LC (Albania) v The Secretary of State for the Home Department The United Nations and Another (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice David Richards,Lord Justice Beatson |
| Judgment Date | 09 May 2017 |
| Neutral Citation | [2017] EWCA Civ 351 |
| Date | 09 May 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2014/2641 |
[2017] EWCA Civ 351
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
Lord Justice David Richards
and
Lord Justice Hickinbottom
Case No: C5/2014/2641
and
S Chelvan and Jessica Smeaton (instructed by Duncan Lewis & Co Solicitors) for the Appellant
Rory Dunlop (instructed by Government Legal Department) for the Respondent
Laura Dubinsky and Jana Sadler-Forster (instructed by Baker & McKenzie LLP) for the Intervener by written submissions only
Hearing date: 5 April 2017
Approved Judgment
Introduction
This appeal gives rise to the following point of principle: does the guidance upon the correct approach to sexual orientation asylum claims given by the Supreme Court in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 AC 592 (" HJ (Iran)") still hold good?
Where an asylum applicant claims that, if returned to his home country, he will be persecuted because he is gay, the Supreme Court mandated a sequential four-stage test, requiring the decision-maker to adopt the following route to determine the claim.
(i) Is the applicant gay, or someone who would be treated as gay by potential persecutors in his country of origin? If no, the claim should be refused. If yes:
(ii) Do openly gay people have a well-founded fear of persecution in the country of origin? If no, the claim should be refused. If yes:
(iii) In respect of his sexual orientation, on his return, will the applicant be open? If yes, he is a refugee and his claim should be allowed. If no:
(iv) If he would not be open, but rather live discreetly, is a material reason for living discreetly that he fears persecution? If yes, he is a refugee and his claim should be allowed. If no, then his claim should be refused.
With Ms Smeaton, Mr Chelvan for the Appellant submits that this guidance does not comply with EC Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted ("the Qualification Directive"), as explained by the Court of Justice of the European Union ("the CJEU") in post- HJ (Iran) authorities, notably Germany v Y and Z (Joined Cases C-71/11 and C-99/11) [2013] 1 CMLR 5 ("Y and Z") and Minister voor Immigratie en Asiel v X, Y and Z (Joined Cases C-199/12 to C-201/12) [2014] QB 1111 ("X, Y and Z"), as applied by the Upper Tribunal (Immigration and Asylum Chamber) in MSM (journalists; political opinion; risk) Somalia [2015] UKUT 413 (IAC) (" MSM (UT)"). He contends that the Qualification Directive, properly construed, requires the Supreme Court guidance to be amended, such that, if the answer to questions (i) and (ii) is "Yes", then the applicant is in any event a refugee and should be granted asylum: there is no need, and it is wrong, to proceed to consider questions (iii) and (iv).
Mr Rory Dunlop for the Secretary of State submits that the Supreme Court guidance is compliant with the Directive; and has been left unaltered by these later authorities.
In addition to Mr Chelvan and Mr Dunlop, this court has also received written submissions by Ms Laura Dubinsky and Ms Jana Sadler-Forster, acting pro bono for the United Nations High Commissioner for Refugees.
This case concerns a gay man – and this judgment will focus on gay men – but the principles apply equally to both genders and to all asylum claims based upon sexual orientation.
The Factual Background
The Appellant is an Albanian national, born on 6 November 1995. Until 2012, he lived with his family in Tirana.
He arrived in the United Kingdom on 4 October 2012, aged 16. He claimed asylum on the ground that he was gay. He said that he had been in a relationship with another adolescent man in Tirana for about a year when, in September 2012, his father discovered the relationship when he read texts on the Appellant's phone. The Appellant said that he was unable to contact his boyfriend, because his father kept his phone and he did not know his surname. His father threw him out of the house, and the Appellant slept rough for about a week before getting onto a lorry bound for the United Kingdom. He did not seek the help of the police in Albania, because he thought that they would not help him, and indeed would beat him up because he was gay. He said that he had not met any other gay men, either in Albania or after he had arrived in the United Kingdom, because he had had no opportunity to do so.
In line with the Secretary of State's published policy in respect of unaccompanied asylum-seeking children, as there were no reception facilities for children in Albania, the Appellant was granted discretionary leave to remain until he was 17 years 6 months old (i.e. until 6 May 2013). However, by a decision-letter dated 7 April 2013, his claim for asylum was refused. The decision-maker on behalf of the Secretary of State considered the Appellant's account was vague and inconsistent, and was not persuaded that he was gay. In any event, he found that, if the Appellant were returned to Albania, it would be possible for him to live openly as a gay man, and the state would be willing and able to protect him from anti-homosexual acts. The Appellant's claim under article 8 of the European Convention on Human Rights ("the ECHR") was also rejected.
The Appellant's appeal was heard by First-tier Tribunal Judge Woolley on 2 January 2014, at a hearing at which the Appellant was not represented. In a determination promulgated on 13 January 2014, the judge expressly adopted the approach advocated in HJ (Iran), as follows:
(i) He accepted that the Appellant was gay (paragraph 30); although he did not accept the Appellant's account of his experiences in Albania with regard to his discovery and flight, and did not accept that he would be at risk from family members if he were to return (paragraph 40).
(ii) Following the country guidance case MK (lesbians) Albania CG [2009] UKAIT 36 (" MK (Albania)"), he found that, as the Appellant did not fall within any of the categories of homosexual people found in that case to be at risk in Albania (i.e. those who were members of a gay association, those who cruised certain areas of Tirana, and individuals who faced risk of harm from members of their own family), he would not be at risk of persecution on return "even though there may be a background of societal disapproval" (paragraph 34).
(iii) & (iv) In any event, he found that the Appellant's behaviour in Albania and the United Kingdom had been the same. The Appellant had never been tempted to visit the gay cruising areas in the centre of Tirana, and he had not encountered any other gay men, either in Albania or the United Kingdom. The judge concluded that "in whatever country he is that he will live discreetly" (paragraph 42); and, the reason for so doing, was that "that is how he himself would choose to live, rather than to live discreetly because of fear of persecution…. The whole pattern of his life while in the United Kingdom is a strong and indeed conclusive indicator that… he would wish to live discreetly in Albania as a matter of voluntary choice motivated by social pressure" (paragraph 44). The judge found that the Appellant, by living discreetly in Albania, would avoid the risk of persecution (paragraphs 42 and 44). He also found that it would not be unduly harsh for the Appellant to relocate within Albania, and indeed within Tirana itself (paragraph 52).
On 12 February 2014, First-tier Tribunal Judge Wellesley-Cole gave permission to appeal, on the basis that it was arguable that the judge may have misapplied HJ (Iran). However, on 2 May 2014, the appeal was dismissed by the Upper Tribunal (Upper Tribunal Judge Grubb and Deputy Upper Tribunal Judge J F W Phillips). The core reasons were set out in paragraph 9 of the determination in which, after referring to the relevant authorities (including HJ (Iran)), the tribunal continued:
"… The Judge recites the Appellant's evidence, records the fact that he assisted the unrepresented Appellant to give his evidence in accordance with Practice Directions (paragraph 10), and clearly follows those Directions. Having done so the Judge draws conclusions upon the evidence finding that the Appellant is gay but that his evidence of events in Albania is not true. The Judge in reaching his decision takes account of the Appellant's age and vulnerability and in our judgment reaches conclusions that he was fully entitled to draw. The Judge analyses the general position of gay people in Albania and he considers the Appellant's account of events. The Judge reaches conclusions as to the manner in which the Appellant will live in Albania and, finding that he will live and choose to live as a matter of personal preference discreetly, gives details and clear reasons for making that finding. The Judge was entitled to reach this finding based upon the Appellant's past behaviour and in the light of his rejection of the Appellant's evidence of his previous experiences. There is in our judgment no misapplication of the relevant case law, to the contrary the Judge considers and applies the case law, in particular HJ (Iran), in a demonstrably clear manner. In our judgment the decision of the First-tier Tribunal discloses no error of law material to the decision to dismiss the appeal."
The tribunal thus dismissed the appeal.
The Upper Tribunal (Upper Tribunal Judge McGeachy) and, on the papers, this court (Elias...
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