Oo (Gay Men: Risk)
| Jurisdiction | UK Non-devolved |
| Judge | Dawson,Coker |
| Judgment Date | 23 August 2012 |
| Neutral Citation | [2013] UKUT 63 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 23 August 2012 |
[2013] UKUT 63 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Upper Tribunal Judge Dawson
Upper Tribunal Judge Coker
For the Appellant: Ms A Smith on 4th January 2012 and Ms R Chapman on 22nd and 23rd August 2012, instructed by Luqmani Thompson, Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer
OO (gay men: risk) Algeria CG
a) “Sodomy” and “acts against nature with a member of the same sex” are illegal under Penal Code Article 388 and 333 in Algeria and on conviction carry a criminal sentence of up to 3 years imprisonment and/or a fine.
b) Criminal prosecutions of gay men under Articles 388 and 333 are, however, extremely rare.
c) The evidence does not suggest that, as a general matter, societal and familial disapproval of male gay identity in Algeria reaches levels that are persecutory, within the meaning of Article 9 of the Qualification Directive or which otherwise reach the threshold required for protection under Article 15(b) of that Directive or Article 3 of the ECHR.
d) That conclusion is reinforced by the evidence that the admittedly small number of gay men who live openly as such in Algeria do not, in general, suffer serious harm amounting to persecution.
e) If somebody is able to establish that their behaviour was shaped by more than disapproval amounting to serious harm, they may be able to establish a need for protection. Each case should be determined on the evidence specific to that particular case.
This is the determination of the Tribunal to which both members of the Panel have contributed.
This is an appeal by the appellant, a citizen of Algeria, born on 11 th February 1995. On the dates of the resumed hearing before us he was still a minor. His solicitor was present throughout the hearing and his representatives were content that the arrangements for the hearing of the appeal were satisfactory. We followed and applied the Joint Presidential Guidance Note No 2 of 2010 “Child, vulnerable adult and sensitive appellant guidance”. Although no responsible adult per se was present, the appellant's solicitor was present throughout and the absence of a responsible adult was not said to raise a difficulty. Although the appellant was asked questions for a significant period of time, breaks were given and there was no objection to the length or nature of the questioning. The hearing was held in camera. The basis of the appellant's claim is that he fears persecution in Algeria as a gay person. We have used the acronym LGBT in this determination instead of using the phrase lesbian, gay, bisexual, transgender, being the term used by the witnesses.
Ms Chapman stated that no point was being taken with regard to the lack of tracing conducted by the respondent ( KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014). Because the appellant was estranged from his father he did not wish any tracing undertaken and he was not, she said, disadvantaged by the failure of the respondent to make any attempt to trace relatives in Algeria. However, if we were inclined to find that his mother was alive, then, she submitted, KA may be relevant as there was, she said, a “collision” between section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children) and the tracing requirements and it may be that in those circumstances she would seek to make further submissions.
This appeal, under section 83(2) of the Nationality, Immigration and Asylum Act 2002, is against the decision of First-tier Tribunal Judge W L Grant who dismissed the appellant's appeal against the Secretary of State's decision to reject his asylum claim on 28 th March 2011 but granted him discretionary leave to remain until 11 th August 2012 in accordance with the published Asylum Policy Instruction on Discretionary Leave. On 4 th January 2012 it was found that the judge had erred in law in failing to make a finding on whether the appellant's mother had committed suicide, as claimed, thus rendering the subsequent findings on credibility unsafe; and that the Judge had failed to take into account and assess in reaching his decision evidence before him as to the appellant's claimed sexual orientation. The decision was set aside to be re-made. No findings were preserved save that he was an Algerian citizen with a date of birth of 11 th February 1995; that he had spent some 18 months in France prior to coming to the UK, had been charged with burglary in the UK about 2 weeks after his arrival, remanded in custody in Feltham Young Offender's Institution and subsequently acquitted.
The essence of the appellant's claim is that when he was around 12 or 13 years old he began a sexual relationship with a young man 2 or 3 years older. He claims they were discovered by his parents on their bed, him wearing his shorts, as a consequence of which his mother committed suicide by throwing herself from the window of their third floor apartment; he then fled the family home. He claims he slept rough for a few days until his father, who had been pursuing him, found him and stabbed him in the shoulder. The appellant escaped, received treatment at Mustafa Bacha hospital and subsequently fled to the port city of Ouarhan and travelled by sea to Spain (remaining there for about 4 days), then to France where he remained from 10 th November 2008 until 13 th June 2010 and then to the UK via Belgium. He is unclear when he arrived in the UK. He claims he is sexually attracted to and enjoys physical relationships with both men and women; he fears return to Algeria because he would not be able to, and would not want to, conceal that he is attracted to both men and women.
There was some delay in the appellant submitting his claim for asylum. His age was initially disputed but subsequently accepted. Correspondence between his solicitors and the respondent indicates a history of cancelled and adjourned appointments, illness on the part of the appellant and lack of interpreter during an interview with the respondent, resulting in the fragmentary preparation of witness statements and interviews.
The respondent does not accept that the appellant is bisexual or gay or that he experienced the claimed difficulties in Algeria, nor does she accept that his mother died in the manner described or at all; she rejected his claim to be in need of international protection.
The Tribunal has identified this appeal as a suitable vehicle to provide country guidance on the issue of persecution of gays in Algeria. We deal with this first and thereafter deal with the appellant's appeal.
We received evidence from three witnesses offered as expert witnesses: Dan Littauer and Ludovic Lofti Mohammed Zahed attended the hearing to give evidence in person, while written evidence was available from Ms Alison Pargeter. We are particularly grateful to Mr Zahed for having come to the UK from France at less than a day's notice in order to give his evidence. There was considerable documentary evidence before us, a schedule of which is attached. We have had regard to all of this material. We heard oral evidence from the appellant, through an interpreter and have had regard to that evidence, in the round with the documentary evidence.
Ms Smith relied upon a written report dated 13 th June 2012 prepared by Ms Pargeter but this witness did not attend the hearing to give oral evidence. Ms Pargeter describes herself as an analyst and consultant specialising in political and security issues in North Africa and the Middle East. She has held various academic posts most recently as a Senior Research Associate at the Centre of International Studies at the University of Cambridge where she led a major study on radicalisation in North Africa which was funded by the UK's Economic and Social Research Council (“ESRC”) and included Algeria as a case study. She is currently a Senior Associate with Menas Associates, a consultancy firm specialising in Middle East and North African political and economic affairs, and she provides regular analytical contributions for the Jane's Information Group and Oxford Analytica on North Africa.
Ms Pargeter's report sets out the history of the approach within Islam to homosexuality. She referred to the lack of the death penalty in Algeria arising from Algeria's broad assertion to be a secular state. Engaging in same-sex activity is illegal and is a punishable offence leading on conviction to a possible term of imprisonment of between 6 months and 3 years and a fine of between 1,000 and 10,000 dinars. She states:
“…whilst the state imposes such legislation [imprisonment, fine], it is rare for it to prosecute people for homosexuality…. largely because homosexuality is a taboo subject and is something that is kept hidden”.
She refers specifically to one prosecution in 2010 and does not give any other examples of prosecution. (This is also referred to in various press reports before us.) She says there are no legal gay or lesbian associations or openly gay venues although there are:
“increasing numbers of gay internet and social networking sites in the country and also a number of known gay venues including nightclubs in various cities. There are also specific areas within some cities where gay men go in order to pick other men up”.
She refers to homosexuals' fear of being a target of homophobic attacks and states that “homosexuals are forced to live an almost underground existence.” She refers to a 5 July 2000 Maghreb report by the Swiss Federal Office of Refugees Maghreb (Algerie, Egypte, Libye, Maroc, Tunisie) homosexualite et prostitution...
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