Demonstrates law

Lord Hoffman noted in Shah and Islam that it is odd that gender is not a convention reason. 38 Harvey implies the same conception by stating that the definition is 'limited. ' Its absence lies behind the discussion of the recognition of rape as persecution. However, in the absence of gender from the Convention itself, case law has developed ways of including gender-specific persecution. The UNHCR guidelines on the meaning of 'particular social group' point out that the case law in some jurisdictions has recognized 'women' as a social group.], for example in Liaquat [2002].

The implication with this however, is that the applicant must still show a risk of persecution for reasons of her membership of that group (2002 para 10). This demonstrates how 'law' displaces over 'social reality,' in situations whereby this may not be able to be proved, and the victim has to prolong their suffering, because of the 'law,' and yet persecution cannot be eradicated because it is the 'social reality. ' Shah and Islam has been used with varying degrees of success in other situations with women.

In R v SSHD [2002], the claimant sought to argue that as a woman, who had suffered double rape by armed forces that killed her son, she was a member of a particular social group. 40 This was because rape by soldiers was common and uncontrolled in that locality. The adjudicator had found that the rape was for sexual gratification, and once again this argument prevailed before the Court of Appeal, who saw no merit in the argument that women in that locality were a social group. They saw the situation as one of uncontrolled lawlessness by soldiers and did not construe this in the light of discrimination.

41 This was in part because there was not the extensive evidence of women's position that had been before the House of Lords in Shah and Islam, so one can speculate that in a comparable situation further evidence of discrimination could make a difference to the outcome. However, not in all situations can one gather the burden of this further evidence that is needed to reverse the outcome, another justification of how the 'law' negatively displaces 'social reality. ' The burden of proof is on the appellant, as well as the standard of proof in both adjudicator and tribunal hearings (Dhaka v. Shamin Box [2002] UKIAT 02212).

42 It has been argued however, by Juss, that this standard is not always applied. In Walayat Begum v. Visa Officer Islamabad, the tribunal had before it the passport of the appellant's first wife whom he claimed had died. The passport was endorsed : "The holder of this passport has died. Passport has been cancelled and returned. There was also other evidence but the tribunal held "There is no really direct or solid evidence that Manzoor Begum has died. Clayton insists that this seems to be a standard higher than the balance of probabilities and decisions are still often made without reference to the standard of proof.

Shah and Islam expressly laid the formulation for resolving some of the inconsistencies that had bedevilled claims of asylum based on sexuality. Claims from homosexuals had been denied and granted on the basis of particular social group, but there had been no authoritative judgement on the matter. The issue was and is seriously in need of clarification according to Outrage! , fourteen gay asylum seekers committed suicide between 2001 and 2004 rather than return after the failure of their claim.

 Although the comments of their Lordships in Shah and Islam must be regarded as obiter, they said, and it is the inescapable conclusion of their reasoning in the case, that homosexuals may constitute a social group if, as a group defined by their sexuality, they suffer discrimination. 45 Groups only defined by the common factor of their persecution, were not included in the definition of 'social group', as this would run contrary to the purpose of the Refugee Convention to protect not 'anyone who is persecuted' but only those persecuted for a particular reason.

Clayton argues that the problem is defining a group without reference to persecution, which similarly is the problem that Harvey incorporates as 'a limited conception. ' Savchenkov [1996] is a case, which supports the proposition that the group must exist independently of the persecution and groups such as 'women stoned to death for adultery' or 'women subject to domestic violence without redress' incorporates the persecution into the definition of the group.

46 Particular social groups may overlap with political opinion, for example in a significant number of cases, attempting to establish social group or imputed political opinion on the basis of either refusal to participate in criminal activity or of being a hunted witness to a criminal act. 47 Guidance was given in the Tribunal case of Gomez 00/TH/02257 on the characteristics of a political opinion: "To qualify as political, the opinion in question must relate to the major power transactions taking place in that particular society.

"48 Like social group, political opinion must be construed in the context of the society in which it arises. As Clayton says, 'In the UK for example, it would not constitute political opinion to refuse the request of a common criminal to kill for him. However, to refuse to do the same at the request of say, Special Branch, could be a political action and might suggest a political opinion. ' Goodwin-Gill suggests a broader definition of political opinion as one 'on any matter in which the machinery of the state, government and policy may be engaged. ' (1996:49)49

In Acero-Garces the appellant had witnessed the murder of a policeman and since then he had been subject to serious threats and harassment. This had to be seen against the background in Colombia of the drugs cartels, in the words of the Tribunal 'a power unto themselves. The links between the narcotic industry, crime and the government is very thoroughly documented'. The tribunal found that she risked persecution for reasons of political opinion, 'that the appellant is seen to be on the side of law, order and justice and against disorder, chaos and injustice; and it is these dark forces that control the government.

'50 Gomez disapproved of the attempt in Acero-Garces to create a fixed category of persons on the side of law order and justice. The Tribunal said 'reference, Star Wars-style, to "dark forces" does not serve the interests of objective decision-making. ' This should not have been regarded as a political position. 51 Where social group has been used in these kinds of situations it has tended not to be a successful argument, as for instance in Savchenkov [1996] Imm AR 28 CA the appellant argued unsuccessfully that he was a member of the group of individuals whom 'the mafia seeks to recruit and who refuse.

' These are examples of some of the implications, which displace 'social-reality. ' Conscientious objection as a form of political opinion has generated a volume of case law from which certain principles have been distilled. Prosecution for avoidance of military service is not regarded as persecution unless the punishment is disproportionate or is inflicted or impacts in a discriminatory way. For instance, some countries, including the USA, still maintain the possibility of the death penalty for refusal to serve.

Refusal to undertake military action which is against international law can found refugee status. Lord Bingham in Sepet and Bulbul states established law in this way: "There is compelling support for the view that refugee status should be accord to one who has refused to undertake compulsory military service on the grounds that such a service would or might require him to commit atrocities or gross human rights abuses or participate in a conflict condemned by the international community, or where refusal to serve would earn grossly excessive or disproportionate punishment.

The cases of Radivojevic and Lazarevic [1997] 2 All ER 723 were heard with Adan and Nooh, and concerned objection to military service. Here the appellants objected to service in the former Yugoslavia in an action that was internationally condemned. However, it was held in the Court of Appeal that even in such a conflict, the individuals themselves must object to the condemned action on principle, not just be 'oppertunistic draft evaders' in order to obtain asylum.

54 As Clayton puts it, "at one end of the spectrum, refusing military service in violation of international law may found refugee status, and at the other, refusing military service because of a wish not to fight will not. In between are the contested areas. " In the light of the finding in Sepet and Bulbul the House of Lords judgement found that there was no human right of conscientious objection, and that their Lordships considered that punishment for refusal of military service would not amount to persecution per se. 55

In addition, a soldier cannot claim refugee status on account of risks from terrorists, (Fadli v SSHD [2001] Imm AR 392). Being a soldier complicatedly entails taking the risk of losing one's life in the service of one's country, and this is no different if the enemy is an internal one, (the GIA, a fundamentalist group in Algeria) however, conditions of military service may be such as to amount to persecution if they are inhuman. 56 To conclude, as the text of the refugee definition constitutes what might be described as the boundary of its application.

Within those limits textual analysis can only take us so far towards a workable interpretation of the refugee definition. Quite apart from the question of whether the plain meaning is true to either the intentions of the drafters or the values they sought to serve, such textual analysis is simply inadequate to respond to the myriad circumstances that bring asylum seekers to invoke refugee status. For practical reasons alone, we must additionally look elsewhere for guidance. 57

Tuitt argues that the legal construction of 'refugeehood' as 'exile' – the refugee as 'someone who is outside of his country of nationality' or 'is compelled to leave his place of nationality or habitual residence' fails to take into account the conditions which may give rise to the need for humanitarian assistance in the face of systematic abuse of human rights. She continues to state, "Controlling spaces, in the sense of the ability to achieve exile, is far from being a privilege which many who require protection can claim, although most would unhesitatingly claim to deserve the protection available to refugees.

The world is conceptualised in terms of space and refugees, like others, occupy that space and have greater or lesser control over it. However, to determine the meaning of refugeehood according to spatial concepts, as we presently do, is to render refugees unique occupiers and controllers of space which accords ill with the reality of the everyday existence of the majority – women and children".

She argues that "'classic' refugees, emerging mostly from the ranks of revolutionary and nationalistic movements or established religious organisations, come from a world seldom inhabited by women, for example, whose politics, even today take a very different form from the 'publicly active religious, racial and nationalistic groupings' so common to those that successfully seek and gain asylum.

Thus, although it is a gender-neutral history, its neutral register nevertheless, speaks of the taking of asylum by men". Thus "diverse groups – albeit united by a shared sense that the political or religious contexts of their lives made it impossible for them to remain in their countries of nationality or domicile – were distinguished by their will and, above all, by their ability to move".

In short, Tuitt argues that "the concept of refugee is one traditionally determined by notions of space, in particular the spatial activity of movement is her signifier, yet territorial boundaries, cultural perceptions, age and disability all conspire to curtail movement in spatial terms and constantly to withhold the 'official' designation 'refugee' from those most deserving of it".

The object of Tuitt's critique us the legal construction of the refugee as 'displaced' – 'externally' notice the refugee definition itself does not cover 'internal displacement' – based on the model of 'classic' male political refugees, Cohen ("No-One is Illegal 2002) focuses upon the distinction between the 'refugee' and the 'economic' migrant as not recognising the realities of forced migration. He argues: "it is necessary to begin a critique of the narrow definition applied to refugees".

Referring to the UN Convention definition which is the source of the legal justification of the exclusion of economic migrants without breaching the international norms relating to 'refugee' status and tracing this exclusion through The United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status he argues, "realistically there is no distinction between economic and political refugees – or at least no distinction that has any meaning". 58

One of the solutions that have attempted to diminish the dislodgement between 'law' and 'social- reality' is the fact that the 'social group' category was open-ended enough to allow for evolution of the refugee definition to include groups or individuals not considered at the time of drafting. The social group category was further developed by legal scholars and case law in the mid and late 1990s, broadly defining social groups as 'groups defined by some innate or unchangeable characteristic' and 'cohesive, homogenous groups in voluntary association for reasons fundamental to their rights'.