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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary Of State For Home Department v Javed & Ors  EWCA Civ 789 (17 May 2001)
Cite as:  Imm AR 529,  EWCA Civ 789,  3 WLR 323,  QB 129,  INLR 645
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Hon. Mr Justice Turner
Strand, London, WC2A 2LL
Thursday, 17th May 2001
B e f o r e :
LORD JUSTICE PETER GIBSON
LORD JUSTICE LATHAM
| Secretary of State for the Home Department
|- and -
Zuifiqar Ali and Abid Ali
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Richard Drabble, QC and Eric Fripp (instructed by Powell & Co for the First Respondent)
Nicholas Blake, QC and Edward Grieves (instructed by Bhogal & Lal for the Second Respondents)
Crown Copyright ©
LORD PHILLIPS, MR :
This is the judgment of the Court.
"(1) This paragraph applies to an appeal by a person on any of the grounds mentioned in sub-sections (1) to (4) of Section 8 of this Act if the Secretary of State has certified that, in his opinion, the person's claim on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or be required to leave, the United Kingdom is one to which:
(a) sub-paragraph (2), (3) or (4) below applies; and
(b) sub-paragraph (5) below does not apply.
(2) This sub-paragraph applies to a claim if the country or territory to which the appellant is to be sent is designated in an Order made by the Secretary of State by Statutory Instrument as a country or territory in which it appears to him that there is in general no serious risk of persecution. .........
(5) This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he is to be sent .......
(8) The first Order under this paragraph shall not be made unless a draft of the Order has been laid before and approved by resolution of each House of Parliament."
"(2) The following countries are designated as ones in which it appears to the Secretary of State that there is in general no serious risk of persecution in:
Bulgaria, Cyprus, Ghana, India, Pakistan, Poland, Romania ......."
This list of countries is known colloquially as 'the White List'.
i) To what extent is it open to the Court to review the validity of the Order, having regard to the fact that it has been approved by the affirmative resolution of each House of Parliament?
ii) In the light of the answer to (1), was Turner J. correct to hold that the Order was invalid?
"…the court is hardly less well placed than the Secretary of State to evaluate (the evidence for in-country assessments) once the relevant material is placed before it"
"I have been unable to see upon what basis the Secretary of State reached his initial decision .... The decision of Parliament was a political one, based on a factual proposition determined by the Secretary of State that Pakistan was a country which satisfied the requirements of paragraph 5(2). In that, he was, in my judgment plainly wrong."
Material on Pakistan
"5. To deal with this and other matters, the then government produced an Asylum and Immigration Bill on 29th November 1995 ..... On the second reading of the Bill on 11th December 1995, the Secretary of State explained that he proposed to apply three criteria in deciding whether to designate a country or territory.
(a) The country or territory should be one in which there was in general no serious risk of persecution.
(b) The country or territory should be one from which a significant number of claims for asylum to the United Kingdom were made,
(c) And a very high proportion of those claims were refused.
The Secretary of State also indicated on that occasion that at that time he proposed to designate Pakistan and other specified countries .........
6. The Asylum and Immigration Act 1996 received Royal assent on 24th July 1996. In August 1996 the Home Office published to Parliament an explanatory note to s.1 ..... The introduction listed the countries which the Secretary of State proposed to designate, including Pakistan. Paragraph 3 repeated the three criteria for designation. The note attached background country assessments for all of the countries which it was proposed to designate .... The publication was effected by the placing of copies of both the note and the background country assessment in the libraries of the House of Commons and of the House of Lords.
7. In deciding to designate Pakistan the Secretary of State took into account information from a wide range of bodies, including diplomatic missions, international and non-governmental organisations, including UNHCR and Amnesty International, and press reports.
8. The country assessment for Pakistan ... expressly referred to the position of both Ahmadis and women: paragraphs 7, 11. I can confirm that the Secretary of State did consider that the position of women in Pakistan was relevant to the question of designation. He did not consider that difficulties which women experience in Pakistan were irrelevant, whether because women in Pakistan were thought not to constitute a particular social group or for any other reason.
9. The country assessments produced at that time were relatively brief. The brevity of the documents should not be taken to indicate that the Secretary of State's consideration of the situation in Pakistan was equally brief. The Secretary of State gave very careful and detailed consideration to a large volume of material from a wide range of sources. ......
11. The Secretary of State also had regard to decisions of immigration appellate authorities and the courts. These had consistently held that Ahmadis are not persecuted per se but that certain individual Ahmadis may suffer persecution, depending on their particular circumstances. I refer by way of example to Gulzar Ahmed -v- Home Secretary  IAR 61 (CA) and Tahir -v- Home Secretary  (11032) (IAT) The Secretary of State was also aware of the decisions of the Immigration Appeal Tribunal in the cases of Shah and Islam, given on 9th August 1995 and 2nd October 1996 respectively."
"7. Religious Freedom
Although Pakistan declared itself an Islamic Republic in 1956, successive constitutions have guaranteed the civil rights of religious minorities. Officially speaking, there is no systematic or government-led persecution of religious minorities in Pakistan, but discriminatory laws such as the Hudood ordinances introduced under previous regimes are still in place. There are two main religious minorities which apply for asylum in the United Kingdom. These are Christians and Ahmadis (an offshoot of the Muslim religion). However, not all people claiming to be followers of these religions are genuine. Further details follow under the general human rights situation. .....
11. General Human Rights Situation .......
Presidential Ordinance XX of 26 April 1984 prohibited Ahmadis from declaring themselves to be Muslims. However, the discretionary provisions of the ordinance have not been rigorously or generally enforced. Ahmadis have also been subject to accusations under s. 295(c) of the Pakistan Penal Code, which stipulates a mandatory death penalty for blaspheming the Prophet Mohammed. Since the PPP came to power, approximately 21 Ahmadis have been accused of blasphemy under this section. However, under s. 298(c) (the law specifically preventing Ahmadis calling themselves Muslim or propagating their faith) approximately 645 cases (2432 people) have been registered. Of these 17 cases have been heard, with 6 convictions and 11 dismissed. The vast majority are still pending. Ahmadis are recognised as a minority religious group and rights are safeguarded under the constitution. Some members of the community have already benefited from the recent relief measures announced for prisoners. Applications for asylum from Ahmadis are given very careful scrutiny.
Pakistan's current constitution recognises the equality of men and women before the law, prohibits sexual discrimination within the civil service, and grants women the right to participate fully in all activities in the national arena.
The 1979 Hudood Ordinances subordinated women's status to that of men. They brought together the laws relating to theft, prohibition of alcohol and narcotics, "Zina" (rape, abduction, adultery and fornication) and "Qazi" (false accusation of Zina). In 1992 it was estimated that 2,000 women were held in prison under the Hudood Ordinances.
In October 1992, the Sharif government approved an amendment to the Code of Criminal Procedure that women should not be detained in police stations overnight and that they should only be interrogated in the presence of a close male relative. This amendment has yet to be passed by the National Assembly.
Some organisations which aim to improve the status of women in Pakistan have emerged; various local groups offer legal and medical advice and assistance.
In January 1994 Benazir Bhutto established the first police station for women, administered exclusively by women. It remains to be seen whether further measures to improve the situation of women in Pakistan will follow. ......
In general, although there are instances of violence towards various sections of the population there is no evidence of government led persecution of minorities. Where discrimination or harassment does occur, it emanates from the actions of individuals or groups at local level."
"Each case involving Ahmadis must be looked at on an individual basis. It would in our view be wholly wrong to say that the discriminatory legislative provisions relating to Ahmadis means that all Ahmadis can claim asylum under the terms of the Convention. However, the evidence of the various reports referred to above which express an overall correct view of the position of Ahmadis, illustrates that Ahmadis live in Pakistan as a religious minority who are likely to meet examples of intolerance, discrimination and sadly at times blatant persecution in their everyday lives."
"We have acknowledged in our assessment that members of the minority groups mentioned in your letter experience human rights problems, and suffer persecution at the hands of others. We are of the view however that this does not amount to State persecution. In general, members of those particular groups are not likely to face persecution from the present Pakistani government. Following the October Coup the country's new Chief Executive, General Musharraf, has openly advocated the need for religious tolerance and has endeavoured to curtail political exploitation of religion. We are therefore of the view that the Government of Pakistan does not actively or systematically persecute religious minorities."
"5. Having reconsidered the wording of my letter of 29 November 1999 to the representatives acting for Zulfiqar Ali and Abid Ali, I consider that the letter is misleading in that it might be taken to suggest that the Secretary of State does not recognise persecution by non-state agents as giving rise to a claim for protection under the 1951 Refugee Convention and that the Secretary of State did not regard persecution by non-state agents as relevant in considering the designation of Pakistan and in keeping such designation under review.
6. The Secretary of State recognises that persecutory acts committed by non-state agents may give rise to a claim for protection under the 1951 Convention. Attached to my statement ...... is a copy of the Instructions to Caseworkers which is circulated to Asylum Caseworkers to enable them to assess asylum claims and which I believe accurately reflects the Secretary of State's approach to none state agents from persecution (which itself is derived from the UNHCR Handbook). Paragraph 8.5 of the Instructions is entitled "Agents of Persecution" and states "...... where seriously discriminatory or other offensive acts are committed by the local populace they may constitute persecution if they are knowingly tolerated by the authorities or if the authorities refuse or prove unable to offer effective protection (Paragraph 65 of the UNHCR Handbook)." ….
7. My letter of 26 November 1999 had been intended to make clear that, although certain minority groups may be subjected to acts of ill treatment by members of the general populace, the Government of Pakistan does not itself engage in such acts and Pakistan is not regarded as a country where the State is in general unwilling or unable to offer effective protection to its citizens against such acts. For that reason it is considered to be a country where there is in general no serious risk of persecution either from the State itself or from members of the public, either acting with the State's sanction or encouragement, or against whose acts the State is in general unwilling or unable to protect."
"The most oppressed group in Pakistan is, by general agreement, the Ahmadis."
Article 9 of the Bill of Rights 1689
"In my judgment, the plain meaning of Article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil, or criminal for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule will not involve the Courts in criticising what is said in Parliament. The purpose of looking at Hansard will not be to construe the words used by the Minister but to give effect to the words used so long as they are clear. Far from questioning the independence of Parliament and its debates, the courts would be giving effect to what is said and done there."
"For these reasons (which are in substance those of the courts below) their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House."
"In our view this confirms that the vice to which Article 9 is directed (so far as the courts are concerned) is the inhibition of freedom of speech and debate in Parliament that might flow from any condemnation by the Queen's Courts, being themselves an arm of government, of anything there said. The position is quite different when it comes to criticisms by other persons (especially the media) of what is said in Parliament. Lord Browne-Wilkinson himself drew this distinction in the passage we have cited from Pepper v Hart  AC 593. The courts could only have legitimate occasion to criticise anything said or done in parliamentary proceedings if they were called on to pass judgment on any such proceedings; but that they clearly cannot and must not do. Nor therefore should they issue such criticisms on any occasion, for to do so would be gratuitous."
"In addition to Article 9 itself, there is a long line of authority which supports a wider principle, of which Article 9 is merely one manifestation, viz, that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges: Burdett v Abbot (1811) 14 East 1: Stockdale v Hansard (1839) 9 Ad. & E1. 1; Bradlaugh v Gossett (1884) 12 QBD 271; Pickin v British Railways Board  AC 765; Pepper v Hart  AC 593. As Blackstone said in his commentaries on the Laws of England, 17th ed (1830), vol 1, p. 163:
"the whole of the law and custom of Parliament has its original from this one maxim, 'that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere."
"In Britain the executive has no inherent legislative power. It cannot, as can the French government, resort to a constitutional pouvoir réglementaire when it is necessary to make regulations for purposes of public order or in emergencies. Statutory authority is indispensable, and it follows that rules and regulations not duly made under Act of Parliament are legally ineffective. Exceptions have been made, it is true, in the case of a number of non-statutory bodies. But they do not alter the fact that the Courts must determine the validity of delegated legislation by applying the test of ultra vires, just as they do in other contexts. It is axiomatic that delegated legislation no way partakes of the immunity which Acts of Parliament enjoy from challenge in the Courts, for there is a fundamental difference between a sovereign and a subordinate law-making power. Even where, as is often the case, a regulation is required to be approved by resolutions of both Houses of Parliament, it still falls on the 'subordinate' side of the line, so that the court may determine its validity. Only an Act of Queen, Lords and Commons is immune from judicial review."
"I know of no authority which compels me to hold that a proceeding cannot be a judicial proceeding subject to prohibition or certiorari because it is subject to confirmation or approval, even where the approval has to be that of the Houses of Parliament. The authorities are to the contrary."
"…a court does have power to quash an Order on the ground that it is ultra vires in the strict sense that it goes beyond the powers conferred by the statute, even where both Houses have approved it; for otherwise the statute would be capable of amendment by something which is not an Act of Parliament. It was also accepted, again in our view correctly, that the court has power to intervene if a statutory precondition to the laying of the Order was not performed. Thus, an Order under the Act could be quashed if the Secretary of State had omitted one of the stages prescribed by sections 1 to 4; for the Secretary of State has no power to lay before the House an Order which is not the outcome of the procedure created by the Act. This concession was extended to a case where a purported compliance with the statutory procedure was no real compliance at all. Finally, it was conceded that there would be a power of review if the Secretary of State had misdirected himself as to his powers or as to the law to be applied to his decision, for he would in such a case have acted ultra vires the statute."
"The submission raises an important question as to the limits of judicial review. We are in the field of public financial administration and we are being asked to review the exercise by the Secretary of State of an administrative discretion which inevitably requires a political judgment on his part and which cannot lead to action by him against a local authority unless that action is first approved by the House of Commons." (p.247B-C)
"My Lords, I think that the Courts below were absolutely right to decline the invitation to intervene. I can understand that there may well arise a justiciable issue as to the true construction of the words of the statute and that, if the Secretary of State has issued guidance which fails to comply with the requirement of subsection (11A) of section 59 of the Act of 1980 the guidance can be quashed. But I cannot accept that it is constitutionally appropriate, save in very exceptional circumstances, for the Courts to intervene on the ground of "unreasonableness" to quash guidance framed by the Secretary of State and by necessary implication approved by the House of Commons, the guidance being concerned with the limits of public expenditure by local authorities and the incidence of the tax burden as between taxpayers and ratepayers. Unless and until a statute provides otherwise, or it is established that the Secretary of State has abused his power, these are matters of political judgment for him and for the House of Commons. They are not for the judges or your Lordships' House in its judicial capacity." (p.247D-G)
"The present case raises in acute form the constitutional problem of the separation of powers between Parliament, the executive, and the Courts. In this case, Parliament has enacted that an executive power is not to be exercised save with the consent and approval of one of its Houses. It is true that the framing of the guidance is for the Secretary of State alone after consultation with local authorities; but he cannot act on the guidance so as to discriminate between local authorities without reporting to, and obtaining the approval of, the House of Commons. That House has, therefore, a role and a responsibility not only at the legislative stage when the Act was passed but in the action to be taken by the Secretary of State in the exercise of the power conferred upon him by the legislation.
To sum it up, the levels of public expenditure and the incidence and distribution of taxation are matters for Parliament, and within Parliament, especially for the House of Commons. If Parliament legislates, the Courts have their interpretative role; they must, if called upon to do so, construe the statute. If a minister exercises a power conferred on him by the legislation, the Courts can investigate whether he has abused his power. But if, as in this case, effect cannot be given to the Secretary of State's determination without the consent of the House of Commons and the House of Commons has consented, it is not open to the courts to intervene unless the minister and the House must have misconstrued the statute or the minister has – to put it bluntly – deceived the House. The courts can properly rule that a minister has acted unlawfully if he has erred in law as to the limits of his power even when his action has the approval of the House of Commons, itself acting not legislatively but within the limits set by a statute. But, if a statute, as in this case, requires the House of Commons to approve a minister's decision before he can lawfully enforce it, and if the action proposed complies with the terms of the statute (as your Lordships, I understand, are convinced that it does in the present case), it is not for the judges to say that the action has such unreasonable consequences that the guidance upon which the action is based and of which the House of Commons had notice was perverse and must be set aside. For that is a question of policy for the minister and the Commons, unless there has been bad faith or misconduct by the minister. Where Parliament has legislated that the action to be taken by the Secretary of State must, before it is taken, be approved by the House of Commons, it is no part of the judges' role to declare that the action proposed is unfair, unless it constitutes an abuse of power in the sense which I have explained; for Parliament has enacted that one of its Houses is responsible. Judicial review is a great weapon in the hands of the judges: but the judges must observe the constitutional limits set by our parliamentary system upon their exercise of this beneficent power." (pp.250B-251A)
"Lord Scarman's speech commanded the agreement of all members of the Appellate Committee participating in the decision, of whom I was one. I regard the opinions expressed in the passages quoted as an accurate formulation of an important restriction on the scope of judicial review which is precisely in point in the instant case. There is here no suggestion that the Secretary of State acted in bad faith or for an improper motive or that his decisions to designate the appellant authorities or the maximum amounts to which he decided to limit their budgets were so absurd that he must have taken leave of his senses. Short of such an extreme challenge, and provided always that the Secretary of State has acted within the four corners of the Act, I do not believe there is any room for an attack on the rationality of the Secretary of State's exercise of his powers under Part VII of the Act."
"The restriction which the Nottinghamshire case  AC 240 imposes on the scope of judicial review operates only when the court has first determined that the ministerial action in question does not contravene the requirements of the statute, whether express or implied, and only then declares that, since the statute has conferred a power on the Secretary of State which involves the formulation and the implementation of national economic policy and which can only take effect with the approval of the House of Commons, it is not open to challenge on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity. Both the constitutional propriety and the good sense of this restriction seem to me to be clear enough. The formulation and the implementation of national economic policy are matters depending essentially on political judgment. The decisions which shape them are for politicians to take and it is in the political forum of the House of Commons that they are properly to be debated and approved or disapproved on their merits. If the decisions have been taken in good faith within the four corners of the Act the merits of the policy underlying the decisions are not susceptible to review by the courts and the courts would be exceeding their proper function if they presumed to condemn the policy as unreasonable."
"In this rather uncertain state of affairs, we think it preferable to tackle the problem from another angle, by asking this question: Can it be inferred that Parliament, by making an affirmative resolution a condition precedent to the exercise of the power, has intended to make the House of Commons the sole judge of whether the decision expressed in the draft Order is too unreasonable to be allowed to stand? After careful consideration, we have come to the conclusion that the answer, in theory, is No. In our judgment, the right of veto, created by section 4(5) is a safeguard addition to and not a substitution for the power to judicial review. The debate in the House on affirmative resolution and the investigation by the Court of a Wednesbury complaint are of a quite different character and are directed towards different ends; the two are complementary.
Having stated this answer in point of theory, we continue at once to say that in practice the grant of judicial review on the grounds of unreasonableness is likely to be rare, and probably very rare, when the decision is subject to affirmative resolution, particularly in a field such as the present, where the decision is a matter of judgment and not of mechanical reasoning and is founded on political and economic premises which are implicit in the enabling legislation. Nevertheless, we do not find it possible to say that every application for such relief must be dismissed out of hand for want of jurisdiction."
"(3) The test for Wednesbury unreasonableness is hard to satisfy. The decision must be outrageous or absurd before the Court can intervene. The "target area" is large. (4) The target area is particularly large where the weight to be given to the conflicting factors is primarily a matter of "political" and economic judgment and where a particular political and economic policy is implicit in the enabling statute itself. The Court must be particularly cautious about intervening in such a case, lest it usurps the proper functions of the decision maker, the more so when Parliament has entrusted to one of its Houses an additional supervisory role."
"Irrationality is a separate ground for challenging subsidiary legislation, and is not characterised by or confined to a minister's deceit of Parliament or having otherwise acted in bad faith. That means irrationality in the Wednesbury sense. Counsel have referred to the difficult notion of 'extreme' irrationality sometimes suggested as necessary before a Court can strike down subsidiary legislation subject to parliamentary scrutiny, citing Lord Scarman in Nottinghamshire County Council v Secretary of State for the Environment; Bradford Metropolitan City Council v Same  AC 240. He spoke, at p.247G, of '…the consequences….[being] so absurd that….[the Secretary of State] must have taken leave of his senses', a form of words with which the other members of the appellate committee agreed. They also referred to Lord Bridge's reference in P v Secretary of State for the Environment ex parte Hammersmith and Fulham London Borough Council  AC 521, at p.597F-G, to 'manifest absurdity'.
It is wrong to deduce from those dicta a notion of 'extreme' irrationality. Good old Wednesbury irrationality is about as an extreme form of irrationality as there is. Perhaps the thinking prompting the notion is that in cases where the Minister has acted after reference to Parliament, usually by way of the affirmative or negative resolution procedure, there is a heavy evidential onus on a claimant for judicial review to establish the irrationality of a decision which may owe much to political, social and economic considerations in the underlying enabling legislation. Often the claimant will not be in a position to put before the Court all the relevant material bearing on legislative and executive policy behind an instrument which would enable it with confidence to stigmatise the policy as irrational. Often too, the Court, however well informed in a factual way, may be reluctant to form a view on the rationality of a policy based on political, social and/or economic considerations outside its normal competence. That seems to have been the approach of Mustill L J. [in R v Secretary of State for the Environment, Ex parte GLC and ILEA]."
"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."
"I therefore conclude that the domestic court's obligation on an irrationality challenge in an art 3 case is to subject the Secretary of State's decision to rigorous examination, and this it does by considering the underlying factual material for itself to see whether or not it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed.
All that said, however, this is not an area in which the court will pay any especial deference to the Secretary of State's conclusion on the facts. In the first place, the human right involved here- the right not to be exposed to a real risk of art 3 ill-treatment – is both absolute and fundamental: it is not a qualified right requiring a balance to be struck with some competing social need. Secondly, the Court here is hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is placed before it. Thirdly, whilst I would reject the applicant's contention that the Secretary of State has knowingly misrepresented the evidence or shut his eyes to the true position, we must, I think, recognise at least the possibility that he has (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted decision-making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind. In circumstances such as these, what has been called the 'discretionary area of judgment'- the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant's removal (see Lord Hope of Craighead's speech in R v DPP ex p Kebilene  4 All ER 801 at 843-844,  3WLR at 993-994) is a decidedly narrow one."
The approach to judicial review
Evidence of persecution in Pakistan
The position of women
"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."
"Nevertheless, while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognisable in their society as a particular social group. Their persecution for being left-handed would create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group."
A few quotations from the speeches in Islam and Shah will demonstrate the point:
"Generalisations about the position of women in particular countries are out of place in regard to issues of refugee status. Everything depends on the evidence and findings of fact in the particular case. On the findings of fact and unchallenged evidence in the present case, the position of women in Pakistan is as follows. Notwithstanding a constitutional guarantee against discrimination on the grounds of sex a woman's place in society in Pakistan is low. Domestic abuse of women and violence towards women is prevalent in Pakistan. That is also true of many other countries and by itself it does not give rise to a claim to refugee status. The distinctive feature of this case is that in Pakistan women are unprotected by the state: discrimination against women in Pakistan is partly tolerated by the state and partly sanctioned by the state. Married women are subordinate to the will of their husbands. There is strong discrimination against married women, who have been forced to leave the matrimonial home or have simply decided to leave. Husbands and others frequently bring charges of adultery against such wives. Faced with such a charge the woman is in a perilous position. Similarly, a woman who makes an accusation of rape is at great risk. Even Pakistan statute law discriminates against such women."
"My Lords, in Pakistan there is widespread discrimination against women. Despite the fact that the constitution prohibits discrimination on grounds of sex, an investigation by Amnesty International at the end of 1995 reported that government attempts to improve the position of women had made little headway against strongly entrenched cultural and religious attitudes. Woman who were victims of rape or domestic violence often found it difficult to obtain protection from the police or a fair hearing in the courts. In matters of sexual conduct, laws which discriminated against women and carried severe penalties remained upon the statute book. The International Bar Association reported in December 1998 that its mission to Pakistan earlier in the year heard and saw much evidence that women in Pakistan are discriminated against and have particular problems in gaining access to justice; (Report on Aspects of the Rule of Law and Human Rights in the Legal System of Pakistan, p.29)."
Later, at p.653, he added:
"I turn, therefore, to the question of causation. What is the reason for the persecution which the appellants fear? Here it is important to notice that it is made up of two elements. First, there is the threat of violence to Mrs Islam by her husband and his political friends and to Mrs Shah by her husband. This is a personal affair, directed against them as individuals. Secondly, there is the inability or unwillingness of the state to do anything to protect them. There is nothing personal about this. The evidence was that the state would not assist them because they were women. It denied them a protection against violence which it would have given to men. These two elements have to be combined to constitute persecution within the meaning of the Convention. As the Gender Guidelines for the Determination of Asylum Claims in the U.K. (published by the Refugee Women's Legal Group in July 1998) succinctly puts it (at p.5): "Persecution = Serious Harm + The Failure of State Protection."
"The unchallenged evidence in this case shows that women are discriminated against in Pakistan. I think that the nature and scale of the discrimination is such that it can properly be said the women in Pakistan are discriminated against by the society in which they live. The reason why the appellants fear persecution is not just because they are women. It is because they are women in a society which discriminates against women. In the context of that society I would regard women as a particular social group within the meaning of article 1A(2) of the Convention."
"The country assessments produced at that time were relatively brief. The brevity of the documents should not be taken to indicate that the Secretary of State's consideration of the situation in Pakistan was equally brief. The Secretary of State gave very careful and detailed consideration to a large volume of material from a wide range of sources."
"I can confirm that the Secretary of State did consider that the position of women in Pakistan was relevant to the question of designation. He did not consider that difficulties which women experience in Pakistan were irrelevant, whether because women in Pakistan were thought not to constitute a particular social group or for any other reason."
"The Secretary of State has also given careful consideration to the implications of the decision of the House of Lords in R v Immigration Appeal Tribunal ex p Shah  2WLR 1015. The Secretary of State regards that case as establishing that, on the evidence presented by the two appellants, women in Pakistan constituted a particular social group for the purposes of the Convention. The Secretary of State does not regard their Lordships' judgments as being concerned with the question whether women in Pakistan were in general at serious risk of persecution."
"These had consistently held that Ahmadis are not persecuted per se but that certain individual Ahmadis may suffer persecution, depending on their particular circumstances."
This is not entirely accurate.
Relief, delay and good administration
1. A declaration that the Secretary of State for the Home Department erred in law in including Pakistan on the list of countries designated as ones in which it appears to the Secretary of State that there is in general no serious risk of persecution under para 2 of the Asylum (Designated Countries of Destination and Designated Safe Third Countries) Order 1996 SI 1996 No 2671.
2. A declaration that the Secretary of State erred in law in –
a) certifying pursuant to Asylum and Immigration Act 1993 Schedule 2 para 5(1) and as amended by the Asylum and Immigration Act 1996 in each of the cases before the Court that para 5(2) applied to the claim ….
b) maintaining such certification up to and beyond the date of the determination by the special adjudicator of the asylum appeal of each claimant.
3. An Order quashing the certificate referred to in para 2 above in the case of each claimant."