COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE JACOB
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Mr Steven Kovats (instructed by the Treasury Solicitor) for the respondent
Crown Copyright ©
Lord Justice Buxton :
"In concluding that the appellant would not be at risk upon return to Zimbabwe because no-one except his partner and one gay friend would know he was a homosexual, we have taken account of his own evidence regarding his past history as a homosexual. He described realising he was gay when he was 21 and then embarking on his first gay relationship when he was 23, with his current partner. He said that they did not visit gay places. He said the couple used to meet in the town or at work. He said they conducted their relationship 'secretly, so it was not known'. This history is relevant because it demonstrates in our view that the appellant's chosen form of homosexual conduct did not and does not involve overt expression or the frequenting of gay bars or other collective homosexual settings, activities which may well increase the risk an appellant would run of hostile reaction from the police or public. This evidence adds to our reasons for concluding that in reality the appellant and his partner had been able to conduct their gay relationship without serious difficulties."
The present appeal
Persecution as a discriminatory denial of core human rights
"persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community."
That statement, with reference to previous cases in their Lordships' House, is most conveniently to be found in the speech of Lord Steyn in R(Ullah) v Special Adjudicator  2 AC 323. There, however, Lord Steyn was setting out the kind of conduct that might count as persecution. He was not addressing the nature and extent of such conduct that has to be established in any particular case before that case becomes in fact one of persecution.
"is a strong word. Its dictionary definitions…accord with popular usage: 'the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to repression or extirpation of it".
That approach accords, as Lord Bingham said, with Professor Hathaway's definition in terms of "sustained or systemic failure" of state protection. Whatever are the limits of this analysis, they clearly do not embrace every interference, however minor, with core human rights.
"If the right proposed to be exercised by the refugee claimant in the country of origin is at the core of the relevant entitlement and serious harm is threatened, it would be contrary to the language, context, object and purpose of the Refugee Convention to require the refugee to forfeit or forego that right and to be denied refugee status on that basis that he or she could engage in self-denial or discretion on return to the country of origin" (emphasis supplied)
The requirement is, in line with Sepet, the threat of serious harm. Simple deprivation of rights is not enough to constitute persecution in its international meaning.
A requirement of self-denial?
"persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps-reasonable or otherwise-to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a 'particular social group' if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution… In many-perhaps the majority of-cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct." (emphasis in the original)
"Whatever form the harm takes, it will constitute persecution only if, by reason if its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it"
That no doubt is the level of interference that McHugh and Kirby JJ had in mind when speaking of threats and menaces in the passage cited in paragraph 14 above.
"in all asylum cases there is ultimately a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason….the critical question: if returned, would the asylum-seeker in fact act in the way he says he would and thereby suffer persecution? If he would, then, however, unreasonable he might be thought for refusing to accept the necessary restraint on his liberties, in my judgment he would be entitled to asylum"
It necessarily follows from that analysis that a person cannot be refused asylum on the basis that he could avoid otherwise persecutory conduct by modifying the behaviour that he would otherwise engage in, at least if that modification was sufficiently significant in itself to place him in a situation of persecution. If the IAT in our case refused Mr Z asylum on the basis that he was required to avoid persecution they did not respect the jurisprudence of Ahmed.
Jacob LJ :
Peter Gibson LJ:
ORDER: Appeal dismissed with costs; leave to appeal to House of Lords refused.