Review of the decisions of the superior courts in SJL v Refugee Appeals Tribunal

The foundation stone for asylum claims in Ireland and internationally is the Convention Relating to the Status of Refugees, better known as the 1951 Refugee Convention. Article 1 of the Convention, as amended by the 1967 Protocol [1], defines a “refugee” (a successful asylum claimant) as follows:

“A 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it..” [2]

This definition has given rise to a body of case law in deciding whether an asylum claimant’s fear of persecution must be due to one of the five enumerated grounds contained in the definition in Article 1 – namely:

  1. Race
  2. Religion
  3. Nationality
  4. Membership of a particular social group
  5. Political opinion.

Of the five grounds listed above, “membership of a particular social group” has given rise to the greatest amount of legal argument, differences in interpretation and controversy. It has been described thus by T. Alexander Aleinikoff:

In recent years, the number and variety of refugee claims based on “membership in a particular social group” have increased dramatically. The Social Group cases have been pushing the boundaries of refugee, raising issues such as domestic abuse, homosexuality, coercive family planning policies, female genital mutilation (FGM) and discrimination against the disabled.

Invocation of the social group category is not surprising. Its potential breadth makes it a plausible vehicle for refugee claims that do not fit within the other categories”.[3]

In relation to the definition of a “particular social group” ground Council Directive 2004/83/EC Article 10.1 (d) (the Qualification Directive) states:

“ a group shall be considered to form a particular social group where in particular:

– members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and

– that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.”

The recent decisions of the High Court and Court of Appeal in the SJL and LRC v Refugee Appeals Tribunal case constitute the most extensive discussion and analysis of the Irish courts position on the “membership of a particular social group” ground for asylum claims made in this jurisdiction.

The case itself involves 2 Chinese nationals from Fujian province. The wife gave birth to a son in 1998 in secret as the father was not at the minimum age for marriage in China. They married in 1999 and the wife became pregnant a second time, contrary to the “One Child Only” policy then in existence in the state. They were warned that the child must be aborted so they went into hiding. Their second son was born in August 1999. On 24th August 1999 the wife was forcibly taken to hospital and her fallopian tubes were cut thus permanently sterilising her against her wishes. The couple were also charged and fined and the husband was also threatened with sterilisation. The couple fled Fujian province and ultimately made their way to Ireland. They were resident in the state from April 2000 and applied for asylum in November 2005.

The couples claim for asylum was refused by the Refugee Applications Commissioner (“ORAC”) and their appeal of this decision before the Refugee Appeals Tribunal (“RAT”) was turned down. The RAT upheld the findings of ORAC in relation to credibility and Country of Origin (“CoI”) information and also held that the applicants claim that they were members of a social group as a result of their opposition to China’s One Child Policy and therefore entitled to the protection afforded under the 1951 Convention did not stand. The RAT concluded that they were not members of a social group as defined by the 1951 Convention.

The couple instituted judicial review proceedings before the High Court L.R.C. v. Refugee Appeals Tribunal [4] and SJL v Refugee Appeals Tribunal [5]very detailed judgments were given by Barr J in the High Court who certified that the cases gave rise questions of “exceptional public importance”.

Barr J gave lengthy consideration to differing approaches taken by courts internationally. The differing approaches can best be summarised under two different headings:

  1. The protected characteristics’ approach (sometimes referred to as an ‘immutability’ approach), and
  2. The “social perception” approach.

These approaches were previously analysed by Cooke J in AO v Refugee Appeals Tribunal.[6]

Barr J also analysed the UNHCR Guidelines on membership of a particular social group[7]and noted that it was recommended by UNHCR that the two approaches be reconciled in order to avoid protection gaps.

It is generally agreed in the international case law quoted in this case and generally in literature on the subject that membership of a particular social group cannot be exclusively as a result of the persecution threatened or suffered. It has, however, been argued that the persecution of a group can create a socially recognised social group fitting the parameters of the convention grounds.

Thus, there would appear to be two distinct approaches to the question of what can constitute a particular social group. The “protected characteristics” approach which identifies a group by reference to a uniting characteristic which is either immutable or so fundamental to human dignity that a person should not be compelled to change it, and the “social perception” approach which identifies a group by reference to a common characteristic which makes them a recognisable group and sets them apart from society as a whole.” [8]

Barr J also examined case law that was relied upon before him from the Australian, Canadian and English courts. In particular cases relating to claims by Chinese nationals under the same convention ground and similar facts relating to the One Child Policy. Linden the Canadian case of Cheung v. Canada (Minister of Employment and Immigration)[9] observed as follows:

“It is clear that women in China who have one child and are faced with forced sterilization satisfy enough of the above criteria to be considered a particular social group. These people comprise a group sharing similar social status hold a similar interest which is not held by their government. They have certain basic characteristics in common. All of the people coming within this group are united or identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a women’s reproductive liberty is a basic right ‘ranking high in our scale of values’ (E (Mrs.) v. Eve, [1986] 2 S.C.R.


Barr J also gave very lengthy consideration to the findings of the English Court of Appeal in Regina v. Immigration Appeal Tribunal & Anor, ex parte Shah [10] and in particular the dicta of Steyn L.J.

In conclusion, Barr J found in favour of the appellants and in quashing the findings of the RAT dated 27th January, 2009, and directing that the matter be referred back to the Tribunal for a fresh determination in light of the COI submitted on behalf of the applicant he stated:

The applicant and his wife can be seen as part of a social group defined as people who, contrary to the one child policy in China, have had more than one child without permission. The shared characteristic is that they are parents of more than one child born in China without official permission. This characteristic cannot be changed by the applicants. In that capacity, it is arguable that they face persecution in the form of forced sterilisation (already carried out on the wife and threatened against he husband); large fines; loss of employment; and discriminatory treatment such as discrimination in relation to medical and educational benefits.”[11]

The judge granted a certificate entitling the State to appeal on the basis of the three points relating to membership of a ‘particular social group’, ‘shared characteristic’ and ‘characteristic that is so fundamental to identity or conscience that a person should not be forced to renounce it’.

The Court of Appeal in hearing the state’s appeal also considered the Canadian, Australian and English case law as reviewed by Barr J together with the Irish authorities.

In reviewing same, Ryan J observed as follows:

In light of the various authorities, I think it is impossible to adhere to a strict and narrow definition of a particular social group. It is also important that we are not considering a provision intended to be restrictive, but rather the opposite. That does not mean that it is to be expanded beyond its proper meaning, but it does justify the court in choosing a broader and more generous interpretation as between meanings that are equally legitimate.”[12]

This is a strong and definitive statement in relation to the law on the definition of “particular social group” and the position 0f the Irish superior courts on an area that his given rise to great debate as seen above. It is very welcome that the Court of Appeal approached this question using a broad and not a restrictive interpretation. This approach is grounded in the application of fundamental human rights in a balanced and fair manner.

Considering the dearth of discussion and litigation in this crucial area of Asylum law, the detailed and careful analysis carried out by both Barr J in the High Court and the three judges of the Court of Appeal have laid a strong foundation for the interpretation of this crucial ground for asylum claim.