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ASYLUM: Fornah v Secretary of State for the Home Department [2005] EWCA Civ 680

Date:9 JUN 2005

(Court of Appeal; Auld, Chadwick and Arden LJJ, 9 June 2005) [2005] 2 FLR 1085

The issue on appeal was whether a Sierra Leonean woman qualified for refugee status. The considerations in the case pointed away from Female Genital Mutilation (FGM) of young, single and uncircumcised Sierra Leonean women constituting persecution for reasons of their membership of a particular social group under the United Nations Convention Relating to the Status of Refugees 1951, Art 1A(2). A particular social group could not be defined solely by reference to persecution of its members. Persecution might have some part to play in determining whether the fear of persecution was for reasons of membership of a particular social group and, in particular, could play such a part where, as a result of insufficiency of State protection from persecution, the persecution was unchecked and thereby created a perception in members of society outside the group of discrimination against the group or the setting apart of the group from the rest of society. Different considerations might apply to State and non-State persecution cases. However, there was a spectrum of circumstances spanning State agency and non-State actor cases and the element of insufficiency of State protection was more likely to be a relevant factor in the latter. When considering whether there was persecution for reasons of membership of a particular social group, a useful starting and finishing point was to consider whether, apart from the persecution, the claimed group was discriminated against by the society of which it formed part or was perceived by that society as being set apart from it in some way. The latter need not necessarily be of such intensity or effect as to be discriminatory in itself; identification of people with common characteristics as a particular social group might turn on a mix of considerations of policy and perception. In the circumstances in which it was practised in Sierra Leone, FGM was not discriminatory in such a way as to set those who underwent it apart from society. It was important to bear in mind the composite nature of the asylum test and the distinction between persecution and discriminatory conduct giving rise to it. Although FGM might be condemned as a violation of Art 3 and a persecution of young uncircumcised girls on that account, its practice in that countrys society was not discriminatory or one that resulted from society having set them apart other than by the persecution itself. Per Arden LJ dissenting: the mere fact that Sierra Leonean society accepted FGM did not mean that prospectively adult women in that society could not constitute a particular social group.