensive acts are committed by the local
populace, they can be considered as persecution if they are knowingly tolerated
by the authorities, or if the authorities refuse, or prove unable, to offer
effective protection.[9]
21.
Normally,
an applicant will allege that the person inflicting or threatening the harm is
acting for one of the reasons identified in the Convention. So, if a non-State actor inflicts or
threatens persecution based on a Convention ground and the State is unwilling
or unable to protect the claimant, then the causal link has been established. That is, the harm is being visited upon
the victim for reasons of a Convention ground.
22.
There
may also arise situations where a claimant may be unable to show that the harm
inflicted or threatened by the non-State actor is related to one of the five
grounds. For example, in the
situation of domestic abuse, a wife may not always be able to establish that
her husband is abusing her based on her membership in a social group, political
opinion or other Convention ground.
Nonetheless, if the State is unwilling to extend protection based on one
of the five grounds, then she may be able to establish a valid claim for
refugee status: the harm visited
upon her by her husband is based on the State’s unwillingness to protect
her for reasons of a Convention ground.
23.
This
reasoning may be summarized as follows.
The causal link may be satisfied:
(1) where there is a real risk of being persecuted at the hands of a
non-State actor for reasons which are related to one of the Convention grounds,
whether or not the failure of the State to protect the claimant is Convention
related; or (2) where the risk of
being persecuted at the hands of a non-State actor is unrelated to a Convention
ground, but the inability or unwillingness of the State to offer protection is
for a Convention reason.