New Legal Test for LGB Asylum Seekers
The following is a casenote prepared by S. Chelvan, Barrister, of Mitre House Chambers on the cases of HJ (Iran) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) and one other action; and HT (Cameroon) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) and one other action  UKSC 31, on appeal from:  EWCA Civ 172;  Imm A. R. 600. Judgment: 7th July 2010.
The rejection of the J test:
The central question which arose in these appeals is whether a gay person (gay man, lesbian, or bi-sexual (“LGB”) ) can be reasonably be expected to tolerate discretion on return and therefore not be entitled to refugee status (the J test). The Supreme Court ruled unanimously that this test, as applied by the Court of Appeal was wrong, in that it wrongly interpreted the Australian High Court case of Appellant S/ 395 and undermined the underlying rationale of the Convention which is to afford protection to enable a person to live freely. As Lord Rodger held at § 53 :
“The underlying rationale of the Convention is therefore that people should be able to live freely, without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay. In the absence of any indication to the contrary, the implication is that they must be free to live openly in this way without fear of persecution. By allowing them to live openly and free from that fear, the receiving state affords them protection which is a surrogate for the protection which their home state should have afforded them.”
The “cultural relativism” test, requiring consideration of social norms and cultural beliefs in deciding whether discretion is reasonably tolerable (Pill LJ in the Court of Appeal ) is rejected on the basis that, if the “reasonably tolerable test” was accepted, then such an assessment would be by [as per Sir John Dyson SJC § 128]:
“[O]bjective human rights standards, and not by social mores of the home country.”
Lord Hope rejected the Respondent’s submission that when an individual is discrete on internal relocation, this would provide a safe haven [§ 21] :
“The objection to it is that it assumes that the applicant will be prepared to lie about and conceal his sexual orientation when he moves to the place of relocation. Unless he does this he will be no better off than he would be if he did not relocate at all. The misconception lies in the idea that he will be willing and able to make a fresh start when he moves to somewhere where he is not known.”
Lord Rodger rejected, as unacceptable, the Secretary of State’s submission that an individual would have to succeed on a secondary persecution basis (intolerability of discretion would reach a persecution threshold) [§ 75].
Lord Rodger highlighted that there was no yardstick to measure the suffering which would find an existence “reasonably tolerable ... it is something that no one should have to endure” [§ 80].
Such a test would require an individual to [§§ 75 and 76]:
“[A]ct discreetly and conceal his sexual identity indefinitely to avoid suffering severe harm.
No-one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid persecution.”
Summarising the objections to the J test, Lord Rodger at § 77 held:
“At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man. He would have to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised. He would have constantly to restrain himself in an area of life where powerful emotions and physical attraction are involved and a straight man could be spontaneous, impulsive even. Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted to another man. Similarly, the small tokens and gestures of affection which are taken for granted between men and women could well be dangerous. In short, his potential for finding happiness in some sexual relationship would be profoundly affected. It is objectionable to assume that any gay man can be supposed to find even these restrictions on his life and happiness reasonably tolerable.”
What is protected is the “right to live freely and openly” as an LGB person [§ 78]:
“To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie Minogue concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis – and in many cases the adaptations would obviously be great – the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution.”
The central issue is causation. If there is a well-founded fear of persecution, then the LGB person is entitled to refugee status, even where s/he acts discreetly due to that fear of persecution. The Court of Appeal wrongly interpreted the High Court’s decision in S/395, by negating to consider why the individual would act discreetly on return. It was accepted that if an individual did not act discreetly on return, then if there was evidence of persecution of LGB persons, the individual is a refugee. Where the divergence lies is the ruling that if discretion is employed due to fear of persecution, which can be one of many reasons for concealment, then the LGB person is entitled to surrogate protection by the UK [§ 62]. This is firstly a subjective test. The central question which is answered in the affirmative, is [§ 62]:
“[I]s an applicant to be regarded as a refugee for purposes of the Convention in circumstances where the reality is that, if he were returned to his country of nationality, in addition to any other reasons for behaving discreetly, he would have to behave discreetly in order to avoid persecution because of being gay?”
The guidelines for the fact-finding Tribunal, approved by the whole court, is summarised at § 82 [as per Lord Rodger]:
“When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.
If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality.
If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.
If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution - even if he could avoid the risk by living “discreetly”.
If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.
If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.
If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.”
[emphasis in text]
This requires an assessment of:
(i) whether an individual is Lesbian, Gay or Bisexual?;
(ii) what the country background evidence is with respect to persecution?; and
(iii) whether, if discretion is employed on return, one of the reasons for such conduct is due to a fear of persecution?
Both appeals have therefore been allowed and remitted back to the Upper Tribunal for reconsideration, limited to point (iii).