OO (Sudan) & Ors v Secretary of State for the Home Department

Under the Refugee or Persons in Need of International Protection (Qualification) Regulations 2006 and the European Council Directive 2004/83/EC, discriminatory criminal legislation does not ordinarily amount to persecution merely because it remains on the statute book. The measure, alone or cumulatively, must have a sufficiently severe impact, broadly equivalent to a severe violation of a basic human right. Non-enforcement is relevant, although a serious modification of conduct caused by fear may itself satisfy the threshold where the applicant could not reasonably be expected to tolerate it. The Directive did not widen domestic law. In Article 8 cases, engagement and breach remain distinct: removal may engage private life yet be justified and proportionate under Article 8(2).

Two conjoined appeals were brought by JM, a Ugandan citizen, and OO, a Sudanese citizen, against decisions of the Asylum and Immigration Tribunal. Each appellant relied on domestic laws criminalising homosexual conduct, although the AIT found that those laws were not enforced and that neither appellant faced a well-founded fear of persecution. JM challenged the AIT’s factual findings as perverse. OO challenged the AIT’s treatment of his private-life claim under Article 8 of the Convention. The common issue was whether unenforced discriminatory legislation could itself constitute an act of persecution under the Qualification Regulations and the Qualification Directive.

The Court of Appeal unanimously dismissed both appeals.

1. Persecution and discriminatory legislation. Regulation 5(2) of the Refugee or Persons in Need of International Protection (Qualification) Regulations 2006 had to be read subject to regulation 5(1), just as Article 9(2) of the European Council Directive 2004/83/EC was subject to Article 9(1). The domestic provisions had to reflect the Directive under section 2 of the European Communities Act 1972.
2. A discriminatory legal measure could constitute persecution only if it met the required seriousness threshold. Under Article 9(1)(a), the violation had to be sufficiently severe. Under Article 9(1)(b), the relevant rights could be broader than the non-derogable rights in Article 9(1)(a), but the impact still had to be sufficiently severe to affect the individual in a broadly equivalent manner. The Directive did not widen the domestic concept of persecution. The approach in Amare v SSHD [2005] EWCA Civ 1600 and RG (Columbia) v SSHD [2006] EWCA Civ 57 remained binding.
3. The mere existence of an unenforced discriminatory law would not normally amount to persecution. However, a modification of behaviour adopted to avoid feared harm could do so where the applicant could not reasonably be expected to tolerate it. The AIT had applied that test and its findings in both appeals disclosed no error of law.
4. JM’s evidence did not establish that the AIT’s overall conclusion was perverse. The determination, read as a whole, concentrated on the paucity of reliable evidence of specific violence, arrests or prosecution. Its conclusion was properly open to it.
5. In OO’s case, the AIT correctly distinguished engagement of Article 8 from breach of Article 8, applying the five-stage approach in Razgar [2004] UKHL 27. The finding that removal would end the private life established in the United Kingdom did not mean that private life would cease altogether in Sudan. It could continue there, albeit with greater difficulty. The conclusion that removal was proportionate was therefore open to the AIT.

Order: both appeals dismissed.

1. Court of Appeal (Civil Division): The conjoined appeals were dismissed. The court held that the AIT had made no error of law in applying the persecution and Article 8 tests. [2009] EWCA Civ 1432
2. Asylum and Immigration Tribunal: The AIT found that the relevant criminal laws were not enforced, that neither appellant had a well-founded fear of persecution, and that OO’s removal would not breach Article 8.