HJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v Same

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD HOPE,LORD RODGER,LORD WALKER,LORD COLLINS,SIR JOHN DYSON SCJ
Judgment Date07 July 2010
Neutral Citation[2010] UKSC 31

[2010] UKSC 31

THE SUPREME COURT

Trinity Term

On appeal from: [2009] EWCA Civ 172

before

Lord Hope, Deputy President

Lord Rodger

Lord Walker

Lord Collins

Sir John Dyson SCJ

HJ (Iran) (FC)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

and one other action

HT (Cameroon) (FC)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

and one other action

Appellant (HJ)

Raza Husain QC

Laura Dubinsky

(Instructed by Paragon Law)

Respondent

Charles Bourne

Jane Collier

(Instructed by Treasury Solicitor)

Appellant (HT)

Monica Carss-Frisk QC

Peter Jorro

(Instructed by Wilson & Co Solicitors)

Respondent

Charles Bourne

Paul Greatorex

(Instructed by Treasury Solicitor)

Interveners in both appeals

Intervener (Equality & Human Rights Commission)

Karon Monaghan QC

Jessica Simor

Helen Law

(Instructed by the Commission)

Intervener (United Nations High Commissioner for Refugees)

Michael Fordham QC

Naina Patel

(Instructed by Baker & McKenzie LLP)

LORD HOPE
1

These appeals raise the question as to the test which is to be applied when considering whether a gay person who is claiming asylum under the Convention relating to the Status of Refugees 1951, as applied by the 1967 Protocol ("the Convention") has a well-founded fear of persecution in the country of his or her nationality 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 the High Contracting Parties when the Convention was being drafted. For many years the risk of persecution in countries where it now exists seemed remote. It was the practice for leaders in these countries simply to insist that homosexuality did not exist. This was manifest nonsense, but at least it avoided the evil of persecution. More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another. The death penalty has just been proposed in Uganda for persons who engage in homosexual practices. Two gay men who had celebrated their relationship in a public engagement ceremony were recently sentenced to 14 years' imprisonment in Malawi. They were later pardoned in response to international pressure by President Mutharika, but he made it clear that he would not otherwise have done this as they had committed a crime against the country's culture, its religion and its laws. Objections to these developments have been greeted locally with derision and disbelief.

3

The fact is that a huge gulf has opened up in attitudes to and understanding of gay persons between societies on either side of the divide. It is one of the most demanding social issues of our time. Our own government has pledged to do what it can to resolve the problem, but it seems likely to grow and to remain with us for many years. In the meantime more and more gays and lesbians are likely to have to seek protection here, as protection is being denied to them by the state in their home countries. It is crucially important that they are provided with the protection that they are entitled to under the Convention – no more, if I may be permitted to coin a well known phrase, but certainly no less.

Background

4

The appellants are both gay men. HJ, who is 40 years old, is an Iranian. He claimed asylum on arrival in the United Kingdom on 17 December 2001. He practised 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 following his arrest at Gatwick on 19 January 2007. He had presented a false passport while in transit to Montreal. He too is a practising homosexual. Both appellants claim that they have a well-founded fear that they would be persecuted if they were to be returned to their home countries.

5

The Secretary of State for the Home Department ("the respondent") refused asylum in both cases. HJ's appeal against that decision was dismissed by the Asylum and Immigration Tribunal on 15 August 2005. On 26 July 2006 the Court of 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 8 May 2008, following reconsideration, his appeal remained dismissed. HT's appeal to the Tribunal was dismissed on 29 October 2007. Reconsideration was ordered on 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 2008 Senior 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. On 10 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 accepted that practising homosexuals are a particular social group for the purposes of article 1A 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 be whether it was an answer to a claim for refugee status for the applicant to be required to conceal his sexual identity in order to avoid harm of sufficient severity as to amount to persecution – the proposition being that to impose such a requirement was incompatible with the Convention. For the Secretary of State it was submitted that the issue always was whether the applicant could reasonably be expected 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 v Secretary of State for the Home Department [2007] Imm AR 73, para 16, where he said that the tribunal 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 HJ's case the Court of Appeal held that the Tribunal were entitled to conclude on the evidence that HJ could reasonably be expected to tolerate conditions in Iran: [2009] EWCA Civ 172, para 31. In HT's case there was finding that he would be discreet on return to Cameroon. The question whether he could reasonably be expected to tolerate a life involving discretion was not raised. The Court of Appeal held that there were no facts on which a decision on that matter could be based but that the Tribunal were entitled to find that HT had not established that there was a real risk of persecution in the future: paras 44, 45.

8

In this court Mr Bourne for the Secretary of State submitted that the test of whether the appellants should have refugee status was correctly stated by the Court of Appeal in J v Secretary of State for the Home Department [2007] Imm AR 73, that it was correctly applied by the Tribunal in both cases and that the Court of Appeal was right to dismiss the appeals. Mr Husain QC for HJ said that the test as stated in J v Secretary of State for the Home Department is misconceived. He submitted that it is contrary to the ordinary meaning of the definition of "refugee" in the Convention, and the objects and purposes of the treaty, to deny a refugee's claim on the basis that he was required to suppress or surrender his protected identity to avoid the persecution that would ensue if that identity were to be disclosed. Miss Carss-Frisk QC for HT too disputed the test in J's case. She submitted that if the applicant could show that he had a well-founded fear of persecution he was entitled to refugee status. He should not be required to demonstrate that concealment of his identity was something that he could not reasonably be expected to tolerate. She also said that HT ought to succeed on the facts in any event because of what happened to him in Cameroon.

Background

9

Article 1A(2) of the Convention provides that a refugee is a person who

"…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country…"

Amongst the benefits that a person who satisfies that definition enjoys under the Convention is the prohibition of expulsion or return. Article 33(1) provides:

"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

10

To a large extent the meaning of the definition in article 1A(2) is common ground. It treats membership of a particular social group as being in pari materia with the other Convention reasons for persecution: Fornah v Secretary of State for the Home Department [2006] UKHL 46, [2007] 1 AC 412, para 20, per Lord Bingham of Cornhill. There is no doubt that gay men and women may be considered to be a particular social group for this purpose: Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 643-644, per Lord Steyn. As Lord Rodger points out in para 42, regulation 6(1)(e) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) recognises as clearly as can be that a group based on a common characteristic of sexual orientation may be included in a particular social group that is in...

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