Hj (Homosexuality: Reasonably Tolerating Living Discreetly)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hodge, President |
| Judgment Date | 25 February 2008 |
| Neutral Citation | [2008] UKAIT 44 |
| Court | Asylum and Immigration Tribunal |
| Date | 25 February 2008 |
[2008] UKAIT 44
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr Justice Hodge, President
Senior Immigration Judge Storey
Senior Immigration Judge Mather
For the Appellant: Ms L. Hooper, instructed by Paragon Law Solicitors
For the Respondent: Ms J. Collier, instructed by the Treasury Solicitor
HJ (homosexuality: reasonably tolerating living discreetly) Iran
It is a question of fact to be decided on the evidence of the appellant's history and experiences as to whether a homosexual appellant “can reasonably be expected to tolerate” living discreetly in Iran. Enforcement of the law against homosexuality in Iran is arbitrary but the evidence does not show a real risk of discovery of, or adverse action against, homosexuals in Iran who conduct their homosexual activities discreetly. The position has not deteriorated since RM and BB.
The appellant was born on 6 June 1970. He is an Iranian male who is homosexual, who practised homosexuality in Iran and who has continued to do so since his arrival in the United Kingdom. He claimed asylum on arrival in the UK on 17 December 2001.
The asylum claim has a lengthy history following its rejection by the respondent. His appeal was dismissed by an adjudicator but the IAT remitted the case for further consideration. In July 2005, Immigration Judge Hodgkinson again dismissed the appeal. The appellant's appeal to the Court of Appeal was allowed in July 2006 and reported as J v Secretary of State for the Home Department [2006] EWCA Civ 1238. The appeal was allowed on the basis that the AIT should reconsider a number of matters set out in the judgements of Maurice Kay and Buxton LJJ.
A good deal turns on the evidence of the appellant. He gave evidence before us. We also heard evidence from Ms Anna Enayat, a senior associate member at St Anthony's College, Oxford. She is an expert on Iran, and has given evidence before this Tribunal in a number of cases focussing on the position of homosexuals in Iran. We have read and considered all the statements made by the appellant. We have also had regard to the evidence as summarised in previous determinations. Ms Enayat, as well as giving evidence, produced two detailed country reports on this and another case. Each side produced detailed bundles and together a joint authorities bundle. Both counsel produced full and helpful skeletons, for which we are grateful.
In granting permission to the Court of Appeal in this case Sedley LJ stated that:
“There is no single decision… which answers this straightforward question… does it amount to persecution… if the clandestine character of the homosexual activity which there has been in the past and will be on return in the future is itself the product of fear engendered by discriminatory legislation or policing which itself violates the individual's human rights?”
In allowing the appeal, Maurice Kay LJ said that this Tribunal:
“…will have to address questions that were not considered on the last occasion, including the reason why the appellant opted for ‘discretion’ before his departure from Iran and, by implication, would do so again on return. It will have to ask itself whether ‘discretion’ is something that the appellant can 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 recognised by the High Court of Australia (see the judgement of Gummow and Hayne JJ at para 83 [ 5395/002 2003 HCA71]). This requires consideration of the fact that homosexuals living in a stable relationship will wish, as this appellant says, to live openly with each other and the ‘discretion’ which they may feel constrained to exercise as the price to pay for the avoidance of condign punishment will require suppression in respect of many aspects of life that are ‘related to or informed by their sexuality’ (ibid, para 81). This is not simply generalisation; it is dealt with in the appellant's evidence.”
Buxton LJ added a further point:
“The question that will be before the AIT on remission will be whether the applicant can reasonably be expected to tolerate whatever circumstances are likely to arise were he to return to Iran. The applicant may have to abandon part of his sexual identity, as referred to in the judgement of Gummow and Hayne JJ in S, in circumstances where failure to do that exposes him to the extreme danger that is set out in the country guidance case of RM and BB (Iran) CG2005 UKAIT 00117. The Tribunal may wish to consider whether the combination of these two circumstances may have an effect on their decision as to whether the applicant can be expected to tolerate the situation he may find himself in when he returns to Iran.”
An act of persecution is defined in the Refugee or Person in Need of International Protection Regulations 2006 [SI 2006 No. 2170] (hereafter “the Protection Regulations”) as follows:
5 — (1) In deciding whether a person is a refugee an act of persecution must be:
(a) sufficiently serious by its nature or repetition to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms, or
(b) an accumulation of various measures, including a violation of a human right which is sufficiently severe so as to affect an individual in a similar manner as specified in (a)…
…
(3) An act of persecution must be committed for at least one of the reasons in Article 1 (A) of the Geneva Convention.
Maurice Kay LJ pointed out at para 11 of J:
“If there is one thing upon which all the authorities are agreed, it is that persecution is, in the words of Lord Bingham of Cornhill in Sepet and Bulbul [2003] 1 WLR 856 at paragraph 7, a ‘strong word’, requiring a high threshold. It has been variously expressed, but the language of McHugh and Kirby JJ [ in the High Court of Australia S395/002 [2003] HCA 71, [2004] INLR 233]… — ‘it would constitute persecution only if by reason of its intensity or duration the person persecuted cannot reasonably be expected to tolerate it’ – has been adopted in a number of recent authorities including Z [ Z v SSHD 2005 ImmAR 75] (at paragraph 12) and Amare v SSHD [2005] EWCA Civ 1600 paragraph 27, and RG (Colombia) v SSHD [2006] EWCA Civ 57 paragraph 16.”
It is accepted that for a person to be openly gay in Iran would attract a real risk of persecution (see in particular RM and BB). The issue therefore is whether the need for the appellant to be discreet about his sexuality on return to Iran would itself constitute persecution within the meaning of the Refugee Convention.
It is the respondent's position that self-restraint due to fear will be persecution only if it is such that a homosexual person cannot reasonably be expected to tolerate such self-restraint. Where a person does in fact live discreetly to avoid coming to the attention of the authorities he is reasonably tolerating the position.
The appellant argues that persecution is based on discrimination. Thus the impact of non-discrimination provisions in international instruments, taken together with the right to private life, make it clear that sexual orientation and sexual life are core human rights and protected rights. There are no non-discreet groups of gay men in Iran. The necessary requirement on a gay man in Iran to exercise discretion is to suppress aspects of his life related to his sexuality and a denial of that sexuality. The suppression is driven by the condign punishments meted out to convicted homosexuals. The real risk of serious physical harm is a strong causative factor in the “discretion” that is exercised. “Discretion” on return is not something that the appellant in this case can reasonably be expected to tolerate.
Ms Hooper for the appellant in her skeleton and in her submissions was in effect raising wide ranging general arguments concerning the different respects in which discrimination against homosexuals constitutes a violation of basic human rights. These arguments come very close to a claim that, given the discrimination against homosexuals in Iran, on a proper application of the law any homosexual person from Iran is entitled to international protection. We have not addressed these arguments separately since to do so would deflect from the task set for us of answering the specific questions posed by the Court of Appeal as they relate to this appellant.
We have read and considered the analyses of the various cases quoted by Maurice Kay LJ and the authorities quoted to us by the parties. We note also that the Protection Regulations reflect the high threshold required for persecution, requiring that an act of persecution must be “sufficiently serious… as to constitute a severe violation of a basic human right.”
The appellant places particular reliance on the human rights based approach to persecution and on the Australian case of S 395 at para 43.
“43. In many, perhaps the majority of cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases the well-founded fear of persecution held by the applicant is the fear that unless the person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implication that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider the issue properly…”
The respondent relies on the analysis of the human rights approach to...
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