Peter Jorro, an immigration specialist at Garden Court Chambers, has successfully acted for a gay asylum seeker in the Supreme Court. The seminal decision will be widely welcomed by those seeking asylum for fear of having to conceal "protected characteristics" under the Refugee Convention in their country of origin.
HJ (Iran) & HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 (7 July 2010)
HT was a gay man from Cameroon. When local people discovered that he is gay he was subjected to a vicious mob attack with the police joining in on the attackers' side. His asylum claim was refused by the Secretary of State and his appeal rejected by the Asylum and Immigration Tribunal on the basis that he could move elsewhere in Cameroon, where no one would know that he is gay, and by acting 'discreetly' (ie by concealing the fact that he is gay) could avoid being persecuted again.
On appeal to the Court of Appeal his case was joined with that of HJ, a gay Iranian man. Although it was common ground that gay men form a 'particular social group' in both Cameroon and Iran for the purposes of the Refugee Convention, the Court of Appeal upheld its own previous decision in J v SSHD [2006] EWCA Civ 1238, [2007] Imm AR 73, supported by the Secretary of State, to the effect that when a factual finding is made that a gay man will, on return to the country of feared persecution, conceal his sexuality and thereby avoid persecution, he can only succeed in his claim for refugee status if he can demonstrate that a life of concealment would be something that he cannot reasonably be expected to tolerate.
The Supreme Court, in agreement with the appellants' submissions, unanimously rejected the 'reasonable tolerability' test as incompatible with the purposes of the Refugee Convention - which is to provide surrogate international protection from persecution for those persons who are at real risk of being persecuted in their own countries for reasons of inter alia membership of a particular social group - and as unworkable in practice. Rather the proper approach to claims by gay asylum seekers is to determine firstly whether they are indeed gay; if so, does the evidence demonstrate a real risk of persecution for an openly gay person in the relevant country; if so, how will the applicant live on return; and if the decision maker decides that the applicant will conceal his or her sexuality on return, and thus avoid being persecuted, then the decision maker must consider why the applicant will do this. If a material reason for the applicant concealing his or her sexuality on return would be a fear of persecution which would follow if he or she were to live openly as gay, then the claim for asylum is made out.
This is because what is protected by the Refugee Convention is the applicant's right to live freely and openly as a gay man and it can be no answer to an asylum claim to say to the claimant that he or she could avoid being persecuted in their own country by concealing the very characteristic - here the membership of the particular social group consisting of gay men - that the Refugee Convention is designed to protect against being persecuted for reason of.
The case is obviously of great significance to gay asylum seekers but also is very important for its recognition of the point that the Refugee Convention protects against persecution for reason of the protected characteristic such that it is no answer to a refugee claim that the applicant could avoid being persecuted whilst remaining in his or her own country by concealing that protected characteristic. This will have important potential benefits for asylum seekers whose claims are based on political or religious grounds from countries where non-conformist political opinions or expressions of religious belief are so thoroughly repressed that few would dare 'speak out' owing to their well-founded fear of the persecutory consequences of doing so.
Peter Jorro was junior counsel for HT in the Supreme Court.
