Particular Social Group: How Courts Define It

Last updated: 15 October 2026

A particular social group is one of the five reasons for persecution in Article 1A(2) of the 1951 Refugee Convention. The other four are race, religion, nationality and political opinion.[1] The Convention never defines the term. Instead, judges have built the meaning case by case since the 1980s. As a result, the particular social group ground now protects women fleeing violence, LGBT people, families of targets, trafficking survivors and many others.

The ground has also become the hardest to win. Since 2022, the UK requires a group to pass two tests instead of one. Meanwhile, the United States issued a run of restrictive precedents in 2025 and 2026, and immigration judges now deny most asylum cases.[2] This guide explains how UK and US courts now define a particular social group, where claims fail, and how to draft and prove a group that survives an appeal.

What is a particular social group?

In short, a particular social group is a group of people who share a characteristic they cannot change, or should not have to change, and whom their society sees as a separate group. That is the core of the definition in both the UK and the US. However, each country words the test differently, and the details decide cases.

Two approaches emerged in the case law. The first is the "protected characteristics" approach. It asks whether members share an innate or unchangeable trait, or one so basic to identity that no one should have to give it up. The second is the "social perception" approach. It asks whether society treats the group as a distinct set of people.

UNHCR's Guidelines on International Protection No 2, issued in 2002, treat the two approaches as alternatives. In other words, either one is enough. The Guidelines also state a rule that every jurisdiction accepts: a group cannot be defined only by the persecution its members fear.[3] Persecution may help to show that a group exists, but it cannot be the only thing that defines it.

UK law: from Shah and Islam to section 33

For more than twenty years, UK law followed the UNHCR view. In Shah and Islam, decided in 1999, the House of Lords held that women in Pakistan formed a particular social group. They shared an innate characteristic, and the state discriminated against them.[4] Later, in Fornah in 2006, the Lords accepted that women in Sierra Leone, where most girls undergo female genital mutilation, could form a social group. Lord Bingham said that requiring both tests would be "more stringent than is warranted by international authority".[5]

The section 33 two-limb test

Parliament changed this rule in the Nationality and Borders Act 2022. Under section 33(2), a group is a particular social group "only if" it meets both conditions. First, members must share an innate characteristic, a common background that cannot be changed, or a belief so fundamental that a person should not be forced to renounce it (s 33(3)). Second, the group must have a distinct identity in the home country, because the surrounding society perceives it as different (s 33(4)).[6]

Section 33(5) adds that a group may rest on sexual orientation. However, sexual orientation does not include acts that are criminal in any part of the UK. Section 33 came into force on 28 June 2022 and applies to claims made on or after that date. Older claims still follow Fornah.

Two other parts of section 33 matter for social group pleading. Section 33(1)(a) says that race may include "descent", which helps caste and clan claims. In addition, section 33(1)(d) says that political opinion includes an opinion about a potential persecutor and its policies or methods. Consequently, a claim that fails as a social group may still succeed on race or political opinion.

What happened to DH (Afghanistan)?

In DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC), the Upper Tribunal read the EU Qualification Directive as creating "an alternative rather than cumulative test". It also held that a person with a disability or mental ill health may belong to a particular social group, depending on the facts.[7]

For new claims, section 33 overrides the first point. The tribunal said so on 30 June 2025 in UI-2025-000360, an Albanian trafficking appeal. There, the First-tier judge had relied on DH and applied the old test. The parties agreed this was wrong, because the section 33 test is conjunctive. Nevertheless, the Upper Tribunal found the error immaterial. It held that male trafficking victims in Albania are perceived as different by society, so they met both limbs.[8] Similarly, in UI-2025-000106 (May 2025), the tribunal confirmed that "both tests will need to be met" in claims made after 28 June 2022.

DH still matters in two ways. First, it governs claims made before the 2022 Act took effect. Second, its factual point survives: mental illness can still qualify, but the claimant must now prove both limbs. In practice, that means evidence of how the home society sees people with mental illness.

Gang claims and the 2026 reforms

Gang cases show why the second limb matters. In EMAP (Gang violence, Convention Reason) El Salvador CG [2022] UKUT 335 (IAC), the Upper Tribunal found that an opinion about gangs and their methods can be a political opinion.[9] For that reason, UK lawyers often plead political opinion first and social group second in gang cases. For an example from Ecuador, see our guide to forced recruitment by gangs in Ecuador.

The UK's November 2025 policy statement, "Restoring Order and Control", did not change section 33. However, it introduced "core protection": new refugees receive 30 months' leave, and the Home Office reviews their need for protection at each renewal.[10] As a result, claimants may need to prove group membership and risk again at a later review.

US law: the three-part test

The US story starts with Matter of Acosta in 1985. The Board of Immigration Appeals (BIA) defined a social group by a "common, immutable characteristic" that members cannot change or should not be required to change.[11] Acosta is still the first step of every US analysis.

From 2006, the Board added more requirements. In Matter of C-A-, it refused to recognise former informants against the Cali drug cartel, partly because the group lacked "social visibility". Then, in Matter of S-E-G- and Matter of E-A-G- (2008), it rejected groups of young Salvadorans and Hondurans who resisted gang recruitment.[12]

In 2014, Matter of M-E-V-G- and Matter of W-G-R- set out the current test. A particular social group must be (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.[13] Particularity means the group has clear limits and is not vague or overbroad. Social distinction means the society, not only the persecutor, sees the group as distinct. Literal visibility is not required.

The 2025 and 2026 precedents

Domestic violence claims show how unstable this area is. In 2014, Matter of A-R-C-G- recognised "married women in Guatemala who are unable to leave their relationship". In 2018, the Attorney General overruled it in Matter of A-B-, partly because the harm itself defined the group. Three years later, Attorney General Garland vacated A-B-. Then, on 2 September 2025, Matter of S-S-F-M- reinstated the 2018 approach.[14] Today, an applicant who fears a private actor must also show that the government condoned the harm or was completely helpless to stop it.

Family-based groups are also narrower now. On the same day, Matter of R-E-R-M- & J-D-R-M- restored Matter of L-E-A- (2019). Under L-E-A-, a family usually qualifies only if the wider society sees that family as distinct. Earlier, Matter of M-R-M-S- (2023) had already narrowed nexus in family cases. In June 2026, Matter of S-E-M-Z- added that social distinction must generally be measured across the whole country, not in one neighbourhood.[15]

Gender-based groups face the same pressure. In Matter of K-E-S-G-, decided on 18 July 2025, the Board held that a group defined only by sex, or by sex and nationality, is too broad. Therefore, "Salvadoran women" failed on particularity.[16] Finally, Matter of D-G-E-A- & N-G-G-E- (April 2026) held that opposition to gangs is not a political opinion unless the gang acts as a de facto government.[17] All of these decisions appear in the EOIR Volume 29 precedent list.

Circuit splits after Loper Bright

Federal courts have not always followed the Board. For example, the Seventh Circuit criticised the "social visibility" test in Gatimi v Holder (2009). The Third Circuit refused to defer to it in Valdiviezo-Galdamez (2011). Later, after M-E-V-G-, the Third Circuit accepted the three-part test in S.E.R.L. v Attorney General (2018). Meanwhile, the Ninth Circuit held in Henriquez-Rivas v Holder (2013, en banc) that social distinction depends on the view of society, not the persecutor.[18]

In 2024, Loper Bright ended Chevron deference to agency readings of statutes. Even so, the circuits have not discarded the Board's test. In Mejia Ponce (June 2025), the Eleventh Circuit applied its own earlier factors and rejected "Honduran business owners perceived as wealthy" as too broad.[19] In short, lawyers must check both the Board's latest precedent and their own circuit's law.

The EU and UNHCR view

European law offers a useful comparison for UK and US advocates. Article 10(1)(d) of the EU Qualification Directive also lists both limbs. However, on 16 January 2024, the Court of Justice of the EU decided WS (C-621/21). The case involved a Kurdish woman from Turkey who fled forced marriage and domestic violence. The Court held that women as a whole may form a particular social group. It also held that women who share an extra trait, such as escaping a forced marriage, may form a narrower group.[20]

WS does not bind UK or US courts. Nevertheless, it shows that a large group can still be a valid group. That reasoning answers the "too broad" objection in K-E-S-G-. In the UK, it also supports the distinct identity limb in gender claims.

How to draft a particular social group: step by step

Drafting decides many social group cases. The steps below apply in both countries, although US practice demands more precision.

1. Name the group precisely. Use the shared trait, the country and, where needed, a status. For example, "Honduran women who left a gang member partner and reported him to police" is narrower than "Honduran women".
2. Avoid circularity. Do not define the group by the harm. For instance, "women who are beaten by their partners" fails, because the beatings create the group.
3. Prove the immutable trait. Show why the trait is fixed or fundamental. No one can undo a past act, such as testifying or leaving a gang.
4. Prove social distinction with evidence. Use laws, official data, media language and NGO reports. These show how the whole society, not just the persecutor, sees the group.
5. Plead alternatives. Offer a broader and a narrower group. In addition, plead race, religion or political opinion where the facts allow.
6. Prove nexus separately. In the US, membership must be "one central reason" for the harm. In the UK, the Convention reason must cause the harm or the lack of protection.[21]

US practitioners should also define the group in the first hearing. The Board does not accept a new group raised for the first time on appeal.[22] Therefore, the group needs to be right before the immigration judge rules. For a fallback when asylum fails, see our guide to withholding of removal.

Expert evidence for a particular social group

Social distinction and "distinct identity" are questions of fact about another country. Judges cannot answer them from their own knowledge. For this reason, a country expert often carries the second limb of the test.

A good report answers specific questions. Does the home society have a word for the group? Do laws, police practice or public records treat members differently? Can others identify a member from a surname, accent, tattoo, village or document? Finally, how do gangs, families or officials react when they identify one? For example, our guide to caste as a social group in India shows how surnames and state caste lists prove both limbs.

Experts also address the issues that follow membership. These include state protection and internal relocation. A Home Office reviewer will often argue that the claimant can move elsewhere; our article on internal relocation explains how courts test that argument.

Gang and cartel cases are the main battleground for social group claims in the US. Our video below explains how claimants from Colombia, Mexico, Honduras and Venezuela present these cases.

I Fled Gang & Cartel Violence: Can I Get Asylum? Cases from Colombia, Mexico, Honduras & Venezuela

Canada, Australia and other leading cases

Canada and Australia each follow one half of the UNHCR approach. In Canada (Attorney General) v Ward [1993] 2 SCR 689, the Supreme Court of Canada used the protected characteristics test. It named three kinds of group: groups defined by an innate or unchangeable characteristic; groups whose members choose to associate for reasons so basic to human dignity that they should not be forced to give the association up; and groups defined by a former voluntary status that cannot change because it is historical.

Australia relies on social perception. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, the High Court held that a group must share a characteristic that sets it apart from society at large. As in the UNHCR Guidelines, the shared fear of persecution cannot be that characteristic.

Three further precedents often appear in pleadings. In X, Y and Z (Joined Cases C-199/12 to C-201/12, 7 November 2013), the CJEU held that gay applicants can form a particular social group where the home country has criminal laws aimed at them. In the US, Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990), was the first Board decision to accept a group based on sexual orientation. Earlier, Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988), accepted that former membership of the national police is an immutable characteristic, although harm suffered while on duty was not persecution.

Common questions

Is the UK test now the same as the US test?

No. Both now require a shared characteristic and social perception. However, the US also requires particularity, and US precedent rejects broad groups such as "Salvadoran women". UK law has no separate particularity rule, and Shah and Islam still supports women as a group.

Can a family be a particular social group?

In the UK, yes, provided the family is also perceived as distinct. In the US, it is now much harder. After R-E-R-M- and S-E-M-Z-, the applicant usually needs evidence that the whole country knows the family, for example a well-known political or business family.

Are LGBT claims affected by these changes?

Less than other claims. Section 33(5) expressly covers sexual orientation. In addition, the rule from HJ (Iran) remains: a claimant cannot be expected to hide their sexuality to avoid persecution.[23] US courts also widely accept sexual orientation as an immutable trait.

Does section 33 apply to every UK claim?

No. It applies only to claims made on or after 28 June 2022. For older claims, Fornah and DH still allow either limb to be enough. Check the claim date before drafting the skeleton argument.

Where to get help

A social group claim needs a lawyer who knows the current rules in the relevant jurisdiction. In the UK, solicitors regulated by the SRA and advisers registered with the Immigration Advice Authority can advise. In the US, use a licensed attorney or a DOJ-accredited representative.

Country evidence is the second need. Our network covers more than 50 countries. Use our expert witness directory to find a country expert who can address social distinction, risk and relocation for your client's group.

Conclusion

The particular social group ground still protects many people. Yet in 2026 the test is stricter on both sides of the Atlantic. The UK requires both limbs for claims made since June 2022. Meanwhile, the US has restored L-E-A- and A-B-, rejected sex-and-nationality groups, and measured social distinction across the whole country.

Consequently, the winning claims share three features. First, they name a narrow group that exists apart from the harm. Second, they prove with country evidence that society sees that group as distinct. Third, they show that membership caused the harm. Lawyers who build all three from the first interview give their clients the best chance under the current law.

Defining a particular social group often requires evidence of how that group is seen in the home society, which country experts in our expert witness finder can provide.