RG (COLOMBIA) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCOTT BAKER,LORD JUSTICE BUXTON,LORD JUSTICE GAGE,LORD JUSTICE LLOYD |
| Judgment Date | 20 January 2006 |
| Neutral Citation | [2005] EWCA Civ 1362,[2006] EWCA Civ 57 |
| Docket Number | C5/2005/0977,A2/05/1500 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 January 2006 |
[2005] EWCA Civ 1362
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Scott Baker
A2/05/1500
MR S CHELVAN (instructed by Messrs Birnberg Peirce & Partners) appeared on behalf of the Applicant
The applicant is a gay man and a national of Colombia. He is aged 36. He arrived in the United Kingdom on 19th April 2001, claiming asylum on his arrival. He was refused asylum by the Secretary of State and removal directions were given on 23rd May 2003. He appealed to an adjudicator both on Convention and on human rights grounds. The adjudicator found the applicant to be credible but dismissed his appeal, saying that he could moderate his behaviour and thus avoid placing himself in danger. He appealed to the Immigration Appeal Tribunal, who in turn dismissed his appeal on 18th February 2005.
It is not disputed that gay men in Colombia are a risk group. That, as Mr Chelvan for the applicant pointed out, is accepted by the Secretary of State, was accepted by the adjudicator and by the Immigration Appeal Tribunal.
Mr Chelvan submits that there is a clear finding by the adjudicator that the applicant kept his homosexuality secret because of his fear of harm and that that would continue to be the position if he was returned to Colombia. In the light of the authorities, in particular Hysi v Z, Mr Chelvan submits that that alone engages the Convention and Article 3, and that in this regard there was an arguable error of law.
He submits, secondly, that there is a further error of law, in that neither the adjudicator nor the tribunal considered the psychiatric report of Dr Bell and that this report is important, in that it indicates what would be likely to happen to the applicant in the event of his return to Colombia. I quote from page 122 of the bundle in a section headed "Opinion" in Dr Bell's report:
"If he is returned to Colombia, it is likely to be highly traumatic for him. Firstly, he would have to immediately try to repress his sexuality and live a double life, living as if he is not a homosexual (when I asked him how he would be affected by this, he said: 'For me, it would be to die'). Suppression of his sexual identity is likely to have traumatic effects."
Then a little later:
"Given the history of childhood sexual abuse, having to live again in a world in which he is physically ill and declining, whilst feeling menaced and threatened by those around him, would be something that he would not manage psychologically and would result in a serious deterioration or breakdown."
For these reasons, in my judgment, there is here an arguable error of law, and accordingly I grant permission to appeal.
Order: Application granted; to be heard by a three member court, one of whom may be a high court judge; time estimate half a day.
[2006] EWCA Civ 57
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
(MS J GRIMMETT)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Buxton
Lord Justice Gage
Lord Justice Lloyd
C5/2005/0977
MR S CHELVAN (instructed by Messrs Birnberg Peirce and Partners, 14 Inverness Street, London NW1 7HJ) appeared on behalf of the Appellant
MR S KOVATS (instructed by The Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) appeared on behalf of the Respondent
LORD JUSTICE BUXTON: This is in effect an appeal from a determination from an adjudicator, promulgated as long ago as 4th November 2003. The appellant, who I will refer to simply as RG, is a national of Colombia. He was born in 1969, arrived in this country in 2001 and claimed asylum on arrival. His initial application was refused in August 2001. He appealed and, during that appeal, it was agreed that he should abandon that appeal and submit a fresh application. That is the application with which the Adjudicator was concerned.
RG is homosexual by sexual orientation and has the misfortune to be HIV positive. He lived in Colombia in a homosexual relationship with another man but, so far as his HIV state is concerned, he could not afford the cost of antiretroviral treatment. Since coming to this country, he has met another gentleman, a national of a different country from his own, who is also homosexual and HIV positive. That person is currently making an application for renewal of his present leave to remain in the United Kingdom. RG fears to return to Colombia because of the treatment, as his evidence said, that he feared to return to Colombia because of the treatment meted out there to homosexuals. They ran a risk at the hands of death squads from the fact that he was a person with HIV who was readily known to be gay. He also said, importantly, in connection with this application, that since he had been in the United Kingdom his mannerisms had changed so much that they were more open and overt through living in a society where homosexuality is better accepted than in Colombia and for that reason also he would be identified as a gay person were he to be returned to Colombia. He reinforced that by saying that he is not same as he was in Colombia because now he does not need to hide his nature. He thought and claimed that he would not be able, on return to Colombia, to suppress his new mannerisms, as he had done before.
The Adjudicator heard evidence from RG and made a series of findings that it is necessary to set out, using principally the Adjudicator's own words. In paragraph 19, he said this:
"I accept the appellant is a homosexual and that he is HIV positive. I accept that the evidence which is not disputed by the respondent that homosexuals in Colombia are as a group at risk and have been the target of paramilitaries along with prostitutes, drug users, vagrants and people with mental disabilities, who are often murdered by extremist elements in what is described as a social cleansing."
Then later in that paragraph he said this:
"The appellant, however, despite living a homosexual life from the age of 18 until he left at the age of 31 and for the United Kingdom—some thirteen years—has himself not experienced any violence, hatred or trouble on account of his homosexuality. This is no doubt because he says he kept it secret."
I interpose to say that that is an important passage, to which I shall have to return. The Adjudicator then went on to describe the unwanted attentions that RG had alleged that he had received from a man called Lopez, whom he said might disclose the fact that RG was HIV positive. But the Adjudicator pointed out that Mr Lopez had not in fact done that between mid-1999, when he first found out about RG's condition, until RG left the country in 2001.
The Adjudicator then made the following two findings, both of which are of importance. In paragraph 19 he said this:
"I do not find therefore that the appellant left Colombia as a result of any persecution due to his homosexuality. I find that the reason why he left was because he was unable to pay for any treatment whatsoever, including the intial viral load and CD 4 count tests in Colombia and had learned from his sister that in the United Kingdom such treatment was available free on the National Health Service."
Secondly, dealing with the appellant's alleged change of behaviour and presentation as a result of his being in the United Kingdom, the Adjudicator said this, at the end of his paragraph 20:
"I do not find therefore that simply because the appellant is able to express himself more openly in what he describes as a freer society such as the United Kingdom that he will necessarily do so if he finds himself in less open surroundings either here, or indeed in another county such as Colombia. I am sure that he would regulate his behaviour accordingly so as not to draw unwelcome attention to himself no matter where he is if by failure to to so he would place himself in danger."
And then, so far as his conclusion is concerned, the Adjudicator said this at the end of his paragraph 22:
"However, I must assess the risk to the appellant on return that he will be targeted as a homosexual. Such risk must be a real risk to this appellant and not merely a probability. Simply because he is a member of a social group, it does not mean that he will necessarily be ill-treated or persecuted. The appellant is not suffering from AIDS and he does not have to draw attention to himself and his lifestyle as a gay man, consequently I find that whilst a possibility exists that he may be ill-treated there is no real risk that it is likley to happen if he takes one or two elementary precautions."
I should add that the Adjudicator further considered that some protection from the authorities, as he put it, could not be entirely ruled out, he having found that the position as to persecution of homosexuals in Colombia was not as severe as had been presented. However, he did not base his determination on that and he realistically recognised that there was in countries such as Colombia a possibility of there being a gap between ostensible protection provided by the law and that which was actually...
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