Z v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Jacob LJ :,Peter Gibson LJ: |
| Judgment Date | 02 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1578 |
| Docket Number | Case No: C4/2003/2245 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 December 2004 |
[2004] EWCA Civ 1578
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Gibson
Lord Justice Buxton and
Lord Justice Jacob
Case No: C4/2003/2245
CC/10392/2001
Mr Nicholas Blake QC and Mr Raza Husain (instructed by the Refugee Legal Centre) for the appellant
Mr Steven Kovats (instructed by the Treasury Solicitor) for the respondent
The structure of this appeal was not wholly satisfactory, and I fear that that may be reflected in the structure of this judgment.
History
Mr Z is a citizen of the Republic of Zimbabwe. He is homosexual by orientation. He claimed asylum immediately on arrival in this country, regrettably as long ago as 18 February 2001. His account was that there was general hostility to homosexuals in Zimbabwe, supported or condoned by the state, and more particularly that he feared persecution by his step father and, through him, by ZANU activists. Mr Z, by then aged 25, gave a history of ill treatment by the stepfather from an early age. He had realised his sexual orientation by the age of 21, and had met a homosexual lover, a Mr D. They did not live together, but met at work or in town, without however frequenting gay bars or other places. Mr Z told his step-father that he wished to "marry" Mr D: that is, to live permanently with him. The step-father threw him out of the family home, and gave him six months to reconsider his position. The step father, a former youth leader in ZANU, threatened that if Mr Z did not change his position he would set ZANU activists on to him. Mr Z decided to leave Zimbabwe before the deadline expired.
The adjudicator held that the evidence before him as to general persecution of homosexuals in Zimbabwe was very thin, and that there was no evidence that persons would be persecuted just because they were homosexual. He specifically disbelieved Mr Z's account of the attitudes of his step-father, and also that the step-father had, through ZANU, any connexion with the state or with a state-tolerated body. He was also plainly very sceptical, though he made no specific finding, about Mr Z's claim that he could not afford to bring Mr D with him to the United Kingdom, Mr Z having been in a well-paid job before leaving Zimbabwe. He therefore rejected Mr Z's asylum claim as unfounded in fact, and on the same factual grounds rejected all his claims under the ECHR.
The adjudicator's decision was reversed by the IAT, in a determination in November 2001. The IAT did not differ from any of the adjudicator's conclusions as set out above, but held that there had been inadequate consideration of article 8 of the ECHR That determination of the IAT was reversed by this court: [2002] Imm AR 560. The case was remitted to the IAT for rehearing on both Refugee Convention and ECHR grounds, with the possibility of the adduction of further evidence.
The case was reheard by the IAT in compliance with that order in April 2003: by then already more than two years from Mr Z's arrival in this country. The IAT declined to hear further evidence from the appellant, considering that he had already had ample opportunity to give evidence to the adjudicator, and had not indicated any desire to amplify, update or even amend that evidence. The Tribunal had before it a report from an expert witness, a Dr Oliver Phillips, which it admitted into evidence. It did not permit Dr Phillips to give oral evidence, as it did not appear that he had anything relevant to add to his report.
The IAT concluded that, even with the advantage of the new evidence that was before it, nothing led it to conclude that the adjudicator was wrong to find that "homosexuals per se are not at risk of serious harm in Zimbabwe". All must depend on the circumstances of the individual case. Counsel sought to persuade the IAT that the adjudicator's findings of fact, adverse to Mr Z, were unreliable. The IAT, in a careful and detailed analysis, rejected all of those submissions. That conclusion is not sought to be re-opened in this appeal, nor could it have been. The IAT then continued in a paragraph very important for this appeal:
"In concluding that the appellant would not be at risk upon return to Zimbabwe because no-one except his partner and one gay friend would know he was a homosexual, we have taken account of his own evidence regarding his past history as a homosexual. He described realising he was gay when he was 21 and then embarking on his first gay relationship when he was 23, with his current partner. He said that they did not visit gay places. He said the couple used to meet in the town or at work. He said they conducted their relationship 'secretly, so it was not known'. This history is relevant because it demonstrates in our view that the appellant's chosen form of homosexual conduct did not and does not involve overt expression or the frequenting of gay bars or other collective homosexual settings, activities which may well increase the risk an appellant would run of hostile reaction from the police or public. This evidence adds to our reasons for concluding that in reality the appellant and his partner had been able to conduct their gay relationship without serious difficulties."
That led the IAT to the following conclusions. First, the appellant had not demonstrated a real risk of serious harm on return, so as to bring himself within the Refugee Convention. Second, and for the same reason, article 3 of the ECHR could not apply. Third, even if (a matter then unclear) article 8 could apply at all, "whilst the need to keep his personal relations secret [in Zimbabwe] might cause him some degree of difficulty, the evidence fell far short of establishing a degree of difficulty that would give rise to significant detriment to his right to respect for private and family life."
The present appeal
Permission to appeal to this court was refused on paper by a single Lord Justice. However, there then came to the attention of those advising Mr Z the decision of the High Court of Australia [HCA] in December 2003 in Appellant S395/2002 v Minister for Immigration [2003] HCA 71 [S395]. The appellant contended that that case threw new light on a situation such as that of Mr Z, a homosexual living without overt expression of his homosexuality in a country generally hostile to that form of orientation. The decision of the HCA supported the appellant's contention that if such a person were required to keep his homosexuality secret in order to avoid persecution, that in itself was a persecutory action, at least potentially sufficient to fulfil the requirements not only of the Refugee Convention but also of article 3 of the ECHR. This court was accordingly prevailed upon to grant permission to appeal, Laws LJ when giving the leading judgment emphasising that the permission was essentially limited to a consideration of the impact, if any, of the observations in S395 upon English law.
In the event, however, the appeal has ranged far more widely than that, and has concentrated not upon the ECHR, which was the main thrust of the grounds of appeal, but upon the Refugee Convention: to which, necessarily, S395 solely related. Reliance on article 3, which formed the centre-piece of the grounds of appeal, was specifically disclaimed in oral argument. No application was made to amend the grounds, and it was not until Mr Nicholas Blake QC opened the appeal before us that its new basis became apparent. Out of consideration to Mr Z, however, we permitted the matter to be ventilated in the form that he desired. I can best explain the form that the case now takes by setting out the series of propositions on which the appeal was based.
Persecution as a discriminatory denial of core human rights
Mr Blake's principal contention was that it was now clear that "persecution" for the purposes of the Refugee Convention; and, as I understood it, also under article 8; existed where there was any discriminatory denial at all of a core human right. The right to respect for private life was such a core human right, and it therefore necessarily followed that any inability to live openly with one's (homosexual) partner was a discriminatory denial of such a right. The IAT should therefore have found that Mr Z would be persecuted on his return to...
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