The claimants sought to prevent their removal and return to their countries of origin saying that as practising homosexuals they would face discrimination and persecution. They appealed against a judgment saying that they could avoid persecution by adapting their behaviour on return. In both countries practising homosexuality would risk imprisonment and in Iran, execution.
Held: The appeals succeeded.
A gay man was entitled to live freely and openly in accordance with his sexual identity and it was no answer to the claim for asylum that he would conceal his sexual identity in order to avoid the persecution that would follow if he did not do so. The Convention recognised groups subject to persecution according to their sexual orientation. Though simple acts of discrimination or disapproval might not give rise to protection under the Convetion, more serious acts such death torture or imprisonment could amount to perscution, and if that risk existed it was not enough that the claimants might avoid it by takig avoiding action. A fundamental purpose of the Convention was to counteract discrimination, and it could not be contemplated that a return should be ordered requiring as a condition of its effectiveness that the claimants hide their natures. The Court rejected the ‘reasonable tolerability’ test adopted by the Court of Appeal, and gave guidance to lower courts accordingly.
Lord Hope said: ‘The group is defined by the immutable characteristic of its members’ sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests itself in behaviour, it is less immediately visible than a person’s race. But, unlike a person’s religion or political opinion, it is incapable of being changed. To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are.’
Lord Hope (Deputy President), Lord Rodger, Lord Walker, Lord Collins, Sir John Dyson SCJ
UKSC 2009/0054, [2010] UKSC 31, [2010] WLR (D) 174, [2010] 3 WLR 386, [2011] 1 AC 596
Bailii Summary, SC Summary, SC, Bailii, WLRD
Convention relating to the Status of Refugees
England and Wales
Citing:
See Also – J v Secretary of State for the Home Department CA 26-Jul-2006
(Iran) ‘Does it amount to persecution according to these broad tests if the clandestine character of the homosexual activity which there has been in the past and will be on return in the future is itself the product of fear engendered by . .
Appeal From – HJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v Same CA 10-Mar-2009
Each applicant had had his appeal for asylum rejected. They had said that they were practising homosexuals, and that they would face persecution if returned home.
Held: The appeals failed. In each case the social norms of the country of origin . .
Cited – Regina v Immigration Appeal Tribunal and Another ex parte Shah HL 25-Mar-1999
Both applicants, Islam and Shah, citizens of Pakistan, but otherwise unconnected with each other, had suffered violence in Pakistan after being falsely accused them of adultery. Both applicants arrived in the UK and were granted leave to enter as . .
Cited – Secretary of State for the Home Department v K, Fornah v Secretary of State for the Home Department HL 18-Oct-2006
The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group.
Held: The . .
Cited – Horvath v Secretary of State for the Home Department HL 7-Jul-2000
When considering the fear of prosecution in an applicant for asylum, the degree of persecution expected from individuals outside the government was to be assessed in the context also of the attitude of the government of the country to such . .
Cited – Sepet and Bulbil v Secretary of State for the Home Department HL 20-Mar-2003
The appellants sought asylum. They were Kurdish pacifists, and claimed that they would be forced into the armed forces on pain of imprisonment if they were returned to Turkey.
Held: The concept of ‘persecution’ was central. It is necessary to . .
Cited – Appellant S395/2002 v Minister for Immigration and Multicultural Affairs 9-Dec-2003
(High Court of Australia) McHugh and Kirby JJ said: ‘Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. . .
Cited – Januzi v Secretary of State for the Home Department and others HL 15-Feb-2006
The claimants sought to challenge the refusals of asylum in each case based upon the possibility of internal relocation. They said that such internal relocation would place them in areas where they could not be expected to live without undue . .
Cited by:
Cited – Medical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
Applied – RT (Zimbabwe) and Others v Secretary of State for The Home Department SC 25-Jul-2012
The claimants said it would be wrong to return them to Zimbabwe where they would be able to evade persecution only by pretending to a loyalty to, and enthusiasm for the current regime.
Held: The Secretary of State’s appeals failed. The HJ . .
Cited – RT (Zimbabwe) and Others v Secretary of State for The Home Department CA 18-Nov-2010
The apellants had sought asylum from Zimbabwe. They appealed against rejection of their claims, saying that it was wrong to require them to return to a place where hey would have to dissemble as to their political beliefs.
Held: The appeals . .
Cited – Brown (Jamaica), Regina (on The Applications of) v Secretary of State for The Home Department SC 4-Mar-2015
B, an homosexual immigrant for Jamaica, resisted his return, saying that he would be prosecuted. The Secretary of State now appealed against a finding that his inclusion of Jamaica within the statutory list of safe countries for return was not . .
Lists of cited by and citing cases may be incomplete.
Immigration, Human Rights, Discrimination
Updated: 02 November 2021; Ref: scu.420385