The Nature of the Case
This decision of the United Kingdom Supreme Court (UKSC) can be viewed as a spirited effort by its judges to harmonise and converge Western jurisprudence arising out of the UN Convention Relating to the Status of Refugees 1951 as applied by its 1967 Protocol (“the Convention”). The judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department  UKSC 31 aims to fill the lacuna which existed in relation to properly interpreting international jurisprudence to forge domestic guidance in how a UK court or tribunal is to proceed with considering a homosexual person’s claim for asylum.
In making their speeches their Lordships extracted large chunks of judgments from Australia, New Zealand (which has the most charitable test for gay asylum seekers – see Lord Hope at ), Canada, and the US. Although Lord Hope (at ) stated that there is no universally accepted international approach in answering the question whether or not a homosexual person could be reasonably expected to tolerate their persecution by acting discreetly, the Court did align its opinion with the common conclusions arrived at in the common law world.
The Court remained unsatisfied with the findings of the Court of Appeal because of its failure to accurately consider the international jurisprudence which it had relied upon to arrive at its conclusion that even if a well-founded fear of persecution existed on the basis of the membership of the homosexual community, an asylum seeker from a country with strict criminal penalties for homosexuality could be returned to live safely, by behaving “discreetly”, under the protection of that very country. The countries in question were the Islamic Republic of Iran and the Republic of Cameroon. Under Iranian criminal law sodomy carries the death penalty and in Cameroon a potential sentence in of 5 years’ imprisonment can be awarded for such behaviour.
The germane facts of this case are the HJ was an Iranian national who was 40 years old and HT was a Cameroonian national who was 36 years old. Both men were practising homosexuals in the their home countries. HJ claimed asylum on arrival in the UK in 2001 and HT claimed asylum when he was arrested in Gatwick airport in 2007. Both men engaged in sexual relationships while resident in the UK and both relied on the Convention for protection as refugees.
As Lord Hope explained the Court of Appeal had made a fundamental error in directing the Asylum and Immigration Tribunal to refuse an application for asylum when it can be reasonably expected of the applicant to modify their behaviour and act discretely so as to avoid being persecuted even where the applicant was unwilling or unable to introduce this “discretion” in their daily life (at ). In the opinion of the Supreme Court the High Court of Australia (the apex court in that jurisdiction) had dismissed this submission and the Court of Appeal had misunderstood the point that the High Court had made. The other conflict which the Court of Appeal had stumbled into was Simon Brown LJ’s prescient observation in Ahmed (Iftikhar) v Secretary of State for the Home Department  INLR 1 that no matter how unreasonable a claimant for asylum might seem because of not being able to restrain or adjust his behaviour to avoid persecution, he would be entitled to asylum.
In HT’s case he was kissing his male lover in his garden and through a neighbour’s complaint mob justice descended upon him which culminated in beatings by the police and the mob, threats regarding cutting off his penis, and a cut above his penis resulting from being attacked by persons wielding knives who terrorised him. He was subsequently in hospital for two months. Palpably kissing one’s lover in a private garden is quite discrete.
The Supreme Court applied the rationale espoused by Justice Madgwick in the Federal Court of Australia in Win v Minister for Immigration and Multicultural Affairs (2001) FCA 132 at  which is worth quoting in full (as extracted by Sir John Dyson SJC and set out at  of the judgment):
“[U]pon the approach suggested by counsel for the respondent, Anne Frank, terrified as a Jew and hiding for her life in Nazi-occupied Holland would not be a refugee: if the Tribunal were satisfied that the possibility of her being discovered by the authorities was remote, she would be sent back to live in the attic. It is inconceivable that the framers of the Convention ever did have, or should be imputed to have had, such a result in contemplation.”
In the Attic: Were the Appellants Hiding Like Anne Frank?
In our world diversity, difference, and change are not equally celebrated. Many post-colonial states in Africa and Asia increasingly tend to criminally punish homosexuality. It is also the case that in the democratic Western world those with a “deviant” sexual orientation (i.e. persons who are lesbian, gay, bisexual or transgender – fashionably called “LGBT”) still have a secondary status to straight people. Yet it is very probable that because of the accommodating nature and plurality of Western liberal democracy absolute equality might be achieved one day between rich and poor, black and white, gay and straight, and so on. However, such a utopian conception of Western liberal democracy is not without limitations. For example in America, the self-proclaimed flagship of individual freedom and liberty, it was as late as 2003 that the “sodomy laws” were adjudged to be unconstitutional in Lawrence v. Texas, 539 U.S. 558 (2003). In that case two homosexual men were “discretely” having sex when the Deputy Sheriff entered their apartment with his weapon drawn and arrested them. Relying on Strasbourg’s jurisprudence to countervail the argument submitted that “sodomy was universally condemned in Western civilisation”, Justice Kennedy delivered the majority 6-3 opinion of the US Supreme Court and to the relief of millions of Americans ended his country’s remaining stone-age sodomy laws.
Homophobia is rife in today’s world. Like a cancer it invades individual and collective liberty. President Mugabe of Zimbabwe once stated that homosexuality is an “imported Western disease”. Such sentiments are not new to Africa and many countries such as Uganda are now proposing legislation which will award the death penalty for acts of homosexuality. While the other East African countries of Kenya and Tanzania do not prescribe the death penalty for acts of homosexuality, the former Kenyan President Daniel Arap Moi explained that in his view “homosexuality is against African norms and traditions” and that “Kenya has no room for homosexuals and lesbians”. Equally, President Ahmedinejad of Iran, like some African heads of state, denies that homosexuality, which is “the ugliest human act”, exists in Iran at all. With all certainty the death penalty must be a very persuasive instrument for Iranian homosexuals to simply hide their sexual preference rather than engage in it discretely.
Generally, with the exception of South Africa, governments in the developing world remain inexorable about granting homosexuals any rights at all leave alone the right to free sexual activity or the right to marry. In this regard, the Marxist adage conceiving religion as “the opium of the people” is apt indeed. It is under the shadow of religion that “straights” persecute “gays” in Iran, Cameroon, and beyond. What is most striking is that certain versions of Islam and Christianity, which are by and large engaged in a putative “clash of civilisations”, remain united in achieving the common goal of eradicating sexual difference by promoting judicial murder, persecution and discrimination. In the UKSC Lord Hope (at ) set the tone by opening his speech against the following backdrop:
“The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another.”
Accordingly, for the UKSC, HJ and HT were similar to Anne Frank and expecting them to live in an attic would be unreasonable to say the very least. Returning them to Iran and Cameroon would be untenable because it would result in their persecution.
The Terms of the UN Convention Relating to the Status of Refugees
Article 1A(2) of the Convention states that a person is a refugee if “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country”. Moreover, by article 33(1) Contracting States may not return (“refouler”) the said person to the country of their nationality if they life or freedom are likely to be threatened there.
In the UK by regulation 6(1)(e) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) in deciding whether a person is a refugee or not a particular social group “might include a group based on a common characteristic of sexual orientation”.
Moreover, article 9(1)(a) of EC Council Directive 2004/83 EC (“the Qualification Directive”) sets the standard that persecution must:
“(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights … or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).”
Inevitably like any court making a determination on the Convention the UKSC included Professor J C Hathaway’s seminal definition of persecution according to which persecution is a systemic or sustained deprivation of one of the core entitlements which are recognised by the international community.
The Court’s Findings and Reasoning
A lot was said in this case. The text of the judgment itself is strewn with chunks of extracted judgments from other common law jurisdictions. Their Lordships displayed their exorbitant legal skills by arriving at the same conclusions using different strands of the same argument.
Lord Rodger, with his usual panache, made these observations (at  and  respectively):
“Unless he were minded to swell the ranks of gay martyrs, when faced with a real threat of persecution, the applicant would have no real choice: he would be compelled to act discreetly. Therefore the question is whether an applicant is to be regarded as a refugee for purposes of the Convention in circumstances where the reality is that, if he were returned to his country of nationality, he would have to act discreetly in order to avoid persecution….”
“It is convenient to use a phrase such as “acting” or “behaving” “discreetly”to describe what the applicant would do to avoid persecution. But in truth he could do various things. To take a few examples. At the most extreme, the applicant might live a life of complete celibacy. Alternatively, he might form relationships only within a circle of acquaintances whom he could trust not to reveal to others that he had gay relationships. Or, he might have a gay partner, but never live with him or have him to stay overnight or indulge in any display of affection in public.Or the applicant might have only fleeting anonymous sexual contacts, as a safe opportunity presented itself. The gradations are infinite.”
As stated above this case clarifies a misunderstanding of an Australian case which Pill LJ in the Court of Appeal wrongly applied to dismiss the appellants’ appeals. The Supreme Court formulated a new test for UK Tribunals to follow when considering cases where the applicants were homosexual. The new test to be followed by tribunals is the ratio of this case. The appellants appealed on the grounds that the test applied by the Court of Appeal was not only incompatible with the terms of the Refugee Convention but was also founded upon a misunderstanding of the Australian High Court Case (the apex court in Australia) of Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473. The UKSC unanimously accepted both submissions.
The test followed by the Court of Appeal was the one formulated by Maurice Kay LJ in HJ’s earlier case in the Court of Appeal: J v Secretary of State for the Home Department  Imm AR 73. This test, which was applied by Pill, Keene LJJ and Sir Paul Kennedy suffered from a defective understanding of the intentions of the contracting parties under the Convention. Not only did the test disregard what Simon Brown LJ stated in Ahmed (Iftikhar), it also misunderstood the guidance espoused by McHugh and Kirby JJ in Appellant S395/2002 because in that case the Australian High Court, at , found that:
“In so far as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.”
Lord Hope clarified that original Court of Appeal hearing in J, Maurice Kay LJ relied on paragraph 40 of S395 and did not consider paragraph 50 of the same judgment (as set out above). Paragraph 40 stated:
“Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.”
Lord Hope corrected the misunderstanding by clarifying that the principle to borrow from the Australian jurisdiction is that it would be wrong to expect the applicant for protection to live discretely if the condition is prescriptive of what this person must do. At  Lord Hope explains why the Justices of the Australian High Court included paragraph 40 in their judgment and his objection to the Court of Appeal’s application of it:
“The test of whether the situation he may find himself in on return was one that he could reasonably be expected to tolerate was introduced to address the high threshold that has to be crossed between what does and what does not amount to persecution. But the way the test was expressed in paragraph 16 of J’s case suggests that the applicant will be refused asylum if it would be reasonable to expect him to be discreet even if he is unwilling or unable to do this. That is a fundamental error.”
The New Approach in the United Kingdom
The details of the new test which are to be followed when a tribunal is considering an asylum claim involving homosexuals are set out by Lord Rodger at paragraph 82 of the judgment:
“When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.
If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality.
If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.
If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution – even if he could avoid the risk by living “discreetly”.
If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.
If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e.g., not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.
If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.”
Conclusion: Will Asylum Claims by Homosexuals Increase?
In his speech Lord Hope (at ) remarked that with such extreme laws against sexual expression as a homosexual in many parts of the world it was very likely that an increasing number of homosexuals are claiming asylum in the UK.
It is important to ask ourselves what happened to the appellant in the Australian case of S395 and indeed the UKSC did take those facts in account during its deliberations. In S395 when the case was remitted to the Asylum Review Tribunal by the majority decision of the Australian High Court the Tribunal found that the applicants (both S395 and his co-appellant S396) were in fact not gay after all. Lord Walker and Sir John Dyson SJC (at  and  respectively) discuss the work of Jenni Millbank (From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom (2009) 13 (2-3) IJHR 391-414) who takes the view that in following the judgments of the High Court there has been:
“[A] clear shift away from discretion towards disbelief as the major area of contest in decisions since S395 and S396, with a significant increase in decisions where the applicant’s claim to actually being gay, lesbian, or bisexual is outright rejected”
In the test the UKSC mandated the first evidential hurdle for the applicant is to establish that he is homosexual. If the applicant can establish this fact, demonstrate that his home country persecutes homosexuals and that the applicant would be persecuted for being homosexual and has to live “discreetly” (say for example in celibacy) to save his life then there the chances of a successful asylum claim are quite bright. However, if the applicant can return to their country and live “discreetly” without having to take such action to save his life then the surrogate or substitute protection afforded to him under the Convention would be unavailable to him. It is submitted that with such a stringent legal test only real applications for asylum by homosexuals have a real prospect of success. Equally, it would only be right if the trend reported by Jenni Millbank (extracted above) is not contagious and the UK’s tribunals do not depart from the noble intentions of the Supreme Court by dismissing claims by homosexuals by disbelieving them in the first instance.