Procedural Posture
Appeal to the Supreme Court against two unrelated decisions by the Court of Appeal to deny asylum to men who had claimed asylum under Article 1A of the Geneva Convention Relating to the Status of Refugees.
Facts
The appellants, HJ, an Iranian citizen, and HT, a Cameroonian citizen, were both gay men. In both Iran and Cameroon, homosexuality is subject to legal prohibition and social hostility. The appellants had presented evidence that individuals who were openly gay were at risk of serious harm. As a result, both men claimed that they had a well-founded fear that they would be persecuted on the basis of their sexual orientation if they were returned home.
HJ and HT each had their original asylum claims refused. They then appealed to the Asylum and Immigration Tribunal and subsequently to the Court of Appeal. In dismissing the appellants’ claims, the Court of Appeal applied a test of reasonable tolerability that was established in the 2007 case of J v. Secretary of State for the Home Department. Under this test a court “would have to ask itself whether discretion was something that the applicant could reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to matters following from, and relevant to, sexual identity in the wider sense.” In the case of HJ the Court of Appeal held that, on the available evidence, he could reasonably be expected to tolerate the conditions in Iran. For HT the Court did not consider reasonable tolerability. It held that the Tribunal was entitled to conclude that he would be discreet upon return to Cameroon, so there was no real risk of persecution in the future. On these grounds the Court of Appeal found that neither applicant had a well-founded fear of persecution. The appellants appealed to the Supreme Court.
Issue
Whether an applicant for asylum could be required to conceal his or her sexual orientation in order to avoid persecution and whether an applicant could reasonably be expected to tolerate such concealment; whether such a requirement would be contrary to the 1951 Convention Relating to the Status of Refugees.
Domestic Law
J v. Secretary of State for the Home Department, Court of Appeal of England and Wales, United Kingdom, 2007.
Comparative Law
Applicant S395/2002 v. Minister for Immigration and Multicultural Affairs, High Court of Australia, 2003.
International Law
1951 Convention Relating to the Status of Refugees, Article 1A.
Reasoning of the Court
The Court, in separate judgments, unanimously held that the Court of Appeal had erred in its approach to the protection of gay people as a social group under the Convention.
Lord Hope described the logic behind the reasonable tolerability test as a “fundamental error”. Such a requirement would essentially oblige an applicant to suppress or surrender his or her identity and would be contrary to the Convention. In addition, it detracted from the real issue of whether the applicant had an objectively well-founded fear of persecution on the basis of being gay.
Lord Rodger noted that the Convention was based on the notion that “people should be allowed to live their lives free from the fear of serious harm coming to them because of their race, religion, nationality, membership of a particular social group or political opinion”. The Convention was designed to protect individuals from harm, regardless of whether that harm occurred at the hands of State agents or because the State was unwilling or unable to provide protection. With respect to the social group of gay people, the rationale of the Convention was that they should be “able to live freely and openly, without fearing that they may suffer harm of the requisite intensity or duration because they are gay or lesbian”. Living openly was found to encompass a wide spectrum of conduct. Homosexuals were entitled to live as freely as their “straight counterparts”. Furthermore, Lord Rodger found that it was not intended to define an applicant solely by his or her sexuality; what mattered was that the characteristic of being gay could cause the applicant to be subject to serious harm and persecution. The central issue in an asylum claim was, therefore, whether the applicant possessed a particular characteristic which might make him subject to serious harm or persecution and which he or she could not change or should not be required to change.
The members of the Court each relied on the Australian High Court decision Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs. Lord Rodger described the case as a powerful authority for the proposition that
If a person has a well-founded fear that he would suffer persecution on being returned to his country of nationality if he were to live openly as a gay man, then he is to be regarded as a refugee for purposes of the Convention, even though, because of the fear of persecution, he would in fact live discreetly and so avoid suffering any actual harm.
Lord Rodger, with whom Lords Walker, Collins and Dyson separately concurred, set out a multi-pronged procedure for determining whether a gay or lesbian applicant who applied for asylum under the Convention had a well-founded fear of persecution on the basis of sexuality. They found that if a Tribunal concluded that the applicant would, upon return, live discreetly, it had to ask why the applicant would live discreetly. If it concluded that he or she would do so because of “social pressures”, then that did not amount to persecution and no protection was available under the Convention.
If, on the other hand, the Tribunal concluded that a “material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted”. The Court reasoned that such a person had a well-founded fear of persecution. “To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution.”
Both appeals were allowed and respectively remitted to the Tribunal for reconsideration in light of the approach outlined by the Court.
HJ (Iran) v. Secretary of State for the Home Department; HT (Cameroon) v. Secretary of State for the Home Department, Supreme Court of the United Kingdom (full text of judgment, PDF)
