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

The need for a homosexual asylum applicant to conduct sexual activity discreetly does not, without more, establish persecution. The applicant must show that the intensity or duration of the resulting restrictions would make them intolerable, so as to reach the high threshold of persecution.

The inquiry is fact-sensitive and includes the effect of discretion on sexual identity and private life. Where the evidence shows that the applicant previously conducted a homosexual relationship discreetly without serious detriment, and does not establish an inability to tolerate that position on return, the asylum claim fails.

The appellant, an Iranian national, claimed asylum on the basis of his homosexuality. It was accepted that he was homosexual and had had a long-term relationship with another man, but the Immigration Judge rejected his claims that the relationship had been detected, that his partner had been arrested, and that he was wanted by the Iranian authorities.

Following an earlier flawed Tribunal decision and a second-stage reconsideration, Immigration Judge M Davies dismissed the appeal on 4 December 2007. The appellant contended that the judge had failed to apply the question identified in J [2006] EWCA Civ 1238: whether he could reasonably be expected to tolerate living discreetly in Iran.

The central issue was whether the absence of an express consideration of that question disclosed an error of law.

Appeal dismissed. Stanley Burnton LJ gave the judgment of the court, with Lewison J and Moore-Bick LJ agreeing.

1. The Immigration Judge had given adequate reasons for rejecting the appellant’s account that the Iranian authorities knew of his homosexual relationship, had arrested his partner, or wanted him. Those findings disclosed no error of law.

2. The court accepted the approach in J [2006] EWCA Civ 1238. An applicant cannot be refused asylum merely because otherwise persecutory conduct could be avoided by modifying significant behaviour. However, persecution is a high-threshold concept. The question is whether the circumstances of discreet living, including restrictions bearing on sexual identity and private life, are such that the applicant cannot reasonably be expected to tolerate them.

3. The country guidance in RM and BB (Homosexuals) Iran CG [2005] UKIAT 00117 showed that a homosexual man who conducts consensual activity privately is unlikely to come to the authorities’ attention. Discretion therefore does not itself determine the claim; its effect on the individual must be proved.

4. Although the Immigration Judge had not expressly framed the issue in the language of J, the omission was immaterial. The appellant had carried on a relationship in Iran for years. He said that he left because he feared detection and punishment, not because discreet life had been intolerable. Once that account of detection was disbelieved, he had neither asserted nor established facts showing that he could not reasonably be expected to tolerate his circumstances on return. The further contentions depended on speculation about a resumed relationship and living arrangements.

5. It was unnecessary to decide whether the question is more appropriately analysed under the Asylum Convention or Articles 3 or 8 of the European Convention on Human Rights.

1. Court of Appeal (Civil Division) — dismissed the appellant’s appeal in [2008] EWCA Civ 911.

2. Asylum and Immigration Tribunal — Immigration Judge M Davies, on a second-stage reconsideration, dismissed the appellant’s asylum appeal on 4 December 2007. That determination was upheld.

3. Asylum and Immigration Tribunal — an earlier decision dismissing the appeal, dated 22 February 2007, was ordered to be reconsidered. Senior Immigration Judge Moulden held on 31 August 2007 that the original decision contained an error of law.