Jurisprudence: Mental illness can be qualified as "Belonging to particular social group" - asylum claim by Afghani

Upper Tribunal

(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.

See: https://www.bailii.org/uk/cases/UKUT/IAC/2020/223.html