YD (Algeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lord Justice Peter Jackson,Lady Justice Asplin |
| Judgment Date | 14 December 2020 |
| Neutral Citation | [2020] EWCA Civ 1683 |
| Docket Number | Case No: C5/2018/0718 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2020 |
[2020] EWCA Civ 1683
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
LORD BURNS (SITTING AS A JUDGE OF THE UPPER TRIBUNAL) and UPPER
TRIBUNAL JUDGE JACKSON
IA/33492/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
Lady Justice Asplin
and
Lord Justice Lewis
Case No: C5/2018/0718
and
Raza Husain QC, Rebecca Chapman, Louise Hooper and Eleanor Mitchell (instructed by Bindmans LLP) for the Appellant
Sarabjit Singh QC (instructed by the Government Legal Department) for the Respondent
Marie Demetriou QC and Tom Pascoe (instructed by Baker & McKenzie LLP) for the Intervener
Hearing dates: 25 and 26 November 2020
APPROVED JUDGMENT
Lord Justice Lewis, with whom Lord Justice Peter Jackson and Lady Justice Asplin agree:
INTRODUCTION
This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 21 November 2017 dismissing an appeal against a decision of the First-tier Tribunal. That tribunal had dismissed the appellant's appeal against a decision of the respondent of 13 October 2015 refusing him leave to remain in the United Kingdom. In essence, the respondent rejected the appellant's claim that, as a gay man, he would be subjected to persecution were he to be returned to Algeria and his claim that return would be incompatible with his right to respect for his private and family life guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
In summary, the Upper Tribunal followed an earlier decision of the Upper Tribunal, OO (Gay men) (Algeria) CG [2016] UKUT 00065, giving country guidance on the conditions in Algeria for gay men. That earlier decision concluded that, outside the family, gay men would not face treatment amounting to persecution in Algeria. Further, it concluded that very few gay men lived openly as such in Algeria as a consequence of cultural, religious and social pressures.
The issues that arise on this appeal are whether the Upper Tribunal in OO (Algeria) wrongly equated persecution with a risk of being subjected to physical violence and also failed to consider, cumulatively, the impact of the treatment that gay men would face in Algeria. Further, the appeal raises the issues of whether it would be unduly harsh to require the appellant to relocate within Algeria or whether returning him to Algeria would amount to a disproportionate interference with his rights under Article 8 of the Convention given that he would conceal his sexual orientation if he returned to live in Algeria.
THE FACTS
The Background
The appellant, YD, is an Algerian citizen born on 3 January 1997. He entered the United Kingdom illegally in July 2012 when he was 15 years of age. He claimed asylum on the basis that as a homosexual male he had a well-founded fear of persecution if he were to be returned to Algeria.
The background to the claim was as follows. The appellant's parents died in a car crash when he was six and he went to live with his uncle. That relationship became troubled and the appellant was told to leave the home when he was about 12 years old. He became homeless for some months. He met another boy, Anis, and went to stay with him. They formed a sexual relationship. The appellant was 13 and the boy was 14. The boy's mother discovered them having sex. She told the appellant to leave the house and said that she would tell his uncle about the relationship. The appellant returned to living on the streets and subsequently met a person who helped him travel to the United Kingdom.
The asylum claim
The basis of the claim for asylum was that the appellant feared that his uncle would kill him because of his homosexuality and that he would be judged and treated badly, and would be in danger, in Algeria. That claim was refused on 8 July 2013 but the appellant was granted discretionary leave to remain for one year. He applied for further leave to remain. That was refused on 13 October 2015. The appellant appealed to the First-tier Tribunal.
The appeal to the First-tier Tribunal
The appellant provided a written statement for the First-tier Tribunal together with two other witness statements made earlier. In the witness statement prepared for the tribunal hearing, he said that he believed that his uncle would find him and kill him if he were returned to Algeria. He said that he would not be accepted in Algeria. He had lived for four years in the United Kingdom and he felt good about himself and did not feel ashamed about his sexuality. He said people in the United Kingdom were very open minded and he did not have to worry about his behaviour or how people viewed him. The situation would be very different in Algeria and he did not think he would be able to cope with that. He would be rejected by society, mistreated and abused, and did not believe the police would protect him. He had had one relationship with one male in the United Kingdom. That man made a witness statement and gave evidence before the tribunal confirming that he and the appellant were in a relationship although they did not live together. The appellant gave oral evidence and the decision of the First-tier Tribunal records a summary of his oral evidence.
The tribunal first found as a fact that the appellant was gay and was in a relationship with a man. The tribunal was also satisfied that the appellant had had a relationship in Algeria with Anis as he had described and that that relationship had been discovered. Secondly, the First-tier Tribunal summarised the earlier country guidance about the conditions facing gay men in Algeria given in OO (Algeria). It noted that the authorities do not seek to prosecute gay men and there was no real risk of prosecution even when authorities became aware of homosexual behaviour. The state did not actively seek out gay men to take any form of action against them either by prosecution or subjecting them to other forms of persecutory ill-treatment. Sharia law was not applied to gay men. It noted that the earlier decision said that:
“the only risk of ill-treatment at a level to become persecutory likely to be encountered by a gay man in Algeria, is at the hands of his own family after they discovered that he is gay. There is no reliable evidence such as to establish that a gay man identified as such faces a real risk of persecutory treatment from persons outside his own family.”
It noted the earlier decision stated that where a gay man had to flee his family home to avoid persecution from family members, he would attract no real risk of persecution in his place of relocation because, generally, he would not live as a gay man. It would be a question of whether the individual could show that, due to his individual circumstances, it would be unreasonable and unduly harsh to expect him to relocate within Algeria.
Against that background, the First-tier Tribunal held so far as material to the present appeal that:
“23. Firstly, I find in view of the problems that the Appellant had with his uncle and with Anis's mother, that there is a real risk of violent and persecutory ill-treatment of the Appellant from his uncle and from Anis's parents. It therefore follows that the Appellant will not be able to live in the local area, bearing in mind the problems that he had had and the feedback that his uncle has had from his sexual encounters with Anis. However, the Tribunal [in OO] went on to state at paragraph 177, that once the gay son has left the family home and reestablished himself elsewhere, there is no real risk that family members would pursue him to that place of relocation and so generally that risk of persecution can be avoided by the availability of a safe and reasonable internal relocation alternative. I find bearing in mind that there is no indication that the Appellant' uncle or Anis's parents have influence all over the whole of Algeria would be able to reach the Appellant if he is to relocate. It cannot be said that the Appellant's uncle or Anis's parents would pursue the Appellant to a place of relocation.
24. The question I have to consider is whether it is reasonable for the Appellant to relocate taking away the issue of his uncle and Anis's parents. Considering that question I have taken into account the submissions made by [counsel for the appellant] with reference to HJ (Iran). At paragraph 82, the Supreme Court outlines the approach to be followed by Tribunals. The court stated that the Tribunal must first ask whether it is satisfied on the evidence that the Appellant is gay. I find that in this particular case I have found that the Appellant is gay. The Tribunal must then ask itself whether it is satisfied on the available evidence that gay people who live openly would be liable to persecution in the applicant's country of nationality. In this case the country guidance case is the point of reference and in that case the Tribunal found that although the Algerian Criminal Code makes homosexual behaviour unlawful, the authorities do not seek to prosecute gay men and there is no real risk of persecution, even the authorities become aware of such behaviour.
25. The Tribunal also found that Sharia law is not applied against gay men in Algeria and that the criminal law is entirely secular and discloses no manifestation at all of Sharia law in its application. I therefore find that other than...
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