Dawkins, R (on the application of) v Immigration Appeal Tribunal

The criminalisation of homosexual conduct in a receiving state does not, by itself, require the United Kingdom to grant immigration status or prevent removal. An Article 8 claim in this context is fact-sensitive. The claimant must establish more than the fact of being homosexual, such as engagement of Article 3 or a substantial factual basis for substantial discrimination, violence or abuse. Where an adjudicator has addressed the evidence carefully and made findings open to her, the Immigration Appeal Tribunal may refuse permission to appeal unless an error of law is shown. Treatment falling below the Article 3 threshold will not ordinarily engage another Convention right solely because removal is proposed.

The claimant, a Jamaican national, sought judicial review of the Immigration Appeal Tribunal’s refusal of permission to appeal against an adjudicator’s dismissal of his asylum and human rights appeals. The Secretary of State had decided to remove him to Jamaica as an illegal entrant after refusing his asylum application.

The claimant was homosexual and relied principally on Article 8, arguing that criminalisation and societal hostility in Jamaica exposed him to persecution, discrimination and interference with his private life. The adjudicator accepted his homosexuality and some past mistreatment but found that he had not established a real risk of persecution or substantial interference with Article 8. The central issue was whether those findings involved an error of law.

1. The claim was refused. The adjudicator’s determination was thorough and fair, and her factual findings were unassailable. The Immigration Appeal Tribunal was therefore entitled, and effectively bound, to refuse permission to appeal.
2. Article 8 claims arising from removal to a state where homosexual conduct is criminalised are fact-sensitive. The mere existence of such a criminal law does not establish a breach of Article 8 or require the United Kingdom to grant immigration status to practising homosexuals. The claimant must show something additional, namely engagement of Article 3 or a substantial factual substratum demonstrating substantial discrimination, violence or abuse.
3. The court relied on the fact-sensitive approach stated in ZA & M, [2002] EWCA Civ 952. It also treated the reasoning in Ullah v Do, [2002] EWCA Civ 1856, as fatal to the claim: where the treatment anticipated on return falls short of Article 3, the English court is not required to recognise that another Convention article is engaged solely by the proposed removal.
4. The adjudicator was entitled to find that the claimant had lived openly enough in Jamaica to attend gay nightclubs regularly, had not been prosecuted, had not established that his attack was motivated by homosexuality, and had not shown that his lifestyle had been materially curtailed by state or societal discrimination. Those findings supported dismissal of both the asylum and human rights appeals.
5. The court did not determine the out-of-time issue because the claim failed on the merits. The claimant was given the requested certificate. The ordinary costs order was made, with determination of liability for payment of the defendant’s costs postponed pending further application.

• Immigration Appeal Tribunal: refused an extension of time under rule 80(3) and refused permission to appeal on the merits against the adjudicator’s dismissal of the claimant’s appeals.
• High Court (Administrative Court): refused judicial review, holding that no error of law had been shown.