Jurisprudence: Mental illness can be qualified as "Belonging to particular social group" - asylum claim by Afghani
(Immigration and Asylum Chamber)
DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC)
THE IMMIGRATION ACTS
Hearing on
|
Decision promulgated
|
on 29 May 2020
|
Before
UPPER TRIBUNAL JUDGE HANSON
Between
DH
(BY HIS LITIGATION FRIEND SALLY PRESTT)
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Bandegani instructed by Duncan Lewis Solicitors
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer.
1. 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.
2. 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.
3.
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).
4.
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.
5. SB (PSG - Protection Regulations - Reg 6) Moldova CG [2008] UKAIT 0002 and AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC) not followed.
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