Sw (Lesbians – Hj and Ht Applied)
| Jurisdiction | UK Non-devolved |
| Judge | Gleeson,Spencer |
| Judgment Date | 24 June 2011 |
| Neutral Citation | [2011] UKUT 251 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 24 June 2011 |
[2011] UKUT 251 (IAC)
Senior Immigration Judge Gleeson
Senior Immigration Judge Spencer
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
SW (lesbians — HJ and HT applied) Jamaica CG
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(1) Jamaica is a deeply homophobic society. There is a high level of violence, and where a real risk of persecution or serious harm is established, the Jamaicans state offers lesbians no sufficiency of protection.
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(2) Lesbianism (actual or perceived) brings a risk of violence, up to and including ‘corrective’ rape and murder.
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(3) Not all lesbians are at risk. Those who are naturally discreet, have children and/or are willing to present a heterosexual narrative for family or societal reasons may live as discreet lesbians without persecutory risk, provided that they are not doing so out of fear.
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(4) Single women with no male partner or children risk being perceived as lesbian, whether or not that is the case, unless they present a heterosexual narrative and behave with discretion.
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(5) Because the risks arise from perceived as well as actual lesbian sexual orientation, internal relocation does not enhance safety. Newcomers in rural communities will be the subject of speculative conclusions, derived both by asking them questions and by observing their lifestyle and unless they can show a heterosexual narrative, they risk being identified as lesbians. Perceived lesbians also risk social exclusion (loss of employment or being driven from their homes).
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(6) A manly appearance is a risk factor, as is rejection of suitors if a woman does not have a husband, boyfriend or child, or an obvious and credible explanation for their absence.
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(7) In general, younger women who are not yet settled may be at less risk; the risk increases with age. Women are expected to become sexually active early and remain so into their sixties, unless there is an obvious reason why they do not currently have a partner, for example, recent widowhood.
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(8) Members of the social elite may be better protected because they are able to live in gated communities where their activities are not the subject of public scrutiny. Social elite members are usually from known families, wealthy, lighter skinned and better educated; often they are high-ranking professional people.
For the Appellant: Mr S Chelvan, Counsel instructed by Wilson & Co, Solicitors
For the Respondent: Mr J Auburn, Counsel instructed by the Treasury Solicitor
This was the reconsideration before the AIT, with permission granted to the appellant, of the determination of the Tribunal dismissing her appeal against the decision of the Respondent to refuse her refugee recognition, humanitarian protection or leave to remain on human rights grounds on the basis of her sexual orientation (lesbian). The appellant is a Jamaican citizen and the respondent has accepted throughout that she is indeed lesbian.
The determination of this appeal was not delivered before the abolition of the AIT on 15 February 2010. The reconsideration accordingly continued as an appeal before the Upper Tribunal, the Tribunal having reached its views on credibility immediately after the hearing in December 2009.
The appeal was identified as a potential country guidance case on the risk on return to lesbians in Jamaica. The Tribunal heard evidence from the appellant herself, from her current girlfriend, and from Mr O Hilaire Sobers, the appellant's country expert. We also received into evidence a large bundle of country background analysis and documents.
Some of the legal and factual questions dealt with in the parties’ arguments are no longer relevant since the decision of the Supreme Court's landmark decision on the proper approach to homosexuality in HJ (Iran) and HT (Cameroon)HHHTHT v Secretary of State for the Home Department [2010] UKSC 31 (hereafter for clarity referred to as ‘ HJ and HT’) which overruled the ‘reasonably tolerating living discreetly’ test approved by the Court of Appeal in HJ (Iran) v Secretary of State for the Home Department [2009] EWCA Civ 172 (‘ HJ (Iran)’).
The test in HJ and HT has now been incorporated into the respondent's Operational Guidance Note on Jamaica, as from January 2011. There has been no new Country of Origin Report on Jamaica since December 2009, that being the report which was before the Tribunal when we first heard the appeal.
The appellant's oral evidence and that of her girlfriend is set out in full at Appendix A, together with the country evidence of Mr O Hilaire Sobers, and a summary of all the country evidence and documents before us, updated where appropriate if later versions of the document now exist. The documents before the Tribunal are listed in Appendix B.
The Tribunal's relevant Jamaica country guidance is to be found in DW (Homosexual Men; Persecution; Sufficiency of Protection) Jamaica CG [2005] UKAIT 00168 and AB(Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018. The AIT's existing guidance does not deal with lesbianism, nor is there clear guidance on the protection available by internal relocation. Both cases include consideration of written reports by Mr O Hilaire Sobers.
In DW, the AIT held that:
“Men who are perceived to be homosexual and have for this reason suffered persecution in Jamaica are likely to be at risk of persecution on return. Men who are perceived to be homosexual and have not suffered past persecution may be at risk depending on their particular circumstances. The Secretary of State conceded that, as a general rule, the authorities do not provide homosexual men with a sufficiency of protection. There are likely to be difficulties in finding safety through internal relocation but in this respect no general guidance is given.”
The respondent did not seek to argue in DW that there was an internal relocation option for male homosexuals.
In AB's case in 2007, the AIT held that:
“The authorities in Jamaica are in general willing and able to provide effective protection. However, unless reasonably likely to be admitted into the Witness Protection programme, a person targeted by a criminal gang will not normally receive effective protection in his home area.
Whether such a person will be able to achieve protection by relocating will depend on his particular circumstances, but the evidence does not support the view that internal relocation is an unsafe or unreasonable option in Jamaica in general: it is a matter for determination on the facts of each individual case.”
Following the decision in HJ and HT, when considering the risk on return, the Tribunal is now required to answer the following questions:
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(a) whether it was satisfied on the evidence that the claimant was gay, or that he or she would be treated as gay by potential persecutors in the country of nationality; and if so
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(b) whether it was satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant's country of nationality; and if so
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(c) what the individual claimant would do if he or she were returned to that country.
Depending on the answers to those questions, the following questions arise which are determinative of the question of persecution, humanitarian protection or human rights breaches:
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(a) If the Tribunal found that the claimant would in fact live openly and thereby be exposed to a real risk of persecution, then he or she had established a well-founded fear of persecution, even if they could avoid the risk by living “discreetly”;
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(b) If, on the other hand, the tribunal concluded that the claimant would in fact live discreetly and so avoid persecution, it must go on to ask itself why the claimant would do so. That would affect the outcome of the appeal in the following ways:
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(i) where a claimant would choose to live discreetly simply because that was how he or she wished to live, or because of social pressures, for example not wanting to distress parents or embarrass friends, then an international protection claim should be rejected:
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“Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.”
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(ii) However, where a material reason for the claimant living discreetly on return would be a fear of the persecution which would follow if he or she were to live openly as a homosexual, then international protection should be available:
“…other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.”
The appellant's challenge to the Immigration Judge's determination was on three grounds: first, that the Immigration Judge had made findings of fact and credibility at the civil standard of balance of probabilities rather than the lower standard of real risk or reasonable degree of likelihood which is the appropriate...
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