J v Secretary of State for the Home Department (No 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAURICE KAY,Lord Justice Buxton,SIR MARTIN NOURSE,Lord Justice Maurice Kay,LORD JUSTICE BUXTON |
| Judgment Date | 26 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1238 |
| Docket Number | C5/2006/2451 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 July 2006 |
[2006] EWCA Civ 1238
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Buxton
Lord Justice Maurice Kay
Sir Martin Nourse
C5/2006/2451
[AIT NO. HX/44557/2002]
MR N BLAKE QC AND MR F OMERE (instructed by Messrs Paragon Law, Finelook Studios, 7 Broad Street, Hockley Village, NOTTINGHAM NG1 3AJ) appeared on behalf of the Appellant.
MS J COLLIER (instructed by Treasury Solicitors, LONDON WC2B 4TS) appeared on behalf of the Respondent.
The appellant is of Iranian nationality. He is a homosexual. He arrived in the United Kingdom on 17 December 2001 and claimed asylum. The Secretary of State rejected his claim on 1 March 2002. There was an appeal to an adjudicator who dismissed it on 11 November 2002. The appellant was granted permission to appeal to the Immigration Appeal Tribunal. However, by the time his appeal came for substantive consideration, the transitional provisions of the Asylum and Immigration (Treatment of Claimants Etc) Act 2004 were in force. Accordingly, the appeal came before the Asylum and Immigration Tribunal. At a hearing on 3 June 2005, the AIT concluded that the determination of the Adjudicator contained material errors of law. It adjourned the matter for further reconsideration in the form of a hearing de novo. That hearing took place on 29 July 2005 and resulted in a determination promulgated on 15 August 2005. The AIT dismissed the appeal on both asylum and human rights grounds. It also refused permission to appeal to this court, as did Sedley LJ on the papers. However, on 31 January 2006, following a renewed oral application, Sedley LJ granted permission to appeal. In so doing he said:
"There is no single decision … which answers this straightforward question does it amount to persecution according to these broad tests 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?"
The findings of the AIT
The principle findings of the AIT are contained in the following passages:
"19. We find that the appellant is a practising homosexual in the United Kingdom, that he discreetly practised homosexuality in Iran and that he has an established relationship with Mr [A] in the United Kingdom. We find that all of the claimed events of 28 November 2001 are a fabrication, that the appellant was never detained by the authorities in Iran on account of his homosexuality, that his account of his escape from custody is totally untrue and that he was of no adverse interest to the authorities in Iran at the time that he left his country, or at the present time. We reject the appellant's evidence … that the authorities have shown ongoing interest in him since he left Iran. We find that the appellant could be removed to Iran, without such removal involving a real risk of persecution or treatment contrary to Article 3 of the ECHR …
"38. … we accept that the appellant has a long-standing and ongoing homosexual relationship with Mr [A] and we accept the veracity of both of the appellants' witnesses evidence, insofar as that evidence relates to the relationship between the appellant and Mr [A] …
"41. We accept that the appellant undertook military service and his evidence is that he was involved in homosexual relationships during that period of time, without any adverse results. We accept that evidence as true. We find as a fact that he subsequently participated in discreet homosexual activity without any adverse results. His evidence was that his relationship with [his partner in Iran] was conducted discreetly, which we accept. Applying the principles and conclusions set out in the IAT's Country Guidance determination in RM and BB, and having referred also to the subsequent AIT reported determination in AT, we conclude that the appellant's removal to Iran would not result in a real risk of persecution, or harm contrary to Article 3 of the ECHR … We find that the appellant's homosexual practices in Iran have never been such that his own homosexual activity is reasonably likely to result in adverse attention from the authorities in Iran …"
Country guidance on the position of homosexuals in Iran
In RM and BB [2005] UKAIT 00117 the AIT provided guidance on the treatment of homosexuals in Iran. It referred to the death penalty for sodomy but described that as "an extremely rare occurrence". It added:
"If a complaint is brought to the authorities then we are satisfied that they would act upon that to the extent that they would arrest the claimed offenders and question them and thereafter there is a real risk that either on the basis of confessions or knowledge of the judge which might arise from such matters as previous history or medical evidence or the evidence of the person who claimed to have observed the homosexual acts, that they would be subjected to significant prison sentences and/or lashing."
That paints a much grimmer picture than obtains in some other countries where the problem exists but is more one of societal discrimination. Plainly, there are particular problems for practising homosexuals in Iran.
The legal principles
Before the AIT, the appellant lost his appeal under Articles 2, 3 and 8 of the ECHR. He does not have permission to appeal to this court in respect of that. His appeal is limited to the position under the Refugee Convention. Article 1A(2) of that convention refers to a:
"well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion".
In Shah v Islam [1999] 2 AC 629 at page 643 C-E Lord Steyn said:
"In some countries homosexuals are subjected to severe punishments including the death sentence. In Re GJ [1998]1 NLR 387 the New Zealand Refugee Status Authority faced this question. Drawing on the case law and practice in Germany, the Netherlands, Sweden, Denmark, Canada, Australia and the USA, the Refugee Status Authority concluded in an impressive judgment that depending on the evidence homosexuals are capable of constituting a particular social group within the meaning of Article 1A(2) … This view is consistent with the language and purpose of Article 1A(2) . Subject to the qualification that everything depends on the state of the evidence in regard to the position of homosexuals in a particular country I would in principle accept the reasoning in Re GJ as correct."
In the present case it is common ground that practising homosexuals in Iran constitute "a particular social group".
As in any similar case, the central question for the AIT was whether the appellant has a well-founded fear of persecution. The finding of the AIT that this appellant does not have such a fear is constructed on the fact that he was not persecuted during his earlier homosexual relationships in Iran prior to his departure because they were "conducted discreetly" and that it is not reasonably likely that he will be the subject of adverse attention from the authorities following return to Iran, by implication because any future homosexual relationship there would also be "conducted discreetly". In recent years, this type of analysis has received renewed consideration. It is instructive to begin with the decision of the majority of the High Court of Australia in S395/2002 [2003] HCA 71. There were two majority judgments. The joint judgment of McHugh and Kirby JJ contains these passages. First, from paragraph 40:
"Persecution covers many forms of harm … Whatever form the harm takes, it will constitute persecution only if, by...
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