England and Wales Court of Appeal (Civil Division) Decisions

		Neutral Citation Number: [2002] EWCA Civ 952
		Case No: C/2001/2766, C/2001/2520, and C/2001/2325

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL


		Royal Courts of Justice Strand, London, WC2A 2LL
		5th July, 2002

B e f o r e :

LORD JUSTICE SCHIEMANN
LORD JUSTICE ROBERT WALKER
and
LORD JUSTICE CARNWATH
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	Secretary of State for the Home Department	Appellant
	- and -
	Z A -and- Secretary of State for the Home Department M -and- Secretary of State for the Home Department	Respondent Appellant Respondent Appellant Respondent

____________________

Robin Tam (instructed by Treasury Solicitor) for the Home Secretary
Nicholas Blake Q.C. and Raza Husain (instructed by Hackney Community Law Centre) for Z
Nicholas Blake Q.C. and Simon Cox (instructed by Hiace Solicitors) for A
Rima Baruah (instructed by Bhogal Lal Solicitors) for M
____________________

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Lord Justice Schiemann :

INTRODUCTION

1. One of the tasks of the Home Secretary is to control immigration into this country. Those who do not satisfy various tests approved by Parliament are in general expelled to their home state. Sometimes their expulsion may, because of the treatment which may await them in the destination State, infringes rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms or in the Convention Relating to the Status of Refugees. These appeals have been listed together because they involve a consideration of the circumstances in which the act of expulsion to such a destination State involves a breach by the Home Secretary of his obligations under the Human Rights Act 1998 (“the Act”) or the Immigration Acts.
2. In time past it has been argued by the U.K., that a state can not be held responsible under the Human Rights Convention (“the Convention”), as opposed to the Refugee Convention, for what happens to a citizen whom it deports to the country of his nationality and who is then badly treated there. The leading case is Soering v U.K.(1989) 11 EHRR 439 where it was sought to extradite Mr Soering to the USA where he would be at risk of being exposed to the death-row phenomenon, as it was called. The U.K. Government argued that to give Article 3 such extra-territorial effect:

(i) would strain the language and the meaning of the word “d ”subjected” in Article 3 because the sending State was not subjecting the individual to prohibited treatment;

(ii) would interfere with the norms of international judicial process by requiring adjudication on the internal affairs of foreign states not parties to the Convention;

(iii) would create difficulties of evaluation and proof in examining alien systems of law and conditions in foreign states;

(iv) would confer a windfall on the criminal who remains untried at large.

3. The European Court of Human Rights (“the E.Ct.H.R.”) rejected these submissions. Having accepted that:

“Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention.”

the Court concluded that:

“These considerations cannot, however, absolve the Contracting Parties from responsibility under Article 3 for all and any foreseeable consequences of extradition suffered outside their jurisdiction.” (paragraph 86)

4. In Soering the Court’s judgement contains the following important passages:

“Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 in time of war or other national emergency. This absolute prohibition on torture and on inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the most fundamental values of the democratic societies making up the Council of Europe.”(paragraph 88)

“What amounts to ‘inhuman or degrading treatment or punishment’ depends on all the circumstances of the case. Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases. (paragraph 89)

“… the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. … In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Conmtracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.” (paragraph 91)

5. This approach has been followed in a long line of cases most recently Bensaid v UK (2001) 33 EHRR 10, paragraph 32. This causal analysis has been adopted by the Canadian Supreme Court in the expulsion case Suresh v Canada (Minister of Citizenship and Immigration) (2002) SCC1, and by the Irish Supreme Court in Finucan v McMahon (1990) 1 INLR 165 (SC).
6. In Ti v United Kingdom [2000] INLR 211 the European Court of Human Rights stated at page 228 A:

“It is … well-established in [the court’s] case-law that the fundamentally important prohibition against torture and inhuman and degrading treatment under Article 3, read in conjunction with Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, imposes an obligation on Contracting States not to expel a person to a country where substantial grounds have been shown for believing that he would face a real risk of being subjected to treatment contrary to Article 3 (see, amongst other authorities, the Ahmed v Austria judgment of 17^th December 1996, [1998] INLR 65, paragraphs 39 – 40).

The Court’s case-law further indicates that the existence of this obligation is not dependant on whether the source of the risk of the treatment stems from factors which involve the responsibility, direct or indirect, of the authorities of the receiving countries. Having regard to the absolute character of the right guaranteed, Article 3 may extend to situations where the danger emanates from persons or groups of persons who are not public officials, or from the consequences to health from the effects of serious illness (see HLR v France judgment of 29^th April 1997, (1997) 26 EHRR 29, paragraph 40, D v United Kingdom judgment of 2^nd May 1997, (1997) 24 EHRR 423 paragraph 49). In any such context, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny.”

7. All this was common ground before us. Section 6 (1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6 undoubtedly prohibits expelling an individual within this jurisdiction to a destination State in circumstances in which there is a real risk that the destination State will subject him to torture or to inhuman or degrading treatment.
8. Each of these immigrants is a homosexual and faces expulsion to Zimbabwe where living the sort of sexual life which he would wish to live has been subjected to various social and statutory inhibitions. The common points underlying these appeals of Z and A are two fold. Does the removal of the relevant appellant to Zimbabwe involve subjecting him to a real risk of torture or to inhuman or degrading treatment or punishment contrary to Article 3? If not, is his expulsion nevertheless still incompatible with a Convention right which he has by virtue of Article 8?
9. Article 3 reads

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 8 reads

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this reight except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

10. Many of the submissions before us have been made at a high level of abstraction. However, we are in a relatively unexplored area of the law. The Strasbourg jurisprudence has not explored the responsibility of an expelling state beyond Article 3 cases but there have been several indications by the Court that it has not ruled out an extension beyond Article 3. The Strasbourg jurisprudence has not considered the responsibility of an expelling State where the treatment to which the immigrant risks being exposed in the destination State involves an inhibition on the expression of his sexuality in a homosexual context. It is thus an area where it is appropriate to move carefully and in the light of the facts of the particular case- see Kacaj v Secretary of State for the Home Department [2002] EWCA Civ 314 paragraphs 13 and 16.

GENERAL CONSIDERATIONS : ARTICLE 3

11. There have been many cases where a breach of Article 3 has been alleged but has not been found although a breach of another Article has been found. Probably because Article 3 does not have a public interest clause such as one finds in Article 8(2) and because it is non-derogable, there has been a series of cases in which the E.Ct.H.R has emphasised the severity of the treatment which is required before an infringement of Article 3 will be found. That type of consideration is there in all immigration cases but is particularly acute in cases, unlike the present ones, where the claimant is an alleged terrorist or constitutes a clear danger to the expelling State. The E.Ct.H.R has recognised this factor in Soering paragraph 89: it appears to suggest that, because of this factor, the standard of what constitutes inhuman or degrading treatment for the purposes of Article 3 must be set at a high level.
12. As the E.Ct.H.R. put it in Smith & Grady v UK (1999) 29 EHRR 493 paragraph 122:

“...while accepting that the [Ministry of Defence’s] policy [in relation to homosexuals] together with the investigation and discharge which ensued were undoubtedly distressing and humiliating for each of the applicants, the Court does not consider, having regard to all the circumstances of the case, that the treatment reached the minimum level of severity which would bring it within the scope of Article 3”.

13. In Bensaid the Court held that, on the facts of that case, the removal to Algeria of a schizophrenic suffering from a psychotic illness would not violate Article 3. The applicant also alleged that removal would unjustifiably interfere with his right to respect for private life under Article 8. The Court said this:

“Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court’s case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse affects on physical and moral integrity. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.... Even assuming that the dislocation caused to the applicant by removal from the United Kingdom where he has lived for the last 11 years was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure “in accordance with the law”, pursuing the aims of the protection of the economic well-being of the country and the prevention of disorder and crime, as well as being “necessary in a democratic society” for those aims.”

14. For present purposes what is significant about Smith & Grady and Bensaid is that the court envisaged cases where there might be infringements of one’s Article 8 rights in relation to one’s sexual life which did not involve infringements of one’s Article 3 rights not to be subjected to degrading treatment.
15. It is plain from the case law that absolute protection is not given against all interferences with private and family life. The E.Ct.H.R. has indicated that the separation of a man from the bosom of his family and his expulsion to another country will not normally normally involve inhuman or degrading treatment which is absolutely forbidden. It seems to me that if this does not invariably normally involve inhuman or degrading treatment then neither will the separation of a gay man from his partner have this invariable result.
16. Circumstances can undoubtedly exist in which the treatment which awaits a claimant in a destination State is of a severity which would cause a State to be in breach of a claimant’s Article 3 rights if it expelled him to that destination State. I would not rule out the possibility that amongst those circumstances might be treatment which was aimed at a particular sexual group. However, I do not consider that the mere existence of a law in the destination State prohibiting particular types of sexual conduct in private amongst adults has the automatic result that an expelling State which wishes to expel a person who wishes to indulge in that type of sexual conduct is breaching his rights under Article 3.

GENERAL CONSIDERATIONS : ARTICLE 8

17. So far as Article 8 was concerned, Mr Blake counsel for the immigrants did not submit that the responsibility of the expelling State would invariably be engaged even where it was certain that the destination State forbade the exercise of a right comprised within Article 8 (1). He Mr Nicholas Blake Q.C. submitted that this would only be the case in relation to a subset of those rights, namely, where there were flagrant abuses of serious aspects of the Convention rights interference is serious and obvious and unjustified. He submitted that dignity was employed as the measurement of the seriousness of the Article 8 interference and as the presumptive dispositive factor when the proportionality of the interference is in issue. An interference by expulsion that deprives someone of his right to live a normal life with respect for his sexual identity deprivesd him of dignity and requiresd the very greatest justification.
18. At times I understood him as submitting that in the case of this subset, the considerations set out in Article 8 (2) did not fall to be examined and weighed. If I were persuaded that this proposition was manifestly correct I would think it right to record the fact. The proposition is, however, undoubtedly not established by the Strasbourg or domestic case law. Nor do I regard it as manifestly correct. Much of the case law accepts that dealing with the separation of husbands and wives in immigration cases can be permissible. The proposed concept is only needed in those cases where the treatment concerned is not within Article 3. If one accepts, as the jurisprudence does, that there is under Article 3 a class of cases where public policy considerations either never, or very seldom, justify an expulsion, then it seems to me better to work out the application of this concept in the context of Article 3. Article 8 is manifestly supposed to involve a consideration of Article 8 (2). To create a subset of cases where Article 8 (2) does not fall to be considered is not the best way of addressing the problem of flagrant breaches of Article 8 rights in the destination State. I turn therefore to consider the possible responsibility of an expelling State for what, short of treatment amounting to torture or inhuman or degrading treatment or punishment, is done in the destination State in relation to the person expelled.
19. Mr. Tam submits, correctly, that there is at present no Strasbourg case law which decides that such an expulsion can involve a breach by the expelling state of the claimant’s rights under Article 8. He submits that the consequences of the expulsion are too remote to attract the expelling country’s liability. However, aAll causation and human rights questions are very fact sensitive and I consider that it would be wrong to pronounce on the matter in the abstract.
20. Mr Mr Tam submits that there are conceptual and practical problems in respect of justification (such as provided for by Article 8 (2) of the Convention) if such qualified Convention rights are engaged in an expulsion case.
21. These are problems which this Court considered in R ( Holub) v SSHD [2001] 1 WLR 8450 but deliberately left open. In my judgment that is the appropriate course for this Court to follow in these cases.
22. Mr Tam gives as examples of such problems the following. If a destination State were a signatory to the Convention it might be able to advance public interest factors which would justify the extent to which there was any interference with private life constituted by the existence and enforcement of a criminal law against a particular type of sexual conduct. If the destination State can do so, then it would not (on this hypothesis) be in breach of the Convention. In those circumstances there would be no logical reason for the expelling State to be held to be in breach of the Convention for expelling a person to the destination State irrespective of any justification which the expelling State itself might be able to advance for such a measure. This is reinforced by the fact that the destination State is very likely to be the State of which the individual concerned is a national.
23. He submits that if the correct approach were that the Convention right concerned is engaged by the proposed expulsion, this could necessitate examination of the justifications capable of being advanced by the destination State and the expelling State. This approach would pose the following problems:

i) The reasons why interference with a qualified Convention right is justified are best known to the State which imposes the interference. But if the onus falls on the expelling State to rely on such justification, as will be the case where a person argues that the expelling State should not expel him, the expelling State is likely to face serious difficulties in obtaining the appropriate evidence for the decision maker (particularly in a judicial context).

ii) This could therefore lead to a situation in which a expelling State is unable to show that it can safely expel a person to the destination State notwithstanding that a qualified right is engaged, even if the destination State would be fully complying with its Convention obligations in respect of that right.

iii) When considering whether an interference with a qualified right is justified, the interference and the justification are often factually linked and set in the same context. Such a contextual link tends to aid the assessment of the proportionality of the interference. But if a qualified right is engaged by a proposed expulsion, the expelling State would be entitled to raiseed its own justifying reasons against the potential later interference with the qualified right. Notwithstanding that the expelling State is well placed to raise these reasons, they are alien to the context in which the interference must be regarded. It is conceptually difficult to see how “domestic justifications” can be balanced against a “foreign interference”, and how the balance can be struck when the two sides are so out of context with each other.

iv) These difficulties are all greatly exacerbated where the destination State is a non-signatory State like Zimbabwe, whose international and domestic human rights obligations may be very different from those owed by a State which is a signatory to the Convention..

24. Mr Blake submitted, that whatever the position which the E.Ct.H.R. had currently reached, this Court was free to develop its case law under the Human Rights Act. So it is. The question thus arises whether this Court should rule that no immigration policy considerations could justify the return of an individual to a country where his expression of his sexual desires with another adult in private is in any way inhibited.
25. For my part I would not rule in such broad terms. This is a difficult area. Consider a proposed expulsion of a heterosexual man to a destination State which has and enforces laws which would inhibit that man from marrying or from founding a family of more than, say, one child – for instance laws which prohibit marriages between persons of different races or laws which place at a severe disadvantage those who have more than one child. These are not fanciful examples and I consider that we should develop the law on a case by case basis in the light of the facts of that case rather than rule on points in the abstract. With these preliminary remarks I turn to consider the three appeals before us.

THE APPEAL OF “Z”

26. This is an appeal to the Court of Appeal by the Secretary of State from a final determination of the Immigration Appeal Tribunal. The Adjudicator had dismissed “Z” ’s” appeal on asylum and human rights grounds. “Z” appealed to the Tribunal which allowed his appeal, apparently on human rights grounds only. The Tribunal granted the Secretary of State leave to appeal to the Court of Appeal. “Z” has served a respondent’s notice seeking to uphold the Tribunal’s decision on asylum grounds or asking for a remittal to the Tribunal for the asylum ground to be determined.
27. The Adjudicator had accepted that “Z” had been in a homosexual relationship in Zimbabwe and that he was a homosexual. He however went on to make adverse findings against “Z” in respect of the risk of persecution which he might face. He found that any fear of persecution which “Z” had was not well-founded. The Tribunal noted the basis of the Adjudicator’s determination and recorded that it was common ground that although “sodomy is prohibited by law in Zimbabwe,.... the law is not actively enforced”. The Tribunal however, decided the case against the Secretary of State on the basis that “it [had] been decided by the European Court of Human Rights that laws against sodomy [even ones not enforced as a matter of declared Government policy: see Modinos v Cyprus 16 EHRR 485 (1993)] amount to breach of the right to private life of those persons that way inclined”. The Tribunal expressly rejected a submission that, since the sodomy law was not enforced, the mere existence of the law would not be an infringement of “Z” ’s rights. The Tribunal said that was “directly contrary to Modinos. We cannot see how the conclusion can be avoided that the existence of a law against sodomy is an infringement of the rights to private life of any one who might wish to engage in that practice”.
28. The Tribunal went on to consider whether or not any such infringement could be justified under Article 8 (2) of the European Convention on Human Rights, and recognised that the maintenance of an effective system of immigration control might be such a justification. But the Tribunal found that there was no justification because he “has not been guilty of any crime in this country”, “did not seek to evade immigration controls, having claimed asylum on arrival” and “seems to have had a perfectly good job in Zimbabwe”.
29. Before us it was common ground that the Tribunal had fallen into error. Modinos was not decided on the basis of the mere existence of such a law, but on the basis of the entire factual matrix relating to the law, its enforcement and the Government’s attitude towards it. The Court took into account not only the existence of the law but also

i) statements made by various Ministers of Justice between 1986 and 1990 (see paragraph 9 of the judgment) and

ii) the judgment of the Supreme Court of Cyprus in the case of Costa v The Republic in which it went further than was necessary to decide the case (one of non-private homosexual conduct involving a 19 year old) and expressly disagreed with the majority view of the European Court of Human Rights in Dudgeon v UK on the basis that it was in a better position than the Strasbourg Court to decide on what was necessary to protect Cypriot social and moral standards (see paragraphs 11, 22, and 23).

30. Moreover Modinos only decided that the state of affairs then existing in Cyprus amounted to an interference with that applicant’s private life; it did not decide that this state of affairs (or the law complained of) was in itself a breach of that applicant’s rights under Article 8 of the Convention. Such a finding would have involved a consideration of Article 8(2). The Court found a breach of Article 8 because, in the circumstances of that case, the Cypriot Government had not attempted to identify any justification for the interference. The Strasbourg Court did not decide whether the very same law might have been justified if, for example, it was used to prosecute non-private homosexual activity (such as was the case in Costa) or homosexual activity with a young person requiring special protection (arguably the 19 year old in that case).
31. Consequently, the Tribunal’s view that “laws against sodomy [even ones not enforced as a matter of declared government policy .....] amount to breach of the right to private life” was too wide, and misunderstood the basis of the Modinos decision. It was necessary for the Tribunal to go further and to examine whether there would be any possibility of a prosecution. It was wrong summarily to reject outright the Secretary of State’s submission that there would be no interference because the law was not enforced in Zimbabwe.
32. Further, if and to the extent that “Z” sought to rely on the possibility that there might be interference with his private life by a criminal investigation short of prosecution, the Tribunal should have gone further and examined whether, why and in what circumstances any such investigation might have been embarked upon.
33. All this is common ground and in the circumstances the respondent consents to the appeal being allowed and to the case being remitted to the Tribunal to decide the appeal to them both on the human rights and on the refugee grounds.
34. Mr. Tam sought to persuade us that we should direct the Tribunal to affirm the Adjudicator’s determination. For my part I do not consider that would be an appropriate course. It is common ground that if the matter is remitted to the Tribunal then the parties will be at liberty to adduce evidence as to the current situation in Zimbabwe. There seems a high probability that one or both of the parties will do so.
35. The Secretary of State’s appeal in Z will therefore be allowed and the Tribunal decision set aside and the matter remitted to the Tribunal differently constituted. The Tribunal will need to consider both “Z” ’s asylum appeal and his human rights appeal.

THE APPEAL OF “A”

36. This is another appeal from a final determination of the Immigration Appeal Tribunal, but this time by the immigrant. The Adjudicator had dismissed “A” ’s appeal on asylum and human rights grounds. “A” appealed to the Immigration Appeal Tribunal who again dismissed his appeal on both asylum and human rights grounds. The Tribunal refused leave to appeal to the Court of Appeal but this Court granted permission on the papers and ordered that the appeal be linked with that of “Z”.
37. “A” ’s appeal contains a factor not present in that of “Z”. In “A” the severing of a relationship in the UK is involved.
38. The decision of the Immigration Appeal Tribunal reads as follows. The emphasis are mine.

1. … Leave [to appeal] was given on the basis that the Adjudicator might have “failed properly to assess whether having on return to serve a sentence of 40 days imprisonment ... following conviction for sodomy amounted to serious harm”. It has to be pointed out at once that the sentence ... was suspended until 15^th December 2003; so unless the appellant repeated such conduct in Zimbabwe before then, and was detected, he did not run any such risk.

2. What had actually happened was that the appellant had been living in a homosexual relationship with another man (W) since shortly after they had met in Bulawayo in November 1997...... they had a row on 13^th November 1998: this was reported to the police .... who arrived to investigate it as a case of common assault. It was only when the appellant and W volunteered the carnal nature of their relationship that the police came to treat it as sodomy. Both pled guilty on the same day, and on 17^th November they were sentenced to imprisonment, suspended as already mentioned, with a fine of Z$400 [no more than five pounds at the rate prevailing even then] and a further 40 days in default. Their pleas and remand till then were reported in the local press in neutral terms.... In January 1999 W left Zimbabwe for this country. On 10^th April the appellant was beaten up in a bar by people who had somehow identified him as one of the subjects of the Court case. He did not report this incident to the police: there was no further trouble till he too left Zimbabwe.

3. The appellant arrived here in December 1999 .... [He had leave to remain as a student until 30^th September 2001.] However he applied for asylum on 15^th February this year, which was refused on 20^th February, with notice of directions for administrative removal, apparently as a person who had obtained leave to remain by deception, on 22^nd February. He appealed in the most general possible terms, citing both the Refugee Convention and the European Convention on Human Rights. W too remains in this country: we were told he has leave to remain until October 2002, then plans to stay and seek work as a nurse. The appellant told the Adjudicator he planned to spend the rest of his life with W, and would marry him if he could.

4. [reference was made to President Mugabe calling homosexual practices “an abomination and decadence”.] As he had already described them as “worse than pigs and dogs” in a speech in the mid-90s.... not much seems to have changed in that respect ..... Bearing in mind that the appellant’s conviction is already nearly 3 years old, and that he had no trouble from it between April and December 1999, we cannot see that he now faces any real risk from members of the public because of what may be known about him....

5. .... there is .... nothing to show that the appellant would have anything to fear from the authorities on return to Zimbabwe, unless he was again convicted of sodomy, particularly within the operational period of his suspended sentence. In view of what he told the Adjudicator about his fidelity to W, that would seem unlikely before October 2002, until which time W has leave to be here, or indeed as much longer as he succeeded in pursuing his plans to remain. What is more, consensual sodomy in private (and the appellant has not claimed to have indulged in any other kind) is likely to remain undetected, as his and W’s did till they chose to reveal it to the police. There is little history of prosecution in Zimbabwe for that form of the offence, the last other case having been in 1991, resulting in a very small fine. The highly political prosecution of the Reverend Canaan Banana, former President, for non-consensual sodomy with his bodyguard, can be no real guide to the general attitude taken. On the facts of the present case, we see no real risk of either the appellant having to serve his suspended sentence, or face any immediate sentence of imprisonment in future for anything he is likely to do on return to Zimbabwe. Even if there were such a risk, there has been no suggestion that the conditions of imprisonment there carry any risk of ill treatment over and above the fact of incarceration. Though this point was not argued for us, we should not regard 40 days’ imprisonment as itself amounting to Refugee Convention persecution or Art. 3 ill treatment.

6. Those views on the facts, which we share with the Adjudicator, make it unnecessary to consider whether imprisonment, for sodomy which the appellant might himself choose to commit after his return, was capable of attracting the protection of either Convention.....

7. .... There has been no argument before us that this appellant’s right to family life would be infringed by his return: even if the existence he enjoyed with W in Zimbabwe were capable of amounting to that, their life together in this country has been necessarily on a temporary basis only...

8. The question before us is whether returning the appellant to a country where such laws exists would itself [sc. involve] a breach of his right to private life, contrary to Article 8 of the Strasbourg Convention.... [W]hat has to be considered is the effect on this appellant. Unlike Messrs. Norris and Modinos, who were practising homosexuals in their home countries, this appellant has expressed the intention of remaining faithful to W, who in turn has expressed the intention of staying in this country for as long as he can. In these circumstances, we see no real risk of any actual infringement of this appellant’s right to private life, by being returned to a country which forbids the practices in which he says he wishes to indulge only with a person who will not be there.

Appeal dismissed

39. Mr Nicholas Blake Q.C. who appears with for the appellant “A” makes the following broad submissions

i) The reasoning of the Tribunal, depending as it does on the present feelings of “A” for “W”, is unsatisfactory

ii) The removal of “A” from the society of “W” with whom he is currently sharing his life in this county amounts to an interference with “A” ’s private life and is thus incompatible with his Article 8 rights. While it is arguable that such an interference could be justified under Article 8 (2) this involves considerations of proportionality upon which the Tribunal has not attempted to embark.

iii) The expulsion of “A” to Zimbabwe where the living out of a homosexual lifestyle is inhibited amounts to subjecting him to inhuman or degrading treatment

iv) The expulsion of “A” to Zimbabwe, leaving aside his relationship with “W”, involves a lack of respect for his private life which can not be justified under Article 8(2) or, alternatively, involves considerations of proportionality upon which the Tribunal has not attempted to embark.

40. Mr. Tam has not sought strenuously to support the Tribunal’s reasoning as such. In particular, as I understood him, he did not seek to support the Tribunal’s view which I have placed in italics in my citation of paragraph 5 of its determination. He has submitted that the UK’s public interest factors arising from the maintenance in itself of immigration control would justify any interference with “A” ‘s private life that might occur after his expulsion to Zimbabwe, a matter with which the Tribunal did not expressly deal because of its reasoning. He submits that therefore “A” ’s appeal in respect of human rights grounds and in respect of his asylum claim falls to be dismissed.
41. In my judgement it is clear that the Tribunal has not attempted to consider whether the removal of “A” from the companionship of W in this country amounts to an infringement of his rights under Article 8. Nor has the Tribunal considered whether any reliance by the Secretary of State on immigration control policy was proportionate in this particular case. The evidence of A’s relationship with W in this country does not seem to have been strong – indeed W did not give evidence although the Adjudicator in paragraph 35 of his decision found that “A” ’s main motives for leaving Zimbabwe were to be with “W” (who by then had come to this country) and to study nursing. The Adjudicator seems to have accepted that “W” sought legal advice on “A” ’s behalf and that “A” might have misunderstood that advice as indicating that any claim for asylum by “A” would jeopardise “W” ’s status as a student here. I have not found this easy but I have on balance come to the conclusion that – but since the Tribunal proceeded on the basis of there being the closest of ties between the two men I would not think it it would not be right to assume that these did not exist any longer. Although “A” ’s Article 8 claim before the Tribunal seems to have centred on what happened to homosexuals in Zimbabwe rather than on “A” ’s loss of the society of “W”, I think it safer to proceed on the basis that the expulsion of “A” will interfere with the right referred to in Article 8(1) and that the proportionality of any reliance on Article 8(2) has not been examined.
42. I would therefore allow this appeal by “A” because his claim under the Act was not properly examined. In those circumstances I would set aside the decision of the Tribunal and remit the case to a differently constituted Tribunal. That Tribunal will look at his claims under the Act and the Refugee Convention in the light of the facts as they then appear.

THE APPEAL OF M

43. The claimant is a citizen of Zimbabwe whose application for asylum was refused by the Secretary of State. The claimant appealed pursuant to section 8 of the Asylum and Immigration Appeals Act 1993. The Adjudicator dismissed the appeal. The claimant sought leave to appeal from the Immigration Appeal Tribunal; that leave was refused. The claimant sought permission to apply for judicial review of the decision to refuse leave; this permission was refused by Cresswell J. as was permission to appeal.
44. Permission to appeal was, however, granted by Buxton L.J. on the basis that there was doubt as to whether the Adjudicator had correctly applied the law in relation to the treatment of claims by homosexuals to be entitled to protection from having to live in a country where homosexual activity between consenting adults in private is a crime. He considered this to be a matter of general importance. He drew the Court’s attention to the difficulties which the applicant had as to credibility. He reserved the hearing of the application for judicial review to this Court.
45. The claimant now appeals against that refusal to us. No point under the Human Rights Act was pursued before the Tribunal or before us.
46. The Immigration and Asylum Appeals (Procedure Rules 2000) Rule 18 provides that an appeal from the determination of an Adjudicator may be made only with the leave of the Tribunal and that:

“Leave to appeal shall be granted only where –

(a) the Tribunal is satisfied that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard.”

47. So the question before us is whether the Tribunal erred in law in coming to the conclusion that the appeal did not have a real prospect of success and that there was no other compelling reason why the appeal should be heard.
48. The Adjudicator’s Determination includes the following.

31. Having set the appellant’s evidence in context, I cannot accept him as a credible witness. Firstly, his whole case is considerably weakened by the fact that he did not claim asylum immediately on arrival in the United Kingdom [but] only applied for asylum after he was refused leave to enter..... [his] explanations just do not make sense. ...... In addition to this, there are other matters in the appellant’s evidence which makes me doubt that he is telling the truth.

32. The basis of the appellant’s claim was initially that he was being persecuted for his political opinions, but only later did he add that he was being persecuted in relation to his homosexuality ......

33. .... In view of the fact that the appellant is married and has two children, it seems strange that he now claims to be a homosexual. Nevertheless this could be the case, but if he were returned to Zimbabwe the mere fact of being a homosexual would not in itself cause him problems. If he did commit an act of homosexuality and was prosecuted and convicted of that crime, that in itself would not be persecution....

34. I accept ..... that the maximum penalty for this offence is ten years imprisonment .... It is highly unlikely that a person convicted of an offence would receive the maximum penalty possible. ....... The background information does not give any examples in Zimbabwe of penalties imposed upon persons guilty of homosexual acts. Thus, for the reasons stated above I do not accept the appellant’s claim that he would suffer persecution for being a homosexual if he were returned to Zimbabwe.

35. Dealing now with the appellant’s claim for persecution in relation to his political views, I again doubt his credibility. ....”

49. The Adjudicator goes on in the succeeding paragraphs to identify a series of matters which led him to come to the conclusion which he sets out in paragraph 40.

“40. This appellant’s evidence is completely riddled with inconsistencies and lies.... Since I do not believe his claims to have suffered such persecution, there is no need to consider the details of the case of Horvath because the details of that case would only be relevant if the appellant had in fact suffered persecution. I do not believe he has suffered persecution but has used the background information and the political violence in Zimbabwe to make a false claim of persecution.”

50. In his Notice of Appeal the claimant accepts that he was not found a credible witness in respect of the first aspect of his claim. He pursues that matter no further. He maintains however that in respect of his claim founded on his homosexuality the Adjudicator while expressing his doubts was prepared to accept his credibility. For my part I do not consider that this is a fair reading of the Adjudicator’s decision.
51. I agree that there are difficult questions which can arise in the treatment of the expulsion of homosexuals to a country where their lifestyle is inhibited. Those questions are in my judgement very fact sensitive. I do not consider that the Tribunal erred in law in failing to be satisfied that the appeal would have a real prospect of success. I would dismiss the appeal by “M”.

Lord Justice Robert Walker : I agree.

Lord Justice Carnwath : I also agree.