UK - Upper Tribunal (Immigration and Asylum Chamber), 5 January 2016, OO v The Secretary Of State For The Home Department

Country of Decision:
Country of Applicant:
Date of Decision:
05-01-2016
Citation:
OO (Gay Men) Algeria CG [2016] UKUT 00065 (IAC)
Court Name:
Upper Tribunal – Immigration and Asylum Chamber (Upper Tribunal Judge Southern, Deputy Upper Tribunal Judge Kamara)
Keywords:
Relevant Legislative Provisions:
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Headnote: 

The presence of laws criminalising homosexuality does not amount to persecution within the meaning of article 9, Directive 2011/95/EU when there is no real risk for gay men to be prosecuted on the basis of these laws. A gay man in Algeria may reasonably be expected to relocate within the country in order to avoid persecution from his family members, and to conceal his sexual identity so as to conform to societal pressures falling short of acts of persecution.

Facts: 

The appellant, an Algerian national born in 1995, entered the UK through Belgium after residing in France for approximately a year and a half, between November 2009 and June 2010. He subsequently applied for asylum on the basis of him facing a real risk of persecution in Algeria as a gay or bisexual man. His appeal against the rejection of his claim resulted in the country guidance decision OO (gay men: risk) Algeria [2013] UKUT 00063 (IAC). Following an order from the Court of Appeal, made with the consent of the parties on 19 January 2015, that decision was set aside and the appeal was remitted to the Upper Tribunal, which concluded on the present ruling. 

The appellant submitted that he is a gay man but has also had relationships with women, and now describes himself as bisexual. According to his account of his case, when he was around 12 or 13 years of age he was caught by his parents undressed with an older boy, Karim. Shocked by the discovery, his mother committed suicide, while his father pursued and stabbed him when he run away. Following these events, he fled the country, managed to board a smuggling boat to Spain, and later crossed to France where he remained until he decided to travel to the UK.

Decision & Reasoning: 

Before assessing the credibility of his story, the Court examined a psychiatric evaluation commissioned by the appellant. The consultant psychiatrist was satisfied that Mr. OO is primarily homosexual, although some confusion as to his sexual identity still remains. He also found that he suffers from Severe Psychiatric Disorder due to the traumatic events he suffered through – with symptoms such as dissociation, panic attacks, disturbances of attention and concentration, and hallucinations being consistent with Chronic Traumatised State.

In order to further determine the circumstances of the case, the Court also considered expert views on the treatment of gay men in Algeria in general, as well as Country Reports by, among others, the US State Department, the UK Border Agency, and Human Rights organisations like Amnesty International. The above appear to be in agreement that although the Algerian Criminal Code penalises homosexuality, the authorities do not generally seek to prosecute gay men. Prosecutions have occurred in rare cases when additional features such as the involvement of a minor or the public character of the case so dictate. The experts, however, draw attention to the conservative nature of the Algerian society, and warn of a real risk of discrimination, harassment, and reprisals from members of the public as well as the authorities. Furthermore, no discernible LGBT community exists in Algeria outside the Internet, while the vast majority of gay men remain closeted, and are often forced to enter traditional marriages with persons of the opposite sex. Should their sexual identity become known to their families they will, in most cases, face exclusion and abuse, which may amount to physical violence.

To reach its decision, the Court relied primarily on the leading cases of X, Y, and Z (CJEU) and HJ (Iran) and HT (Cameroon) v SSHD  (UKSC). According to the former ‘the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of article 9(1) of the (Qualification) Directive’ (para. 55). Instead, the law in question must actually be enforced and threaten a sufficiently serious punishment, such as a term of imprisonment. Furthermore, according to the UKSC, even though it cannot be required of a gay man to live ‘discreetly’ in order to avoid persecution, if he does in fact choose to do so it must be examined whether that choice is made to avoid persecution or mere societal pressures which do not amount to persecutory treatment, and, thus, do not fall under the scope of the Geneva Convention on the Status of Refugees.

When confronted with the argument put forward by Judge De Gaetano in his separate opinion in M.E. v Sweden (ECtHR) that the CJEU ruling undermines the protection guaranteed through article 8 ECHR and Strasbourg’s jurisprudence, the Tribunal first noted that the X, Y, and Z judgement concerns the application of the Directive and not the European Convention. It also observed that Judge De Gaetano's opinion was an obiter dictum, not a clear position, and that in any case it was irrelevant for the outcome of the case. It, then, proceeded to reply that the assessment on the risk of persecution needs to be a holistic one, based on all circumstances, and that it is hard to see how any rights protected by the ECHR could be infringed when there is no real risk that an unenforced law would impact in any negative way at all.

On the issue of the Country Guidance, the Court agreed, in principle, that the Algerian society is a conservative one, permeated by strict Islamic values dictating that all citizens, regardless of their sexual identity, exercise restraint and refrain from public displays of affection. At the same time, however, the Country's legal system, while criminalising homosexuality, remains secular and is not influenced by Sharia law in its application. Furthermore, it found no compelling evidence of violence or other persecutory ill treatment at the hands of the authorities or members of the public, even though it conceded that a gay man recognised as such is very likely to attract an adverse response as he goes about his daily business. This response may range from a simple expression of disapproval, mockery or name calling, up to the possibility of physical attack.

The Tribunal accepted that a gay man in Algeria is likely to face ill-treatment at the hands of his family, should his sexual identity become known to them, which may reach the degree of severity required to be considered persecutory. In that event no sufficient protection on behalf of the state is available but, since no real risk of persecution exists outside the family home, the person concerned may reasonably be expected to relocate in order to avoid the persecutory treatment. In any case, a gay man's choice to conceal his sexuality in Algeria is not about escaping persecution – a danger which is either non-existent or can be dealt with through relocation – but about conforming with social mores and avoiding disapproval of a type that falls well below the threshold of persecution.

For these reasons, a gay man from Algeria will be entitled to be recognised as a refugee only if he shows that, due to his personal circumstances, it would be unreasonable and unduly harsh to expect him to relocate within Algeria to avoid persecution from family members, or because he has particular characteristics that might, unusually and contrary to what is generally to be expected, give rise to a risk of attracting disapproval at the highest level of the possible range of adverse responses from those seeking to express their disapproval of the fact of his sexual orientation.

With regards to OO's appeal, and in view of its findings on the position of gay men in Algeria, the Court first observed that refugee status cannot be granted on the sole ground of the appellant's assertion of his own sexuality. Instead, he should be able to show that his personal circumstances create a real, individual risk of persecution in the event of his return to his country of origin. Upon examining, however, the line of events that led him to flee Algeria and seek international protection, the Court was not convinced that OO's account was credible. On the contrary, it found that his story was contradictory, inconsistent, and sometimes implausible, citing discrepancies that are difficult to explain, even with due consideration to the psychiatric evaluation, such as details of his mother's death and funeral, his encounter with Karim and other male sexual partners, and the claim that traffickers took pity on him and allowed him to travel to Spain free of charge. These inconsistencies led the Court to conclude that his entire story, including his claim to be a homosexual or bisexual man, has been fabricated in order to manufacture a basis for his asylum claim. However, it proceeded to note that even if it erred in dismissing the appellant's assertion of his own sexual orientation, a decision to return him to Algeria would not put him at risk since he could always seek alternative accommodation away from his family home, and he does not otherwise face a real threat of persecution, either as a gay or bisexual man or as a failed asylum seeker. 

Outcome: 

The appeal was dismissed. 

Observations/Comments: 

The present ruling determined not only the outcome of OO's appeal against the rejection of his asylum application, but also the future stance of the UK authorities towards asylum claims made by Algerian gay men on the basis of their sexual orientation. Consequently, its impact is much broader than the case at hand.

This case summary was written by Zoi Anna Kasapi, LL.M. in Human Rights Law, Queen Mary, University of London.