HT (Cameroon) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lord Justice Carnwath,Lord Justice Sedley,Lord Justice Keene,Lady Justice Smith |
| Judgment Date | 05 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1288,[2008] EWCA Civ 1508 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 December 2008 |
| Docket Number | Case No: C5/2008/2468 |
[2008] EWCA Civ 1288
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: IA/11721/2007]
Lord Justice Rix and
Lord Justice Carnwath
Case No: C5/2008/2468
Mr S Chelvan (instructed by Wilson & Co) appeared on behalf of the Appellant.
Mr P Greatorex (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
(As Approved)
This application for permission to appeal brought by HT, who has come to this country from Cameroon and has claimed asylum, is beset by considerable procedural and jurisdictional difficulties. The jurisdictional difficulty is because, the original AIT decision having been made in Glasgow and a further decision upholding the original decision having been made on reconsideration in London, the question arises by reference to section 103B(5) of the Nationality, Immigration and Asylum Act 2002, which was inserted in that Act by section 26(6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 raises a question about whether any further appeal to a court of appeal should be made to this court in England or to the Court of Session in Scotland. The procedural difficulty arises out of the fact that in any event HT's application for permission to appeal has been made late. It is almost three months late in that the latest time for making an application to the AIT for permission to appeal was 23 June 2008, whereas in fact no application was made until 18 September 2008, as I said nearly three months out of time. In those circumstances the leading case about granting an extension of time is the case of YD (Turkey) v SSHD [2006] EWCA Civ 52; [2006] 1 WLR 1646. See especially the summation by Brooke LJ in paragraph 41 in which Brooke LJ says that: “the applicant will have to present a strong case which is likely to achieve ultimate success on his appeal against the original immigration decision for such an exceptional course to be justified”. Brooke LJ also said in his fourth proposition in that paragraph:
“The court will only grant such an extension if in all the circumstances (including the considerations set out in CPR 3.9) it is just to do so
The factual background of this application is that HT is a gay man who left Cameroon and is said to have arrived in the United Kingdom on 29 September 2006 —although that date may not be accepted by the Secretary of State —but did not claim asylum until he was arrested on 19 January 2007 at a time when he was attempting by means of a false French passport to check in for a flight to Canada. He was thereafter convicted ultimately on his plea of guilty to the offence committed by the use of a false passport and sentenced to 12 months' imprisonment.
His case —and he was accepted by the AIT as a credible witness —was that he had come to England following, and as a result of, being attacked on 15 July 2006 in his home town by an angry mob, who tried —happily unsuccessfully —to castrate him but left him with a wound in his stomach. When the police were called and they heard that the mob had been attacking him on the ground of an accusation that he was gay, the police (inaudible) turned around and punched him, splitting his lip, and hit him. He ended up in hospital.
The Tribunal found that he had recognised his sexual identity for some ten years before then and had had two gay relationships, one early in that period, but that one lasted only some two months, and a second relationship which lasted for some three years and ended in November 2005 when he and his partner were seen kissing in his garden. In the original decision of the Tribunal it was stated that:
“The Tribunal did not accept the appellant's suggestion that he had been discreet in the carrying on of his own sexual relationships.”
And the Tribunal then referred to the event in the garden. It accepted that homophobia is endemic in Cameroonian society, but that discrimination did not amount to the same as persecution, but also that there might be difficulties for someone openly professing his homosexuality in Cameroon. The United States State Department report of 2006 indicated that the Tribunal set out that homosexuality in Cameroon was illegal, with a possible prison sentence between six months and five years and fines ranging from approximately $40 to $400, albeit prosecution under the law was rare.
In paragraph 25 of the original decision it was stated:
“It is the finding of the Tribunal that the appellant's case taken as a whole shows that homosexual relationships can be carried on in Cameroon, notwithstanding that a certain amount of discretion may be required. It might be said that the pursuit of a homosexual lifestyle is in some ways similar to the pursuit of a political activity or even the pursuit of proselytes to a particular religious faith. In short, should someone be expected to be discreet about a matter of this kind?”
The Tribunal answered that question effectively by saying “yes” and that for that reason, albeit it seems to have accepted that HT was at risk of persecution in the area where he came from and where his sexuality was known, albeit it might be said that they did not expressly grapple with that question, nevertheless HT would be able safely to relocate to other parts of Cameroon. That was on the basis that he could be required to be discreet, in which case he would be essentially all right.
It was then accepted by Senior Immigration Judge Goldstein in his decision of 14 November 2007 that the grounds and the earlier decision to which I have referred set out a proper basis for an argument that the Tribunal may have erred in law by concluding that HT, although found to be credible and a homosexual person from Cameroon, could avoid persecution in the future by being discreet, and express reference was made in that decision to paragraph 25 from which I have recently quoted. Senior Immigration Judge Goldstein therefore required reconsideration.
Upon reconsideration in the AIT decision of Senior Immigration Judge Warr promulgated on 5 June 2008 that judge, after considering the case in this court of J v SSHD [2006] EWCA Civ 1238; [2007] Imm AR 73 and the decision of the AIT (which arose out of that decision of the Court of Appeal in that case), namely HJ (Homosexuality: reasonably tolerating living discreetly) Iran [2008] UKAIT 00044, concluded that the first decision had not erred in law. Paragraph 16 is the critical paragraph, where Senior Immigration Judge Warr said:
“In my view the panel was entitled to conclude in the light of the material before it that on the facts the appellant could properly be returned to Cameroon and that the incident in the garden was a one-off incident. The appellant had on the whole been discreet and it does not appear that the requirement to be careful in future would breach his rights to practice his orientation in all the circumstances of this case. As I have observed, questions of this nature are very much questions of fact and I do not find that the panel misdirected itself.”
The essential issue of law which is sought to be raised upon this application is that the Tribunal had erred in law in not addressing the J issue and that that had not been corrected by the Tribunal, on reconsideration, concluding that the first tribunal had asked itself the right question. It is also observed on behalf of the applicant that whereas the original tribunal had found that the applicant had not been discreet when carrying on his homosexual relationships, the reconsidering tribunal had made its own finding that, save on the single occasion, HT had been discreet. In the context of that issue Mr Chelvan, counsel on behalf of HT on this application, seeks to raise a number of submissions by reference to the essential issue in J as to the proper extent to which a homosexual can be required to modify his behaviour and be false to his sexual identity by reason of fear of persecution. In response, this application having been ordered to take place on notice to the Secretary of State partly because of the jurisdictional problems which I referred to at the beginning of this judgment, Mr Greatorex on behalf of the Secretary of State has submitted that J in this court lays down the legal test, and that that is all that this or any court needs to know, and that the rest is simply a question of the application of that test to various factual situations such that there can be, in the light of J, no issue of law arising out of such circumstances.
The test in J is set out in the judgment of Maurice Kay LJ at paragraphs 10 and 11 by reference to earlier English and Australian authority and could be expressed in these terms, which Maurice Kay LJ took himself from the Australian decision:
“it would constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it
In this connection Mr Chelvan has also relied by analogy on the case in this court of Hysi v SSHD [2005] EWCA Civ 711; [2005] INLR 602, in which this court held that it could amount to persecution to be required to suppress and lie about one's racial identity. Mr Chelvan also referred to Pretty v UK [2002] 2 FLR 45 as containing dicta to assist in an argument that persecutory conduct which would deprive a person of a right to establish and develop relationships with other human beings could amount to a breach of asylum and human rights conventions. That is the area in...
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