The Interpretation of the Convention Ground of `Membership of a Particular Social Group´ in the Context of Gender-related Claims for Asylum

Despite often making `conventional claims’ for asylum based on their political opinion, race, nationality or religion, many women also claim asylum in the United Kingdom (UK) on the basis that they fear persecution because of their gender. To be recognised as refugees, women asylum seekers must therefore often demonstrate that they fear persecution on account of their membership of a Particular Social Group (PSG). In the UK, the Refugee Convention ground of PSG is the most litigated, and women asylum seekers may face many obstacles to benefitting from the protection they require. This paper explores the development of the interpretation of the PSG ground in the context of gender-related claims for asylum and assesses its implication for the protection of women who fear gender-related persecution. In particular, it sets out a critical analysis of the Asylum and Immigration Tribunal’s determination in SB (Moldova)1 in light of the House of Lords’ decision in Fornah.2 The paper demonstrates the Tribunal’s failure to follow the decision of the majority in Fornah that the two limbs of article 10(1)(d) Qualification Directive, setting out the definition of a PSG, are alternatives and not cumulative and why this determination is flawed. The paper also concludes that the Tribunal has developed a more rigorous test for the definition of PSG where the group is gender-based despite the absence of domestic and international jurisprudence and rules of interpretation that would support this approach. The analysis highlights the discriminatory approach by the Tribunal and demonstrates that this approach cannot stand.