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

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).