| IMMIGRATION — Asylum — Intention to stay as refugee — Claimants practising homosexuals from Iran and Cameroon — Claimants refused asylum on ground no well-founded fear of persecution in country of origin — Test to be applied when determining whether homosexual person entitled to refugee status — Convention and Protocol Relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906), art 1A(2)
HJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v Secretary of State for the Home Department [2009] EWCA Civ 172; [2009] WLR (D) 87
CA: Pill, Keene LJJ, Sir Paul Kennedy: 10 March 2009
When considering whether a homosexual person was entitled to refugee status, the test to be applied was whether the claimant would reasonably be expected to tolerate that he would have to be discreet, not only in the context of random sexual activity, but in relation to matters following from, and relevant to, sexual identity.
The Court of Appeal so held when dismissing the appeals of the claimants, HJ and HT, in two separate cases against the decisions of the Asylum and Immigration Tribunal of 8 May 2008 and 29 October 2007, respectively, dismissing the claimants’ appeals against the decisions of the Secretary of State for the Home Department to refuse their asylum applications.
Both claimants contended that, were they to be returned to their countries of origin (Iran and Cameroon, respectively), they would be persecuted because of their sexual orientation. The Court of Appeal (J v Secretary of State for the Home Department [2007] Imm AR 73) had remitted the case of the first claimant, HJ, back to the tribunal for reconsideration. In his judgment in that case, Maurice Kay LJ had set out a test to apply when considering whether a homosexual asylum seeker was entitled to refugee status under art 1A(2) of the Convention and Protocol relating to the Status of Refugees (1951).
PILL LJ said that the Secretary of State had accepted that practising homosexuals came within the definition of “refugee” under art 1A(2) of the Refugee Convention: the term applied to anyone who “owing to well-founded fear of being persecuted for reasons of … membership of a particular social group … is outside the country of his nationality”. Moreover, there was no dispute as to the validity of the “Anne Frank principle” under which it would have been no defence to a claim that Anne Frank faced a well-founded fear of persecution in 1942 to say that she was safe in a comfortable attic. Had she left the attic, a human activity she could reasonably be expected to enjoy, her Jewish identity, would have led to her persecution. The test stated by Maurice Kay LJ in J v Secretary of State for the Home Department [2007] Imm AR 73, para 16 complied with the standard required by the Convention and was appropriate and workable. Moreover, the need to protect fundamental human rights transcended national boundaries but, in assessing whether there had been a breach of such rights, a degree of respect for social norms and religious beliefs in other states was appropriate. Both in Muslim Iran and Roman Catholic Cameroon, strong views were genuinely held about homosexual practices. In considering what was reasonably tolerable in a particular society, the fact-finding tribunal was entitled to have regard to the beliefs held there. A judgment as to what was reasonably tolerable was made in the context of the particular society and analysis of in-country evidence was necessary in deciding what an applicant could expect on return and could not be ignored when considering the issue. In HJ’s case, the tribunal’s conclusion that HJ could reasonably be expected to tolerate conditions in Iran was firmly based on the evidence in the case and would stand. In HT’s case, the claimant had not established facts on which to base a finding that he could not reasonably be expected to tolerate a life involving discretion, if he returned to Cameroon, and the conclusion that he had not established a real risk of persecution in the future would stand.
KEENE LJ and SIR PAUL KENNEDY agreed. |
