UK - Supreme Court, 7 July 2010, HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31

Country of Decision:
Country of Applicant:
Date of Decision:
07-07-2010
Citation:
[2010] UKSC 31
Additional Citation:
[2011] 1 AC 596, [2010] 3 WLR 386
Court Name:
The Supreme Court
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Headnote: 
Homosexuals are members of a particular social group being defined by the immutable characteristic of their sexuality.
 
Asylum should not be refused to a homosexual person on the basis that it could be considered reasonably tolerable, if returned to their home country, for him or her to deny their identity and conceal their sexuality in order to avoid being persecuted.
Facts: 
The applicants were homosexual men from Iran and Cameroon respectively. They had claimed asylum on the basis that they would face persecution in Iran and Cameroon because of their sexual orientation.  In both countries consenting adults engaging in homosexual conduct was a criminal offence that could be punished by imprisonment or, in the case of Iran, execution. However, the Court of Appeal had found that both applicants would hide their sexual orientation if returned. The Iranian appellant would not come to the attention of the authorities and it would be reasonable for the Cameroonian applicant to internally relocate to avoid discovery and a repetition of the assault he had suffered. The Court of Appeal found that, taking into account the situation in the country of origin, it would be “reasonably tolerable” for both applicants to conceal their sexual identity.
 
The applicants appealed to the Supreme Court.
Decision & Reasoning: 
The Supreme Court allowed the appeal on the basis that, firstly, it was not in dispute that homosexuals are members of a particular social group being defined by the immutable characteristic of their sexuality.  Further, to compel a homosexual person to pretend that their sexuality does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the fundamental right to be who he or she is. Persecution includes death, torture or imprisonment.  The 1951 Convention would not provide protection to those who faced discrimination on the grounds of sexual orientation or who face disapproval from their family or society. However, one of the purposes of the Convention is to counteract discrimination and it does not permit or envisage applicants being returned to their country ‘on condition’ that they take steps to avoid offending their persecutors. Persecution does not cease to be persecution if the person persecuted can eliminate the harm by taking avoiding action. Therefore, the Court of Appeal’s test of “reasonable tolerability” was incorrect.
 
The Court held that there may be cases where an applicant would hide his sexuality not only because of his fear of persecution but also for other reasons, such as adverse reaction of family, friends or colleagues. In such cases if the fear of persecution is a “material reason” for the concealment, then he would be entitled to protection.
 
Detailed guidance was given to tribunals on the approach that they should adopt in such cases (see paragraphs 35 and 82 of the decision).
Outcome: 

Appeal allowed; order of the Court of Appeal set aside, both cases remitted to the Tribunal for further reconsideration in the light of the guidance given.

Observations/Comments: 

The Court refused to make a reference of a question arising under the Qualification Directive to the Court of Justice of the European Union on the basis that the question to be referred was not clearly identified.

Other sources cited: 
Hathaway, J. The Law of Refugee Status Butterworths (1991), p 112.
 
Macdonald, Immigration Law and Practice 7th ed (2008).
 
A Guide to Refugee Law in Australia, prepared by the Legal Service Section of the Refugee Review Tribunal and the Migration Review Tribunal. 
 
Millbank, J, “From discretion to disbelief: recent trends in  refugee determinations on the basis of sexual orientation in Australia and the United Kingdom” (2009) 13 IJHR 391. 
Case Law Cited: 

UK - House of Lords, R v Secretary of State for the Home Department Ex p Bugdaycay [1987] 1 All ER 940, [1987] AC 514, [1987] 2 WLR 606

UK - R v Secretary of State for the Home Department Ex p Sivakumaran (and conjoined appeals) [1988] AC 958

UK - R v Secretary of State for the Home Department, Ex p Binbasi [1989] Imm AR 595

UK - R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36

UK - Mare v Secretary of State for the Home Department [2005] EWCA Civ 1600

UK - J v Secretary of the State for the Home Department [2006] EWCA Civ 1238

UK - MH (Iraq) v Secretary of State for the Home Department [2007] EWCA Civ 852

UK - RG (Colombia) v Secretary of State for the Home Department [2006] EWCA Civ 57

UK - RM and BB (Iran) [2005] UKAIT 00117

United States - Kazemzadeh v US Attorney General, 577 F 3d 1341 (11th Cir 2009)

United States - Woldemichael v Ashcroft, 448 F 3d 1000 (8th Cir 2006)

United States - Zhang v Ashcroft, 388 F 3d 713, (9th Cir.2004)

United States - Karouni v Gonzales (2005) 399 F 3d 1163

United States - Iao v Gonzales, 400 F 3d 530, 532 (7th Cir 2005)

UK - Z v Secretary of State for the Home Department [2005] Imm AR 75

United States - Hernandez-Montiel v Immigration and Naturalisation Service, 225 F 3d 1084

UK - Hysi v Secretary of State for the Home Department [2005] EWCA Civ 711

Canada - Atta Fosu v Canada (Minister of Citizenship and Immigration) [2008] FC 1135

Canada - Okoli v Canada (Minister of Citizenship and Immigration) [2009] FC 33

Australia - Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132

Australia - SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

Australia - Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

Australia - NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29

Australia - Nezhadian v Minister for Immigration and Multicultural Affairs [2001] FCA 1415

Canada - Sadeghi-Pari v Canada (Minister of Citizenship and Immigration) 2004 FC 282

ECtHR - F v United Kingdom (Application no. 17341/03)

UK - Fernandez v Government of Singapore [1971] 1 WLR 987

UK - Ahmed (Iftikhar) v Secretary of State for the Home Department, [2000] INLR 1

UK - Ahmad v Secretary of State for the Home Department [1990] Imm AR 61

New Zealand - Re GJ [1998] (1995) INLR 387

New Zealand - Refugee Appeal No 74665/03 [2005] INLR 68

South Africa - Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6

Australia - ALZ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 320