The outcome of this case affirms the supremacy of the Refugee Convention 1951 over EU law by reference to the Convention’s object and purpose. It recognises for the first time in UK asylum law that a “person living with disability or mental ill-health” may qualify as a member of a particular social group (PSG); and it clarifies the correct legal approach, overturning previous unhelpful tribunal authority, approving obiter comments of the House of Lords as well as affirming the UN Refugee Agency guidelines making it easier to establish a PSG in all cases.
The appellant is a citizen of Afghanistan who appealed the decision of the Secretary of State dated 30 August 2017 to refuse his human rights claim, and a further decision of 26 February 2018 refusing his protection claim and a further human rights claim. Following the appellant’s 12 week imprisonment in 2017 as a result of him committing an act outraging public decency and exposure, it was decided by the Magistrates’ Court that the appellant had met the criteria for deportation on conducive grounds.
A judge of the First-tier Tribunal (FtT) dismissed the appellant’s appeal on refugee grounds, but allowed it on human rights grounds (Article 3 ECHR). He concluded that the manifestation of the appellant’s mental illness created a strong likelihood of sexually disinhibited behaviour in Afghanistan that would lead to serious harm at the hands of state and non-state agents. The Secretary of State did not challenge that finding but the appellant appealed on refugee grounds.
An error of law was found in the decision of the FtT. The issue identified in this matter was as follows.
This appeal raises a single issue which is did the Judge materially err in law by failing to determine whether A is at real risk of serious harm for a refugee Convention reason? This in turn raises an issue of principle. If a person is subject to prohibited treatment due to their mental ill-health, are they being persecuted by reason of their membership of a particular social group (PSG)?
Summary of Findings
- The Geneva Convention relating to the Status of Refugees 1951 provides greater protection than the minimum standards imposed by a literal interpretation of Article 10(1)(d) of the Qualification Directive (Particular Social Group). Article 10 (d) should be interpreted by replacing the word “and” between Article 10(1)(d)(i) and (ii) with the word “or”, creating an alternative rather than cumulative test.
- Depending on the facts, a ‘person living with disability or mental ill health’ may qualify as a member of a Particular Social Group (“PSG”) either as (i) sharing an innate characteristic or a common background that cannot be changed, or (ii) because they may be perceived as being different by the surrounding society and thus have a distinct identity in their country of origin.
- A person unable to secure a firm diagnosis of the nature of their mental health issues is not denied the right to international protection just because a label cannot be given to his or her condition, especially in a case where there is a satisfactory explanation for why this is so (e.g. the symptoms are too severe for accurate diagnosis).
- The assessment of whether a person living with disability or mental illness constitutes a member of a PSG is fact specific to be decided at the date of decision or hearing. The key issue is how an individual is viewed in the eyes of a potential persecutor making it possible that those suffering no, or a lesser degree of, disability or illness may also qualify as a PSG.
- SB (PSG - Protection Regulations - Reg 6) Moldova CG  UKAIT 0002 and AZ (Trafficked women) Thailand CG  UKUT 118 (IAC) not followed.
Although establishing the exact nature and/or cause of DH’s mental illness was not possible the judge found that:
“In a case such as this where there is no specific diagnosis but in which the appellant clearly has a serious mental illness it will be contrary to the purpose of the Refugee Convention to say this defeats his claim. The reason the medical experts have been unable to engage with the appellant and conclude such a diagnosis is as a result of his mental health problems.”
“Persons with mental disabilities can fall within the “social group” category and, thus, should qualify for refugee protection if they face a real risk of “persecution” on account of their disability from which the state cannot or will not provide protection. This is a fact sensitive question.”
The expert report showed that ‘Afghan society holds deeply-embedded stigma and discrimination against individuals with mental health problems’ and that ‘there is a lack of institutional protection.’
The judge’s final decision was as follows (para 104):
In this appeal as a result of DH’s mental health, the acceptance by Mr Diwnycz of the manner in which that manifests itself in his actions, country guidance case law for Afghanistan, acceptance of the consequences for DH if he acts in the manner he has in the UK on return to Afghanistan (where his mental health will deteriorate further), the acceptance that the ill treatment DH is likely to experience will satisfy the definition of persecution from which there is a lack of effective protection or treatment for the appellant in Afghanistan, I find the answer to the question posed by Mr Bandegani, whether the appellant is a member of a PSG as a result of his mental health who is the subject of prohibited treatment due to the same, who will face a real risk of encountering such treatment on return to Afghanistan, such as to entitle him to be recognised as a refugee, is “yes”. Accordingly the appeal is allowed on asylum grounds.
DH is represented by public law solicitor Stefan Vnuk
who instructed counsel Ali Bandegani of Garden Court Chambers.