HJ (Iran)  UKSC 31 was a landmark judgment. The Supreme Court held that asylum should not be refused to a homosexual person on the basis that it could be considered reasonably tolerable that the asylum-seeker would have to hide their true sexuality on return to their home country in order to avoid persecution. The decision was criticised by the media for upholding the right of asylum on the basis of sexual orientation. It raised eyebrows in conservative circles. In these proceedings, Lord Rodger’s guidance came under attack for incompatibility with Directive 2004/83/EC (the Qualification Directive) as interpreted by the CJEU in Bundesrepublik Deutschland v Y and Z (Joined Cases C-71/11 and C-99/11) and Minister voor Immigratie en Asiel v X, Y and Z (Joined Cases C-199/12 to C-201/12) and their subsequent domestic application in MSM (Journalists; Political Opinion; Risk) Somalia  UKUT 413 (IAC). In this case an Albanian appellant unsuccessfully argued that guidance imparted in HJ (Iran) was at variance with the Qualification Directive because of differentiating between someone whose modification of behaviour is “forced” by reason of his fear of persecution as opposed to someone whose modification of behaviour is “voluntary” with the result that the latter variety of person should not be granted refugee status.
Importantly, the home office conceded that the tribunals erred in relying upon MK (Lesbians) Albania CG  UKAIT 36 as a country guidance case. LC alleged that Lord Rodger lost his way in HJ (Iran) because in light of subsequent CJEU authorities the true position is that where a gay person would conceal his sexual orientation on return then he is a refugee under the Qualification Directive irrespective of why he might hide his sexual orientation. Beatson, David Richards and Hickinbottom LJJ disagreed and unanimously dismissed his appeal. LC’s father discovered his relationship with an adolescent man and expelled him from the family home in Tirana. He entered the UK hidden in a lorry in 2012 (aged 16) and sought asylum claiming that he faced persecution in Albania because he was gay. His claim was refused and applying the HJ (Iran) guidance the First-tier Tribunal dismissed the appeal because the judge found that LC would not live openly as a gay man upon return to Albania but this would not be owing to fear of persecution. Thereafter the Upper Tribunal found no error of law and also dismissed the appeal.
The Court of Appeal
Even though this case concerned a gay man, the principles engaged in these proceedings are equally applicable to the wider LGBTI community and to all asylum claims based upon sexual orientation. Beatson, David Richards and Hickinbottom LJJ refused LC’s application for permission to appeal to the Supreme Court.
(i) HJ (Iran) Guidance
The guidance requires that where the decision-maker or appellate tribunal find that the asylum-seeker was gay and that openly gay individuals had a well-founded fear of persecution in their country of origin, an examination is required whether the asylum-seeker would be open in respect of his sexual orientation upon his return to his homophobic homeland. In the event he would be open upon return, he is a refugee and the claim had to be allowed. If the person would not be open, and fear of persecution is a material reason for his living discreetly, then he is a refugee. If the fear of persecution is not a material reason for living discreetly, then the claim should be refused.
LC argued that in light of Y and Z and X, Y and Z in MSM the Upper Tribunal found that Lord Rodger’s guidance should no longer be followed in relation to the openness of the applicant’s sexual orientation on his return and the need to live discreetly upon return because of the fear of persecution. Intervening in these proceedings, by contrast, the UNHCR did not seek to impugn Lord Rodger’s legal analysis but instead stressed that the tribunal’s findings were wrong.
However, the Court of Appeal held that the Upper Tribunal’s non-binding analysis in MSM exposed no gap whatsoever between HJ (Iran) and the CJEU authorities. McCloskey J found Y and Z to be “entirely consistent” with HJ (Iran).
Observing alignment between the Supreme Court and CJEU authorities, he unambiguously stated that any issue was moot because the appellant succeeded either way. In Hickinbottom LJ’s view, the tribunal identified a possible issue and left it open. Thus, MSM was of no help to LC.
In Y and Z, which concerned Ahmadis from Pakistan (see here), the CJEU said nothing about a situation where an asylum-seeker would not behave in a way that would result in persecution upon return as a result of something other than the fear of persecution. X, Y and Z concerned three gay men (see here) from Sierra Leone, Uganda and Senegal who claimed asylum in the Netherlands. The CJEU was of the view that under the Qualification Directive refugee status could not be refused to a person who modified his behaviour to conceal that he was gay, but only where that concealment was in order to avoid persecution. Both cases rejected any notion of “reasonable tolerability” and neither ruling helped LC because they were not inconsistent with HJ (Iran).
(ii) Qualification Directive
Lord Rodger’s formula was attacked on the ground that his Lordship failed to refer to the Qualification Directive at all during the course of his judgment and he only once referred to the transposing Refugee or Person in Need of International Protection (Qualification) Regulations 2006. His fleeting reference was to regulation 6(1)(e) whereby a group based on a common characteristic of sexual orientation may be a particular social group that is in need of international protection. Nothing in the judgment pointed to the fact that the Directive was in Lord Rodger’s mind when he articulated his guidance.
For LC the argument was strengthened by the fact that only three other references to either the Directive or the 2006 Regulations were made in Lord Hope’s judgment none of which suggest that the former Deputy President of the Supreme Court had the Directive in mind when formulating his guidance either. Lords Walker, Collins and Dyson’s individual judgments were also silent on the Directive and the 2006 Regulations. Despite these complaints, Hickinbottom LJ unhesitatingly held that:
48. In my view, the proposition that, when drafting the guidance in , Lord Rodger – and the other members of the court, who agreed with him or, in the case of Lord Hope, put the same substantive guidance into his own words – simply failed to have in mind the requirements of the Qualification Directive is not only inherently unlikely and beyond even bold, it lacks any foundation.
The Court of Appeal remarked that the guidance “was not given by Lord Rodger in a legal vacuum” and the judgment had been imparted on the basis of the analysis in of the scope of the word refugee. It was equally clear from Lord Hope’s judgment that the core issue at stake had been the test to be applied when examining the question whether a gay asylum-seeker was a “refugee”. The justices were careful to explain that the context of their analysis fell within the meaning of the Convention Relating to the Status of Refugees 1951 which defined “refugee” for international purposes and the definition was symmetric – “materially the same” – with the definition under the Qualification Directive. It was inconceivable that the justices failed to fully appreciate the true nature of the situation and so:
50. The proposition that Lord Rodger’s guidance was given per incuriam thus, in my judgment, has no arguable force.
So the decision in HJ (Iran) was harmonious with the CJEU’s decisions in Y and Z and X, Y and Z and this conclusion was fortified by the fact that the Supreme Court’s decision was recorded in Advocate General Bot’s opinion in Y and Z without any adverse comment. The Court of Appeal was bound by HJ (Iran) and it revealed no contradictions with the CJEU’s subsequent rulings which could not be regarded as turning on the fourth limb of Lord Rodger’s test, namely that upon return, a person would behave in such a way as to conceal the relevant characteristic, not in order to avoid persecution, but for unrelated reasons.
Criticism mounted on the basis of “the silence fallacy” in sexual orientation cases and reliance placed in SW (Lesbians: HJ and HT Applied) Jamaica CG  UKUT 251 (IAC) and Hysi  EWCA Civ 711 did not deprecate Lord Rodger’s analysis. In the latter case, it was held that it would be unrealistic for the appellant to lie about the relevant characteristic in that case, i.e. his ethnicity. To categorise Albania as country where it is impossible for gay men to avoid being perceived as gay without engaging in some form of positive behaviour required some evidential basis. No such basis was discernable and in SW (Jamaica) the tribunal found that “those who are naturally discreet for reasons other than fear [of persecution] do not require international protection.” Hickinbottom LJ held that:
53. In my judgment, the legal analysis of Lord Rodger, which was the foundation of his guidance, is fully in line with the Geneva Convention and the Qualification Directive.
His Lordship reasoned that the Supreme Court’s overall analysis was principled and clearly right because as required by the Convention and the Directive it distinguished between individuals who, if returned, would conceal their orientation for fear of persecution and individuals would conceal that aspect of their identity for entirely unrelated reasons. Therefore, in LC’s case, the tribunal had not erred in applying the guidance.
(iii) Lord Justice Beatson
His Lordship made two observations about the numerous ways LC and UNHCR’s submissions went beyond the scope of the limited permission to appeal granted. (These excesses could have occurred because amended grounds had been neither formulated nor lodged.) He said that when limited permission was granted on grounds not contained in the notice of appeal, it was important to formulate and lodge such grounds. It was for the appellant to achieve that prior to the hearing rather than leaving the court, respondent and any interveners to decipher the exact state of affairs from the reasons given by the judge granting permission.
Similarly, the intervener proceeded to make submissions that were irrelevant to any ground of appeal before the court and Beatson LJ explained that in order to keep up the incentive to permit valuable intervention by organisations like the UNHCR interveners needed to refrain from making submissions beyond the scope of an appeal without following proper procedure. The outlined approach would aid the court to ascertain whether it has jurisdiction to consider a matter beyond the scope of the permission granted and, if so, whether it is appropriate to do so in the particular circumstances of the case.
The judgments given by Lord Rodger of Earlsferry (1944-2011) have been applauded for their “great learning, luminous clarity and human understanding”. He was a globally renowned figure in the law. Outside the courtroom his “chief interest in life was other people” and in HJ (Iran) his Lordship exhorted everyone that “the small tokens and gestures of affection” that heterosexuals take “for granted” must not be denied to members of the LGBTI community.
Last year’s Brexit vote converted the residence rights of EU nationals in the UK into bargaining chips. The 2017 General Election has potentially transformed LGBTI rights into bargaining chips because Theresa May and the Conservative Party have struck a dirty £1 billion deal with the DUP in order to cling on to power. Lord Rodger served as Lord Advocate in 1992 under the Conservative government. Such an unholy pact would undoubtedly make his Lordship turn in his grave.