COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL
MR JUSTICE HODGE, PRESIDENT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
SIR PAUL KENNEDY
|- and -
|Secretary of State for the Home Department
|- and -
|Secretary of State for the Home Department
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Jane Collier (instructed by The Treasury Solicitors) for the Respondent
Raza Husain and Mr S Chelvan (instructed by Messrs Wilson & Co) for the Second Appellant
Paul Greatorex (instructed by The Treasury Solicitors) for the Respondent
Hearing dates : 4 & 5 February 2009
Crown Copyright ©
Lord Justice Pill :
"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."
They added, at paragraph 43, that the well-founded fear of persecution may be 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 which constitutes the persecutory conduct". (Emphasis in original)
"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."
"In the present circumstances, the further reconsideration should be by a differently constituted Tribunal. It will have to address questions that were not considered on the last occasion, including the reason why the appellant opted for "discretion" before his departure from Iran and, by implication, would do so again on return. It will have to ask itself whether "discretion" is something that the appellant can reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to "matters following from, and relevant to, sexual identity" in the wider sense recognised by the High Court of Australia (see the judgment of Gummer and Hayne JJ at paragraph 83). This requires consideration of the fact that homosexuals living in a stable relationship will wish, as this appellant says, to live openly with each other and the "discretion" which they may feel constrained to exercise as the price to pay for the avoidance of condign punishment will require suppression in respect of many aspects of life that "related to or informed by their sexuality" (Ibid, paragraph 81). This is not simply generalisation; it is dealt with in the appellant's evidence."
"I would only venture to add one point. The question that will be before the AIT on remission will be whether the applicant could reasonably be expected to tolerate whatever circumstances are likely to arise were he to return to Iran. The applicant may have to abandon part of his sexual identity, as referred to in the judgment of Gummow and Hayne JJ in S, in circumstances where failure to do that exposes him to the extreme danger that is set out in the country guidance case of RN and BB. The Tribunal may wish to consider whether the combination of those two circumstances has an effect on their decision as to whether the applicant can be expected to tolerate the situation he may find himself in when he returns to Iran."
HJ: The Tribunal decision
"31. In evidence to us we were told by the appellant that his mother and brother knew he was gay and he did not have to pretend to his mother and brother. He confirmed his relationship with "A" had lasted nine months and he told a few friends about this so he was open with them. He spent many nights with "A" and a lot of time with him. They went out in public, but did not do anything together. They went to city gardens and parks. He agreed it was possible to have gay relationships whilst he hid his sexuality from all but a few people. He had told people in Iran in response to questions that he did not want to get married and he agreed he did not have to answer any questions that were put to him about why he was not married from friends and colleagues, but he only told a handful of people and his family.
32. The appellant agreed he was not living a lie with his family and a handful of friends who knew he was gay. He agreed he was not completely isolated because of "A" and his friends and the man at the market. He agreed he was able to admit to a handful of people that he wanted to live with and have a life with a man. He got to know people with whom he might have gay relationships through work and they exchanged confidences once they got to know each other. He did not go to an internet chatroom or to the park, as he said the latter would "take your life away". He denied he could now go to Iran and form relationships with people he could meet in the ordinary course of life. He described that as "extremely hard now".
33. It was put to him that he was not constantly scared and afraid in Iran, but he said that he was. He said that he did not know that the penalties would be so harsh. He accepted that he did not leave Iran until he was thirty one. When asked why he did not try to leave earlier, he said that nothing had happened to him. He was asked if he had been able to tolerate life and he said that it was extremely hard. He agreed he had been able to discuss his sexual identity with "A" and with two or three friends. They could host barbeques in a private garden. It was put to him that he could go back to Iran but he did not wish to do so. He replied that he could not live openly in Iran. He said it was not possible to go back as "everybody knows about it now", referring to his homosexuality and apparently relying on the story that had been disbelieved i.e. that he had come to the attention of the authorities."
"However, we take from the way in which the Court of Appeal has formulated its questions that in examining how such a person will behave we have to examine whether that will entail for him having to live a life which he cannot reasonably be expected to tolerate because to do so would entail suppression of many aspects of his sexual identity."
The Tribunal noted, at paragraph 40, that "from the age of 15 to the age of 31 when he left Iran [the appellant] identified himself as homosexual". They referred to his friendships with homosexuals and to the knowledge his mother, brother and some friends had of his homosexuality. Some social life was open to him.
"It was clearly possible for the appellant to live in Iran, from the age of fifteen to his leaving at the age of thirty one, as a gay man without discovery or adverse consequences. In our judgment the appellant was able to conduct his homosexual activities in Iran in the way that he wanted to and without any serious detriment to his own private and social life. The evidence does not indicate that he experienced the constraints Iranian society placed on homosexual activity as oppressive or as constraints that he could not reasonably be expected to tolerate."
"His life here is the only one he wants and the only one that is acceptable or tolerable to him."
The Tribunal considered, at paragraph 44, the appellant's position on any return to Iran:
"We are satisfied that as a matter of fact he would behave discreetly. On the evidence he was able to conduct his homosexual activities in Iran without serious detriment to his private life and without that causing him to suppress many aspects of his sexual identity. Whilst he has conducted his homosexual activities in the UK less discreetly, we are not persuaded that his adaptation back to life in Iran would be something he could not reasonably be expected to tolerate. We consider that as a matter of fact he would behave in similar fashion as he did before he left Iran and that in doing so he would, as before, be able to seek out homosexual relationships through work or friends without real risk to his safety or serious detriment to his personal identity and without this involving for him suppression of many aspects of his sexual identity."
"The evidence of suppression of aspects of the appellant's life in Iran in comparison to his life in the UK is limited. In Iran he could not go to gay clubs as he can in the UK. Public displays of affection to a homosexual partner may lead to a risk of being reported to the authorities which is not so in the UK. The appellant's ability to be open about his sexuality as has been the case in the UK was not possible for him throughout his thirteen adult years in Iran and three years as a minor. But he did have friends who knew of his sexuality, he was able to socialise with them and he was able to tell his family. If a wish to avoid persecution was ever a reason why he acted discreetly in Iran it was not, on the evidence, the sole or main reason. It is difficult to see on the evidence that a return to that way of living can properly be characterised as likely to result in an abandonment of the appellant's sexual identity. To live as the appellant did for thirteen years did not expose him to danger. The appellant may well live in fear on return to Iran now he is aware of the penalties which might be arbitrarily imposed were he to be discovered. The question as to whether such fear reaches so substantial a level of seriousness as to require international protection has to be considered objectively and in the light of the evidence as we have found it to be. Homosexuals may wish to, but cannot, live openly in Iran as is the case in many countries. The conclusions in RM and BB as to risk remain the same. This appellant was able to live in Iran during his adult life until he left in a way which meant he was able to express his sexuality albeit in a more limited way than he can do elsewhere. In particular we have regard to the fact that the evidence as found shows that the appellant's sexuality was not known to the authorities when he left Iran. Objectively we cannot see that the level of seriousness required for international protection is in this case reached."
"The circumstances to be tolerated are the inability to live openly as a gay man as the appellant can in the UK. The part of sexuality to be abandoned is on the evidence only the ability to live openly as a gay man in the same way the appellant can do elsewhere. To live a private life discreetly will not cause significant detriment to his right to respect for private life, nor will it involve suppression of many aspects of his sexual identity. Enforcement of the law against homosexuality in Iran is arbitrary but the evidence does not show a real risk of discovery of, or adverse action against, homosexuals in Iran who conduct their homosexual activities discreetly. The position has not deteriorated since RM and BB. On the evidence we find the appellant can reasonably be expected to tolerate the position on any return."
"He [the applicant] would simply have to continue to lie and conceal his origins, while simultaneously living with the risk that the truth would be suspected or discovered, and the fear of the consequent unpleasantness, fear based on the harsh realities of what he had seen his parents endure."
He added, at paragraph 37:
"The true extent of the consequent problems, and his ability to respond to them, were not examined whether they would arise from the fact that he would have to be a party to the long-term deliberate concealment of the truth about his ethnicity, but also from the understandable, continuing fear that the truth would be discovered."
On remittal, the Tribunal found that the applicant was entitled to refugee status.
"The appellant does not simply abandon his sexual identity if he is required to carry on his sexual activities with the same sex partner with some degree of discretion. All persons, of whatever sex, involved in intimate relationships conduct themselves with some care and discretion. It is clear from the appellant's own evidence that he conducted his own sexual relationship with M with some care and discretion as he was fully aware of the likely result of such activity coming to the attention of the Iranian authorities. It is therefore not reasonably likely that he would be careless or indiscreet regarding his sexual activities, if they resumed upon his return to Iran."
". . . However, it is clear from his findings that for a number of years the Appellant carried on an active sexual relationship with A. The reason he left Iran was not stated by him to be his intolerable situation as a clandestine homosexual, but his fear of arrest and punishment because of the detection of his relationship and the arrest of A. He was disbelieved on the basis for his alleged fear. It was for him to establish that he could not reasonably be expected to tolerate his condition if he were returned to Iran. He did not establish, or even assert, facts on which such a finding could be based. Mr Nicholson stressed his situation as a young man living with his family, unable to carry on his sexual activity at home and having to resort to public baths. However, there is no finding that on return he would resume his relationship with A, and no finding that if he did they could not resume their sexual life in the same manner as before. Mr Nicholson's contentions involved speculation for which the groundwork had not been established before the Immigration Judge."
"Having to live a lie every day of my life and having to live with the fear of what would happen to me if I was caught was an intolerable way for me to live in Iran."
Conclusion in HJ
"The Convention is not there to safeguard or protect potentially affected persons from having to live in regimes where purists' liberal values are less respected, even much less respected, than they are here. It is there to secure international protection to the extent agreed by the contracting states. While, as I certainly accept, the sense to be accorded to persecution might shift and stretch as the International consensus develops, the Convention's guarantees remain limited by the two conditions I have described."
Laws LJ's second condition, which he had set out at paragraph 27, was that "the violation, or rather prospective or apprehended violation, must attain a substantial level of seriousness if it is to amount to persecution". That echoes Lord Bingham's finding that persecution is a "strong word" requiring a high threshold (Sepet and Bulbul) and requiring a degree of "intensity" (S395/2002,  HCA 71). Citing other authorities, Buxton LJ, in RG (Colombia) v Secretary of State  EWCA Civ 57, referred, at paragraph 16, to the high level of distress that must be reached before a denial of freedom can be said to be persecutory.
"But the approach taken by the Human Rights Committee in Toonen has left open the argument that in a similar case involving the domestic law of a Muslim state that applies Islamic law, consideration must be given to the public sensibility and morality obtaining within Muslim societies, conceding to that state a margin of appreciation."
"The choice is accordingly not an all-or-nothing one between maintaining a Spartan normality, at the one extreme, or entering what has been called the post-modern supermarket of satisfactions at the other. Respect for personal privacy does not require disrespect for social standards. The law may continue to proscribe what is acceptable and what is unacceptable even in relation to sexual expression and even in the sanctum of the home, and may, within justifiable limits, penalise what is harmful and regulate what is offensive . . ."
As the Tribunal stated in XY, a degree of discretion can be required in all sexual relationships, heterosexual as well as homosexual.
"The appellant himself said that he had been able to carry on two homosexual relationships within his home country and it appears that the second of these was carried on for a period of three years and only ended after the appellant and his partner were seen kissing in the garden by a neighbour."
They posed the question whether the appellant would be at real risk on return (paragraph 21). They summarised in-country material. They stated, at paragraph 19, that they did not consider that two men kissing in a garden (paragraph 7 above) could necessarily be described as discreet. They concluded, at paragraph 25:
"It is the finding of the Tribunal that the appellant's case taken as a whole shows that homosexual relationships can be carried on in Cameroon, notwithstanding that a certain amount of discretion may be required. It might be said that the pursuit of a homosexual lifestyle is in some ways similar to the pursuit of a political activity or even the pursuit of proselytes to a particular religious faith. In short, should someone be expected to be discreet about a matter of this kind? The Council of Europe, European Court of Human Rights decision in the case of F was placed before the Tribunal. This indicated that homosexuality was a common phenomenon in Iran and was tolerated as long as it did not disturb public order and remained in private. The Adjudicator concluded that it was extremely unlikely that homosexual activity conducted in private would result in ill-treatment or harassment. The court in the case of F said that the materials examined by the domestic authorities and submitted by the applicant in their case did not disclose a situation of active prosecution by the authorities of adults involved in consensual and private homosexual relationships. It was the view of the Tribunal that in some respects the position in Cameroon was not dissimilar from the position in Iran and it was the view of the Tribunal that there might be difficulties for someone openly professing his homosexuality. A homosexual relationship carried on in private, however, was considered by the Tribunal not to create a reasonable degree of likelihood of persecution."
The Tribunal also found that HT would be able to relocate in Cameroon.
"The appellant had had two homosexual relationships over a period of several years and had simply been indiscreet on one occasion when he was observed kissing in public. He had been discreet prior to this incident. It was not unreasonable to expect him to be discreet on return."
The submission on behalf of HT was also recorded:
"In the case of J the appellant had lived discreetly in the past. There was every likelihood that the appellant would come to the attention of the authorities in the future."
"In my view the panel was entitled to conclude in the light of the material before it that on the facts the appellant could properly be returned to Cameroon and that the incident in the garden was a one-off incident. The appellant had on the whole been discreet and it does not appear that the requirement to be careful in future would breach his rights to practise his orientation in all the circumstances of this case. As I have observed, questions of this nature are very much questions of fact and I do not find that the panel misdirected itself. Further the question of relocation was not the subject of challenge."
Conclusion in HT
Lord Justice Keene :
Sir Paul Kennedy :