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Desert island judgments: Shah and Islam
Wesley Gryk on the seminal 1999 asylum case – now under attack from some UK politicians – that ruled women with a well-founded fear of persecution due to their sex could qualify for refugee status. The ruling also paved the way for similar protections for those persecuted for their sexuality.
Since moving to the UK in 1980, I have been fortunate to work in positions where I’ve been able to make occasional contributions to my adopted country’s strong tradition of developing international human rights legal standards. From the vantage point of a now-retired gent, however, I’ve found alarming the recent trend by some British politicians to suggest that such standards throttle the sovereignty of the UK and should be abandoned.
An extreme example of this trend is the proposal that the UK should withdraw from the
European Convention on Human Rights – a particularly sad, retrograde step given that British lawyers played a key role in drafting the instrument. The UK was the first country to ratify it and would be joining the awkward bedfellows Belarus and Russia as non-parties.
My desert island judgment –the conjoined appeals of
Islam v Secretary of State for the Home Department and R v Immigration Appeal Tribunal and another ex p Shah [1999] 2 AC 629, aka
Shah and Islam – illustrates this same dangerous trend in asylum law. In its determination 25 years ago, the House of Lords held that women facing systematic government-sanctioned discrimination because of their sex constituted a ‘social group’ for the purposes of the
1951 UN Refugee Convention and 1967 Protocol, and that if, as a result of membership of such social group, they faced a well-founded fear of persecution if returned home, they qualified for refugee status. By extension, their lordships confirmed that individuals facing a well-founded fear of persecution because of their sexuality would also be entitled to such protection.
A full generation later, Suella Braverman, either through very substantial ignorance unbecoming to a former home secretary or (more likely) through a calculated misinterpretation seeking to appeal to ‘anti-woke’ sentiment, has challenged the determination, using that challenge as a catalyst to question the viability of current asylum law.
About the case
The determination related to asylum claims by two Pakistani women forced by their husbands to leave home and at risk of falsely being accused of adultery. Both had made their way to the UK and maintained that if forced to return home, they would be unprotected by the state and would be at risk of criminal proceedings for ‘sexual immorality’. If found guilty, they could face punishment by flogging or stoning to death.
Their lordships accepted that both appellants had a well-founded fear of persecution:
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.
The question remaining was whether they were entitled to the protection of refugee status under article 1(A)(2) of the UN Refugee Convention and Protocol, which limits such status to those facing persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.
All but one of the judges accepted that in cases where there is evidence of systematic state discrimination against women, such women should be recognised as being members of a social group and afforded refugee status provided that they can demonstrate a well-founded fear of treatment amounting to persecution arising from such discrimination. ‘Persecution’ in this context was said to require ‘serious harm’ to the person concerned above and beyond mere discrimination. Several references in these speeches applied the same principle to cases involving state discrimination against individuals because of their sexuality.
Why Suella Braverman is wrong
On 26 September 2023, former home secretary Suella Braverman,
speaking at the right-wing American Enterprise Institute in the US, challenged the concept that the UN Refugee Convention and Protocol are ‘fit for our modern age’. The cornerstone of her argument was her clear misinterpretation of existing law when she stated: ‘[W]e will not be able to sustain an asylum system if in effect, simply being gay, or a woman, or fearful of discrimination in your country of origin, is sufficient to qualify for protection’.
As Shah and Islam makes clear, neither being a woman or gay, nor facing discrimination on that basis, will qualify an individual for the protection of refugee status unless the discrimination involved rises to the level of ‘serious harm’ as faced by the appellants in that case.
The UK deserves better.