UK Supreme Court LGBT asylum 'discretion test' Judgment

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Trinity Term [2010] UKSC 31 On appeal from: [2009] EWCA Civ 172 JUDGMENT HJ (Iran) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) and one other action HT (Cameroon) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) and one other action before Lord Hope, Deputy President Lord Rodger Lord Walker Lord Collins Sir John Dyson SCJ JUDGMENT GIVEN ON 7 July 2010 Heard on 10, 11 and 12 May 2010 Appellant (HJ) Raza Husain QC Laura Dubinsky (Instr
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    Trinity Term[2010] UKSC 31 On appeal from: [2009] EWCA Civ 172 JUDGMENTHJ (Iran) (FC) (Appellant) v Secretary of State forthe Home Department (Respondent) and one otheractionHT (Cameroon) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) andone other action before Lord Hope, Deputy PresidentLord RodgerLord WalkerLord CollinsSir John Dyson SCJ   JUDGMENT GIVEN ON7 July 2010   Heard on 10, 11 and 12 May 2010       Appellant (HJ) Respondent  Raza Husain QC Charles BourneLaura Dubinsky Jane Collier(Instructed by ParagonLaw)(Instructed by TreasurySolicitor)  Interveners in both appeals Intervener    (Equality & Human RightsCommission) Intervener (United Nations High Commissioner for  Refugees)  Karon Monaghan QC Michael Fordham QCJessica SimorHelen LawNaina Patel(Instructed by theCommission)(Instructed by Baker &McKenzie LLP)  Appellant (HT) Respondent  Monica Carss-Frisk QC Charles BournePeter Jorro Paul Greatorex(Instructed by Wilson &Co Solicitors)(Instructed by TreasurySolicitor)    Page 2 LORD HOPE 1.   These appeals raise the question as to the test which is to be applied whenconsidering whether a gay person who is claiming asylum under the Conventionrelating to the Status of Refugees 1951, as applied by the 1967 Protocol (“theConvention”) has a well-founded fear of persecution in the country of his or hernationality based on membership of that particular social group.2.   The need for reliable guidance on this issue is growing day by day.Persecution for reasons of homosexuality was not perceived as a problem by theHigh Contracting Parties when the Convention was being drafted. For many yearsthe risk of persecution in countries where it now exists seemed remote. It was thepractice for leaders in these countries simply to insist that homosexuality did notexist. This was manifest nonsense, but at least it avoided the evil of persecution.More recently, fanned by misguided but vigorous religious doctrine, the situationhas changed dramatically. The ultra-conservative interpretation of Islamic law thatprevails in Iran is one example. The rampant homophobic teaching that right-wingevangelical Christian churches indulge in throughout much of Sub-Saharan Africais another. The death penalty has just been proposed in Uganda for persons whoengage in homosexual practices. Two gay men who had celebrated theirrelationship in a public engagement ceremony were recently sentenced to 14 years’imprisonment in Malawi. They were later pardoned in response to internationalpressure by President Mutharika, but he made it clear that he would not otherwisehave done this as they had committed a crime against the country’s culture, itsreligion and its laws. Objections to these developments have been greeted locallywith derision and disbelief.3.   The fact is that a huge gulf has opened up in attitudes to and understandingof gay persons between societies on either side of the divide. It is one of the mostdemanding social issues of our time. Our own government has pledged to do whatit can to resolve the problem, but it seems likely to grow and to remain with us formany years. In the meantime more and more gays and lesbians are likely to have toseek protection here, as protection is being denied to them by the state in theirhome countries. It is crucially important that they are provided with the protectionthat they are entitled to under the Convention – no more, if I may be permitted tocoin a well known phrase, but certainly no less.    Page 3  Background  4.   The appellants are both gay men. HJ, who is 40 years old, is an Iranian. Heclaimed asylum on arrival in the United Kingdom on 17 December 2001. Hepractised homosexuality in Iran and has continued to do so in the United Kingdom.HT, who is 36 years old, is a citizen of Cameroon. He claimed asylum followinghis arrest at Gatwick on 19 January 2007. He had presented a false passport whilein transit to Montreal. He too is a practising homosexual. Both appellants claimthat they have a well-founded fear that they would be persecuted if they were to bereturned to their home countries.5.   The Secretary of State for the Home Department (“the respondent”) refusedasylum in both cases. HJ’s appeal against that decision was dismissed by theAsylum and Immigration Tribunal on 15 August 2005. On 26 July 2006 the Courtof Appeal remitted his case to the Tribunal for reconsideration:  J v Secretary of State for the Home Department  [2006] EWCA Civ 1238, [2007] Imm AR 73. On 8May 2008, following reconsideration, his appeal remained dismissed. HT’s appealto the Tribunal was dismissed on 29 October 2007. Reconsideration was orderedon 14 November 2007 on the ground that the Tribunal might have made an error of law in the test to be applied to a gay person seeking asylum. But on 5 June 2008Senior Immigration Judge Warr held that the earlier determination was not flawed,and he did not proceed to a reconsideration of the evidence.6.   The appellants appealed against these decisions to the Court of Appeal. On10 March 2009 the Court of Appeal (Pill and Keene LJJ and Sir Paul Kennedy)dismissed both appeals: [2009] EWCA Civ 172. The Secretary of State acceptedthat practising homosexuals are a particular social group for the purposes of article1A of the Convention. The issue was how those who had a well-founded fear of persecution could be identified. It was said by counsel for the appellants to bewhether it was an answer to a claim for refugee status for the applicant to berequired to conceal his sexual identity in order to avoid harm of sufficient severityas to amount to persecution – the proposition being that to impose such arequirement was incompatible with the Convention. For the Secretary of State itwas submitted that the issue always was whether the applicant could reasonably beexpected to tolerate the need for discretion on return: para 7.7.   The Court of Appeal applied the test stated by Maurice Kay LJ in  J vSecretary of State for the Home Department  [2007] Imm AR 73, para 16, where hesaid that the tribunal would have to ask itself whether discretion was somethingthat the applicant could reasonably be expected to tolerate, not only in the contextof random sexual activity but in relation to matters following from, and relevant to,sexual identity in the wider sense. In HJ’s case the Court of Appeal held that theTribunal were entitled to conclude on the evidence that HJ could reasonably be
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