J v Secretary of State for the Home Department

An asylum claim based on sexual orientation cannot be rejected merely because the applicant could avoid serious harm by concealing or materially suppressing that identity. The tribunal must determine why the applicant previously acted discreetly, whether threatened harm caused that conduct, and whether comparable restraint on return could reasonably be tolerated.

The inquiry extends beyond private sexual acts to relationships and other aspects of life informed by sexual identity. Persecution remains a strong concept with a high threshold. The threatened harm or required suppression must be sufficiently intense or enduring that the applicant cannot reasonably be expected to tolerate it.

The appellant, an Iranian homosexual man, claimed asylum after arriving in the United Kingdom. The Asylum and Immigration Tribunal accepted his sexual orientation and previous discreet relationships but rejected his account of detention and concluded that return would create no real risk of persecution. It relied on the likelihood that future homosexual activity would also be conducted discreetly.

The appeal concerned the Refugee Convention, Article 1A(2), rather than the appellant's rejected claims under the European Convention on Human Rights. The central issue was whether the Tribunal had lawfully assessed discretion without asking whether fear of serious punishment caused it and whether suppression of the appellant's sexual identity could reasonably be tolerated.

1. Appeal allowed unanimously. The Asylum and Immigration Tribunal committed an error of law by relying on the appellant's previous discreet conduct and the likelihood of similar conduct after return without applying the legal principles governing concealment and persecution. The case was remitted for reconsideration by a differently constituted Tribunal.

2. A person cannot be refused asylum merely because otherwise persecutory harm could be avoided by modifying conduct. The decision-maker must examine why the conduct was modified. Where fear of threatened harm caused the applicant to conceal membership of a protected group, an inference from the absence of past persecution may be fallacious. The relevant inquiry is what may happen on return, rather than whether the applicant could live there without attracting adverse consequences. The reasoning in S395/2002 [2003] HCA 71 and Z v Secretary of State for the Home Department [2005] Imm AR 75 was applied.

3. Persecution is a strong word and requires a high threshold. Harm constitutes persecution only when its intensity or duration means that the person cannot reasonably be expected to tolerate it. The same standard applies when the threatened harm causes material suppression of conduct or identity.

4. The required assessment is not confined to private sexual acts. Sexual identity may inform relationships and many other aspects of daily life. On remission, the Tribunal must examine whether the appellant's discretion resulted from fear of significant imprisonment, lashing or other serious punishment, and whether suppression of a stable relationship and other sexuality-related aspects of life could reasonably be tolerated.

5. The evidence was not so weak that the claim was bound to fail. The appellant had stated that fear forced him to hide his relationship and prevented him from living openly. The Tribunal had not evaluated that evidence under the correct principles. It must also make findings about the effect of separation from the appellant's current partner and the likely future expression of his sexual identity in Iran. Per Buxton LJ, the Tribunal should consider the combined effect of abandoning part of that identity and exposure to extreme danger if he failed to do so.

1. Court of Appeal (Civil Division): Allowed the appeal unanimously and remitted the claim for reconsideration by a differently constituted Asylum and Immigration Tribunal: [2006] EWCA Civ 1238.
2. Asylum and Immigration Tribunal: Following a de novo hearing, dismissed the asylum and human-rights appeal. It refused permission to appeal. Permission was subsequently granted by the Court of Appeal on a renewed oral application.
3. Adjudicator: Dismissed the appellant's appeal against the Secretary of State's refusal of asylum.
4. Secretary of State: Rejected the asylum claim.