XY (Iran) v Secretary of State for the Home Department

In an asylum claim based on sexual orientation, a tribunal must not assume that an applicant can reasonably be expected to conceal his sexual identity to avoid persecution. It must address whether discreet or modified conduct is influenced by the threat of serious harm. An analogy with ordinary privacy in heterosexual relationships may be inadequate where it overlooks the need to suppress sexual identity because of feared persecution. Permission to appeal should be granted where there is a realistic prospect that the full court will find that these issues were not satisfactorily addressed below.

The appellant, an Iranian national who identified as homosexual, challenged the dismissal on reconsideration of his asylum and human rights claims by Immigration Judge Davies (AIT No: AA/00377/2007). The judge accepted that the appellant had been in a relationship with M but rejected the remainder of his account and concluded that he would not face a real risk of persecution or breach of his human rights on return.

On a renewed application for permission to appeal, the central issue was whether the judge had wrongly treated discreet same-sex conduct as sufficient to avoid persecution and had inadequately compared homosexual and heterosexual relationships.

1. Permission granted. Lord Justice Toulson granted the renewed application because there was a realistic prospect that a full court would be persuaded that material issues identified in J (Iran) [2006] EWCA Civ 1238 had not been satisfactorily addressed by the immigration judge. Mr Justice Patten agreed.
2. The immigration judge’s reasoning was arguably erroneous if it meant that the appellant could reasonably be required to conceal his homosexuality from persons other than a partner to avoid persecution. The relevant question is not merely whether the appellant would probably act discreetly, but whether any modified conduct would be influenced by the threat of serious harm.
3. The court referred to the majority judgments in S395/2002 2003 HCA 71, as cited in J (Iran). Those passages treated the threat of serious harm as potentially constituting the persecutory conduct and distinguished between conduct chosen freely and conduct adopted to avoid threatened harm. Treating an applicant as expected to live discreetly, in the sense of suppressing sexual identity to avoid persecution, was arguably wrong and irrelevant to the required assessment.
4. The comparison between homosexual and heterosexual relationships was also arguably inadequate. The issue was wider than whether intimate acts occurred publicly or privately. Heterosexual people did not generally have to conduct themselves every day so that their relationships would remain undisclosed for fear of persecution.
5. The court determined only the permission application. It did not finally decide whether the appellant qualified for asylum or whether his removal would breach his human rights. Order: application granted.

• Court of Appeal (Civil Division): On 4 April 2008, granted the renewed application for permission to appeal.
• Asylum and Immigration Tribunal: On reconsideration, Immigration Judge Davies dismissed the appellant’s appeal against refusal of his asylum and human rights claims (AIT No: AA/00377/2007).