Homosexuality – Persecution – Refugees

HJ (Iran) v Secretary of State for the Home Department: HT (Cameroon) (appellant) v Secretary of State for the Home Department: SC (Lords Hope, Rodger, Walker, Collins, Sir John Dyson): 7 July 2010

The appellants (J and T) appealed against a decision of the Court of Appeal ([2009] EWCA Civ 172, [2009] Imm AR 600) endorsing the test established by previous authority whereby tribunals were required to consider whether homosexual applicants claiming refugee status could reasonably be expected to tolerate the need for discretion on return to their home country.

J and T were from Iran and Cameroon respectively. They were gay men who claimed to be outside their country of nationality owing to a well-founded fear of being persecuted because of their sexuality. The Asylum and Immigration Tribunal had found that, if they were to return to their countries of origin, they would be at risk of persecution if they were openly homosexual, but that they would be unlikely to come to the attention of the authorities or to suffer harm if they were to conduct any relationship in private. J and T appealed to the Court of Appeal, which upheld the test set out by Maurice Kay LJ in J v Secretary of State for the Home Department [2006] EWCA Civ 1238, [2007] Imm AR 73, namely that the relevant tribunal would have to ask itself whether acting discreetly was something that the appellant could reasonably be expected to tolerate if returned to his home country. J and T argued that the Court of Appeal test was incompatible with the definition of ‘refugee’ in article 1A(2) of the Convention relating to the Status of Refugees 1951 (United Nations) and was based on a misunderstanding of the decision of the High Court of Australia in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, unreported, 22 February, [2002] HC (Aus).

Held: J and T’s submissions were well founded. The tests formulated by Maurice Kay LJ and Buxton LJ in J v Secretary of State were wrong in principle, unworkable and inconsistent with the way that article 1A(2) of the convention had been construed and applied in other authorities. Further, the decision in Appellant S395/2002 had been misunderstood. That decision was powerful authority for the proposition that, if a person had a well-founded fear that he would suffer persecution on being returned to his home country were he to live openly as a gay man, he was to be regarded as a refugee for the purposes of the convention, even though, because of the fear of persecution, he would in fact live discreetly and so avoid suffering actual harm, Appellant S395/2002 applied and J v Secretary of State overruled. Tribunals should approach the matter as follows. When an applicant applied for asylum on the ground of a well-founded fear of persecution because he was gay, the tribunal had first to ask itself whether it was satisfied that he was gay, or that he would be treated as gay by potential persecutors in his home country. If so, the tribunal had then to ask itself whether it was satisfied that gay people who lived openly would be liable to persecution in the applicant’s home country. If so, the tribunal should consider what the individual applicant would do if he were returned to that country. If he would in fact live openly and thereby be exposed to a real risk of persecution, then he had a well-founded fear of persecution, even if he could avoid the risk by living ‘discreetly’. If, on the other hand, the tribunal concluded that the applicant would in fact live discreetly and so avoid persecution, it had to go on to ask itself why he would do so. If it concluded that the applicant would choose to live discreetly simply because that was how he wished to live, or because of social pressures, such as not wanting to distress his parents or embarrass his friends, his application should be rejected. Social pressures of that kind did not amount to persecution and the convention did not offer protection against them. If, on the other hand, the tribunal concluded that a material reason for the applicant living discreetly 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. Such a person had a well-founded fear of persecution. To reject his application on the grounds that he could avoid the persecution by living discreetly would be to defeat the very right which the convention existed to protect, namely his right to live freely and openly as a gay man without fear of persecution.

Appeals allowed.

Raza Husain QC, Laura Dubinsky (instructed by Paragon Law) for the first appellant; Monica Carss-Frisk QC, Peter Jorro (instructed by Wilson & Co) for the second appellant; Charles Bourne, Jane Collier (instructed by Treasury Solicitor) for the respondent in the first action; Charles Bourne, Paul Greatorex (instructed by Treasury Solicitor) for the respondent in the second action; Karon Monaghan QC, Jessica Simor, Helen Law (instructed by in-house solicitor) for the first intervener; Michael Fordham QC, Naina Patel (instructed by Baker & McKenzie) for the second intervener.