Finland - Supreme Administrative Court, 13 January 2012, KHO:2012:1

Country of Decision:
Country of Applicant:
Date of Decision:
13-01-2012
Citation:
KHO:2012:1
Court Name:
Supreme Administrative Court
National / Other Legislative Provisions:
Finland - Aliens Act - Section 9 Art 4
Finland - Aliens Act - Section 4 Art 13
Finland - Aliens Act - Section 87 Art 1
Finland - Aliens Act - Section 87 b
Finland - Aliens Act - Section 88 Art 1
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Headnote: 

Although the asylum seeker has been unable to offer any credible account of the death penalty allegedly imposed on him due to his homosexuality, it must nevertheless be assessed whether, he has grounds to fear persecution or is in real danger of suffering serious harm in his home country due to his sexual orientation, and what weight must be given to the fact that he must hide his homosexuality to avoid this kind of threat. The judgments of the Administrative Court and the Immigration Service were overturned and the case was returned to the Immigration Service for further consideration. 

Facts: 

Contrary to his actual sexual identity, the Iranian asylum seeker was forced to enter into a marital contract in his own country, after which his homosexuality was revealed. The death penalty can be imposed in Iran for homosexual acts. According to the Immigration Service’s country of origin information, to impose the death penalty requires eye witness statements of actual sexual intercourse and in the case of the Applicant, no such eye witness statements were available. The credibility of the Applicant’s account was weakened by contradictions:  in his hand written statement he claimed asylum on grounds of problems arising from his writing concerning society, whereas , in police and asylum interviews the Applicant justified his application on the grounds of problems caused by his homosexuality. The Immigration Service rejected the Applicant’s application for international protection and a residence permit and also decided to send him back to Iran.

The Helsinki Supreme Court denied the appeal . The Court held that the Applicant ‘s account of  being forced to enter into a marital contract contrary to his sexual identity was credible but his  account of the trial was not confirmed during the oral hearing.

Helsinki Administrative Court rejected the appeal and thought that the appellant’s account about having been forced, against his true sexual identity, to enter into a marital contract.  However, the appellant’s account of his trial has not been confirmed in the verbal hearing.   According to the Applicant, nobody had seen a sexual act between him and his boyfriend, which is criminalised in  Iranian law and on which the death penalty could be based, and only his wife had seen them kissing.  According to the Applicant, his wife’s family would have gotten third persons to testify at the trial that they had seen intercourse.  The Applicant produced no trial documents which would prove that his case had been dealt with by a court and that he would have been given the death penalty because of a homosexual act or for any other possible reason. Nor has the Applicant provided any evidence of having sought a copy of the judgment from Iran or the reasons why it has not been possible to get the document. The Administrative Court found that it has not been proven that the Applicant would have been given the death penalty in Iran or that the Iranian authorities would have any knowledge of his homosexual orientation. Therefore the Applicant cannot be considered to be of any special interest to the authorities on returning to his home country.

The Applicant requested  leave to appeal to the Supreme Administrative Court and it was granted. He argued that the judgments by the Administrative Court and the Immigration Service should be overturned and that the case should be returned to the Immigration Service for further consideration in order to be granted a residence permit based on international protection.

Decision & Reasoning: 

The Supreme Administrative Court had to decide whether the Applicant, due to his sexual orientation, has a well-founded fear of being persecuted in his home country, Iran, or whether there exist substantial grounds for believing that he would be at real risk of suffering serious harm for the same reason.

According to the Supreme Administrative Court, if homosexuality as such would put the Applicant at risk as mentioned above, it remains to be considered whether it can be assessed that, in order to avoid the above mentioned risk, he should be expected to  behave in such a manner that his homosexuality would not become common knowledge.  When an asylum application relies on a risk of persecution due to   membership of a particular, minority social group , a view has to be taken first on whether the Applicant has credibly demonstrated that he is homosexual. The Applicant must then be able to show that, because of his sexual orientation, he has a well-founded fear of persecution after returning to his home country.  Sufficient grounds for the risk of persecution can be considered to exist if the applicant can credibly show that in his home country he is suspected of belonging to the alleged group and if his account of his recent past supports this belief.

The next individual assessment to be made is how a person might behave in his home country in various future situations, both in his private and public life, and also how, based on the knowledge gained from the country of origin information, the public authorities and private persons might react. If the conclusion of this assessment is that the Applicant has reason to fear persecution in his home country and if, from an objective point of view, this fear is justified, then the Applicant is entitled to asylum even though he could avoid persecution by keeping his sexual orientation secret.

Sexual orientation has to be considered to belong to human rights as part of the protection of private life. The purpose of international protection is to provide the protection that the country of nationality either cannot or is not willing to give against a justified risk of persecution. However, it is not intended to guarantee to a member of a sexual minority the same free and open behaviour in his home country as in the country of asylum. If an Applicant wants to keep his sexual orientation secret in his home country because of social, cultural or religious reasons and not because of a justified risk of persecution, there are no grounds for granting asylum. In the present case, the Applicant has established that he is homosexual.

According to the Applicant, when previously living in Iran, he had kept his homosexuality from his parents and relatives by personal choice prior to entering into the marital contract which brought to light his homosexual relationship. Reportedly, the Applicant’s sexual orientation was most likely revealed to the authorities at the latest when the Applicant’s mother was charged with hiding the Applicant.  After this, the choice to conceal his sexual orientation which he had been exercise to do prior to his marriage could no longer be considered to be in accordance with the objectives of The 1951 Convention relating to the Status of Refugees. 

Although the Applicant has not been able to give a reliable account regarding the alleged death penalty imposed on him, when deciding the case, it should have been considered whether the Applicant´s fear of being persecuted on account of his sexual orientation was well-founded or he was in danger of suffering serious harm in Iran, taking into account the up-to date country of origin information and all facts presented in the case.

Outcome: 

The Supreme Administrative Court overturned the decisions of the Helsinki Administrative Court and the Immigration Service and returned the case to the Immigration Service for further consideration.

Other sources cited: 

UNHCR 7.5.2002 : "Membership of a particular social group" within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees,

Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees),

UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity 21.11.2008,

UK Home Office: Country of Origin Information Report Iran 28.6.2011,

Concluding observations of the Human Rights Committee: Islamic Republic of Iran, International Gay and Lesbian Human Rights Commission ja Iranian Queer Organisation: Human Rights Violations on the Basis of Sexual Orientation, Gender Identity and Homosexuality in the Islamic Republic of Iran,"Homofobiaa paossa" (Sabine Jansen ja Thomas Spijkerboer).

Case Law Cited: 

ECtHR - I.I.N. v. The Netherlands, Application No. 2035/04

Germany - Verwaltungsgericht im Postdam, 9 k 189/03.A

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

UK - HJ (Iran) [2008] UKIAT 00044