Jain v Secretary of State for the Home Department

In an asylum claim based on homosexuality, persecution requires more than social disapproval, discrimination, harassment or difficulty in living openly. The question is whether there is a reasonable likelihood of serious ill-treatment for a Convention reason. Criminalisation of consensual homosexual activity in private may, in an appropriate case, support a well-founded fear of persecution. The assessment is fact-sensitive and may change as international and domestic standards develop. Appellate intervention is justified only where the tribunal applied the wrong legal test, reached a conclusion unavailable on the evidence, or failed adequately to explain its reasoning.

The appellant, an Indian national, claimed asylum on the ground that he feared persecution because he was homosexual. The Special Adjudicator rejected the claim on the basis that homosexuals did not constitute a particular social group and did not decide whether persecution was feared.

On appeal, the Immigration Appeal Tribunal accepted that homosexuals or practising homosexuals constituted a particular social group, but concluded that the appellant had not shown a reasonable likelihood of persecution in India. The central issues were whether the Tribunal had applied the correct legal test, whether its reasoning was sufficiently clear, and whether the evidence justified its conclusion.

1. Appeal dismissed. The Tribunal was entitled to conclude that the appellant had not shown a reasonable likelihood of persecution. The decision contained no error of law and adequately addressed the principal submissions.
2. The approach on a further appeal under section 9 of the Asylum and Immigration Appeals Act 1993 was governed by Kagema v Secretary of State for the Home Department and Blanusa. The Court could not interfere merely because it might have reached a different conclusion. Intervention required an unavailable conclusion, a wrong legal test, or inadequate clarity or reasoning.
3. Following R v Immigration Appeal Tribunal ex parte Shah and Islam v Secretary of State for the Home Department, it was common ground that homosexuals or practising homosexuals constituted a particular social group. The remaining question was whether the feared treatment amounted to persecution.
4. Persecution is fact-sensitive. The Convention is a humanitarian measure and its meaning may develop over time. Respect for private life, including private sexual life, is an important consideration, but occasional interference, social disapproval, discrimination or harassment does not necessarily amount to persecution. Persistent and serious ill-treatment without just cause may do so.
5. Criminalisation of consensual homosexual activity in private may in an appropriate case support refugee status. A policy of non-prosecution does not necessarily remove the risk, and the continuing existence of a criminal prohibition may affect private life. However, the Court declined to generalise. On the evidence, there was no reasonable likelihood of prosecution, police raids, direct physical pressure, imprisonment or brutality. The appellant had shown only difficulty in finding a partner, social disapproval and pressure to enter a heterosexual marriage.
6. Lord Justice Evans agreed with the result and emphasised that the case concerned private consensual adult conduct. Different considerations could arise where conduct involved minors or occurred in public.

• Court of Appeal (Civil Division): appeal from the Immigration Appeal Tribunal dismissed with costs.
• Immigration Appeal Tribunal: accepted that homosexuals or practising homosexuals constituted a particular social group but dismissed the appeal because a well-founded fear of persecution had not been established.
• Special Adjudicator: rejected the asylum claim on the basis that the appellant did not belong to a particular social group and did not determine whether persecution was feared.