R v Secretary of State for the Home Department, ex parte Binbasi
| Jurisdiction | England & Wales |
| Judgment Date | 25 July 1989 |
| Date | 25 July 1989 |
| Court | Queen's Bench Division (Administrative Court) |
(Kennedy J)
Aliens — Deportation — Asylum — Criteria for grant of — Nature of ‘well-founded fear of persecution’— Homosexual acts subject to criminal penalties in State of nationality — Whether amounting to persecution — United Nations Handbook on Procedures and Criteria for Determining Refugee Status — As instrument of interpretation of refugee law — Whether homosexuals a social group within meaning of Geneva Convention on the Status of Refugees, 1951
Treaties — European Convention on Human Rights, 1950, Article 8 — Aliens — Deportation — State of nationality allegedly in breach of obligations under European Convention on Human Rights — Whether State Party to European Convention precluded from deporting alien to State of nationality — The law of England
Summary: The facts:—The applicant, a Turkish Cypriot resident in Northern Cyprus, applied for judicial review of the refusal by the Secretary of State for the Home Department (‘the Secretary of State’) to grant him asylum in the United Kingdom. At the time of the application, the applicant was subject to an order for his deportation.
The applicant alleged that asylum should have been granted because he had a well-founded fear that, if returned to Cyprus, he would be persecuted because he was a practising homosexual. The commission of homosexual acts was punishable by criminal penalties in Cyprus.
The Secretary of State had rejected the request for asylum on the ground that arrest for homosexual offences did not amount to persecution. The Secretary of State also maintained that homosexuals were not a distinct social group under the Geneva Convention on the Status of Refugees, 1951 (‘the Geneva Convention’).
The applicant contended that he was within the scope of Article 1A(2) of the Geneva Convention.2 He submitted that homosexuals did form a particular social group on the basis of the definition in the Handbook on Procedures and Criteria for determining Refugee Status (‘the Handbook’) produced by
the United Nations High Commission for Refugees. He claimed, inter alia, that homosexuals were identified as a distinct social group by others and shared common characteristics which could not be changed.The Secretary of State asserted that the only common characteristic shared by homosexuals was a sexual preference, a characteristic which was generally only revealed in private. Accordingly, it was stated, the Geneva Convention's criterion was not fulfilled because the distinctive characteristic was generally concealed. The Secretary of State submitted that the Handbook was simply intended as a practical guide and not a definitive interpretation of refugee law and there was no requirement that a wide definition of the term ‘social group’ be applied. The Secretary of State maintained that the criterion of a ‘well-founded fear of persecution’ established a high standard and the Geneva Convention had not sought to guarantee all human rights. Thus, it was argued, that criterion was not fulfilled by a fear arising from a future activity in which the applicant did not need to take part. Although the applicant would run the risk of prosecution if he did participate in homosexual activities, the Secretary of State claimed that he could have regard to the fact that prosecution could be avoided by self-restraint and that the risks in question were not great, nor were the consequences harsh. The applicant contended that he would inevitably attract attention and he would be liable to a term of imprisonment which amounted to persecution.
The Secretary of State was vested with a discretion to allow persons subject to deportation to remain in the United Kingdom where the formal criteria for asylum were not fulfilled. With regard to Article 8 of the European Convention on Human Rights, 1950 (‘the European Convention’), 3 the applicant claimed that, in refusing to exercise that discretion, the Secretary of State had failed to consider that conditions in Cyprus were in breach of that Article. He asserted that, following the decision of the European Court of Human Rights in the case of SoeringINTL, 4 a State Party to the European Convention could not send an individual to another State where the first State was aware that the second State was in breach of its obligations under the European Convention. He also submitted that he should not be deported because it was uncertain whether it was possible to petition the European Court from Northern Cyprus.
The Secretary of State maintained that Article 8 was not applicable and that he was not obliged to consider its provisions. It was also submitted that the Secretary of State could not be criticized for failing to act on the possibility that a State was in breach of the provisions of the European Convention where such a possibility had not yet been confirmed by the European Court.
The applicant applied for judicial review.
Held:—The application was dismissed. The Secretary of State's decision was not unreasonable.
(1) There was no need for the Secretary of State to decide whether homosexuals formed a social group because there was no discrimination in Cyprus against homosexuals unless they...
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