RG (Colombia) v Secretary of State for the Home Department

An asylum claim based on anticipated restraint of conduct requires a fact-sensitive inquiry. The tribunal must determine how the applicant would in fact behave on return and whether that behaviour would expose the applicant to a serious risk of Convention persecution.

Asylum cannot be refused merely because an applicant could avoid persecution by modifying conduct where the required modification would itself be sufficiently serious to amount to persecution. A denial of freedom or another basic human right does not, without more, cross that threshold. The resulting harm must attain the intensity or duration required by the strong concept of persecution.

The appellant was a homosexual Colombian national who was HIV positive. He claimed that return to Colombia would expose him to death squads because his mannerisms had become more open while living in the United Kingdom and he could no longer conceal his sexual orientation.

The adjudicator accepted that homosexuals in Colombia faced a risk from paramilitaries. He nevertheless found that the appellant had previously lived there without experiencing hostility, would moderate his behaviour if necessary, and had left because he could not afford medical treatment rather than because of persecution. The Immigration Appeal Tribunal upheld those findings.

The central issue was whether the adjudicator had unlawfully denied asylum on the basis that the appellant could avoid persecution by living discreetly, and whether failing to address psychiatric evidence concerning the effects of suppressing his sexuality amounted to an error of law.

1. The appeal was dismissed unanimously. The governing inquiry was how the applicant would in fact behave after return and what consequences that behaviour would produce. An applicant who would act in a way exposing him to a serious risk of persecution for a Convention reason may qualify for asylum even if restraint of his liberties might avoid that harm.

2. The inquiry concerning modification of behaviour had two aspects: whether the applicant would be required to modify his behaviour, and whether that modification would itself place him in a situation amounting to persecution. The adjudicator had not required the appellant to change his behaviour. He had permissibly found that the appellant would moderate it if he considered that necessary, as he had done during his earlier years in Colombia.

3. Persecution is a strong and serious concept. A denial of a basic human right, including freedom to express sexual orientation, does not necessarily amount to persecution. The restraint or resulting harm must reach a sufficiently high level of intensity or duration. On the findings made, the appellant had previously lived in Colombia without hostility, had not shown that his earlier behaviour was compelled only by fear, and would not behave significantly differently on return. Nor had he shown that restraint would have effects sufficiently serious to constitute persecution.

4. The adjudicator committed no error of law by failing to address the psychiatric report as evidence of Refugee Convention persecution. The report had been relied on before the Immigration Appeal Tribunal to support a claim under the European Convention on Human Rights, rather than to establish persecution under the Refugee Convention. In any event, the report did not address the applicable persecution threshold and proceeded on an assumption of compelled repression inconsistent with the adjudicator's findings. Even had an error been established, remission would have presented substantial difficulty.

Order: Appeal dismissed. The appellant was ordered to pay the respondent's costs.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2006] EWCA Civ 57. The court upheld the conclusion that the adjudicator had made no error of law.

2. Immigration Appeal Tribunal: The Tribunal upheld the adjudicator's determination. It concluded that the adjudicator had permissibly found that the appellant would moderate his behaviour rather than being required to change it.

3. Adjudicator: The adjudicator rejected the renewed asylum claim in a determination promulgated on 4 November 2003.