Md (Same-Sex Oriented Males: Risk)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge O'Connor |
| Judgment Date | 10 October 2013 |
| Neutral Citation | [2014] UKUT 65 (IAC) |
| Date | 10 October 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2014] UKUT 65 (IAC)
THE IMMIGRATION ACTS
Upper Tribunal
(Immigration and Asylum Chamber)
Upper Tribunal Judge Eshun Upper Tribunal Judge O'Connor
For the Appellant: Mr A Eaton, instructed by B.H.T. Immigration Legal Services
For the Respondent: Ms A Athi (24/2/12) and Ms A Everett (10/10/13), Senior Home Office Presenting Officers.
MD (same-sex oriented males: risk) India CG
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a. Section 377 of the Indian Penal Code 1860 criminalises same-sex sexual activity. On 2 July 2009 the Delhi High Court declared section 377 IPC to be in violation of the Indian Constitution insofar as it criminalises consensual sexual acts between adults in private. However, in a judgment of 11 December 2013, the Supreme Court held that section 377 IPC does not suffer from the vice of unconstitutionality and found the declaration of the Delhi High Court to be legally unsustainable.
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b. Prosecutions for consensual sexual acts between males under section 377 IPC are, and have always been, extremely rare.
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c. Some persons who are, or are perceived to be, same-sex oriented males suffer ill treatment, extortion, harassment and discrimination from the police and the general populace; however, the prevalence of such incidents is not such, even when taken cumulatively, that there can be said in general to be a real risk of an openly same-sex oriented male suffering treatment which is persecutory or which would otherwise reach the threshold required for protection under the Refugee Convention, Article 15(b) of the Qualification Directive, or Article 3 ECHR.
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d. Same-sex orientation is seen socially, and within the close familial context, as being unacceptable in India. Circumstances for same-sex oriented males are improving, but progress is slow.
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e. It would not, in general, be unreasonable or unduly harsh for an open same-sex oriented male (or a person who is perceived to be such), who is able to demonstrate a real risk in his home area because of his particular circumstances, to relocate internally to a major city within India.
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f. India has a large, robust and accessible LGBTI activist and support network, mainly to be found in the large cities.
| TABLE OF CONTENTS | Paragraphs |
| Introduction | 1 – 9 |
| Preserved and agreed facts | 10 – 11 |
| Evidence – | |
| – Dr Akshay Khanna | |
| – Country background evidence | 13 – 35 |
| – Evidence relating to the appellant | 36 – 41 |
| – Other country information | 42 – 51 |
| – Appellant's evidence | 52 – 62 |
| – Evidence of RD | 63 – 72 |
| Submissions | |
| – Respondent's submissions | 75 – 85 |
| – Appellant's submissions | 86 – 101 |
| Legal Framework | 102 – 109 |
| Discussion | 110 – 113 |
| – Male same—sex sexual activity — identity defining | 114 – 116 |
| – Evidence of Change | 117 – 118 |
| – Prosecution | 119 – 132 |
| – Police violence and extortion | 133 – 145 |
| – Violence other than from the police or other state authorities | 146 – 154 |
| – Employment | 155 – 161 |
| – Other discrimination | 162 – 168 |
| – LGBT support groups | 169 – 173 |
| Country Guidance | 174 |
| Determination of the appeal | 175 – 192 |
| Appendix – Country background documents considered |
This appeal concerns a male national of India born in January 1986. The appellant entered the United Kingdom lawfully on 21 February 2007 and applied to the Secretary of State to be recognised as a refugee on 7 November 2007. This application was refused by way of a lengthy decision letter of the 22 November 2007. On the same date a decision was made to remove the appellant from the United Kingdom. The appellant appealed this decision to the then Asylum and Immigration Tribunal. Immigration Judge Mahmood dismissed the appeal on all grounds in a determination dated 12 February 2008. Senior Immigration Judge Jarvis subsequently made an order for reconsideration on 13 March 2008 and a panel of the Asylum and Immigration Tribunal (Designated Judge Barton and Immigration Judge James) thereafter reconsidered the appellant's appeal but dismissed it in a determination of the 31 October 2008.
After an oral hearing Lord Justice Sedley granted the appellant permission to appeal to the Court of Appeal, notice to this effect being sealed on 10 November 2010. By way of a further notice, sealed on 23 December 2010, Lord Justice Sullivan ordered that the appellant's appeal be allowed to the extent that it be remitted to the Upper Tribunal for reconsideration pursuant to paragraph 12 of Schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 ( SI 2010/21). The attached Statement of Reasons reads as follows:
“1. …[T]he AIT made a finding that the appellant was a homosexual and noted (sic) accepted that anti-homosexual laws existed but that there are also areas and clubs where open displays of affection are accepted.
2. The appellant sought permission to appeal to the Court of Appeal. The matter was stayed for a period, awaiting the judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31. Permission was granted by Lord Justice Sedley on 10 November 2010.
3. The respondent accepts that the appellant's case will have to be reconsidered by the Upper Tribunal in light of HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31.
4. For this reason, the parties are agreed that the matter being remitted back to the Upper Tribunal of the Immigration and Asylum Chamber for rehearing of the reconsideration hearing by a Tribunal.”
The appeal next came before Upper Tribunal Judge Gleeson on 24 February 2012. After hearing from both Mr Eaton and Ms Athi, Judge Gleeson concluded as follows:
“5. The Court of Appeal having identified the error of law by the AIT in 2008, which may be summarised as its failure to anticipate the restatement of the correct approach to return to concealment in HJ and HT, I set aside the legal analysis in the First-tier Tribunal's determination but the findings of fact and credibility are to be preserved.”
Judge Gleeson further identified this case as one in which the Tribunal could give country guidance on the risk to homosexuals returned to India. The case has thereafter been prepared on such basis. The hearing of the appeal was delayed in order to await the decision of the Indian Supreme Court in Koushal and another v Naz Foundation and Others (Civil Appeal No. 10972 of 2013) regarding the application and scope of section 377 of the Indian Penal Code of 1860, the provision in Indian law which criminalises, amongst other things, same-sex sexual activity. The proceedings were completed in March 2012. Given the length of delay it was eventually agreed between the parties, and by the Tribunal, that the hearing should proceed in the absence of such decision.
By this route, the appeal has come before us to re-make the decision. As it turned out the decision of the Indian Supreme Court was handed down on 11 December 2013. As a consequence we gave both parties opportunity to file written submissions in relation to the judgment, which we summarise below.
As indicated above the “findings of fact and credibility” of the AIT panel were preserved by Judge Gleeson. A Statement of Agreed Facts was prepared by the parties prior to the hearing of the appeal. As a consequence we heard only limited evidence from the appellant and his British citizen partner. We also heard oral evidence from an expert, Dr Akshay Khanna.
The UNHCR Guidelines on International Protection No. 9 — Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (23 October 2012) uses the term “LGBTI” [lesbian, gay, bisexual, transgender and intersex] in preference to the term “homosexuals”; and the terms “gays” and “lesbians” in preference to “homosexual males” and “homosexual women”. Whilst we have generally sought to follow such preferences this has not been possible throughout because we have also had to reflect the language used in the evidence and submissions before us. Dr Khanna, the expert who provided evidence to the tribunal, uses the terms “Homosexuals”, “LGBT”, “LGBTIQ” [lesbian, gay, bisexual, transgender, intersex and questioning], “same-sex desiring males” and “queer folk”.
For cultural reasons the terms “gay man” and “homosexual male” are not apt to describe, as a generality, males in India with a same-sex orientation. We have used the term “same-sex oriented males” when reference is being made to the group which incorporates gay persons and other male by birth local Indian sexual and gender identities, such as Hijra and Kothi. In the very simplest of terms Hijras are physiological males who adopt feminine gender roles (many of whom have been castrated). Many Hijras live in well-defined Hijra communities often in the poorest urban areas of India, and they often work in the sex industry. They have no exact match in the western identification of sexual orientation. An effeminate male who takes a “receptive” role in sexual activity with a man will often identify as a Kothi. Kothis are to be distinguished from Hijras, although they often live within Hijra communities; doing so with a degree of subservience. Both Hijra and Kothi have their own identifiable social spaces in India and generally live at the margins of society with a very low status.
We make findings in this determination only in relation to same-sex oriented males, and those perceived as such, whether they self identify as gay or not. Dr Khanna confirms that his evidence is not intended to relate to the experiences of women or other females...
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