IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT NO. HX/44557/2002]
B e f o r e :
LORD JUSTICE MAURICE KAY
SIR MARTIN NOURSE
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|SECRETARY OF STATE FOR THE HOME DEPARTMENT||DEFENDANT/RESPONDENT|
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MS J COLLIER (instructed by Treasury Solicitors, LONDON WC2B 4TS) appeared on behalf of the Respondent.
Crown Copyright ©
"There is no single decision … which answers this straightforward question 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 discriminatory legislation or policing which itself violates the individual's human rights?"
The findings of the AIT
"19. We find that the appellant is a practising homosexual in the United Kingdom, that he discreetly practised homosexuality in Iran and that he has an established relationship with Mr [A] in the United Kingdom. We find that all of the claimed events of 28 November 2001 are a fabrication, that the appellant was never detained by the authorities in Iran on account of his homosexuality, that his account of his escape from custody is totally untrue and that he was of no adverse interest to the authorities in Iran at the time that he left his country, or at the present time. We reject the appellant's evidence … that the authorities have shown ongoing interest in him since he left Iran. We find that the appellant could be removed to Iran, without such removal involving a real risk of persecution or treatment contrary to Article 3 of the ECHR …
"38. … we accept that the appellant has a long-standing and ongoing homosexual relationship with Mr [A] and we accept the veracity of both of the appellants' witnesses evidence, insofar as that evidence relates to the relationship between the appellant and Mr [A] …
"41. We accept that the appellant undertook military service and his evidence is that he was involved in homosexual relationships during that period of time, without any adverse results. We accept that evidence as true. We find as a fact that he subsequently participated in discreet homosexual activity without any adverse results. His evidence was that his relationship with [his partner in Iran] was conducted discreetly, which we accept. Applying the principles and conclusions set out in the IAT's Country Guidance determination in RM and BB, and having referred also to the subsequent AIT reported determination in AT, we conclude that the appellant's removal to Iran would not result in a real risk of persecution, or harm contrary to Article 3 of the ECHR … We find that the appellant's homosexual practices in Iran have never been such that his own homosexual activity is reasonably likely to result in adverse attention from the authorities in Iran … "
Country guidance on the position of homosexuals in Iran
"If a complaint is brought to the authorities then we are satisfied that they would act upon that to the extent that they would arrest the claimed offenders and question them and thereafter there is a real risk that either on the basis of confessions or knowledge of the judge which might arise from such matters as previous history or medical evidence or the evidence of the person who claimed to have observed the homosexual acts, that they would be subjected to significant prison sentences and/or lashing."
The legal principles
"well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion".
"In some countries homosexuals are subjected to severe punishments including the death sentence. In Re GJ  1 NLR 387 the New Zealand Refugee Status Authority faced this question. Drawing on the case law and practice in Germany, the Netherlands, Sweden, Denmark, Canada, Australia and the USA, the Refugee Status Authority concluded in an impressive judgment that depending on the evidence homosexuals are capable of constituting a particular social group within the meaning of Article 1A(2) … This view is consistent with the language and purpose of Article 1A(2). Subject to the qualification that everything depends on the state of the evidence in regard to the position of homosexuals in a particular country I would in principle accept the reasoning in Re GJ as correct."
"Persecution covers many forms of harm … 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. But 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."
And at paragraph 43:
"The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. 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. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly".
"80. The question to be considered in assessing whether the applicant's fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences?
"81. It is important to recognise the breadth of the assertion that is made when, as in the present case, those seeking protection allege fear of persecution for reasons of membership of a social group identified in terms of sexual identity … Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct. It may, and often will, extend to many aspects of human relationships and activity. That two individuals engage in sexual acts in private (and in that sense 'discreetly') may say nothing about how those individuals would choose to live other aspects of their lives that are related to, or informed by, their sexuality.
"82. Saying that an applicant for protection lived 'discreetly' in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker 'expects' that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is 'expected' to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do."
"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."
The application of the principles to the present case
1) Having concluded that the appellant had conducted his previous relationship with a man in Iran discreetly and had thereby avoided the attention of the authorities, the AIT fell into legal error by not considering why the appellant had acted "discreetly"? This is an essential enquiry in the light of the authorities to which I have referred.
2) The same error is repeated in relation to the position that would arise on return to Iran.
3) The AIT failed to have regard to what the appellant had said in his second witness statement which contained these passages:
"I am no longer living in fear as I was when I was living in Iran … In Iran I was forced to hide my relationship and I was not able to live openly with my partner. I want an average life and would like to be involved in a loving relationship. I do not believe that I should have to go without having a normal life and a partner whom I can be with openly and live in a society where I am accepted. This is what I would be forced to do without if I were forced to return to Iran."
The words "fear" and "forced" are particularly important.
4) The AIT failed to evaluate that as evidence of persecution against the backdrop of the Country Guidance case of RM and BB and the finding that where homosexuals are apprehended there is a real risk of at least "significant prison sentences and/or lashing". Mr Blake does not submit that, upon a proper application of the law, the AIT could only have allowed the appeal. He submits that there was evidence which, if properly considered, could have resulted in a successful appeal. On this basis he invites a remittal.
Order: Appeal allowed.