Amare v Secretary of State for the Home Department

An appellate immigration tribunal had jurisdiction to entertain an appeal from an adjudicator only on a particularised error of law. An adjudicator does not unlawfully require concealment of sexual orientation merely by finding, as a matter of fact, that the claimant would continue to conduct relationships discreetly.

Refugee protection reflects fundamental human rights but remains subject to two essential conditions. The feared violation must arise for a Convention reason and must attain the seriousness required for persecution. Courts construing the Refugee Convention must respect the limits of the negotiated international consensus and cannot extend its obligations to every infringement of liberal or pluralist values.

The appellant, an Ethiopian lesbian, claimed that return to Ethiopia would expose her to persecution or treatment contrary to articles 3 and 8 of the European Convention on Human Rights. The adjudicator accepted her sexual orientation, subjective fear and membership of a particular social group, but found no real risk of persecution. He also found removal proportionate under article 8.

The Immigration Appeal Tribunal dismissed her appeal. She appealed to the Court of Appeal, contending principally that the adjudicator and Tribunal had unlawfully expected her to conceal her sexuality and had underestimated the effect of discrimination and secrecy on her private life.

The preliminary issue was whether the adjudicator had made an error of law capable of giving the Tribunal jurisdiction under section 101(1) of the Immigration and Asylum Act 2002. The court also considered the proper relationship between international human rights norms and persecution under the Refugee Convention.

1. Appeal dismissed. Laws LJ, with whom Wall and Mummery LJJ agreed, held that the adjudicator had made no error of law. Under section 101(1) of the Immigration and Asylum Act 2002, the Tribunal could entertain the appeal only on an identified error of law by the adjudicator. An appeal attacking only errors in the Tribunal's subsequent reasoning was misconceived where the adjudicator's determination was legally sound.

2. A claimant cannot be refused asylum on the basis that otherwise persecutory conduct could be avoided by materially modifying behaviour. The Tribunal therefore erred in stating that a person could properly be expected to take steps to reduce the risk. That error was immaterial because the adjudicator had imposed no such requirement. Fairly read, the adjudicator had made a factual finding that the appellant would conduct herself as she had previously done, rather than directing her to conceal her sexuality.

3. The adjudicator could not be faulted for failing to address the alleged social impossibility of an unmarried woman living independently with a female partner. No evidence or argument on that issue had been placed before him. A tribunal may exceptionally err by overlooking an unargued matter that is so glaring that it should have been obvious, but this was not such a case.

4. The adjudicator determined proportionality for himself under article 8. His alternative reference to a reasonable-range-of-responses approach did not affect the decision. The correct approach, established in Huang [2005] 3 WLR 488, required the adjudicator to reach his own conclusion on proportionality.

5. The court also rejected the proposed unqualified human-rights-based approach to persecution. Refugee protection is informed by fundamental human rights and discrimination, including discrimination against women and homosexuals, may contribute to persecution. Two defining conditions nevertheless remain: the feared harm must arise for a reason specified in article 1A(2) of the Refugee Convention, and it must attain the required degree of gravity or seriousness.

6. Because the Refugee Convention records a negotiated international consensus, courts must respect the limits of the obligations accepted by contracting states. It does not protect every person required to live under a regime less respectful of pluralist liberal values. Its meaning may develop with international consensus, but judicial interpretation cannot impose obligations which the states did not accept.

1. Court of Appeal (Civil Division): Dismissed the appeal and held that the adjudicator had made no error of law. The Tribunal's own error concerning concealment was therefore immaterial.

2. Immigration Appeal Tribunal: By a determination notified on 20 December 2004, dismissed the appellant's appeal from the adjudicator. Permission to appeal to the Court of Appeal was granted on 19 January 2005.

3. Adjudicator: By a determination promulgated on 28 January 2004, dismissed the appeal from the Secretary of State's refusal of asylum and human-rights claims.