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

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Pill,Lord Justice Keene,Sir Paul Kennedy
Judgment Date10 March 2009
Neutral Citation[2009] EWCA Civ 172
Docket NumberCase Nos: C5/2008/2468 & C5/2008/1708
Date10 March 2009

[2009] EWCA Civ 172

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL

MR JUSTICE HODGE, PRESIDENT

Before : Lord Justice Pill

Lord Justice Keene

and

Sir Paul Kennedy

Case Nos: C5/2008/2468 & C5/2008/1708

Between
HJ (Iran)
First Appellant
and
Secretary of State for the Home Department
Respondent
HT (Cameroon)
Second Appellant
and
Secretary of State for the Home Department
Respondent

Raza Husain and Laura Dubinsky (instructed by Paragon Law) for the First Appellant

Jane Collier (instructed by The Treasury Solicitors) for the Respondent

Raza Husain and Mr S Chelvan (instructed by Messrs Wilson & Co) for the Second Appellant

Paul Greatorex (instructed by The Treasury Solicitors) for the Respondent

Hearing dates : 4 & 5 February 2009

Lord Justice Pill

Lord Justice Pill :

1

These cases require a decision as to what test to apply when considering whether a homosexual is entitled to refugee status and whether the test has been correctly applied by the Asylum and Immigration Tribunal (“the Tribunal”). Each appellant, HJ (Iran) and HT (Cameroon), claims to be a refugee in the United Kingdom by reason of the safeguard provided by article 1A(2) of the 1951 Convention Relating to the Status of Refugees (“the Convention”). It is submitted that each of them has a well-founded fear of persecution if returned.

Facts

2

HJ is 38 years old. He is Iranian and claimed asylum on arrival in the United Kingdom on 17 December 2001. He is a homosexual who practised homosexuality in Iran and has continued to do so since his arrival in the United Kingdom.

3

HJ had brief relationships with other men while performing his military service in Iran. Later, he had one relationship with a market trader and another, lasting 9 months, with his employer. He concealed his sexual orientation from all but a small number of likeminded people. His mother and brother had also found out about it. He claims to have become subject to the adverse interest of the authorities in Iran. In the United Kingdom, HJ has had a long-standing homosexual relationship which he has conducted openly.

4

HJ's asylum claim has a lengthy history. The present appeal is against the dismissal by the Tribunal on 8 May 2008 of an appeal against the refusal of the Secretary of State for the Home Department (“the Secretary of State”) to grant asylum. That appeal was heard by Hodge J, President of the Tribunal, accompanied by two Senior Immigration Judges. It came before the Tribunal on remittal by the Court of Appeal ( J v Secretary of State for the Home Department [2006] EWCA Civ 1238) for further reconsideration.

5

HT is 35 years old and a citizen of Cameroon. On 19 January 2007, he arrived at Gatwick to check in for a flight to Montreal and presented a false passport. On arrest, he revealed his true identity and claimed asylum. On 4 April 2007, he was convicted of possession of a false instrument and sentenced to 12 months imprisonment. In August 2007, the Secretary of State decided to refuse the asylum application. HT's appeal to the Tribunal on asylum and other grounds was dismissed on 29 October 2007. Reconsideration was ordered on 14 November 2007 on the ground that the Tribunal may have made an error of law in the test applied to a homosexual person from Cameroon seeking asylum. On 5 June 2008, the Tribunal (Senior Immigration Judge Warr) held that the earlier determination was not materially flawed in law and should stand. He did not therefore proceed to a reconsideration of the evidence.

6

HT said that he had had two homosexual relationships in Cameroon. The first was in 1997 and lasted two months. The second ended after 3 years in November 2005 when he and the other man were together in his garden, began kissing and were seen by a neighbour. They then went their own ways. Later HT was attacked. Prior to the occasion in the garden, HT had been discreet. He claimed that he would be persecuted on return to Cameroon.

The issue

7

The Secretary of State accepts that practising homosexuals are a particular social group for the purposes of article 1A of the Convention. The issue, described by Mr Raza Husain for both appellants, as a “narrow point”, is said by him to be whether it is an answer to a claim for refugee status that the applicant be required to, or otherwise would conceal, his sexual identity in order to avoid harm of sufficient severity as to amount to persecution. Mr Raza Husain puts the issue too narrowly in my view and a fuller analysis of the cases is necessary. In joint written submissions, Miss Collier, for the Secretary of State in HJ, and Mr Greatorex, for the Secretary of State in HT, submit that the question on that issue is always whether the applicant can reasonably be expected to tolerate the need for discretion on return.

Authorities

8

Giving the leading judgment in J (as the case was then known), with which Sir Martin Nourse agreed, Maurice Kay LJ referred, at paragraph 11, to the underlying need for an applicant to establish that his case contained something “sufficiently significant in itself to place him in a situation of persecution”. Maurice Kay LJ cited the words of Lord Bingham of Cornhill in Sepet and Bulbul [2003] 1 WLR 856, at paragraph 7; persecution was “a strong word” requiring a high threshold. Maurice Kay LJ cited the joint opinion of McHugh and Kirby JJ who were part of the majority in the High Court of Australia in ( S395/2002 v Minister for Immigration and Multi-Cultural Affairs 2004 INLR 233). They stated, at paragraph 40:

“Persecution covers many forms of harm … Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps—reasonable or otherwise—to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a 'particular social group' if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution.”

They added, at paragraph 43, that the well-founded fear of persecution may be the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm: “It is the threat of serious harm with its menacing implications which constitutes the persecutory conduct”. (Emphasis in original)

9

In their joint judgment, Gummow and Hayne JJ, also part of the majority, stated, at paragraph 81:

“It is important to recognise the breadth of the assertion that is made when, as in the present case, those seeking protection allege fear of persecution for reasons of membership of a social group identified in terms of sexual identity … Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct. It may, and often will, extend to many aspects of human relationships and activity. That two individuals engage in sexual acts in private (and in that sense 'discreetly') may say nothing about how those individuals would choose to live other aspects of their lives that are related to, or informed by, their sexuality.”

10

That illustrates what Mr Raza Husain has described as the Anne Frank principle, the validity of which is not disputed in this appeal. It would have been no defence to a claim that Anne Frank faced well-founded fear of persecution in 1942 to say that she was safe in a comfortable attic. Had she left the attic, a human activity she could reasonably be expected to enjoy, her Jewish identity would have led to her persecution. Refugee status cannot be denied by expecting a person to conceal aspects of identity or suppress behaviour the person should be allowed to express.

11

Having considered S 395/2002, Maurice Kay LJ stated, at paragraph 16 in J:

“In the present circumstances, the further reconsideration should be by a differently constituted Tribunal. It 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 judgment of Gummer and Hayne JJ at paragraph 83). 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 “related to or informed by their sexuality” (Ibid, paragraph 81). This is not simply generalisation; it is dealt with in the appellant's evidence.”

12

Also agreeing that the appeal should be allowed, Buxton LJ stated, at paragraph 20:

“I would only venture to add one point. The question that will be before the AIT on...

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